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Public Procurement Update – February 2015

Michael Howlin QC has published an article about the Advocate-General’s opinion in the Ambisig v Nersant case before the CJEU.  As the opinion has not been officially  published in English, the article may be of interest to practitioners who have no appetite for reading it in French.  Michael’s summary of the article is as follows.

In Lianakis the ECJ held that under EU public procurement law the "selection" criteria for identifying the candidates whose tenders would go on to be evaluated were different from the "award" criteria for ultimately determing the successful tender and that accordingly it was wrong for a contracting authority to employ selection criteria as though they were award criteria.  In Ambisig v. Nersant Advocate-General Wathelet has suggested an exception to the rule in Lianakis where the contract is one for services of an intellectual nature which are intrinsically linked to the subject-matter of the contract. In such cases, he says, the experience and qualifications of the teams which tenderers propose to allocate to the performance of the contract may be considered as award criteria.  It remains to be seen whether the CJEU will endorse the Advocate-General's opinion but, if it does, there is the potential for some uncertainty to be introduced into this area of the law.  Furthermore, there is the possibility that where, in mid-contract, the successful tenderer's team changes, that change may oblige the contracting authority to put the contract out to tender again.  In any event, there will be greater legal certainty once the new Directive is implemented.

Please contact clerking staff to obtain a copy of the talk.