What do the new Guidelines say?

As a starting point, the Guidelines distinguish between joint bidding and bid rigging. The latter refers to agreements which aim to distort competition in public procurement procedures, pre-determining the tenderer to win, while creating the impression that the procedure is competitive. Bid rigging is a cartel and one of the most serious restrictions of competition. Joint bidding refers to a situation where two or more undertakings cooperate to submit a joint bid. The Guidelines identify a number of situations in which bidding consortia may be allowed or justified.

On the one hand, if the parties cannot individually participate in the tender and, therefore, are not competitors for the project performance, cooperation does not constitute a restriction of competition. A good example of this would a joint bidding agreement where two parties supply different products or services that are necessary to present an offer for the whole contract. However, the EC explicitly states that where parties are not able to bid for the whole contract, but to bid for one lot, they must be considered competitors. The EC also clarifies that the mere theoretical possibility of carrying out the project individually does not make the parties competitors; it is necessary to assess “whether each party is realistically capable of completing the contract on its own, taking into account the specific circumstances of the case”.

On the other hand, if the parties are capable of bidding individually and are, therefore, competitors, joint bidding might restrict competition. However, such joint bidding agreements between competitors may be justified under competition rules. As a general rule, cooperation may be justified if the joint bid allows the parties to submit a more competitive offer – in terms of price and/or quality – than the offers they could have submitted on their own, and the benefits for the parties and consumers outweigh the restrictions of competition. For example, where two competitors could individually bid for a lot, but only jointly could present an offer for the whole contract and realistically win the tender, joint bidding would be justified.

Finally, the Guidelines state that only the information strictly necessary for the formulation of the bid and the performance of the contract should be shared between the members of the consortium.

Our comments

We welcome these guidelines and believe they will facilitate collaboration, but it remains to be seen how the courts will interpret them. On the basis of the previous guidelines, our courts allow joint bidding where it is indispensable for the performance of the contract. However, some recent judgments have deviated from this position and justified cooperation on the grounds of economic reasonableness, a stance that appears to be more in line with these new Guidelines.

La entrada Joint bidding under competition rules aparece primero en Faus & Moliner Abogados.

The General State Budget Law for 2023 includes a final provision that introduces a series of amendments to the Spanish Law on Public Procurement (LCSP, according to its Spanish acronym). One particular amendment stands out: for the first time, the law regulates the procedure to be followed in the event that the contracting authority has well-founded indications of collusive behaviour in a public tender.

Article 150.1 LCSP, in its original version of 2017, already stipulated that if the contracting entity had well-founded indications of collusive behaviour, it had to inform the Spanish National Markets and Competition Commission (CNMC, according to its Spanish acronym) before awarding the contract so that the CNMC could issue the relevant report. However, the application of this provision was subject to the subsequent regulatory development of a procedure that had not yet been defined. For this reason, this provision of Article 150 LCSP had not entered into force.

Until now, the Central Administrative Court of Contract Appeals (see Resolution 60/2021) held that, although contracting authorities could request a report from the CNMC if they found evidence of collusive behaviour, such a report was optional and not mandatory. In practice, without a clear procedure, the application of this clause was very limited. From now on, the situation will be different: as from 1 January 2023, the procedure set out in Article 150.1 LCSP is in  place and contracting authorities will be obliged to follow it if there are indications of collusive behaviour.

The procedure

Broadly speaking, the procedure is as follows:

• The contracting authority notifies the CNMC (or equivalent regional body) of the reasonable grounds for suspecting collusion. The CNMC will issue a report within 20 working days. The tender procedure is suspended without informing the tenderers. If the report is not issued within such time-limit, the contracting authority may continue the tender procedure or initiate the adversarial procedure mentioned below.

• If the report concludes that there is no substantiated evidence of collusion, the procedure is resumed (without informing the tenderers). Conversely, if the report concludes that there is substantiated evidence of collusion, the suspension of the bidding process will be notified and published, and the parties will be given 10 working days to respond.

• Following this hearing, the contracting authority may, within 3 working days, request any reports it deems appropriate from the CNMC (or equivalent regional body).

• In the light of the allegations, evidence and reports in the file, the contracting authority shall decide within 10 working days whether or not there has been a collusive behaviour. It shall take into account the measures taken by the undertakings to avoid future infringements. If collusion is found, companies concerned will be excluded from the tender procedure and the file will be processed further. If no collusion is found, the bidding process continues as normal.

This notification to the CNMC may result in the initiation of disciplinary proceedings and the imposition of prohibitions on contracting for the companies concerned.

Collusion in public procurement: practical tips.

Finally, it is worth recalling the circumstances which, according to the CNMC itself, are indicative of collusive behaviour (see the CNMC’s own “Guide against fraud in public tenders of July 2020“):

• Low number of bidders, including competitors (possible market sharing).

• Inconsistent bids (the same company submits bids with unjustified significant differences compared to other tenders of the same type in which it has participated).

• Suspicious similarities between the financial and technical offers of several bidders.

• Suspicion of boycott (bidders unjustifiably refrain from bidding in order to obtain a change in the terms of the tender).

• Non-competitive bids (bogus or “side bids”, which that are clearly not intended to win the contract, but are made to appear competitive).

• Suspicious patterns of behaviour among bidders (one company being awarded the same contract, lots and/or territories or there is rotation among awarding companies).

• Unjustified subcontracting by one bidder to another competing bidder.

• Bids submitted by the same natural persons in respect of different companies.

• Financial offers with identical wording, identical format, wording or errors.

• Creation of joint ventures between competing bidders without apparent justification.

With the prospect of increased scrutiny of collusive behaviour in public procurement, these practices should be kept in mind in order to avoid engaging in such anti-competitive behaviour. The importance of having good regulatory compliance programmes is also reinforced. The same LCSP foresees that these programmes can be used to avoid contracting prohibitions, mitigate potential sanctions, and to be considered within the procedure set out in Article 150.1 LCSP.

La entrada The procedure to be followed when there is reasonable suspicion of collusive behaviour in public tenders aparece primero en Faus & Moliner Abogados.

This judgment was delivered in the context of a dispute concerning the award of a public contract in Poland. One of the tenderers appealed against the award decision and requested access to certain information relating to the successful tender and a re-evaluation of all the tenders submitted. The contracting authority refused to grant access to this information on the grounds that it had been classified as confidential by the successful tenderer. According to the successful tenderer, disclosure of this information could harm its legitimate interests, given the commercial value of the information and the measures it had taken to keep it secret.

In the context of appeal against this decision, the Court held that the lack of complete information on the various tenders submitted could hinder a tenderer’s right to an effective remedy. The Court referred to the Court of Justice of the European Union (CJEU) a number of questions concerning the limits of confidentiality of information shared in the context of public procurement procedures.

Scope of confidentiality of information submitted in public procurement procedures

First, the CJEU examined whether European Directive 2014/24/EU on public procurement is compatible with a national law that requires the publication of all information provided by the tenderers in a public procurement procedure, with the sole exception of trade secrets.

Firstly, the CJEU considers that when Directive 2014/24/EU states that “the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets”, it is protecting a wider range of confidential information than technical and trade secrets.

Secondly, the CJEU recalls that Directive 2014/24/EU also provides that “certain information on the contract award  […] may be withheld from publication where its release  […] would harm the legitimate commercial interests of a particular economic operator […]”. On these grounds, the CJEU found that national legislation which only allows trade secrets to be classified as confidential in the context of public procurement procedures is contrary to Directive 2014/24/EU.

According to the Court, information which does not fall within the concept of trade secrets may be classified as confidential under the Directive: (i) if it has commercial value outside the scope of the public contract in question, the disclosure of which might undermine legitimate commercial interests or fair competition or; (ii) if has no commercial value, the disclosure of which would be contrary to the public interest.

Under Spanish Law on public procurement (Ley de Contratos del Sector Público or LCSP), technical or trade secrets and information that could be used to distort competition may be considered confidential “amongst others”. According to the CJEU judgment of the CJEU, “amongst others” can be interpreted to include information the disclosure of which would harm legitimate commercial interests, beyond trade secrets.

Extrapolating the above to public health procurement, it could be argued that a “legitimate commercial interest” could include the price of a particular medicinal product, which is the is the result of a confidential analysis of economic information provided by the company to the Ministry of Health. Therefore, if this analysis were to qualify as a legitimate commercial interest under the criterion of the CJEU, it could be argued that it should be treated as confidential.

The possibility of treating all the information submitted by the tenderer as confidential

The CJEU also examines whether a provision which allows all the documents proving the technical capacity and the means of performing the contract to be treated as confidential is compatible with the principles of the Directive. The CJEU states that access to such information may be refused only if the contracting authority finds that (i) if such information has a commercial value outside the scope of the public contract in question, its disclosure might undermine legitimate commercial or fair competition; or (ii) if it has no such commercial value, its disclosure will impede law enforcement or would be contrary to the public interest. In any event, access to the “essential content” of such information shall be granted in such a way as to ensure compliance with the tenderers’ right to an effective remedy.

Where access to information submitted by the successful tenderer is refused on the grounds that it has been wrongly treated as confidential, the CJEU concludes that it is not necessary to adopt a new award decision if: (i) national procedural law permits measures to restore compliance with the right to an effective remedy, or; (ii) the unsuccessful tenderer is given the opportunity to bring a new action against the award decision. In the latter case, the time limit for bringing such an action shall start to run from the date on which the applicant has access to all the information.

Conclusion

This judgment helps to outline the scope of confidentiality obligations in public procurement, while confirming that the Directive protects a broader scope than trade secrets. According to this judgment, it could be argued that confidentiality in public procurement could also include other information, the disclosure of which would harm legitimate commercial interests. In the area of public health procurement, this would provide further grounds to argue that the unit price of medicinal products should not be disclosed, on the basis of legitimate commercial interests.

The judgment also explains the need to ensure access to the essential content of the information supporting technical solvency and the means by which the contract is to be performed. The remaining information may be classified as confidential if it is demonstrated that its disclosure could undermine legitimate commercial interests, fair competition or the public interest. All this while guaranteeing tenderers the right to an effective remedy.

La entrada The scope of confidentiality in public procurement: beyond trade secrets aparece primero en Faus & Moliner Abogados.

The Spanish Government lodged an appeal of unconstitutionality against Foral Law no. 17/2021, of 21 October, which regulates certain aspects of public procurement in Navarra, as per the Official State Gazette of 21 September 2022. This Law modifies the traditional system for the purchase of medicinal products for hospital use with the aim of making it more flexible.

In particular, this law excludes from the scope of application of public procurement rules the purchase of all medicinal products financed by the NHS and which price is set by the Ministry of Health.

Exclusion is expected to be implemented in the following way:

• In the first stage, the conditions to be met by potential suppliers (payment system, penalties, volume and quality of the product, etc.) would be determined and the existing credit would be justified. At this stage, no units of product would be purchased and companies could join the system on a voluntary basis.

• In subsequent stages, hospitals would purchase the necessary quantities of medicinal products from one of the companies that had adhered to the conditions set out in the first stage. These contracts would be subject to the provisions of Private Law.

The Spanish Government contends that this Foral Law infringes the State’s exclusive law-making powers in “basic legislation on administrative contracts and concessions” and “legislation on pharmaceutical products”. On the contrary, Navarra believes that the law complies with the applicable legal framework, as it governs a matter included within regional law-making powers in “administrative contracts and concessions”, which can be fully exercised while “respecting the essential principles of the basic State legislation on the matter“.

Recall that Navarra’s law-making powers differ from that of ordinary Autonomous Communities. Hence, it is able to enact its own rules on public procurement on the sole condition that it respects “the essential principles” of the basic State regulations. The Constitutional Court defines these “essential principles” as the ideas that characterise and constitute the basis of State regulation, but does not refer to any specific provisions. Therefore, we must wait for the Constitutional Court to define what are the essential principles of the Law on Public Procurement, and assess whether the Foral Law respects these principles by providing for this special system for the purchase of certain medicinal products.

This issue may have further implications at EU level. The Constitutional Court must assess whether the Foral Law’s special regime  is compatible with Directive 2014/24/EU on public procurement. As regards this matter, the Law of Navarra has relied on the ECJ judgment of 2 June 2016 (Case C-410/14) and on the purposive approach of the public procurement rules that prevails at European level.

European case law holds that the purpose of public procurement rules is to safeguard competition, and that the existence of a decision to select one economic operator amongst various is a basic element of the concept of public contract. Therefore, according to this judgment, public procurement law shall no longer apply if no such selection exists.

Regardless of the outcome of this appeal to the Constitutional Court, it is interesting to discuss the application of the Law on Public Procurement to the procurement of innovative medicines (which are exclusive to a single company, and have a funding resolution from the NHS and a price set by the Ministry of Health). Considering that selection does not take place (there is only one possible supplier) and that the main economic condition (price) has already been set by the administration, it could be argued that it is pointless to apply the Law on Public Procurement in order to safeguard competition. This perspective was presented in our contribution to the public consultation process of the draft bill amending the Law on Guarantees and Rational Use of Medicinal Products and Medical Devices.

La entrada Exclusion of the purchase of medicinal products from the Law on Public procurement aparece primero en Faus & Moliner Abogados.

A new trend in the public procurement of medicinal products is timidly making headway. Both the industry and the public sector are interested in exploring new formulas to evolve from a traditional model to a new relationship based on different concepts. This would change the role of the industry itself, as it would come to provide solutions and services that complement the supply of the product. This, in turn, would improve the patient’s situation, hospital management, or allow for cost reductions. Hence, the industry would act more as a partner than as a supplier. Public procurement would be considered an investment rather than mere expenditure.

At the end of the day, this encourages a redefinition of the purpose of contracts, which would shift from mere supply of products to contracting solutions that create value, thus rendering measurable results that can be remunerated, if necessary under risk-sharing or similar agreements.

These proposals require a change in the culture of the contracting bodies, so that better and different use is made of the mechanisms already available in the Law on Public Procurement to elaborate contracts with a composite purpose, notably mixed contracts.

Price in the case of mixed contracts

In this context, on 26 May, the Central Administrative Tribunal of Contractual Appeals (TACRC) issued a resolution following an appeal filed by Faus Moliner in the interest of one of our clients. The resolution comes to clarify the rules of the game, thus providing greater legal certainty to all stakeholders.

This was the case of a tender to contract the supply of specific medicinal products, along with a set of logistical services so as to facilitate hospital management and the provision of software for inventory control purposes. However, the contract price was determined solely based on the unit price of the medicinal products.

Tribunal states that, according to the Law on Public Procurement, the price of a contract with multiple provisions (products and services) may be set with reference to only one of the provisions (the product). However, the price of the latter must somehow include, consider or reflect the value of the remaining provisions. In addition, this must be explained in the relevant economic report.

Therefore, the contracting body may set the price of a mixed contract only on the basis of the unit price of the relevant medicinal product. Nonetheless, the corresponding economic report must specify that the remaining services are also being remunerated through the purchase price of the product.

La entrada New public procurement models, value has a price tag aparece primero en Faus & Moliner Abogados.

On 2 March 2022, Royal Decree-Law 3/2022 on measures to enhance sustainability in road freight transport and on the functioning of the logistics chain was published in the Official Journal. This legal instrument includes an interesting Additional Provision on medicinal products against COVID-19.

According to this Additional Provision, certain medicinal products may be supplied outside the Public Procurement Law, merely by executing a contract without a public call for tender.

Which products can be purchased without tendering?

This special regime applies to authorized medicinal products (whether by Spanish or EU authorities), which meet a particular medical need in the fight against COVID-19 that is not yet covered. As explained in the preamble, this includes products that may reduce the risk of serious illness and death due to COVID-19, or those aimed at preventing this disease. This special regime does not apply to products that have not received a marketing authorization (i.e., medicines for compassionate use), but may apply to products that are subject to a conditional authorization.

Who and when?

According to this Royal Decree-Law, these special contracts that do not require a public call for tender may be entered into with any public body integrated in the Spanish central administration. Regional authorities (are not authorized to operate under this special regime.

These contracts may be concluded until 31 December 2022.

Characteristics of supply agreements

The wording of this Royal Decree-Law suggests that this special regime will only apply to supply agreements that are governed by a law different from Spanish one..

In addition, these agreements may include liability clauses other than those set out in the Law on Guarantees and Rational Use of Medicinal Products and Medical Devices. Special liability regimes may be provided for, as was the case with vaccines.

Lastly, these contracts may include advance payment clauses without the need to comply with the conditions set out in the General Budget Law.

La entrada Procurement of COVID-19 medicinal products outside public procurement rules aparece primero en Faus & Moliner Abogados.

The judgment under analysis derives from Resolution no. 122/2019, of 25 March, of the Council of Transparency and Good Governance (CTBG, according to its Spanish acronym). A company that submitted a bid in the context of a public tender and was not awarded the contract requested the Ministry of Public Works and Transport to provide access to “the documentation relating to the bid that was finally awarded and to all that which served as a basis for the award”. The Ministry rejected the request on the grounds that it was unjustifiably abusive. According to the Ministry, in the context of the contracting procedure in which the company participated as a bidder, it received all information to which it was entitled pursuant to the Law on Public Sector Contracts.

In view of this denial of access, the bidder lodged a complaint with the CTBG. As a result, the CTBG partially upheld the complaint and ordered that the requested information be provided. However, the CTBG clarified that “information affecting technical or trade secrets and confidential aspects of the awarded bid” should not be provided.

The Ministry of Public Works and Transport filed a judicial appeal against the decision of the CTBG and obtained a favourable ruling. The Central Administrative Court no. 4 analysed whether “controlling the performance of the contract“, which was the interest invoked by the company requesting access to information, served the purpose of the Law on Transparency, Access to Information and Good Governance. The Court concluded that this was not the case, as the purpose of this Law is to control public action, not “the conduct of the awardee in a phase that did not involve actions by the Ministry of Public Works and Transport”.

The decision of the Spanish National Criminal and Administrative Court

The Spanish National Administrative Court overturns the lower Court’s judgement and states that unsuccessful bidders, even if they have not challenged the award, have the right to access documentation produced throughout the performance of the contract, provided that the limits set out by the CTBG are respected. Thus, information affecting technical or trade secrets and confidential aspects of the awarded tender must never be provided.

On the basis of the Law on Transparency, Access to Information and Good Governance, this ruling of the Spanish National Administrative Court grants any person the possibility to access information produced by any Public Administration in relation to the performance of public contracts. According to this judgment, the way in which a given contractor performs the contract is not foreign to the contracting administration and affects the public interest. The Court further emphasised that the contracting administration must control that the provision of the relevant service complies with the contract, and the way in which it does so is undeniably of public interest. Therefore, the documentation generated in the performance of the contract must also be transparent.

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Sophistication of the cartel as an aggravating factor

In this Resolution, the CNMC sanctions 12 companies with 61.28M Eur for their participation in a cartel consisting of the alteration, from 2014 to 2018, of the tenders for road maintenance and operation services called by the former Ministry of Development. Companies participating in the cartel periodically coordinated the economic offers to be presented in the tenders in coffee-meetings held at their headquarters and in public places. 

The particularity of this case is the sophistication of the mechanism implemented by the offenders, a mechanism that the CNMC describes as “extraordinarily complex”. Companies participating in the cartel classified the tenders in groups and agreed on common criteria for economic offers to be submitted in the tenders of each group. Each group of tenders was assigned a “bag” of points, and then such points were consumed by companies based on a group-specific formula that considered the level of discounts offered by each company. The higher the discounts, the more points consumed.

Considering this sophistication, as well as the high degree of alteration of the general interest, the CNMC applied an aggravating circumstance to the infringement.

The risk of being caught increases

Participating in a cartel involves a growing risk. In this case, the CNMC was informed about the existence of the cartel by anonymous complaints, as well as by participating companies that made use of the Leniency Program.

An increasing number of reporting mechanisms and systems to protect whistle-blowers are being developed. In this respect, we note that on 17 December 2021 will the deadline for Member States to adapt their internal regulations to the EU Whistle-blower Directive. The aim of such Directive is to protect whistle-blowers from retaliation. Whistle-blowers may be formal employees of the infringing company but also other persons such as job applicants, former employees, mediators, and journalists.

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The resolution issued by the Spanish Competition Authority (CNMC) in the radiopharmaceuticals case is a long document (+140 pgs) that can be read from different angles and that brings up several interesting considerations. In this CAPSULAS we would like to comment briefly on some of them, while at the same time warning that the complexity of these issues may make it advisable to carry out a more detailed study adapted to each specific case.

Information exchange and transparency

CNMC points out that the sanctioned companies shared public contracts “through the exchange of sensitive commercial information between them, which had an impact on the prices set for customers”. The discretion that the CNMC requires from the companies regarding their sensitive information is understandable; those operating in the same market should not share data that are essential to compete.

For this very reason, it would be desirable, indeed very desirable, for the rules governing public contracts to be applied with caution when it comes to making award prices transparent on an individual basis. The law allows contracting bodies not to publish individual prices, something with which the CNMC should agree; but this requires a favourable report from the Transparency Council. It is therefore advisable to clarify this issue and provide contracting authorities with guidelines for action that reconcile transparency and competition.

Business logic

CNMC accuses the sanctioned companies of having excluded themselves from various bidding processes.

Without evaluating the conclusions of the resolution, it is worth highlighting how CNMC seeks to determine whether or not there is a reasonable competitive commercial attitude on the part of the companies operating in the same market. CNMC considers that this is not the case when a company does not participate in a bidding procedure without a logical justification; when it submits non-competitive or hedging bids; or when it presents bids with formal defects that are difficult to explain. These situations, according to CNMC, are indicative of the existence of non-aggression pacts.

The conclusion is clear: whoever decides not to participate in a bidding procedure must work carefully on the justification of its conduct. No one can be forced to compete where it does not want to compete; but when deciding not to compete, it is better to have a strong explanation, based on self interests and supported by a solid business logic reasoning. CNMC, in this case, did not accept the companies’ allegations, but in some cases in the past, after having heard  solid explanations, it has decided not to intervene.

Sanctions to directors

CNMC, also on this occasion, imposes fines on a personal basis on some managers of the sanctioned companies.  In doing so, the CNMC relies on the jurisprudence that supports these sanctions for the deterrent  effect they  have, as they are an instrument to achieve greater efficiency in the fight against anti-competitive behavior.

In any case, the resolution devotes very few of its 140 pages to solidly demonstrate the personal involvement of the sanctioned directors in the anti-competitive practice.

The message on this point is also clear: the jurisprudence is supporting fines for managers who have an active role in anti-competitive practices and also for those who passively participate; any evidence of a conversation, even isolated, can lead to personal liability.

Prohibition of contracting with Public Bodies and compliance programs

In Spain, the Law on Public Procurement is clear: companies that have been firmly sanctioned for a serious infringement regarding the distortion of competition are subject to a prohibition on contracting with public sector entities. The CNMC, in this case, refers the matter to the State Public Procurement Advisory Board in order for it to rule on the duration and scope of the prohibition.

The resolution does not mention that the Law on Public Procurement also states that the prohibition can be avoided via the payment or commitment to pay the fines or if the adoption of appropriate technical, organizational and personnel measures to avoid the commission of future administrative infringements is proven.

The relevance of compliance programs in this matter is unquestionable, and it is highly recommendable to rely on CNMC’s Guide of June 10, 2020 when designing and implementing them.

Some “tips” in this regard:

· It is advisable to have a Compliance Program in place before being involved in a case in front of the CNMC.

· The management bodies and/or the main directors of the company should be directly involved. A top down approach should be adopted, and ensuring compliance with these rules must be at the core of the company’s culture.

· Ad hoc training must be offered, adapted to the reality of the company and the activity of each of its members. A standard training strategy that merely outlines the basics of antitrust rules is not sufficient.

· It is necessary to have an internal, transparent and effective whistleblower channel.

In an environment where enforcement is a priority, a robust compliance program is not only advisable but essential.

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On the one hand, a Company which placed third in the final ranking of a public tender brought proceedings  disputing the admission to the tendering procedure of the successful tenderer (“the Main Claim”). On the other hand, the successful tenderer requested the dismissal of the Main Claim and filed a counterclaim  contending that the Company should have been excluded from the public procurement procedure (the “Counterclaim”).

The Italian Administrative Court gave priority to examining the Counterclaim filed by the successful tenderer and granted that claim. Also, because of the grant of such Counterclaim, the Italian Court decided to reject as inadmissible the Main Claim.

The Company brought further appeal as it considered that irrespective of the Court’s ruling on the Counterclaim, the substance of the Main Claim should have been examined.

The Italian case law is not clear about the possibility to resolve a principal claim (such as the Main Claim) once a related incidental claim (such as the Counterclaim) has been granted.

Judgment of the Court of Justice

Under these circumstances, a preliminary ruling was referred to the Court of Justice.

The Court of Justice declared that when two tenderers bring actions seeking their reciprocal exclusion (as occurs in the present case with the Main Claim and the Counterclaim), the objective of both tenderers is to obtain the award of the relevant contract. This objective may be achieved if the requested exclusion of a tenderer is granted and the appellant becomes directly awarded; or if the result of the claim is the calling of a new procurement procedure in which the appellant has again the chance to participate and be awarded with the contract.

The interests pursued with the filing of reciprocal excluding actions are equivalent. Therefore, national courts shall not be allowed to reject as inadmissible a claim (such as the  Main Claim) on the basis that national procedural rules give priority to incidental counterclaims (such as the Counterclaim). The grant of an incidental claim cannot be an obstacle for a national court to examine the substance of the corresponding main claim and, if such main claim is finally granted, annul the public procurement and call for a new one.

Finally, it is important to note that this doctrine is only applicable to reciprocal excluding actions and it is not contrary to the Court of Justice case law regarding the inadmissibility of an appeal brought by a tenderer whose exclusion has become final.

La entrada Reciprocal excluding actions in the course of a tender aparece primero en Faus & Moliner Abogados.