Public Procurement: Recent ECJ decision provides first guiding principles on self-cleaning measures and the requirements of such to comply with European public procurement law.
Important to know:
The bidder who, as a participant in a cartel, had cooperated extensively with the Cartel Office in an antitrust investigation and implemented personal and organizational self-cleaning measures, must, nevertheless, also cooperate with the contracting authority to enable him to verify the reliability of the bidder. The mere reference of the bidder to the cooperation with the competition authority is legally not sufficient. There are no legal concerns in European Law against such a regulation to cooperate also with the contracting authority. The time limit for the maximum permissible exclusion of a bidder does not count from the date of the infringement, which justifies an exclusion in a public procurement, but the date of the ruling of the authorities.
Decision:
The defendant tendered track superstructure materials. The plaintiff manufactures such materials. It had participated in the “track cartel” until 2011 and received a fine in March 2016. Decreeing the fine, the BKartA (Federal Cartel Office) applied a bonus scheme in order to honor the extensive cooperation of the plaintiff in the investigation. The plaintiff submitted a tender with the defendant, which expressed doubts about the reliability of the plaintiff in writing, based on the plaintiff´s participation in a cartel. The plaintiff explained in writing the organizational and personal self-cleaning measures taken. It also agreed to compensate for the damage suffered by the cartel law infringement. The plaintiff failed to send the defendant the fine notice and was excluded from the procurement procedure which is why it appealed to the VK Südbayern (procurement supervisory committee of southern Bavaria). It argued, the review proceedings, Article 57 VI of Directive 2014/24, provided only for cooperation with the investigating authorities, but not with the contracting authority. In addition, the exclusion from the procurement procedure under § 126 no. 2 GWB (Act against Restrains of Competition) is only permitted for the three years that followed the facts for a reason for exclusion.
That a Vergabekammer (procurement supervisory committee) is entitled to formally submit legal clarification of EU law to the ECJ, that it is namely a court in the functional sense, is clear since the ruling “Dorsch Consult” of the European Court of Justice (ECJ, case 54/96, ECA 1997, 625 – Dorsch Consult, for the former Vergabeüberwachungsausschüsse / committees to supervise procurements , ECJ 110 2000, I-1577 – Gabalfrisa, see also Just, in: Schulte / Just, antitrust law, 2nd ed. 2015, § 105 marginal 2, 8 to § 105 GWB old version), even though the procurement supervisory committee is part of the administration and decides by administrative act, § 168 III GWB. It should also be noted that Paragraph 125 (2) of the GWB requires that the tenderer “has fully clarified the facts and circumstances relating to the misconduct and the damage caused by active cooperation with the investigating authorities and the contracting authority “. The defendant pleaded that the plaintiff did not cooperate fully with her.
The ECJ decided in favour of the defendant and confirmed the exclusion of the plaintiff. The ECJ underlines the different functions of the investigating authorities and the contracting authority. Unlike the investigative authority, the contracting authority has to prognostically evaluate the risks, which he might under certain circumstances run, if an order is placed with a bidder who may have a more doubtful integrity. Therefore, the bidder must also cooperate with the contracting authority, at least in the measures, which are strictly necessary to assess the reliability of the bidder.
Pursuant to Art. 57 IV lit. a of the Directive 2014/24 / EU, the bidder has “to demonstrate in an appropriate manner” that it has comprehensively clarified the facts and circumstances relating to the cartel in which it was involved by active cooperation with the competent investigative authority. As a matter of principle, it is sufficient to forward the decision of the investigating authority establishing the breach of the competition rules and the application of the bonus scheme, but this in detail has to be evaluated in the concrete case at hand. The application of a bonus scheme and the cooperation with the investigating authorities in antitrust proceedings do not exempt them from cooperating fully with each other in a procurement procedure with the contracting authority.
In calculating the time limit, the ECJ states that the Directive does not apply to the nature of the “relevant event” or the time of entry. However, as Article 57 I of Directive 2014/4 / EU requires the date of the final decision, for the sake of consistency of rules and for reasons of predictability and legal peace, Article 57 VII also refers to the date of the administrative sanction decision. Thereby the duration of the antitrust participation is not relevant.
Notes:
The decision is partly scarcely reasoned, but understandable. Since the antitrust participation extends over a longer period of time and often the end date of the participation may not clear, the date of the decision of the authorities is an appr opriate point in time, which also avoids that a legal blocking effect is missing due to a lack of knowledge of the authorities. It is unacceptable from the bidders point of view to have to submit a decision, which can become the basis for a claim for damages.
The decision provides some valuable guidance on the exciting question of how implemented compliance measures work and what other measures are required to restore “reliability”. Even though this feature no longer exists since the VergRModG (Procurement Law Modernisation Act) 2016, they are valuable for the application of the exclusion criteria and the self-cleaning rules.
__