The Supreme Administrative Court (“SAC”) has referred a preliminary inquiry to the Court of Justice of the European Union (“CJEU”) in relation to a direct negotiation public procurement procedure with one participant
The inquiry was made under administrative court case No. 12052/2020, with the aim of clarifying the question of whether the principles of transparency, equal treatment, proportionality and non-discrimination allow the national legal framework to stipulate that after the termination of a procedure for the award of a public procurement in the case of offers submitted, which are unsuitable, an invitation to participate in a negotiation procedure may be issued without prior notice to only one economic operator. In addition, the subject of the public procurement does not require its execution to be only by the invited operator, i.e. it lacks specific services or activities that objectively impose the need to invite the specific operator.
The dispute within the proceedings before the SAC is related to the reference to Art. 79, paragraph 1, item 1 of the Public Procurement Act, when announcing a new procedure for which only one entity is invited, pre-selected by the contracting authority, to conduct negotiations with a view to selecting it as a contractor.
The provision establishes the possibility for the contracting authority to conduct the procurement procedure without prior announcement, when in an open or limited procedure no suitable operators participate, and when the originally announced conditions of the public procurement are not substantially changed.
At the same time, according to European legislation, the principles of transparency, equal treatment, proportionality and non-discrimination apply to all public procurement contracts.
The very inquiry made by the SAC to the CJEU is:
- Should Article 160, paragraphs 1 and 2 of Regulation 2018/1046 and Article 102, paragraphs 1 and 2 of Regulation 966/2012 be interpreted in the sense that they also apply to contracting authorities from Member States of the European Union, when the public contracts awarded by them are financed with funds from the European Structural and Investment Funds?
- If the answer to the first question is affirmative, should the principles of transparency, proportionality, equal treatment and non-discrimination stipulated in Article 160, paragraph 1 of Regulation 2018/1046 and in Article 102, paragraph 1 of Regulation 966/2012 be interpreted in the sense that they allow the complete limitation of competition when awarding a public procurement through a negotiation procedure without prior announcement, when the subject of the public procurement is not distinguished by specifics that objectively require its execution only by the invited operator? In particular, are Article 160, paragraphs 1 and 2 in conjunction with Article 164, paragraph 1, letter d) of Regulation 2018/1046 and Article 102, paragraphs 1 and 2 in conjunction with Article 104, paragraph 1, letter d) of Regulation 966/2012, to be interpreted in the sense that they allow a national legal framework such as that in the main proceedings, according to which, after the termination of a procedure for the award of a public procurement due to the fact that the only offer submitted is unsuitable, the contracting authority may issue an invitation for participation in a negotiation procedure without prior notice to only one economic operator, when the subject of the public procurement is not distinguished by specifics that objectively require its execution only by the invited operator?
With a resolution dated 16.06.2022, under case C-376/2021, the CJEU gave the following answers to the questions:
According to the decision of the CJEU, within the framework of a negotiation procedure without prior notice, the contracting authority can invite only one economic operator when this procedure reproduces, without substantial changes, the initial conditions of the public procurement, specified in a previous open procedure, which was terminated because the offer submitted was unsuitable, although the subject of the relevant public procurement is not distinguished by specifics that objectively require its execution to be assigned only to this operator.