2012/248 Moldskred Renovasjon AS – Søre Sunnmøre Renholdsverk

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No basis for analogy of the public procurement regulation § 17-9 (2), implementing Article 48 (3) of directive 2004/18, during the evaluation of tenders.

In case 2012/248 the question before the Complaint Board was whether the public procurement regulation § 17-9 (2), which allows a tenderer to rely on the capacity of other entities to meet the criteria for qualitative selection, provided it is documented that the tenderer will have resources at its disposal, should be applied by analogy during the evaluation of tenders.

To support analogy, the Complainant referred to the Complaints Board's decision in case 2009/11. This case, they claimed, assumes an analogical application of § 17‑9 (2) for the evaluation of tenders. After a review of the relevant sources of law, the Complaints Board concluded that there is no basis for such an analogy.

The Complaints Board first addressed case 2009/11. It was explained that in that case, the tenderer was relying on the capacity of a sub-contractor for delivery warranties, and multiple CVs of the sub-contractor's employees were therefore included in the tender. The Complaints Board stated in this context that these resources should be able to be considered in analogy with § 17‑8 (2). In case 2009/98, the Complaints Board interpreted this to mean that also the obligation to document that the resources are at the tenderers disposal applied (premise 33-37).

The subject matter in case 2009/98 was later brought before the court of appeal, in case LB‑2011‑036129. In the opinion of the court, both the wording and the context of the regulations dictates that § 17-9 (2) only apply for the qualification of tenderers, and not the evaluation of tenders. An analogy, therefore, does not seem well founded.

This understanding of the regulations, the Complaints Board said, should also apply to the present case, and is supported by the Complaints Board general practice. As a ground rule, the contracting authority must be able to rely on the information presented in the tenders. Exceptions apply where the contracting authority, because of particular conditions or details (provided, inter alia, by a different tenderer), is given an incentive to examine the information more closely. The public procurement regulations, the Complaints Board further pointed out, does not contain an explicit requirement to include a declaration of commitment as documentation of the content of the tender, which includes work that is being performed by other than the tenderer. The public procurement regulation § 17-9 (2), is an implementation of Article 48 (3) of Directive 2004/18, and should be interpreted in accordance with the directive. The Complaints Board referred, in this respect, to case C-95/10 from the Court of Justice in the European Union, which states that "Directive 2004/18 does not create the obligation, for Member States, to apply Article 47(2) of that directive also to contracts which have as their object services referred to in Annex II B thereto", cf. (46). In this regard, the Complaints Board highlighted the importance of caution in applying the rules by analogy. On these grounds, the Complaints Board found that there was no basis for analogy of the public procurement regulation § 17-9 (2).