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The EU Court of Justice’s public procurement year of 2018 is remembered in an article by Kilpatrick Townsend attorneys, which outlines interesting judgements from the court. It summaries three judgements that it believes “are of great interest for future procurements. With all certainty, they will also be the subject of much debate and have influence on the national courts in the Member States.”

The first discusses “when is a contract not a contract” – looking at, how, under EU law, the fact that a service is exposed to competition does not automatically mean that it is a contract. This quandary was clarified in Case C-9/17 Tirkkonen, it says, where the CJEU specified the concept of a “procurement contract.”

“According to the Court, a public contract is not covered by the procurement regulations if a contracting authority accepts all the suppliers who meet the suitability requirements set out in the invitation to bid, and leaves the choice of supplier to the individual user. In short, it can be stated that what distinguishes a procurement contract from other purchases is the use of award criteria” …

The second discusses “sole source procurements” – in the EU and Sweden a procuring agency which defines a procurement item by referring to a trademark, patent, type, origin or manufacturer, is obliged to use the words “or equivalent”. This is required to not benefit a particular supplier. It outlines the case of C-14/17 VAR and ATM: the CJEU addressed the question of when a supplier needs to prove that the product is an equivalent in situations when they offer an equivalent product.

In the third discusses “competition law infringements” – it provides guidance on so-called self-cleaning in relation to infringements of competition law. In discussing a case where a German contracting authority had requested that a supplier should submit a decision by the federal competition authority concerning fines for participation in a cartel, it answers two important questions concerning the possibility of voluntary exclusion in the event of infringements of the competition rules.

An interesting read – see it in full here

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