In its Judgment in Cartiera dell’Adda and Cartiera di Cologno, C-42/13, EU:C:2014:2345, the Court of Justice of the European Union (CJEU) has confirmed its strict approach against the acceptance of incomplete submissions in public procurement procedures, at least where the tender documentation imposes the (automatic, non-discretionary) rejection of non-compliant or non-fully compliant submissions. This Judgment is fully in line with its previous Judgment in Manova, C-336/12, EU:C:2013:647 and, consequently, Cartiera dell'Adda does not advance EU procurement law in a significant manner. However, given its brevity and the harshness of the solution adopted by the CJEU (at least if analysed in functional or practical terms), I think that the case deserves some further consideration.
In short, the CJEU has confirmed that the exclusion of a tenderer that omitted a declaration is acceptable under EU law, even if the declaration was not necessary or, in any case, the facts concerned by the declaration would not trigger exclusion. In an extreme reading, the case confirms the legality under EU procurement law of an absolute obligation to reject submissions that are 'merely' affected by strictly formal shortcomings [for discussion, see A Sanchez Graells, 'Rejection of Abnormally Low and Non-Compliant Tenders in EU Public Procurement: A Comparative View on Selected Jurisdictions', in M Comba & S Treumer (eds), Award of Contracts in EU Procurement, vol. 5 European Procurement Law Series (Copenhagen, DJØF, 2013) 289]. As mentioned, this is an area of very significant practical relevance and there is a need to properly understand the conditions under which such a stringent case law is being developed.
In that regard, it is important to highlight that, as the CJEU emphasises, the grounds for exclusion of tenderers expressly disclosed by the contracting authority in the tender documentation included situations where
one of the documents and/or one of the sworn statements the purpose of which is to demonstrate that both the general and special requirements have been complied with is incomplete or irregular, except where any irregularity is of a purely formal nature and may be remedied but is not decisive for the assessment of the tender (C-42/13, para 10).
After juggling with the other (rather complicated) circumstances of the case, the CJEU clarifies the relevant legal dispute as a question of the
compatibility with European Union law of the fact that it is impossible for ... a tenderer, after submitting his bid, to remedy the fact that he failed to annex ... a statement to his bid [confirming that its technical director was not affected by mandatory exclusion grounds related to criinal records], whether by submitting such a statement to the contracting authority directly or by showing that the person concerned was identified as the technical director in error (C-42/13, para 40).
At this point, the CJEU reiterates its position in Manova, and stresses that "the contracting authority must comply strictly with the criteria which it has itself established, so that it is required to exclude from the contract an economic operator who has failed to provide a document or information which he was required to produce under the terms laid down in the contract documentation, on pain of exclusion" (para 42, emphasis added). The CJEU further reiterates that this strict requirement derives from the principles of equal treatment and transparency (paras 43-49).
It is also important to stress that the CJEU clearly indicates that "in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids" (para 45), which seems to create significant space for the flexibilisation of ommissions that can be remedied, particularly before the expiry of the deadline for submission of tenderers--but equally of omissions that can be reduced to purely formal irregularities.
More generally, in my view, the Manova - Cartiera dell'Adda line of case law offers some interesting opportunities for Member States and contracting authorities to avoid such impractical situations, provided they restrict themselves to the general rules under the new art 56(3) of Directive 2014/24. This provision indeed stresses that
Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive [or excluded by themselves in the specific tender documents, as per Manova and Cartiera dell'Adda], request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.
Consequently, any criticism against the Manova - Cartiera dell'Adda line of case law seems rather unjustified in view of the fact that the origin of any potential obligation to automatically and non-discretionally exclude non-compliant or incomplete submissions does not have an origin on the EU rules or their general principles (now in art 18(1) of dir 2014/24), but on excessively stringent domestic rules or, even worse, in the specific conditions imposed by the contracting authority in its own tender documentation. In the absence of those restrictions, EU law as interpreted in Manova - Cartiera dell'Adda does not constrain the proper exercise of administrative discretion in this area. Hence, contracting authorities (and Member States) will be clever not to put a noose around their own necks. In the end, the only thing the CJEU has done in Manova - Cartiera dell'Adda is to pull their legs...
