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You Say Selection, I Say Award. Let’s Not Call The Whole Thing Off.

You Say Selection, I Say Award. Let’s Not Call The Whole Thing Off.

Ruth McNaught

In a recent judgement, the Court of Justice has once again addressed the distinction between selection and award criteria.

In Ambisig, (EU:C-601/13), the Court issued its findings in response to a request for a preliminary ruling from the Supremo Tribunal Administrativo of Portugal, that in relation to publicly procured contracts for the provision of services of an intellectual nature, training and consultancy, Article 53(1)(a) of Directive 2004/18 does not preclude the contracting authority from applying award criterion that evaluates the individual team members who will ultimately perform the contract and which takes into consideration the composition of the team and the experience and academic and professional background of the team members.

The preliminary judgement can be compared and contrasted with that of the judgment in Lianakis and others (EU:C:2008:40), in which the Court gave its view that an assessment of the bidders' ability to perform the contract in question was intrinsic to the selection criteria. An evaluation of the experience and academic credentials of the bidder’s team has the characteristics of selection criteria; it is less easily categorised as award criteria, which concern the bidders’ solution for a particular requirement.

The Court distinguished its findings from that of Lianakis, noting that a contracting authority is entitled to take "quality" into account as an award criterion. Article 53(1) of Directive 2004/18 does not exhaustively list the criteria which may be used to determine the most economically advantageous tender; thus contracting authorities have considerable discretion in determining the appropriate criteria on which they propose to base the award of their contract. Their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous.

The Court noted that the quality of performance of a contract may depend decisively on the professional merit of the people entrusted with its performance, particularly where the performance of the contract is intellectual in nature.

Accordingly, the Court found that with particular regard to public services of an intellectual nature, training and consultancy, award criteria which takes into consideration the experience and academic and professional background of the team members (as well as the composition of the team) is not unlawful.

Although the Ambisig judgment considers Directive 2004/18, the rationale and principles which emerge will continue to be relevant for the interpretation of Directive 2014/24.

Ruth McNaught
Associate

LChalmers