The submission of an application for an agreement may exclude the following from the tender procedure

The submission of an application for an agreement may exclude the following from the tender procedure

On 28 March 2019. The Court of Justice of the European Union, in case C-101/18, stated that it was permissible to exclude a contractor who had submitted an application to the Court for an arrangement procedure from the tender procedure. The mere submission of an application to open an arrangement procedure constitutes an admission by the debtor to a difficult financial situation.

The ruling issued by the CJEU was a decision on the tender in which the contractor submitted the most advantageous offer and was provisionally awarded the contract. Then, after 2 months, the company went into financial problems and filed a motion to open the arrangement procedure. At the same time, the company stipulated that the plan to continue operations would be presented at a later stage. The company’s bankruptcy was not announced as the application had not yet been considered and the contracting authority, on this basis, excluded the contractor from the tender.

The decision was challenged by the contractor, who indicated that it was not in compliance with EU law. In the contractor’s opinion, the contractor subject to the arrangement procedure may be excluded from the tender procedure and the Court has not yet issued a decision in the present case. The CJEU disagreed with that position by stating that ‘point (b) of the first subparagraph of Article 45(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which permits the exclusion from a public procurement procedure of a contractor who, at the time of the decision to exclude, had applied for the opening of an arrangement procedure, reserving the right to submit a plan for the continuation of his activity’.


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