Here is a(nother) thing you need to know about submitting a bid in a procurement procedure organized by one of the European institutions.

In my first article I wrote about a similarity between award procedures organized by national contracting authorities and award procedures organized by European institutions, namely the application of the principle of transparency. This article focuses on, as promised, a significant difference between the two. This difference is especially important for tenderers who have submitted a bid but received the disappointing news that the contract at hand is not awarded to them. Why? Because the time to take action is now (or maybe even yesterday)!

In EU public procurement law, the possibility of remedies is a very important topic. As a tenderer you spend a lot of time on drafting the most competitive bid. Obviously with the aim of getting that contract awarded to you. However and maybe not unsurprisingly, you will probably do no get every single contract in all the award procedures where you submit a bid. Then the big question pops up: do you agree with the outcome of the award procedure or not? And if not, what are your options?

Most important rules and options on a national level

On a national level, the Remedies Directive 2007/66/EC (and its implementation in national law) provides an answer to these questions. Basically and notwithstanding any exceptions, the following rules apply:

• Award decision: the national contracting authority needs to communicate an award decision to each tenderer and candidate, which includes a(t least) a summary of the relevant reasons for that award decision and an indication of the exact standstill period. These relevant reasons include the name of the successful tenderer and the characteristics and relative advantages of the successful tender.
• Standstill period: the national contracting authority is not allowed to conclude the contract to the successful tenderer until the standstill period of a minimum of ten days has passed. The amount of days can differ per member state. For example, the Dutch legislator chose to introduce a standstill period of a minimum of twenty days.
• Review: the unsuccessful tenderer who does not agree with the award decision, needs to take action and submit an application for review within the applicable standstill period.
• Contract cannot be concluded during review procedure: when an application for review of the award decision is submitted by an unsuccessful tenderer, the national contracting authority is not allowed to conclude the contract before a body of first instance (for example a court of first instance) has made a decision on the application for review.

Most important rules and options on a European level

The above is (very) different for award procedures organized by European institutions. The Remedies Directive is not applicable to these award procedures. Regulation (EU, Euratom) 2018/1046 (Financial Regulation) contains the following rules:

• Award decision: the European institution needs to communicate an award decision as well. However, it does not need to provide the name of the successful tenderer and the characteristics and relative advantages of the successful tender yet. The European institution only needs to provide this information after a request from the tenderer.
• Standstill period: the European institution is not allowed to conclude the contract with the successful tenderer until the standstill period of a minimum of ten days has passed. This is the same as for national contracting authorities.
• Review and conclusion of contract: the unsuccessful tenderer who does not agree with the award decision, has (basically) three options. First, the tenderer can submit a complaint to the European Ombudsman. Second, the tenderer can initiate a preliminary relief procedure at the General Court of the European Union. However, this is not an easy road. Third, the tenderer can initiate an action for annulment of the already concluded contract within two months after receiving the award decision at the General Court of the European Union. Neither an easy road and in addition, the contract is already concluded!

What does this mean for unsuccessful tenderers?

Thus, on a national level each tenderer should immediately receive all relevant information to be able to initiate an application for review of the award decision. An unsuccessful tenderer should act quickly (within the standstill period), but it certainly has possibilities to avoid the conclusion of the contract during the review procedure.

On a ‘European level’ this is quite different. The unsuccessful tenderer does not receive all relevant information immediately. It is therefore very important for this tenderer to immediately ask the European institution to provide it with the name of the successful tenderer and the characteristics and relative advantages of the successful tender. Furthermore, it is very important to immediately consider your options on the basis of that information. Do you want to avoid the conclusion of the contract? Then you should start preliminary relief proceedings within ten days after receiving the award decision. Are you just aiming for an award of damages because you did not get the contract? Then you should start an action for annulment at the General Court of the European Union within two months after receiving the award decision. Unfortunately that means that it is not possible anymore to get the contract that you submitted a bid for in the first place.

So what’s the lesson learned? As an unsuccessful tenderer you should act fast after receiving the award decision, but you need to be even faster when participating in an award procedure of a European institution. So do not hesitate to contact me if you received a negative award decision and you are in need of help.