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ISSN 1862-7617
Publications - Essays - 1-2014
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Dr. Mark Orthmann, LL.M.

The experience of the Bidder as Award Criterion in EU Public Procurement Law

Abstract from the author

Portrait des AutorsThe rule “experience may not be used as an award criterion” originally derives from the distinction between selection and award phase, has been the subject of various cases in the European Courts and has ever since been debated vividly in the academic literature. However, in order to reflect its more nuanced meaning, it should be reformulated to: “At award stage, experience may only be used for the assessment of lawful award criteria, provided that the consideration of experience is aimed at identifying the MEAT and not essentially linked to the evaluation of the tenderers’ ability.” Despite some authors arguing the opposite, such a flexible or soft interpretation is not ruled out by the ECJ’s judgment in Lianakis.

As contracting authorities would like to consider experience at the award stage, especially when dealing with complex service contracts, they must be advised not to rely on experience as a sole basis and if using experience, to indicate that it will be used as one consideration to be taken into account in judging a valid award criterion such as quality. However, it must be noted that such extensive care does not need to be taken for public contracts that are neither covered by the directives nor by the Financial Regulation.

Independently of a strict or flexible interpretation, some authors call for an abolition of the rule as a whole because they fear adverse effects on price and quality if contracting authorities may not asses previous experience as such in the award phase. However, the distinction of selection and award criteria as well as the principles of equal treatment and anti-discrimination and ultimately the prerogative of the internal market provide for the best arguments in favour of the rule.

In its current proposals for a reform of the procurement directives, the European Commission recognises the desire of contracting authorities in the field of service contracts and design works to consider experience of the staff assigned to performing the contract and therefore allows for its assessment in the award phase.

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Index of contents

Public Procurement Law

| 2004/17/EC | 2004/18/EC | Award Criterion | Commission | Criteria | ECJ | EU Public Procurement Law | European Union | Experience | Lianakis | MEAT | Procurement | Procurement Law | Selection Criterion | Tenderer

Quotation reference:
Mark Orthmann, HFR 2014, S. 1 et seqq.

Linking reference:

Edited by Julian Hölzel