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- Title
15. Achizitii publice. Procedura de atribuire. Ofertant exclus.
- Abstract
In the light of the case-law of the Court of Justice of the European Union (CJEU), a tenderer whose tender had been excluded by the contracting authority from a procedure for the award of a public procurement contract could be denied access to a remedy against the public procurement award decision, in the context in which the decision for the exclusion of the hereinabove mentioned tenderer had been acknowledged under a decision which acquired the force of res judicata before the court seized of the appeal against the contract award decision ruled on. Directive 92/13 should be interpreted in the sense that, in a situation where, within a procedure for the award of the public procurement contract, two offers have been submitted, and the contracting authority has adopted two simultaneous decisions rejecting the offer of either of the tenderers and, respectively, awarding the contract in favour of the other tenderer, the excluded tenderer which files an appeal against these two decisions, should be able to request the exclusion of the offer of the successful tenderer, so that the notion „a certain contract“, within the meaning of Article 1 paragraph (3) of the Directive 92/13 could aim, as the case may be, at the possible initiation of a new procedure for the award of the public procurement contract. In examining the interest in promoting the judicial approach, it is relevant to establish whether the appellant tenderer has been excluded during the same stage of the procedure or during a prior stage, hence, whether we are in the presence of certain „simultaneous decisions". Although the offer of the plaintiff-appellant was formally excluded by the report of the procedure, at the same time as the designation of the respondent's offer as the winning bid, the assessment of offers in terms of their admissible nature was carried out during a prior stage, materialized in a report of the procedure subject to the judicial administrative and judicial procedure.
- Subjects
COURT of Justice of the European Union; PUBLIC contracts; GOVERNMENT purchasing; ADMINISTRATIVE procedure; APPELLATE courts; CONTRACTS
- Publication
Romanian Case Law Review / Revista Română de Jurisprudenţă, 2019, Issue 4, p93
- ISSN
1844-6450
- Publication type
Article