TENDER PARTICIPANT WHO HAS BEEN UNLAWFULLY EXCLUDED FROM A TENDER MAY CLAIM DAMAGES FOR LOSS OF OPPORTUNITY

#119In its Judgment of the Court of Justice in case C-547/22 of 6th June 2024 the Court of Justice has ruled that a tenderer who has been unlawfully excluded from a tender may claim damages for loss of opportunity.

In its Judgment of the Court of Justice in case C-547/22 of 6th June 2024 the Court of Justice has ruled that a tenderer who has been unlawfully excluded from a tender may claim damages for loss of opportunity.

In 2013, the Slovak Football Association excluded an association, of which INGSTEEL was a member, from the public procurement for construction works for the reconstruction, modernisation and construction of sixteen football stadiums. The reason for the exclusion of this association was that it did not meet the requirements of the tender notice, in particular as regards its financial and economic standing. That exclusion was annulled by the Supreme Court of the Slovak Republic following a reference for a preliminary ruling to the Court of Justice.

In the meantime, the procurement procedure in question has been concluded by the conclusion of a framework contract with the sole remaining tenderer. INGSTEEL therefore brought an action before the District Court Bratislava II for compensation for the damage allegedly caused to it by the exclusion of the association from the public procurement procedure. On that basis, the Slovak court referred to the Court of Justice the question whether the Directive on review procedures in public procurement precludes Slovak national legislation or practice which appears to exclude the possibility of a tenderer unlawfully excluded from a public procurement procedure obtaining compensation for the damage caused to it by the loss of the opportunity to participate in that procurement procedure in order to obtain the contract in question.

In its judgment, the Court of Justice states that the directive in question requires Member States to award damages to persons who have been injured by an infringement of Union law in the field of public procurement. In the absence of a distinction between different categories of damage, the directive applies to all types of damage caused to those persons, including that resulting from the loss of the opportunity to participate in a public procurement procedure. The Court also observes that, although the damage may result from the failure to obtain the public contract as such and may take the form of loss of profit, it is also possible that a tenderer who has been unlawfully excluded may have suffered other damage corresponding to the loss of the opportunity to participate in the public contract in question in order to obtain that contract.

In its judgment, the Court of Justice therefore concludes that the directive precludes national legislation or practice which, as a matter of principle, excludes the possibility of a tenderer unlawfully excluded from a public procurement procedure from obtaining compensation for the damage caused by the loss of the opportunity to participate in that procedure in order to obtain the contract in question.