Public procurement

A city council put out to tender the concession of the drinking water service . The specifications established criteria to score the bids and also how to act if any bid seemed "reckless" or abnormal (for being too low or not credible enough). The tender evaluation committee assessed the proposals, but decided to exclude one of the bidders for considering their bid to be abnormal . By excluding them, the contract was awarded to another bidder.

The excluded bidder took the case to court . He argued that the exclusion was based on technical reports The court of first instance partially ruled in his favor as it

annulled the exclusion annulled the exclusion individualized legal situation individualized legal situation "its right to be awarded the contract for having a higher score. The Superior Court of Justice confirmed that solution, arguing that the judge had only verified scores that had already been established.

The matter reached the Supreme Court (SC) which corrects that way of resolving. Although a judge can annul an exclusion and order a reversion, in practice, they cannot "award" the contract from the judgment . Why? Because that prevents the Administration from exercising powers that the law reserves for the contracting body :

1) request and verify the documentation prior to awarding, with the possible effect that, if the request is not met, the offer is considered withdrawn; and

2) decide before awarding if they waive or abandon the procedure.

In addition, the SC states that the judgment violated the rule that judges cannot determine the discretionary content of the annulled act.

Therefore, the SC upholds the appeal, annuls the judgments that "awarded" and orders a reversion of the procedure so that the contracting body decides with all its legal options open.

Our professionals can advise you and address all issues related to contracting with the Administration.