Professional misconduct and serious misrepresentation in supplying information to the Awarding Authority

14 Nov 2018 | Charalambos G. Prountzos

Successful recourse before the Tenders Review Authority filed with regards to the awarding of a Public Tender to a consortium, where one of its members was linked with an entity found guilty for breach of EU competition law. Professional misconduct and serious misrepresentation in supplying information to the Awarding Authority Prountzos & Prountzos LLC represented the consortium «MILTIADES – A.ERACLEOUS-AIR CONTROL J.V. » as applicants in the subject recourse filed before the Tender Review Authority, with the following grounds for the annulment of the decision of the Contracting Authority:
  1. the non-submission of the Meetings of the Board of Directors to represent their company for participation in the consortium,
  2. Subsequent late submission of documents by the successful consortium,
  3. the absence of initialization of important documents despite the explicit term for initialization included in the procurement documentation,
  4. having committed acts that comprise serious/grave professional misconduct and a conviction handed down by the Greek Commission for the Protection of Competition, against one of the members of the successful consortium; and
  5. concealment of the aforementioned conviction from the personal statement form filed by such member of the successful consortium (serious misrepresentation in supplying information)
The Tender Review Authority (hereinafter referred to as «TRA»), underlined the documents that had to be submitted from each respective tenderer, necessary to prove the intention to participate of an economic operator. Additionally, the TRA considered that the subsequent submission of one of the required certificates could not be considered in this particular case as having the result of ‘retrospectively’ completing an otherwise invalid bid.  With regards to the third ground for annulment brought forward by the applicants, the TRA decided that the failure of the successful consortium’s representatives to initialise certain necessary documents could not render their tender void and/or invalid since the risk of subsequent intervention and/or interference with the tender submitted could not be adequately proven. With regards to the final ground of annulment, namely the commissioning of grave professional misconduct and the supplying of misrepresented information by one of the members of the successful consortium, our Law Firm submitted that:
  1. the award to the successful consortium should be annulled because it entails a dishonest statement, namely that none of the consortium’s members has not committed and/or has not been convicted of committing acts that amount to professional misconduct,
  1. that the aforementioned conviction handed down by the Greek Commission for the Protection of Competition should have been and/or should be taken into account by the Contracting Authority, and consequently would have and/or will result in the rejection of the successful consortium’s bid.
The Contracting Authority counter-argued that, it did not have knowledge of the existence of the aforementioned conviction, but even if it did, it would not have been obliged to take it into account, by reason of the fact that the conviction was imposed by a different Member State. In parallel, it submitted that the successful consortium did not misrepresent the situation when providing the tender information, as the said conviction was not handed down in the Republic of Cyprus but in a different European Member State. The TRA, referring to paragraph 1 of the Directive 2014/24/EU, rejected the arguments submitted by the Contracting Authority in their entirety. The TRA’s findings were that there was no indication in the administrative file based on the documents/information contained in the documents, that one of the members of the consortium was convicted for anti-competitive behaviour. Therefore, the conviction was not known to the contracting authority at the stage of the awarding procedure. The TRA annulled the contested decision and invited the contracting authority to investigate the matter further, since «…a question arises from what has been argued before the TRA, which has to be dealt with, and which if the Contracting Authority knew about it, it would have the obligation to investigate it diligently. Based on the TRA’s authority to annul decisions taken by Contracting Authorities, which derives from Article 25(2) of Law 104(I)/ 2010, we annul the contested decision…». You can find the full text of the judgment of the Tender Review authority at this link:$file/%CE%91%CF%80%CF%8C%CF%86%CE%B1%CF%83%CE%B7%2025-2018.pdf?OpenElement