Public Procurement

EU case law: Judgments

PROVIDING FALSE INFORMATION

In Lithuanian Case C ‑402/25, the second-ranked bidder challenged the contract award, alleging that the successful bidder had supplied false information about its construction revenue and previous construction work. It also sought the successful bidder’s inclusion on Lithuania’s list of suppliers that had provided false information. The Lithuanian courts found that, through gross negligence, the successful bidder had misled the municipality and that the grounds for excluding it from the procurement procedure were established. They annulled the award decision but maintained the construction contract, imposed a financial penalty on the municipality, and stayed the proceedings concerning inclusion on the list.

The municipality nevertheless declined to list the successful bidder. It argued that Lithuanian law required a prior decision by the contracting authority to exclude the bidder from the procurement procedure, rather than a court finding that false information had been supplied. The Public Procurement Authority ordered the municipality to include the bidder on the list, and the municipality challenged that order.

The CJEU held that Article 18(1) and Article 57(4)(h) of the Public Contracts Directive, together with Article 1(1) and (3) of the Remedies Directive, do not prevent national law or practice from empowering a public procurement regulator to order such a listing where a final judgment has established that an operator supplied false information about meeting the tender’s financial and technical selection criteria. This applies even if the contracting authority did not exclude the operator before the procurement procedure ended. However, the following safeguards must apply:

The publication period must be proportionate to the seriousness of the conduct and must not exceed three years from the date on which the false information was supplied.
During that period, the operator must be permitted to participate in subsequent procurement procedures if it demonstrates that it has taken sufficient corrective measures to establish its reliability.
The operator must have access to effective judicial review of either the regulator’s order to publish its name or the contracting authority’s decision to do so.

EU Opinions

COMPETITIVE DIALOGUE WEIGHTING RANGES

Finnish Case C ‑390/25 engages the Public Contracts Directive rules on competitive dialogue (Article 30) and relative weighting of award criteria (Article 67(5)). The contract notice indicated weighting ranges of 30-70% for price and 15-35% each for two quality sub-criteria. After the dialogue phase, the invitation to submit final tenders fixed price at 30% and quality at 70%. An unsuccessful bidder challenged the award, arguing the 30-70% range was too broad to be “appropriate” under Article 67(5).

The Advocate General considers that competitive dialogue inherently requires flexibility. Ranges with an appropriate maximum spread let authorities retain discretion. The Directive does not specify when, within the procedure, a range-based weighting must be made definitive. Articles 30 and 67(5) second subparagraph do not prevent a contracting authority that expressed the weighting as a range in the contract notice/descriptive document from fixing it definitively in the invitation to submit final tenders, once the dialogue has concluded. However, a contracting authority may not use ranges in the contract notice that fail to disclose the final order of importance among the award criteria (in this case, the overlapping 30-70%/15-35%/15-35% ranges at issue).

Environmental credentials may attract award points, but must relate to the contract

Danish Case C ‑552/25 concerns a regional tender for a four-year framework agreement for hospital syringes and needles, in which sustainability accounted for 10% of the evaluation. Points were available for manufacturers’ environmental certifications and approved climate targets. A bidder challenged the award decisions for lots for which its bids were unsuccessful, despite it having received the highest possible sustainability score.

The Advocate General considers that points may be awarded for manufacturers’ ISO 14001 or EMAS certification, or Science Based Targets initiative approved climate targets, including equivalents, provided the criteria are linked to the subject matter of the contract. This requires a case-specific assessment of the sector, the products or services and their life cycle, together with the tender documents. The criteria must help assess the offer rather than merely reward the manufacturer’s general environmental policies.

EU infringement proceedings

HUNGARIAN ROADS PROJECT

The European Commission issued a reasoned opinion to Hungary for failing to comply with EU public procurement law when awarding a contract for the construction, operation, and maintenance of motorways. The opinion follows a letter of formal notice and additional letter of formal notice. The Commission considers the 35-year-long contract failed to transfer a sufficient level of operating risk to the contractor such that the contract was misclassified as a concession instead of a public contract and also that modifications in 2023 violated procurement rules. Hungary has two months to respond and take necessary measures failing which the Commission may refer the case to the CJEU.

Ireland

SOCIAL ENTERPRISE PARTICIPATION IN SUPPLY CHAINS

A new toolkit for public buyers on socially responsible public procurement (PDF 978 KB) aims to provide guidance on developing contract-linked social award criteria and a new toolkit for social enterprises on socially responsible public procurement (PDF 1 MB) encourages social enterprises to participate through subcontracting, partnerships and consortia with private-sector contractors. A press release is available here: New social procurement toolkits to strengthen trade between public buyers and social enterprises.

UK

PPN 026: The social value model

The UK Cabinet Office published guidance on the recent PPN 026: The Social Value Model. Further information is available here: PPN 026: The social value model.