On the one hand, those of the tenderer who, in tendering for a public contract, does not waive his or her right to have confidential information protected in such a way as to prevent others from taking unfair advantage of business endeavours of others. On the other hand, those of tenderers who, in the exercise of their right to challenge the decisions of the contracting authority, seek access, in order to substantiate their application for review, to certain information which the successful tenderer has submitted and regards as confidential.
Council Directive of
Directive of the European Parliament and of the Council of
Directive of the European Parliament and of the Council of
In the wording contained in Article 46 of Directive 2014/23/EU of the European Parliament and of the Council of
…
The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to: …
This Directive shall not affect: …
The supplier’s tender or request to participate may not be classified as confidential in its entirety, but the supplier may indicate that some information presented in his tender is confidential. Confidential information may include, inter alia, trade (manufacturing) secrets and confidential aspects of the tender. Information cannot be classified as confidential:
Where there are grounds for considering that a trade secret may be disclosed, the court, at the duly reasoned request of the parties or of its own motion, shall, by reasoned order, name the persons who may: …
According to paragraph 3 of the order for reference, the contract notice states that the provisional value of the contract is in excess of EUR
More specifically, it argued: (i) that the contracts for the collection and transportation of mixed municipal waste cited by the Consortium as evidence of its economic and financial capacity had not been performed directly by the bodies comprising that Consortium; and (ii) that the vehicles mentioned in the documents submitted by the Consortium do not meet the technical specifications laid down in the tender specifications.
The order for reference (paragraphs 36 and 37) states that, since the appeal in cassation was lodged not by Ecoservice but by the contracting authority, the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) was in principle bound only to determine whether the successful tenderer had adequate technical capacity, this being the only question raised by the appellant. The court nonetheless decided of its own motion to go beyond the limits of the appeal in cassation and to rule on other aspects of the dispute.
One of the bodies comprising the Consortium.
In the fourth question, the referring court expresses uncertainty as to the scope of the contracting authority’s obligation to maintain the secrecy of the information that a tenderer designates as confidential when adjudicating on an application for review made by another tenderer wishing to access that information. In the fifth to seventh questions, the uncertainty has to do with an action before the courts to challenge a contracting authority’s decision refusing to grant an operator access to confidential information provided by another operator. Finally, the eighth and ninth questions concern the power of the court to disclose confidential information in its possession and, where appropriate, to examine of its own motion the legality of the award.
Judgment of
Directive 2014/24 contains other provisions on the protection of confidentiality, to which I shall refer later, in the context of contract award notices (Article 50(4)) and information provided to candidates and tenderers (Article 55). Both state that information is not to be published where
Unless the directive itself or national law provides otherwise. It would not appear from Article 20 of the LCP that there is any national provision to the contrary.
This is not the case with the Lithuanian legislation, inasmuch as it prohibits the
See point 33 of this Opinion.
Paragraph 64 et seq. of the order for reference.
Paragraphs 70 to 75 of its written observations.
This is also follows from recitals 13 and 24 of Directive 2016/943.
In the first place (point (a)), whether the contracting authority must supply to a tenderer challenging the evaluation of tenders In the second place (point (b)), whether, if the application for review is dismissed, the contracting authority must
Judgment in
The order for reference states that, in Lithuania, the customary
Article 1(5) of Directive 89/665 authorises the domestic law of a Member State to provide for such a
The balance between protecting the confidentiality of information and judicial protection is also referred to in Article 9 of Directive 2016/943.
In paragraphs 64 to 76 of that order, the referring court explains its reasons for raising the fourth to ninth questions. The fact remains that those reasons do not always correspond exactly with the wording of the corresponding questions.
Klaipėdos autobusų parkas makes this point in its written observations, paragraphs 81 and 82.
The fifth question asks whether the contracting authority’s decision not to disclose confidential information may be challenged separately before the courts. The sixth, on the assumption that the foregoing remedy is available, asks whether the operator Finally, the seventh asks, if the answers to the previous questions are in the affirmative, whether the operator may
Judgment of
Article 2(9) provides for the possibility for bodies responsible for review procedures not to be judicial in character and for
That the Directive Judgment of That, depending on its characteristics, national legislation which
Ecoservice requested access to the information necessary to prepare its application for review of the contract award decision on
Judgment of
A party from bringing a separate challenge, before the courts, against the contracting authority’s decision not to disclose the confidential information provided in a participant’s tender in the tendering procedure. National legislation from requiring the person concerned to apply in the first place to the contracting authority for review of the latter’s decision turning down its request for access to confidential information. The person concerned from bringing an action before the courts exclusively in connection with the refusal to provide it with the information requested.
The referring court recognises that, as a
Judgment in
When adjudicating on an application for review of the decision evaluating tenders, the contracting authority must substantiate its response by expressing the reasons for its decision, so that this may be effectively challenged before a review body. The duty to state reasons does not in itself entail a requirement to disclose the confidential information that has been entrusted to that authority, in the case where it considers such disclosure to be inappropriate. A party from bringing a separate challenge, before the courts, against the contracting authority’s decision not to disclose the confidential information provided in a participant’s tender in the tendering procedure. National legislation from requiring the person concerned to apply in the first place to the contracting authority for review of the latter’s decision turning down its request for access to confidential information. The person concerned from bringing an action before the courts exclusively in connection with the refusal to provide it with the information requested. Must be empowered to annul the decisions that the contracting authority has adopted in respect of the disclosure of the confidential information made available to it, and, where appropriate, to order that that information be provided to the applicant for review. May, if national law authorises it, evaluate of its own motion the lawfulness of the acts adopted by the contracting authority, having regard to the confidential information made available to it.