Musat & Associates has successfully represented Delta Antrepriza de Constructii si Montaj 93 S.A. before the Court of Justice of the European Union in a preliminary ruling procedure against Compania Nationala de Administrare a Infrastructurii Rutiere SA.
The ruling that was issued on October 3, 2019 regarded to an interpretation of the "significant or persistent deficiency" concept set out in Directive 2014/24/EU of the European Parliament and Council on public procurement, which repealed Directive 2004/18/EC.
As a result of the preliminary ruling procedure, the CJEU held that “establishing a relationship of trust between the contracting authority and the winning tenderer entails that the contracting authority is not automatically held liable for the estimation made, within a previous public procurement agreement, by another contracting authority, mainly in order to be able to grant particular attention to the principle of proportionality upon the implementation of the voluntary exclusion causes. Thus, this principle requires the contracting authority to examine and assess the facts by itself.” Therefore, “a contracting authority cannot automatically infer from the decision of another contracting authority to terminate a previous public procurement agreement […] that this tenderer proved significant or persistent deficiencies, within the meaning of Directive 2014/24, regarding the fulfilment of a requirement on the merits corresponding to such public procurement agreement.”
In addition, the Court held that the contracting authority has to provide the economic operator the opportunity to submit remedial measures created as a result of the termination of the previous public procurement agreement.
“The ruling of the Court of Justice of the European Union notably underlines that in the context of determining the exclusion from a public procurement procedure," Musat & Associates Deputy Managing Partner Iulian Popescu explained, "the contracting authority must assess the importance of the part of the previous agreement which was subcontracted and thus to determine whether the intervention of the subcontractor had a negative impact on the performance of such agreement.”
The Musat & Associates team was led by Senior Partner Gheorghe Buta and Deputy Managing Partner Iulian Popescu, supported by Managing Associates Iuliana Iacob and Ramona Cirlig and Senior Associates Ioana Cojocaru, Ana Maria Abrudan, and Mihai Macovei.
