Proportionality of decision to exclude tenderer from procurement procedure (Rad Service Srl Unipersonale v Del Debbio SpA)

Article summary

Public Law analysis: Italian law required the automatic exclusion of a tenderer from a procurement procedure where one of the entities on whom it relied for the purposes of its bid had failed to make a truthful declaration about previous misconduct. The questions for the Court of Justice were whether the penalty of automatic exclusion of the tenderer was compatible with Articles 57 and 63 of Directive 2014/24/EU and the general principle of proportionality. The court ruled that automatic exclusion was not permitted by the Directive in these circumstances because such a rule went beyond the objectives of Articles 57 and 63, in addition to being in breach of the principle of proportionality. However, the court also stresses the importance of the principles of equal treatment and transparency which contracting authorities must respect when exercising powers to require or permit tenderers to replace entities on whom they propose to rely. Written by Denis Edwards,...