CJEU Confirms Excluded Tenderers' Right To Challenge Award Decisions

In its judgment of 21 December 2021 (C‑497/20), the Court of Justice of the European Union (CJEU) confirmed that excluded tenderers may invoke all irregularities when challenging an award decision, even irregularities that do not relate to their exclusion.

In the case that led to this ruling, Randstad Italia had been excluded from a public procurement procedure because its technical offer did not meet the minimum threshold. The company challenged not only its exclusion, but also the regularity of the award decision/procedure. Randstad Italia argued that the call for tenders should have been divided into lots, that the assessment criteria were imprecise and that the appointment of the evaluation committee was unlawful. However, the Italian Council of State declared the claims against the award decision/procedure inadmissible on the basis that Randstad Italia lacked the legal interest to raise them.