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ARTICLE · 30 DECEMBER 2016

Consortium Bidding In European Government Contracts

Morrison Foerster
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Consortium bids are relatively common in the European government contract sector. But, under European law, what happens in a situation where a company which is part of a bidding consortium drops out...

GlobalGovernment, Public Sector
Alistair Maughan
Alistair Maughan
Eliska Macnerova
Eliska Macnerova
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Consortium bids are relatively common in the European government contract sector. But, under European law, what happens in a situation where a company which is part of a bidding consortium drops out during the procurement process? If the previous composition of the consortium satisfied the authority's pre-selection criteria, can the remaining companies continue with the process or would that be considered unfair to the other bidders?

The Court of Justice of the European Union (CJEU) has provided helpful clarification on how these consortium-related issues should be assessed in the EU.

The Banedanmark case

The case in which the CJEU issued its ruling (MT Højgaard and Züblin v Banedanmark) involved a consortium of companies bidding for the construction of a new railway line in Denmark. Banedanmark, the Danish railway operator awarding the public contract, began the procurement process by a negotiated procedure under the so-called Utilities Directive (Directive

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