Choice of economic and financial standing requirements – more freedom for contracting authorities? Court of Justice’s judgment of 13 July 2017, C-76/16, Ingsteel et Metrostav

In its judgment of 13 July 2017 (case C-76/16, Ingsteel and Metrostav), the Court of Justice of the European Union has confirmed that contracting authorities have a "fair degree of freedom" in the choice of economic and financial standing requirements.

To validate economic and financial standing, the contracting authority (the Public Procurement Regulatory Authority in the Slovak Republic) required the tenderer to submit a document issued by a bank certifying that it had been granted credit of a minimum amount of EUR 3,000,000 available throughout the performance of the contract.

A tenderer had submitted a bank statement with information on its financial situation and confirmation of the opening of a current account credit facility for an amount exceeding EUR 5,000,000. The tenderer also submitted a sworn statement that, if its bid was successful, it would have a minimum of EUR 3,000,000 available in its bank account throughout the performance of the contract.

The contracting authority had decided, however, that the tenderer did not meet the economic and financial standing requirements, and had rejected the tenderer’s submission.

The question on the validity of the economic and financial standing requirements was submitted to the Court of Justice of the European Union, which decided that a contracting authority is entitled to impose such a requirement.

In addition, the Court confirmed that a contracting authority has a higher degree of freedom than in the assessment of technical and/or professional ability requirements:

“In this respect it must be noted that Article 47 of Directive 2004/18 leaves a fair degree of freedom to the contracting authorities, which is apparent, in particular, from the expression ‘as a general rule’ in that provision. As is clear from the Court’s case-law, unlike Article 48 of that directive, which establishes a closed system limiting the methods of assessment and verification available to those authorities and, therefore, limits their opportunities to lay down requirements, Article 47(4) expressly authorises contracting authorities to choose the references that must be produced by candidates or tenderers in order to prove their economic and financial standing. As Article 44(2) of Directive 2004/18 refers to Article 47 thereof, the same freedom of choice exists as regards the minimum levels of economic and financial standing (see, to that effect, judgment of 18 October 2012, Édukövízig and Hochtief Construction, C‑218/11, EU:C:2012:643, paragraph 28).”

However, the Court also considered that the tenderer is allowed to provide evidence of its economic and financial standing by using any other document considered appropriate by the contracting authority, if it is objectively impossible for the tenderer to provide the references required by the contracting authority, which is to be assessed by the national courts.