Public procurement: ban on changing or removing selection criteria during the procedure

In a ruling handed down on 21 April 2021, the General Court of the European Union annulled a competitive tendering procedure initiated by the European Commission on the grounds that one of the selection criteria had been deleted during the procedure.

This solution had already been applied to the award criteria, but has now been extended to the selection criteria, on the basis of the principles of equal treatment and transparency.

The reasoning followed is intended to prevent a situation where a potential candidate might have decided not to take part in a call for tenders, on the grounds that he considered himself unable to satisfy the criterion which, subsequently and without his knowledge, had in fact been deleted or modified (see in particular §59 of the judgment).

In such a case, contracting authorities and contracting entities will have to restart the procedure in due and proper form in order to avoid exposing themselves to the risk of annulment of their tendering process.