On 10 November 2016, the Court of Justice rendered an interesting decision (in Ciclat Soc. coop. v. Consip SpA, C-199/15) regarding the application of exclusion grounds.
In this particular case, a tenderer did not comply with its obligations of social security payment at the date of filing its tender. The correction was, however, made before the date of the award.
The Court of Justice recalled in its Ciclat-Consip case that, although a contracting authority may request the correction or amplification of data relating to an offer, such corrections or additions may relate only to data which can be objectively shown to predate the deadline for applying to take part in the tendering procedure concerned and may not relate to information which must be communicated, failing which the tender will be excluded (see judgment of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraphs 39 and 40).
Furthermore, the provision according to which the contracting authority may invite operators to supplement or clarify the certificates and documents submitted cannot be interpreted as permitting the authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the tenderer (see judgment of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 46).
On this basis, the Court decided that Directive 2004/18 did not preclude national legislation which holds an infringement relating to social security contributions which existed on the date of the participation in a tendering procedure to be a ground for exclusion, even though the amount of the contributions was rectified by the contracting authority before the award or verification carried on its own initiative.
It should be noted that the Belgian Conseil d’Etat/Raad van State has similar case law in this matter.
In conclusion, tenderers should be aware that they have to comply with their tax and social security obligations at the date of submission of their tender and that non-compliance cannot be corrected during the award phase.