The Court of Justice of the European Union (“CJEU”) recently delivered a preliminary ruling stating that (Italian) national legislation allowing contracting authorities to allow tenderers, whose tender is vitiated by serious irregularities, to rectify its tender, within a certain time limit and subject to payment of a fixed financial penalty, was not contrary to EU law - provided that the amount of that penalty is proportionate.

In the Court’s view, the imposition of a financial penalty is an appropriate means of achieving legitimate Member State needs of placing responsibility on tenderers in the submission of their tenders and of offsetting the financial burden placed on contracting authorities by regularisation.

Importantly, the CJEU pointed out, however, that a distinction must be made here, between, on the one hand, a contracting authority seeking a mere clarification from tenderers under specified conditions and on the other, allowing a clarification which in effect gives a tenderer the opportunity to alter his bid. In the CJEU’s words, a contracting authority cannot require a tenderer to remedy the lack of a document which, according to the express provisions in the contract documentation, must result in the exclusion of that tenderer, or to eliminate irregularities such that any corrections or changes would amount to a new tender.

Cited: Joined Cases C-523/16 and C-536/16, MA.T.I. SUD SpA v Centostazioni SpA, ECLI:EU:C:2018:122