Decision on the European Border and Coast Guard Agency (Frontex)'s decision to reject the complainant's tender for lack of evidence of payment of taxes [Complaint 145/2023/LM]

Dear Mr X,

On 17 January 2023, you submitted a complaint against the European Border and Coast Guard Agency (Frontex) concerning its decision to reject your tender in the context of procurement procedure “Trial of Vertical Take-Off and Landing (VTOL) Remotely Piloted Aircraft System (RPAS) for Multi-domain Aerial Surveillance”, lot 2. Frontex rejected your tender because you did not provide sufficient evidence that you did not breach the obligations relating to the payment of taxes in your country of establishment.

In your complaint to the Ombudsman, you argue that Frontex should have accepted the supporting documents you provided. You maintain that, according to EU case law[1], evidence related to the exclusion criteria should be requested at the latest as a last step of the evaluation, after evaluating the technical offer.

You also argue that the procurement documents did not clarify what evidence was required to prove the payment of taxes, and that Frontex provided this clarification only when rejecting your tender.

After careful analysis of all the information you submitted, we have decided to close this case with the conclusion that there was no maladministration by Frontex.

The EU Financial Regulation[2] states that a tenderer should be excluded from a procurement procedure if it has been established by a final judgment or a final administrative decision that the tenderer is in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law (an ’exclusion situation’). The contracting authority is entitled to require tenderers to provide certificates to prove that they are not in an exclusion situation.[3]

In this case, the procurement documents clearly stated that tenderers had to provide this evidence together with their tenders and that the first step of the evaluation was to check that tenderers were not in an exclusion situation. The case law you mentioned cannot be therefore interpreted as meaning that the checks on the absence of exclusion situations have to be always performed after the evaluation of the technical offer: it is up to the procurement documents to indicate at which stage of the evaluation those checks take place.

The ’declaration of honour’ that tenderers had to fill in (which reflects the wording of the Financial Regulation) said that tenderers had to provide evidence covering all taxes and social security contributions for which they are liable.[4] The Financial Regulation does not oblige contracting authorities to indicate which specific documents tenderers have to provide. Rather, it states what these documents have to show. It is up to tenderers to provide the appropriate documents according to the law of their country of establishment. The documents you initially provided in reply to Frontex’s request for clarifications did not allow for the verification of whether there were no administrative decisions/court cases pending against you in relation to all your fiscal obligations.

When asking you to provide the missing documentation, it was reasonable that Frontex set a short deadline to reply, as the procurement documents required tenderers to provide the document together with their tender. It is regrettable that this meant that Frontex could not grant you all the time that the national authorities needed to provide the necessary document to you. However, you were supposed to already have included the documentation with your tender, and granting you this extra time would have violated equal treatment with the other tenderers.

Although we understand you will be disappointed with this reply, we nevertheless hope you find these explanations helpful.[5]

Yours sincerely,

Tina Nilsson

Head of Case-handling Unit

 

Strasbourg, 17/02/2023

 

[1] Judgement of the General Court of 8 July 2020, in case T-661/18, Securitec v. European Commission, available here.

[2] Article 136 of the Financial Regulation: Regulation 2018/1046 on the financial rules applicable to the general budget of the Union https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1046

[3] Article 137(3) of the Financial Regulation.

[4] See point VI – Evidence on exclusion criteria of Annex V of the Tender Specifications - declaration on honour and exclusion criteria.

[5] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/70707