Facts
On June 12, 2015, Association B. issued a public tender for the collection and transport of municipal waste in the association's disposal area for the period starting January 1, 2017. One of the eligibility criteria was the proof of the operating license (transport license) in accordance with the Federal Act on the Licensing of Road Transport Enterprises.
Four bids were submitted for Lot X., including bids from Companies [A. AG] and C. AG. Company C. AG was awarded the contract, although it did not possess the required transport license at the time of bid submission. Company [A. AG] subsequently filed a complaint against the award decision.
Considerations
The Federal Supreme Court held that the transport license is an eligibility criterion that should generally be defined as an exclusion criterion. It can only be exceptionally disregarded if the deficiencies are minor and exclusion would be disproportionate.
In the present case, however, the lack of a transport license at the time of bid submission was not a minor deficiency. The transport license is a mandatory legal requirement for the activity as a road transport…