Admissibility of a complaint by a non-considered bidder against an award in public procurement

Facts

The AlpTransit Gotthard AG tendered the Ceneri-Basistunnel (CBT) section in an open procedure in 2012. Four bidders, including the ARGE cpc and the bidding consortium Bahntechnik Ceneri Rhomberg Sersa (Rhomberg), submitted bids. The ARGE cpc was awarded the contract. Rhomberg filed a complaint with the Federal Administrative Court and requested the cancellation of the award and the award of the contract to itself.

The Federal Administrative Court cancelled the award and referred the matter back to the contracting authority. The ARGE cpc filed a complaint with the Federal Court and requested the cancellation of the Federal Administrative Court's judgment and the confirmation of the AlpTransit Gotthard AG's award decision.

Considerations

1. Admissibility of the complaint

The complaint by the ARGE cpc is admissible because it is directed against a decision of the Federal Administrative Court, which is a final decision. The ARGE cpc has a current and practical interest in the protection of its rights in the cancellation of the contested decision.

2. Legitimation of the non-considered bidder

A non-considered bidder is only entitled to file a complaint if it has a real chance of being awarded the contract. Rhomberg did not demonstrate before the Federal Administrative Court that it met the suitability criteria and did not request the cancellation of the entire procedure and the re-tendering of the contract.

3. Interpretation of the tender documents

The tender documents are to be interpreted as they could and had to be understood by the bidders in good faith. The contracting authority has a large margin of discretion in the formulation and application of the suitability criteria.

4. Assessment of references

The references of the ARGE cpc are to be examined to the extent that…