Inadmissibility of the appeal in public law matters and dismissal of the subsidiary constitutional complaint in the tender procedure

Facts

Parties:

• Appellant: ARGE [A.] , consisting of [B.] , [C.] and [D.] .
• Respondents: 1. Pro Lucmagn Association, 2. ARGE [E.] , consisting of [F.] and [G.] .

Facts:

The Pro Lucmagn Association tendered for winter maintenance work on the route from Fuorns to Campra. ARGE [E.] received the contract, while ARGE [A.] filed an appeal. The Administrative Court of the Canton of Graubünden dismissed the appeal. ARGE [A.] then filed an appeal in public law matters and a subsidiary constitutional complaint with the Federal Supreme Court.

Main issues in dispute:

• Fulfillment of the eligibility criteria at the time of the award decision.
• Availability of the deployment locations and vehicles.
• Interpretation of the tender documents.

Considerations

The appeal in public law matters is generally admissible if the estimated value of the contract reaches the relevant threshold and a question of law of fundamental importance is at stake. In the present case, the threshold of CHF 230,000 was reached. The appellant raised a question of law of fundamental importance, namely whether the eligibility criteria must be fulfilled by the time of the award decision or whether it is sufficient if they are fulfilled later, i.e. at the time the mandate begins. The Federal Supreme Court found that this question had already been answered in case law. Eligibility criteria must generally be fulfilled by the time of the award decision, unless the tender documents indicate otherwise.

The subsidiary constitutional complaint is admissible, as the appellant, as a bidder classified in the second rank, would have had real chances of receiving the contract if the bid of the successful bidder were to be excluded. The subsidiary constitutional complaint can only raise the violation of constitutional rights. The appellant claimed that the bid of the successful bidder should have been excluded because it did not meet two essential requirements at the time of the award decision. The Federal Supreme Court found that the lower court was correct in assuming that the indication of the locations was not an eligibility criterion and that it was sufficient if the deployment locations and vehicles were available only at the start of the contract. The lower court had interpreted the tender documents to mean that the vehicle fleet must be available, but individual vehicles or…