In its answer to a preliminary question, the CJEU has ruled that, under certain conditions, a contracting authority may approach only one economic operator in the proceedings for the awarding of certain public procurement agreements. Thus, the contracting authority may approach only one economic operator even if the scope of the agreement in question does not objectively present characteristics justifying the award of its performance exclusively to that operator, when:
- the negotiation procedures are without prior publication;
- the procedure reproduces, without substantial alteration, the initial conditions of the agreement that were mentioned in a prior open procedure; and
- the previous procedure was discontinued on the grounds that the only tender submitted was unsuitable.
The CJEU has been approached by the Bulgarian courts with a request for a preliminary ruling on the possibility for a contracting authority to issue an invitation to participate in a negotiation procedure without prior publication to only one economic operator, after having found that a previous open procedure had been unsuccessful.
According to the operative part of the judgment, the provisions of Article 160 para. (1) and (2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018, on the financial rules applicable to the general budget of the European Union, must be interpreted as not applying to procedures for the award of public procurement agreements organized by the contracting authorities of the Member States even when those agreements are financed by resources from the European Structural and Investment Funds.
Thus, the Court established that, by reference to Article 32 para. (2)(a) of Directive 2014/24/EU, a contracting authority may, in a negotiated procedure without prior publication, approach a single economic operator where that procedure reproduces, without substantial alteration, the initial conditions of the agreement that were mentioned in a prior open procedure which was discontinued on the ground that the only tender submitted was unsuitable, even if the subject matter of the agreement in question does not have special characteristics which objectively justify its performance being entrusted exclusively to that economic operator.