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A tale of torn envelopes

European Procurement iStock 000011527633Small 146x219A ruling of the Court of Justice of the European Union should give contracting authorities confidence in their ability to reject tenders where confidentiality cannot be guaranteed, writes Anita McEleney of Bristol City Council.

An elderly relative stuck a £20 note inside an envelope alongside my birthday card. When the card arrived in the post the envelope had been torn open and the £20 note was missing. I felt robbed. I imagine Euris Consult Ltd felt the same way when it was denied the opportunity to bid because the envelope containing its tender had been torn open, which meant the European Parliament was entitled to reject its tender.

The recent ruling by the General Court of the Court of Justice of the European Union (“ the European Court”) in Euris Consult Ltd v European Parliament (Case T-637/11) gives contracting authorities confidence to reject tenders where the confidentiality of the tender cannot be guaranteed. Contracting authorities include central government, local authorities and other bodies governed by public law.

In this case the contracting authority was the European Parliament. It issued an invitation to tenderers that set out its requirements for submitting bids for Maltese translation services. There were two delivery requirements.

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  1. Delivery had to be by post, or courier, or hand.
  2. The tender had to be under double cover, which meant enclosing the tender in two envelopes and sealing the envelopes with adhesive tape bearing the signature of the sender.

The European Parliament considered the double cover requirement was necessary to maintain the confidentiality and integrity of the tenders. Prospective tenderers had been informed, in the invitation to tenderers, that the integrity of the envelopes would be regarded as guaranteeing both confidentiality and the integrity of the contents of the tender.

Euris Consult Ltd provides Maltese translation services. It submitted a tender by courier. The original tender and two copies were submitted in three individual envelopes and the flaps of each envelope had been sealed by the signature of Euris Consult Ltd’s director and covered by adhesive tape. The three envelopes were then placed in an outer plastic envelope which had been supplied by the courier. The outer plastic envelope was not sealed by adhesive tape and did not bear a signature.

The European Parliament’s tender opening committee simultaneously opened all six tenders received and rejected Euris Consult Ltd’s tender because:

  • the outer plastic envelope was closed but not sealed in accordance with the delivery requirements, and
  • the inner envelopes were torn open and therefore confidentiality of the contents was not guaranteed.

Euris Consult Ltd brought proceedings seeking an annulment of the European Parliament’s decision to reject its tender. The European Court declined to annul the decision.

The European Court concluded that the European Parliament correctly found Euris Consult Ltd had not submitted its tender under double cover in sealed envelopes and therefore the European Parliament was entitled to reject it. Euris Consult Ltd failed to comply with the submission requirements for tenders. The European Parliament was obliged to reject any tender that failed to comply if the confidentiality of the non-compliant tender could not be guaranteed until the simultaneous opening of all tenders.

The European Court held that the requirement to seal envelopes enabled the confidentiality of tenders to be deemed to be guaranteed and was not disproportionate.

The European Court also held that the European Parliament had satisfied its duty to provide details of the reasons why Euris Consult Ltd’s tender had been rejected (namely confidentiality could not be guaranteed).

Euris Consult Ltd lost out because it failed to comply with the contracting authority’s requirements. The ruling serves as a reminder to tenderers that it is vital to protect tender confidentiality. Any evidence that confidentiality has been compromised could lead to bid rejection.

Anita McEleney is a Contracts and Procurement Lawyer at Bristol City Council. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. Anita, who worked in private practice specialising in construction law between 2003 and 2010, is also a professionally qualified civil engineer.

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