The Supreme Court admits the indirect challenge of particular administrative clauses in two exceptional cases.
By means of judgement number 398/2021, of 22 of march, the Supreme Court has recognised the possibility of indirectly challenging the contract specifications, in contrast to what he had preached to date.
The ruling analyses the case in which the company “Contenedores Escor Vitoria, SL” indirectly challenges the tender documents of a services contract because they did not contain the rules for evaluating the bids, leaving them to the discretion of the awarding body. This would infringe the principle of equality, according to the appellant.
From here, the Supreme Court questions whether, once the contract specifications are accepted, they can be indirectly attacked when the award agreement is challenged, and if so, on what grounds.
Well, although it begins its discourse by recalling that there is consolidated case law that establishes that the specifications are the law of the contract, and that if they are not challenged within the established period they are validated, it adds a first nuance that derives from the judgment of the Court of Justice of the European Union of 12 March 2015, Case C-539/13 (hereinafter, eVigilo).
The eVigilo judgment determines that the time limit for challenging the specifications of a contract starts when the plaintiff is aware of the infringement or should have been aware of it. In other words, it admits the extemporaneous challenge of the tender documents if they are obscure and incomprehensible in the light of an informed and diligent tenderer.
Apart from this first exception, the Supreme Court understands that the cause of the unlawfulness of the tender documents (the absence of the rules for the evaluation of the bids) must be included in the grounds for nullity as a matter of law and that this must be treated as an exception to the impossibility of indirectly challenging the tender documents of a contract.
In conclusion, the Supreme Court admits the indirect challenge of the tender specifications, which have been approved, for not having been directly challenged in two cases: (1) if they were not challenged at the appropriate time because the conditions of the tender were not understood, and (2) if they incur a ground of nullity as a matter of law. However, also states that these two circumstances must be proven and will be assessed in an exceptional and restrictive manner.
