Edited by Grith S. Ølykke and Albert Sanchez-Graells
Chapter 6: The provision on abnormally low tenders: a safeguard for fair competition?
Two new requirements are introduced in the provision on abnormally low tenders: a requirement to verify all apparently abnormally low tenders and a requirement to reject tenders that are verified to be abnormally low because they are based on non-compliance with applicable social, environmental or labour law obligations. These requirements were part of the Commission’s 2011 Proposal but were developed and refined in particular by the Parliament during the negotiations. It is argued that the purpose of the requirements to verify and to reject together with other possibilities of ensuring adherence to the mentioned rules is to obtain fair competition for public contracts. Moreover, the analysis predicts that the CJEU’s interpretation of the concept of ‘applicable obligations’ will not result in homogeneous obligations for all potential tenderers, but rather that fair competition only requires all tenderers to adhere to the obligations which apply to them individually.
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