Market Court examined the independence and autonomy of bids for school photography services
In a decision (MAO:56/2026) issued last month, the Market Court examined whether six companies offering school photography services had submitted independent and mutually autonomous bids, or whether the bids had been coordinated in violation of public procurement legislation. The Market Court ultimately annulled the procurement decision.
All of the group companies that submitted bids were under the same ownership and control. As a result, the corporate group to which these companies belong obtained multiple entries in the draw conducted between bidders in the event of a tie in points, thereby multiplying its chances of success.
However, the companies within the group argued that equating a corporate group relationship with a cartel prohibited under competition and procurement rules is not consistent with procurement legislation or prevailing case law.
Instead, the Market Court emphasized that the Court of Justice of the European Union has held in its case law (judgment of 15 September 2022, C-416/21, J. Sch. Omnibusunternehmen and K. Reisen, EU:C:2022:689) that the principle of equal treatment would be infringed if tenderers that are linked to each other were allowed to submit coordinated or harmonised bids that could give them unjustified advantages over other bidders. A contracting authority is required to examine and assess the facts in order to determine whether the relationship between two entities had a concrete impact on the content of the bids submitted in the same procurement procedure.
In this case, the six tenderers belonging to the same corporate group had submitted bids containing identical explanations regarding their electronic online store. The Market Court considered this to indicate coordinated planning at the group level. Particularly in light of this factor, the Market Court held that the contracting authority should have examined the matter more closely. According to the Market Court, the contracting authority had acted in breach of procurement rules by concluding that, in these circumstances, the companies within the group had prepared their bids independently and autonomously.
Kalliolaw’s experts assist both contracting authorities and suppliers in demanding interpretative situations under procurement law and in proceedings before the Market Court.
Further information: Johanna Maria Kajaste
