The Ministry of Social Affairs disqualified a tender bid due to a previous negative experience with the bidder, even though it was not a threshold condition in the tender but a quality criterion.
The Court dismissed the petition and stated that an administrative authority may disqualify a bid due to negative experience even if this is not explicitly stated in the tender terms. An administrative authority may, and in exceptional cases must, consider the bidder's competence to perform the work that is the subject of the tender, even if such was not expressly set as a tender threshold condition or as a quality criterion. In this case, the Ministry of Social Affairs published a tender for the operation of boarding schools for children and teenagers. The tender established a two-stage procedure of checking threshold conditions first and the quality criteria of the bid second. Although the authority could have chosen, upon drafting the tender, whether to consider its satisfaction from a previous contract with the bidder as a threshold condition (in which case failure to meet this condition means disqualification of the bid) or determine that this consideration will be part of the quality criteria (and choose not to award a score in this criterion), it chose to set it as a quality criterion and therefore the outright disqualification of the bid constitutes an apparent deviation from the tender terms. However, this case is exceptional because the service required in the tender is not an 'ordinary' service of supplying a product or providing a simple service, but a unique one, which concerns the care of children and teenagers who were taken out of their homes and placed in institutions. Also, the previous experience with the bidder in operating out-of-home institutions for boys and girls who needed them was so bad that it justified the extreme step of disqualifying the bid in advance.