The Spanish company and ETIRA member has successfully challenged a hospital tender that favoured the OEM.
The Spanish Administrative Court of Contractual Appeals of Castilla y León has upheld a special appeal on a tender for printer consumables filed by Bioservice SCOOP (Bioservice), against the tender specifications governing the contracting procedure for the supply of toner for the printing devices by the University hospital of Burgos worth approximately €363,554 / $410,000.
Bioservice had challenged clauses 2 and 3 of the tender as discriminatory, in that provide respectively, that “all items purchased will be originals of the manufacturer’s trademark(…). In no case will reloaded material be admitted “and that “Companies wishing to bid must be official HP distributors.”
The tender authority cited that the “Obligation to be an official distributor of HP” was included “to achieve a secure distribution channel” and avoid “shortages that we have suffered on previous occasions.” The Court found that “the fact of being an authorized supplier does not necessarily guarantee either circumstance.”
The Court confirmed that tender regulations should not make “references to trademarks, patents or tips of the objects of supply, it being imperative that it define them already in terms of performance or functional requirements.”
Public procurement regulations “Principles of contracting” require that “Contracting authorities shall treat economic operators on an equal footing and without discrimination, and shall act in a transparent and proportionate manner.” To avoid exclusion or artificially restricting competition and give “economic operators equal access to the procedure of adjudication of the contract and that they do not have the effect of creating unjustified obstacles to the opening of public procurement to competition.”
The Court upheld the special appeal on contracting filed by Bioservice and annulled the unfair terms of the tender for the supply of toners by the University Hospital of Burgos.
The Court also lifted the suspension of the tender procedure and ordered the notification of the resolution to all interested parties and required the contracting authority to inform the Court within 14 days, of the actions adopted to comply with this resolution.
ETIRA President Javier Martinez said of the case: “ETIRA has gladly worked with Bioservice to overturn this Spanish tender. New European and Spanish public procurement criteria insist on purchasing “green products”. In a growing number of EU countries, public bodies are even obliged to do that. By excluding remanufactured cartridges, this tendering body chose the environment-unfriendly option because reusing cartridges can save 45-60% in CO2 emissions compared to new ones. In addition, the criteria limited free competition, which is a blatant violation of Spanish and EU laws. Bioservice pointed out these critical flaws to the Spanish judge, who quite rightly agreed. ETIRA now hopes this jurisprudence will be taken on board across the Spanish public sector, and calls on all public bodies in Europe to do the right thing and “go green”. Governments should lead by example!”
Alejandro J. Pedro from Bioservice said: “We thought this was a bad tender that favoured the HP dealer and excluded reuse cartridges. So I talked this over with our legal advisor and ETIRA and decided to appeal. I am really glad the court up help our claims. We thought that it was a clear opportunity to cancel the tender as favoured HP dealer and excluded reuse cartridges. I talked with Javier Martinez and he told me that he will help us to argue in this case, I am really happy that the court ruled in our favour.”
