The Contentious Chamber adopts the urgent measure requested by TCero that prevents the celebration of the public act of opening of the assessable criteria scheduled for this Friday
The Administrative Litigation Chamber of the Higher Court of Justice of the Region of Murcia suspends the procedure for the award of the indirect management of the public service of television audiovisual communication of the Autonomous Community of the Region of Murcia and, specifically, the act Public opening of envelope number 3 (automatically evaluable criteria) scheduled for this Friday, November 26, 2021, at 2:00 p.m., in the Assembly Hall of the Ministry of Economy, Finance and Digital Administration.
The court, in an order notified this Friday morning, adopts the urgent precautionary measure requested by the company Audiovisuales Tcero SA, under article 135.1 of the Law of Contentious-Administrative Jurisdiction, that is, an unprecedented part, without hearing the opposite party.
The appellant requested the adoption of the precautionary measure to avoid the risk of frustrating the ruling of a possible judgment upholding the appeal filed against the procedure. It stated that the contracting procedure should be suspended because if a report is issued in a collegiate manner by the new Committee of Experts and Envelope number 3 is opened by the Contracting Table, “it would not be appropriate to roll back the actions at the time of the evaluation of the criteria evaluable through value judgments since the content of the offers would be known in its entirety and the mandatory thing would be to cancel the award procedure and start a new one again, frustrating the legitimate purpose of the appeal.
It gives reasons of “prudence” and benefits for the “safeguarding of the principles of equal treatment and opportunities of bidders”
In view of the allegations made, after analyzing the legal and jurisprudential criteria and carrying out a weighting of interests, the Chamber considers that the urgent circumstances adduced by the appellant concur. The court understands that this suspension measure is not intended to guarantee the effectiveness of a future estimate judgment, but rather that its purpose is “to safeguard the proper development of the contracting procedure.”
The magistrates explain that although the court does not know “if the new Committee of Experts has already made the corresponding assessment” and “certain data that the Administration may provide us, where appropriate,” the ruling on the merits of the appeal in the that the decision to dismiss the previous members of the Committee of Experts was declared not in accordance with the Law and that the appointment of the new members was annulled “could be less damaging to the procedure if envelope 3 has not yet been opened.”
“So the precautionary measure seems incidentally that it can produce the positive effect of guaranteeing the good progress of the contracting procedure. Given this scenario, it is prudent not to hold the public opening ceremony for Envelope 3; and this without prejudice to the decision we adopt once we have heard the arguments of the Administration “.
After adducing reasons of prudence, the magistrates emphasize that “this precautionary decision produces a minimum distortion in the contracting procedure (it simply implies deferring the public act until it is decided on the maintenance or lifting of this measure) and is extremely beneficial both for the Administration as well as for the bidders because it guarantees security in the development of the process.
The Chamber concludes that the suspension “does not cause harm to the general interest” since the audiovisual service is currently being provided and “causes obvious benefits from the point of view of safeguarding the principles of equal treatment and opportunities of the tenderers and the principle of transparency in all stages of the procedure. ‘
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