A public procurement shall be carried out in such a manner that suppliers are treated equally and without discrimination. Accordingly, a procurement may not be carried out with the intention of limiting competition so that certain suppliers are unduly favoured or disadvantaged.
For social reasons, a procurement may be reserved for sheltered workshops or suppliers whose principal aim is the social and professional integration of disabled persons or persons with difficulties entering the job market, so-called social enterprises. The sheltered workshop or the social enterprise must employ a certain percentage, not less than 30 per cent, of persons who are disabled or persons who have difficulties entering the job market.
The question in the case pertained to the conditions under which a tenderer may qualify in a reserved procurement when the tenderer has stated that the agreement shall be performed by an organisational unit within the tenderer and that the unit constitutes a sheltered workshop or a social enterprise.
The Supreme Administrative Court stated that the purpose of the rules regarding reserved procurements is that the relevant suppliers are to be afforded an opportunity to be awarded contracts under conditions which would not apply under normal competitive conditions. In order to ensure this purpose, the requirements imposed in order to qualify for a procurement must apply to the supplier as such. The supplier who submits a tender in a reserved procurement must thus, in order to qualify, be a sheltered workshop or a social enterprise and have a sufficiently high level of employment of persons with disabilities or persons who have difficulties entering the job market. A tenderer may thus not qualify in a reserved procurement by stating that an organisational unit within the tenderer constitutes a sheltered workshop or a social enterprise. The Supreme Administrative Court further stated that there is no impediment to an organisational unit within a legal person submitting a tender in a procurement and hence being a supplier within the meaning of the procurement rules.
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