Court of Justice, C‑415/23 P, 12 June 2025. Competitive dialogue.
Conflict of interest. Switch/hiring staff of (other) bidders during procedure. Be careful.
While the principle of equality is not infringed by the mere fact of recruiting, during a competitive dialogue, a managerial employee of a competing bidder who may hold, on the face of it, confidential information on the latter’s bid, in particular concerning technical strategy and price calculation, it cannot be ruled out that the recruiting bidder obtained this information by means of this recruitment and that thus an undue advantage during the award procedure exists.
Such a circumstance would be likely to give the recruiting bidder unjustified advantages over the other bidders, necessarily leading to a deterioration in the latter’s competitive situation. Such a situation would even be sufficient, in principle, to justify the contracting authority’s rejecting the recruiting bidder’s offer.
In the presence of any objective element casting doubt on the autonomous and independent nature of a bid, substantiated not only by direct evidence but also by indirect evidence, the contracting authority is obliged to verify all the relevant circumstances that led to the submission of the bid, including the existence of any conflicts of interest.
In2 the bargain 