Judicial interpretation of the notion of ‘grave professional misconduct’ in public procurement: Lessons for contracting authorities and suppliers.

Public Procurement Law is the acquisition of goods, works and services by a contracting authority through the use of a public contract. The general principles of Public Procurement Law dictate that suppliers are treated fairly and without discrimination whilst encouraging transparency, proportionality, competition and free trade within the member states. This area of law is mainly regulated by the EU through the use of Directives and their national equivalent, judge-made law from the Court of Justice of the European Union (‘CJEU’) and national courts.
Due to the substantial amount involved throughout the life cycle of the public contract (including the contract value), it is paramount that the contract is awarded to the right supplier in order to attain value for money. As such, unqualified suppliers should be eliminated from the procurement exercise. Art.57 (4) (c) of Directive 2014/24/EU and reg. 57 (8) (c) of the UK Public Contracts Regulation 2015 (PCR 2015) specifies that a contracting authority may exclude an economic operator who by conviction by a final judgement is guilty of “grave professional misconduct”. With no definition of this phrase offered by Directive 2014/24/EU, PCR 2015 and their predecessors, this paper seeks to examine the judicial interpretation of the concept of “grave professional misconduct” through an analysis of key judgements from the Court of Justice of the European Union and national courts. The paper will conclude by identifying important lessons for contracting authorities and current or prospective suppliers when an issue of grave professional misconduct arises.