Judgment_paragraph 57 · Archus sp. z o.o. and Gama Jacek Lipik v Polskie Górnictwo Naftowe i Gazownictwo S.A (C-131/16)

57Admittedly, the Court ruled in its judgment of 21 December 2016, Bietergemeinschaft Technische Gebäudebetreuung und Caverion Österreich (C‑355/15, EU:C:2016:988, paragraphs 13 to 16, 31 and 36), that a tenderer whose offer had been excluded by the contracting authority from a public procurement procedure could be refused access to a review of the decision awarding the public contract. However, the decision to exclude that tenderer had, in that case, been confirmed by a decision that had the force of res judicata before the court hearing the review of the contract award decision gave its decision, so that that tenderer had to be regarded as definitively excluded from the public procurement procedure at issue.