ECJ Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive 89/665/EEC – Public procurement review proceedings – Unlawful decisions – Possibility of annulment only in the case of material influence on the outcome of the tender procedure – Illegality of an award criterion – Obligation to cancel the invitation to tender
The court considered the award of a contract for the supply of electricity. The invitation to tender required tenderers to state the amount of electricity which could be supplied from renewable sources. It was contended by an unsuccessful tenderer that that requirement lacked the transparency required by the predecessor directive to Directive 2004/18, because there was a failure to specify the period of time in respect of which the amount that could be supplied was to be stated.
Held: ‘It is clear from the court’s case-law that the procedure for awarding a public contract must comply, at every stage, with both the principle of the equal treatment of potential tenderers and the principle of transparency so as to afford all parties equality of opportunity in formulating the terms of their tenders (see, to that effect, Universale-Bau, paragraph 93).
More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way (SIAC Construction, paragraph 41).
Consequently, in the case at issue in the main proceedings, the fact that in the invitation to tender the contracting authority omitted to determine the period in respect of which tenderers had to state in their tenders the amount of electricity from renewable energy sources which they could supply could be an infringement of the principles of equal treatment and transparency were it to transpire that that omission made it difficult or even impossible for tenderers to know the exact scope of the criterion in question and thus to be able to interpret it in the same way.
Inasmuch as that requires a factual assessment, it is for the national court to determine, taking account of all the circumstances of the case, whether, despite that omission, the award criterion at issue in the main proceedings was sufficiently clearly formulated to satisfy the requirements of equal treatment and transparency of procedures for awarding public contracts.’
Judges:
V Skouris (Rapporteur), acting P
Citations:
C-448/01, [2003] EUECJ C-448/01, [2003] ECR I-14527, [2004] 1 CMLR 22
Links:
Statutes:
Directive 93/36/EEC, Directive 89/665/EEC
Jurisdiction:
European
Cited by:
Cited – Healthcare at Home Ltd v The Common Services Agency SC 30-Jul-2014
The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 08 June 2022; Ref: scu.189881