Judgment – Law Relating To Undertakings – Public contracts Directive 89/665/EEC Review procedures concerning the award of public contracts Limitation period Principle of effectiveness
Article 1 of the Directive required member states to take the measures necessary to ensure that: ‘as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law.’ The court was asked whether a national time limit for the bringing of proceedings was compatible with Directive 89/665.
Held: The time limit started to run if the alleged irregularity was identifiable on the basis of the tender notice.
The Advocate General asked what was the degree or nature of knowledge of an irregularity which might be attributed to a tenderer without breaching the effectiveness principle underlying the Directive. She observed: ‘It seems to me that a requirement of actual, or subjective, knowledge on the part of the tenderer would run counter to legal certainty. Furthermore, in circumstances such as those of the present case, it could be difficult to prove that a tenderer had actual knowledge of an irregularity, and a requirement of such proof would hardly be consistent with the need for a rapid review process.
It therefore seems preferable to formulate the test in terms of a standard of deemed, or objective, knowledge. The court already applies an objective standard in respect of tenderers’ ability to interpret award criteria against the yardstick of equality of treatment in public procurement, namely the ability of a ‘reasonably well-informed and normally diligent tenderer’. The same formula seems appropriate in the context of what knowledge of an irregularity in the tender procedure it is reasonable to deem a tenderer to possess.’
A. Rosas, P
C-241/06,  EUECJ C-241/06,  ECR I-8415,  1 CMLR 19
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.
Updated: 11 July 2022; Ref: scu.253353