CELEX: 62001CJ0249
Public contracts
Directive 89/665/EEC
Review procedures concerning the award of public contracts
Article 1(3)
Persons to whom review procedures must be available

By order of 25 June 2001, received at the Court on 28 June 2001, the Bundesvergabeamt (Federal Public Procurement Office)
referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 1(3) of
Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395,
p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award
of public service contracts (OJ 1992 L 209, p. 1,
Directive 89/665).
Those questions were raised in proceedings between Mr Hackermüller, architect and qualified engineer, and the companies Bundesimmobiliengesellschaft
mbH (BIG) and Wiener Entwicklungsgesellschaft mbH für den Donauraum AG (WED) (
the defendants) concerning the defendants' decision not to accept the bid submitted by Mr Hackermüller for a public services contract.
Legal context
Community provisions
Article 1 of Directive 89/665 provides:
1.
The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the
scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC ... , decisions taken by the contracting authorities may be reviewed
effectively and, in particular, as rapidly as possible in accordance with the provisions set out in the following articles
and, in particular, Article 2(7), on the grounds that such decisions have infringed Community law in the field of public procurement
or national rules implementing that law.
...
3.
The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may
establish, at least to any person having or having had an interest in obtaining a particular public supply or public works
contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that
the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his
intention to seek review.
Under Article 2(1) of Directive 89/665: The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision
for the powers to:
(a)
take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the
alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the
suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting
authority;
(b)
set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic
or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract
award procedure;
(c)
award damages to persons harmed by infringement.
National legislation
Directive 89/665 was transposed into Austrian law by the Bundesgesetz über die Vergabe von Aufträgen (Bundesvergabegesetz)
1997 (1997 Federal Public Procurement Law, BGBl. I, 1997/56,
the BVergG).
Paragraph 113 of the BVergG sets out the powers of the Bundesvergabeamt. It provides:
1.
The Bundesvergabeamt is responsible on application for carrying out a review procedure in accordance with the following provisions.
2.
To preclude infringements of this Federal Law and of the regulations implementing it, the Bundesvergabeamt is authorised until
the time of the award:
(1)
to adopt interim measures and
(2)
to set aside unlawful decisions of the contracting authority.
3.
After the award of the contract or the close of the contract award procedure, the Bundesvergabeamt is competent to determine
whether, on grounds of infringement of this Federal Law or of any regulations issued under it, the contract has not been awarded
to the best tenderer. ...
Paragraph 115(1) of the BVergG provides: Where an undertaking claims to have an interest in the conclusion of a contract within the scope of this Federal Law, it may
apply for the contracting authority's decision in the contract award procedure to be reviewed on the ground of unlawfulness,
provided that it has been or risks being harmed by the alleged infringement.
The main proceedings and the questions referred for a preliminary ruling
The defendants invited tenders to select architectural designs and decision parameters in order to award general planning
contracts for building the new Engineering Faculty for the Technical University in Vienna. The first stage of the procedure
involved a competition designed to be an
open search for interested parties to identify ideas.
Several interested parties, including Mr Hackermüller and the company Hans Lechner-ZT GmbH (
Lechner) replied to the invitation to tender and submitted projects. During the second stage of the procedure, the negotiation, the
Beratungsgremium (the advisory panel) recommended pursuing the procedure in the short term with Lechner. By letter of 10 February
1999, the four other tenderers accepted for the negotiation procedure, including Mr Hackermüller, were informed that the Beratungsgremium
had not recommended implementation of their project.
On 29 March 1999 Mr Hackermüller brought proceedings before the Bundesvergabeamt under Paragraph 113(2) of the BVergG seeking
inter alia
to have set aside (1) the decision in which the Beratungsgremium and/or the defendants accepted the bid of a rival tenderer
as the best tender and recommended that the negotiation procedure should be pursued with the rival tenderer in the short term,
and (2) the decision by which the selection of the bids was made without regard to the criteria laid down in the invitation
to tender.
By decision of 31 May 1999 the Bundesvergabeamt, pursuant to Paragraph 115(1) of the BVergG, dismissed Mr Hackermüller's applications
in their entirety on the grounds that he did not have
locus standi
because his bid should have been eliminated at the first stage of the procedure, under Paragraph 52(1), subparagraph 8, of
the BVergG.
In support of its decision, the Bundesvergabeamt explained first of all that under Paragraph 115(1) of the BVergG a trader
may apply for review only if he risks harm or some other disadvantage. It also pointed out that under Paragraph 52(1), subparagraph
8, of the BVergG the awarding body must, before selecting the successful bid, eliminate immediately, on the basis of the results
of its examination of the bids, those which do not comply with the conditions of the invitation to tender or are incomplete
or incorrect, if those errors have not been, or cannot be, rectified.
The Bundesvergabeamt went on to point out that point 1.6.7 of the invitation to tender expressly refers to Paragraph 36(4)
of the Wettbewerbsordnung der Architekten (Competition rules for architects,
the WOA), which provides that, where there is a ground for exclusion under Paragraph 8 of the WOA, the project in question must be
rejected, and that Paragraph 8(1)(d) excludes from participation in architectural competitions, among others, persons who
include in the portfolio information enabling the author to be identified.
Finally, having established that Mr Hackermüller had given his name under the heading
proposed organisation of overall planning, so that his project should have been eliminated under the combined provisions of Paragraph 52(1), subparagraph 8, of the
BVergG and Paragraph 36(4) of the WOA, the Bundesvergabeamt concluded that the project could no longer be considered for the
contract and that, since he could not be harmed by any potential infringements of the principle of the lowest tenderer and
the rules of the negotiation procedure, Mr Hackermüller had no
locus standi
to claim the infringements alleged in his application.
On 7 July 1999, Mr Hackermüller brought an action for annulment of the Bundesvergabeamt's decision of 31 May 1999 before the
Verfassungsgerichtshof (Constitutional Court), Austria. In its judgment of 14 March 2001 (B1137/99-9), the Verfassungsgerichtshof
held that, in view of the broad interpretation that should be given, according to the Court's case-law (see, in particular,
Case C-54/96
Dorsch Consult
[1997] ECR I-4961, paragraph 46, and Case C-81/98
Alcatel Austria and Others
[1999] ECR I-7671, paragraphs 34 and 35), to the concept of
locus standi
to instigate a review procedure under Article 1(3) of Directive 89/665, it was questionable to interpret the conditions for
making an application under Paragraph 115(1) in conjunction with Paragraph 52(1) of the BVergG as meaning that a tenderer
who was not eliminated by the contracting authority may be excluded from the review procedure by a decision of the body responsible
for the procedure rejecting his claim for a judicial remedy, if that body finds at the outset a reason which would have given
grounds for eliminating the tenderer. It therefore annulled the Bundesvergabeamt's decision of 31 May 1999 for breach of the
constitutional right to a procedure before the appropriate court.
It was in those circumstances that the Bundesvergabeamt decided to stay proceedings and to refer the following questions to
the Court of Justice for a preliminary ruling:
1.
Is Article 1(3) of Directive 89/665 ... to be interpreted as meaning that any person seeking the award of a specific public
contract is entitled to institute a review procedure?
2.
In the event that the answer given to Question 1 is no: Is the abovementioned provision to be understood as meaning that, if a tenderer's bid is not eliminated by the contracting
authority, but the review body finds in the course of the review procedure that the contracting authority would have been
bound to eliminate it, the tenderer has been or risks being harmed by the infringement alleged by him ─ in this case the finding
by the contracting authority that a rival tenderer submitted the best bid ─ and that he must therefore be entitled to a review
procedure?
Question 1
In this connection, it need only be pointed out that, under Article 1(3) of Directive 89/665, Member States are required to
ensure that the review procedures laid down by the directive are available
at least to any person having or having had an interest in obtaining a particular public contract and who has been or risks being
harmed by an alleged infringement of the Community law on public procurement or the national rules implementing that law.
It is thus apparent that the provision does not oblige the Member States to make those review procedures available to any
person wishing to obtain a public contract but allows them to require, in addition, that the person concerned has been or
risks being harmed by the infringement he alleges.
The reply which should therefore be given to Question 1 is that Article 1(3) of Directive 89/665 does not preclude the review
procedures laid down by the directive being available to persons wishing to obtain a particular public contract only if they
have been or risk being harmed by the infringement they allege.
Question 2
Since Question 2 has been raised in the event that Article 1(3) of Directive 89/665 should be interpreted as meaning that
it allows access to the review procedures laid down by the directive to be made conditional on the fact that the alleged infringement
has harmed or risks harming the applicant, it should be answered.
In the light of the facts in the main proceedings, this question must be understood as seeking to ascertain whether a tenderer
seeking to contest the lawfulness of the decision of the contracting authority not to consider his bid as the best bid may
be refused access to the review procedures laid down by Directive 89/665 on the ground that his bid should have been eliminated
at the outset by the contracting authority for other reasons and that, therefore, he neither has been nor risks being harmed
by the unlawfulness which he alleges.
In that regard, it is appropriate to recall that, as is apparent from the first and second recitals in the preamble, Directive
89/665 is intended to strengthen the existing mechanisms, both at national and Community level, to ensure the effective application
of the directives relating to public procurement, in particular at a stage when infringements can still be remedied. To that
effect, Article 1(1) of that directive requires Member States to guarantee that unlawful decisions of contracting authorities
can be subjected to effective review which is as swift as possible (see, in particular,
Alcatel Austria
, cited above, paragraphs 33 and 34, and Case C-470/99
Universale-Bau and Others
[2002] ECR I-11617, paragraph 74).
It is thus plain that the full achievement of the objective of Directive 89/665 would be compromised if it were permissible
for a body responsible for the review procedures provided for by the directive to refuse access to them to a tenderer alleging
the unlawfulness of the decision by which the contracting authority had not considered its bid as being the best bid, on the
ground that the same contracting authority was wrong not to eliminate that bid even before making the selection of the best
bid.
There can be no doubt that a decision by which the contracting authority eliminates the bid of a tenderer even before making
that selection is a decision of which it must be possible to seek review under Article 1(1) of Directive 89/665, since that
provision applies to all decisions taken by contracting authorities which are subject to the rules of Community law on public
procurement (see
inter alia
Case C-92/00
HI
[2002] ECR I-5553, paragraph 37, and Case C-57/01
Makedoniko Metro and Michaniki
[2003] ECR I-1091, paragraph 68) and makes no provision for any limitation as regards the nature and content of those decisions
(see
inter alia
the aforementioned judgments in
Alcatel Austria
, paragraph 35, and
HI
, paragraph 49).
Therefore, if the tenderer's bid had been eliminated by the contracting authority at a stage prior to that of the selection
of the best bid, he would have had to be allowed, as a person who has been or risks being harmed by that decision to eliminate
his bid, to challenge the lawfulness of that decision by means of the review procedures provided for by Directive 89/665.
In those circumstances, if a review body were to refuse access to those procedures to a tenderer in a position like that of
Mr Hackermüller, the effect would be to deny him not only his right to seek review of the decision he alleges to be unlawful
but also the right to challenge the validity of the ground for exclusion raised by that body to deny him the status of a person
who has been or risks being harmed by the alleged unlawfulness.
Admittedly, if in order to mitigate that situation the tenderer is afforded the right to challenge the validity of that ground
of exclusion in the review procedure he instigates in order to challenge the lawfulness of the decision by which the contracting
authority did not consider his bid as being the best bid, it is possible that at the end of that procedure the review body
may reach the conclusion that the bid should actually have been eliminated at the outset and that the tenderer's application
should be dismissed on the ground that, in the light of that circumstance, he neither has been nor risks being harmed by the
infringement he alleges.
However, if the contracting authority has not taken a decision to exclude the tenderer's bid at the appropriate stage of the
award procedure, the method of proceeding described in the previous paragraph must be regarded as the only one likely to guarantee
the tenderer the right to challenge the validity of the ground for exclusion on the basis of which the review body intends
to conclude that he neither has been nor risks being harmed by the decision he alleges to be unlawful and, accordingly, to
ensure the effective application of the Community directives on public procurement at all stages of the award procedure.
In the light of the foregoing considerations, the reply which should be given to Question 2 is that Article 1(3) of Directive
89/665 does not permit a tenderer to be refused access to the review procedures laid down by the directive to contest the
lawfulness of the decision of the contracting authority not to consider his bid as the best bid on the ground that his bid
should have been eliminated at the outset by the contracting authority for other reasons and that therefore he neither has
been nor risks being harmed by the unlawfulness which he alleges. In the review procedure thus open to the tenderer, he must
be allowed to challenge the ground of exclusion on the basis ofwhich the review body intends to conclude that he neither has
been nor risks being harmed by the decision he alleges to be unlawful.
Costs
The costs incurred by the Austrian and Italian Governments and by the Commission, which have submitted observations to
the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Bundesvergabeamt by order of 25 June 2001, hereby rules:
1.
Article 1(3) of Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts,
does not preclude the review procedures laid down by the directive being available to persons wishing to obtain a particular
public contract only if they have been or risk being harmed by the infringement they allege.
2.
Article 1(3) of Directive 89/665, as amended by Directive 92/50, does not permit a tenderer to be refused access to the review
procedures laid down by the directive to contest the lawfulness of the decision of the contracting authority not to consider
his bid as the best bid on the ground that his bid should have been eliminated at the outset by the contracting authority
for other reasons and that therefore he neither has been nor risks being harmed by the unlawfulness which he alleges. In the
review procedure thus open to the tenderer, he must be allowed to challenge the ground of exclusion on the basis of which
the review body intends to conclude that he neither has been nor risks being harmed by the decision he alleges to be unlawful.
Puissochet
Schintgen
Skouris
Macken
Cunha Rodrigues
Delivered in open court in Luxembourg on 19 June 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: German.