# C_2016211EN.01002601.xml

| 13.6.2016 | EN | Official Journal of the European Union | C 211/26 |
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13.6.2016

EN

Official Journal of the European Union

C 211/26

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Request for a preliminary ruling from the Krajowa Izba Odwoławcza (Poland) lodged on 1 March 2016 — Archus sp. z o.o., Gama Jacek Lipik v Polskie Górnictwo Naftowe i Gazownictwo S.A.

(Case C-131/16)

(2016/C 211/33)

Language of the case: Polish

Referring court

Krajowa Izba Odwoławcza

Parties to the main proceedings

Applicants: Archus sp. z o.o., Gama Jacek Lipik

Defendant: Polskie Górnictwo Naftowe i Gazownictwo S.A.

Questions referred

| 1. | Can Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1) be interpreted as meaning that the contracting authority can be required to invite economic operators which have not submitted within the prescribed period (that is to say, the period specified for submitting tenders) ‘declarations or documents’ requested by the contractor proving that the tendered supplies, services or works satisfy the requirements laid down by the contracting authority (that term also covering samples of the subject-matter of the contract), or which submitted ‘declarations or documents’ requested by the contracting authority containing errors, to submit ‘declarations or documents’ (samples) which are missing or which correct errors within a specified additional period, without laying down a prohibition under which supplemented ‘declarations or documents’ (samples) cannot alter the content of the tender? |
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1.

Can Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1) be interpreted as meaning that the contracting authority can be required to invite economic operators which have not submitted within the prescribed period (that is to say, the period specified for submitting tenders) ‘declarations or documents’ requested by the contractor proving that the tendered supplies, services or works satisfy the requirements laid down by the contracting authority (that term also covering samples of the subject-matter of the contract), or which submitted ‘declarations or documents’ requested by the contracting authority containing errors, to submit ‘declarations or documents’ (samples) which are missing or which correct errors within a specified additional period, without laying down a prohibition under which supplemented ‘declarations or documents’ (samples) cannot alter the content of the tender?

| 2. | Can Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors be interpreted as meaning that the contracting authority can retain the deposit lodged by the economic operator if that operator, in response to the contracting authority’s invitation to supplement the tender, did not submit ‘documents or declarations’ (samples) proving that the tendered supplies, services or works satisfy the requirements laid down by the contracting authority, where that supplementation would result in a change to the content of the tender, or did not consent to the contracting authority’s correction of the tender, which made it impossible to select the tender submitted by the economic operator as being the most advantageous? |
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2.

Can Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors be interpreted as meaning that the contracting authority can retain the deposit lodged by the economic operator if that operator, in response to the contracting authority’s invitation to supplement the tender, did not submit ‘documents or declarations’ (samples) proving that the tendered supplies, services or works satisfy the requirements laid down by the contracting authority, where that supplementation would result in a change to the content of the tender, or did not consent to the contracting authority’s correction of the tender, which made it impossible to select the tender submitted by the economic operator as being the most advantageous?

| 3. | Must Article 1(3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, be interpreted as meaning that ‘a particular contract’, as referred to in the passage concerning the ‘interest in obtaining a particular contract’, means ‘a particular procedure for the award of a public contract carried out’ (in this case: that published in the notice of 3 June 2015), or ‘the particular subject-matter of the contract’ (in this case: the service relating to the digitisation of the contracting authority’s archive documents), irrespective of whether, as a consequence of an appeal being granted, the contracting authority will be required to annul the procedure for the award of a public contract and may possibly be required to initiate a subsequent procedure for the award of a public contract? |
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3.

Must Article 1(3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, be interpreted as meaning that ‘a particular contract’, as referred to in the passage concerning the ‘interest in obtaining a particular contract’, means ‘a particular procedure for the award of a public contract carried out’ (in this case: that published in the notice of 3 June 2015), or ‘the particular subject-matter of the contract’ (in this case: the service relating to the digitisation of the contracting authority’s archive documents), irrespective of whether, as a consequence of an appeal being granted, the contracting authority will be required to annul the procedure for the award of a public contract and may possibly be required to initiate a subsequent procedure for the award of a public contract?

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(1)  OJ 2004 L 134, p. 1.

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