# C_2015320EN.01001701.xml

| 28.9.2015 | EN | Official Journal of the European Union | C 320/17 |
| --- | --- | --- | --- |

28.9.2015

EN

Official Journal of the European Union

C 320/17

---

Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 13 July 2015 — Bietergemeinschaft: Technische Gebäudebetreuung GesmbH and Caverion Österreich GmbH

(Case C-355/15)

(2015/C 320/24)

Language of the case: German

Referring court

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Parties to the main proceedings

Appellants: Bietergemeinschaft: Technische Gebäudebetreuung GesmbH and Caverion Österreich GmbH

Appellants:

Other parties: Universität für Bodenkultur Wien, VAMED Management und Service GmbH & Co KG in Vienna

Other parties:

Questions referred

Questions referred

| 1. | In the light of the principles established in the judgment of the Court of Justice of 4 July 2013 in Case C-100/12 (1)
  Fastweb SpA, is Article 1(3) of Directive 89/665/EEC 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 (2), in the version amended by Directive 2007/66/EC 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 (3) (‘Directive 89/665’), to be interpreted as meaning that a tenderer whose bid was definitively excluded by the contracting authority and who is therefore not a tenderer concerned within the meaning of Article 2a of Directive 89/665 may be refused access to a review of the award decision (decision on the conclusion of a framework agreement) and of the conclusion of the contract (including the award of damages required under Article 2(7) of the Directive), even where only two tenderers submitted bids and the bid submitted by the successful tenderer, to whom the contract was awarded, should, in the submission of the tenderer not concerned, also have been excluded?
  If the answer to Question 1 is in the negative: |
| --- | --- |

1.

In the light of the principles established in the judgment of the Court of Justice of 4 July 2013 in Case C-100/12 (1)
  Fastweb SpA, is Article 1(3) of Directive 89/665/EEC 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 (2), in the version amended by Directive 2007/66/EC 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 (3) (‘Directive 89/665’), to be interpreted as meaning that a tenderer whose bid was definitively excluded by the contracting authority and who is therefore not a tenderer concerned within the meaning of Article 2a of Directive 89/665 may be refused access to a review of the award decision (decision on the conclusion of a framework agreement) and of the conclusion of the contract (including the award of damages required under Article 2(7) of the Directive), even where only two tenderers submitted bids and the bid submitted by the successful tenderer, to whom the contract was awarded, should, in the submission of the tenderer not concerned, also have been excluded?

1

Fastweb SpA

2

3

If the answer to Question 1 is in the negative:

| 2. | In the light of the principles established in the judgment of the Court of Justice of 4 July 2013 in Case C-100/12 Fastweb SpA, is Article 1(3) of Directive 89/665 to be interpreted as meaning that the tenderer not concerned (within the meaning of Article 2a of the Directive) must be granted access to a review only:






  (a) | where it is apparent from the documents forming part of the review procedure that the successful tenderer’s bid is not valid; or |
| --- | --- | --- |

2.

In the light of the principles established in the judgment of the Court of Justice of 4 July 2013 in Case C-100/12 Fastweb SpA, is Article 1(3) of Directive 89/665 to be interpreted as meaning that the tenderer not concerned (within the meaning of Article 2a of the Directive) must be granted access to a review only:

Fastweb SpA

(a)

where it is apparent from the documents forming part of the review procedure that the successful tenderer’s bid is not valid; or

| (b) | where the successful tenderer’s bid is not valid on identical grounds? |
| --- | --- |

(b)

where the successful tenderer’s bid is not valid on identical grounds?

---

(1)  ECLI:EU:C:2013:448.

1

(2)  OJ 1989 L 395, p. 33.

2

(3)  OJ 2007 L 335, p. 31.

3

---