# C_2015146EN.01000301.xml

| 4.5.2015 | EN | Official Journal of the European Union | C 146/3 |
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4.5.2015

EN

Official Journal of the European Union

C 146/3

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Judgment of the Court (Fifth Chamber) of 12 March 2015 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

(Case C-538/13) (1)

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((Reference for a preliminary ruling - Public procurement - Directives 89/665/EEC and 2004/18/EC - Principles of equal treatment and transparency - Connection between the successful tenderer and the contracting authority’s experts - Obligation to take that connection into account - Burden of proving bias on the part of an expert - Such bias having no effect on the final result of the evaluation - Time-limit for instituting proceedings - Challenging the abstract award criteria - Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated - Degree of the tenders’ conformity with the technical specifications as an evaluation criterion))

(2015/C 146/03)

Language of the case: Lithuanian

Referring court

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Parties to the main proceedings

Applicant: eVigilo Ltd

Applicant:

Defendant: Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

Defendant:

supported by:‘NT Service’ UAB, ‘HNIT-Baltic’ UAB

supported by:

Operative part of the judgment

Operative part of the judgment

| 1. | The third subparagraph of Article 1(1) 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, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, must be interpreted as not precluding a finding that the evaluation of the tenders is unlawful solely on the grounds that the tenderer has had significant connections with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, at all events, required to determine the existence of possible conflicts of interests and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. In the context of the examination of an action for annulment of an award decision on the ground that the experts were biased, the unsuccessful tenderer may not be required to provide tangible proof of the experts’ bias. It is, in principle, a matter of national law to determine whether, and if so to what extent, the competent administrative and judicial control authorities must take account of the fact that possible bias on the part of experts has had an effect on the decision to award the contract.
  The third subparagraph of Article 1(1) of Directive 89/665, as amended by Directive 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18, must be interpreted as requiring a right to bring an action relating to the lawfulness of the tender procedure to be open, after the expiry of the period prescribed by national law, to reasonably well-informed and normally diligent tenderers who could understand the tender conditions only when the contracting authority, after evaluating the tenders, provided exhaustive information relating to the reasons for its decision. Such a right to bring an action may be exercised until the expiry of the period for bringing proceedings against the decision to award the contract. |
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1.

The third subparagraph of Article 1(1) 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, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, must be interpreted as not precluding a finding that the evaluation of the tenders is unlawful solely on the grounds that the tenderer has had significant connections with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, at all events, required to determine the existence of possible conflicts of interests and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. In the context of the examination of an action for annulment of an award decision on the ground that the experts were biased, the unsuccessful tenderer may not be required to provide tangible proof of the experts’ bias. It is, in principle, a matter of national law to determine whether, and if so to what extent, the competent administrative and judicial control authorities must take account of the fact that possible bias on the part of experts has had an effect on the decision to award the contract.

The third subparagraph of Article 1(1) of Directive 89/665, as amended by Directive 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18, must be interpreted as requiring a right to bring an action relating to the lawfulness of the tender procedure to be open, after the expiry of the period prescribed by national law, to reasonably well-informed and normally diligent tenderers who could understand the tender conditions only when the contracting authority, after evaluating the tenders, provided exhaustive information relating to the reasons for its decision. Such a right to bring an action may be exercised until the expiry of the period for bringing proceedings against the decision to award the contract.

| 2. | Articles 2 and 53(1)(a) of Directive 2004/18 must be interpreted as allowing, in principle, a contracting authority to use, as an evaluation criterion of tenders submitted by the tenderers for a public contract, the degree to which they are consistent with the requirements in the tender documentation. |
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2.

Articles 2 and 53(1)(a) of Directive 2004/18 must be interpreted as allowing, in principle, a contracting authority to use, as an evaluation criterion of tenders submitted by the tenderers for a public contract, the degree to which they are consistent with the requirements in the tender documentation.

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(1)  OJ C 9, 11.1.2014.

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