Judgment — ECLI:EU:T:2014:680
Date: 2014-07-16
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Freedom to provide services
Procedure: Action for annulment - successful
Origin: Poland

Summary — Judgment of the General Court (Sixth Chamber), 16 July 2014 1. EU public contracts — Tender procedure — Award of contracts — Waiting period before signature of the contract — Possibility of tenderers submitting requests, comments or information to the awarding authority after expiry of the deadline — Not permissible (Commission Regulation No 2342/2002, Art. 158a(1), third para.) 2. EU public contracts — Tender procedure — Duty to comply with the principle of equal treatment of tenderers — Need to ensure equal opportunities and comply with the principle of transparency — Reconsideration of a tenderer’s tender after award of the contract without suspending the tender procedure or notifying other tenderers — Breach of the principle of equal treatment (Council Regulation No 1605/2002, Art. 103, first and second paras; Commission Regulation No 2342/2002) 1. A letter addressed to an awarding authority in which a tenderer asks for a procedure to be suspended and the tenderers reconsidered falls within the provisions of third subparagraph of Article 158a(1) of Regulation No 2342/2002 laying down the detailed rules for implementing the financial regulation, and is thus required to be received within the period of fourteen days laid down in that provision. The objective of a tender procedure would be compromised if it were open to tenderers to send the contracting authority requests, comments or information at any stage of the procedure, thereby requiring the authority to respond and, where necessary, suspend or restart the procedure in order to correct any irregularities. (see paras 52, 53, 55) 2. The obligation of transparency, and the procedure laid down by Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities and by Regulation No 2342/2002 laying down the detailed rules for implementing the financial regulation, are infringed where the awarding authority schedules a further meeting of the evaluation committee after adoption of the decision to award the contract to reconsider the tender of a single tenderer without suspending the procedure or informing any of the tenderers who had been notified of the initial decision. By not making a fresh assessment of all the tenders submitted to it, that institution gives different treatment to the tender of one of the tenderers, in breach of the principle of equal treatment. The contracting institution must comply, at each stage of a tendering procedure, not only with the principle of the equal treatment of tenderers, but also with the principle of transparency. The principle of transparency implies an obligation upon the contracting authority to publish all precise information concerning the conduct of the entire procedure. The principle of transparency involves an obligation on the part of the contracting authority to publish full and precise information concerning the conduct of the entire procedure. The public information objectives that the contracting authority must observe in connection with its duty of transparency are, firstly, to ensure that all tenderers have equal opportunity, and secondly, to protect the legitimate expectations of the selected tenderers. In that regard, under the first and second paragraphs of Article 103 of Regulation No 1605/2002, the awarding authority may, if it finds a significant error after the award of the contract, suspend the procedure for awarding the contract and, where necessary, carry out a fresh assessment of the tenderers’ tenders. (see paras 58-61)