Judgment — ECLI:EU:T:2002:232
Date: 2002-09-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: General;Rights of the defence and procedural guarantees;Effects of a declaration that a measure is void;Budgetary rules
Procedure: Action for annulment - successful
Origin: United Kingdom

Summary of the Judgment 
1. Public procurement in the European Communities — Conclusion of a contract 
following an invitation to tender — Discretion of the institutions — Judicial 
review — Limits 
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SUMMARY — CASE T-211/02 
2. Public procurement in the European Communities — Contract following an invitation 
to tender — Obligation to reject ambiguous tenders — Scope — Evaluation com­
mittee empowered to contact a tenderer after opening the tender procedure — Power 
to be exercised observing the principles of good administration, equality and 
proportionality 
3. Actions for annulment — Judgment granting annulment — Effects — Annulment of 
a Commission decision rejecting a tender submitted by a tenderer in a public 
procurement procedure — Whether the institution concerned is obliged to re-examine 
decisions similar to the measure annulled but uncontested in judicial proceedings — 
No such obligation 
(Art. 233 EC) 
4. Actions for annulment — Withdrawal of the contested measure while the proceedings 
are pending before the Court — Applicant retaining an exceptional interest in 
annulment — Whether the action is rendered devoid of purpose — No 
(Art. 230 EC) 
1. The Commission enjoys a broad mar­
gin of assessment with regard to the 
factors to be taken into account for the 
purpose of deciding to award a 
contract following an invitation to 
tender. Review by the Community 
Courts is therefore limited to checking 
compliance with the applicable pro­
cedural rules and the duty to give 
reasons, the correctness of the facts 
found and that there is no manifest 
error of assessment or misuse of 
powers. 
(see para. 33) 
2. It is essential, in the interests of legal 
certainty, that the authority awarding a 
contract in a tender procedure should 
be able to ascertain precisely what 
tenders mean and, in particular, 
whether they comply with the con­
ditions set out in the call for tenders. 
Thus, where a tender is ambiguous and 
it is not possible to establish what it 
actually means quickly and efficiently, 
the contracting institution has no 
choice but to reject that tender. 
However, where the evaluation com­
mittee is empowered, in accordance 
with the instructions to tenderers, to 
seek clarification of tenders submitted, 
the Community law principle of good 
administration imposes an obligation 
to exercise that power in circumstances 
where it is both practically possible and 
necessary to obtain such clarification. 
Thus, while the evaluation committees 
are not obliged to seek clarification in 
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TIDULAND SIGNAL v COMMISSION 
every case where a tender is ambigu­
ously drafted, they have a duty to 
exercise a certain degree of care when 
considering the content of each tender, 
with the result that, where the terms of 
a tender itself and the surrounding 
circumstances indicate that the ambi­
guity probably has a simple expla­
nation and is capable of being easily 
resolved, it is, in principle, contrary to 
the requirements of good adminis­
tration for an evaluation committee to 
reject the tender without exercising its 
power to seek clarification. A decision 
to reject a tender in such circumstances 
is liable to be vitiated by a manifest 
error of assessment on the part of the 
institution in the exercise of that 
power. 
It would, moreover, be contrary to the 
principle of equality for an evaluation 
committee to enjoy an unfettered dis­
cretion to seek or not to seek clarifica­
tion of an individual tender regardless 
of objective considerations and free 
from judicial supervision. In addition, 
the principle of equality does not pre­
clude an evaluation committee from 
allowing tenderers to clarify any ambi­
guities in their tenders, since the 
instructions to tenderers expressly pro­
vide for requests for such clarification 
and the evaluation committee is 
obliged to treat all tenderers in a 
similar manner with regard to the 
exercise of this power. 
Furthermore, the principle of propor­
tionality requires that measures 
adopted by Community institutions 
do not exceed the limits of what is 
appropriate and necessary in order to 
attain the objectives pursued and, 
where there is a choice between several 
appropriate measures, recourse must 
be had to the least onerous. 
(see paras 34-39) 
3. Under Article 233 EC, it is for the 
institution whose act has been declared 
void to take the necessary measures to 
comply with the judgment annulling 
that act. Those measures involve, inter 
alia, the removal of the effects of the 
illegal conduct found in the judgment 
annulling the act, and the institution is 
thus required to take adequate steps to 
restore the applicant to its original 
position. However, the judgment 
annulling the act cannot entail the 
annulment of other acts not challenged 
before the Community Courts but in 
respect of which it may be claimed that 
they are vitiated by the same illegality. 
Consequently, the argument that 
annulment of the decision to reject a 
tender submitted by a tenderer in a 
public procurement procedure might 
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SUMMARY — CASE T-211/02 
affect the situation of other tenderers 
whose offers have likewise been 
rejected can in no way justify dismissal 
of the action brought by the first 
tenderer. 
(see para. 44) 
4. An application for annulment may, 
exceptionally, not become devoid of 
purpose despite the withdrawal of the 
act whose annulment is sought if the 
applicant nevertheless retains a suffi­
cient interest in obtaining a judgment 
formally annulling it. 
(see para. 48) 
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