62022CJ0737_RES
Case C‑737/22
Staten og Kommunernes Indkøbsservice A/S
v
BibMedia A/S
(Request for a preliminary ruling from the Østre Landsret)
Judgment of the Court (Fourth Chamber) of 13 June 2024
(Reference for a preliminary ruling – Award of public works, public supply and public service contracts – Directive 2014/24/EU – Article 18 – Principles of equal treatment and transparency – Article 46 – Division of a contract into lots – Opportunity for the tenderer which submitted the second most economically advantageous tender to be awarded a lot on the terms of the most economically advantageous tender)
Questions referred for a preliminary ruling – Admissibility – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer – None
(Art. 267 TFEU)
(see paragraphs 25, 28)
Approximation of laws – Procedures for the award of public works, public supply and public service contracts – Directive 2014/24 – Award of contracts – Principles of equal treatment of tenderers and transparency – Ban on negotiations between the contracting authority and a tenderer – Scope – Conditions for awarding a public contract divided into lots according to the criterion of the lowest price – Lot of lower value than the largest lot – Award to the tenderer which submitted the second most economically advantageous tender – Condition – Matching the price of performance of the lot of lower value with the price of that of the tenderer which submitted the most economically advantageous tender – Whether permissible
(European Parliament and Council Directive 2014/24, Arts 18(1), 27 and 46)
(see paragraphs 33-39, 41, operative part)
Résumé
Ruling on a question referred for a preliminary ruling by the Østre Landsret (High Court of Eastern Denmark, Denmark), the Court of Justice clarifies, in a procedure for the award of a public contract divided into lots, the scope of the principles of transparency and equal treatment, and of the ban on negotiations which follows therefrom.
Staten og Kommunernes Indkøbsservice A/S (‘SKI’), a central purchasing body owned by the Danish State and Kommunernes Landsforening (Association of Danish Municipalities), launched a tendering procedure with a view to concluding a framework agreement relating to the provision of library materials. The tender specifications of that call for tenders provided that the contracts relating to Danish books and sheet music are divided geographically into two lots (West and East). It also indicated that Lot 2 (West) would be awarded to the tenderer which submits the most economically advantageous tender, while Lot 1 (East) would be awarded to the tenderer which submitted the second most economically advantageous tender, on the condition that it accepts to perform that lot at the price of the tenderer which submitted the most economically advantageous tender. At the end of the period for submitting tenders and in accordance with the abovementioned terms, as set out in the tender specifications, (
1
) SKI awarded Lot 2 (West) to BibMedia and proposed to award Lot 1 (East) to AVM, on the condition that it accepts to deliver the supplies and perform the services provided for in that lot at the price offered by BibMedia, of which AVM had been informed.
Following an action brought by AVM before the Klagenævnet for Udbud (Public Procurement Complaints Board, Denmark; ‘the Complaints Board’), the Complaints Board found that SKI had infringed Danish law on public procurement on the grounds that the tender specifications were contrary to the ban on negotiations resulting from the principles of equal treatment and transparency. SKI brought an action against that decision before the Retten i Glostrup (Glostrup District Court, Denmark), which remitted it to the Østre Landsret (High Court of Eastern Denmark), the referring court.
In that context, the High Court of Eastern Denmark asked the Court, in essence, whether Article 18(1) of Directive 2014/24 (
2
) must be interpreted as meaning that the principles of equal treatment and transparency laid down in that provision preclude, in a procedure for the award of a public contract divided into lots, the tenderer which submitted the second most economically advantageous tender from being awarded, in accordance with the terms set out in the procurement documents, a lot on the condition that the tenderer accepts to deliver the supplies and perform the services relating to that lot at the same price as that offered by the tenderer which submitted the most economically advantageous tender and which has therefore been awarded another, larger lot of that contract.
Findings of the Court
After recalling that the principles of equal treatment and transparency preclude any negotiation between the contracting authority and a tenderer during a public procurement procedure, which means that, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer, the Court considers that a method of awarding public contracts such as that set out in the tender specifications for the call for tenders at issue in the main proceedings does not contain any element of negotiation.
In that regard, the Court notes that such a method for awarding public contracts guarantees, for the award of all lots, that the criterion of the lowest price is fulfilled, without the possibility for the contracting authority to derogate from that criterion or to ask a tenderer to amend its tender, since the contracting authority must base its decision on the prices offered before the expiry of the period for submitting tenders and to observe, throughout that procedure, the order of ranking resulting from those tenders.
In such a public procurement procedure, it is the prices offered before the expiry of the period for submitting tenders which directly and definitively determine the ranking of tenderers. In that ranking, the tenderer which offered the lowest price takes the first place and that tenderer’s price is that at which the entirety of the contract will be concluded.
The Court clarifies that the opportunity, provided by the tender specifications to the tenderer submitting the second most economically advantageous tender, of being awarded one lot of the contract results solely, as is expressly stated in the contract documents, from the fact that it takes second place in the ranking resulting from the prices offered in the tenders.
Whether use is made of that opportunity depends on the decision of that tenderer whether or not to accept to perform the lot in question at the price of the tenderer which submitted the most economically advantageous tender. That condition forms part of the detailed terms of the award procedure set out in the tender specifications. Where the tenderer which has submitted the second most economically advantageous tender does not agree to match that price, it falls to the tenderer which is third in the ranking resulting from the prices offered in the tenders to define its position on that point, and so on in the order of ranking of the tenders for as long as none of the tenderers agree to match the price of the tenderer submitting the most economically advantageous tender. If all the tenderers ranked from second place to last place refuse to perform that lot at that price, the tenderer which submitted the most economically advantageous tender is to be awarded all of the lots of the contract.
Thus, none of the decisions which may be taken by the tenderers ranked from second place to last place involve amending the tenders submitted prior to the expiry of the period prescribed for that purpose or negotiation with the contracting authority. No tenderer has the possibility of changing, by amending its tender or by any negotiation, its position in the ranking or the price at which the contract relating to a given lot will be concluded.
The Court concludes that a contract award procedure such as that at issue in the main proceedings comes, without breaching the principles of equal treatment and transparency, within the scenario referred to in the Directive on public works, public supply and public service contracts, namely that in which a contracting authority decides to award a contract in the form of separate lots, specifying in the procurement documents whether a tender may be submitted for a single lot, for several lots or for all of the lots and indicating which objective and non-discriminatory criteria will be applied to determine the award of lots.
In view of the above considerations, the Court rules that the principles of equal treatment and transparency laid down in that directive do not preclude, in a procedure for the award of a public contract divided into lots, the tenderer which submitted the second most economically advantageous tender from being awarded, in accordance with the terms set out in the procurement documents, a lot on the condition that the tenderer accepts to deliver the supplies and perform the services relating to that lot at the same price as that offered by the tenderer which submitted the most economically advantageous tender and which has therefore been awarded another, larger lot of that contract.
(
1
)	Paragraph 3.1.1 of the tender specifications.
(
2
)	Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65; ‘the Directive on public works, public supply and public service contracts’).