Keywords

Summary



Keywords

1. Actions for annulment – Jurisdiction of the Community judicature

(Arts 230 EC and 233 EC)

2. Public procurement in the European Communities – Tendering procedure

3. Public procurement in the European Communities – Tendering procedure

4. Public procurement in the European Communities – Tendering procedure

Summary

1. The Community judicature is not entitled, when exercising judicial review of legality, to issue directions to the institutions; rather, it is for the administration concerned to adopt the necessary measures to implement a judgment given in proceedings for annulment.

(see para. 46)

2. In the context of procedures for the award of public contracts, the requirement for a running-in phase enabling the new contractor to become familiar with the earlier version of the technology which it is required to replace seeks to ensure that the quality of the services to be provided is maintained at a high level during that phase. This is a phase during which, on the one hand, the provision of the services in question is still remunerated on the basis of the contract concluded with the existing contractor and, on the other hand, the new contractor is not yet in a position fully to guarantee the quality of services required for the application of the new version of the technology. Thus, the provision for a running-in phase is in the interest of the new contractor itself, since it enables that party in a timely fashion to become fully acquainted with technology with which it will be required to work at a time when it can provide only limited services. The fact that such a phase is unpaid is not, therefore, as such, discriminatory.

(see para. 68)

3. In a situation in which a contracting authority decides to initiate a tendering procedure for the award of a contract which has been performed, up to that point, by a single contractor, the principle that tenderers should be treated equally does not place any obligation upon the contracting authority to neutralise absolutely all the advantages enjoyed by a tenderer where the existing contractor is a subcontractor of that party.

Nevertheless, in order to comply with the principle of equal treatment in this particular situation, a balance must be struck between the interests involved. Thus, in order to protect as far as possible the principle of equal treatment as between tenderers and to avoid consequences that are contrary to the interests of the service of the contracting institution, the potential advantages of the existing contractor or a tenderer connected to that party by virtue of a subcontract must none the less be neutralised, but only to the extent that it is technically easy to effect such neutralisation, where it is economically acceptable and where it does not infringe the rights of the existing contractor or the said tenderer.

(see paras 70, 73, 75-76)

4. In the context of procedures for the award of public contracts, the Commission is required to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers so that the latter are afforded equality of opportunity when formulating their tenders, which implies that the tenders of all competitors must be subject to the same conditions.

The principle of transparency, which is the corollary of the principle of equal treatment, implies that all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public procurement procedure in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner and, secondly, to enable the contracting authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question.

In that regard, an undermining of equality of opportunity and the principle of transparency constitutes a defect in the pre-litigation procedure, adversely affecting the right of the parties concerned to information. However, a procedural defect can lead to the annulment of the decision in question only if it is shown that, but for that defect, the administrative procedure could have had a different outcome if a tenderer had had access to the relevant information from the beginning of that procedure and if there was even a small chance that that tenderer could have brought about a different outcome to the administrative procedure.

A Commission decision to award a contract must be annulled where, by failing to make available to all the prospective tenderers from the beginning of the tendering procedure certain technical information necessary for the preparation of the tenders, the Commission has infringed the principle of equal treatment as between tenderers and that infringement could have affected the award of the contract in question.

(see paras 141, 143-145, 147, 204)