(c)

The remainder of the arguments put forward by the applicants to demonstrate that the Commission's conduct was unlawful are based on the assertion that, on the basis of the Conditions of Tender, the General Conditions of the European Development Fund and more generally the rules for the award of international contracts, the Commission did not have the right to allow the lowest tenderer to supplement, modify or improve its offer at a later stage, in particular by providing supplementary guarantees from the group to which it belonged. As has already been mentioned in point 2.9 of this Opinion, under the Conditions of Tender tenderers were required to demonstrate their technical experience, their competence to undertake the works (Clause IT-1, 4 (c)) and their current financial capability (Clause IT-1, 4 (d)); these factors were to be examined by a Tender Committee appointed by the employer, which could include the Commission's delegate and the consulting engineer (Clause IT-1, 4, third paragraph). As was stated in point 2.14 of this Opinion, that Committee decided unanimously that the lowest tenderer failed to fulfil three of the four stated criteria. However, such a decision and the accompanying recommendation to the employer on the basis of point IT-11 of the Conditions of Tender to enter into negotiations with the applicants naturally do not affect the aforesaid provisions of the Convention concerning the approval of a proposal made by the national authorizing officer to the chief authorizing officer on the basis of that recommendation. With regard to the subsequent events, it is clear, in my view, that the chief authorizing officer did not approve any such proposal in favour of the applicants. In my view, that failure to grant approval cannot in itself be regarded as unlawful, if for no other reason than that the applicants were not the lowest tenderers. The documents relating to the case do not make it entirely clear on the basis of what contacts the chief authorizing officer and the national authorizing officer finally arrived at the conclusion that the lowest tenderer did in fact have the technical and financial qualifications required by the Conditions of Tender. That question does not however seem to me to be of decisive importance. On the basis of the information at the Court's disposal it is clear that the employer's consulting engineer, whether or not under pressure from the chief authorizing officer, asked the lowest tenderer for further information on its tender, under note 12 of the Instructions to Tenderers of the International Federation of Consulting Engineers. It is also clear, on the basis inter alia of Annexes 1 and 2 to the defence and of a declaration of guarantee produced during the proceedings at the request of the Court, that in response to the consulting engineers' request for further information the holding company of the group to which the lowest tenderer belongs gave a guarantee of the technical and financial qualifications of the tenderer. Finally, it is clear that the employer's consulting engineers and subsequently the employer itself, as well as the national authorizing officer and the chief authorizing officer, regarded that guarantee as sufficient for the lowest tenderer to be considered qualified to carry out the works. A brief summary of the last stage of those proceedings is included in point 2.23 of this Opinion. At the hearing the applicants denied that note 12 of the Instructions to Tenderers (whose applicability in this case was not as such disputed) could provide a foundation for the procedure followed. The relevant part of note 12 is the first paragraph, which reads as follows: ‘Tenderers should be advised that the Employer, or the Engineer on behalf of the Employer, may ask any tenderer for clarification of his tender, but that no tenderer will be permitted to alter his tender price after tenders have been opened. Clarifications which do not change the tender price may be accepted and modified in the contract.’ At the hearing the applicants argued that that text cannot provide a basis for alterations in the terms of the tender. In particular, it does not permit the addition of a binding guarantee from a person who is not a tenderer. In my view that interpretation must in any event be rejected where the tenderer belongs to a group and the guarantee is given by the holding company of that group. It is common knowledge and, as can be seen from the authorities and case-law cited by the Commission on pages 10 and 11 of its defence and from Annexes 1 and 2 to the defence, it is true in particular of a holding company under English law that it is at least possible for such a company to give a guarantee of the performance of its subsidiaries' obligations. The examination of the question whether in this case either by law or under an express guarantee such recourse to the holding company was possible may in my view certainly be termed ‘clarification’. According to a statement made at the hearing by the Chairman of Fidic's organization for tender procedures it is not normal practice for the employer, in the Conditions of Tender, to request such a guarantee from the parent company of a wholly-owned subsidiary. In practice such a guarantee is therefore not automatically submitted with the tender. Where circumstances so require it is normally requested during the negotiations between the employer and the tenderer, under the procedure laid down in note 12 of the Fidic rules. The guarantee can relate both to financial and to technical qualifications. In itself I am unwilling to attribute decisive significance to that statement, made at a late stage of the proceedings. I do however regard it as a confirmation of what must be inferred from the passage of note 12 of the Fidic rules quoted above, viewed in conjunction with the rules of international company law. In the expert's opinion submitted by the applicants at the hearing in reply to that statement I could find no sound counterargument on that point. On the basis of the relevant general principles of company law I think it in particular incorrect that paragraph 14 of that opinion treats the parent company of the wholly-owned subsidiary as a new tenderer. In the second sentence of the first paragraph of note 12 it is expressly made clear that ‘clarifications’ can indeed lead to additions to or modifications of the contract, in relation to the terms of the tender, as long as there is no change in the tender price. In this case it is not disputed that the guarantee provided was not accompanied by any change in the tender price. On the basis of those findings I conclude that the Commission did not act unlawfully in insisting, on the basis of the powers and obligations accruing to the chief authorizing officer under Article 121 (2) of the Convention, on further information regarding the tender of the lowest tenderer pursuant to note 12 of the Fidic rules. Nor do I find unlawful conduct in the fact that on 10 June 1983, on the basis of that further information, the chief authorizing officer approved the proposal of the national authorizing officer, made at the beginning of that month, to award the contract to the lowest tenderer. In my view conclusion (4) of the application must therefore be dismissed as unfounded.