The principle of equal treatment of economic operators set out in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors must be interpreted as precluding, in a public procurement procedure, the contracting authority from inviting a tenderer to submit declarations or documents whose communication was required by the tender specification and which have not been submitted within the time limit given for the submission of tenders. On the other hand, that article does not preclude the contracting authority from inviting a tenderer to clarify a tender or to correct an obvious clerical error in that tender, on condition, however, that such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly, and that that clarification or correction may not be equated with the submission of a new tender, which is for the referring court to determine.

Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings in which, in a public procurement procedure two tenders have been submitted and the contracting authority has adopted two simultaneous decisions rejecting the offer of one tenderer and awarding the contract to the other, the unsuccessful tenderer who brings an action against those two decisions must be able to request the exclusion of the tender of the successful tenderer, so that the concept of ‘a particular contract’ within the meaning of Article 1(3) of Directive 92/13, as amended by Directive 2007/66, may, where appropriate, apply to the possible initiation of a new public procurement procedure.

In connection with a public procurement procedure in which two tenders have been submitted and the contracting authority has adopted two simultaneous decisions rejecting the tender of one of the tenderers and awarding the contract to the other, an action has been brought before the referring court by the unsuccessful tenderer concerning those two decisions. In that action, the unsuccessful tenderer seeks the exclusion of the tender of the successful tenderer on the ground that it does not comply with the tender specifications.

In such a situation, the tenderer who has brought the action must be regarded as having a legitimate interest in the exclusion of the bid submitted by the successful tenderer, which may lead, where appropriate, to a finding that the contracting authority is unable to select a lawful bid (see, to that effect, judgments of 4 July 2013, Fastweb, C‑100/12, EU:C:2013:448, paragraph 33, and of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 24).

That interpretation is confirmed by the provisions of Article 2a(1) and (2) of Directive 92/13, which expressly provide a right of review for tenderers who are not definitively excluded against, inter alia, award decisions taken by contracting authorities.

(see paras 54-56, 59, operative part 2)