Keywords

Summary



Keywords

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1. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision to reject a tender under the procedure for the award of a public service contract

(EC Treaty, Art. 190; Council Directive 92/50, Art. 12(1))

2. Budget of the European Communities ° Financial Regulation ° Provisions applicable to tendering procedures ° Obligation for an institution to contact a tenderer after the tenders have been opened ° None

(Commission Regulation No 3418/93, Art. 99(h), second para.)

3. Public procurement in the European Communities ° Conclusion of a contract following an invitation to tender ° Discretion of the institutions ° Judicial review ° Limits

Summary

1. It follows from Article 12(1) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which is applicable by virtue of Article 126 of Regulation No 3418/93 to contracts awarded by Community institutions where the value of the contract in question exceeds the threshold laid down by Article 7(1) of that directive, that an institution fulfils its obligation vis-à-vis eliminated tenderers to state reasons if it first merely informs them immediately of the fact that their tender has been rejected by a mere communication not setting out any reasons and subsequently provides tenderers making an express request to that effect with a reasoned explanation within 15 days.

That manner of proceeding is consonant with the duty to state reasons enshrined in Article 190 of the Treaty, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction.

The fact that interested tenderers receive a reasoned decision only if they make an express request to that effect does not restrict their ability to assert their rights before the Court. The period for bringing proceedings laid down in the fifth paragraph of Article 173 of the Treaty does not begin to run until the reasoned decision is notified, provided that the tenderer made his request for a reasoned decision within a reasonable period after he was apprised of the fact that his tender had been rejected.

2. The existence of an obligation to contact a tenderer who made a calculation error cannot be inferred from the fact that the second paragraph of Article 99(h) of Regulation No 3418/93 laying down detailed rules for the implementation of certain provisions of the Financial Regulation, albeit prohibiting any contact between the institution and the tenderer after the tenders have been opened, provides, exceptionally, that the institution may take it upon itself to contact the tenderer "if some clarification is required in connection with a tender, or if obvious clerical errors contained in the tender must be corrected".

Neither may such an obligation be imposed by virtue of the principles of sound administration or equal treatment where the body responsible for examining the tenders detected in one of them a systematic calculation error which could not be described as particularly obvious and whose exact nature and cause it was unable to determine. In such a case, any contact made with the tenderer would involve a risk of a new tender being submitted under the guise of a mere correction, which might give rise to an infringement of the principle of equal treatment, since the other competing undertakings would not have the same opportunity.

3. The institutions have a broad discretion in assessing the factors to be taken into account for the purpose of taking a decision to award a contract following an invitation to tender and the Court' s review should be limited to checking that there has been no serious and manifest error.