Keywords

Summary



Keywords

1. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Common rules on advertising - Publication of a prior information notice by the contracting authorities - Scope - Limits

(Council Directive 93/37, Arts 11(1), 12 and 13)

2. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Award of contracts - Award criteria - Condition linked to the campaign against unemployment - Permissible - Conditions - Rules on advertising

(Council Directive 93/37, Art. 30)

3. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Number of candidates invited to tender in the context of a restricted procedure - Limitation to a maximum number of five tenderers - Not permissible

(Council Directive 93/37, Art. 22(2))

4. Freedom to provide services - Procedures for the award of public works contracts - Directive 71/305 - Designation of the lots by reference to classifications of national professional organisations - Proof of the tenderer's professional qualification - Requirement of proof of registration with the national Ordre des Architectes - Not permissible

(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC); Council Directive 71/305, Arts 23 to 26)

Summary

1. The purpose of the rules on advertising laid down in Directive 93/37 concerning the coordination of procedures for the award of public works contracts, including publication of the prior information notice, is to inform all potential tenderers at the Community level in good time about the main points of a contract in order that they may submit their tender within the time-limits. That purpose shows that whether the prior information notice is compulsory must be determined by reference to the provisions of that directive relating to the time-limits for the receipt of tenders submitted by tenderers.

In this respect, Articles 12(1) and 13(3) of the Directive, which fix as a general rule the normal time-limits for the receipt of tenders at 52 days in respect of open procedures and 40 days in respect of restricted procedures, make no reference to the preliminary publication of a prior information notice. On the other hand, Articles 12(2) and 13(4) of the Directive, which confer on the contracting authorities the power to reduce the time-limits laid down in Articles 12 and 13, expressly link that power to the preliminary publication of a prior information notice. It follows that the publication of a prior information notice is compulsory only where the contracting authorities exercise their option to reduce the time-limits for the receipt of tenders.

( see paras 35-38 )

2. Under Article 30(1) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, the criteria on which the contracting authorities are to base the award of contracts are either the lowest price only or, when the award is made to the most economically advantageous tender, various criteria according to the contract, such as price, period for completion, running costs, profitability, technical merit. In the latter case, the contracting authorities are required to state these criteria in the contract notice or the contract documents.

None the less, that provision does not preclude all possibility for the contracting authorities to use as a criterion a condition linked to the campaign against unemployment provided that that condition is consistent with all the fundamental principles of Community law, in particular the principle of non-discrimination flowing from the provisions of the Treaty on the right of establishment and the freedom to provide services.

Furthermore, even if such a criterion is not in itself incompatible with Directive 93/37, it must be applied in conformity with all the procedural rules laid down in that directive, in particular the rules on advertising. It follows that an award criterion linked to the campaign against unemployment must be expressly mentioned in the contract notice so that contractors may become aware of its existence.

( see paras 49-51, 73 )

3. A Member State which, in contract notices, limits to five the number of candidates invited to tender for the contracts in question fails to fulfil its obligations under Article 22(2) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts.

Although it is true that Article 22(2) of the Directive does not provide for a minimum number of candidates which the contracting authorities are required to invite where they do not opt in favour of fixing a range as provided by that provision, the Community legislature none the less considered that, in the context of a restricted procedure and where the contracting authorities prescribe a range, a number of candidates below five is not sufficient to ensure genuine competition. The same must be true a fortiori in cases where the contracting authorities opt for inviting a maximum number of candidates. It follows that the number of undertakings which a contracting authority intends to invite to tender in the context of a restricted procedure cannot ever be less than five.

( see paras 59-63 )

4. A Member State which, in contract notices, uses as the mode of designating the lots references to classifications of national professional organisations and also requires from the designer, as minimum standards for participation, proof of registration with the Ordre des Architectes fails to fulfil its obligations under Article 59 of the Treaty (now, after amendment, Article 49 EC) and under Directive 71/305 concerning the coordination of procedures for the award of public works contracts.

To the extent that the designation of the lots by reference to classifications of French professional organisations is likely to have a dissuasive effect on tenderers who are not French, it thereby constitutes indirect discrimination and, therefore, a restriction on the freedom to provide services, within the meaning of Article 59 of the Treaty. Moreover, first, the requirement of proof that the designer is registered with the Ordre des Architectes can only give advantage to the provision of services by French architects, which constitutes discrimination against Community architects and, accordingly, a restriction on their freedom to provide services. Second, Directive 71/305 precludes a Member State from requiring a tenderer established in another Member State to furnish proof by any means other than those prescribed in Articles 23 to 26 of that directive, that he satisfies the criteria laid down in those provisions and relating to his qualifications.

( see paras 82-84, 87-88, 90 )