Judgment of the General Court (Fifth Chamber) of 10 October 2017 — Solelec and Others v Parliament

(Case T‑281/16)

(Public works contracts — Tendering procedure — Electrical work (high-voltage current) as part of the project for the extension and refurbishment of the Parliament’s Konrad Adenauer building in Luxembourg — Rejection of the tender submitted by a tenderer and decision to award the contract to another tenderer — Manifest error of assessment — Selection criteria — Technical and professional capacity — Award criteria — Abnormally low tender — Market value)

1. EU budget—Financial regulation—Amendment—Substantive rules—Retroactive effect—None (European Parliament and Council Regulation No 966/2012, as amended by Regulation No 2015/1929; Commission Regulation No 1268/2012, as amended by Regulation No 2015/2462) (see paras 19-21)

2. European Union public contracts—Conclusion of a contract following a call for tenders—Discretion of the institutions—Judicial review—Limits (European Parliament and Council Regulation No 966/2012; Commission Regulation No 1268/2012) (see paras 23-25)

3. European Union public contracts—Tender procedure—Obligation to comply with the principle of equal treatment of tenderers—Need to ensure equal opportunities and comply with the principle of transparency—Scope (European Parliament and Council Regulation No 966/2012, Art. 102(1) and (2)) (see para. 26)

4. European Union public contracts—Conclusion of a contract following a call for tenders—Criteria for selecting candidates—Option for the contracting authority to ask a tenderer to have evidence of an autorisation to produce the subject-matter covered by the tender—Obligation to determine the constitution of the legal personality of the tenderer for the entire duration of the tender—None (Commission Regulation No 1268/2012, Art. 146(3)) (see paras 35-37)

5. European Union public contracts—Conclusion of a contract following a call for tenders—Obligation on an institution to exercise its option to make contact with a tenderer after the opening of tenders—Condition—Exercise in compliance with the principles of sound administration, equal treatment, proportionality and legal certainty—Possibility of amending the terms of the tender of the said tenderer—Not included (European Parliament and Council Regulation No 966/2012, Art. 96(2); Commission Regulation No 1268/2012, Arts 158(3) and 160(3)) (see paras 67, 68)

6. European Union public contracts—Conclusion of a contract following a call for tenders—Abnormally low offer—Obligation of the contracting authority to hear from the tenderer—Scope (Commission Regulation No 1268/2012, Art. 151) (see paras 113-115)

7. European Union public contracts—Tender procedure—Calculation of the market value—Discretion of the awarding authority—Judicial review—Limits—Manifest error of assessment—Burden of proof (European Parliament and Council Regulation No 966/2012, Art. 118) (see paras 120, 121)

8. European Union public contracts—Conclusion of a contract following a call for tenders—Abnormally low offer—Obligation on the contracting authority to examine the abnormally low nature of the tender—Scope—Elements to be taken into consideration—Obligation to take account of other offers received—None (Commission Regulation No 1268/2012, Art. 151(1)) (see paras 134, 135)

9. European Union public contracts—Conclusion of a contract following a call for tenders—Abnormally low offer—Obligation of the contracting authority to hear from the tenderer—Examination by the awarding authority of the abnormally low character of the tender—Elements to be taken into consideration—Discretion of the awarding authority (Commission Regulation No 1268/2012, Art. 151(1)) (see para. 139)

10. Judicial proceedings—Measures of organisation of procedure—Request for production of documents—Duties of the person making the request (Rules of Procedure of the General Court, Art. 88(1) and (2)) (see paras 166-168)

Re:

APPLICATION under Article 263 TFEU for the annulment, first, of the Parliament decision of 27 May 2016 rejecting the tender submitted by the applicants in respect of lot No 75 in the context of the tender procedure INLO-D-UPIL-T‑14-A04, entitled ‘Electricity — power’ concerning the project to extend and modernise the Konrad Adenauer building in Luxembourg (Luxembourg), and secondly, the decision awarding that lot to another tenderer.

Operative part

The Court:

1. Dismisses the action;