7.

As to the substance of the case, I shall first discuss the parties' arguments and the provisions upon which they rely. In support of its view, CFE maintains first that the award of the contract should have taken place around 1 March 1988, that is to say two and a half months prior to 15 May 1988, the date set for the start of the work in Article B 28.1 of the special conditions. The clauses under which the contract must be awarded within a period of 180 calendar days, starting the day following that on which tenders are opened (Article A 15) and remain valid for 600 calendar days (Article B 13.1) are not, it considers, to be applied, since a reasonable interpretation of the terms under which the work is to be carried out means that only the starting and finishing dates fixed for the work (15 May 1988 and 27 February 1989 respectively) may be regarded as decisive. In the light of that interpretation and the consequent delay in awarding the contract, CFE bases its claim for additional payment principally on Article 16(1) of the general conditions. That provision is worded as follows: ‘The successful tenderer may rely on omissions, delays or conduct of whatever nature which he attributes to the administration or its servants, and which cause him delay and/or damage, in order to secure an extension of the time-limit for performance, variation or termination of the contract and/or damages, as the case may be. (...)’ According to CFE, that provision gives the successful tenderer the right to obtain variation of the contract in the broad sense and the claim for variation can be based on any conduct of the administration, without it being necessary to prove a specific breach of contract. The conduct ascribable to the Parliament is its delay in placing the order for budgetary reasons. As a result, CFE was faced with an unforeseeable price increase and was forced to renegotiate between August and October 1988 with its subcontractors — who were no longer bound by their original offer (which is usually valid for only three months). It is also of no avail to the Parliament to rely upon a breach of Article 16(3) (for the wording of that provision, see below, point 8), since that provision refers to the contract for the work and CFE could not rely on the provisions of that contract until it received the decision awarding it the work, as it in fact did. On 8 August 1988, CFE informed the Parliament of the negative consequences of the delay, having received the order on 1 August. In the alternative, CFE claims that there are extraordinary and unforeseeable circumstances within the meaning of Article 16(2) of the general conditions. That provision is worded as follows: ‘2.1 The successful tenderer shall not in principle be entitled to any amendment of the contractual conditions on account of circumstances of whatever nature outside the control of the administrative authority. However, he may, either for the purpose of requesting an extension of the time-limit for performance or, if he has sustained very significant damage, in order to request the variation or the termination of the contract, rely on circumstances which he was not reason ably able to foresee when the tenders were lodged or the contract concluded, which he was not able to avoid, and the consequences of which he was not able to prevent, despite having taken all necessary steps. (...)’ According to CFE, since the dates for the commencement and completion of the work were mandatory, the delay in placing the order constitutes a circumstance which it was not reasonably able to foresee when it lodged the tender. Paragraph 2 should therefore apply notwithstanding the presence of any clause which — as in this case Article A 5.1 of the special conditions does (see point 4 above) — precludes price variation.