Keywords

Summary



Keywords

1. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Power of the body responsible for review procedures to consider of its own motion any unlawfulness of a decision awarding a contract — Whether permissible — Power to dismiss an application by reason of the unlawfulness raised of its own motion — Excluded — (Council Directive 89/665)

2. Approximation of laws — Procedures for the award of public supply contracts — Directive 93/36 — Award of contracts — Award criteria — Account taken of a list of principal deliveries effected previously — Not permissible — (Council Directive 93/36, Arts 23(1) and 26(1))

3. Approximation of laws — Procedures for the award of public supply contracts — Directive 93/36 — Award of contracts — Award criteria — Requirement that the product which is the subject of the tenders should be available for inspection by the contracting authority within a radius of a specific number of kilometres — Not permissible — (Council Directive 93/36, Arts 23(1) and 26(1))

Summary

1. Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, does not preclude the court responsible for hearing review procedures, in an action brought by a tenderer, with the ultimate aim of obtaining damages, for a declaration that the decision to award a public contract is unlawful, from raising of its own motion the unlawfulness of a decision of the contracting authority other than the one contested by the tenderer. On the other hand, the directive does preclude the court from dismissing an application by a tenderer on the ground that, owing to the unlawfulness raised of its own motion, the award procedure was in any event unlawful and that the harm which the tenderer may have suffered would therefore have been caused even in the absence of the unlawfulness alleged by the tenderer.

see para. 56, operative part 1

2. Directive 93/36 coordinating procedures for the award of public supply contracts precludes the contracting authority, in a procedure to award a public supply contract, from taking account of the number of references relating to the products offered by the tenderers to other customers not as a criterion for establishing their suitability for carrying out the contract but as a criterion for awarding the contract.

The submission of a list of the principal deliveries effected in the past three years, stating the sums, dates and recipients, public or private, involved is expressly included among the references or evidence which, under Article 23(1)(a) of that directive, may be required to establish the suppliers' technical capacity. Furthermore, a simple list of references, which contains only the names and number of the suppliers' previous customers without other details relating to the deliveries effected to those customers, cannot provide any information to identify the offer which is the most economically advantageous within the meaning of Article 26(1)(b) of Directive 93/36, and therefore cannot in any event constitute an award criterion within the meaning of that provision.

see paras 65-67, operative part 2

3. Directive 93/36 coordinating procedures for the award of public supply contracts precludes, in a procedure to award a public supply contract, the requirement that the products which are the subject of the tenders be available for inspection by the contracting authority within a radius of a specific number of kilometres of the authority as a criterion for the award of the contract.

Firstly, it is apparent from Article 23(1)(d) of that directive that for public supply contracts the contracting authorities may require the submission of samples, descriptions and/or photographs of the products to be supplied as references or evidence of the suppliers' technical capacity to carry out the contract concerned. Secondly, such a criterion cannot serve to identify the most economically advantageous offer within the meaning of Article 26(1)(b) of that directive and therefore cannot, in any event, constitute an award criterion within the meaning of that provision.

see paras 71-72, 74, operative part 3