Order of the President of the Fourth Chamber of the General Court of 11 November 2016 — Solelec and Others v Parliament

(Case T‑281/16 R)

(Interim measures — 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 bid submitted by a tenderer and decision to award the contract to another tenderer — Application for suspension of operation of a measure — Lack of urgency)

1. Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Prima facie case—Urgency—Serious and irreparable damage—Cumulative nature—Order of examination and method of verification—Discretion of the court hearing the application for interim relief (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(3)) (see paras 13-15)

2. Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Serious and irreparable damage—Financial loss—Loss capable of being subsequently remedied by means of an action for compensation—Damage which cannot be regarded as irreparable (Arts 268 TFEU, 278 TFEU, 279 TFEU and 340 TFEU; Rules of Procedure of the General Court, Art. 156(3)) (see para. 25)

3. Application for interim measures—Suspension of operation of a measure—Conditions for granting—Urgency—Assessment in public procurement litigation—Serious damage—Sufficient in the case of a particularly serious prima facie case constituted by an obvious and serious illegality—Condition—Application for interim measures brought in the standstill period before conclusion of the contract with the successful tenderer (Art. 278 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 966/2012, Art. 118(2) and (3); Commission Regulation No 1268/2012, Art. 171(1)) (see paras 28, 29, 32, 33)

4. 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)) (see para. 37)

5. European Union public contracts—Conclusion of a contract following a call for tenders—Discretion of the institutions—Judicial review—Limits (see paras 50, 97)

6. Application for interim measures—Suspension of operation of a measure—Conditions for granting—Prima facie case—Prima facie examination of the pleas in law put forward in support of the main action—Action against a decision of an institution to reject a tender in the context of a public contract—Plea based on disregard of the selection criteria—Verification by the court of compliance with those criteria by the awarding authority—Ambit of the review (Art. 278 TFEU) (see paras 65, 69)

7. 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—No possibility of amending the terms of the tender of the said tenderer (European Parliament and Council Regulation No 966/2012, Art. 96(2); Commission Regulation No 1268/2012, Arts 158(3), and 160(3)) (see paras 82-84)

8. 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 (Commission Regulation No 1268/2012, Art. 151(1)) (see paras 123-125)

Re:

ACTION on the basis of Articles 278 TFEU and 279 TFEU seeking suspension of the operation, first, of the decision of the Parliament of 27 May 2016 to reject the tender submitted by the applicants for lot No 75 in connection with a call for tenders with reference INLO-D-UPIL-T‑15-AO6, concerning the project for the extension and refurbishment of the Konrad Adenauer building in Luxembourg and, secondly, of the decision awarding that lot to another tenderer.

Operative part

1. The application for interim measures is dismissed.

2. The order of 9 June 2016 delivered in Case T‑281/16 R is set aside.