Case C-231/02: Reference for a preliminary ruling by the Bundesvergabeamt (Republic of Austria) by order of that Court of 14 May 2002 in the case of Neumayer Bau Ges.m.b.H against Abwasserverband Grossraum Bruck an der Leitha — Neusiedl/See
Date: 2002-09-14
Institutions: Court of Justice
Subjects: award of contract, damage, interpretation of the law, invitation to tender, supervisory power, supplies contract, works contract

14.9.2002

EN

Official Journal of the European Communities

C 219/3

In the event that the answer to Question 1 is no:

Question 2:

Question 2:

Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular
public contract if — in addition to its participating in the
public procurement procedure — it takes all steps available to
it under national
law to prevent the contract from being
awarded to another bidder?

Question 3:

in conjunction with Article 2(1)

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 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,
thereof, to be
interpreted as meaning that an undertaking must be afforded
the opportunity in law to seek review of an award procedure
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.

( 1) OJ L 395 [1989], p. 33.

In the event that the answer to Question 1 is no:

Is the abovementioned provision of
the Directive to be
construed in such a way that — where a bid was eliminated
otherwise than in accordance with the law but the review body
in the course of its review procedure assumes and establishes
as a preliminary matter that the bid had properly to be
eliminated — the tenderer of that bid is entitled to bring an
application in respect of an alleged infringement of the law —
in the present case the contracting authority’s decision to make
the award to another bidder — because owing to the
contracting authority’s defective award procedure the applicant
may in any event be presumed to have suffered loss and
errors in the award procedure can no longer be remedied
subsequently in the review procedure by substitution of
decisions of the contracting authority, and the review pro-
cedure must therefore be available to the applicant?

(1) OJ L 395 [1989], p. 33.

Reference for a preliminary ruling by the Bundesverga-
beamt (Republic of Austria) by order of that Court of
14 May 2002 in the case of Neumayer Bau Ges.m.b.H
against Abwasserverband Grossraum Bruck an der Leitha
— Neusiedl/See

Reference for a preliminary ruling by the korkein hallinto-
oikeus by order of that Court of 1st July 2002 in the
appeal brought by Kauppatalo Hansel Oy

(Case C-231/02)

(2002/C 219/05)

(Case C-244/02)

(2002/C 219/06)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Republic of Austria) of 14 May 2002, received at the Court
Registry on 20 June 2002, for a preliminary ruling in the
case of Neumayer Bau Ges.m.b.H against Abwasserverband
Grossraum Bruck an der Leitha — Neusiedl/See on the
following questions:

Question 1:

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 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 (1) to be broadly interpreted as meaning that under it
entitlement to apply for a review procedure must be available
to any person seeking to receive a specific public contract
whose award is pending, irrespective of whether such person
has suffered or may suffer loss as a result of the alleged
infringement of the law?

Reference has been made to the Court of
Justice of the
European Communities by order of the korkein hallinto-
oikeus (Supreme Administrative Court) of 1st
July 2002,
received at the Court Registry on 4 July 2002, for a preliminary
ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:

1.

Is Council Directive 93/36/EEC (1) of 14 June 1993
coordinating procedures for the award of public supply
contracts to be interpreted as meaning that a contracting
authority which has commenced a tender procedure on
the lowest price may discontinue the
the basis of
procedure without awarding a contract when it discovers
after examining and comparing the tenders that because
of the content of the invitation to tender it is not possible
for it to award a contract on the basis of the invitation to
tender in question in the most advantageous way from
the point of view of total costs?