A COMPETING TENDERER .
52 ON THE OTHER HAND , IT MUST BE ACKNOWLEDGED THAT THE APPLICANTS HAVE A LEGITIMATE INTEREST IN SEEKING THE ADOPTION OF AN INTERIM MEASURE AS SOON AS POSSIBLE , IN ORDER TO PREVENT - SHOULD THE PROCEDURE FOR THE AWARD OF THE CONTRACT BE FOUND TO BE IRREGULAR - A CONTRACT FROM BEING CONCLUDED AND , SHOULD IT BE CONCLUDED , ITS PERFORMANCE FROM REACHING A STAGE AT WHICH AN IRREVERSIBLE DE FACTO SITUATION WOULD BE CREATED . IN THAT SENSE THE REQUIREMENT OF URGENCY LAID DOWN BY ARTICLE 83 OF THE RULES OF PROCEDURE MUST BE RECOGNIZED AS BEING SATISFIED .
THE NATURE OF A POSSIBLE INTERIM MEASURE AND THE GROUNDS ESTABLISHING A CASE FOR ITS ADOPTION
53 FOR THE REASONS STATED ABOVE , THE COURT HAS NO POWER TO INTERVENE IN THE CONCLUSION AND PERFORMANCE OF A CONTRACT CONCLUDED BETWEEN THE TENDERER AND AN AUTHORITY OF A NON-MEMBER COUNTRY . ON THE OTHER HAND , THERE DOES NOT SEEM TO BE ANY REASON PRECLUDING THE COURT FROM ISSUING , ON A PROVISIONAL BASIS , APPROPRIATE INJUNCTIONS TO THE COMMISSION EITHER IN ORDER TO PREVENT THE CONCLUSION OF A CONTRACT AS A RESULT OF A TENDER WHICH APPEARS TO BE CONTRARY TO THE RULES OF THE CONVENTION , OR TO OTHER RELEVANT RULES , OR IN ORDER TO PROHIBIT THE COMMISSION FROM ALLOCATING FUNDS FOR THE PERFORMANCE OF SUCH A CONTRACT IF IT HAS ALREADY BEEN CONCLUDED .
54 THE QUESTION ARISES WHETHER THE APPLICANTS HAVE BEEN ABLE TO MAKE OUT A PRIMA FACIE CASE FOR THE EXISTENCE OF CIRCUMSTANCES WHICH COULD JUSTIFY SUCH A MEASURE .
55 THE FACTS WHICH THE APPLICANTS HAVE ALLEGED AND WHICH THE COMMISSION HAS BEEN UNABLE TO CONTEST DO INDEED RAISE SERIOUS DOUBTS CONCERNING THE REGULARITY OF THE PROCEDURE FOLLOWED FOR THE AWARD OF THE CONTRACT . AS HAS ALREADY BEEN MENTIONED , THE APPLICANTS HAD BEEN SUMMONED BY THE COMPETENT NATIONAL AUTHORITY IN CIRCUMSTANCES WHICH AFFORDED GROUNDS FOR BELIEVING THAT THE CONTRACT WOULD BE SIGNED UPON THE CONCLUSION OF A FINAL ROUND OF NEGOTIATIONS . IT APPEARS FROM THE COMMUNICATIONS OF THE EMPLOYER , ENDORSING THE FINDINGS OF THE TENDER COMMITTEE AND THE CONSULTANT ENGINEER , THAT THE LOWEST TENDERER WAS NOT REGARDED AS TECHNICALLY AND FINANCIALLY QUALIFIED AND FOR THAT REASON IT HAD ORIGINALLY BEEN INTENDED TO AWARD THE CONTRACT TO THE APPLICANTS . IT ALSO APPEARS THAT THAT SITUATION WAS CHANGED NOT AS A RESULT OF A DECISION OF THE EMPLOYER BUT AT THE REQUEST OF THE COMMISSION .
56 WHEN THE COMMISSION WAS QUESTIONED ON THIS MATTER , IT STATED THAT FOLLOWING INVESTIGATIONS WHICH ARE NORMAL IN PUBLIC TENDER PROCEDURES IT BECAME APPARENT THAT THE LOWEST TENDERER , RUSH AND TOMPKINS BV , WHICH IS A MEMBER OF THE BRITISH RUSH AND TOMPKINS GROUP , WHOSE TECHNICAL AND FINANCIAL QUALIFICATIONS ARE UNDENIABLE , HAD THE BACKING OF THAT GROUP AND THAT THE GROUP UNDERTOOK TO GUARANTEE , FOR THE BENEFIT OF ITS NETHERLANDS SUBSIDIARY