CELEX: C2002/219/05
Language: en
Date: 2002-09-14 00:00:00
Title: 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

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:
                                                                        In the event that the answer to Question 1 is no:
Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular         Is the abovementioned provision of the Directive to be
public contract if — in addition to its participating in the            construed in such a way that — where a bid was eliminated
public procurement procedure — it takes all steps available to          otherwise than in accordance with the law but the review body
it under national law to prevent the contract from being                in the course of its review procedure assumes and establishes
awarded to another bidder?                                              as a preliminary matter that the bid had properly to be
                                                                        eliminated — the tenderer of that bid is entitled to bring an
Question 3:                                                             application in respect of an alleged infringement of the law —
                                                                        in the present case the contracting authority’s decision to make
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-            the award to another bidder — because owing to the
ber 1989 on the coordination of the laws, regulations and               contracting authority’s defective award procedure the applicant
administrative provisions relating to the application of review         may in any event be presumed to have suffered loss and
procedures to the award of public supply and public works               errors in the award procedure can no longer be remedied
contracts, in conjunction with Article 2(1) thereof, to be              subsequently in the review procedure by substitution of
interpreted as meaning that an undertaking must be afforded             decisions of the contracting authority, and the review pro-
the opportunity in law to seek review of an award procedure             cedure must therefore be available to the applicant?
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.
( 1) OJ L 395 [1989], p. 33.
Reference for a preliminary ruling by the Bundesverga-                  Reference for a preliminary ruling by the korkein hallinto-
beamt (Republic of Austria) by order of that Court of                   oikeus by order of that Court of 1st July 2002 in the
14 May 2002 in the case of Neumayer Bau Ges.m.b.H                                  appeal brought by Kauppatalo Hansel Oy
against Abwasserverband Grossraum Bruck an der Leitha
                          — Neusiedl/See
                                                                                                  (Case C-244/02)
                          (Case C-231/02)
                          (2002/C 219/05)                                                         (2002/C 219/06)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   Reference has been made to the Court of Justice of the
(Republic of Austria) of 14 May 2002, received at the Court             European Communities by order of the korkein hallinto-
Registry on 20 June 2002, for a preliminary ruling in the               oikeus (Supreme Administrative Court) of 1st July 2002,
case of Neumayer Bau Ges.m.b.H against Abwasserverband                  received at the Court Registry on 4 July 2002, for a preliminary
Grossraum Bruck an der Leitha — Neusiedl/See on the                     ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:                                                    following questions:
Question 1:
                                                                        1.    Is Council Directive 93/36/EEC (1) of 14 June 1993
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-                  coordinating procedures for the award of public supply
ber 1989 on the coordination of the laws, regulations and                     contracts to be interpreted as meaning that a contracting
administrative provisions relating to the application of review               authority which has commenced a tender procedure on
procedures to the award of public supply and public works                     the basis of the lowest price may discontinue the
contracts ( 1) to be broadly interpreted as meaning that under it             procedure without awarding a contract when it discovers
entitlement to apply for a review procedure must be available                 after examining and comparing the tenders that because
to any person seeking to receive a specific public contract                   of the content of the invitation to tender it is not possible
whose award is pending, irrespective of whether such person                   for it to award a contract on the basis of the invitation to
has suffered or may suffer loss as a result of the alleged                    tender in question in the most advantageous way from
infringement of the law?                                                      the point of view of total costs?