CELEX: 62001CC0421
Language: en
Date: 2003-04-10 00:00:00
Title: Opinion of Mr Advocate General Alber delivered on 10 April 2003. # Traunfellner GmbH v Österreichische Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag). # Reference for a preliminary ruling: Bundesvergabeamt - Austria. # Directive 93/37/EEC - Public works contracts - Concept of a variant - Conditions for consideration and assessment for the purpose of awarding a contract. # Case C-421/01.

OPINION OF ADVOCATE GENERALALBER delivered on 10 April 2003  (1)
         Case C-421/01 Traunfellner GmbHvÖsterreichische Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag)(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))
            ((Directive 93/37/EEC – Public works contracts – Article 19 – Variants – Minimum conditions – Obligation to publish in the tender document))
            
      
         
        I ─ Introduction
      
      1.  The reference for a preliminary ruling from the Bundesvergabeamt (Federal Procurement Office, Austria) concerns the treatment
      of variants in a procedure for the award of public works contracts. One tenderer which was unsuccessful in its bid for the
      road construction contract concerned had submitted a tender proposing a lower-priced ─ but, in its view, equivalent ─ asphalt
      design instead of the concrete surface dressing stipulated in the tender document. This action concerns, on the one hand,
      the conditions governing the submission and subsequent assessment of variants (Questions 1 to 3) and, on the other hand, the
      potential repercussions of any improper treatment of variants, as the case may be, on a tendering procedure.
       II ─ Relevant legislation
      A ─
       Community law: Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public
         works contracts   
         			(2)
         		 (hereinafter:  
         Directive 93/37/EEC) 
      2.  Article 19 Where the criterion for the award of the contract is that of the most economically advantageous tender, contracting authorities
      may take account of variants which are submitted by a tenderer and meet the minimum specifications required by the contracting
      authorities.The contracting authorities shall state in the contract documents the minimum specifications to be respected by the variants
      and any specific requirements for their presentation. They shall indicate in the tender notice if variants are not permitted....
      
      3.  Article 30 
      1.  The criteria on which the contracting authorities shall base the award of contracts shall be:
      (a) either the lowest price only; 
      
      (b) or, when the award is made to the most economically advantageous tender, various criteria according to the contract: e.g.
      price, period for completion, running costs, profitability, technical merit. 
      
      
      2.  In the case referred to in paragraph 1(b), the contracting authority shall state in the contract documents or in the contract
      notice all the criteria it intends to apply to the award, where possible in descending order of importance....
      B ─
       National law: the Bundesgesetz über die Vergabe von Aufträgen or Bundesvergabegesetz 1997 (Federal Procurement Law 1997; hereinafter:
          
         BVergG) 
         			(3)
         		
      4.  Paragraph 42 
      1.  In procedures other than the negotiated procedure, tenderers must ensure that their tenders meet the requirements of the tender
      notice. The wording prescribed by the contract documents may not be amended or supplemented....
      
      4.  An alternative tender [or  
      variant, to adopt the terminology used in Directive 93/37/EEC  
      
         			(4)
         		] is admissible only if it ensures the performance of qualitatively equivalent work. It shall be for the tenderer to prove
      equivalence. An alternative tender may relate to the work as a whole, to parts of the work or to the legal conditions underlying
      the performance of the work. Alternative tenders shall be designated as such and shall be submitted separately....
      
      
      5.  Paragraph 117 
      1.  The Bundesvergabeamt must declare void, by a decision adopted following the recommendation of the conciliation chamber in
      the case, any decision adopted by a contracting authority in the course of an award procedure which:
      1.  is contrary to the provisions of this federal law or its implementing regulations, and 
      
      2.  has a substantial bearing on the outcome of the award procedure. 
      ...
      
      3.  Following the award of the contract, the Bundesvergabeamt shall simply establish, in accordance with the requirements of paragraph
      1 hereof, whether or not the law has been infringed as claimed.
      
       III ─ Facts
      
      6.  Acting for and on behalf of the Autobahnen- und Schnellstraßen Finanzierungs-AG (Austrian Motorway and Expressway Financing
      Company; hereinafter:  
      Asfinag), the  
       Land  Government of Lower Austria launched an open procedure throughout the Community on 27 November 1997 inviting tenders for
      the repair of the section  
      between the 100.2 km and 108.6 km points of the carriageway from Neumarkt to Vienna. The contract concerned bridge and road construction works. 
      
      7.  With regard to resurfacing outside the motorway bridge areas, the tender document stated under the heading  
      Official Design that a dual-layer concrete overlay of surface quality should be laid but did not describe those features as minimum requirements.
      Nor did the tender document contain any explicit statements regarding minimum technical specifications that would have to
      be met by variants that might be submitted. The tender document stated that variants were admissible. However, any variants
      submitted had to be accompanied by a comprehensive list of works as required by the tender document (main tender). No contract
      award criteria for assessing the economic and technical quality of tenders (whether tenders conforming to the tender document
      or variants) were laid down. Nor did the tender document stipulate that variants had to ensure the performance of work equivalent
      to that defined in the official design (nor was any reference made to Paragraph 42 of the BVergG which lays down that requirement),
      and there was no explanation of what was meant by  
      performance of equivalent work either.
      
      8.  Traunfellner, the plaintiff in the main proceedings, submitted both a tender conforming to the tender document and a variant.
      Its variant was the cheapest of all the tenders submitted but, of all the tenders conforming to the tender document, its own
      tender came second behind that submitted by the Ilbau ─ LSH Fischer ─ Heilit & Woerner consortium, to which the contract was
      awarded.
      
      9.  In its variant, Traunfellner proposed substituting an asphalt overlay made from bitumen material for the concrete surface
      dressing. Technical clarification was provided in the form of an expert opinion which stated that under the conditions assumed
      for the section of carriageway concerned, the asphalt design would provide adequate resistance to deformation for a period
      of 20 years.
      
      10.  The technical test report commissioned by the  
       Land  government stated that, while a study on the possibility of substituting asphalt designs had been compiled in 1989, earlier
      contracts had shown that, despite careful execution of an asphalt design of this kind in compliance with the contract, grooves
      of considerable depth had appeared after only a short time and additional repair work had been necessary. It also pointed
      out that ensuring that the work would be performed in accordance with the official requirements if Traunfellner's variant
      was accepted would necessitate additional work at a cost of some ATS 2.5 million, thus reducing the price advantage to ATS
      6.9 million. The report went on to explain that if the overlay was made of concrete, the new technologies were such that the
      road surface could be expected to resist deformation for at least 30 years. The concrete surface specified in the official
      design would, therefore, have a 50% longer life and cost only 8.5% more. Moreover, the objective of using existing old concrete
      to obtain a high-quality aggregate for the new concrete overlay (recycling) was not taken into account in the variant since
      only some of the existing crushed concrete would be used on site for secondary filling-in purposes. Much of the existing concrete
      surface would be put to an otherwise unspecified use off site. Preference was therefore to be given to the general repair
      of the carriageway in concrete, in accordance with the official tender document, at least in view of the lifetime and resistance
      to deformation of concrete. These two factors would, after all, reduce the subsequent need for maintenance, which in turn
      would result in less disruption to traffic and was therefore in keeping with the objective of minimising adverse effects on
      ease of movement, road safety and traffic flows. Accordingly, the variant should not be regarded as meeting the requirements
      of the official design and should therefore be disqualified. On the basis of that test report, the award commission decided
      on 17 March 1998 to propose that the contract be awarded to the Ilbau ─ LSH Fischer ─ Heilit & Woerner consortium.
      
      11.  Traunfellner requested that the referring Bundesvergabeamt annul the decision to disqualify its variant. The request was rejected
      on 21 April 1998 on the ground that the technical equivalence of the variant was not pertinent. It differed from the prescriptions
      of the tender document to such an extent that it was no longer an admissible variant. Even if it had been admissible, the
      referring court explained that it would not have been technically equivalent, as the contracting authority had the right to
      choose from among different technical systems.
      
      12.  Following that decision, the contract was awarded to the cheapest tender conforming to the tender document. The works have
      since been carried out.
      
      13.  Adjudicating on an appeal lodged by Traunfellner, the Verfassungsgerichtshof (Austrian Constitutional Court) overruled the
      decision of the Bundesvergabeamt of 21 April 1998 for failure to fulfil the obligation to state reasons. Under Austrian law,
      once the Verfassungsgerichtshof has annulled an administrative act (in this case, after the referring court's decision of
      21 April 1998 had been overruled), the matter at issue is restored to the state it was in prior to the contested decision.
      The referring court is now required to give a fresh ruling on Traunfellner's request of 17 April 1998 for the annulment of
      the decision to disqualify the variant. However, as the award has since been granted, it merely remains for the court to determine
      in accordance with Paragraph 117(3) of the BVergG whether the decision to disqualify was lawful.
       IV ─ The questions referred for a preliminary ruling
      
      14.  The Bundesvergabeamt seeks to determine the circumstances in which a  
      variant within the meaning of Article 19 of Directive 93/37/EEC arises, whether the  
      equivalence criterion, used to assess variants, must be indicated in the tender documents and how a contracting authority should conduct
      itself where it subsequently transpires that its invitation to tender is defective. It has therefore referred the following
      questions to the Court of Justice for a preliminary ruling: Question 1: Is an alternative tender that consists in proposing an asphalt surface instead of overlaying the carriageway with
      concrete as specified in the tender notice a  
      variant within the meaning of the first paragraph of Article 19 of Directive 93/37/EEC?Question 2: Can a criterion established in national legislation to determine the admissibility of the acceptance of a  
      variant within the meaning of the first paragraph of Article 19 of Directive 93/37/EEC, whereby  
      the performance of qualitatively equivalent work is ensured by the variant, properly be regarded as a  
      minimum specification required and stated by the contracting authority in accordance with the first and second paragraphs of Article 19 of Directive
      93/37/EEC, if the contract documents refer only to the national provision and do not specify the comparative parameters to
      be used to assess  
      equivalence? Question 3: Do Article 30(1) and (2) of Directive 93/37/EEC in conjunction with the principles of transparency and equal treatment
      prohibit a contracting authority from making the acceptance of an alternative tender, which differs from a tender conforming
      to the tender document in that it proposes a different technical quality, conditional on a positive assessment based on a
      criterion in national legislation requiring that  
      the performance of qualitatively equivalent work is ensured if the contract documents refer only to the national provision and does not specify the comparative parameters to be used
      to assess  
      equivalence?Question 4a: If the answer to Question 3 is in the affirmative, may a contracting authority conclude a tendering procedure
      like that described in Question 3 by awarding the contract?Question 4b: If the answers to Questions 3 and 4a are in the affirmative, must a contracting authority conducting a tendering
      procedure as described in Question 3 reject variants proposed by tenderers without examining their contents, at any rate if
      it has not defined contract award criteria for assessing the technical differences between the variant and the tender notice?Question 5: If the answers to Questions 3 and 4a are in the affirmative and the answer to Question 4b is in the negative,
      must a contracting authority conducting a tendering procedure as described in Question 3 accept a variant whose technical
      differences from the tender document it is unable to assess on the basis of contract award criteria owing to the absence of
      appropriate statements in the tender document if this variant is the lowest tender and contract award criteria have not otherwise
      been defined?
      
      15.  In support of its reference for a preliminary ruling the Bundesvergabeamt explains that the first question is designed to
      ascertain whether a tender proposing an asphalt road surface dressing instead of the concrete dressing specified in the tender
      document is a variant for the purposes of the first paragraph of Article 19 of Directive 93/37/EEC and whether the provisions
      of the directive which apply to variants can therefore be applied to the tender at issue.
      
      16.  It explains with regard to the second question that under Paragraph 42(4) of the BVergG the admissibility of accepting a variant
      depends on whether the performance of qualitatively equivalent work is ensured. It adds that assessing  
      equivalence plays an important role in the award of contracts.  In this case too, the contracting authority examined the variant for
      equivalence and concluded that it had none. However, the criteria applied by the contracting authority were not defined in
      the tender document or in the tender notice, as is standard practice for the contracting authorities in Austria.
      
      17.  The Bundesvergabeamt considers such an approach to be inconsistent with Article 30 of Directive 93/37/EEC and with the principles
      of transparency and equal treatment. Such inconsistency could be avoided only if the requirement applicable to variants that
      the performance of the work must be equivalent was regarded as a  
      minimum specification for the purposes of the second paragraph of Article 19 of the directive. In that case, there would no longer be any need
      to mention the specific comparative parameters as contract award criteria. In its view, such an interpretation runs counter
      to the principles of the directive. The second paragraph of Article 19 of the directive clearly requires contracting authorities
      to state the minimum specifications in the contract documents. Merely applying a provision of national legislation which lays
      down the equivalence criterion could not be regarded as a specification required by the contracting authority in the contract
      document.
      
      18.  In addition, a mere reference to equivalence that was not further defined did not satisfy the requirements for transparency,
      nor was it compatible with the meaning of the word  
      state [German:  
      erläutern]. This word meant to explain and describe in greater detail, something which the contracting authority did not do.
      
      19.  The Bundesvergabeamt states with regard to the third question referred that the directive leaves contracting authorities a
      choice between only the lowest-price criterion and the system of awarding the contract to the most economically advantageous
      tender. In the former case, variants are precluded from the outset under the first paragraph of Article 19 of the directive.
      In the latter case, contracting authorities are required under Article 30(2) of the directive to indicate in the tender notice
      or contract documents the criteria established for assessing the tenders.
      
      20.  That comparison demonstrates that where different qualities may be proposed, they must be examined on the basis of the contract
      award criteria defined by the contracting authority. However, if the contracting authority has not defined any contract award
      criteria, it seems perfectly clear to the Bundesvergabeamt that variants must not be assessed or indeed accepted. The approach
      adopted by the contracting authorities in Austria is, in this respect, inconsistent with the scheme of the directive.
      
      21.  The Bundesvergabeamt also considers such an approach to be contrary to the principle of transparency. If, for the purpose
      of examining variants, a contracting authority had recourse to the  
      equivalence of the performance of the work which it had not previously defined by indicating specific comparative parameters, it would be taking into account criteria
      which it had not published in advance. That is, in its view, incompatible with the consistent case-law of the Court of Justice
       
      
         			(5)
         		 and makes it impossible for tenderers to judge in advance, on the basis of published criteria, whether the anticipated contract
      or the preparation of variants is of interest to them.  
      
         			(6)
         		 It adds that, in practice, the use of the indeterminate term  
      equivalence, which the contracting authority only defines subsequently when it is assessing variants, leads to considerable uncertainty
      and protracted legal disputes. The contracting authority finds itself in dispute either with tenderers which have submitted
      variants that it does not regard as equivalent to its own requirements or with tenderers which have not proposed variants
      and question the equivalence of variants that the contracting authority intends to accept. Tenderers can only guess beforehand
      what the contracting authority will regard as equivalent. This results in considerable uncertainty among tenderers which prepare
      speculative variants, as it were, as well as among tenderers which do not propose variants but have to expect that their tenders
      will be beaten by a variant which the contracting authority considers to be equivalent after all the tenders have been opened.
      
      22.  In effect, the approach adopted leads to the introduction of a third, unlawful  
      mixed system operating between the award of contracts on the basis of price alone and their award on the basis of the most economically
      advantageous tender. This system is, according to the Bundesvergabeamt, inconsistent with the case-law of the Court.  
      
         			(7)
         		 Furthermore, the application of a criterion which depends on a mere reference to national legislation is unlawful.  
      
         			(8)
         		
      23.  By Questions 4 and 5 the Bundesvergabeamt seeks ultimately to ascertain the manner in which a contracting authority must proceed
      where it is established in the course of a procedure for the award of a contract that the award procedure adopted in Austria
      is unlawful. One possible course of action would be to decide against awarding the contract and to revoke the invitation to
      tender. That option is supported by the fact that the tendering procedure was initiated under conditions which have proved
      unlawful and must consequently cease to be applied. However, a second possible course of action would be to continue with
      the tendering procedure. It is however essential in this regard to bear in mind that the tendering procedure would have to
      be completed under restrictions which had not been notified previously to the tenderers. The tenderers had submitted variants
      on the assumption that it was permissible to propose variants that would be examined by the contracting authority for  
      equivalence, a criterion which was not defined further. If it is not possible to apply the equivalence criterion as permitted by the
      national legal order, then essential conditions governing the preparation of tenders are altered  
       ex post facto . Such a departure from the conditions forming the basis of the tender document might be regarded as an infringement of the
      principle of equal treatment.  
      
         			(9)
         		
      24.  A decision not to award the contract and to initiate a fresh tendering procedure may well be, therefore, the only proper alternative.
      In such circumstances, the decision actually taken by the contracting authority to reject the variant proposed by the plaintiff
      in the absence of equivalence and to award the contract to another tenderer would certainly be unlawful. On the other hand,
      to decide not to award the contract at all and to require the contracting authority to proceed with a fresh invitation to
      tender might be regarded as too extreme a consequence of an infringement of some provisions of Community law, especially as
      the Community requirements in question may also be met simply by refraining from the application, contrary to Community law,
      of an otherwise undefined  
      equivalence criterion.
      
      25.  If, on the other hand, the tendering procedure is to be concluded, it is then necessary to determine the arrangements for
      the award of the contract. The referring court takes the view that there are two options to consider here; under the first,
      the contracting authority rejects the variant and awards the contract on the basis of lowest price or most economically advantageous
      tender, the only criteria that may be applied being those required by the contracting authority. That option would meet the
      objectives of the directive since, under the system referred to in Article 30 of the directive, the different qualities that
      may be offered were to be assessed precisely on the basis of contract award criteria. The fact that differences in quality
      cannot be assessed on the basis of those criteria make it impossible to compare the tender with those submitted by competitors.
      Where a comparison of this kind is impossible, however, the tender concerned would have to be disqualified in accordance with
      the principles of equal treatment.
      
      26.  It would also be possible, however, to require the contracting authority to accept the variant and to ignore the associated
      qualitative differences. However, it would not be advisable to adopt that approach as the contracting authority would then
      have to accept a tender which did not meet the qualitative requirements it had itself specified, the contracting authority
      having had no possibility of assessing the qualitative differences against some kind of yardstick. That would be contrary
      to the purpose of the directive, as defined by the Court, since the contracting authority would not be able in that case to
      compare tenders or to choose the tender which it considered the most advantageous on the basis of objective criteria. 
      
         			(10)
         		 V ─ Arguments of the parties and assessment
      
      
      
      A ─
       Admissibility
      
      27.  In its written observations the Commission disputes the admissibility of the reference for a preliminary ruling. It refers
      to the arguments it put forward in Case C-314/01, in which it called into question the capacity of the Bundesvergabeamt as
      a court or tribunal within the meaning of Article 234 EC on the ground that its decisions are non-binding. However, it retracted
      that objection at the hearing in view of the judgment which has since been delivered in the  
       Swoboda   case.  
      
         			(11)
         		 The reference for a preliminary ruling is admissible.
      
      
      
      B ─
       The first question referred for a preliminary ruling
       1. Arguments of the parties
      
      28.  Traunfellner, Asfinag, the Austrian and French Governments all take the view that the offering of an asphalt dressing as opposed
      to the concrete dressing specified in the tender document is a variant within the meaning of Article 19 of Directive 93/37.
      
      29.  Traunfellner considers that a variant comes into play where the tender proposed relates to a new execution method, a different
      design, different material or other alternatives which ensure that the work is performed on a more practical or cheaper basis.
      Asphalt, it argues, is a technical alternative to concrete. Assessment should therefore be aimed at the technical equivalence
      of the tender, the load-bearing capacity, the transverse flatness and the non-skid quality.
      
      30.  Asfinag keeps to a more general approach in its observations, taking the view that a variant comes into play where parts of
      the work specified in the tender document are substituted in a tender.
      
      31.  The Austrian Government points to the drafting history of the provision. In its proposed amendment to Council Directive 71/305/EEC
      of 26 July 1971 concerning the coordination of procedures for the award of public works contracts the Commission had stated
      that only an amendment to the design plan or to the prescribed construction materials might be proposed.  
      
         			(12)
         		
      32.  The French Government considers that the concept of a variant should be given a broad interpretation. In the tender document,
      which forms the basis of the main proceedings, concrete had not been defined as an absolutely necessary technical specification.
      Accordingly, asphalt was to be regarded as a variant.
      
      33.  The Commission points out that the question referred to the Court involves a point of fact that is essentially inadmissible.
      It may be answered only after it has been reworded. In its view, the question has to be construed as seeking to ascertain
      the conditions under which an alternative tender proposal can be regarded as a variant. It answers the question reworded in
      that manner by explaining that a procedure must be in place where the contract is awarded on the basis of the most economically
      advantageous tender, where variants may not be precluded and the proposed tender must meet the minimum specifications stated.
       2. Assessment
      
      34.  By the first question the Bundesvergabeamt is seeking to ascertain whether the tender proposing the overlaying of an asphalt
      surface dressing constitutes a variant to overlaying with concrete as stipulated in the tender document.
      
      35.  This question involves including a specific point of fact under the Community concept of the  
      variant within the meaning of Article 19 of Directive 93/37/EEC. Under the division of functions provided for by Article 234 EC,
      however, it is for the national court to apply the rules of Community law to an individual case. No such application is possible
      without a comprehensive appraisal of the facts of the case.  
      
         			(13)
         		 Consequently, the first question as it is currently worded is inadmissible.
      
      36.  The Court of Justice may, however, supply the referring court with an interpretation of Community law that will enable that
      court to resolve the legal problem before it.  
      
         			(14)
         		 Alternatively, should the Court decide to reword the first question, the following observations should therefore be made.
      
      37.  In the light of the Verfassungsgerichtshof's annulment of the first decision issued by the referring court on 21 April 1998
      in this case, the first question must be understood as seeking to determine where the boundaries lie for the acceptance of
      a  
      variant within the meaning of Article 19 of the Directive. When can one still speak of  
      variants, and from what point does the work proposed differ from the work specified in the tender document to such an extent that
      the proposed amendment becomes inadmissible?
      
      38.  Although, reworded in this way, Question 1 becomes a point of law which the Court of Justice can in principle answer, it must
      be borne in mind that the proceedings before the Bundesvergabeamt relate to the award stage, not to the stage at which variants
      are assessed for their admissibility. According to the account in the order for reference, the contracting authority disqualified
      the variant at issue on the ground that it was not equivalent, not on the ground of its inadmissibility. Strictly speaking,
      the answer to Question 1 is consequently irrelevant to the dispute in the main proceedings and could therefore be regarded
      as a hypothetical question, which is inadmissible under consistent case-law.  
      
         			(15)
         		 The same argument applies to Question 2.
      
      39.  The first two questions make sense only if there is support for the Bundesvergabeamt's argument that appeals against decisions
      adopted by a contracting authority are inadmissible where the tendering procedure already involves an error in law at an earlier
      stage (in this case, the indication of minimum specifications in the tender document and the assessment of the admissibility
      of variants) but against which error there has been no objection (in this case, legal proceedings were not instituted until
      the contract had been awarded). The extent to which this view of the law is compatible with Community law, in particular with
      Council Directive 89/665/EEC of 21 December 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,  
      
         			(16)
         		 is the subject-matter of the proceedings in Case C-315/01  
       Gesellschaft für Abfallentsorgungs-Technik  (GAT) . In his Opinion of 10 October 2002, Advocate General Geelhoed considered that approach to be incompatible with the review
      directive.  
      
         			(17)
         		 A judgment has not so far been delivered in that case. The question must remain unanswered in this case as it has not been
      discussed in the proceedings.
      
      40.  It is therefore necessary to point out in the alternative that variants under the first paragraph of Article 19 of Directive
      93/37/EEC are inadmissible where they fail to satisfy the minimum specifications defined by the contracting authority. The
      point at which a variant comes into play therefore depends on the minimum specifications which are defined in the individual
      case by the contracting authority and which must be indicated in the tender document.
      
      41.  The parties' observations on the first question support the argument that everything turns on the circumstances of the individual
      case. The Commission points above all to procedural considerations, such as the award of contracts on the basis of the most
      economically advantageous tender and the absence of a measure excluding variants. However, it additionally focuses on compliance
      with the stated minimum specifications. The other parties mention specific aspects of the work specified in the tender document,
      such as new (construction) execution methods or new materials.
      
      42.  Article 19 of the directive stems from a Commission initiative. Its proposal for a directive amending Directive 71/305/EEC
      provided that variants may involve a fundamental alteration to the design plan or to the required building materials, or an
      alteration to working methods or to the anticipated working techniques.  
      
         			(18)
         		 Operators had to be afforded the possibility of proposing more advanced technical solutions.  
      
         			(19)
         		 The Commission subsequently broadened the scope of that proposal during the legislative procedure so that a  
      variant had only to meet the minimum specifications required by the contracting authority.  
      
         			(20)
         		 That amendment then became Article 20a of Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC concerning
      coordination of procedures for the award of public works contracts.  
      
         			(21)
         		 It has the same wording as Article 19 of Directive 93/37/EEC. It is apparent from the legislative history that a variant
      can, in principle, relate to any part of the tender document. The aim of the provision in question, even as it currently stands,
      is to stimulate technical progress in the construction industry. It is drafted in a deliberately open manner and leaves it
      to the discretion of the contracting authorities to decide whether they wish to authorise or prohibit variants and to establish
      what type of variants they are prepared to consider.  
      
         			(22)
         		 The sole requirement imposed by Article 19 is that of the admissibility barrier governing the equivalence of the work proposed
      in the variant with the work specified in the tender document. Equivalence must be examined by reference to the minimum specifications
      that the contracting authority is required to impose.
      
      43.  It is clear from the foregoing considerations that assessing whether a variant does indeed come into play or whether the tender
      proposed must be disqualified on grounds of its inadmissibility is ultimately a matter for the contracting authority alone.
      Judicial review must be confined to examining whether the procedural requirements laid down in Directive 93/37/EEC and the
      minimum specifications defined by the contracting authority have been met and whether or not the contracting authority has
      blatantly exceeded the margin of discretion it enjoys in assessing the tenders, for example by entertaining unrelated considerations
      in examining equivalence. The factual assessment of whether the work proposed is consistent with the work specified in the
      tender document falls to the contracting authority, the only entity capable ─ on account of its competence in the matter ─
      of assessing the equivalence of the work proposed with the work specified in the tender document.
      
      44.  I accordingly propose in the alternative that the answer to the first question referred should be that, in the context of
      an award decision on the basis of the most economically advantageous tender in an open procedure, a variant within the meaning
      of Article 19 of Directive 93/37/EEC comes into play where the submission of variants is permitted and where the relevant
      proposal replaces part of the work specified in the tender document yet at the same time meets the required minimum specifications.
      
      
      
      C ─
       The second and third questions
      
      45.  Asfinag, the Austrian and French Governments all deal with Questions 2 and 3 jointly. The two questions essentially concern
      the obligation to publish the assessment criteria applied by the contracting authority. I will adopt the same approach in
      this respect.
       1. Arguments of the parties
      
      46.  Traunfellner's view is that ─ in so far as the tender document does not indicate any minimum specifications ─ the equivalence
      condition laid down in Paragraph 42(4) of the BVergG must be regarded as a minimum specification for the purposes of Article
      19 of the directive. The purpose of the work to be performed, which is specified in the tender document and thus known by
      all tenderers, constitutes the central connecting factor for examining equivalence.
      
      47.  Even where the tender document does not mention any criteria, it argues, variants have to be assessed. In such circumstances,
      the contracting authority simply seeks to ensure the performance of qualitatively equivalent work.
      
      48.  Asfinag and the Austrian Government highlight the difficulty in practice of imposing minimum specifications. Asfinag maintains
      that works contracts in particular are composed of a large number of elements. The contracting authority could not identify
      in advance the elements for which variants would be submitted. It was not necessary, however, to indicate specific criteria
      for all elements since the general criterion of equivalence of the work to be performed was sufficient. The principle of transparency
      was not infringed so long as it was guaranteed that all tenders would be assessed on the basis of the same award criteria.
      Article 30 of the directive, Asfinag maintains, did not prohibit an arrangement whereby acceptance of a variant was subject
      to the requirement that the performance of qualitatively equivalent work be ensured.
      
      49.  The Austrian Government points out first of all that, as far as it can see, the referring court is mixing the two aspects
      of minimum specifications within the meaning of Article 19 of the directive on the one hand and contract award criteria for
      the purposes of Article 30 of the directive on the other. It argues that the former aspect concerns the admissibility of a
      variant and the latter concerns the assessment of admissible tenders. The Commission concurs with that viewpoint.
      
      50.  The obligation to lay down minimum specifications existed, according to the Austrian Government, irrespective of whether or
      not variants were allowed. The minimum specifications had to be stated, meaning that the contracting authority was required
      to point out those specifications which it considered indispensable and which it would use as assessment criteria for examining
      the equivalence of a tender.
      
      51.  The Austrian Government also considers that where minimum specifications are defined, reference in the tender document to
      rules which are of general application and accessible to the public is permitted. Paragraph 35(2) of the BVergG expressly
      requires that it be stated in the tender documents that they are governed by the BVergG. Interested tenderers can find out
      about those rules for themselves. It adds that a reference to applicable provisions reduces the number of texts relating to
      the tender procedure that have to be published. Moreover, under Article 23 of the directive reference may be made to an authority
      from which information concerning the obligations to be fulfilled in terms of labour law can be obtained. It argues that the
      reference to a general, published provision can be compared to the above arrangement.
      
      52.  The French Government and the Commission take the contrasting view that a reference to applicable provisions does not ─ as
      the Court has consistently held ─ meet the requirements of transparency.  
      
         			(23)
         		
      53.  The French Government considers that, in the main proceedings, the approach taken has resulted in discrimination against tenderers
      resident outside Austria. Furthermore, tenderers intending to submit variants were placed at a disadvantage as they did not
      know the criteria that would be used to assess their tenders.
      
      54.  The Commission adds that the reference to the equivalence of the work is insufficient where the use of specific materials
      is required. What is more, criteria such as durability and resistance to deformation must be mentioned.
      
      55.  In its view, variants may not be accepted where minimum specifications have not been mentioned. In such circumstances the
      tender document is contrary to Community law because there has been neither a prohibition on the submission of variants nor
      a reference to the minimum specifications that have to be met. Therefore, the tendering procedure may not be continued in
      those circumstances.
       2. Assessment
      
      56.  The second question is focused on determining whether Paragraph 42 of the BVergG can be regarded, by virtue of a reference
      to that provision in the tender documents, as the establishment of minimum specifications within the meaning of Article 19
      of the directive where there is a failure to specify the comparative parameters to be used to assess the equivalence of the
      work to be performed. This question can be broken down into two parts: first, the question whether the reference to a provision
      of national legislation meets the transparency requirement, and secondly, the question whether the rules under Paragraph 42(4)
      of the BVergG can be regarded as minimum specifications within the meaning of Article 19 of Directive 93/37.
      
      57.  The third question aims to determine whether Article 30 of the directive precludes a provision of national legislation which
      makes the acceptance of a variant conditional on the criterion requiring that a tender for equivalent work be submitted where,
      rather than being mentioned in the tender document, that criterion is apparent only from a provision to which the tender document
      refers. The issue of the compatibility of such an approach with the transparency requirement arises at this point too. In
      that respect this question overlaps with the second question. It is therefore necessary, first of all, to consider the aspects
      relating to the transparency requirement.
      58.  
      
      In
         
        Beentjes  and  
       Commission  v  
       France  the Court of Justice held that where the authorities awarding the contract have regard to various criteria with a view to
      awarding the contract to the most economically advantageous tender, they are required to state those criteria in the contract
      notice or the contract documents. A general reference to a provision of national legislation cannot satisfy the publicity
      requirement.  
      
         			(24)
         		
      
      
      
      
      59.  Those decisions concerning Article 30 of Directive 93/37/EEC are based on the principles of transparency and equal treatment,
      both of which are dominant principles within the context of public procurement which also form the basis of Directive 93/37/EEC,
      as is clear from the 10th and 11th recitals in the preamble thereto. The two principles must therefore be observed in the
      interpretation of Article 19 of the directive. Consequently, a general reference to a provision of national legislation is
      not sufficient to meet the requirement to state the minimum specifications either.
      
      60.  I therefore propose that the second and third questions referred be answered as follows: A reference to a provision of national
      legislation meets neither the requirement to lay down minimum specifications as provided for in Article 19 of Directive 93/37/EEC
      nor the requirement to lay down criteria on which to base the award of the contract as provided for in Article 30 of the directive.
      
      61.  Strictly speaking, that response obviates the need to answer the second part of the second question concerning the extent
      to which the rules laid down in Paragraph 42(4) of the BVergG can be regarded as minimum specifications. I will comment on
      that matter merely in the alternative, in the event that the Court adopts a different view as regards the publicity requirement.
      
      62.  The concept of minimum specifications within the meaning of Article 19 is not defined in the directive. As I have already
      pointed out with regard to the first question, the contracting authority enjoys a margin of discretion in laying down minimum
      specifications. Those specifications relate to features or results which distinguish the work specified in the tender document
      and which must be satisfied by the work proposed in the tender.
      
      63.  As also discussed earlier with regard to the first question, the contracting authority is, in principle, at liberty to decide
      whether it wishes to authorise or prohibit variants. If it decides to prohibit them, its decision must be expressly stated
      in the tender notice in accordance with the second sentence of the second paragraph of Article 19 of Directive 93/37/EEC.
      Where variants are allowed, the contracting authority is not obliged to say so in the tender document.  
      
         			(25)
         		
      64.  However, as can be seen from the first sentence of the second paragraph of Article 19 of the directive, where variants are
      allowed, the contracting authority must state in the tender notice the minimum requirements to be met by those variants. 
      
      
         			(26)
         		 That obligation arises from the use of the mandatory expression  
      shall state ... the minimum specifications. If the contracting authority had been at liberty to decide in this case whether or not to lay down minimum specifications,
      the expression  
      may state ... the minimum specifications would certainly have been used.
      
      65.  This reading based on the wording of the provision concerned is also consistent with its spirit. Where variants are permitted,
      tenderers have to know the criteria on which basis their proposed tenders are to be assessed by the contracting authority.
      The assessment is carried out by reference to the minimum specifications which define the contracting authority's expectations
      vis-à-vis the work for which it has invited tenders. Tenders submitted in the form of variants are allowed only if the variants
      meet those specifications, which have been laid down previously (principle of equal treatment) and notified in the tender
      document (principle of transparency).  
      
         			(27)
         		 A tender document which permits variants ─ since it does not expressly prohibit them ─ but does not impose any minimum specifications
      does not, therefore, meet the requirements of Directive 93/37.
      
      66.  The objection that it is impossible in practice to state all the criteria in advance because the aspects on which variants
      will be submitted are as yet unknown must therefore be dismissed. The contracting authority should be able to set out its
      expectations vis-à-vis the work for which it invites tenders and the specifications under the individual subheadings, such
      as the load-bearing capacity of a bridge or the load-carrying capacity and durability of a road surface. The document inviting
      tenders for a works contract should above all set out the result expected by the contracting authority. The assessment whether
      a tender guarantees that result must be carried out ─ for proposals consistent with the tender document and variants alike
      ─ on the basis of objective criteria which must be notified to the tenderers in the tender document. It is of no consequence
      here whether the criteria govern admissibility, as in the context of Article 19 of Directive 93/37/EEC, or the award of the
      contract, as provided for in Article 30 of the directive. The principle of equality of tenderers and the principle of transparency
      apply to both provisions.
      
      67.  The rules in Paragraph 42(4) of the BVergG require that the work proposed by the variant be equivalent to the work specified
      in the tender document. That criterion does not relate to the features or result which distinguish the work put out to tender.
      On the contrary, it concerns the assessment of the work proposed as compared with the work for which tenders have been invited.
      
      68.  The equivalence criterion is also contained in the first paragraph  
       in fine  of Article 19 which states that account may be taken of variants which  
      ... meet the minimum specifications required by the contracting authorities. The Commission's proposal of 1986 stated that account must be taken of variants where they at least met the prescribed specifications
      in terms of quality.  
      
         			(28)
         		 The wording of that proposal, which was amended as early as in the procedure for adopting Directive 89/440/EEC in favour
      of the version currently in force, largely corresponds to the wording of Paragraph 42(4) of the BVergG. That provision states
      that a variant is allowed only if it  
      ... ensures the performance of qualitatively equivalent work.
      
      69.  It is apparent from those different expressions that the equivalence criterion cannot be a  
      minimum specification for the purposes of Article 19 of Directive 93/37/EEC. On the contrary, it is the result that a variant must achieve. The
      issue of whether that result is achieved must be determined by reference to the minimum specifications used by the contracting
      authority to define its expectations vis-à-vis the work for which it has invited tenders. Equivalence does not in itself constitute
      an assessment criterion but merely defines the level to be attained by the variant.
      
      70.  Should the Court still consider it necessary, I therefore propose that this part of the second question be answered as follows:
      The equivalence criterion established for the purpose of assessing the admissibility of a variant is not a minimum specification
      required by the contracting authority as provided for in Article 19 of Directive 93/37.
      
      
      
      D ─
       The fourth and fifth questions
       1. Arguments of the parties
      
      71.  Asfinag and the Austrian Government take the view that the fourth and fifth questions are inadmissible in that they are hypothetical.
      They point out that the contract forming the basis of the main proceedings has since been awarded and the works completed.
      It merely remains for the referring court to decide whether the disqualification of the variant was lawful.
      
      72.  In the alternative, they consider with regard to Question 4a that the procedure can be concluded. Asfinag relies on Article
      2 of Directive 89/665/EEC  
      
         			(29)
         		 in support of that argument. The Austrian Government refers to the fact that there is no obligation to award the contract
       
      
         			(30)
         		 yet infers from that  
       a contrario  that the contracting authority may none the less conclude the procedure.
      
      73.  With regard to Question 4a, Traunfellner and the Commission on the other hand consider that, where the tender document has
      not met the requirements of Community law, the contracting authority may not conclude the procedure and must initiate a new
      procedure. Variants may be prohibited, in their view, only subject to very strict conditions.
      
      74.  As to Question 4b, Traunfellner maintains that if the contracting authority has allowed the submission of variants, it must
      also allow an assessment of equivalence. In view of the broad possibility of submitting variants, it would be unreasonable
      for the contracting authority to reject them without examination. In the alternative, Asfinag also supports that conclusion.
      
      75.  As regards Questions 4b and 5, the Commission on the other hand considers that variants should be rejected if contract award
      criteria have not been defined for assessing technical differences.
      
      76.  As far as Question 5 is concerned, Traunfellner takes the view that an obligation to accept the cheapest tender is incompatible
      with the spirit of the directive. It was indeed possible in the main proceedings to assess the technical differences on account
      of the equivalence of the variant submitted. Furthermore, road construction was an area in which there was vast experience;
      thus, it was unnecessary to indicate award criteria for assessing function-related, technical equivalence.
       2. Assessment
      
      77.  According to consistent case-law, it is, in principle, solely for the national court before which the dispute has been brought,
      and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances
      of the case whether a preliminary ruling is necessary to enable it to deliver judgment and whether the questions which it
      submits to the Court are relevant. Consequently, where the questions submitted by the national court concern the interpretation
      of Community law, the Court of Justice is, in principle, bound to give a ruling.  
      
         			(31)
         		
      78.  Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case
      was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may consequently refuse
      to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation
      of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem
      is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer
      to the questions submitted to it.  
      
         			(32)
         		
      79.  As Asfinag and the Austrian Government rightly point out, Questions 4a, 4b and 5 are no longer relevant in the main action.
      The referring court has itself observed that the contract for the bridge and road construction works has been awarded and
      the works completed. Thus, it only remains for the Bundesvergabeamt to rule on whether the disqualification of Traunfellner's
      variant from the tendering procedure was lawful. There is no longer any need in the main proceedings to resolve the issue
      of whether and, if so, how the tendering procedure is to be continued. Hence it is quite obvious that Questions 4 and 5 bear
      no relation to the purpose of the main proceedings and are hypothetical. According to settled case-law, such questions do
      not require an answer.  
      
         			(33)
         		
      80.  In the alternative, should the Court consider the questions to be admissible, I propose that it answer them as follows:
      
      81.  Question 4a: A tendering procedure in the context of which the tender document does not specify the comparative parameters
      to be used to assess equivalence may not be concluded by awarding the contract. Under Article 30(2) of Directive 93/37/EEC
      all the criteria that the contracting authority intends to apply to the award are to be stated in the contract notice. As
      observed with regard to Questions 2 and 3, the principles of equal treatment and transparency form the basis of that provision.
      Using award criteria that have not been published in the tender document while continuing the tendering procedure would be
      contrary to those principles. Advocate General Mischo also reaches that conclusion in his Opinion of 27 February 2003 in the
      case of  
       EVN and  Wienstrom .  
      
         			(34)
         		
      82.  Question 4b: This question is relevant only if the tendering procedure may be concluded. There is no need to give an answer
      in the light of the previous considerations. It should be stated, simply for the sake of completeness, that variants cannot
      be assessed if assessment criteria have not been published in the tender document. If they were assessed, however, that measure
      would offend against the principles of equal treatment and transparency.
      
      83.  Question 5: Where a contracting authority has decided to award the contract to the most economically advantageous tender,
      it cannot, in the course of the procedure, revert to awarding the contract on the basis of the lowest-price criterion. Changing
      the award criteria within a tendering procedure which is already under way is contrary to the transparency requirement.  
      
         			(35)
         		 Consequently, a variant whose technical differences from the tender document cannot be assessed on the basis of contract
      award criteria owing to the absence of appropriate statements in the tender document may not be accepted where it is the cheapest
      tender and contract award criteria have not otherwise been defined. Should the contract be awarded on the basis of the most
      economically advantageous tender, the criteria intended to be applied to the award of the contract must be stated, as prescribed
      by Article 30(2) of Directive 93/37/EEC. A tender document which does not meet that requirement is unlawful.
        VI ─ Conclusion
      
      84.  On the basis of the foregoing considerations I propose that the Court should:
      (1) declare Questions 1, 4 and 5 inadmissible, and 
      
      (2) answer Questions 2 and 3 as follows: 
      
      The reference to a provision of national legislation does not meet the requirement to lay down minimum specifications within
      the meaning of Article 19 of Directive 93/37/EEC or the requirement to lay down contract award criteria for the purposes of
      Article 30 of the directive.The equivalence criterion required to assess the admissibility of a variant is not a minimum specification required by the
      contracting authority for the purposes of Article 19 of Directive 93/37/EEC.
      
       1 –
         
           Original language: German.
      
      2 –
         
         OJ 1993 L 199, p. 54.
      
      3 –
         
         . Bundesgesetzblatt für die Republik Österreich  I, 1997, No 56.
         
      
      4 –
         
         According to the findings of the referring court, an  
            alternative tender under Paragraph 15(14) of the BVergG is a tender based on an alternative tender proposal from the tenderer and should therefore
            be regarded as a  
            variant within the meaning of Directive 93/37/EEC.
         
      
      5 –
         
         The Bundesvergabeamt refers to Case 31/87  
             Beentjes  [1988] ECR 4635, paragraph 35 et seq., and Case C-87/94  
             Commission  v  
             Belgium  [1996] ECR I-2043, paragraph 57 et seq.
         
      
      6 –
         
         The Bundesvergabeamt has regard to  
             Beentjes  (cited in footnote 5, at paragraph 21 et seq.) and to Case C-225/98  
             Commission  v  
             France  [2000] ECR I-7445, paragraph 34 et seq. 
         
      
      7 –
         
         The Bundesvergabeamt has regard to Case 274/83  
             Commission  v  
             Italy  [1985] ECR 1077, paragraph 24 et seq., and Case C-272/91  
             Commission  v  
             Italy  [1994] ECR I-1409.
         
      
      8 –
         
         The Bundesvergabeamt has regard to  
             Beentjes   (cited in footnote 5, at paragraph 35 et seq.).
         
      
      9 –
         
         The Bundesvergabeamt refers  
             mutatis mutandis  to Case C-243/89  
             Commission  v  
             Denmark  [1993] ECR I-3353. 
         
      
      10 –
         
         The Bundesvergabeamt refers to Case C-27/98  
             Metalmeccanica Fracasso and Leitschutz Handels- und Montage  [1999] ECR I-5697, paragraph 31. 
         
      
      11 –
         
         Case C-411/00  
             Felix Swoboda  [2002] ECR I-10567, paragraph 27 et seq. Similarly, Opinion of Advocate General Mischo in Case C-410/01  
             Fritsch, Chiari & Partners and Others  [2003] ECR I-6413, points 20 to 23. Cf. also Opinion of Advocate General Geelhoed in Case C-315/01  
             Gesellschaft für Abfallentsorgungs-Technik (GAT)  [2003] ECR I-6351, point 22 et seq.
         
      
      12 –
         
         COM (86) 679 final of 23 December 1986.
      
      13 –
         
         Case C-320/88  
             Shipping and Forwarding Enterprise  Safe   [1990] ECR I-285, paragraph 11, and Case C-107/98  
             Teckal   [1999] ECR I-8121, paragraph 31.
         
      
      14 –
         
         Case C-17/92  
             Federación de Distribuidores Cinematográficos  [1993] ECR I-2239, paragraph 8;  
             Teckal   (cited in footnote 13, at paragraph 33). 
         
      
      15 –
         
         Case C-379/98  
             PreussenElektra  [2001] ECR I-2099, paragraph 39, and Case C-390/99  
             Canal Satélite Digital  [2002] ECR I-607, paragraph 19.
         
      
      16 –
         
         OJ 1989 L 395, p. 33.
      
      17 –
         
         Opinion in Case C-315/01  
             GAT , cited in footnote 11, point 45 et seq. 
         
      
      18 –
         
         COM (86) 679 final (cited in footnote 12), p. 43, new Article 20a(2).
      
      19 –
         
         COM (86) 679 final (cited in footnote 12), p. 12.
      
      20 –
         
         COM (88) 354 final of 21 June 1988, pp. 13 and 22, in Article 20a.
      
      21 –
         
         OJ 1989 L 210, p. 1.
      
      22 –
         
         Cf. Commission's  
            Guide to the Community Rules on Public Works Contracts, p. 60, point 6.4.1, which can be consulted via the homepage of European Commission DG Internal Market at www.europa/comm/internal_market/en/.
            
         
      
      23 –
         
         The parties refer to the judgments in  
             Beentjes  (cited in footnote 5) and  
             Commission  v  
             France  (cited in footnote 6). 
         
      
      24 –
         
         . Beentjes   (cited in footnote 5, at paragraph 35) and  
             Commission  v  
             France  (cited in footnote 6, at paragraph 73). 
         
      
      25 –
         
         See the explanations given in the Public Works Contracts Guide (cited in footnote 22, at p. 60, point 6.4.1).
      
      26 –
         
         See the explanations given in the Public Works Contracts Guide (cited in footnote 22, at p. 60, point 6.4.1).
      
      27 –
         
         . Commission  v  
             Denmark  (cited in footnote 9, at paragraphs 37 to 40), Case C-19/00  
             SIAC Construction  [2001] ECR I-7725, paragraph 40 et seq.
         
      
      28 –
         
         COM (86) 679 final (cited in footnote 12), p. 43, Article 20a(3).
      
      29 –
         
         Cited in footnote 16.
      
      30 –
         
         It invokes the  
             Metalmeccanica  judgment (cited in footnote 10).
         
      
      31 –
         
         Case C-415/93  
             Bosman  [1995] ECR I-4921, paragraph 59;  
             PreussenElektra , cited in footnote 15, at paragraph 38;  
             Canal Satélite Digital , cited in footnote 15, at paragraph 18.
         
      
      32 –
         
         Cf. the case-law cited in footnote 15.
      
      33 –
         
         Case 244/80  
             Foglia  v  
             Novello  [1981] ECR 3045, paragraphs 18 to 21; Case C-83/91  
             Meilicke  [1992] ECR I-4871, paragraph 25; Case C-318/00  
             Bacardi-Martini and Cellier des Dauphins  [2003] ECR I-905, paragraph 43.
         
      
      34 –
         
         Opinion in Case C-448/01 [2003] ECR I-14527, point 122 et seq.
      
      35 –
         
         . SIAC Construction  (cited in footnote 27) paragraph 43;  
             Commission  v  
             Belgium  (cited in footnote 5), paragraph 88 et seq.