Casertana Costruzioni Srl v Ministero delle Infrastrutture e dei Trasporti - Provveditorato Interregionale per le opere pubbliche della Campania e del Molise and Azienda Regionale Campana per la Difesa del Suolo - A.R.CA.DI.S.
Date: 2017-09-14
21


In order to answer that question, it must be recalled, as a preliminary point, that, according to settled case-law, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU;C:2014:2067, paragraph 31 and the case-law cited, and of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83).
24


As for the question whether Article 48(3) of Directive 2004/18 must be interpreted by taking into consideration the content of Article 63(1) of Directive 2014/24, which is the provision corresponding inter alia to Article 48(3) of Directive 2004/18, it must be observed that Article 48(3) is formulated in general terms and does not expressly set out the detailed rules in accordance with which an economic operator may rely on the capacities of other entities in a public procurement procedure (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 87 and 88).
25


On the other hand, Article 63(1) of Directive 2014/24 now provides that economic operators may ‘only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required’ (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 89) and that ‘the contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion’.
26


Although it is true that, as stated, inter alia, in recital 2 thereof, Directive 2014/24 aims to clarify basic notions and concepts to ensure legal certainty, and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union, the fact remains that Article 63 of that directive introduces substantial amendments as regards the right of an economic operator to rely on the capacities of other entities in the context of public contracts (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 90).
27


Far from preserving the continuity of Article 48(3) of Directive 2004/18 and clarifying its scope, Article 63(1) of Directive 2014/24 introduces new conditions which were not provided for under the previous legislation (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 91).
28


Accordingly, that provision of Directive 2014/24 cannot be used as a criterion for the interpretation of Article 48(3) of Directive 2004/18 since there is no question in the present case of dispelling a problem of interpretation concerning the content of the latter provision (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 92).
29


According to settled case-law, Articles 47(2) and 48(3) of Directive 2004/18 confer on every economic operator the right to rely, for a particular contract, on the capacities of other entities, regardless of the nature of the links which it has with them, provided that it proves to the contracting authority that it will have at its disposal the resources necessary for the execution of the contract (judgment of 10 October 2013, Swm Costruzioni 2and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 29).
30


Those provisions do not lay down any general prohibition regarding a tenderer’s reliance on the capacities of one or more third-party entities in addition to its own capacities in order to fulfil the criteria set by a contracting authority. In addition, the Court has expressly referred to an economic operator’s right to use resources belonging to one or more other entities, possibly in addition to its own resources, in order to carry out a contract (judgment of 10 October 2013, Swm Costruzioni 2and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraphs 30 and 32).
31


Such an interpretation is consistent with the objective pursued by the directives in this area of attaining the widest possible opening up of public contracts to competition to the benefit not only of economic operators but also of contracting authorities. In addition, that interpretation also facilitates the involvement of small and medium-sized undertakings in the contracts procurement market, an aim also pursued by Directive 2004/18, as stated in recital 32 thereof (judgment of 10 October 2013, Swm Costruzioni 2 and MannocchiLuigino, C‑94/12, EU:C:2013:646, paragraph 34).
33


In this regard, it must be recalled that, in accordance with recital 46 and Article 2 of Directive 2004/18, contracting authorities are required to afford economic operators equal, non-discriminatory and transparent treatment (judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 60, and of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 35).
34


Thus, first, the principles of equal treatment and non-discrimination require tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Secondly, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 61 and the case-law cited, and of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 36).
35


Furthermore, it is apparent from the Court’s case-law that the principles of equal treatment and non-discrimination and the obligation of transparency preclude any negotiation between the contracting authority and a tenderer during a public procurement procedure, which means that, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer concerned. It follows that, where the contracting authority regards a tender as imprecise or as failing to meet the technical requirements of the tender specifications, it cannot require the tenderer to provide clarification (judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 62 and the case-law cited, and of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 37).
36


However, the Court has explained that Article 2 of Directive 2004/18 does not preclude the correction or amplification of details of a tender, on a limited and specific basis, particularly when it is clear that they require mere clarification, or to correct obvious clerical errors (judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 63 and the case-law cited, and of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 38).
37


As regards amendments relating to successful tenderers, the Court has already held that the decision authorising the change in composition of the consortium to which the contract was awarded necessitates an amendment of the award decision which may be regarded as substantial if, in the light of the particular features of the procurement procedure in question, it relates to one of the essential elements that were decisive in the adoption of the award decision. In that situation, the relevant measures provided for by national law would have to be taken to remedy that irregularity, which might extend to organisation of a new award procedure (judgment of 8 May 2014, Idrodinamica Spurgo Velox and Others, C‑161/13, EU:C:2014:307, paragraph 39 and the case-law cited).
38


In addition, in the field of concession contracts, the Court has held that a change of subcontractor, even if the possibility of a change is provided for in the contract, may in exceptional cases constitute a substantial amendment to one of the essential provisions of a concession contract where the use of one subcontractor rather than another was, in view of the particular characteristics of the services concerned, a decisive factor in concluding the contract (judgment of 13 April 2010, Wall, C‑91/08, EU:C:2010:182, paragraph 39).