Bietergemeinschaft Technische Gebäudebetreuung GesmbH und Caverion Österreich GmbH v Universität für Bodenkultur Wien and VAMED Management und Service GmbH & Co KG.
Date: 2016-12-21
13


By a decision of 20 December 2013, notified to the consortium, the latter was excluded from the tendering procedure because the original of the proof of a bank guarantee had not been submitted in good time.
14


The application brought by the consortium against that decision was dismissed by a judgment of the Bundesverwaltungsgericht (Federal Administrative Court, Austria) of 31 January 2014. The extraordinary appeal on a point of law against that judgment was also dismissed by an order of the Verwaltungsgerichtshof (Administrative Court, Austria) of 25 May 2014.
15


By an award decision of 14 March 2014, notified to Vamed, the BOKU Wien accepted its bid. The framework contract was subsequently concluded and Vamed began to perform the services concerned.
16


The consortium brought an action against that award decision before the Bundesverwaltungsgericht (Federal Administrative Court). That action was dismissed by a judgment of 8 August 2014 on the ground that the rights of a tenderer whose bid has been properly excluded cannot be infringed by illegalities relating to the procedure followed to select another bid for the purposes of awarding the contract.
28


In that regard, it should be noted that, in accordance with the third subparagraph of Article 1(1) and Article 1(3) of Directive 89/665, in order for the review of decisions taken by contracting authorities to be regarded as effective, review procedures must be available at least to any person having or having had an interest in obtaining a particular contract who has been or risks being harmed by an alleged infringement (judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 23).
29


In paragraphs 26 and 27 of that judgment, the Court emphasised that the judgment of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448), gave concrete expression to the requirements of the third subparagraph of Article 1(1) and Article 1(3) of Directive 89/665 in a situation in which, following a public procurement procedure, two tenderers bring an action for review, each seeking the exclusion of the other. In such a situation, both of the tenderers have an interest in obtaining a particular contract.
31


First, the bids of the tenderers concerned in the cases giving rise to those two judgments had not been the subject of an exclusion decision of the contracting authority, unlike the bid submitted by the consortium in the main proceedings in the present case.
32


Secondly, it was in the course of the same, single set of review proceedings relating to the award decision that, in both cases, each tenderer challenged the validity of the other tenderer’s bid, each competitor having a legitimate interest in the exclusion of the bid submitted by the other, which may lead to a finding that the contracting authority is unable to select a lawful bid (see, to that effect, judgments of 4 July 2013, Fastweb, C‑100/12, EU:C:2013:448, paragraph 33, and 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 24). In the main proceedings in the present case, by contrast, the consortium brought an action, first, against the exclusion decision adopted in respect of it and, secondly, against the award decision, and it is in the course of that second set of proceedings that it contends that the successful tenderer’s bid is unlawful.
36


In the light of all of the foregoing considerations, the answer to the question referred is that Article 1(3) of Directive 89/665 must be interpreted as not precluding a tenderer who has been excluded from a public procurement procedure by a decision of the contracting authority which has become final from being refused access to a review of the decision awarding the public contract concerned and of the conclusion of the contract where only that unsuccessful tenderer and the successful tenderer submitted bids and the unsuccessful tenderer maintains that the successful tenderer’s bid should also have been rejected.