Lavorgna Srl v Comune di Montelanico and Others.
Date: 2019-05-02
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In that regard, it is settled case-law of the Court that, first, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all tenderers must be subject to the same conditions. Secondly, the obligation of transparency, which is its corollary, 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 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 (judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 36 and the case-law cited).
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In the light of those considerations, the Court has held that the principle of equal treatment and the obligation of transparency must be interpreted as precluding an economic operator from being excluded from a procedure for the award of a public contract as a result of that economic operator’s non-compliance with an obligation which does not expressly arise from the documents relating to that procedure or out of the national law in force, but from an interpretation of that law and those documents and from the incorporation of provisions into those documents by the national authorities or administrative courts (judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 51; see, to that effect, order of 10 November 2016, Spinosa Costruzioni Generali and Melfi, C‑162/16, not published, EU:C:2016:870, paragraph 32).
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The foregoing applies all the more since, according to the settled case-law of the Court, where obligations were clearly imposed in the documents relating to the public procurement procedure — on pain of the operator’s being excluded — the contracting authority cannot accept any rectification whatsoever of failures to comply with those obligations (see, by analogy, judgments of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraphs 46 and 48; of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 49; and of 10 November 2016, Ciclat, C‑199/15, EU:C:2016:853, paragraph 30).
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Lastly, in accordance with the principle of proportionality, which is a general principle of EU law, since the purpose of national legislation relating to public procurement procedures is to safeguard the equal treatment of tenderers, such legislation must not go beyond what is necessary to achieve the intended objective (see, to that effect, judgment of 8 February 2018, Lloyd’s of London, C‑144/17, EU:C:2018:78, paragraph 32 and the case-law cited).
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Should the referring court conclude that this was in fact the case, it would then be necessary to add that, in such a situation, having regard to the principles of legal certainty, transparency and proportionality, the contracting authority may give such a tenderer the opportunity to regularise its position and comply with the obligations under the relevant national legislation within a period set by the contracting authority (see, to that effect, judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 51, and order of 10 November 2016, Spinosa Costruzioni Generali and Melfi, C‑162/16, not published, EU:C:2016:870, paragraph 32).