Ambisig – Ambiente e Sistemas de Informação Geográfica SA v Nersant - Associação Empresarial da Região de Santarém and Núcleo Inicial - Formação e Consultoria Lda.
Date: 2015-03-26
11. Ambisig submitted a tender under the tendering procedure at issue in the main proceedings. In its preliminary report, the selection board for the procedure ranked Iberscal in first place.
23. The referring court found it necessary to refer the question due to a contradiction between, on the one hand, the Court of Justice’s case-law on verification of the ability of economic operators for the perfor mance of a contract and criteria for awarding contracts, as resulting from the judgment in Lianakis and Others (C‑532/06, EU:C:2008:40) and, on the other, the Commission’s proposal aimed at reforming the legislation on public procurement procedures, and the fact that quality is one of the award criteria provided for by Article 53(1)(a) of Directive 2004/18, a criterion which may be linked to the composition, experience and academic and professional background of the team entrusted with performance of the contract.
25. It should also be noted that the case-law highlighted in the judgment in Lianakis and Others  (C‑532/06, EU:C:2008:40) concerns the interpretation of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which was repealed by Directive 2004/18, and that that judgment does not rule out the possibility that the contracting authority may, in certain circumstances, fix and apply a criterion such as the one contained in the question referred at the stage of awarding the contract.
30. Furthermore, Article 53(1) of Directive 2004/18 does not set out an exhaustive list of the criteria which may be used by the contracting authorities in determining the economically most advantageous tender, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract. Their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous (see, to that effect, Lianakis and Others , C‑532/06, EU:C:2008:40, paragraphs 28 and 29 and the case-law cited). To that end, Article 53(1)(a) of Directive 2004/18 specifically requires that the award criteria be linked to the subject-matter of the contract (see judgment in Commission  v Netherlands , C‑368/10, EU:C:2012:284, paragraph 86).
31. The quality of performance of a public contract may depend decisively on the ‘professional merit’ of the people entrusted with its performance, which is made up of their professional experience and background.
32. This is particularly true where the performance of the contract is intellectual in nature and, as in the main proceedings in the present case, concerns training and consultancy services.
33. Where a contract of this nature is to be performed by a team, it is the abilities and experience of its members which are decisive for the evaluation of the professional quality of the team. That quality may be an intrinsic characteristic of the tender and linked to the subject-matter of the contract for the purposes of Article 53(1)(a) of Directive 2004/18.
34. Consequently, that quality may be included as an award criterion in the contract notice or in the relevant tendering specifications.