Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S.
Date: 2013-10-10
26. As a preliminary point, it should be borne in mind that, although, under Article 21 of Directive 2004/18, public contracts concerning services listed in Annex IIB to that directive are to be subject solely to Articles 23 and 35(4) thereof, the fundamental rules of the Treaty and the general principles of EU law apply to such contracts where they are of certain cross-border interest. The Court has found that the system established by the EU legislature for public contracts relating to services falling within the ambit of that annex cannot be interpreted as precluding application of the principles deriving from Articles 43 EC and 49 EC (now, respectively, Articles 49 TFEU and 56 TFEU) (see to that effect, inter alia, Case C‑226/09 Commission v Ireland  [2010] ECR I‑11807, paragraphs 29 and 31).
28. One of the principal objectives of the public procurement rules under EU law is to ensure the free movement of services and the opening up of undistorted competition in all the Member States. In order to pursue that twofold objective, EU law applies, inter alia, the principle of the equal treatment of tenderers and the corollary obligation of transparency.
30. It is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently, and that different situations must not be treated in the same way, unless such treatment is objectively justified (see Joined Cases C‑21/03 and C‑34/03 Fabricom  [2005] ECR I‑1559, paragraph 27 and the case-law cited).
31. The principle of equal treatment 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 (see, to that effect, Case C‑599/10 SAG ELV Slovensko and Others  [2012] ECR I‑0000, paragraphs 36 and 37).
32. 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 material errors ( SAG ELV Slovensko and Others , paragraph 40).
33. In SAG ELV Slovensko and Others , the Court laid down certain requirements to mark the bounds of the contracting authority’s right to make a written request to the tenderer or tenderers concerned for clarification of their bid.
34. First of all, a request for clarification of a tender, which may not be made until after the contracting authority has looked at all the tenders, must, as a general rule, be sent in an equivalent manner to all tenderers in the same situation (see, to that effect, SAG ELV Slovensko and Others , paragraphs 42 and 43).
35. Next, the request must relate to all sections of the tender which require clarification (see, to that effect, SAG ELV Slovensko and Others , paragraph 44).
36. In addition, that request may not lead to the submission, by a tenderer, of what would appear in reality to be a new tender (see, to that effect, SAG ELV Slovensko and Others , paragraph 40).
37. Lastly, as a general rule, when exercising its right to ask a tenderer to clarify its tender, the contracting authority must treat tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome ( SAG ELV Slovensko and Others , paragraph 41).
38. That guidance in relation to tenders can also be applied to applications filed at the screening stage for candidates in a restricted procedure.
39. Accordingly, a contracting authority may request the correction or amplification of details of such an application, on a limited and specific basis, so long as that request relates to particulars or information, such as a published balance sheet, which can be objectively shown to pre-date the deadline for applying to take part in the tendering procedure concerned.
40. However, it should be explained that this would not be the case if the contract documents required provision of the missing particulars or information, on pain of exclusion. It falls to the contracting authority to comply strictly with the criteria which it has itself laid down (see, to that effect, Case C‑496/99 P Commission v CAS Succhi di Frutta  [2004] ECR I‑3801, paragraph 115).