Emm. G. Lianakis AE, Sima Anonymi Techniki Etaireia Meleton kai Epivlepseon and Nikolaos Vlachopoulos v Dimos Alexandroupolis and Others.
Date: 2008-01-24
23. In that regard, even if – formally – the national court has limited its question to the interpretation of Article 36(2) of Directive 92/50 in relation to a possible later change to the award criteria, that does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see Case C‑392/05 Alevizos  [2007] ECR I‑0000, paragraph 64 and the case-law cited).
26. The case-law shows that, while Directive 92/50 does not in theory preclude the examination of the tenderers’ suitability and the award of the contract from taking place simultaneously, the two procedures are nevertheless distinct and are governed by different rules (see, to that effect, in relation to works contracts, Case 31/87 Beentjes  [1988] ECR 4635, paragraphs 15 and 16).
27. The suitability of tenderers is to be checked by the authorities awarding contracts in accordance with the criteria of economic and financial standing and of technical capability (the ‘qualitative selection criteria’) referred to in Articles 31 and 32 of Directive 92/50 (see, as regards works contracts, Beentjes , paragraph 17).
28. By contrast, the award of contracts is based on the criteria set out in Article 36(1) of Directive 92/50, namely, the lowest price or the economically most advantageous tender (see, to that effect, in relation to works contracts, Beentjes , paragraph 18).
29. However, although in the latter case Article 36(1) of Directive 92/50 does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities, 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, in relation to public works contracts, Beentjes , paragraph 19; Case C‑19/00 SIAC Construction  [2001] ECR I‑7725, paragraphs 35 and 36; and, in relation to public service contracts, Case C‑513/99 Concordia Bus Finland  [2002] ECR I‑7213, paragraphs 54 and 59, and Case C‑315/01 GAT  [2003] ECR I‑6351, paragraphs 63 and 64).
30. Therefore, ‘award criteria’ do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question.
31. In the case in the main proceedings, however, the criteria selected as ‘award criteria’ by the contracting authority relate principally to the experience, qualifications and means of ensuring proper performance of the contract in question. Those are criteria which concern the tenderers’ suitability to perform the contract and which therefore do not have the status of ‘award criteria’ pursuant to Article 36(1) of Directive 92/50.
34. The principle of equal treatment thus laid down also entails an obligation of transparency (see, to that effect, in relation to public supply contracts, Case C‑275/98 Unitron Scandinavia and 3-S  [1999] ECR 8291, paragraph 31, and, in relation to public works contracts, SIAC Construction , paragraph 41).
36. According to the case-law, Article 36(2), read in the light of the principle of equal treatment of economic operators set out in Article 3(2) of Directive 92/50 and of the ensuing obligation of transparency, requires that potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous offer, and their relative importance, when they prepare their tenders (see, to that effect, in relation to public contracts in the water, energy, transport and telecommunications industries, Case C‑87/94 Commission  v Belgium  [1996] ECR I‑2043, paragraph 88; in relation to public works contracts, Case C‑470/99 Universale-Bau and Others  [2002] ECR I‑11617, paragraph 98; and, in relation to public service contracts, Case C‑331/04 ATI EAC and Others  [2005] ECR I‑10109, paragraph 24).
37. Potential tenderers must be in a position to ascertain the existence and scope of those elements when preparing their tenders (see, to that effect, in relation to public service contracts, Concordia Bus Finland , paragraph 62, and ATI EAC and Others , paragraph 23).
38. Therefore, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention (see, by analogy, in relation to public works contracts, Universale-Bau and Others , paragraph 99).
39. That interpretation is supported by the purpose of Directive 92/50 which aims to eliminate barriers to the freedom to provide services and therefore to protect the interests of economic operators established in a Member State who wish to offer services to contracting authorities established in another Member State (see, in particular, Case C‑380/98 University of Cambridge  [2000] ECR I‑8035, paragraph 16).
40. To that end, tenderers must be placed on an equal footing throughout the procedure, which means that the criteria and conditions governing each contract must be adequately publicised by the contracting authorities (see, to that effect, in relation to public works contracts, Beentjes , paragraph 21, and SIAC Construction , paragraphs 32 and 34; also, in relation to public service contracts, ATI EAC and Others , paragraph 22).
42. In the case that gave rise to that judgment, the award criteria and their weighting factors, together with the sub-criteria of those award criteria had in fact been established beforehand and published in the contract documents. The contracting authority concerned had merely stipulated subsequently, shortly before the opening of the envelopes, the weighting factors to be applied to the sub-criteria.
43. In that judgment, the Court held that Article 36(2) of Directive 92/50 does not preclude proceeding in that way, provided that three very specific conditions apply, namely that the decision to do so:
– does not alter the criteria for the award of the contract set out in the contract documents;
– does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and
– was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect, ATI EAC and Others , paragraph 32).
44. It must be noted that in the case in the main proceedings, by contrast, the Project Award Committee referred only to the award criteria themselves in the contract notice, and later, after the submission of tenders and the opening of applications expressing interest, stipulated both the weighting factors and the sub-criteria to be applied to those award criteria. Clearly that does not comply with the requirement laid down in Article 36(2) of Directive 92/50 to publicise such criteria, read in the light of the principle of equal treatment of economic operators and the obligation of transparency.
45. Having regard to the foregoing, the answer to the question referred must therefore be that, read in the light of the principle of equal treatment of economic operators and the ensuing obligation of transparency, Article 36(2) of Directive 92/50 precludes the contracting authority in a tendering procedure from stipulating at a later date the weighting factors and sub-criteria to be applied to the award criteria referred to in the contract documents or contract notice.
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