Archus sp. z o.o. and Gama Jacek Lipik v Polskie Górnictwo Naftowe i Gazownictwo S.A.
Date: 2017-05-11
25


In that regard, it must be recalled, first of all, that the requirement for the contracting authority to observe the principle of equal treatment of tenderers which has the aim of promoting the development of healthy and effective competition between undertakings taking part in a public procurement procedure (see, inter alia, judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 110, and of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 33) and which lies at the very heart of the EU rules on public procurement procedures (see, inter alia, judgments of 22 June 1993, Commission v Denmark, C‑243/89, EU:C:1993:257, paragraph 33; of 25 April 1996, Commission v Belgium, C‑87/94, EU:C:1996:161, paragraph 51; and of 18 October 2001, SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 33) means, inter alia, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see judgments of 16 December 2008, Michaniki, C‑213/07, EU:C:2008:731, paragraph 45, and of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 37).
26


That principle requires, in particular, that all tenderers are afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (judgments of 25 April 1996, Commission v Belgium, C‑87/94, EU:C:1996:161, paragraph 54; of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 93, and of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 33).
27


The principle of equal treatment and the obligation of transparency also 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 (see, to that effect, judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 36, and of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 31).
28


To enable the contracting authority to require a tenderer whose tender it regards as imprecise or as failing to meet the technical requirements of the tender specifications to provide clarification in that regard would be to run the risk of making the contracting authority appear to have negotiated with the tenderer on a confidential basis, in the event that that tenderer was finally successful, to the detriment of the other tenderers and in breach of the principle of equal treatment (judgment of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 37).
29


However, the Court has also previously held that the principle of equal treatment does not preclude the correction or amplification of details of a tender, where it is clear that they require clarification or where it is a question of the correction of obvious clerical errors, subject, however, to the fulfilment of certain requirements (see, to that effect, in the context of tendering procedures under Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraphs 35 to 45, concerning the evaluation of offers stage, and of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraphs 30 to 39, concerning the stage of pre-selection of tenderers).
30


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 undertakings which are in the same situation and must relate to all sections of the tender which require clarification (see judgments of 29 March 2012, SAG ELV Slovenskoand Others, C‑599/10, EU:C:2012:191, paragraphs 42 to 44, and of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraphs 34 and 35).
31


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 judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 40, and of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 36).
32


Lastly, as a general rule, when exercising its discretion as regards the 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 (see judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 41, and of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 37).
33


A request for clarification cannot, however, make up for the lack of a document or information whose production was required by the contract documents, the contracting authority being required to comply strictly with the criteria which it has itself laid down (see, to that effect, judgment of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 40).
34


In the present case, the referring court stated, in its request for a preliminary ruling, that the tenderers had to include, as an annex to their bid, samples of digitised archive documents, which had to be prepared following the instructions set out at paragraph 4.1 of the tender specification, and had to indicate the process for the digitisation and its quality.
35


In the circumstances of the main proceedings, it was Archus and Gama as tenderers who sent the contracting authority a request for their tender to be corrected, based on Article 87(2)(3) of the Pzp, in order to replace the sample which they had annexed to their bid, which did not comply with the specifications in the tender specification, with a new microfilm sample.
36


In accordance with the case-law referred to in paragraph 29 above, a request sent by the contracting authority to a tenderer to supply the declarations and documents required cannot, in principle, have any other aim than the clarification of the tender or the correction of an obvious error vitiating the tender. It cannot, therefore, permit a tenderer generally to supply declarations and documents which were required to be sent in accordance with the tender specification and which were not sent within the time limit for tenders to be submitted. Nor can it, in accordance with the case-law referred to in paragraph 31 above, result in the presentation by a tenderer of documents containing corrections where in reality they constitute a new tender.
37


In any event, the obligation which a contracting authority may have under national law, to invite tenderers to submit the declarations and documents required which they have not sent within the time limit given for the submission of offers, or to correct those declarations and documents in the event of errors, cannot be permitted except in so far as the additions or corrections made to the initial tender do not result in a substantial amendment of that tender. It is apparent from paragraph 40 of the judgment of 29 March 2012, SAG ELV Slovensko and Others (C‑599/10, EU:C:2012:191) that the initial tender cannot be amended to correct obvious clerical errors other than exceptionally and where that amendment does not result, in reality, in the proposal of a new tender.
38


It is for the referring court to determine whether, in the circumstances of the main proceedings, the substitution made by Archus and Gama remained within the limits of the correction of an obvious error vitiating its tender.
39


Consequently, the answer to the first question referred is that the principle of equal treatment of economic operators set out in Article 10 of Directive 2004/17 must be interpreted as precluding, in a public procurement procedure, the contracting authority from inviting a tenderer to submit declarations or documents whose communication was required by the tender specification and which have not been submitted within the time limit given for the submission of tenders. On the other hand, that article does not preclude the contracting authority from inviting a tenderer to clarify a tender or to correct an obvious clerical error in that tender, on condition, however, that such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly and that that clarification or correction may not be equated with the submission of a new tender, which is for the referring court to determine.
41


According to settled case-law, the procedure laid down in Article 267 TFEU is an instrument of cooperation between the Court and the national courts, by means of which the former provides the latter with the points of interpretation of European Union law which they need in order to decide the disputes before them (see, inter alia, judgments of 12 June 2003, Schmidberger, C‑112/00,EU:C:2003:333, point 30; of 15 September 2011, Unió de Pagesos de Catalunya, C‑197/10, EU:C:2011:590, paragraph 16; and of 19 June 2012, Chartered Institute of Patent Attorneys, C‑307/10, EU:C:2012:361, paragraph 31).
42


In the context of that cooperation, questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments of 21 January 2003, Bacardi-Martini and Cellier des Dauphins, C‑318/00, EU:C:2003:41, paragraph 43; of 15 September 2011, Unió de Pagesos de Catalunya, C‑197/10, EU:C:2011:590, paragraph 17, and of 19 June 2012, Chartered Institute of Patent Attorneys, C‑307/10, EU:C:2012:361, paragraph 32).
43


The Court’s function in preliminary rulings is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (see, inter alia, judgments of 12 June 2003, Schmidberger, C‑112/00, EU:C:2003:333, paragraph 32, and of 15 September 2011, Unió de Pagesos de Catalunya, C‑197/10, EU:C:2011:590, paragraph 18).
50


It should be recalled, in that connection, that Article 1(3) of Directive 92/13 provides that Member States must ensure that review procedures are available, under detailed rules which they themselves may establish, 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.
51


When called upon to interpret the equivalent provisions of Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), the Court has previously held that, in a public procurement procedure, tenderers have a legitimate interest in the exclusion of the bids submitted by the other tenderers with a view to obtaining the contract (see, to that effect, judgments of 4 July 2013, Fastweb, C‑100/12, EU:C:2013:448, paragraph 33; of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 27; and of 21 December 2016, Bietergemeinschaft Technische Gebäudebetreuung und Caverion Österreich, C‑355/15, EU:C:2016:988, paragraph 29), whatever the number of participants in the procedure and the number of participants who have instigated review procedures (see, to that effect, judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 29).
52


On the one hand, the exclusion of one tenderer may lead to the other being awarded the contract directly in the same procedure. On the other, if all tenderers are excluded and a new public procurement procedure is launched, each of those tenderers may participate in the new procedure and thus obtain the contract indirectly (see judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 27).
53


The principle of case-law established by the judgments of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448) and 5 April 2016, PFE (C‑689/13, EU:C:2016:199) applies to the situation at issue in the main proceedings.
55


In such a situation, the tenderer who has brought the action must be regarded as having a legitimate interest in the exclusion of the bid submitted by the successful tenderer, which may lead, where appropriate, 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 of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 24).
57


Admittedly, the Court ruled in its judgment of 21 December 2016, Bietergemeinschaft Technische Gebäudebetreuung und Caverion Österreich (C‑355/15, EU:C:2016:988, paragraphs 13 to 16, 31 and 36), that a tenderer whose offer had been excluded by the contracting authority from a public procurement procedure could be refused access to a review of the decision awarding the public contract. However, the decision to exclude that tenderer had, in that case, been confirmed by a decision that had the force of res judicata before the court hearing the review of the contract award decision gave its decision, so that that tenderer had to be regarded as definitively excluded from the public procurement procedure at issue.
58


In the main proceedings, on the other hand, Archus and Gama brought an action against the decision excluding their tender and against the decision awarding the contract, which were adopted simultaneously, and cannot therefore be considered to be definitively excluded from the public procurement procedure. In such a situation, the concept of ‘a particular contract’ within the meaning of Article 1(3) of Directive 93/13 may, where appropriate, apply to the possible initiation of a new public procurement procedure.