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ECJ ruling on public procurement award procedure
21 May 2008
On 24 January 2008 the European Court of Justice (“ECJ”) issued
an important judgment on the application of award criteria under EU
public procurement rules. In Lianakis v Dimos
Alexandroupolis the ECJ made a clear statement on when the
weighting factors and sub-criteria to be applied in an award
procedure are to be notified to the tenderers. It also took
the opportunity to reiterate the factors that can be taken into
account as “award criteria” as opposed to “qualitative selection
criteria”.
Brief background
The judgment arose from a reference for a
preliminary ruling by a Greek court on the interpretation of the
old Public Services Contracts Directive (92/50). The court asked
whether a contracting authority can, at a later date, stipulate the
weighting factors and sub-criteria to be applied to the award
criteria set out in the contract documents or contract notice.
Lawfulness of award
criteria
Prior to addressing the main question
referred, the ECJ examined the scope of award criteria that can be
stipulated by the contracting authority and underlined the fact
that award criteria is confined to either the lowest price or the
most economically advantageous tender. The award criteria
stipulated by the contracting authority in question referred to the
tenderer’s experience, manpower and equipment and ability to
perform the contract by the anticipated deadline. These were held
to fall outside the scope of award criteria as they were all
concerned with the tenderer’s suitability to perform the contract
which is to be taken into account as qualitative selection criteria
only. The two sets of criteria are governed by different procedures
and different rules and must therefore remain distinct.
Main question referred
With regard to the main question referred, the
ECJ highlighted the importance of the principle of equal treatment
and the ensuing obligation of transparency. This requires tenderers
to be made aware of all the elements to be taken into account by
the contracting authority and their relative importance at the time
they prepare their tenders. In light of this, the ECJ stated that
where a contract is to be awarded on the basis of the most
economically advantageous tender, the award criteria is to be
stated in the contract documents or contract notice. The
contracting authority cannot subsequently apply weightings or
sub-criteria that it has not previously brought to the tenderer’s
attention.
Summary
Although the judgment was based on the
interpretation of the old Public Services Contracts Directive
(92/50), it is equally applicable to the procedures for the award
of contracts under the new Public Sector Directive (2004/18). The
judgment provides a sharp reminder to all contracting authorities
of the importance of stating the award criteria and weightings in
the initial contract documents or contract notice both fully and
accurately.
For more information or
advice, please contact Peter Ware or Sharon
Jones.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.