Overview

Throughout the evolution of public procurement acquis, the procedural phase in the procurement process culminated through the application of objectively determined criteria which demonstrate the logic behind the behavior of contracting authorities. There are two criteria on which the contracting authorities must base the award of public contracts[1]; (a) the most economically advantageous tender or (b) the lowest price.

The most economically advantageous tender

When the award is made to the tender most economically advantageous from the point of view of the contracting authority, various criteria linked to the subject-matter of the public contract in question, for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, can be taken into consideration. The above listed criteria which constitute the parameters of the most economically advantageous offer are not exhaustive[2].
For the purposes of defining what does constitute a most economically advantageous offer, the contracting authority must specify in the contract notice or in the contract documents or, in the case of a competitive dialogue, in the descriptive document, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender. Those weightings can be expressed by providing for a range with an appropriate maximum spread. Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority must indicate in the contract notice or contract documents or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance[3].
The meaning of the most economically advantageous offer includes a series of factors chosen by the contracting authority, including price, delivery or completion date, running costs, cost-effectiveness, profitability, technical merit, product or work quality, aesthetic and functional characteristics, after-sales service and technical assistance, commitments with regard to spare parts and components and maintenance costs, security of supplies. The above list is not exhaustive and the factors listed therein serve as a guideline for contracting authorities in the weighted evaluation process of the contract award.

The Court’s stance on the meaning of the most economically advantageous tender

The Court reiterated the flexible and wide interpretation of the relevant award criterion[4] and had no difficulty in declaring that contracting authorities may use the most economically advantageous offer as award criterion by choosing the factors which they want to apply in evaluating tenders[5], provided these factors are mentioned, in hierarchical order or descending sequence in the invitation to tender or the contract documents[6], so tenderers and interested parties can clearly ascertain the relative weight of factors other than price for the evaluation process. However, factors, which have no strict relevance in determining the most economically advantageous offer by reference to objective criteria do involve an element of arbitrary choice and therefore should be considered as incompatible with the Directives[7].


Social considerations as award criteria

The most economically advantageous offer as an award criterion has provided the Court for the opportunity to balance the economic considerations of public procurement with policy choices. Although in numerous instances the Court has maintained the importance of the economic approach[8] to the regulation of public sector contracts, it has also recognised the relative discretion of contracting authorities to utilise non-economic considerations as award criteria. In Beentjes[9], the Court ruled that social policy considerations and in particular measures aiming at the combating of long term unemployment could only be part of the award criteria of public contracts, especially in cases where the most economically advantageous offer is selected. The Court accepted that the latter award criterion contains features that are not exhaustively defined in the Directives, therefore there is discretion conferred on contracting authorities to specify what would the most economically advantageous offer for them. However, contracting authorities cannot refer to such measures as a selection criterion and disqualify candidates, which could not meet the relevant requirements. The selection of tenderers is a process, which is based on an exhaustive list of technical and financial requirements expressly stipulated in the relevant Directives and the insertion of contract compliance as a selection and qualification requirement would be considered ultra vires. The Court held that a contractual condition relating to the employment of long term unemployed persons is compatible with the public procurement Directives, if it has no direct or indirect discrimina­tory effect on tenders from other Member States. Furthermore, such a contractual condition must be mentioned in the tender notice[10]. Rejection of a contract on the grounds of a con­tractor’s inabil­ity to employ long-term unemployed persons has no rela­tion to the checking of the contractors’ suitability on the basis of their economic and financial standing and their technical knowledge and ability. The Court maintained that measures relating to employment could be utilised as a feature of the award criteria, only when they are part of a contractual obligation of the public contract in question and on condition that they do not run contrary to the fundamental principles of the Treaty. The significance of that qualification has revealed the Court’s potential stance over the issue of contract compliance in public procurement.
In the recent case Nord-pas-de-Calais, the Court considered whether a condition linked to a local project to combat unemployment could be considered as an award criterion of the relevant contract. The Commission alleged that the French Republic has infringed Article 30(1) of Directive 93/37 purely and simply by referring to the criterion linked to the campaign against unemployment as an award criterion in some of the disputed contract notices. Under Article 30(1) of Directive 93/37, the criteria on which contracting authorities are to base the award of contracts are the lowest price only or, when the award is made to the most economically advantageous tender, various criteria according to the contract, such as price, period for completion, running costs, profitability, and technical merit.
The Court held that the most economically advantageous offer does not preclude all possibility for the contracting authorities to use as a criterion a condition linked to the campaign against unemployment provided that that condition is consistent with all the fundamental principles of Community law, in particular the principle of non-discrimination deriving from the provisions of the Treaty on the right of establishment and the freedom to provide services[11]. Furthermore, even if such a criterion is not in itself incompatible with Directive 93/37, it must be applied in conformity with all the procedural rules laid down in that directive, in particular the rules on advertising[12]. The Court therefore accepted the employment considerations as an award criterion, part of the most economically advantageous offer, provided it is consistent with the fundamental principles of Community law, in particular the principle of non-discrimination and it is advertised in the contract notice.

In Concordia[13], the Court was asked inter alia whether environmental considerations such as low emissions and noise levels of vehicles could be included amongst the factors of the most economically advantageous criterion, in order to promote certain types of vehicles that meet or exceed certain emission and noise levels. The Court followed the Beentjes principle, and established that contracting authorities are free to determine the factors under which the most economically advantageous offer is to be assessed and that environmental considerations could be part of the award criteria, provided they do not discriminate over alternative offers, as well as they have been clearly publicised in the tender or contract documents. However, the inclusion of such factors in the award criteria should not prevent alternative offers that satisfy the contract specifications being taken into consideration by contracting authorities. Clearly the Court wanted to exclude any possibility of environmental considerations being part of selection criteria or disguised as technical specifications, capable of discriminating against tednderes that could not meet them. Criteria relating to the environment, in order to be permissible as additional criteria under the most economically advantageous offer must satisfy a number of conditions, namely they must be objective, universally applicable, strictly relevant to the contract in question, and clearly contribute an economic advantage to the contracting authority[14].

Ecological criteria

A question arose as to whether under Article 36(1) of Directive 92/50 or Article 34(1)(a) of Directive 93/3 which define the most economically advantageous offer as an award criterion, the inclusion of a reduction of the nitrogen oxide emissions or the noise level of the vehicles in such a way that if those emissions or that noise level is below a certain ceiling additional points may be awarded for the comparison of tenders[15].
The Court considered that in public procurement the criteria for the decision must always be of an economic nature. If the objective of the contracting authority is to satisfy ecological or other considerations, it should have recourse to procedures other than public procurement procedures. The Commission contended that the criteria for the award of public contracts which may be taken into consideration when assessing the economically most advantageous tender must satisfy four conditions. They must be objective, apply to all the tenders, be strictly linked to the subject-matter of the contract in question, and be of direct economic advantage to the contracting authority. On the other hand, it was submitted before the Court that it is permissible to include ecological factors in the criteria for the award of a public contract. The public procurement Directives and in particular Article 36(1)(a) of Directive 92/50 and Article 34(1)(a) of Directive 93/38, list merely as examples factors which the contracting authorities may take into account when awarding public contracts[16]. Thus the protection of the environment could well be included amongst the factors which determine the most economically advantageous offer. In addition, reference was made to Article 6 EC, which requires environmental protection to be integrated into the other policies of the Community. Finally, the protection of the environment could have direct economic links with policies associated with health and social affairs in the Member States.
It also emerged that the award criteria based on the most economically advantageous offer may introduce two essential restrictions. First, the criteria chosen by the contracting entity must relate to the contract to be awarded and make it possible to determine the most economically advantageous tender for it. Secondly, the criteria must be directly linked to the subject-matter of the contract, have effects which can be measured objectively, must be quantifiable at the economic level and must be capable of guiding the discretion of the contracting entity on an objective basis without including elements of arbitrary choice.
The Court held that in order to determine whether and under what conditions the contracting authority may, in accordance with Article 36(1)(a), take into consideration criteria of an ecological nature, the criteria which may be used as criteria for the award of a public contract to the economically most advantageous tender are not listed exhaustively[17]. Secondly the Court maintained that Article 36(1)(a) cannot be interpreted as meaning that each of the award criteria used by the contracting authority to identify the economically most advantageous tender must necessarily be of a purely economic nature. It cannot be excluded that factors which are not purely economic may influence the value of a tender from the point of view of the contracting authority. That conclusion is also supported by the wording of the provision, which expressly refers to the criterion of the aesthetic characteristics of a tender. In the light of Article 130r(2) EC and Article 6 EC, which lay down that environmental protection requirements must be integrated into the definition and implementation of Community policies and activities, the Court concluded that Article 36(1)(a) of Directive 92/50 does not exclude the possibility for the contracting authority of using criteria relating to the preservation of the environment when assessing the economically most advantageous tender.
However, that does not mean that any criterion of that nature may be taken into consideration by contracting authorities. While Article 36(1)(a) of Directive 92/50 leaves it to the contracting authority to choose the criteria on which it proposes to base the award of the contract, that choice may, however, relate only to criteria aimed at identifying the economically most advantageous tender[18]. Since a tender necessarily relates to the subject-matter of the contract, it follows that the award criteria which may be applied in accordance with that provision must themselves also be linked to the subject-matter of the contract. The Court has held, in order to determine the economically most advantageous tender, the contracting authority must be able to assess the tenders submitted and take a decision on the basis of qualitative and quantitative criteria relating to the contract in question[19]. It is also clear that an award criterion having the effect of conferring on the contracting authority an unrestricted freedom of choice as regards the award of the contract to a tenderer would be incompatible with Article 36(1)(a) of Directive 92/50[20].
The criteria adopted to determine the economically most advantageous tender must be applied in conformity with all the procedural rules laid down in Directive 92/50, in particular the rules on advertising. It follows that, in accordance with Article 36(2) of that directive, all such criteria must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope[21]. Such criteria must comply with all the fundamental principles of Community law, in particular the principle of non-discrimination as it follows from the provisions of the Treaty on the right of establishment and the freedom to provide services[22].
The Court concluded that where the contracting authority decides to award a contract to the tenderer who submits the economically most advantageous tender, it may take criteria relating to the preservation of the environment into consideration, provided that they are linked to the subject-matter of the contract, do not confer an unrestricted freedom of choice on the authority, are expressly mentioned in the contract documents or the tender notice, and comply with all the fundamental principles of Community law, in particular the principle of non-discrimination.
The Court also found that the principle of equal treatment does not preclude taking into consideration criteria concerned with the protection of the environment because the contracting entity’s own transport undertaking is one of the few undertakings that actually perform the terms and conditions of the contract. The principle of equal treatment is not breached even if following a procedure for the award of a public contract, only one tender remains[23], or even in a case where only a comparatively small number of tenderers are able to satisfy the award criteria. It appears, however, that there is a limit to the permissibility of certain minimum ecological standards where the criteria applied restrict the market for the services or goods to be supplied to the point where there is only one tenderer remaining[24].

Variants

The obligation to set out the minimum specifications required by a contracting authority in order to take variants into consideration is not satisfied where the contract documents merely refer to a provision of national legislation requiring an alternative tender to ensure the performance of work which is qualitatively equivalent to that for which tenders are invited, without further specifying the comparative parameters on the basis of which such equivalence is to be assessed[25].
According to the public procurement Directives[26], where the criterion for the award of the contract is that of the most economically advantageous tender, contracting authorities may take account of variants which are submitted by a tenderer and meet the minimum specifications required by the contracting authorities. Contracting authorities must state in the contract documents the minimum specifications to be respected by the variants and any specific requirements for their presentation and they must indicate in the tender notice if variants are not permitted. Contracting authorities may not reject the submission of a variant on the sole grounds that it has been drawn up with technical specifications defined by reference to national standards transposing European standards, to European technical approvals or to common technical specifications referred to in the public procurement Directives[27].
Where the contracting authority has not excluded the submission of variants, it is under an obligation to set out in the contract documents the minimum specifications with which those variants must comply. Consequently, a reference made in the contract documents to a provision of national legislation cannot satisfy the requirements of transparency and equal treatment of tenderers wishing to forward a variant bid[28]. Tenderers may be deemed to be informed in the same way of the minimum specifications with which their variants must comply in order to be considered by the contracting authority only where those specifications are set out in the contract documents. This involves an obligation of transparency designed to ensure compliance with the principle of equal treatment of tenderers, which must be complied with in any procurement procedure governed by the Directive[29].
A question arose as to whether a contracting authority can reject an alternative tender which differs from a tender conforming to the contract specifications in that it proposes different technical specifications, without specifying the comparative parameters to be used to assess the equivalence of all tenders[30]. The Court asserted that that consideration of variants is subject to fulfillment of the requirement that the minimum specifications with which those variants must comply be set out in the contract documents and that a mere reference in those documents to a provision of national legislation is insufficient to satisfy that requirement. Variants may not be taken into consideration where the contracting authority has failed to comply with the requirements with respect to the statement of the minimum specifications, even if they have not been declared inadmissible in the tender notice. The Court held that award criteria based on the most economically advantageous offer can apply only to variants which have been properly taken into consideration by a contracting authority.

Criteria related to the subject matter of the contract

A question arose as to whether a contracting authority can apply and under what conditions, in its assessment of the most economically advantageous tender for a contract for the supply of electricity, a criterion requiring that the electricity supplied be produced from renewable energy sources[31]. In principle, that question referred to the possibility of a contracting authority to lay down criteria that pursue advantages which cannot be objectively assigned a direct economic value, such as advantages related to the protection of the environment. The Court held that that each of the award criteria used by the contracting authority to identify the most economically advantageous tender must not necessarily be of a purely economic nature[32]. The Court therefore accepted that where the contracting authority decides to award a contract to the tenderer who submits the most economically advantageous tender it may take into consideration ecological criteria, provided that they are linked to the subject-matter of the contract, do not confer an unrestricted freedom of choice on the authority, are expressly mentioned in the contract documents or the tender notice, and comply with all the fundamental principles of Community law, in particular the principle of non-discrimination[33]. The Court concluded that the public procurement Directives do not preclude a contracting authority from applying, in the context of the assessment of the most economically advantageous tender for a contract for the supply of electricity, a criterion requiring that the electricity supplied be produced from renewable energy sources, provided that that criterion is linked to the subject-matter of the contract, does not confer an unrestricted freedom of choice on the authority, is expressly mentioned in the contract documents or the contract notice, and complies with all the fundamental principles of Community law, in particular the principle of non-discrimination.
The criterion requiring that the electricity supplied be produced from renewable energy sources had a number of characteristics which posed further questions as to their compatibility with public procurement acquis. In particular, the criterion that the electricity supplied should be produced from renewable energy sources had a weighting of 45%; was not accompanied by requirements which permit the accuracy of the information contained in the tenders to be effectively verified, and could not necessarily achieve the objective pursued; did not impose a defined supply period; and required tenderers to state how much electricity they can supply from renewable energy sources to a non-defined group of consumers, and allocated the maximum number of points to whichever tenderer stated the highest amount, where the supply volume is taken into account only to the extent that it exceeded the volume of consumption to be expected in the context of the contract to which the invitation to tender relates.
With regard to the criterion that the that the electricity supplied should be produced from renewable energy sources had a weighting of 45%, the question posed was whether a consideration such as the protection of the environment which is not capable of being assigned a direct economic value, could have such a significant influence on the award decision. The Court held that it is open to the contracting authority when choosing the most economically advantageous tender to choose the criteria on which it proposes to base the award of contract, provided that the purpose of those criteria is to identify the most economically advantageous tender and that they do not confer on the contracting authority an unrestricted freedom of choice as regards the award of the contract to a tenderer[34]. Such criteria must be applied in conformity with both the procedural rules and the fundamental principles laid down in Community law[35]. The Court maintained that contracting authorities are free not only to choose the criteria for awarding the contract but also to determine the weighting of such criteria, provided that the weighting enables an overall evaluation to be made of the criteria applied in order to identify the most economically advantageous tender.
With reference to the award criterion requiring that the electricity supplied be produced from renewable energy sources and its relative weighting of 45% in the evaluation process of determining the most economically advantageous offer, the Court held that the use of renewable energy sources for producing electricity is useful for protecting the environment in so far as it contributes to the reduction in emissions of greenhouse gases which are amongst the main causes of climate change which the European Community and its Member States have pledged to combat[36]. Therefore, the importance of the objective pursued by that criterion justified its weighting of 45% and did not present an obstacle to an overall evaluation of the criteria applied in order to identify the most economically advantageous tender.
The award criterion requiring that the electricity supplied be produced from renewable energy sources was not accompanied by requirements which permit the accuracy of the information contained in the tenders to be effectively verified, and as a result it was deemed that it could not necessarily serve the objective pursued. That posed a serious question as to the compatibility of such a criterion with public procurement rules. The Court held that an award criterion which is not accompanied by requirements which permit the information provided by the tenderers to be effectively verified is contrary to the principles of Community law in the field of public procurement and particularly the principle of equal treatment, which underlies[37] the public procurement Directives and implies 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[38]. More specifically, that means that when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers[39]. The principle of equal treatment implies also an obligation of transparency in order to enable verification that it has been complied with, which consists in ensuring, inter alia, review of the impartiality of procurement procedures[40]. Objective and transparent evaluation of the various tenders depends on the contracting authority, relying on the information and proof provided by the tenderers, being able to verify effectively whether the tenders submitted by those tenderers meet the award criteria. The Court concluded that where a contracting authority lays down an award criterion indicating that it neither intends, nor is able, to verify the accuracy of the information supplied by the tenderers, it infringes the principle of equal treatment, because such a criterion does not ensure the transparency and objectivity of the tender procedure. However, the fact that an award criterion such as the requirement to supply electricity from renewable energy sources is not objectively verifiable cannot be regarded as incompatible with public procurement law simply because it does not necessarily achieve the objective pursued, in so far as it is not necessarily capable of helping to increase the amount of electricity produced from renewable energy sources.
The fact that in the invitation to tender the contracting authority omitted to determine the period in respect of which tenderers had to state the amount of electricity from renewable energy sources which they could supply, would result in an infringement of the principles of equal treatment and transparency if that omission made it difficult or even impossible for tenderers to interpret the exact scope of the criterion in question in a uniform manner. The Court held that it is for the national courts to determine the clarity of formulation of award criteria constituting the most economically advantageous offer to satisfy the requirements of equal treatment and transparency of procedures for awarding public contracts.
With regard to the requirement of the award criterion consisting in the allocation of points for the total amount of electricity from renewable energy sources in excess of the volume expected though the particular contract in question, the Court held that such a requirement is incompatible with the Community legislation on public procurement. The fact that the amount of electricity in excess of the expected annual consumption is decisive to the determination of the most economically advantageous offer is liable to confer an advantage on tenderers who, owing to their larger production or supply capacities, are able to supply greater volumes of electricity than other tenderers. That criterion is thus liable to result in unjustified discrimination against tenderers whose tender is fully able to meet the requirements linked to the subject-matter of the contract. Such a limitation on the circle of economic operators in a position to submit a tender would have the effect of thwarting the objective of opening up the market to competition pursued by the directives coordinating procedures for the award of public supply contracts.
The Court maintained that a criterion relating to the reliability of supplies is a legitimate factor in determining the most economically advantageous offer for a contracting authority[41]. However, the capacity of tenderers to provide the largest amount of electricity possible from renewable sources in excess of the amount laid down in the invitation to tender cannot legitimately be given the status of an award criterion. The award criterion applied did not relate to the service which is the subject-matter of the contract, namely the supply of an amount of electricity to the contracting authority corresponding to its expected annual consumption as laid down in the invitation to tender, but to the amount of electricity that the tenderers have supplied, or will supply, to other customers. An award criterion that relates solely to the amount of electricity produced from renewable energy sources in excess of the expected annual consumption, as laid down in the invitation to tender, cannot be regarded as linked to the subject-matter of the contract. The applicants in the main proceedings submitted that the award criterion in question is in fact a disguised selection criterion inasmuch as it concerns the tenderers’ capacity to supply as much electricity as possible from renewable energy sources and, in that way, ultimately relates to the tenderers themselves.
The Court concluded that Community legislation on public procurement does not preclude a contracting authority from applying, in the context of the assessment of the most economically advantageous tender for a contract for the supply of electricity, an award criterion with a weighting of 45% which requires that the electricity supplied be produced from renewable energy sources. The fact that that criterion does not necessarily serve to achieve the objective pursued is irrelevant in that regard. On the other hand, public procurement law does preclude such a criterion where it is not accompanied by requirements which permit the accuracy of the information contained in the invitation to tender document to be effectively verified and it contains factors for its assessment which are not directly linked to the subject matter of the procurement in question.

The lowest price

When the lowest price has been selected as the award criterion, contracting authorities must not refer to any other qualitative consideration when deliberating the award of a contract. The lowest price is a sole quantitative benchmark that intends to differentiate the offers made by tenderers[42]. However, contracting authorities can reject a tender, if they regard the price attached to it as abnormally low.


Abnormally low tenders

In cases that tenders appear to be abnormally low in relation to the goods, works or services, the contracting authority must request in writing details of the constituent elements of the tender which it considers relevant before it rejects those tenders[43].
The clarification details[44] may relate in particular to:
(a) the economics of the construction method, the manufacturing process or the services provided; (b) the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work, for the supply of the goods or services; (c) the originality of the work, supplies or services proposed by the tenderer; (d) compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed; (e) the possibility of the tenderer obtaining state aid.
Where a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender can be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting authority that the aid in question was granted legally[45]. Where the contracting authority rejects a tender in these circumstances, it must inform the Commission of their decision.


The Court’s stance on the rejection of an abnormally low offer

Although the previous public procurement Directives provided for an automatic disqualification of an “obviously abnormally low offer”, the term did not receive a detailed clarification by the European Commission. The term neither has been interpreted in detail by the Court and its remit has served as an indication of a “lower limit”[46]. The Court, however, pronounced on the direct effect of the relevant provision requiring contracting authorities to examine the de­tails of the tender before deciding the award of the con­tract. The contracting authori­ties are under duty to seek from the tenderer an ex­planation for the price submitted or to inform him that his tender appears to be abnormally low and to allow a reason­able time within which to submit further details, before making any decision as to the award of the contract.
The debate over the terminology of “obviously abnormally low” tenders surfaced when the Court held[47] that rejection of a contract based on mathematical criteria without giving the tenderer an opportu­nity to furnish information is inconsistent with spirit of the public procurement Directives. The Court following previ­ous case-law[48] ruled that the con­tracting authorities must give an opportunity to tender­ers to furnish explanations re­garding the genuine nature of their tenders, when those ten­ders appear to be abnor­mally low. Unfortunately, the Court did not proceed to an analysis of the wording “obviously”. It rather seems that the term “obviously” in­dicates the existence of precise and concrete evi­dence as to the abnormality of the low tender. On the other hand, the wording “abnormally” implies a quantitative criterion left to the discre­tion of the contracting authority. However, if the tender is just “abnormally” low, it could be ar­gued that it is within the discretion of the contracting au­thority to investigate the genuine offer of a tender. Impresa Lombardini[49], followed the precedence established by Transporoute and maintained the unlawfulness of mathematical criteria used as an exclusion of a tender which appears abnormally low. Nevertheless, it held that such criteria may be lawful if used for determining the abnormality of a low tender, provided an inter partes procedure between the contracting authority and the tenderer that submitted the alleged abnormal low offer offers the opportunity to clarify the genuine nature of that offer. Contracting authorities must take into account all reasonable explanations furnished and avoid limiting the grounds on which justification of the genuine nature of a tender should be made. Both the word­ing and the aim of the public procurement Directives direct con­tracting authorities to seek explana­tion and reject unre­alistic offers, informing the Advi­sory Committee[50]. In ARGE[51], the rejection of a tender based on the abnormally low pricing attached to it got a different twist in its interpretation. Although the Court ruled that directly or indirectly subsidised tenders by the state or other contracting authorities or even by the contracting authority itself can be legitimately part of the evaluation process, it did not elaborate on the possibility of rejection of an offer, which is appreciably lower than those of unsubsidised tenderers by reference to the of abnormally low disqualification ground[52].

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[1] Article 53 of the Public Sector Directive.
[2] Article 53(1)(a) of the Public Sector Directive.
[3] Article 53(2) of the Public Sector Directive.
[4] Case 31/87, Gebroeders Beentjes v. The Netherlands, op.cit, paragraph 19.
[5] Case C-324/93, R. v. The Secretary of State for the Home Department, ex.parte Evans Medical Ltd and Macfarlan Smith Ltd, judgment of 28 March 1995, where the national court asked whether factors concerning continuity and reliability as well as security of supplies fall under the framework of the most economically advantageous offer, when the latter is being evaluated.
[6] see paragraph 22 of Beentjes.
[7] See paragraph 37 of Beentjes.
[8] See cases C-380/98, (Cambridge University) at paragraph 17, C-44/96, (Strohal), paragraph 33; C-360/96, (BFI) paragraphs 42 and 43; C-237/99, (OPAC), paragraphs 41 and 42.
[9] See case 31/87, Gebroeders Beentjes B.V v. The Netherlands, [1989] ECR 4365.
[10] See Bellini Case 28/86, [1987] ECR 3347.
[11] See, Beentjes, paragraph 29.
[12] See, to that effect, paragraph 31 of the judgment, where the Court stipulated that an award criterion linked to the campaign against unemployment must be expressly mentioned in the contract notice so that contractors may become aware of its existence.
[13] See case C-513/99, Concordia Bus Filandia v. Helsingin Kaupunki et HKL-Bussiliikenne, op.cit.
[14] See the analysis in the opinion of he Advocate-General, paragraphs 77 to 123.
[15] See case C-513/99 Concordia Bus Finland [2002] ECR I-7213
[16] Article 36(1)(a) of Directive 92/50 and Article 34(1)(a) of Directive 93/38 provides that the criteria on which the contracting authority may base the award of contracts may, where the award is made to the economically most advantageous tender, be various criteria relating to the contract, such as, for example, quality, technical merit, aesthetic and functional characteristics, technical assistance and after-sales service, delivery date, delivery period or period of completion, or price.
[17] See case C-19/00SIAC Construction [2001] ECR I-7725, paragraph 35.
[18] See Beentjes, paragraph 19, Evans Medical and Macfarlan Smith, paragraph 42, and SIAC Construction, paragraph 36.
[19] See case 274/83 Commission v Italy [1985] ECR 1077, paragraph 25.
[20] See Beentjes, paragraph 26, and SIAC Construction, paragraph 37.
[21] See Beentjes, paragraphs 31 and 36, and Case C-225/98 Commission v France [2000] ECR I-7445, paragraph 51.
[22] See Beentjes, paragraph 29, and Commission v France, paragraph 50.
[23] See case C-27/98 Fracasso and Leitschutz [1999] ECR I-5697, paragraphs 32 and 33.
[24] See case 45/87, Commission v Ireland [1988] ECR 4929.
[25] See case C-421/01, Traunfellner GmbH and Österreichische Autobahnen und Schnellstraßen Finanzierungs-AG (Asfinag)
[26] See Article 19 of the public works Directive 93/37 and the equivalent provisions in all public procurement Directives.
[27] See Article 10(2) or by reference to national technical specifications referred to in Article 10(5)(a) and (b) of the public works Directive 93/37 and the equivalent provisions in all public procurement Directives.
[28] See case 31/87 Beentjes [1988] ECR 4635, paragraph 35, and case C-225/98 Commission v France [2000] ECR I-7445, paragraph 73.
[29] See case C-19/00 SIAC Construction [2001] ECR I-7725, paragraphs 41 and 42.
[30] See case C-421/01, Traunfellner GmbH and Österreichische Autobahnen und Schnellstraßen Finanzierungs-AG (Asfinag)
[31] See case C-448/01, EVN AG, Wienstrom GmbH and Republik Österreich, judgment of 4 December 2003.
[32] See case C-513/99 Concordia Bus Finland [2002] ECR I-7123, paragraph 55.
[33] See case C-513/99 Concordia Bus Finland [2002] ECR I-7123, paragraph 69.
[34] See case 31/87 Beentjes [1988] ECR 4635, paragraphs 19 and 26; Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraphs 36 and 37; and Concordia Bus Finland, paragraphs 59 and 61.
[35] See Beentjes, paragraphs 29 and 31, and Concordia Bus Finland, paragraphs 62 and 63.
[36] See case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 73.
[37] See case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 91, and case C-315/01 GAT [2003] ECR I-0000, paragraph 73.
[38] See SIAC Construction, paragraph 34.
[39] See SIAC Construction, paragraph 44.
[40] See Universale-Bau and Others, paragraphs 91 and 92.
[41] See case C-448/01, EVN AG, Wienstrom GmbH and Republik Österreich, judgment of 4 December 2003, paragraph 70.
[42] See Article 53(1)(b) of the Public Sector Directive.
[43] Article 55 of the Public Sector Directive.
[44] Article 55(1) of the Public Sector Directive.
[45] Article 55(3) of the Public Sector Directive.
[46] See case C-76/81, SA Transporoute et Travaux v. Minister of Public Works, [1982] ECR 457.
[47] See case C-103/88, Fratelli Costanzo S.p.A. v. Comune di Milano, [1989] ECR 1839; Case 296/89, Impresa Dona Alfonso di Dona Alfonso & Figli s.n.c. v. Consorzio per lo Sviluppo Industriale del Comune di Monfalcone, judgment of 18 June 1991.
[48] See case C- 76/81 Transporoute, [1982] ECR 417, op.cit.
[49] See case C-285/99 & 286/99, Impresa Lombardini SpA v ANAS, judgment of 27 November 2001.
[50] The Advisory Committee for Public Procurement was set up by Decision 77/63 (O.J.1977 L 13/15) and is composed of representatives of the Member States belonging to the authorities of those States and has as its task to supervise the proper application of Public Procurement Directives by Member States.
[51] See case C-94/99, ARGE Gewässerschutzt, op.cit.
[52] In ARGE the Court adopted a literal interpretation of the Directives and concluded that if the legislature wanted to preclude subsidized entities from participating in tendering procedures for public contracts, it should have said so explicitly in the relevant Directives. See paragraphs 26 et seq of the Court’s judgment. Although the case has relevance in the fields of selection and qualification procedures and award criteria, the Court made no references to previous case law regarding state aids in public procurement, presumably because the Dupont de Nemours precedence is still highly relevant.

(pubblicato l’11.6.2012)

Note

L'articolo Award criteria in Public Sector Procurement proviene da Giustamm.