| | 32004L0018: c3-55.1-2Before it may reject, verify    
| 32004L0018 - Classic (3rd generation) | Article 55.1-2 | Article 55
Abnormally low tenders
1. If, for a given contract, tenders appear to be abnormally low in relation to the goods, works or services, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant.
Those details 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.
2. The contracting authority shall verify those constituent elements by consulting the tenderer, taking account of the evidence supplied. | | 32004L0017 - Utilities (3rd generation) | Article 57.1-2 | Article 57
Abnormally low tenders
1. If, for a given contract, tenders appear to be abnormally low in relation to the goods, works or services, the contracting entity shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant.
Those details may relate in particular to:
(a) the economics of the manufacturing process, of the services provided and of the construction method;
(b) the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the supply of the goods or services or for the execution of the work;
(c) the originality of the supplies, services or work 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.
2. The contracting entity shall verify those constituent elements by consulting the tenderer, taking account of the evidence supplied. | | 31993L0037 - Works (2nd generation) | Article 30.4.1-2 | 4. If, for a given contract, tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations which are justified on objective grounds including the economy of the construction method, or the technical solution chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the work, or the originality of the work proposed by the tenderer. | | 31993L0036 - Goods (2nd generation) | Article 27.1-2 | Article 27
If, for a given contract, tenders appear to be abnormally low in relation to the goods to be supplied, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations relating to the economics of the manufacturing process, or to the technical solutions chosen, or to the exceptionally favourable conditions available to the tenderer for the supply of the goods, or to the originality of the suppliers proposed by the tenderer. | | 31992L0050 - Services (2nd generation) | Article 37.1-2 | Article 37
If, for a given contract, tenders appear to be abnormally low in relation to the service to be provided, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations which are justified on objective grounds including the economy of the method by which the service is provided, or the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer for the provision of the service, or the originality of the service proposed by the tenderer. | | 31993L0038 - Utilities (2nd generation) | Article 34.5.1-2 | 5. If, for a given contract, tenders appear abnormally low in relation to the provision of services, the contracting entity shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received. It may set a reasonable period within which to reply.
The contracting entity may take into consideration explanations which are justified on objective grounds relating to the economy of the construction or production method, or the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the contract, or the originality of the product or the work proposed by the tenderer. | | 31971L0305 - Works (1st generation) | Article 29.5.1-2 | 5. If, for a given contract, tenders are obviously abnormally low in relation to the transaction, the authority awarding contracts shall examine the details of the tenders before deciding to whom it will award the contract. The result of this examination shall be taken into account.
For this purpose it shall request the tenderer to furnish the necessary explanations and, where appropriate, it shall indicate which parts it finds unacceptable. | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.20=W1-29.5.1-2 | 5. If, for a given contract, tenders appear to be abnormally low in relation to the transaction, before it may reject those tenders the contracting authority shall request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations which are justified on objective grounds including the economy of the construction method, or the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the work, or the originality of the work proposed by the tenderer. | | 31977L0062 - Goods (1st generation) | Article 25.5-6 | 5. If, for a given contract, tenders are obviously abnormally low in relation to the goods to be supplied, the contracting authority shall examine the details of the tenders before deciding to whom it will award the contract. For this purpose it shall request the tenderer to furnish the necessary explanations and, where appropriate, it shall indicate which parts it finds unacceptable.
6. The result of the examination referred to in paragraph 5 shall be taken into account when the contract is awarded. | | 31990L0531 - Utilities (1st generation) | Article 27.5.1-2 | 5. If, for a given contract, tenders appear abnormally low in relation to the services, the contracting entity shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received. It may set a reasonable period within which to reply.
The contracting entity may take into consideration explanations which are justified on objective grounds relating to the economy of the construction or production method, or the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the contract, or the originality of the product or the work proposed by the tenderer. |
| 32002R2342 - Implementation of Community (4th generation) - Commission M4 | Article 139 | 1. If, for a given contract, tenders appear to be abnormally low, the contracting authority shall, before rejecting such tenders on that ground alone, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements, after due hearing of the parties, taking account of the explanations received.
The contracting authority may, in particular, take into consideration explanations relating to:
(a) the economics of the manufacturing process, of the provision of services or of the construction method;
(b) the technical solutions chosen or the exceptionally favourable conditions available to the tenderer;
(c) the originality of the tender.
2. Where the contracting authority establishes that a tender is abnormally low as a result of State aid provided, it may reject the tender on that ground alone only if the tenderer is unable to prove, within a reasonable time determined by the contracting authority, that the aid in question has been awarded definitively and in accordance with the procedures and decisions specified in the Community rules on State aid. | | 32005R1261 - First amendment of implementation of Community (4th generation) - Commission M4A1 | Article 1.23=M4-139.1.1.s2 | In Article 139(1), the following sentence is added in the first subparagraph:
These details may relate in particular to 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. | | 32002R2342 - Implementation of Community (4th generation) - Commission M4 | Article 146.4 | | 4. In the case of abnormally low tenders as referred to in Article 139 of this Regulation, the evaluation committee shall request any relevant information concerning the composition of the tender. |
| Case | Pte | Ref | Text | T-195/05-R
Deloitte | 106 | M4-139.1.1-impl
ECT-RigHea | 106. Second, as regards the alleged obligation on the part of the evaluation committee to consult a tenderer before eliminating its tender, in this plea the applicant does not rely on any legal basis imposing such a duty on the Commission. In so far as the applicant relies implicitly on the principle of the rights of the defence, it should be noted that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views (Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I5373, paragraph 21). However, in the present case, the applicant does not, prima facie, put forward any arguments to show that the tendering procedure is initiated against it. | T-495/05
Belfass | 87-90 | M4-139.1.1
CFIR-44.1.c
CFIR-48.2 | 87 According to settled case-law, it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the Court of First Instance that the original application must contain the subjectmatter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 25; Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9; and Case T-216/95 Moles García Ortúzar v Commission [1997] ECR-SC I-A-403 and II-1083, paragraph 87).
88 The case-law also provides that, under Article 139(1) of the Implementing Rules, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low (Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 49).
89 In the present case, the Court finds that, in paragraph 17 of its application, the applicant places particular reliance, in support of it action against the decision of 13 October 2004, in so far as it relates to Lot No 2, on the infringement of the general principle of sound administration, infringement of the principle of non-discrimination and a manifest error of assessment, in that its tender was rejected, without being given further consideration, on the sole ground that the total number of hours of work in that tender was more than 12.5% lower than the average of the total number of hours proposed. Similarly, in paragraph 26 of its application, it submits that the implementation of that criterion is discriminatory in that it leads to the automatic exclusion, without further consideration, of objectively more advantageous tenders. It follows that the applicant, in its application, expressly criticised the Council for having rejected its tender without further consideration, by reason of its being abnormally low.
90 It follows that although the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules, was not expressly raised by the applicant until its reply, that plea represents an amplification of the three pleas put forward in the original application and is closely connected with them. That plea must accordingly be declared admissible. | T-495/05
Belfass | 91-94 | M4-139.1.1 | 91 As was mentioned in paragraph 89 above, the three pleas raised in the application and alleging infringement of the principle of sound administration, a manifest error of assessment and infringement of the principle of non-discrimination essentially seek to show that the Council was wrong not to invite the applicant, prior to the automatic elimination of the latter’s tender by reason of the abnormally low number of hours proposed by the applicant and in accordance with the principle that the constituent elements of that tender should be verified after due hearing of the parties laid down in Article 139(1) of the Implementing Rules, to provide it with evidence that the tender was a genuine one. Consequently, it is appropriate to start by examining the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules.
92 In that respect, it is necessary, in the first place, to determine whether the concept of abnormally low tender extends, as the Council submits, only to the price criterion in the tender assessed by the contracting authority or, as the applicant essentially claims, that concept also extends to other criteria which apply to the evaluation of tenders.
93 According to the case-law, since the requirements laid down by Article 29(5) of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), by Article 37(1) of Directive 92/50 and by Article 30(4) of Directive 93/37 are in substance identical to those laid down by Article 139(1) of the Implementing Rules, the following considerations apply equally in relation to the interpretation of the last-mentioned provision (see, by way of analogy, Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 50).
94 It must also be pointed out that the Court of Justice held in paragraph 67 of the judgment in Lombardini and Mantovani, cited in paragraph 93 above, that it was undisputed that Article 30(4) of Directive 93/37 did not define the concept of an abnormally low tender and, a fortiori, did not determine the method of calculating an anomaly threshold. In the same case, the Advocate General was of the opinion that the concept of an abnormally low tender was not an abstract one, but was very precise and had to be determined for each contract according to the specific purpose it was intended to fulfil (Opinion of Advocate General Ruiz-Jarabo Colomer in Lombardini and Mantovani, cited in paragraph 93 above, points 32 and 35). | T-495/05
Belfass | 95-100 | M4-139.1.1 | 95 In the present case, the Court finds, first, that there is no definition of the anomaly threshold and of the concept of abnormally low tender, within the meaning of Article 139(1) of the Implementing Rules, in the Financial Regulation or the Implementing Rules. Secondly, there is no express provision in that article to the effect that the concept of abnormally low tender cannot be applied to criteria other than that of price.
96 Consequently, in order to define the material scope of the concept of abnormally low tender within the meaning of Article 139(1) of the Implementing Rules, it is necessary, first of all, to take as a basis the objective pursued by that provision.
97 As was mentioned in paragraph 88 above, where a contracting authority considers that a tender is abnormally low, Article 139(1) of the Implementing Rules obliges it to allow the tenderer to clarify or even to explain the nature of its tender before rejecting that tender. More precisely, it is clear from the case-law that it is essential that each tenderer suspected of submitting an abnormally low tender should have the opportunity effectively to state its point of view in that respect, giving it the opportunity to supply all explanations as to the various elements of its tender at a time when it is aware not only of the anomaly threshold applicable to the contract in question and of the fact that its tender has appeared abnormally low, but also of the precise points which have raised questions on the part of the contracting authority (Lombardini and Mantovani, cited in paragraph 93 above, paragraph 53). At the same time, the Court of Justice stated that the existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer constitutes a fundamental requirement, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings (Lombardini and Mantovani, cited in paragraph 93 above, paragraph 57).
98 It follows that Article 139(1) of the Implementing Rules enshrines a fundamental requirement in the field of public procurement, which obliges a contracting authority to verify, after due hearing of the parties and having regard to its constituent elements, every tender appearing to be abnormally low before rejecting it.
99 Next, the Court notes that Article 97(2) of the Financial Regulation provides that contracts may be awarded by the automatic award procedure or by the best-value-for-money procedure and that, as regards the latter form of procedure, Article 138(2) of the Implementing Rules states that the tender to be accepted is the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.
100 The Court is accordingly of the view that, where the contract is awarded to the tender offering best value for money, the fundamental requirement referred to in paragraph 98 above applies not only to the price criterion under the tender evaluated but also to the other criteria referred to in Article 138(2) of the Implementing Rules, since those criteria allow an anomaly threshold to be determined beneath which a tender submitted in the tender procedure in question is suspected to be abnormally low, within the meaning of Article 139(1) of the Implementing Rules. | T-495/05
Belfass | 101-104 | M4-139.1.1 | 101 In the second place, it is necessary to determine in the light of the above whether the Council was, as the applicant submits, obliged in the present case to comply with the procedure for verification after due hearing of the parties laid down in Article 139(1) of the Implementing Rules.
102 In that regard, the Court notes that the award procedure in question was that of the tender offering best value for money. In addition, it is not in dispute that, of the criteria which were relevant, the criterion regarding the average of the total number of hours proposed related to the qualitative aspect of the applicant’s tender and constituted one of the various elements of its tender for the purposes of the case-law referred to in paragraph 97 above. Lastly, in accordance with the provisions of the specifications referred to in paragraph 16 above, that criterion allowed an anomaly threshold to be determined, beneath which the tender in question was to be automatically eliminated.
103 As is clear from the Council’s letter of 22 October 2004 and as the Council expressly confirmed at the hearing in reply to a question from the Court, it is on the basis of the latter criterion that the applicant’s tender was rejected, on the sole ground of the excessively low nature of the total number of hours included in that tender. Moreover, it is plain that the Council did not arrange any hearing of the parties, within the meaning of Article 139(1) of the Implementing Rules, in relation to the applicant’s tender prior to its being eliminated automatically.
104 That being the case, the Council has infringed the provisions of Article 139(1) of the Implementing Rules. | T-495/05
Belfass | 105-107 | M4-139.1.1 | 105 That conclusion cannot be affected by the fact that, as the Council argues in its reply, while the applicant’s total number of hours was 25.2% lower than that of the successful tenderer, its total price was, by contrast, 3.7% beneath that of that tenderer. It is sufficient to point out once again that, as is clear from the Council’s letter of 22 October 2004, the applicant’s tender was excluded on the sole ground that the total number of hours included in that tender was excessively low.
106 It follows from the foregoing that the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules, is well founded.
107 Consequently, without it being necessary to rule on the merits of the first three pleas raised in support of the action for annulment, the decision of 13 October 2004 should be annulled, in so far as it relates to Lot No 2. | T-148/04
TQ3 Travel Solutions | 49-50 | M4-139.1.1.s1
M4-146.1.1 | 49. Moreover, under Article 139 of the detailed implementing rules, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low. The obligation to check the seriousness of a tender also arises where there are doubts beforehand as to its reliability, also bearing in mind that the main purpose of that article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appears abnormally low.
50. The application of Article 146 of the detailed implementing rules is therefore inherently connected with that of Article 139 of those rules, since only when a tender is considered abnormally low, within the meaning of the latter article, is the evaluation committee required to request details of the constituent elements of the tender which it considers relevant before, where appropriate, rejecting it. Moreover, contrary to what the applicant claims, where a tender does not appear to be abnormally low for the purposes of Article 139 of the detailed implementing rules, Article 146 of those rules is not relevant. Consequently, given that the evaluation committee had no intention, in this case, of rejecting WT's tender, since that tender did not appear to it to be abnormally low, Article 139 of the detailed implementing rules proves to be irrelevant. | T-148/04
TQ3 Travel Solutions | 54-58 | Q4-97.2
M4-139.1.2 | 54. It must be observed that the wage costs are established on the basis, first, of the number of persons employed and, secondly, of the cost generated by each employee.
55. As regards, firstly, the number of employees, this may be a useful indicator from the point of view of a possible underestimate of the requirements essential for a satisfactory performance of the services covered by the invitation to tender. However, such statistical data cannot be considered a decisive guide, since the efficiency of a tenderer's structural organisation may justify a smaller number of employees.
56. In this case, the Court notes that, in estimating the number of employees necessary, WT took as its basis the annual average volume of transactions per manager', that calculation being based on an objective and realistic criterion. WT stated, in reply to a written question from the Court, that the number of employees which it considered necessary for lot 1 was 29, even though it knew that another tender was proposing a still lower number.
57. The applicant's estimate, according to which 39 persons are needed to perform the services, is not relevant, since the possibility remains that other tenderers may tender a lower number of employees by virtue, inter alia, of a more efficient modus operandi and greater technical competitiveness.
58. Consequently, the Court takes the view that the applicant has not proved to the requisite legal standard that WT's estimate, having regard to the number of employees, was inappropriate or that WT underestimated that number. | T-148/04
TQ3 Travel Solutions | 59-61 | M4-139.1.2 | 59. As regards, secondly, the cost per person, it is to be observed that WT proposed the second lowest price per employee, the applicant, for its part, having proposed the highest price.
60. In the light of that fact, it is apparent that WT was not the only economic operator to estimate the requirements for lot 1 at a cost below that estimated by the applicant. Moreover, the fact that another tenderer proposed a cost per person which was lower than that proposed by the selected tenderer may have confirmed the contracting authority's assessment that the prices proposed by WT were not abnormally low.
61. The Court notes that the applicant merely relies on the fact that WT proposed either an insufficient number of employees or an abnormally low level of pay allocated to them. However, the applicant has not adduced any evidence that the Commission made a manifest error of assessment. Consequently, the contracting authority was able to show that the number of employees proposed by WT was consistent and that the selected tender was not abnormally low. | T-148/04
TQ3 Travel Solutions | 62-63 | M4-139.1.2 | 62. So far as the operating expenses are concerned, it is apparent from Annex 2 to the contract document that those expenses are made up, firstly, of the expenses relating to the allocation by the agency of the period between the date of payment by the agency of its suppliers' invoices and the date of payment by the Commission of the agency's invoices and, secondly, of the other all management expenses and changes relating to capital goods, consumable goods, maintenance and operation of the computer and communication equipment used for the purposes of performing the contract.
63. In that regard, the applicant has adduced no proof that the operating expenses estimated by WT were abnormally low, but merely, in its pleadings, defined the components of those expenses without clarifying in what respect WT's estimate of them was abnormally low. | T-148/04
TQ3 Travel Solutions | 64-66 | M4-139.1.2 | 64. So far as general expenses are concerned, it must be observed that the Commission found that WT's tender showed a far lower proportion of general expenses than the applicant's tender. With regard to this item, it must be pointed out that tenderers make estimates on the basis of their practice and experience. The applicant's estimates cannot therefore be regarded as a standard, since the specific organisational structure of each tenderer may be a reason for lower expenses.
65. Furthermore, in the Commission's submission, WT was concerned to minimise costs whilst ensuring a high level of quality through reliance on highly efficient infrastructures and technologies, thanks to advanced productivity techniques'. It is apparent from a written reply to a question put by the Court that the Commission took into account inter alia the fact that WT was able to propose not only solutions deemed optimal for the provision of the services from the point of view of reducing costs, but also innovative information technology solutions. In addition, the exhaustive description of the technical and logistic resources in WT's tender enabled the Commission to satisfy itself that the infrastructures used and tools developed were geared to productivity and cost reduction whilst ensuring the effectiveness of the services. The technical tender also placed to the fore a concern to provide the best possible service at the lowest possible cost. 66. Consequently, in the light of that information, the Court considers that the Commission took pains to satisfy itself that the general expenses ensured correct performance of the expected services and that the selected tender was reliable and serious. | T-148/04
TQ3 Travel Solutions | 70-71 | Q4-97.2
M4-139.1.2 | 70. It must be held that, as is maintained by the Commission, the profitsharing scheme was taken into account in the qualitative assessment of the tender, in order to show that the Commission was fully entitled to consider that the tender was not abnormally low. That element was used in order to check the reliability and seriousness of the financial tender as a whole, and not as an award criterion. Since any discount received by the service provider gives rise to a proportional payment to the Commission and since, in this case, WT's tender envisaged a substantial proportion of additional income in the profitsharing part, the Commission was able to satisfy itself that the management fee' was economically in balance.
71. In the light of the foregoing, it does not appear that the Commission made a manifest error of assessment in considering that WT's financial tender offered best value for money, yet without being abnormally low. Accordingly, the first plea must be rejected. | | T-04/01 | 75-79 | W2-30.4 | 75 The Court finds that the applicant cannot criticise the Council for checking many of the prices quoted in its tender. It is apparent from the wording of Article 30(4) of Directive 93/37 that the Council is under a duty, first, to identify suspect tenders, secondly to allow the undertakings concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned, and, fourthly, to take a decision as to whether to admit or reject those tenders (Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 55). The Court notes, for example, that the Council, in its defence, stated that it had questioned the applicant about very many of the abnormally low prices, namely the price of 319 items in the summary out of a total of 1 020. It also asked the applicant for clarification regarding a series of very blatant anomalies and particularly about the price of the doors, which are the same for single doors, double doors or glass doors. The applicant has not provided adequate explanations for those anomalies either in its reply or at the hearing.
76 In that regard, the Court observes that, although Article 30(4) of Direcrtive 93/37 does not require the Council to check each price quoted in each tender, it must examine the reliability and seriousness of the tenders which it considers to be generally suspect, which necessarily means that it must ask, if appropriate, for details of the individual prices which seem suspect to it, a fortiori when there are many of them. Furthermore, the fact that the applicant's tender was considered to conform to the contract documents did not relieve the Council of its obligation, under the same article, to check the prices of a tender if doubts arose as to their reliability during the examination of the tenders and after the initial assessment of their conformity.
77 The Court finds that the Council correctly followed the procedure laid down by Article 30(4) of Directive 93/37 and, in particular, satisfied the requirements relating to the inter partes nature of the procedure by providing the applicant, on several occasions, with the opportunity to demonstrate that its tender was serious. In that regard, it is apparent from the correspondence between the parties and, in particular, from the applicant's letters to the Council of 24 January and 11 February 2000 (see paragraphs 17 and 19 above) that the applicant, in spite of specific requests from the Council, merely confirmed generally that the prices quoted in its tender were reasonable, without adducing the slightest evidence to establish the reliability of the individual prices.
78 The Council did not manifestly and seriously disregard the limits of its discretion in the matter by taking into consideration, when assessing the applicant's tender, the quoting of many abnormally low prices and the failure to give a convincing explanation which persisted even after the inter partes procedure laid down in Article 30(4) of Directive 93/37.
79 Therefore, the applicant's arguments relating to the abnormally low prices must be rejected. | C-285/99 & C-286/99
Impresa Lombardini | 37 | W2-na [C3-2]
W2-22.4
W2-30.4
W2-31.1 | 37 The contracting authority is therefore required to comply with the principle that tenderers should be treated equally, as indeed is expressly shown by Article 22(4), the fourth subparagraph of Article 30(4) and Article 31(1) of the Directive. | C-285/99 & C-286/99
Impresa Lombardini | 41-51 | W2-30.4 | 41 As the first recital in its preamble shows, the Directive constitutes a consolidation of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971(II), p. 682) and subsequent amendments thereto. As the Court has already held in paragraph 13 of its judgment in Case C-304/96 Hera [1997] ECR I-5685), Article 30(4) of the Directive corresponds to Article 29(5) of Directive 71/305, as amended by Council Directive 89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1).
42 In its initial version, Article 29(5) of Directive 71/305 was worded as follows: If, for a given contract, tenders are obviously abnormally low in relation to the transaction, the authority awarding contracts shall examine the details of the tenders before deciding to whom it will award the contract. The result of this examination shall be taken into account. For this purpose it shall request the tenderer to furnish the necessary explanations and, where appropriate, it shall indicate which parts it finds unacceptable. ...
43 The Court has already held that when, in the opinion of the authority awarding a public works contract, a tenderer's offer is obviously abnormally low in relation to the transaction, Article 29(5) of Directive 71/305 requires the authority to seek from the tenderer, before coming to a decision as to the award of the contract, an explanation of his prices or to inform the tenderer which of his tenders appear to be abnormal and to allow him a reasonable time within which to submit further details (Case 76/81 Transporoute [1982] ECR 417, paragraph 18).
44 In paragraph 17 of that judgment, the Court held that the contracting authority may not in any circumstances reject an abnormally low tender without even seeking an explanation from the tenderer, since the aim of Article 29(5) of Directive 71/305, which is to protect tenderers against arbitrariness on the part of the authority awarding contracts, could not be achieved if it were left to that authority to judge whether or not it was appropriate to seek explanations.
45 Similarly, the Court has consistently held that Article 29(5) of Directive 71/305 prohibits Member States from introducing provisions which require the automatic exclusion from procedures for the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the Directive (Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 19 and 21; Case C-295/89 Donà Alfonso [1991] ECR I-2967 (Summary publication), paragraphs 1 and 2 of the operative part).
46 The Court thus held that Article 29(5) of Directive 71/305 requires the awarding authority to examine the details of tenders which are obviously abnormally low, and for that purpose obliges it to request the tenderer to furnish the necessary explanations (Fratelli Costanzo, paragraph 16).
47 According to the Court, a mathematical criterion in accordance with which tenders which exceeded the basic value fixed for the price of the work by a percentage more than 10 points below the average percentage by which the tenders admitted exceeded that amount would be considered anomalous and consequently eliminated, deprives tenderers who have submitted particularly low tenders of the opportunity to demonstrate that those tenders are genuine ones, so that application of such a criterion is contrary to the aim of Directive 71/305, namely to promote the development of effective competition in the field of public contracts (Fratelli Costanzo, paragraph 18).
48 The Court also observed that it was in order to enable tenderers submitting exceptionally low tenders to demonstrate that those tenders were genuine ones, and thus to ensure the opening up of public works contracts, that the Council, in Article 29(5) of Directive 71/305, laid down a precise, detailed procedure for the examination of tenders which appear to be abnormally low, and that that aim would be jeopardised if Member States were able, when implementing that provision, to depart from it to any material extent (Fratelli Costanzo, paragraph 20).
49 It added, finally, that the examination procedure under Article 29(5) of Directive 71/305 had to be applied whenever the awarding authority was contemplating the elimination of tenders because they were abnormally low in relation to the transaction, so that tenderers could be sure that they would not be disqualified from the award of the contract without first having the opportunity of furnishing explanations regarding the genuine nature of their tenders (Fratelli Costanzo, paragraph 26).
50 Since the requirements laid down by both the initial and the amended version of Article 29(5) of Directive 71/305 are in substance identical to those imposed by Article 30(4) of the Directive, the foregoing considerations apply equally in relation to the interpretation of the latter provision.
51 In consequence, Article 30(4) of the Directive necessarily presupposes the application of an inter partes a procedure for examining tenders regarded by the contracting authority as abnormally low, placing the latter under an obligation, after it has inspected all the tenders and before awarding the contract, first to ask in writing for details of the elements in the tender suspected of anomaly which gave rise to doubts on its part in the particular case and then to assess that tender in the light of the explanations provided by the tenderer concerned in response to that request. | C-285/99 & C-286/99
Impresa Lombardini | 52-58 | W2-30.4 | 52 Apart from the fact that, under the legislation and administrative practice applicable in the main proceedings, the tendering undertakings are required at the time they submit their file to provide explanations in respect of only 75% of the value of the contract, whereas it is necessary for them to be able to prove the genuine nature of their tender in respect of all its constituent elements, such prior explanations are not in any event in accordance with the spirit of the inter partes examination procedure established by Article 30(4) of the Directive.
53 It is essential that each tenderer suspected of submitting an abnormally low tender should have the opportunity effectively to state his point of view in that respect, giving him the opportunity to supply all explanations as to the various elements of his tender at a time - necessarily after the opening of all the envelopes - when he is aware not only of the anomaly threshold applicable to the contract in question and of the fact that his tender has appeared abnormally low, but also of the precise points which have raised questions on the part of the contracting authority.
54 The above interpretation is, moreover, the only one which complies with both the wording and the purpose of Article 30(4) of the Directive.
55 It is apparent from the very wording of that provision, drafted in imperative terms, that the contracting authority is under a duty, first, to identify suspect tenders, secondly to allow the undertakings concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned, and, fourthly, to take a decision as to whether to admit or reject those tenders. It is therefore not possible to regard the requirements inherent in the inter partes nature of the procedure for examining abnormally low tenders, within the meaning of Article 30(4) of the Directive, as having been complied with unless all the steps thus described have been successively accomplished.
56 Moreover, it is only subject to strict conditions laid down in the fourth subparagraph of Article 30(4) that the Directive allows the contracting authority to dispense with that inter partes procedure for examining abnormally low offers. Here there is no dispute that, in both sets of main proceedings, that derogatory provision is inapplicable ratione temporis.
57 Furthermore, the existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer constitutes a fundamental requirement of the Directive, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings.
58 Having regard to the foregoing considerations, it must be held that Article 30(4) of the Directive precludes legislation and administrative practice, such as that applicable in the cases referred, which allow the contracting authority to exclude a tender as abnormally low solely on the basis of explanations of the most significant price components, produced at the same time as the tender itself, without carrying out any inter partes examination of the suspect tenders by requesting clarification on points of doubt emerging on first examination and giving the undertakings concerned the opportunity to put forward their arguments in that regard before the final decision is taken. | C-285/99 & C-286/99
Impresa Lombardini | 59-66 | W2-30.4 | 59 In the tendering procedures at issue in the main proceedings, at the time when the tenderer submits his tender, which must be accompanied by explanations covering 75% of the basic contract value mentioned in the contract notice, he is not aware of the precise aspects of his tender which will be suspected of being abnormal, so that, at that stage of the procedure, he is not in a position to supply useful and complete explanations in support of the various elements constituting his tender.
60 The national court also asks whether Article 30(4) of the Directive similarly precludes legislative provisions and administrative practice of a Member State, such as those at issue in the main proceedings, whereby, first, tenderers are required, under threat of being excluded from participation in the contract, to accompany their tender with price explanations, covering at least 75% of the basic value of that contract, using forms designed for the purpose and, second, the anomaly threshold for tenders is calculated, in respect of each contract, on the basis of a mathematical formula which is a function of all the tenders actually lodged in the tendering procedure in question.
61 It should be noted that the Directive does not contain specific requirements in the matter.
62 More particularly concerning the first of the rules on matters of detail referred to in paragraph 60 of this judgment, this appears to be a requirement which affects all tenderers without distinction and appears to be intended to ensure a certain uniformity in the presentation of tenders, likely to facilitate an initial examination by the contracting authority and to allow a prima facie assessment to be made of the seriousness of the tender. It may indeed happen that, on the basis of those explanations alone, the contracting authority becomes convinced that, although the tender appears abnormally low, it is serious and the authority therefore accepts it. In that way, this rule contributes to accelerating the procedure for verifying tenders.
63 It is true that, as the Commission has rightly pointed out, a national procedure for awarding public works contracts would be incompatible with the requirements of Article 30(4) of the Directive if it did not ensure that the inter partes examination of abnormally low tenders required by that provision took place.
64 That would in particular be the case, as has already been held in paragraphs 58 and 59 of this judgment, if the contracting authority rejected a tender as abnormally low basing its argument solely on the explanations submitted at the time the tender was lodged, without carrying out inter partes examination required by the Directive, after the opening of the envelopes and before the final decision.
65 However, such a defect would originate not in the obligation itself to submit certain explanations together with the lodging of the tender, but rather in the disregard of the requirements of the Directive at a subsequent stage of the procedure for examining abnormally low tenders.
66 Article 30(4) of the Directive does not therefore preclude a requirement to provide explanation in advance, such as that at issue in the main proceedings, taken in isolation, provided that all the requirements arising from that provision are otherwise complied with by the contracting authorities. | C-285/99 & C-286/99
Impresa Lombardini | 67-73 | W2-30.4 | 67 As regards the second rule referred to in paragraph 60 of this judgment, it is undisputed that the Directive does not define the concept of an abnormally low tender and, a fortiori, does not determine the method of calculating an anomaly threshold. That is therefore a task for the individual Member States.
68 As for the anomaly threshold applied in the cases in the main proceedings, this results from a calculation carried out for each contract notice and is based essentially on the average of the tenders submitted for that contract.
69 Such a method of calculation appears at first sight to be objective and non-discriminatory.
70 The mere fact, cited by some of the tenderers involved in the main proceedings, that the anomaly threshold is not known to the undertakings at the time when they make their tender - since it is not determined until all the tenders have been submitted - is in any event not capable of affecting its compatibility with the Directive. At that stage of the procedure, all the tenderers, like the contracting authority itself, are unaware of what that threshold will be.
71 Some of the tenderers involved in the main proceedings have, however, argued that a method for calculating the anomaly threshold based on the average of the tenders for a given contract risks being falsified by tenders not corresponding to a genuine wish to contract but merely seeking to influence the result of that calculation. Competition might also be distorted, with tenderers seeking to submit not the best tender possible but that which, particularly on the basis of statistical criteria, stood the best probability of being the first amongst the non-suspect tenders, to which the contract is automatically awarded.
72 It is true that the result reached by a method for calculating the anomaly threshold based on the average of tenders may be significantly influenced by practices such as those described in the previous paragraph, which would be contrary to the aims of the Directive, as defined in paragraphs 34 to 36 of this judgment. That is why, for the effectiveness of the Directive to be fully preserved, that result must not be beyond challenge and must be capable of being reconsidered by the contracting authority should that prove necessary having regard in particular to the level of the anomaly threshold for tenders applied in comparable contracts and to the lessons derived from common experience.
73 It follows that, although, as stated in paragraphs 45 and 47 of this judgment, it is settled case-law that Community law precludes the automatic exclusion from public works contracts of certain tenders determined in accordance with a mathematical criterion, Community law does not in principle preclude a mathematical criterion, such as the anomaly threshold applied in the cases referred, from being used for the purposes of determining which tenders appear to be abnormally low, so long as the result to which application of that criterion leads is not beyond challenge, and the requirement for inter partes examination of those tenders in accordance with Article 30(4) of the Directive is complied with. | C-285/99 & C-286/99
Impresa Lombardini | 74-77 | W2-30.4 | 74 Some of the tenderers involved in the main proceedings have also argued, without having their allegations credibly refuted by the Italian government, that the two rules of Italian tendering procedure referred to in paragraph 60 of this judgment cannot be examined in isolation, given that the various aspects of that procedure are indissolubly interlinked.
75 They have argued in particular that the condition concerning the provision of explanations at the time of submission of the tender itself finds its justification only in the fact that the contracting authority takes its decision on the acceptance or rejection of the tender on the basis of those explanations alone, without allowing the undertakings to provide fuller explanations later. Moreover, they argue that that condition does not apply to the tenderers without distinction, in that only the envelopes of undertakings whose tenders appear abnormally low are opened, so that a tenderer not suspected of making an anomalous bid could be awarded the contract even if he submitted, as explanations, an envelope containing nothing at all. Finally, a distortion of competition between undertakings might result, because the obligation to accompany the tender with voluminous explanatory documentation entails for tenderers offering a particularly advantageous price not only a heavier administrative burden but also the inconvenience of having first to reveal information which might be confidential, and because it places undertakings from other Member States at a disadvantage in any event.
76 As regards those assertions, it is sufficient to observe that, whilst all the requirements imposed by Community law must unquestionably be complied with in the context of the various aspects of the national procedures for awarding public works contracts, which must moreover be applied in such a manner as to ensure compliance with the principles of free competition and equal treatment of tenderers and the obligation of transparency, the fact remains that the Court of Justice is not in a position to rule on those assertions.
77 To determine whether they are well founded requires findings and assessments of fact and an interpretation of domestic law which falls within the sole jurisdiction of the national court. The principles of interpretation concerning the scope of Article 30(4) of the Directive and the spirit and purpose of the latter, set out in paragraphs 34 to 40 of this judgment, provide that court with all the guidance necessary to enable it to assess the compatibility of the national provisions in question with Community law for the purposes of judging the cases before it. | C-285/99 & C-286/99
Impresa Lombardini | 78-85 | W2-30.4 | 78 In relation to the second aspect of the questions referred, as reformulated in paragraph 28 of this judgment, it should be pointed out that, in the words of the second subparagraph of Article 30(4) of the Directive, the contracting authority may take into consideration explanations relating to the economy of the construction method, the technical solutions chosen, the exceptionally favourable conditions available to the tenderer for the execution of the work, or the originality of the work proposed by the tenderer.
79 As is apparent from its very wording, that provision simply gives the contracting authority the possibility of basing its decision on certain types of objective explanation of the price proposed by a given tenderer, and does not impose upon it any obligation to do so.
80 Put back into its context, that provision is designed only to add further precision to the rule set out in the first subparagraph of Article 30(4) of the Directive, whereby the contracting authority is to request from the tenderer concerned details of the constituent elements of the tender which it considers relevant and verify those constituent elements taking account of the explanations received.
81 In that respect, the Court has already underlined, in paragraphs 51 to 59 of this judgment, the importance of the principle whereby, before the contracting authority can reject a tender as abnormally low, the tenderer must have a proper opportunity, in an inter partes procedure, to put forward his point of view on each of the various price components proposed.
82 Since, with a view to the development of effective competition in the area of public contracts, it is essential for that opportunity to be as full and as wide as possible, the tenderer must be able to submit in support of his tender all the explanations, and in particular those set out in the second subparagraph of Article 30(4) of the Directive, which, bearing in mind the nature and characteristics of the contract in question, he considers appropriate, without any limitation in that respect. The contracting authority is required to take into consideration all the explanations put forward by the undertaking before adopting its decision whether to accept or reject the tender in question.
83 It follows that, having regard to both its wording and its purpose, the second subparagraph of Article 30(4) of the Directive does not establish an exhaustive catalogue of explanations that are capable of being submitted, but merely gives examples of explanations which the tenderer may provide in order to demonstrate the genuineness of the various price elements proposed. A fortiori, the provision in question does not authorise the exclusion of certain types of explanation.
84 As the Austrian Government and the Commission have argued in their observations, and the Advocate General has emphasised in paragraphs 50 and 51 of his Opinion, any limitation in that regard would clearly contradict the Directive's aim of facilitating the operation of free competition between the tenderers as a whole. Such a limitation would involve the outright exclusion of tenders explained by considerations other than those allowed by the applicable national legislation, despite a price which may be more advantageous.
85 It follows that Article 30(4) of the Directive precludes national legislation, such as that applicable in the main proceedings, which, first, requires the contracting authority, for the purposes of verifying abnormally low tenders, to take into account only certain explanations exhaustively listed, that listing omitting moreover explanations relating to the originality of the tenderer's proposed works, even though such explanations are expressly referred to in the second subparagraph of the above provision, and, second, expressly excludes certain types of explanation, such as those relating to any elements for which minimum values are laid down by law, regulation or administrative provision or for which minimum values can be ascertained from official data. | C-285/99 & C-286/99
Impresa Lombardini | 86 | W2-30.4 | 86 In view of all the foregoing considerations, the answer to the questions referred must be that Article 30(4) of the Directive is to be interpreted as follows:
- it precludes a Member State's legislation and administrative practice which allow the contracting authority to reject tenders offering a greater discount than the anomaly threshold as abnormally low, taking into account only those explanations of the prices proposed, covering at least 75% of the basic contract value mentioned in the contract notice, which tenderers were required to attach to their tender, without giving the tenderers the opportunity to argue their point of view, after the opening of the envelopes, on those elements of the prices proposed which gave rise to suspicions;
- it precludes a Member State's legislation and administrative practice which require the contracting authority to take into consideration, for the purposes of examining abnormally low tenders, only explanations based on the economy of the construction method, technical solutions chosen, or exceptionally favourable conditions available to the tenderer, but not explanations relating to all those elements for which minimum values are laid down by law, regulation or administrative provision or can be ascertained from official data;
- however, provided all the requirements it imposes are otherwise complied with and the aims pursued by the Directive are not defeated, it does not in principle preclude a Member State's legislation and administrative practice which, in the matter of identifying and examining abnormally low tenders, first, require all tenderers, under threat of exclusion from participation in the contract, to accompany their tender with explanations of the prices proposed, covering at least 75% of the basic value of that contract, and, second, apply a method of calculating the anomaly threshold based on the average of all the tenders received for the tender procedure in question, so that tenderers are not in a position to know that threshold at the time they lodge their file; the result produced by applying that calculation method must, however, be capable of being reconsidered by the contracting authority. | | T-19/95 | 41-51 | S2-37
M32A5-99.h | 41 It is common ground that the existence of a "systematic error in the calculation of the billing rates on the basis of the gross wages" was adverted to by the Commission at the meeting of its selection committee (see paragraph 11, above).
42 In view of that factor, the applicant claims that, by refraining from contacting it, the Commission infringed the principle of equal treatment in so far as it did not assess the real value of all the tenders submitted to it, but simply compared the value of the applicant' s tender, which it knew to be distorted, with the apparent real value of the other tenders. The applicant adds that, at the same time, the Commission infringed the principle of sound administration and the second paragraph of Article 99(h) of Regulation No 3418/93.
43 In that regard, it should be noted that according to the second paragraph of Article 99(h) of Regulation No 3418/93 any contact between the institution and the tenderer after the tenders have been opened is prohibited save, exceptionally, "if some clarification is required in connection with a tender, or if obvious clerical errors contained in the tender must be corrected". In those cases, the institution may take it upon itself to contact the tenderer.
44 The Court considers that it is clear from the precise terms of that provision that it empowers the institutions to contact tenderers in the exceptional, limited circumstances which it identifies. It follows that that provision cannot be interpreted as imposing a duty on the institutions to contact tenderers.
45 Next, it is necessary to enquire whether, in this case, that power might nevertheless have given rise to a duty on the part of the Commission by virtue of the superior principles of law invoked by the applicant (see paragraph 42, above) having regard to the fact that the calculation error in question was particularly obvious.
46 As to that, the Court considers it sufficient to observe that the systematic calculation error in question was not particularly obvious. Whilst the selection committee succeeded in attributing the error to the "calculation of the billing rates on the basis of the gross hourly wages" (see paragraph 11, above), it was unable for all that to determine, on the basis solely of the applicant' s tender, whether the error was a calculation error made in applying the formula presented by the applicant, as it has maintained before the Court; an error in determining the coefficient for converting the gross hourly wages into billing rates, which, according to the specifications, takes in all the tenderer' s costs, its profit margin and the Belgian franc/ecu conversion rate (see paragraph 4, above); or simply a clerical error.
47 It follows that, even though the selection committee detected the presence of a systematic calculation error, it was unable to ascertain its exact nature or cause. In those circumstances, any contact made by the Commission with the applicant in order to seek out jointly with it the exact nature and cause of the systematic calculation error would have involved a risk that other factors taken into account in order to establish its tender price ° in particular those relating to the calculation of the coefficient encompassing its profit margin ° might have been adjusted, and this would have entailed, contrary to the applicant' s claims, an infringement of the principle of equal treatment to the detriment of the other tenderers, all of whom, in common with the applicant, are under an equal duty to take care in drawing up their tenders.
48 The Court further notes that the applicant has neither shown nor even alleged that the Commission contacted, in the course of the procedure at issue, other tenderers who were in a comparable situation to its own in order to correct any errors in their tenders or to provide additional information. In this connection, the Court observes that it appears from Annexes 7(d) and 9 to the report to the CCAM that the selection committee used, as an assessment criterion, the clarity and precision of the tenders and penalized some tenders because they were insufficiently precise about the quality of the service which the tenderers undertook to provide. Yet, whilst those tenderers were in a situation comparable to that of the applicant in so far as they could have increased the value of their tenders if the Commission had taken it upon itself to contract them in order to obtain explanations, the Court finds that the report to the CCAM and the documents appended thereto do not mention any contact made by the Commission with tenderers, but confirm that the Commission strictly applied the conditions of the tendering procedure.
49 Lastly, the Court considers that the Commission did not commit a manifest error in assessing the applicant' s organizational ability. In this regard, the Court recalls that the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court' s review should be limited to checking that there has been no serious and manifest error (Case 56/77 Agence Européenne d' Interims v Commission [1978] ECR 2215, paragraph 20). In this case, the Court finds, with regard to the points awarded to the applicant for its customer service, that it is undisputed that the applicant' s tender ° unlike that of Ecco ° made no reference to the quality of the customer service which it undertook to provide and hence the Commission made no manifest error of assessment in giving Ecco three points more than the applicant for its customer service. As regards the points awarded to the applicant for flexibility, unlike Ecco' s tender, that of the applicant did not undertake to provide a "contact person" permanently at the Commission' s offices, with the result that the Commission did not make any manifest error of assessment in awarding Ecco two points more than the applicant for flexibility.
50 In addition, the Court would point out that the first and second paragraphs of Article 37 of Directive 92/50, which place the contracting authority under a duty to verify that the terms of the tender are not the outcome of the economy of the method by which the service is provided, the technical solutions chosen, the exceptionally favourable conditions available to the tenderer for the provision of the service or the originality of the service; are concerned with a tender which appears to be abnormally low, whereas the tender at issue in this case is one which appears to be abnormally high.
51 For all of these reasons it follows that the Commission has not infringed the principles of equal treatment and sound administration or the second paragraph of Article 99(h) of Regulation No 3418/93, nor has it committed a manifest error of assessment, and therefore the second and third pleas must be rejected. | C-295/89
Impresa Donà | na | W1-29.1-2
W1-29.3 | [In this judgment the Court' s ruling is in the same terms as those of the judgment in Case 103/88] | 103/88
Constanzo | 19-20
32 | W1-29.1-2
W1-29.3 | The answer to the second part of the third question must therefore be that Article 29(5) of Council Directive 71/305 prohibits Member States from introducing provisions which require the automatic exclusion from procedures for the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the Directive, giving the tenderer an opportunity to furnish explanations.
With regard to the first question, it should be observed that it was in order to enable tenderers submitting exceptionally low tenders to demonstrate that those tenders are genuine ones that the Council, in Article 29(5) of Directive 71/305, laid down a precise, detailed procedure for the examination of tenders which appear to be abnormally low . That aim would be jeopardized if Member States were able, when implementing Article 29(5) of the directive, to depart from it to any material extent.
With specific regard to Article 29(5) of Directive 71/305, it is apparent from the discussion of the first question that it is unconditional and sufficiently precise to be relied upon by an individual against the State. An individual may therefore plead that provision before the national courts and, as is clear from the foregoing, all organs of the administration, including decentralized authorities such as municipalities, are obliged to apply it. | 31/87
Beentjes | 38 + 40-44 | W1-20
W1-26.1.a-b
W1-26.1.c-e
W1-26.2
W1-29.1
W1-29.2
W1-29.3
W1-29.4
W1-29.5.1-2
W1-29.5.3
ECT-249 [ex 189] | 38 The third question seeks in substance to establish whether Articles 20, 26 and 29 of Directive 71/305 may be relied upon by individuals before the national courts.
40 Furthermore, the Court has consistently held (see most recently the judgment of 26 February 1986 in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority (( 1986 )) ECR 723 ) that where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement the directive correctly.
41 It is therefore necessary to consider whether the provisions of Directive 71/305 in question are, as far as their subject-matter is concerned, unconditional and sufficiently precise to be relied on by an individual against the State.
42 As the Court held in its judgment of 10 February 1982 in Case 76/81 Transporoute v Minister for Public Works (( 1982 )) ECR 417, in relation to Article 29, the directive' s rules regarding participation and advertising are intended to protect tenderers against arbitrariness on the part of the authority awarding contracts.
43 To this end, as has been stated in relation to the reply to the second question, the rules in question provide inter alia that in checking the suitability of contractors the awarding authorities must apply criteria of economic and financial standing and technical knowledge and ability, and that the contract is to be awarded either solely on the basis of the lowest price or on the basis of several criteria relating to the tender. They also set out the requirements regarding publication of the criteria adopted by the awarding authorities and the references to be produced. Since no specific implementing measure is necessary for compliance with these requirements, the resulting obligations for the Member States are therefore unconditional and sufficiently precise.
44 In reply to the third question it should therefore be stated that the provisions of Articles 20, 26 and 29 of Directive 71/305 may be relied on by an individual before the national courts. |
| Case | Pte | Ref | Text | N-070222
Platach Arkitekter | 1-12+K1 | NPL3-1.1
NPL3-1.4-impl
NPL3-1.5.s1
P3A4-2.1.b=C3-7.a-b-impl
C3-55.1-2
ECT-EquTran
KNL2-1+3 | Michael Kistrup og Vibeke Steenberg udtaler:
1. Det fremgår af lov om Klagenævnet for Udbud (lov nr. 415 af 31. maj 2000 som ændret ved lov nr. 450 af 7. juni 2001 og lov nr. 306 af 30. april 2003) § 3, at Klagenævnet har kompetence til at behandle klager vedrørende overtrædelse af regler som nævnt i lovens § 1, stk. 1. Klagenævnet har således kompetence ved klager over ordregivere for bl.a. overtrædelse af tilbudsloven og af fællesskabsretten vedrørende indgåelse af offentlige kontrakter, jf. § 1, stk. 1, nr. 3 og 1. Ved »fællesskabsretten« forstås efter lovens § 1, stk. 2, traktaten om oprettelse af Det Europæiske Fællesskab og retsakter udstedt i medfør heraf.
2. Den af indklagede udbudte opgave angik alene projekteringen af børnehaven/ Sfo i Jels, men ikke udførelsen heraf. Herefter finder tilbudsloven ikke anvendelse, jf. lovens § 1.
3. Værdien af den udbudte projekteringsopgave har ikke oversteget tærskelværdien for tjenesteydelser i udbudsdirektivet (Europa-Parlamentets og Rådets direktiv nr. 2004/18/EF af 31. marts 2004 om samordning af fremgangsmåderne ved indgåelse af offentlige vareindkøbskontrakter, offentlige tjenesteydelseskontrakter og offentlige bygge- og anlægskontrakter), der således heller ikke finder anvendelse.
4. Offentlige ordregivere er, selv om et udbudsdirektivet ikke finder anvendelse på grund af reglerne om tærskelværdier, forpligtet til at overholde principper og retsakter, der afledes af EF-traktaten, og Klagenævnet har kompetence til at prøve sådanne spørgsmål. Ligheds- og gennemsigtighedsprincipperne antages således at finde anvendelse på offentlige ordregivere, skønt kontrakten ikke overstiger tærskeværdien for direktivet, men det kan derimod ikke antages, at de procedurer, der alene fastsættes af direktivet selv, skal iagttages.
5. Udbudsdirektivets artikel 55 har fastsat regler, der efter direktivet skal iagttages, hvis den ordregivende myndighed ønsker at forkaste et tilbud, der forekommer unormalt lavt. Efter det anførte kan det imidlertid ikke antages, at den heri angivne procedure skal anvendes, når direktivet ikke finder anvendelse.
6. Da der herefter ikke er spørgsmål om, at indklagede har overtrådt EFtraktaten og retsakter udstedt i medfør heraf, har klagenævnet ikke kompetence i sagen.
Niels Sørensen udtaler:
7. Den udbudte opgave har på grund af den begrænsede værdi ikke været omfattet af udbudsdirektiver, tilbudsloven eller tilsvarende regler. Når en offentlig myndighed desuagtet vælger at udbyde en opgave, følger det af traktatens almindelige regler om ligebehandling og gennemsigtighed, at udbudsforretningen skal gennemføres på en måde der sikrer, at disse grundlæggende principper ikke krænkes.
8. I det foreliggende tilfælde har udbyderen bestemt, at kontrakten tildeles den tilbudsgiver, der har afgivet tilbud med den laveste pris. Efter modtagelsen af tilbuddene var indklagede af den opfattelse at klageren tilbud var urealistisk lavt, men indklagede var - efter en uklar udlandstelefonsamtale – fuldt klar over, at klageren var af den opfattelse, at tilbuddet var et korrekt udtryk for klagerens opfattelse af opgaven værdi. Det blev under telefonsamtalen aftalt, at man skulle tales ved når klageren kom hjem, men det henstår uklart hvem der havde initiativpligten. Indklagede traf desuagtet sin beslutning om at se bort fra klagerens tilbud uden yderligere kontakt med klageren.
9. En tilbudsgiver kan have mange legitime grunde til at afgive en lav pris. Når en ordregiver vælger at udbyde med laveste pris som tildelingskriterium, har ordregiver forpligtet sig til at vælge den tilbudsgiver, der har afgivet den laveste pris, med mindre der kan fremføres væsentlige og saglige argumenter for at forkaste det pågældende tilbud.
10. I overensstemmelse med traktatens principper om gennemsigtighed og ligebehandling, findes indklagede at have været forpligtet til at anstille nærmere undersøgelser og vurderinger efter en procedure, som kunne ligne den fremgangsmåde som direktiverne foreskriver i en tilsvarende situation. Kun en sådan nærmere vurdering vil kunne give indklagede det fornødne grundlag for at forkaste et tilbud, der anses for urealistisk. Indklagede har således ikke truffet sin afgørelse efter en tilstrækkelig gennemsigtig procedure.
11. Klagenævnet er kompetent til at behandle sager om overtrædelse af fællesskabsretten, herunder overtrædelser af traktatens overordnede principper om gennemsigtighed og ligebehandling.
12. Der afsiges kendelse efter stemmeflertallet.
Herefter bestemmes:
K1. Denne klage afvises.
[Sagsfremstillingen: Den 4 .april 2006 besluttede indklagede at indgå kontrakt med Thorup Arkitekter og Ingeniører A/S. Klageren blev ikke valgt, fordi dennes tilbud ikke vurderedes at være realistisk. Indklagede ved bygningsinspektør Quist Jørgensen kontaktede samme dato klageren, der opholdt sig i udlandet, på mobiltelefon. Der er ikke enighed mellem parterne om indholdet af telefonsamtalen. Ved skrivelse af 5. april 2005 orienterede indklagede klageren om sit valg, og meddelte, at man ikke havde villet acceptere laveste bud på grund af dette buds »meget lave pris, set i forhold til opgavens omfang.«] | N-040113
E. Pihl & Søn | 16-17+K6 | W2-30.4 | 16. Selvom indklagede som ordregiver havde fundet tilbudene fra KPC Byg A/S unormalt lave i forhold til ydelsen i relation til et af underkriterierne, nemlig underkriterium C, havde indklagede som udgangspunkt ikke efter Bygge- og anlægsdirektivets artikel 30 pligt til at afvise disse tilbud. Allerede som følge heraf kan denne påstand ikke tages til følge. Klageren har ikke gjort gældende, at der under udbudet forelå sådanne ganske særlige omstændigheder, at indklagede uanset det anførte udgangspunkt alligevel havde pligt til at afvise tilbudene fra KPC Byg A/S, f.eks. derved at der som følge af en unormal lav pris var risiko for, at der efterfølgende måtte ske en korrektion af prisen.
17. I udbudsbetingelserne var underkriterium B vægtet med 60 % og underkriterium A med 20 %. Underkriterium C var derimod alene vægtet med 10 %. Tilbudssummerne vedrørende underkriterium B var for de 3 tilbud, som indgik i indklagedes vurdering, mellem ca. 163 mio. kr. og ca. 172 mio. kr. Den omstændighed, at de 2 tilbud fra KPC Byg A/S vedrørende underkriterium C havde en tilbudssum på 100.000 kr., mens tilbudssummen i tilbudet fra klageren vedrørende underkriterium C var på 2,4 mio. kr., indebærer at der er afgivet et unormalt lavt tilbud vedrørende dette underkriterium. Afgørende for, om bestemmelsen i Bygge- og anlægsdirektivets artikel 30, nr. 4, om »unormalt lave bud« finder anvendelse, er imidlertid om det samlede tilbud er unormalt lavt. Som det fremgår af det anførte var dette ikke tilfældet vedrørende KPC Byg A/S’s tilbud, og også af denne grund kan påstanden ikke tages til følge.
.....
K6. Klagen tages ikke til følge vedrørende påstand 2 a, 2 b, 2 e, 3 a, 3 b, 3 c, 3 e, 3 f, 3 g, 3 i, 4, 5 og 6.
[Påstand 4 Klagenævnet skal konstatere, at indklagede har handlet i strid med EUudbudsreglernes ligebehandlingsprincip og Bygge- og anlægsdirektivets artikel 30 ved ved beslutningen om, hvem der skulle indgås kontrakt med, at have taget de 2 tilbud fra KPC Byg A/S's konsortium i betragtning, uagtet begge disse tilbud vedrørende underkriterium C var urealistisk lave.] | N-031010
Statsansattes Kartel | 4-11+K1 | S2-3.2.impl
S2-37 | 4. Under det aktuelle udbud havde Trafikministeriet som udbyder i forhold til alle 5 tilbudsgivere de beføjelser, som efter EU-udbudsreglerne tilkommer en udbyder over for tilbudsgiverne under et udbud af den pågældende beskaffenhed, men Trafikministeriet havde tilsvarende overfor alle 5 tilbudsgivere en forpligtelse til at overholde de regler, der regulerer udbyderes handlemåde under udbud af den pågældende beskaffenhed. Trafikministeriet havde imidlertid under det aktuelle udbud i relation til én af tilbudsgiverne – nemlig DSB – efter lov nr. 298 af 18. maj 1998 om jernbanevirksomhed m.v. § 7, stk. 3, yderligere en forpligtelse til – som tilsyn - at kontrollere, at det tilbud, som DSB havde afgivet, overholdt »Konkurrenceretlige retningslinier for DSB af 17. september 2001«.
5. Efter indholdet af Trafikministeriet skrivelse til DSB af 17. oktober 2001 og notatet af 16. oktober 2001, der var vedlagt denne skrivelse, og efter de forklaringer, som medarbejdere i Trafikministeriet har afgivet i Klagenævnet, er det utvivlsomt, at indklagedes henvendelse til DSB den 17. oktober 2001 vedrørende DSB’s tilbud skete med henblik på som tilsyn efter lov nr. 289 af 18. maj 1998 om jernbanevirksomhed m.v. at kontrollere, at DSB’s tilbud opfyldte »Konkurrenceretlige retningslinier for DSB af 15. december 2000«.
6. Da det i skrivelsen af 17. oktober 2001 fra Trafikministeriet til DSB udtrykkeligt er anført, at Trafikministeriet fremsender anmodningen til DSB som »ordregiver«, har Trafikministeriet handlet i strid med EUudbudsreglerne, da Trafikministeriet kun var berettiget til som »ordregiver« at rette henvendelse til DSB vedrørende oplysninger, som Trafikministeriet skulle bruge som »ordregiver«, men ikke berettiget til som »ordregiver« at rette henvendelse til DSB vedrørende oplysninger, som Trafikministeriet skulle bruge i sin egenskab af tilsyn med DSB.
7. Det bemærkes, at der forligger en overtrædelse, uanset at det efter det oplyste kan lægges til grund, at DSB ikke ved modtagelsen af skrivelsen af 17. oktober 2001 eller på noget senere tidspunkt i forløbet var i tvivl om, at Trafikministeriet anmodede om de pågældende oplysninger som tilsyn efter lov nr. 298 af 18. maj 1998 om jernbanevirksomhed m.v.
8. Det bemærkes endvidere, at der foreligger en overtrædelse, uanset at indklagede på et tidspunkt efter 17. oktober 2001 som »ordregiver« med hjemmel i Tjenesteydelsesdirektivets artikel 37 besluttede tillige at anmode DSB om de pågældende oplysninger som led i en procedure efter artikel 37 og meddelte DSB dette.
9. Den omstændighed, at Trafikministeriet på et tidspunkt efter den 17. oktober 2001 besluttede, at anmodningen til DSB om at modtage oplysninger var fremsat eller i hvert fald nu blev fremsat tillige med hjemmel i Tjenesteydelsesdirektivets artikel 37, indebærer, at Trafikministeriet kan have handlet i strid med artikel 37 dels ved overhovedet at anvende artikel 37, selvom DSB´s tilbud ikke var unormalt lavt, dels – såfremt DSB´s tilbud var unormalt lavt – ved at anmode om oplysninger, som ikke var nødvendige af hensyn til den afklaring vedrørende et tilbud, som tilsigtes ved anvendelsen af proceduren efter artikel 37. Klagenævnet finder i relation til disse spørgsmål anledning til at bemærke følgende:
10. De EU-udbudsretlige regler, der regulerede Trafikministeriets adgang til under udbudet som »ordregiver« at anmode DSB som tilbudsgiver om at fremsende supplerende oplysninger om baggrunden for DSB’s tilbud, er meget restriktive, idet en »ordregiver« under et udbud som udgangspunkt skal vurdere et tilbud alene på grundlag af tilbudets eget indhold. Det tilsyn, som efter lov nr. 298 af 18. maj 1998 om jernbanevirksomhed m.v. påhvilede Trafikministeriet i anledning af, at DSB havde afgivet tilbud under et EU-udbud, kan derimod kun udøves effektivt, hvis Trafikministeriet kan anmode DSB om alle nødvendige supplerende oplysninger om tilbudet m.v. Klagenævnet har imidlertid ikke fundet anledning til at tage stilling til denne modstrid mellem de to gældende regelsæt, idet Klagenævnet er bekendt med, at Trafikministeriet agter at iværksætte ændringer af ministeriets organisation, som vil sikre, at ministeriet beføjelser som tilsyn med DSB fremtidig varetages af en anden afdeling i ministeriet end den afdeling, der varetager EU-udbud vedrørende togdrift.
11. Det bemærkes afslutningsvis, at modstriden mellem Trafikministeriets beføjelse til som tilsyn at indhente alle nødvendige oplysninger og Trafikministeriets i sammenligning hermed begrænsede beføjelse til som udbyder at indhente oplysninger efter artikel 37, ikke ændrer ved den kendsgerning, at Trafikministeriet har handlet i strid med EU-udbudsretten som tidligere anført.
Herefter bestemmes:
K1 Indklagede har handlet i strid med ligebehandlingsprincippet og gennemsigtighedsprincippet ved i skrivelsen af 17. oktober 2001 at anføre, at henvendelsen skete »som ordregivende myndighed«, uagtet at formålet med henvendelsen var at få oplysninger om sammensætningen af DSB’s tilbud til brug for indklagedes vurdering af, om DSB’s tilbud opfyldte »Konkurrenceretlige retningslinier for DSB af 15. december 2000«. | N-030319
Forlev Vognmandsforretning | 11 | S2-27.1-2-impl | 11. Efter de oplysninger, der er forelagt Klagenævnet, er der intet grundlag for at fastslå, at tilbudet fra Bjerge Vognmandsforretning måtte vurderes som unormalt lavt. Der er herefter ikke grundlag for at fastslå, at indklagede var forpligtet til at bortse fra dette tilbud. Klagenævnet tager herefter ikke denne påstand til følge.
[Påstand 12 Klagenævnet skal konstatere, at indklagede har handlet i strid med Tjenesteydelsesdirektivet ved ikke at bortse fra det alternative tilbud fra Bjerge Vognmandsforretning, uagtet dette tilbud var unormalt lavt.] | N-010130
Dansk Transport og Logistik | 2-3 | S2-37.1-2
| 2. Allerede fordi der ikke er grundlag for at fastslå, at tilbudet fra Affaldsregion Nord I/S vedrørende entreprise 1 er et unormalt lavt tilbud, tager Klagenævnet ikke påstand 2 til følge.
3. Da der ikke er grundlag for at fastslå, at tilbudet fra Affaldsregion Nord I/S vedrørende entreprise 1 er et unormalt lavt tilbud, tager Klagenævnet ikke påstand 3 til følge.
[Påstand 2 . Klagenævnet skal konstatere, at indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 37 ved ved entreprise 1 at undlade skriftligt at anmode Affaldsregion Nord I/S om en redegørelse for det unormalt lave tilbud, som denne tilbudsgiver havde afgivet.
Påstand 3. Klagenævnet skal konstatere, at indklagede har handlet i strid med Tjenesteydelsesdirektivet ved ved entreprise 1 at tage tilbudet fra Affaldsregion Nord I/S i betragtning, uagtet dette tilbud var unormalt lavt.] | N-990308
Foreningen af Rådgivende Ingeniører | 1 | U2-4.2.contact-impl
U2-34.5.1 | 1. Bestemmelsen i Forsyningsvirksomhedsdirektivets artikel 34, stk.5, 1. afsnit, hvorefter en ordregiver skal rette forespørgsel til en tilbudsgiver, hvis et tilbud er unormalt lavt, og som således afskærer en ordregiver fra i denne situation uden videre at afvise et sådant tilbud, er primært medtaget som en beskyttelse af tilbudsgiverne. Klagenævnet kan tiltræde Nykøbing F. Kommunes vurdering, hvorefter det tilbud, som ISC Rådgivende Ingeniører A/S havde afgivet, var unormalt lavt i forhold til ydelsen, og Klagenævnet kan således fastslå, at kommunen har handlet i nøje overensstemmelse med Forsyningsvirksomhedsdirektivet ved ikke uden videre at beslutte, at dette tilbud ikke skulle tages i betragtning, men at rette forespørgsel i overensstemmelse med artikel 34, stk. 5, 1. afsnit, til ISC Rådgivende Ingeniører A/S. Påstand 1 tages således ikke til følge.
[Påstand 1: Klagenævnet skal konstatere, at indklagede har handlet i strid med EU–udbudsreglerne ved at anmode tilbudsgiveren ISC Rådgivende Ingeniører A/S om nærmere oplysninger om rådgivningskoordinatorens og byggelederens tilstedeværelse på projektkontoret, og om hvilke ressourcer (antal timer) der var afsat til de øvrige ydelser, uagtet at tilbudet fra denne tilbudsgiver ikke var unormalt lavt i forhold til ydelsen, jf. Forsyningsvirksomhedsdirektivets artikel 34, stk. 5, 1. afsnit.] | N-990308
Foreningen af Rådgivende Ingeniører | 2-4 | U2-4.2.noncom-impl
U2-4.2.contact-impl
U2-34.5.1-impl | 2. Det fremgår klart af kommunens forespørgsel af 28. maj 1998 til ISC Rådgivende Ingeniører A/S, hvilke 2 vilkår i udbudsbetingelserne forespørgslen vedrører – nemlig rådgiverkoordinatorens og byggelederens tilstedeværelse på kommunens projektkontor – og det fremgår klart af forespørgslen, hvorledes kommunen opfatter disse 2 vilkår. Tilsvarende fremgår det lige så klart af første afsnit i svaret af 29. maj 1998 fra ISC Rådgivende Ingeniører A/S, at denne tilbudsgivers tilbud ikke på disse 2 punkter opfylder udbudsbetingelserne. Det følger heraf, at kommunen har fremsendt en klar forespørgsel indeholdende 3 spørgsmål til den pågældende tilbudsgiver, som da heller ikke har givet anledning til tvivl hos denne pågældende tilbudsgiver, og at den pågældende tilbudsgiver på grundlag af forespørgsel har afgivet et klart svar på de fremsatte 3 spørgsmål.
3. På denne baggrund finder Klagenævnet det ikke i strid med EU–udbudsreglerne, at kommunen i sidste afsnit i skrivelsen af 28. maj 1998 som et supplement til de 3 spørgsmål yderligere anmodede tilbudsgiveren om en timeopgørelse, idet den pågældende tilbudsgiver selv kunne afgøre, om man ønskede tillige at fremsende disse oplysninger. Det ville imidlertid have indebåret en overtrædelse af EU–udbudsreglerne, hvis kommunen trods en klar bekræftende besvarelse af de 3 første spørgsmål, havde anset tilbudet fra ISC Rådgivende Ingeniører A/S for ukonditionsmæssigt, blot fordi de ønskede oplysninger om timefordelingen ikke også var blevet fremsendt.
4. Påstand 2 tages således ikke til følge.
[Påstand 2: Klagenævnet skal konstatere, at indklagede har handlet i strid med EU–udbudsreglerne ved i sin henvendelse efter Forsyningsvirksomhedsdirektivets artikel 34, stk. 5, 1. afsnit, til tilbudsgiveren ISC Rådgivende Ingeniører A/S at anmode om følgende specifikke oplysninger:
a. Hvorvidt ISC Rådgivende Ingeniører A/S kunne bekræfte, at rådgivningskoordinatorens tilstedeværelse på projektkontoret var indregnet i 3. tilbudet med fuld tid for hele projekt– og anlægsperioden, dog ikke år 2000, hvor tilstedeværelsen kunne være ad hoc efter behov.
b. Hvorvidt byggelederens tilstedeværelse på projektkontoret var indregnet i tilbudet med fuld tid for hele anlægsperioden, dog ikke år 2000, hvor tilstedeværelsen kunne være ad hoc efter behov.] |
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