| | 31993L0037: w2-30.4.4Reject without procedure    
| 31993L0037 - Works (2nd generation) | Article 30.4.4 | | However, until the end of 1992, if current national law so permits, the contracting authority may exceptionally, without any discrimination on grounds of nationality, reject tenders which are abnormally low in relation to the works, without being obliged to comply with the procedure provided for in the first subparagraph if the number of such tenders for a particular contract is so high that implementation of this procedure would lead to a considerable delay and jeopardize the public attaching to the execution of the contract in question. Recourse to this exceptional procedure shall be mentioned in the notice referred to in Article 11 (5). | | 31989L0440 - Fourth amendment of Works (1st generation) | 1.20=W1-29.5.4 | | However, until the end of 1992, if current national law so permits, the contracting authority may exceptionally, without any discrimination on grounds of nationality, reject tenders which are abnormally low in relation to the transaction, without being obliged to comply with the procedure provided for in the first subparagraph if the number of such tenders for a particular contract is so high that implementation of this procedure would lead to a considerable delay and jeopardize the public interest attaching to the execution of the contract in question. Recourse to this exceptional procedure shall be mentioned in the notice referred to in Article 12 (5). |
| Case | Pte | Ref | Text | C-304/96
Hera | 10-11 | W2-30.4.4 | 13 It should be recalled at the outset that, as the Commission has pointed out, Directive 93/37 consolidates 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. Article 30(4) of Directive 93/37 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).
14 Article 30(4) of Directive 93/37 lays down strict conditions circumscribing the contracting authority's power to waive the verification procedure for tenders which appear to be abnormally low. It may dispense with that procedure - exceptionally and provided that it does not discriminate on grounds of nationality - if the number of such tenders for a particular contract is so high that implementation of the procedure would lead to a considerable delay and jeopardize the public interest attaching to the execution of the contract in question. Moreover, that option is available only until 31 December 1992.
15 Furthermore, the Court, when called upon in Furlanis to adjudicate with regard to the provision in question - as it appeared in Directive 71/305, amended by Directive 89/440 - stated in paragraphs 17 and 20 of its judgment that the exception provided for was available only for procedures in which the definitive award was made by 31 December 1992 at the latest, emphasizing that the provision in question, which introduces temporary, derogating arrangements constituting an exception to the normal procedure, must be interpreted strictly.
16 It should therefore be stated in reply to the question referred for a preliminary ruling that Article 30(4) of Directive 93/37 must be interpreted as precluding contracting authorities from rejecting abnormally low tenders after 31 December 1992 without following the verification procedure provided for in the first subparagraph of that provision. | C-143/94
Furlanis | 14 + 17-21 | W1A4-29.5.4 | 14 By its question the national court seeks to establish essentially whether the last subparagraph of Article 29(5) of Directive 71/305, as amended, must be interpreted as meaning that only procedures in which the definitive award was made by 31 December 1992 may qualify for the derogation provided for in that provision or whether all procedures for which a contract notice was published before that date so qualify.
17 According to the wording of the provision in question, until the end of 1992 the contracting authority may "reject" tenders which are abnormally low in relation to the transaction. Consequently, the terms of the provision relate to the decision by which the contracting authority rules definitively on the tenders submitted to it and not merely to the measure by which the award procedure was initiated.
18 That interpretation is corroborated by the fact that the provision in question is set out in the chapter of the directive entitled "criteria for qualitative selection", which is concerned with the final phase of the award procedure.
19 There are other reasons which militate in favour of its being given a strict interpretation.
20 The Court held in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14, that provisions which authorized derogations from the rules of the directive intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works contracts must be interpreted strictly. This holds good also as regards the provision at issue, which introduces temporary, derogating arrangements constituting an exception to the procedure normally laid down by the Community rules.
21 A further factor favouring a strict interpretation of the provision in question is that the derogating, temporary arrangement in question was introduced, as the Commission has pointed out, at the request of one Member State alone on account of specific difficulties arising in its national system. |
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