| | 32004L0018: c3-47.4-5Specify, may prove    
| 32004L0018 - Classic (3rd generation) | Article 47.4-5 | 4. Contracting authorities shall specify, in the contract notice or in the invitation to tender, which reference or references mentioned in paragraph 1 they have chosen and which other references must be provided.
5. If, for any valid reason, the economic operator is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate. | | 31993L0037 - Works (2nd generation) | Article 26.2-3 | 2. The contracting authorities shall specify in the notice or in the invitation to tender which reference or references they have chosen and what references other than those mentioned under paragraph 1 (a), (b) or (c) are to be produced.
3. If, for any valid reason, the contractor is unable to supply the references requested by the contracting authorities, he may prove his economic and financial standing by any other document which the contracting authorities consider appropriate. | | 31993L0036 - Goods (2nd generation) | Article 22.2-3 | 2. The contracting authorities shall specify in the notice or in the invitation to tender which reference or references mentioned in paragraph 1 they have chosen and which references other than those mentioned under paragraph 1 are to be produced.
3. If, for any valid reason, the supplier is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate. | | 31992L0050 - Services (2nd generation) | Article 31.2-3 | 2. The contracting authorities shall specify in the contract notice or in the invitation to tender which reference or references mentioned in paragraph 1 they have chosen and which other references are to be produced.
3. If, for any valid reason, the service provider is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate. | | 31971L0305 - Works (1st generation) | Article 25.2-3 | The authorities awarding contracts shall specify in the notice or in the invitation to tender which reference or references they have chosen and what references other than those mentioned under (a), (b) or (c) are to be produced.
If, for any valid reason, the contractor is unable to supply the references requested by the authorities awarding contracts, he may prove his economic and financial standing by any other document which the authorities awarding contracts consider appropriate. | | 31977L0062 - Goods (1st generation) | Article 22.2-3 | 2. The contracting authorities shall specify in the notice or in the invitation to tender which reference or references they have chosen and which references other than those mentioned under paragraph 1 are to be produced.
3. If, for any valid reason, the supplier is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate. |
| Case | Pte | Ref | Text | T-169/00
Esedra | 91-109 | S2-3.2
S2-31.2
S4-34 | 91 Therefore, in accordance with Article 31(2) of Directive 92/50, the contract notice is the relevant document for determining whether the Commission made a serious and manifest error in selecting the application from the group of companies represented by Manieri.
92 Paragraph 13 of the contract notice, relating to information on the service provider's own situation and the formalities necessary for appraising the minimum financial and technical standing required, states that candidates must produce, together with their request to participate and mentioning reference 99/52/IX.D.1, the following documents:
...
(3) copies of the balance sheets and trading accounts for the last three years or if, for any valid reason, the candidate is unable to produce them, any other document proving his financial standing;
(4) a statement of the overall annual turnover in the last three financial years;
(5) a statement of the specific annual turnover in the sector to which the present invitation to tender relates, in the last three financial years;
...
93 In addition, paragraph 9 of the contract notice states that, if the tender is submitted on behalf of a group of service providers, all the members of the group must be jointly and severally responsible for the performance of the contract, while paragraph 12 states that the successful tenderer will be required to furnish a performance bond in the sum of EUR 400 000 before the contract takes effect.
94 Finally, the contract notice allows the Commission a certain discretion because paragraph 15(2) provides that the Commission may automatically reject an application which does not include all the information required in paragraph 13. Therefore the contract notice does not oblige the Commission to reject an incomplete application.
95 On this point, it must be observed 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 must be limited to verifying that there has been no serious and manifest error (see the judgments in Case 56/77 Agence Européenne d'Intérims v Commission [1978] ECR 2215, paragraph 20; the case of Adia Intérim v Commission, cited above, paragraph 49, and Case T-139/99 AICS v Parliament [2000] ECR II-2849, paragraph 39).
96 In the present case, the financial standing of Manieri and the other members of the group represented by it was appraised at two levels: at the time when applications were selected and, at a later stage, before the contract in question was awarded.
97 With regard to the first stage, it appears from the file that, when the selection of applications was carried out, Manieri's application was accompanied, firstly, by copies of the balance sheets and trading accounts for the last three years of four of the seven undertakings forming the group represented by Manieri, together with a substitute statement for the other three members (in accordance with paragraph 13(3) of the contract notice) and, secondly, a statement of the overall annual turnover in the last three financial years of each of the seven undertakings (in accordance with paragraph 13(4) of the contract notice) and a statement of the specific annual turnover in the sector to which the invitation to tender relates, in the last three financial years (in accordance with paragraph 13(5) of the contract notice).
98 Therefore, in view of the discretion granted to the Commission by the contract notice, the Commission cannot be criticised for not having rejected Manieri's application merely on the ground that Manieri gave no reason for the absence of copies of the balance sheets and trading accounts of three of the seven members of the group which it represents.
99 It must be observed that the Commission had other information which enabled it to determine the financial standing of the Manieri group in the absence of the balance sheets and trading accounts in question.
100 For example, the letter of 17 June 1999 from the bank Rolo Banca, which was annexed to Manieri's application, stated that Manieri had sufficient financial resources at its disposal. Such a document could be deemed an appropriate statement from a bank for the purposes of Article 31(1)(a) of Directive 92/50 which was in itself sufficient to prove the financial standing of a candidate and could be taken into account by the Commission on the basis of its discretion.
101 Manieri's offer of 23 October 1999 to furnish immediately the bank guarantee for EUR 400 000 mentioned in paragraph 12 of the contract notice also enabled the Commission to regard Manieri's financial standing as sufficient.
102 The same applies to the statement annexed to Manieri's letter of 23 October 1999, in which the seven members of the group represented by Manieri undertook jointly and severally to perform the contract in accordance with paragraph 9 of the contract notice.
103 In the present case these factors appear particularly relevant in so far as the financial standing of candidates for a public services contract must be assessed by reference to their ability to pay their staff and creditors if they are awarded the contract in question rather than by reference to the value of the contract. The draft framework contract accompanying the contract documents states accordingly that the Commission undertakes to pay the amounts due within a period of 60 days, which limits most of the risk associated with the candidate's financial standing to the expenses incurred in the two months during which it may have to allow the Commission credit and not, for example, to the annual value of the contract estimated by the Commission at EUR 4 000 000. In those circumstances a bank certificate, an offer of a guarantee or a joint and several undertaking are particularly appropriate for assessing a candidate's financial standing.
104 Furthermore, the priority given to technical standing over financial standing in the selection of candidates does not mean that financial standing was not considered at all. The conclusions of the assessment panel that the candidates' financial standing was not clear from the turnover figures given because of the different aids and subsidies they had received indicate expressly that a detailed check would have to be made of the proposed tenderer's financial cover before the contract was awarded.
105 In this connection it must be noted that, in conformity with the abovementioned request of the assessment panel, the Commission checked the financial standing of the Manieri group after it had been proposed for receiving the contract.
106 Consequently the balance sheets and the trading accounts of the three members of the group represented by Manieri which were not included with Manieri's application and which the Commission asked for on 13 October 1999 or, at least, the reason for their absence, as required by Article 34 of Directive 92/50, reached the Commission on 3 November 1999, thus completing the application.
107 Subsequently Manieri passed to the Commission a letter dated 3 February 2000 from Deutsche Bank which states that Manieri, taken on its own, has the financial resources at its disposal, it can meet its commitments and has a good reputation. This second letter, in addition to that from Rolo Banca 1473 of 17 June 1999, is further evidence of this applicant's financial standing.
108 It follows from the foregoing that, when considering the financial standing of Manieri and the other members of the group represented by it, the Commission did not disregard the contract notice or the contract documents, nor was there a manifest error of assessment on the Commission's part, nor did it infringe Article 34 of Directive 92/50 or the principle of non-discrimination.
109 Therefore the applicant's complaints relating to the successful tenderer's inadequate financial standing must be dismissed. | C-94/99
ARGE | 29-31 | S2-31.2 | 29 While it is not, therefore, contrary in itself to the principle of equal treatment of tenderers for public bodies to take part in a procedure for the award of public procurement contracts, even in circumstances such as those described in the first question, it is not excluded that, in certain specific circumstances, Directive 92/50 requires, or at the very least allows, the contracting authorities to take into account the existence of subsidies, and in particular of aid incompatible with the Treaty, in order, where appropriate, to exclude tenderers in receipt of such aid.
30 The Commission correctly states in this connection that a tenderer may be excluded from a selection procedure where the contracting authority considers that it has received aid incompatible with the Treaty and that the obligation to repay illegal aid would threaten its financial well-being, so that that tenderer may be regarded as unable to offer the necessary financial or economic security.
31 However, in order to answer the question of principle raised in the main proceedings, it is neither necessary nor indeed possible, having regard to the contents of the case-file, to define the conditions in which contracting authorities would be bound, or entitled, to exclude tenderers which receive subsidies. |
| Case | Pte | Ref | Text | N-020103
AC-Trafik | 7-8 | S2-26.1-impl
S2-31.2-3-impl
S2-32.3-impl
S2-36.1-impl | 7. Den omstændighed, at tilbudsgiveren Vifa A/S under stiftelse på tidspunktet for afgivelsen af tilbudet alene var et selskab »under stiftelse«, udelukker ikke efter EU-udbudsreglerne, at tilbudet fra denne tilbudsgiver skal tages i betragtning på lige fod med tilbudene fra de øvrige tilbudsgivere, og dette gælder uanset det forhold, at stifternes beslutning om at stifte selskabet var betinget af, at selskabet under udbudet ville få en kontrakt.
8. Det anførte indebærer endvidere, at en udbyder, når et selskab under stiftelse afgiver tilbud, efter EU-udbudsreglerne må acceptere, at denne tilbudsgivers dokumentation vedrørende virksomhedens »soliditet« og »organisation« har et andet indhold end den dokumentation vedrørende disse udvælgelseskriterier og underkriterier, som selskaber, der allerede driver virksomhed, kan tilvejebringe. Efter en gennemgang af de oplysninger, som Vifa A/S under stiftelse fremsendte til indklagede som en del af tilbudet, opfyldte denne tilbudsgiver udbudsbetingelserne. Indklagede havde således ikke grundlag for at undlade at tage tilbudet fra Vifa A/S under stiftelse i betragtning. Klagenævnet tager derfor ikke påstand 5 til følge. | N-020103
AC-Trafik | 9-10+K2 | S2-31.2-3-impl
S2-36.1-impl | 9. Som grundlag for sin vurdering af Vifa A/S´s økonomiske forhold, når selskabet efter registreringen i Erhvervs- og Selskabsstyrelsen havde fået retsevne og kunne optræde som kontraktspart, har indklagede alene haft oplysningerne om den indbetalte aktieselskabskapital på 550.000 kr. samt oplysninger om de 11 stiftere, herunder oplysninger om de 11 stifteres økonomi. Da stifterne af selskabet Vifa A/S imidlertid efter registreringen af selskabet ikke hæfter for de forpligtelser, som Vifa A/S under stiftelse i henhold til en kontrakt med indklagede ville have overfor indklagede, har indklagede reelt ikke haft anden sikkerhed for Vifa A/S´s opfyldelse af sine forpligtelser efter en eventuel kontrakt end aktiekapitalen og selskabets eventuelle øvrige regnskabsmæssige formue. Indklagede har ikke ved f.eks. at modtage skriftlige kautionserklæringer fra de 11 stiftere, hvorved de indestår for selskabets overholdelse af sine forpligtelser overfor indklagede, sikret sig mulighed for at få eventuelle krav mod selskabet dækket af stifterne, og indklagede har heller ikke modtaget skriftlige erklæringer fra de 11 stiftere, hvorved de 11 stiftere på forhånd påtager sig en juridisk bindende forpligtelse til at indgå kontrakt med Vifa A/S om kørsel – eventuelt kørsel i endnu ikke nærmere præciseret omfang.
10. Det følger af det anførte, at indklagede har handlet i strid med EUudbudsreglerne ved ved bedømmelsen af Vifa A/S under stiftelse at have lagt vægt på aktionærernes (stifternes) økonomiske forhold på en måde, som ikke svarede til de juridiske realiteter vedrørende den pågældende tilbudsgiver. Påstand 6 tages derfor til følge.
.....
K2. Indklagede har handlet i strid med Tjenesteydelsesdirektivet ved ved sin anvendelse af underkriteriet (1) »driftsikkerhed« ved bedømmelsen af tilbudet fra Vifa A/S under stiftelse at have lagt vægt på oplysninger om Vifa A/S´ aktionærers finansielle og økonomiske formåen, uagtet aktionærerne ikke hæfter for Vifa A/S´ forpligtelser.
[Note that the conclusion refers only to award subcriteria] |
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