| | 32004L0018: c3-48.6Specify    
| 32004L0018 - Classic (3rd generation) | Article 48.6 | | 6. The contracting authority shall specify, in the notice or in the invitation to tender, which references under paragraph 2 it wishes to receive. | | 31993L0037 - Works (2nd generation) | Article 27.2 | | 2. The contracting authorities shall specify in the invitation to tender which of these references are to be produced. | | 31993L0036 - Goods (2nd generation) | Article 23.2 | | 2. The contracting authority shall specify, in the notice or in the invitation to tender, which references it wishes to receive. | | 31992L0050 - Services (2nd generation) | Article 32.3 | | 3. The contracting authority shall specify, in the notice or in the invitation to tender, which references it wishes to receive. | | 31971L0305 - Works (1st generation) | Article 26.2 | | The authorities awarding contracts shall specify in the notice or in the invitation to tender which of these references are to be produced | | 31977L0062 - Goods (1st generation) | Article 23.2 | | 2. The contracting authority shall specify in the notice which references he wishes to receive. |
| Case | Pte | Ref | Text | T-169/00
Esedra | 114-125 | S2-32.2.implicit | 114 As a preliminary point, it must be observed that, with regard to the question under consideration, the Commission has a broad discretion and the Court's review must be limited to verifying that there has been no serious and manifest error (see paragraph 95 above).
115 On this point, it should be noted that paragraph 13 of the contract notice lists the particulars which are necessary for appraising candidates' minimum technical standing as follows: ... (6) a statement of the candidate's annual average work force and the number of managerial staff in the last three years; (7) a list of the main contracts in the field of the present invitation to tender carried out in the last three years, showing the amounts, dates and names and addresses of the persons receiving the services; (8) a full description of the various measures taken by the candidate for quality control of the services; (9) details of the part [of the] contract which the candidate intends, if necessary, to sub-contract, and the arrangements for quality control and supervision of the proposed sub-contract.
116 As in the case of information on financial standing, a tender which gives no or only incomplete information on technical standing may be automatically eliminated by the Commission in accordance with paragraph 15(2) of the contract notice.
117 With regard to the applicant's argument concerning the company objects of the members of the group represented by Manieri, it must be observed that the company object is not one of the criteria listed in the contract notice which may be taken into account for assessing a candidate's technical standing. Moreover, such a criterion could be misleading in so far as a company object may be worded in very broad terms and may be altered.
118 Moreover, there is no factual foundation for this argument in relation to Manieri. IIn fact, examination of its company object shows that it relates not only to secondary education of the second grade but also, and in particular, to nursery school and kindergarten, which therefore includes activities connected with very young children.
119 With regard to the applicant's criticism of Sapiens, it must be observed that, firstly, the formation of that company in June 2000 occurred after the selection of candidates and the award of the contract in question and such criticism therefore is irrelevant for assessing the Manieri group's technical standing and, secondly, the Commission maintains, without being contradicted, that most of the staff employed by Sapiens were previously employed by the applicant.
120 In addition, as the Commission pointed out in its note of 10 May 2000 to the Advisory Committee on Procurements and Contracts, the formation of a company under Belgian law such as Sapiens is a means of fulfilling a number of obligations laid down by the Member State where the services are provided, in relation to employment law, tax law and social law (social insurance contributions and other employees' rights, payment of taxes, availability of a VAT number, supervision of management of facilities for small children in Belgium, etc.).
121 Moreover, when the selection of candidates was carried out, the Manieri group's application included a statement of the average workforce and the number of managerial staff in the last three years, in accordance with paragraph 13(6) of the contract notice.
122 Nevertheless, with regard to the figures for the workforce, it appears from the findings of the assessment panel that those figures were not reliable and conclusive as the contract would not have been carried out by the applicants directly, but by a company incorporated under Belgian law which they were to form and most of the staff were to be recruited on the spot.
123 Consequently the technical standing of the candidates was assessed on the basis of the other criteria laid down by the contract notice, namely the list of the main contracts in the field of the present invitation to tender carried out in the last three years (paragraph 13(7) of the contract notice), the measures taken for quality control (paragraph 13(8) of the contract notice) and the part of the contract which was subcontracted, if any, and the arrangements for the quality control of the sub-contract (paragraph 13(9) of the contract notice).
124 In the present case, the assessment panel took the view that Manieri's application, like that of the other six candidates, was satisfactory. In particular, it is clear from the panel's findings that Manieri, like the other six candidates, fulfilled the conditions laid down in paragraph 13(7) to (9) of the contract notice by furnishing all the information requested.
125 The applicant is therefore wrong in claiming that the Commission disregarded the contract notice and manifestly erred in its assessment when examining the technical standing of Manieri or the other members of the group which it represents. Accordingly the applicant's complaints concerning the successful tenderer's inadequate technical standing must be rejected. | 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-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. |
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