ECJ: Procuring Part B Services premise altering the weighting of the award criteria for a contract
ECJ, Judgment of the Court of 18th November 2010 – European Commission vs. Ireland (Case C-226/09)
On 18th November 2010, the Court of Justice of the European Union (ECJ) issued a ruling clarifying the circumstances in which contracting authorities can change the way they assess tenders, in cases involving “Part B services”, where the public procurement directive doesn't apply in full. The case arose from an action by the Commission against Ireland alleging it to be in breach of its EU law obligations. In May 2006, the Irish government published a notice in the Official Journal for a contract for interpretation and translation services. These services are Part B services under Directive 2004/18. The award of a contract for the provision of Part B services is not subject to the full procedural requirements that apply to the award of contracts for other services. The contract notice stated that the contract would be awarded to the most economically advantageous tender on the basis of seven stated criteria. No weightings for the award criteria were stated. Twelve companies submitted requests to participate in the procedure. After the closing date for the submission of tenders, the evaluation team were given an evaluation matrix indicating the relative weightings to be attributed to the award criteria. Following an initial review of the bids, the evaluation team decided to alter the weightings attributed to the criteria.
The Commission claimed that Ireland breached the principles of equal treatment and transparency by modifying the weighting attributed to the award criteria after an initial brief review of the bids submitted. The Court agreed with the Commission that the principles of equal treatment and transparency, as derived from European Union primary law, were applicable to the contract. However, the Court disagreed with the argument that the scope of these principles extended to require a contracting authority to state the relative weightings of award criteria set out in a contract notice for Part B Services. The Court noted that there is no specific provision in the Directive to this effect. The Court held that the Contracting Authority had, in fact, provided more information than was required under the Directive. It further held that the award criteria were not formulated in the contract documentation in such a way that there could be held to be a difference in treatment to the detriment of undertakings located in a Member State other than Ireland. On this basis the Court rejected the Commission’s claim partly. Incidentally, the Court agreed with Commission’s claim and stated that the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret award criteria in the same way throughout the procedure. In the opinion of the the Court, award criteria must not be amended in any way during the tender procedure. Consequently, the Court found that the conduct of the Contracting Authority in this case was not consistent with the principle of equal treatment or the consequent obligation of transparency.
Harald Nickel
advocate . tax lawyer
assistant professor for public procurement law (h_da)
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