Case T-4/01

Renco SpA

v

Council of the European Union

‛Public works contracts — Directive 93/37/EEC — Contract documents — Award criteria — Statement of reasons in the award decision — Manifest errors of assessment — Non-contractual liability of the Community’

Judgment of the Court of First Instance (Fifth Chamber), 25 February 2003   II-175

Summary of the Judgment

1. Non-contractual liability — Conditions — Sufficiently serious breach of Community laiv

   (Art. 288, second para., EC)

2. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Award criteria — Chosen by the contracting authority — Limit — Criteria to be used which enable the most economically advantageous tender to be identified — Permissibility of criteria which are not purely quantitative

   (Council Directive 93/37, Art. 30(1)(b) and (2))

3. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Abnormally low tenders — Obligation of the contracting authority to check the reliability of tenders — Scope

   (Council Directive 93/37, Art. 30(4))

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to reject a tender under the procedure for the award of a public works contract

   (Art. 253 EC; Council Directive 93/37, Art. 8(1))

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to reject a tender under the procedure for the award of a public works contract — Assessment on the basis of the information available to the applicant at the time the application was brought

   (Art. 253 EC; Council Directive 93/37, Art. 8(1))

1.  In order for the Community to incur non-contractual liability under the second paragraph of Article 288 EC, a number of conditions must be met: the conduct alleged against the institutions must be unlawful, the existence of damage must be shown, and there must be a causal link between the alleged conduct and the damage. With regard to the first of these conditions, case-law requires it to be shown that there has been a sufficiently serious breach of a rule of law intended to protect individuals. When the institution has a discretion, the decisive test for finding that a breach of Community law is sufficiently serious is whether the institution concerned manifestly and gravely disregarded the limits on its discretion.

   (see paras 60, 63)

2.  Article 30(2) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts leaves it to the contracting authority to choose the criteria on which it proposes to base its award of the contract, provided that the criteria chosen are aimed at identifying the offer which is economically the most advantageous. In order to determine the economically most advantageous tender, the contracting authority must be able to exercise its discretion, taking a decision on the basis of qualitative and quantitative criteria that vary according to the contract in question. Nevertheless, Article 30(1 )(b) of the directive cannot be interpreted as meaning that each of the award criteria used by the contracting authority to identify the most economically advantageous tender must necessarily be either quantitative or related solely to the prices or rates contained in the summary. Various factors which are not purely quantitative may affect the execution of work and, as a result, the economic value of a tender.

   (see paras 66, 68)

3.  Although Article 30(4) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts does not require the contracting authority 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. The fact that a tender is considered to conform to the contract documents does not relieve the contracting authority of its obligation to check the prices of a tender if doubts arise as to their reliability during the examination of the tenders and after the initial assessment of their conformity. Thus, the contracting authority satisfies the requirements of the procedure laid down by the abovementioned Article 30(4) by providing a bidding undertaking, on several occasions, with the opportunity to demonstrate that its tender was serious.

   (see paras 76-77)

4.  According to Article 8(1) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, which, by virtue of Article 56 of the Financial Regulation, is applicable to contracts awarded by the Community institutions where the value of the contract exceeds the threshold laid down in that directive, an institution fulfils its obligation to provide eliminated tenderers with a statement of reasons if it first informs them immediately of the fact that their tender has been rejected by a simple unreasoned communication and then subsequently, if expressly requested to do so, informs them of the relative characteristics and advantages of the successful tender and the name of the successful tenderer within 15 days of receipt of a written request.

   Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review. The adequacy of a statement of reasons is not called into question by the fact that the institution subsequently provided a more detailed explanation.

   (see paras 92-93, 96)

5.  Compliance with the duty to state reasons laid down in Article 253 EC must be assessed in the light of the information available to the applicant at the time the application was brought. If, in the context of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, the eliminated tenderer, before bringing an action but after the date laid down by Article 8(1) of that directive, asks the institution concerned for additional explanations about a decision to reject its tender and receives those explanations, it cannot ask the Court not to take them into consideration when determining whether the statement of reasons is adequate; however, the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons.

   (see para. 96)