Case C-599/10

SAG ELV Slovensko a.s. and Others

v

Úrad pre verejné obstarávanie

(Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky)

‛Public procurement — Directive 2004/18/EC — Contract award procedures — Restricted call for tenders — Assessment of the tender — Requests by the contracting authority for clarification of the tender — Conditions’

Summary of the Judgment

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Restricted invitation to tender — Abnormally low offer — Adjudicating body obliged to request clarification concerning the price proposal, enabling tenderers to explain the composition of their tenders — To be determined by the national court

(European Parliament and Council Directive 2004/18, Arts 2 and 55)

Article 55 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as requiring the inclusion in national legislation of a provision which provides, in essence, that if a tenderer offers an abnormally low price, the contracting authority must ask it in writing to clarify its price proposal. It is for the national court to ascertain, having regard to all the documents in the file placed before it, whether the request for clarification enabled the tenderer concerned to provide a sufficient explanation of the composition of its tender.

The same provision precludes a contracting authority from taking the view that it is not required to ask a tenderer to clarify an abnormally low price.

Article 2 of Directive 2004/18 does not preclude a provision of national law according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tenders without, however, requesting or accepting any amendment to the tenders. In the exercise of the discretion thus enjoyed by the contracting authority, that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification cannot appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome.

(see para. 45, operative part)

Case C-599/10

SAG ELV Slovensko a.s. and Others

v

Úrad pre verejné obstarávanie

(Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky)

‛Public procurement — Directive 2004/18/EC — Contract award procedures — Restricted call for tenders — Assessment of the tender — Requests by the contracting authority for clarification of the tender — Conditions’

Summary of the Judgment

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Restricted invitation to tender — Abnormally low offer — Adjudicating body obliged to request clarification concerning the price proposal, enabling tenderers to explain the composition of their tenders — To be determined by the national court

(European Parliament and Council Directive 2004/18, Arts 2 and 55)

Article 55 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as requiring the inclusion in national legislation of a provision which provides, in essence, that if a tenderer offers an abnormally low price, the contracting authority must ask it in writing to clarify its price proposal. It is for the national court to ascertain, having regard to all the documents in the file placed before it, whether the request for clarification enabled the tenderer concerned to provide a sufficient explanation of the composition of its tender.

The same provision precludes a contracting authority from taking the view that it is not required to ask a tenderer to clarify an abnormally low price.

Article 2 of Directive 2004/18 does not preclude a provision of national law according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tenders without, however, requesting or accepting any amendment to the tenders. In the exercise of the discretion thus enjoyed by the contracting authority, that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification cannot appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome.

(see para. 45, operative part)