Keywords
Summary

Keywords

Approximation of laws — Procedures for the award of public works contracts — Directive 71/305 — Derogations from common rules — Conditions — Refusal by a body within a Member State, during the procedure provided for under national legislation, to give its approval for a public works project — Refusal not an unforeseeable event within the meaning of the directive — (Council Directive 71/305, as amended by Directive 89/440, Art. 5(3)(c))

Summary

The possibility under Article 9(d) of Directive 71/305 concerning the coordination of procedures for the award of public works contracts, in its original version, and under Article 5(3)(c) of the version resulting from the amendment by Directive 89/440 of bypassing the tendering procedure in order to apply the negotiated procedure is available only if a number of conditions are satisfied concurrently, one of which is the occurrence of an unforeseeable event. If one of those conditions is not satisfied, use of the negotiated procedure will not be justified.

The fact that a body in a Member State which must, in the procedure for approval of public works projects provided for under national legislation, approve a project may, before expiry of the period laid down for that purpose, raise objections for reasons which it is entitled to put forward cannot constitute an unforeseeable event.

A Member State whose competent authorities, after deciding not to award a public works contract by open procedure by reason of the delay resulting from the refusal by a body to approve the work plans originally envisaged, award a contract for partial work by negotiated procedure without prior publication of a tender notice, will therefore be in breach of its obligations under the directive.