Case T-183/00

Strabag Benelux NV

v

Council of the European Union

‛Public works contracts — Nonexistence of the contested decision — Statement of reasons of the award decision — Award criteria — Action for annulment — Non-contractual liability of the Community’

Judgment of the Court of First Instance (Fifth Chamber), 25 February 2003 II-   138

Summary of the Judgment

1. 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))

2. 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))

3. 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

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

1.  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 54-55, 57)

2.  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. 58)

3.  Article 30(2) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts does not list the criteria which may be adopted as criteria for the award of a contract to what is the most economically advantageous tender. Although that provision thus leaves it to the contracting authority to choose the criteria on which it proposes to base its award of the contract, that choice may relate only to criteria aimed at identifying the offer which is economically the most advantageous.

   The listing of the award criteria in the contract documents without specifying the order of their importance is not incompatible with Article 30(2) of the directive, which does not prescribe but merely recommends that the criteria for awarding a contract should be placed in order of importance. The contracting authority has a wide discretion not only in choosing the contract-award criteria which it intends to follow but also as regards the relative weight it accords to the various criteria for the purpose of taking a decision to award a contract following a tendering procedure, provided that the assessment it carries out is designed to identify the most economically advantageous offer.

   (see paras 74, 77)