Keywords
Summary

Keywords

1. Approximation of laws — Review procedures concerning the award of public supply and public works contracts — Directive 89/665 — Member States under an obligation to provide for review procedures — Access to review procedures — Failure by an undertaking to participate in the contracts award procedure because of allegedly discriminatory specifications — Failure to seek a review of those specifications — Excluded from access to review procedures — Whether permissible — (Council Directive 89/665, Arts 1(3) and 2(1)(b))

2. Approximation of laws — Review procedures concerning the award of public supply and public works contracts — Directive 89/665 — Member States under an obligation to provide for review procedures — Access to review procedures — Interest in obtaining the contract lost because no application to a conciliation commission was made first — Not permissible — (Council Directive 89/665, Art. 1(3))

Summary

1. Articles 1(3) and 2(1)(b) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, must be interpreted as not precluding a person from being regarded, once a public contract has been awarded, as having lost his right of access to the review procedures provided for by the directive if he did not participate in the award procedure for that contract on the ground that he was not in a position to supply all the services for which bids were invited, because there were allegedly discriminatory specifications in the documents relating to the invitation to tender, but he did not seek review of those specifications before the contract was awarded.

As regards the failure to participate in the contracts award procedure, it would indeed be too much to require an undertaking allegedly harmed by discriminatory clauses in the documents relating to the invitation to tender to submit a tender, before being able to avail itself of the review procedures provided for by Directive 89/665 against such specifications, in the award procedure for the contract at issue, even though its chances of being awarded the contract are non-existent by reason of the existence of those specifications. It would, therefore, in those circumstances, be entitled to seek review of those specifications directly, even before the procedure for awarding the contract concerned is terminated.

However, the fact that a person does not seek such a review but awaits notification of the decision awarding the contract and then challenges it before the body responsible, on the ground specifically that those specifications are discriminatory, is not in keeping with the objectives of speed and effectiveness of Directive 89/665. The refusal, in those circumstances, to acknowledge the interest in obtaining the contract in question and, therefore, the right of access to the review procedures provided for by Directive 89/665 does not impair the effectiveness of that directive.

see paras 28-29, 37, 39-40, operative part 1

2. Even though Article 1(3) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public contracts, expressly allows Member States to determine the detailed rules according to which they must make the review procedures provided for in that directive available to any person having or having had an interest in obtaining a particular public contract and who has been or risks being harmed by an alleged infringement, it none the less does not authorise them to give the term " interest in obtaining a public contract" an interpretation which may limit the effectiveness of that directive. The fact that access to the review procedures provided for by the directive is made subject to prior referral to a conciliation committee would be contrary to the objectives of speed and effectiveness of that directive.

Accordingly, that provision must be interpreted as precluding a person who has participated in a contract award procedure from being regarded as having lost his interest in obtaining the contract on the ground that, before seeking the review provided for by the directive, he failed to refer the case to a conciliation committee.

see paras 42-43, operative part 2