In a judgment dated 14 July 2016, the Court of Justice has held that a contracting authority is not, in principle, obliged to bring to the attention of potential tenderers, by publication in the contract notice or in the tender specifications, the method of evaluation it will apply to effectively evaluate and rank the tenders (C-6/15, TNS Dimarso NV).
Context
The judgment was delivered following a request for a preliminary ruling made by the Belgian Council of State (no. 229.723 of 6 January 2015). In the case at hand, a service contract was awarded after a public call for tenders. In the tender specifications, both the award criteria – "quality of the tender" and "price" – and their weighting (expressed in scores of 50/100 for each) were specified.
Later, it emerged that the procuring authority had used a scale of three ratings ("high–satisfactory–low") for the evaluation of the "quality of the tender" criterion. According to the applicant, this evaluation method should have been notified in advance, in the tender specifications or the contract notice.
In raising this argument, the applicant deviated from the settled case law of the Council of State, pursuant to which, in principle, there is no general obligation to notify in advance the method used to evaluate bids. According to the applicant, however, this case law had become untenable given the broad scope of the principle of transparency emphasised by the Court of Justice in its case law, notably in the Lianakis judgment of 24 January 2008 (C-532/06).
The Council of State was of the opinion that neither the ruling in Lianakis, nor the judgment of the Court of Justice of 21 July 2011 in case C-252/10 Evropaïki Dynamiki cited by the contracting authority, provided a conclusive answer to the question whether the method of evaluation used to assess and score the tenders must be made known to tenderers in advance. The Council of State therefore agreed to refer the question to the Court of Justice for a preliminary ruling.
No general obligation to notify the method of evaluation of the tenders in advance
In the preliminary ruling, the Court of Justice considered in no uncertain terms that no provision of the public procurement directives lays down an obligation for the contracting authority to notify in advance the method used to evaluate and assess the tenders. According to the Court, such a general obligation cannot be derived from its case law either.
To the contrary, the Court stresses the leeway an evaluation committee must have in carrying out its task and in structuring its work of examining and analysing the submitted tenders. According to the Court, it follows that a contracting authority must be able to use a scale for the evaluation of one of the award criteria without it being published in the contract notice or the tender specifications.
The use of such an evaluation method which is not notified in advance may not, however, have the effect of altering the award criteria and their relative weighting as published in the tender documents.
Provided that this condition is satisfied, the contracting authority seems still to enjoy considerable room for manoeuvre. In the view of the Court, a contracting authority must be able to adapt a method of evaluation which was determined prior to the opening of the tenders, but which was not notified in advance, following the expiry of the time-limit for the submission of tenders, if, in the circumstances of the case, practical considerations necessitate doing so.
The general obligation to determine the method of evaluation of the tenders in advance is not absolute
In its judgment, the Court, spurred on by its Advocate General Mengozzi, addressed the additional question of whether a contracting authority is under an obligation to determine the method of evaluation of the tenders before the opening of the tenders (the determination of the evaluation method being distinguished from the prior notification of that method to potential tenderers).
In the Advocate-General's opinion, this question was answered in the affirmative. In his view, a presumption of favouritism towards one or more tenderers exists whenever an evaluation method is determined after the time-limit for the submission of tenders has expired. Except where proof to the contrary is established by the contracting authority, this would result in the tendering procedure being unlawful.
The Court of Justice, however, showed itself less strict on the matter. Even though its judgment endorses the thesis that, in principle, an evaluation method cannot be determined after the opening of the tenders, the Court recognises that situations might exist in which such a method can only be established after the contracting authority has reviewed the content of the tenders. Such later determination must, however, be prompted by "demonstrable reasons" and – once again – may not have the effect of altering the award criteria or their relative weighting.
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Riet Straetmans
Barteld Schutyser
