The Court of Justice (“CJEU”) recently ruled (14 July 2016, C-6/15) on the question of whether contracting authorities are obliged to notify and establish the assessment methodology in advance in contract documents. Contrary to the award criteria and their weightings, case law admitted until now that this was not mandatory.
The Belgian Council of State addressed this request for a preliminary ruling in the context of a procedure, in which the applicant challenged an awarding decision because the contracting authority did not communicate the assessment methodology in the contract documents.
In this case, there were two award criteria (price and quality), each with a weighting of 50%. The applicant argued that, although the applicants could expect each of the two criteria to be equally important for the evaluation of tenders, this had in reality not been the case due to the assessment method used by the contracting authority.
The contracting authority used a scale ranking from ‘high’ to ‘low’ through ‘satisfactory’ for the evaluation of the criterion of quality of the tenders and it did not use such a scale for the price award criterion. The evaluation method used (‘low — satisfactory — high’) was in the view of the applicant so vague that it allowed the contracting authority to downgrade the assessment of the ‘quality’ criterion. The price criterion was, in the end, the sole criterion that determined the ranking of the tenders.
The applicant stated that if the evaluation method had been communicated in the contract documents, it would inevitably have influenced the preparation of the tenders.
The CJEU confirms that the contracting authority is free to choose the assessment method and that it should not in principle be disclosed. However, it appears that, in this particular case, the method used altered the respective weightings of the criteria.
The CJEU decided that the assessment method should not be notified in the contract documents, provided that it could not have an altering effect on the award criteria or their relative weightings.
Mathilde Vilain XIIII
Mathilde.VilainXIIII@cms-db.com
Youri Musschebroeck
youri.musschebroeck@cms-db.com
