11.1.2014

Official Journal of the European Union

C 9/18

(Case C-538/13)

2014/C 9/28

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas (Supreme Court) (Lithuania)

Parties to the main proceedings

Appellant in cassation: eVigilo Ltd

Respondent in cassation: Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

Questions referred

1.Are the public procurement rules of European Union law — the third subparagraph of Article 1(1) of [Directive 89/665, as amended by] Directive 2007/66, in which are laid down the principles of effectiveness and expeditiousness with regard to the defence of rights of tenderers which have been infringed, Article 2 of Directive 2004/18, which lays down the principles of equal treatment of tenderers and of transparency, and Articles 44(1) and 53(1)(a) of Directive 2004/18, in which is set out the procedure governing the conclusion of a contract with the tenderer which has submitted the most economically advantageous tender — to be understood and interpreted together or separately (but without a limitation to the aforementioned provisions) as meaning that:

(a)in the case where a tenderer has become aware of a possible significant connection (link) which another tenderer has with the contracting authority’s experts who evaluated the tenders, and (or) has become aware of the potentially exceptional position of that tenderer by reason of preparatory work previously performed in connection with the procurement procedure in dispute, and where, in regard to those circumstances, the contracting authority has not undertaken any actions, that information alone is sufficient to establish a claim that the review body should recognise as unlawful the actions of the contracting authority which failed to ensure transparency and objectivity in the procedures, the applicant, moreover, not being required to prove in concrete terms that the experts acted in a biased manner?

(b)the review body, having established that the grounds for the applicant’s abovementioned claim are well founded, is not obliged, when ruling on the consequences which those grounds may have for the results of the tendering procedure, to have regard for the fact that the results of the evaluation of the tenders submitted by tenderers would essentially have been the same if there had not been any biased assessors among the experts who evaluated the tenders?

(c)the tenderer becomes (finally) aware of the content of the criteria relating to the most economically advantageous tender, which were formulated in accordance with the qualitative parameters and set out in abstract terms in the tendering conditions (criteria such as completeness and compatibility with the needs of the contracting authority), in respect of which the tenderer was essentially able to submit a tender, only at the time when, in accordance with those criteria, the contracting authority evaluated the tenders submitted by tenderers and provided interested parties with comprehensive information concerning the grounds for the decisions taken, and only from that moment could the limitation period governing the review procedure laid down in national law be applied to that tenderer?

2.Must Article 53(1)(a) of Directive 2004/18, applied in conjunction with the principles governing the award of a contract set out in [Article] 2 of that directive, be understood and interpreted as meaning that contracting authorities are prohibited from establishing (and applying) a procedure for the evaluation of tenders submitted by tenderers under which the results of the evaluation of tenders depend on how comprehensively tenderers have demonstrated that their tenders satisfy the requirements of the tendering documents, that is to say, the more comprehensively (more extensively) the tenderer has described the conformity of its tender with the tendering conditions, the greater will be the number of marks awarded to its tender?

Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).

Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).