OPINION OF ADVOCATE GENERAL

MISCHO delivered on 25 February 2003 (1)

(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))

((Public contracts – Directive 89/665/EEC – Persons to whom review procedures are available))

I ─ Legal background

A ─ Community legislation

(a) take interim measures, at the earliest opportunity and by way of interlocutory procedures, with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

(c) award damages to persons harmed by an infringement.

B ─ National legislation

(1) until such time as the contract is awarded, to reconcile any differences of opinion between the awarding body and one or more candidates or tenderers concerning the application of the present federal law or its implementing regulations.

7. If the B-VKK does not take action following a request from the awarding body it must inform that body immediately it does take action.

7. Paragraph 113 of the BVergG lays down the powers of the Bundesvergabeamt. It provides:

II ─ The main proceedings

11. In the autumn of 1999 Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) invited tenders prior to the award of a public services contract for site management in respect of the construction of principal and subsidiary toll barriers, including electrical, internal and technological work, and the introduction of a data-transmission facility as part of the LKW Maut Österreich project. The tenders were opened on 18 November 1999.

12. Together with a number of partners, Fritsch, Chiari & Partner Ziviltechniker GmbH (the applicant) submitted its tender as a consortium. By letter of 28 January 2000 the applicant was informed that its tender had been placed second in the evaluation of the tenders and was therefore unsuccessful. On 8 February 2001 it was told that the contract had been awarded to a competitor and was informed of the amount of the contract.

13. The applicant then instituted a procedure under Paragraph 113(3) of the BVergG for a review by the Bundesvergabeamt, seeking a declaration that the contract had not been awarded to the best tenderer because the award criteria laid down by the contracting authority infringed the requirement contained in Paragraph 53 of the BVergG that the best tenderer must be determined in a comprehensible manner.

14. Before the Bundesvergabeamt, Asfinag stated that, under Paragraph 115(1) of the BVergG, only an undertaking claiming an interest in obtaining a contract falling within the scope of the BVergG is entitled to apply for review of a decision of the contracting authority on the ground of unlawfulness, where the alleged unlawfulness has caused or risks causing it harm. According to Asfinag, the applicant clearly had no interest in obtaining the contract since it had not submitted an application for conciliation to the B-VKK, as it was entitled to do under Paragraph 109(1) of the BVergG.

15. In support of its view, Asfinag maintains that public procurement law does not exist for its own sake but rather serves to determine where pre-contractual liability lies amongst the various parties to public procurement procedures, including the tenderers. If a tenderer considers that the award criteria do not comply with the law, it is required, as provided in Paragraph 109(6) of the BVergG, to inform the B-VKK as soon as possible, even before the tenders are opened. The principle of competition prohibits allowing a tenderer who considers that the award criteria do not comply with the law, first to submit a tender in order to ascertain whether it is the best tenderer and then to decide on its actions according to how the contract is awarded: if it is the best tenderer it does not make an application, but if it fails to obtain the contract, or is not the best tenderer, it applies to the competent authorities in order to have a second bite at the cherry as a result of the invitation to tender being revoked.

16. According to Asfinag, Paragraph 109(6) of the BVergG therefore imposes a time-limit for claims, so that the submission of a tender without any preliminary application being made to the B-VKK means that no claim may be brought in respect of defects in the invitation to tender which, if it had exercised due care, the tenderer should have been aware of at the time it prepared its tender. If in the present case the applicant had applied to the B-VKK before preparing its tender bid and had drawn Asfinag's attention to the alleged errors, no costs would have been incurred in preparing the tender.

17. The applicant denied the allegation that it had no interest, stating that according to the consistent practice of the public procurement supervisory bodies, submission of a tender within the time-limit was sufficient to establish an interest in obtaining a contract.

III ─ The questions referred for a preliminary ruling

18. Considering that the Austrian legislation applying to the case before it should be interpreted in the light of Article 1(3) of Directive 89/665 and that a decision in the case therefore required an interpretation of that provision, the Bundesvergabeamt, by order of 11 July 2001, decided to stay proceedings pending a preliminary ruling by the Court of Justice on the following questions:

(2) In the event that the answer to Question 1 is no: Is the abovementioned provision to be understood as meaning that an undertaking only has or had an interest in a particular public contract if, in addition to its participating in the public procurement procedure, it takes or took all steps available to it under national law to prevent the contract from being awarded to another bidder and so to secure the award of the contract to itself?

19. In the order for reference the Bundesvergabeamt points out that in a judgment of 12 June 2001 (B 485/01-12, B 584/01-9, B 685/01-6) the Verfassungsgerichtshof (Austrian Constitutional Court) stated, referring to its judgment of 8 March 2001 (B 707/00), that according to the case-law of the Court of Justice, (4) the capacity to institute a review procedure under Article 1 of Directive 89/665 must be interpreted broadly and should therefore belong to any person seeking to obtain a specific public contract which is the subject of an invitation to tender. The question therefore arises whether that should be the case irrespective of whether that person has or has not availed himself of the opportunity afforded him by the contracting authority of exhausting all remedies available under domestic public procurement law (first question) or whether failure to exhaust all possible domestic remedies results in him forfeiting that interest (second question).

IV ─ Analysis

A ─ Whether the Court has jurisdiction to answer the questions referred by the Bundesvergabeamt

21. It should be pointed out, however, that this issue has in the meantime been settled by the Court in Case C-411/00 Swoboda, (5) at least as regards questions referred by the Bundesbegabeamt in the exercise of its powers during the period after the award of the contract. The Court held in that context that it was a court or tribunal within the meaning of Article 234 EC. (6)

22. It is clear from the order for reference that in the main proceedings the Bundesvergabeamt is also exercising its powers during the period after the award of the contract. The case was brought on the basis of Paragraph 113(3) of the BVergG, (7) which provides: [a]fter the award of the contract or the close of the contract award procedure, the Bundesvergabeamt is competent to determine whether, on grounds of infringement of this Federal Law or of any regulations issued under it, the contract has not been awarded to the best tenderer.

23. It must therefore be concluded that the Court has jurisdiction to answer the questions referred for a preliminary ruling by the Bundesvergabeamt.

B ─ On the questions

24. Like the French Government, I propose to deal with both the questions together.

26. The applicant and the Austrian Government confirmed at the hearing that at the material time there was no statutory obligation on the applicant to make an application to the B-VKK after being informed by letter of 28 January 2000 that its tender had been placed second in the evaluation of the tenders and was therefore unsuccessful.

27. The order for reference does not contain any information from which I may conclude that this view is incorrect.

28. In essence, the questions amount to the single question of whether Directive 89/665 must be understood as meaning that a tenderer has or had an interest in obtaining a public contract only if it made a preliminary application to an advisory committee although such application was optional.

29. In my view the answer to that question is no.

30. First, it is clear straight away that Directive 89/665 does not specify any circumstances in which a tenderer forfeits an interest in obtaining a contract.

31. Second, to answer yes would mean that one inferred from the directive that the tenderer was under an obligation to make an application to an advisory committee although such application is optional under national law, otherwise it would forfeit an interest in obtaining the public contract. Such an inference cannot be made.

32. It is true that the directive does not preclude certain obligations being imposed on traders under national law.

33. This is clear, for example, from the last sentence of Article 1(3) of Directive 89/665, which provides ... the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.

34. It is also clear from Case C-470/99 Universale-Bau and Others, (9) in which the Court held that extinctive time-limits at national level were compatible with Directive 89/665 provided they were reasonable.

35. However, the directive itself does not impose such obligations on traders, and moreover could never do so where it has no direct effect on individuals. (10)

36. I therefore suggest that the answer to the questions referred for a preliminary ruling should be that, in itself, Article 1(3) of Directive 89/665 does not mean that an undertaking has or had an interest in obtaining a particular public contract only if, in addition to its participation in the public procurement procedure, it takes or took all steps available to it under national law to prevent the contract from being awarded to another tenderer and so to secure the award of the contract to itself.

37. In the alternative I should like, however, to consider the questions again from another angle.

38. They could also be interpreted as meaning that the Bundesvergabeamt is seeking to ascertain whether Directive 89/665 precludes a rule of national law under which a tenderer forfeits its interest in obtaining the contract if it has not taken all steps available to it under national law to prevent the contract from being awarded to another tenderer.

39. I stress that I have not found in the order for reference any express reference to a rule of Austrian law which states that although an application to the B-VKK is optional, failure to make such application would cause a tenderer to forfeit an interest in obtaining the contract. However, since only the referring court has jurisdiction to interpret its national law, one cannot exclude a priori that such a rule does exist. Therefore, in an attempt to provide an answer to the Bundesvergabeamt which is as useful as possible, I suggest that an answer should also be given to the questions as I have reworded them in the alternative.

40. At the hearing the French and Austrian Governments and the Commission rightly submitted that the answer to the questions worded in that way should be based on the judgment in Universale-Bau and Others, cited above, which was delivered after they had submitted their written observations.

42. Like the abovementioned interveners, I take the view that that ruling may be transposed to the present case.

As in Universale-Bau, cited above, in which the Court held that Directive 89/665 contains no provision specifically covering time-limits for the application for review which it sought to establish, (12) the directive in question does not either, as I stated above, (13) contain any provision concerning circumstances in which a tenderer might forfeit an interest in obtaining a contract.

44. Article 1(3) of Directive 89/665 indeed requires review procedures to be made available to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement, although it does not define more fully either the concept of interest or any circumstances in which failure on the part of the tenderer to exercise due care may cause it to forfeit an interest in obtaining a contract since it is considered as not having or never having had such an interest. It is therefore for the national legal system of each Member State, where appropriate, to make such provision. (14)

45. Having reached this stage in the reasoning, I should like to quote in extenso paragraphs 72 to 76 of Universale-Bau and Others, cited above, which seem to me to apply mutatis mutandis to the question before us:

72 None the less, since there are detailed procedural rules governing the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting authorities, they must not compromise the effectiveness of Directive 89/665.

73 It is therefore appropriate to determine whether, in light of the purpose of that directive, national legislation such as that at issue in the main proceedings does not adversely affect rights conferred on individuals by Community law.

74 In that regard, it is appropriate to recall that, as is apparent from the first and second recitals in its preamble, Directive 89/665 is intended to strengthen the existing mechanisms, both at national and Community levels, to ensure the effective application of the directives relating to public procurement, in particular at a stage when infringements can still be corrected. To that effect, Article 1(1) of that directive requires Member States to guarantee that unlawful decisions of contracting authorities can be subjected to effective review which is as swift as possible.

75 The full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringement of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements.

76 Moreover, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty (see, by analogy, in relation to the principle of the effectiveness of Community law, Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 28, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 33).

46. As in the case of the time-limits which were at issue in Universale-Bau and Others, cited above, I am of the view that a national rule which requires a tenderer to take all steps reasonably available to it to prevent the contract from being awarded to another tenderer, or else it would risk forfeiting an interest in obtaining the contract, is contributing towards achieving the objective of Directive 89/665 of establishing effective review procedures that are as rapid as possible. (16) In addition, it also meets the requirement of effectiveness contained in Directive 89/665 in so far as it is in the interest of legal certainty.

47. I should like to stress, however, that such forfeiture of an interest in obtaining the contract, in my view, cannot arise except where the tenderer has failed to take all the steps which are reasonably available to it, in the same way as the time-limits must also be reasonable. (17)

48. At the hearing the applicant stated that it had not had sufficient information to make a proper application to the B-VKK after being informed, by letter of 28 January 2000, that its tender had been placed second in the evaluation of the tenders and was therefore unsuccessful.

49. It is for the court making the reference to consider whether, in the light of such circumstances, the applicant had reasonably had available to it the step of making an application to the B-VKK. If that was not the case the applicant cannot be criticised for not having taken that step.

50. I therefore suggest that the answer to the questions referred for a preliminary ruling should, in the alternative, be that Article 1(3) of Directive 89/665 does not preclude a rule of national law under which an undertaking has or had an interest in obtaining a particular public contract only if, in addition to its participating in the public procurement procedure, it takes or took all steps reasonably available to it under national law to prevent the contract from being awarded to another bidder and so to secure the award of the contract to itself.

V ─ Conclusion

51. In the light of the above considerations, I suggest that the answer to the questions referred by the Bundesvergabeamt should be as follows: Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 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 Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, does not mean that an undertaking has or had an interest in obtaining a particular public contract only if, in addition to its participation in the public procurement procedure, it takes or took all steps available to it under national law to prevent the contract from being awarded to another bidder and so to secure the award of the contract to itself; Article 1(3) of Directive 89/665 does not, however, preclude a rule of national law under which an undertaking has or had an interest in obtaining a particular public contract only if, in addition to its participating in the public procurement procedure, it takes or took all steps reasonably available to it under national law to prevent the contract from being awarded to another bidder and so to secure the award of the contract to itself.

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(1) Original language: French.

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OJ 1989 L 395, p. 33.

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OJ 1992 L 209, p. 1.

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See Case C-81/98 <i>Alcatel Austria and Others</i> [1999] ECR I-7671, paragraphs 34 and 35.

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[2002] ECR I-10567.

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See <i>Swoboda</i> , cited above, paragraphs 26 to 28.

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See point 13 above.

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Emphasis added.

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[2002] ECR I-11617.

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Case 152/84 <i>Marshall</i> [1986] ECR 723, paragraph 48; Case C-91/92 <i>Faccini Dori</i> [1994] ECR I-3325, paragraphs 22 to 25; Case C-456/98 <i>Centrosteel</i> [2000] ECR I-6007, paragraph 15, and Case C-443/98 <i>Unilever</i> [2000] ECR I-7535, paragraphs 50 and 51.

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See point 30 above.

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See, by analogy, <i>Universale-Bau</i> , cited above, paragraph 71 <i>in fine</i> .

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Emphasis added.

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See also <i>Alcatel Austria and Others</i> , cited above, paragraph 34, and Case C-92/00 <i>HI </i> [2002] ECR I-5553, paragraph 52.

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