OPINION OF ADVOCATE GENERAL

delivered on 29 June 1995 (*1)

A — Introduction

1.The reference for a preliminary ruling made by the Tribunale Amministrativo (Regional Administrative Court), Lazio, is concerned to establish the temporal limits of a derogating provision of Council Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts, (1) as amended by Directive 89/440/EEC. (2) Article 29(5) of the directive, which appears in the chapter entitled ‘Criteria for qualitative selection’, lays down how the contracting authority should proceed in the case of ‘abnormally low tenders’. (3) The fourth subparagraph of Article 29(5) provides that, subject to certain conditions, the contracting authority need not comply with the prescribed procedure ‘until the end of 1992’. In the final analysis, the case before the Court is concerned with whether a procedure for the award of contracts must have been concluded before 31 December 1992 in order for the contracting authority to be able to rely on the derogating provision or whether it is sufficient for the tender procedure to have been initiated before that date.

2.Furlanis — the plaintiff in the main proceedings — had its tender rejected pursuant to an automatic exclusion criterion. Its tender was rejected by decision of the contracting authority of 4 February 1993.

3.The main proceedings relate to a private invitation to tender organized by Azienda Nazionale Autonoma Strade (hereinafter ‘ANAS’) for the award of a contract for construction work on the Ascoli Piceno — Comunanza section of the Piceno-Aprutina road. The contract was put out to tender in September 1992, upon which the plaintiff submitted an application to participate. By letter dated 12 December 1992, it received an invitation to take part in the private call for tenders for the works referred to in the notice of September 1992. The letter of 12 December stated that the deadline for the examination of tenders was 4 February 1993.

4.The successful tenderer was a competitor of the plaintiff, whilst the plaintiff's tender was excluded pursuant to an automatic criterion as being abnormally low. The plaintiff took legal proceedings against this decision of the contracting authority. In the proceedings before the national court, it argued, inter alia, that the legal basis on which the decision to exclude its tender was founded was contrary in several respects to Community law. Apparently, the national court considered that, of those objections, only the question of the time-limit set to the derogating provision required clarification from the Court of Justice. It has referred the following question for a preliminary ruling: Must the provisions of Article 1(20) of Directive 89/440/EEC, amending the earlier Directive 71/305/EEC concerning procedures for the award of public works contracts, be interpreted as meaning that the exception to the procedure for the verification of tenders that appear to be abnormally low in relation to the transaction, which was available only until the end of 1992, relates

(a)to tendering procedures actually completed by that date or

(b)to tendering procedures commenced before that date?

5.The plaintiff in the main proceedings, the successor in title to the successful tenderer, the Italian Government and the Commission took part in the proceedings.

B — Opinion

6.Article 29(5) of the directive, in the version applicable to these proceedings, reads as follows: ‘If, for a given contract, tenders appear to be abnormally low in relation to the transaction, before it may reject those tenders the contracting authority shall request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received. The contracting authority may take into consideration explanations.... However, until the end of 1992, if current national law so permits, the contracting authority may exceptionally, without any discrimination on grounds of nationality, reject tenders which are abnormally low in relation to the transaction, without being obliged to comply with the procedure provided for in the first subparagraph if the number of such tenders for a particular contract is so high that implementation of this procedure would lead to a considerable delay and jeopardize the public interest attaching to the execution of the contract in question. Recourse to this exceptional procedure shall be mentioned in the notice referred to in Article 12(5).’

7.The parties have differing views on the interpretation of this provision.

8.The plaintiff in the main proceedings reiterates its reservations based on the substantive law with regard to the compatibility of the national implementing provision with the directive. Since the national court intimates that it does not require the assistance of the Court of Justice in the shape of a preliminary ruling in order to assess those objections, I shall not go into the relevant arguments here.

9.The plaintiff further argues that, since Directive 89/440 and Decree No 406/91 of the President of the Italian Republic implementing the directive provided that the exceptional system was to be valid only until 31 December 1992, ANAS acted contrary to the directive. The mere fact that it was mentioned in the tender notice that it was possible that abnormally low tenders might be automatically excluded did not oblige the administration to act in the way it did. Before the contracting authority could consider the conditions for automatic exclusion, it should have determined whether the relevant provision was still in force when it awarded the contract. This would have shown that the period of validity of the derogating provision had already run out. Since, in its letter inviting tenders of 12 December 1992, ANAS set the deadline for verifying tenders at 4 February 1993, it was no longer entitled to mention the possibility that tenders might be automatically excluded.

10.The plaintiff suggests that the system for the automatic exclusion of abnormally low tenders should be declared inapplicable after 31 December 1992.

11.Itinera, a company and the successor in title to the successful tenderer, intervening in the main proceedings in support of the defendant, argues that there is no uncertainty about the content of the Community provision. Furthermore, there is no conflict between that provision and the national implementing provision. Consequently, the request for a preliminary ruling should be regarded as inadmissible. In the event that the Court should nevertheless regard the request for a preliminary ruling as admissible, Itinera argues that the provisions which were in force at the time when the tender notice was published should apply to the procedure for the award of the tender. Both the public notice and the invitation to tender took place before 31 December 1992. All tenderers, including the plaintiff, submitted their tenders in the light of the conditions laid down therein. The principle of protection of legitimate expectations would be infringed if the contracting authority had been compelled to conclude a contract on conditions different from those proposed to the tenderers. Since, in addition, administrative measures should in principle comply with the rules which are in force when they are adopted, the Court should endeavour to declare the derogating provision applicable to all procedures for the award of contracts which were initiated before 31 December 1992.

12.The Italian Government also takes the view that the derogating provision should apply to procedures which were initiated before 31 December 1992. Since the contracting authority referred to this form of exclusion, it was obliged to apply it. Moreover, the tenderers were entitled to insist that the contracting authority should proceed in that manner. Otherwise, the legality of the procedure for the award of the contract could be called in question.

13.The Commission refers in the first place to the background to the adoption of the derogating provision. It refers to a report of the Committee of Permanent Representatives of 11 October 1988 (4) from which it appears that the derogating provision was incorporated at the express wish of the Italian delegation. It asked that this should be done in order to take account of the specific difficulties arising in Italy which constituted a political problem for it. The Presidency made a compromise proposal, which is reflected in the text as it was adopted. In addition, it was proposed to include statements in the minutes, including one whereby the Italian delegation stated that it would apply the derogating provision only to instances where tenders for a particular contract emanated solely from enterprises established in Italy. All the other delegations were to declare that they would not avail themselves of the derogating provision.

14.The Commission takes the view that the passage in question should be interpreted as meaning that the contract in question should have been awarded before 31 December 1992; mere publication of the tender notice before that time is not sufficient in order to claim the benefit of the derogating provision. The Commission essentially bases its contention on three arguments. First, the derogation was for a limited time and in principle should be strictly interpreted. In this connection, the Commission refers to the judgment in Case 199/85 Commission v Italy. (5)

Secondly, the Commission bases its argument on the wording of the derogating provision, according to which the contracting authority may ‘reject’ tenders, which points to the time at which contracts are awarded. Thirdly, the Commission invokes Court's case-law according to which the procedural provisions are to be regarded as a safeguard for tenderers. The dangers for tenderers potentially ensuing from a deviation from the procedural rules should be limited as far as possible, which also suggests that 31 December 1992 should be regarded as the limit for using the derogating provision.

15.In order to answer the only determinative question concerning the effect of the limiting date of 31 December 1992, the starting point must initially be the wording of the provision. It so far as it states that ‘until the end of 1992, ... the contracting authority may exceptionally... reject tenders which are abnormally low in relation to the transaction...’, it is to be assumed that a final decision as to whether or not to accept the tender is to be taken by this time. Such a conclusive negative decision generally takes place at the time when the contract is awarded. When the award is made, the procedure for the award of a public contract comes to an end. After that point, relations between the awarding authority and the successful tenderer are generally on a contractual footing. To my mind, the ambiguous wording with regard to the rejection of tenders suggests that the tender procedure should have been completely concluded by the end of 1992 if it is to fall within the scope of the derogating provision.

16.It is not without reason that the provision in question occurs in the chapter entitled ‘Criteria for qualitative selection’, which refers to the last stage in the award procedure. The provision at issue constitutes a temporary exception to the procedure which is generally to be followed and, as such, is comparable to the derogation set out in Article 29a of Directive 71/305, which authorized regional preferences under certain conditions until 31 December 1992. Such provisions are, without doubt, derogating provisions, which, according to the Court's case-law, are to be strictly interpreted. In the judgment in Case 199/85 Commission v Italy, the Court expressly held that: ‘... provisions... which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works contracts... must be interpreted strictly...’.

17.The background to the adoption of the provision affords further arguments suggesting that the provision at issue constitutes a derogation, indeed in several respects. Given that the Italian delegation advocated incorporating the derogating provision in the directive on political grounds, its adoption, in conjunction with the minutes drawn up on the provision, constitutes a special arrangement of limited temporal validity for one Member State. In my view, the resulting lack of uniformity of the directive's effects also pleads in favour of a strict interpretation, which signifies in practice that procedures for the award of contracts based on the possibilities afforded by the derogating provision must have been concluded by the end of 1992.

18.The meaning and purpose of the first subparagraph of Article 29(5), which may be deviated from on a provisional basis in certain circumstances, consists of securing equal treatment for tenderers and transparency of procedure. In Case 76/81 Transporoute, the Court held that the aim of the old version of Article 29(5) of Directive 71/305, which is substantially comparable in content to the new version of Article 29(5) of the directive, was to protect tenderers against arbitrariness on the part of the authority awarding the contract. In a subsequent judgment, the Court held that a mathematical criterion for excluding tenderers who had submitted exceptionally low tenders deprived them of the opportunity of demonstrating that those tenders were genuine ones. Consequently, the application of such a criterion was contrary to the aim of Directive 71/305.

19.The contested derogation may cause those basic principles embodied in the first subparagraph of Article 29(5) to be deviated from. If the initiation of a procedure for the award of public contracts were to be held to be sufficient in order to rely on the derogating provision, this might extend the derogating provision for an indeterminate period. Such an interpretation of the provision would, to my mind, introduce an element of legal uncertainty.

20.In principle, it should be assumed that time-limits are to be calculated in a clear, unambiguous way. In my view, this view was also taken in the Court's judgment in Bund Naturschutz in Bayern and Others on Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The case was concerned, inter alia, with the possibility of adopting transitional provisions after the deadline for the transposition of the directive had passed. The procedures for the grant of building or planning permission potentially affected were undoubtedly protracted administrative proceedings. Nevertheless, the Court came down in favour of unconditional compliance with the deadline for transposition, on the ground that otherwise the deadline for transposition might be extended indirectly as a result of the transitional provisions. Advocate General Gulmann referred in this connection expressly to reasons of legal certainty.

21.For the purposes of these proceedings, it should be considered that a state of uncertainty after the expiry of the time-limit laid down by law should be avoided.

22.Both Itinera, which intervened in the proceedings, and the Italian Government have argued that legal certainty requires that the provisions in force when the tender notice was published should have applied until the award procedure was completed. In order to take a view on this argument, which cannot in principle simply be rejected, it is necessary, to my mind, to look more precisely into what the potential threat to legal certainty consists of. The transposition into national law of the derogating provision by the Member State and the reference made thereto simply make it possible to derogate from the obligation to carry out a procedure involving both parties and to exclude tenders on the basis of an automatic criterion. If the derogating provision were to cease to be in force, this would not prevent a contracting authority from excluding abnormally low tenders, provided, however, that it complied with the procedural provisions set out in the first subparagraph of Article 29(5). Accordingly, if the derogating provision were to cease to be in force, this would strengthen the legal position of tenderers as a whole.

23.The argument that the possibility of automatically excluding tenders was mentioned both in the tender notice and in the communication inviting tenders and hence that the contracting authority was obliged to follow that procedure is not convincing. First, the starting premiss must be that, in any case, the automatic exclusion procedure is merely optional. Moreover, it is also substantively linked with requirements of which, when the tender procedure is initiated, the contracting authority is not yet in a position to know whether they will be satisfied. If, however, the contracting authority for its part is not under an obligation to adopt a particular procedure, there is, a fortiori, no individual right on the part of the tenderers to insist that the contracting authority comply with that procedure.

24.Even if, by mentioning that procedure in the tender notice and the invitation to tender, the contracting authority reserved the right to reject abnormally low tenders by means of the automatic exclusion procedure, this did not cause the tendering authority to commit itself to proceeding only in that manner. Since, moreover, the contracting authority referred to that possibility for excluding tenders, it is obliged to take account of its legal basis, which sets a time-limit of the end of 1992. To my mind, from this point of view as well, legal certainty would be enhanced if the contracting authority could no longer rely on the derogation after that date had gone past. Since, in the result, tenderers' legal position is strengthened by the derogating provision's ceasing to be in force, I cannot see for what reason the derogation should be valid after the end of 1992.

25.In conclusion, I am of the opinion that, in order to fall within the scope of the derogating provision, award procedures must have been carried out to such an extent that tenders which are abnormally low in relation to the transaction must have been rejected before 31 December 1992.

C — Conclusion

26.In view of the foregoing considerations, I propose that the national court's question should be answered as follows: Under Article 1(20) of Directive 89/440/EEC amending Directive 71/305/EEC concerning procedures for the award of public works contracts, the derogating procedure provided for until the end of 1992 for dealing with tenders which are abnormally low in relation to the transaction is permissible only in respect of tendering procedures which have been carried out to such an extent in that period that the tenders must have been rejected before 31 December 1992.

*1) Original language: German.

1) Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971(11), p. 682).

2) Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC concerning coordination of procedures for the award of public works contracts (OJ 1989 L 210, p. 1).

cf. also the version of Directive 71/305 consolidateci by Council Directive 93/37/EEC of 14 June 1993 concerning coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54).

(3) Article 29(5) of Directive 71/305 corresponds to Article 30(4) of Directive 93/37.

(4) Document No 8589/88 MAP 23. II.8, pp. 10 and 11.

(5) Judgment in Case 199/85 Commission v Italy [1987] ECR 1039.

(6) Cf. the judgments in Case 76/81 Traruporoute [1982] ECR 417, paragraph 17, and in Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 18.

(7) Cf. the fourth subparagraph of Article 29(5); see also other language versions of the directive whose substance is comparable. Italian version: Tutuvia, per un periodo che si estende sino alla hne del 1992... l'amministrazione aggiudicatrice può... rifiutare le offerte che presentano un carattere anormalmente basso...‘ French version: Toutefois, et pour une päode allant jusqu'à la fin 1992... le pouvoir adjucucateur peut.. rejeter des offres présentant un caractere anormalement bas...’ (emphasis added).

(8) Cf. Article 31 of Directive 93/37.

(9) See the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14.

(10) ‘[TJ f a tender is obviously abnormally low the authority awarding the contract is to examine the details of the tender and, for that purpose, request the tenderer to furnish the necessary explanations.’

(11) Judgment in Case 76/81 Transporoitte [1982] ECR 417, paragraph 17.

(12) Judgment in Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 18.

(13) See the judgment in Case C-369/92 Bund Naturschutz in Bayern and Others [1994] ECR I-3717, paragraphs 18, 19 and 20, and the Opinion of Advocate General Gulmann in that case, at I-3719, paragraph 17.

(14) At paragraph 24.