Opinion of Advocate General Campos Sánchez-Bordona delivered on 24 February 2022.
| Jurisdiction | European Union |
| ECLI | ECLI:EU:C:2022:136 |
| Date | 24 February 2022 |
| Celex Number | 62020CC0669 |
| Court | Court of Justice (European Union) |
Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 24 February 2022(1)
Case C‑669/20
Veridos GmbH
v
Ministar na vatreshnite raboti na Republika Bulgaria,
Mühlbauer ID Services GmbH – S&T
(Request for a preliminary ruling from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))
(Reference for a preliminary ruling – Procedures for the award of certain works contracts, supply contracts and service contracts – Directive 2014/24/EC – Directive 2009/81/EU – Setting of a criterion for the evaluation of an abnormally low tender – Existence of a minimum of three tenders)
1. Where certain public contracts are required to be awarded to the most economically advantageous tender or the tender with the lowest price, EU law permits the contracting authority to reject ‘abnormally low tenders’ for which there is no satisfactory justification.
2. In this request for a preliminary ruling, a number of questions are referred in connection with the conclusion of a public contract for the planning, establishment and management of a system for the issue of Bulgarian identity documents. The referring court asks, in summary:
– Under what conditions and with what scope the contracting authority has a duty to verify whether any abnormally low tenders exist, for the purposes of Directive 2009/81/EC (2) and Directive 2014/24/EU. (3)
– At what time a judicial review of a contracting authority’s assessment ruling out the existence of an abnormally low tender has to be carried out, and whether reasons must be given for that assessment.
A. European Union law
3. Recital 90 states:
‘Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment, with a view to ensuring an objective comparison of the relative value of the tenders in order to determine, in conditions of effective competition, which tender is the most economically advantageous tender. …
In order to encourage a greater quality orientation of public procurement, Member States should be permitted to prohibit or restrict use of price only or cost only to assess the most economically advantageous tender where they deem this appropriate.
To ensure compliance with the principle of equal treatment in the award of contracts, contracting authorities should be obliged to create the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied in the contract award decision. Contracting authorities should therefore be obliged to indicate the contract award criteria and the relative weighting given to each of those criteria. …’
4. Recital 92 reads:
‘When assessing the best price–quality ratio contracting authorities should determine the economic and qualitative criteria linked to the subject matter of the contract that they will use for that purpose. Those criteria should thus allow for a comparative assessment of the level of performance offered by each tender in the light of the subject matter of the contract, as defined in the technical specifications. In the context of the best price–quality ratio, a non-exhaustive list of possible award criteria which include environmental and social aspects is set out in this Directive. Contracting authorities should be encouraged to choose award criteria that allow them to obtain high-quality works, supplies and services that are optimally suited to their needs.
The chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective and fair competition and be accompanied by arrangements that allow the information provided by the tenderers to be effectively verified.
…’
5. Article 56 (‘General principles’) provides:
‘1. Contracts shall be awarded on the basis of criteria laid down in accordance with Articles 67 to 69, provided that the contracting authority has verified in accordance with Articles 59 to 61 that all of the following conditions are fulfilled:
…’
6. Article 69 (‘Abnormally low tenders’) provides:
‘1. Contracting authorities shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services.
…
3. The contracting authority shall assess the information provided by consulting the tenderer. It may only reject the tender where the evidence supplied does not satisfactorily account for the low level of price or costs proposed …’
7. Recital 15 reads:
‘The award of contracts concluded in the Member States by contracting entities as referred to in Directive 2004/17/EC … and by contracting authorities as referred to in Directive 2004/18/EC … is subject to compliance with the principles of the Treaty and in particular the free movement of goods, the freedom of establishment and the freedom to provide services, and with the principles deriving therefrom, such as the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency.
…’
8. Recital 69 is worded as follows:
‘Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee that tenders are assessed in a transparent and objective manner under conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: “the lowest price” and “the most economically advantageous tender”.’
9. Pursuant to Article 38 (‘Verification of the suitability and choice of participants and award of contracts’):
‘1. Contracts shall be awarded on the basis of the criteria laid down in Articles 47 and 49, taking into account Article 19, after the suitability of the economic operators not excluded under Articles 39 or 40 has been checked by contracting authorities/entities in accordance with the criteria of economic and financial standing, of professional and technical knowledge or ability referred to in Articles 41 to 46 and, where appropriate, with the non-discriminatory rules and criteria referred to in paragraph 3.
…’
10. Article 49 (‘Abnormally low tenders’) states:
‘1. If, for a given contract, tenders appear to be abnormally low in relation to the goods, works or services, the contracting authority/entity shall, before it rejects those tenders, request in writing details of the constituent elements of the tender which it considers relevant.
…
2. The contracting authority/entity shall verify those constituent elements by consulting the tenderer, taking account of the evidence supplied.
…’
11. Article 55 (‘Scope and availability of review procedures’) provides in paragraph 2:
‘Member States shall take the measures necessary to ensure that decisions taken by the contracting authorities/entities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 56 to 62, on the grounds that such decisions have infringed [EU] law in the field of procurement or national rules transposing that law.’
B. Bulgarian law
12. Article 72 of the Zakon za obshtestvenite porachki (Law on public procurement), headed ‘Abnormally low tenders’, provides:
‘1. If the price or costs in a tenderer’s tender that is subject to evaluation is more than 20% lower than the mean value of the tenders submitted by the other tenderers in respect of the same evaluation factor, the contracting authority shall request a detailed written justification of how the tender was prepared, to be submitted within five days of receiving that request.’
II. Facts, dispute and questions referred for a preliminary ruling
13. The Interior Ministry of the Republic of Bulgaria, in its capacity as a contracting authority, initiated a procedure for the award of a public contract, the subject of which was the ‘planning, establishment and management of a Generation 2019 system for the issue of Bulgarian identity documents’. (4)
14. Following the appropriate pre-selection, Veridos GmbH (‘Veridos’) and the consortium Mühlbauer ID Services GmbH-S&T (‘Mühlbauer’) were invited to submit tenders.
15. The contract was ultimately awarded to Mühlbauer. (5)
16. Veridos challenged the award before the Komisia za zashtita na konkurentsiata (Competition Authority, Bulgaria), arguing that the successful tender was abnormally low. (6)
17. The Competition Authority dismissed the complaint made by Veridos by decision of 25 June 2020. The Competition Authority took the view that Article 72 of the Law on public procurement was inapplicable because, as only two tenders had been submitted, it was not possible to calculate the mean value stipulated by that provision for the purpose of determining whether one of those tenders was abnormally low.
18. Veridos appealed against the decision of 25 June 2020 before the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), which has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 56 of Directive [2014/24] in conjunction with Article 69 thereof, or, respectively, Article 38 of Directive [2009/81] in conjunction with Article 49 thereof, to be interpreted as meaning that, where it is objectively impossible to apply the criterion laid down in national law for the evaluation of an abnormally low tender and in the absence of a different criterion selected by the contracting authority and announced in advance, a contracting authority is not required to verify whether an abnormally low tender exists?
(2) Is Article 56 of Directive [2014/24] in conjunction with Article 69 thereof, or, respectively, Article 38 of Directive [2009/81] in conjunction with Article 49 thereof, to be interpreted as meaning that the contracting authority is...
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