Opinion of Advocate General Mengozzi delivered on 10 March 2016.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2016:160
• Date: 10 March 2016
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 10 March 2016 ( *1 )

Case C‑6/15

TNS Dimarso NV

v

Vlaams Gewest(Request for a preliminary ruling

from the Raad van State van België (Belgian Council of State))

‛Reference for a preliminary ruling — Directive 2004/18/EC — Article 53 — Criteria for the award of contracts — Tenderers — Equal treatment — Most economically advantageous tender — Evaluation of tenders)’

I – Introduction

1. By the present reference for a preliminary ruling, the Raad van State van België (Belgian Council of State) seeks, in essence, to ascertain whether Article 53(2) of 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, ( *2 ) read in the light of the principles of equal treatment and transparency, requires that a contracting authority should always, or, if not, in certain circumstances, make known in advance, in the contract notice or the contract documents, the method of evaluation or weighting rules used to assess tenderers’ bids.

2. That request was made in the context of a dispute between TNS Dimarso NV (‘Dimarso’) and Vlaams Gewest (Flemish Government Housing Agency, ‘the Housing Agency’) concerning the lawfulness of the method used to evaluate bids submitted by tenderers in a procedure for the award of a public service contract organised by the Housing Agency.

3. In summary, it is clear from the order for reference that, through a call for tenders published in the Official Journal of the European Union of 31 January 2012, the Housing Agency launched a procedure for the award of a service contract for the performance of a large-scale survey of housing and housing consumers in Flanders. The estimated value of that contract was EUR 1400000, including VAT.

4. The contract documents relating to that procedure referred to the following two award criteria:

‘1 Quality of the tender (50/100)

Quality of the preparation, organisation and execution of the work on the ground, and of the encryption and initial data processing. The services proposed must be described in as much detail as possible. It must be clear from the tender that the tenderer is capable of taking on the whole contract (minimum 7000 samples / maximum 10000 samples) within the prescribed 12-month delivery deadline.

2 Price (50/100)

Cost of delivering the contract in relation to the basic sample (7000 samples) and cost per additional batch of 500 addresses supplied (amounts inclusive of VAT).’

5. Four tenderers submitted tenders, which, according to the evaluation committee’s report on the qualitative selection, met the minimum requirements in regard to technical competence. The method used to evaluate the tenders was set out as follows in the evaluation committee’s award report of 23 March 2012: ‘The committee then evaluated the tenders. The four tenders were evaluated and compared with each other on the basis of the criteria set out above. First, the tenders were examined and evaluated on the basis of the “quality” criterion. For this, each tender was unanimously assigned a given score (high — satisfactory — low). Then, the price criterion was applied. On the basis of those scores, a final ranking was established.’

6. It is clear from the award report that, as regards the first criterion, namely the quality of the tenders, Dimarso and two other tenderers were rated ‘high’, while the fourth tenderer was assessed as ‘low’. As regards the second criterion, namely price, while the fourth tenderer’s offer was lowest, Dimarso’s was highest.

7. On 11 April 2012, the contract was finally awarded to one of the tenderers which had been rated ‘high’ and whose price offer was lower than Dimarso’s.

8. In support of its action for annulment of the contract award decision, Dimarso submits before the referring court that the evaluation committee appears to have evaluated the tenders on the basis of the ‘high — satisfactory — low’ scale, not referred to in the contract documents, in relation to the tender quality criterion, whereas, according to Dimarso, it is clear from the contract documents that a score of 0 to 50 points should have been allocated to each tender. As regards the price criterion, the evaluation committee also failed to carry out an adequate examination, comparison and final assessment of the tenders taking into account the award criteria as set out in the contract documents, including the “50/100” weighting given to each of the award criteria in the call for tenders.

9. The referring court notes first of all, in rejecting the first part of the action brought before it by Dimarso, that it is not unreasonable to interpret the ‘50/100’ weighting, given to each of the award criteria in the contract documents, as meaning that it seeks only to indicate that each of the two criteria must be regarded as having the same value and that each of them will therefore determine half of the ranking of the tenders.

10. It notes next that both recital 46 and Article 53(2) of Directive 2004/18 refer only to the ‘criteria’ and the ‘relative weighting’ given to each of them, the method of evaluation and weighting rules not being expressly mentioned anywhere. The national court states that the method of evaluation is not neutral but may, on the contrary, play a decisive role in the outcome of the evaluation of the tenders on the basis of the award criteria. It cites the example of the price award criterion, in connection with which the contracting authority may, inter alia, opt to apply the principle of proportionality, award the maximum score to the lowest-priced tender or a zero score to the highest-priced, applying a linear interpolation to the intermediate tenders, or look most favourably on the tender with the median price.

11. The national court points out, lastly, that neither the judgment in Lianakis and Others (C‑532/06, EU:C:2008:40, paragraphs 38, 44 and 45), which was concerned with the interpretation of Article 36(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, ( *3 ) the content of which is, in essence, the same as that of Article 53(2) of Directive 2004/18, nor the judgment in Evropaïki Dynamiki v EMSA (C‑252/10 P, EU:C:2011:512), provide an answer, or at least not a decisive answer, to the question arising in the case in the main proceedings, that is to say whether the method of evaluation, that is to say the specific method to be used by the contracting authority to score the tenders, must be made known to tenderers in advance, like the award criteria and sub-criteria and the ‘weighting factors’.

12. In the light of those considerations, the Raad van State van België (Belgian Council of State) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Must Article 53(2) of Directive 2004/18/EC …, both in isolation and in conjunction with the scope of the principles laid down by European law concerning equality and transparency in the field of public procurement, be interpreted as meaning that, if the contract is awarded to the tenderer who submits the most economically advantageous tender from the point of view of the contracting authority, the contracting authority is always required to establish in advance, and indicate in the contract notice or contract documents, the method of assessment or the weighting rules, irrespective of their scope, predictability or commonness, in the light of which the tenders will be assessed in accordance with the award criteria or sub-criteria, or, if no such general obligation exists, that there are circumstances, such as, inter alia, the scope, unpredictability or uncommonness of these weighting rules, in which this obligation does apply?’

13. That question was the subject of written observations submitted by Dimarso, the Belgian and Italian Governments and the European Commission. Those parties also presented oral argument at the hearing on 13 January 2016, with the exception of the Italian Government, which was not represented.

II – Analysis

14. By the question referred to it in the present case, the Court is asked to define the scope of Article 53(2) of Directive 2004/18. More specifically, the Court is asked whether, in the light of the principles of equal treatment and transparency, that provision requires the contracting authority, when awarding a service contract to the most economically advantageous tender, to inform tenderers, in the contract notice or the contract documents, of the method of evaluation used to assess tenderers’ bids.

15. As a preliminary point, it is important to say that it is common ground that the service contract at issue in the case in the main proceedings falls squarely within the scope of Directive 2004/18 and that, in particular, Article 53 of that directive is fully applicable to that contract.

16. First, under Article 20 of Directive 2004/18, contracts which have as their object services listed in Annex II A to that directive, which include, in Category 10, contracts relating to ‘Market research and public opinion polling services’, are awarded in accordance with the provisions of Articles 23 to 55 of that directive. Secondly, the service contract in the case in the main proceedings significantly exceeded the threshold of EUR 200000, referred to in Article 7(b) of Directive 2004/18, applicable at the time when the contract notice was published by the Housing Agency.

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