Legality of the criterion relating to the composition of the dedicated team
Rule 1: Obligation to use objective and non-discriminatory criteria in relation to the subject of the contract
The award of the contract must be made on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which ensure that tenders are assessed under conditions of effective competition.
In other words, the criteria for judging the tenders retained by a contracting authority must always be related to the subject of the contract, announced to the candidates, accurate and non-discriminatory.
Rule n ° 2: The possibility of accepting the quality of the dedicated team for a service contract as a criterion for judging
The quality of the execution of a public contract may depend crucially on the professional value of the persons responsible for executing it, a value constituted by their professional experience and their training.
This is particularly the case where the service which is the subject of the contract is of an intellectual nature and carries, as in the case in the main proceedings, training and advisory services.
When such a market is to be executed by a team, it is the skills and experience of its members that are critical to the professional quality of this team. This quality may be an intrinsic feature of the offer and related to the purpose of the contract, within the meaning of Article 53 of the Public Procurement Code.
Therefore, that quality may be used as the criterion for judging tenders.
JUDGMENT OF THE COURT (Fifth Chamber)
March 26, 2015
" Reference for a preliminary ruling - Directive 2004/18 / EC - Public service contracts - Conduct of the procedure - Award criteria - Qualifications of the staff assigned to the execution of the contracts
In Case C 601/13,
REFERENCE for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Portugal), made by decision of 24 October 2013, received at the Court on 25 November 2013, in the proceedings
Ambisig - Ambiente e Sistemas de Informação Geográfica SA
Nersant - Associação Empresarial of the Região de Santarém,
Núcleo Inicial - Formação and Consultoria Lda,
THE COURT (Fifth Chamber),
composed of Mr T. von Danwitz, President of the Chamber, MM. Vajda, A. Rosas, E. Juhász (Rapporteur) and D. Šváby, Judges,
Advocate General: Mr Wathelet,
Registrar: MM Aleksejev, Administrator,
having regard to the written procedure and following the hearing on 6 November 2014,
considering the comments submitted:
- Ambisig - Ambiente e Sistemas de Informação Geográfica SA, by H. Rodrigues da Silva, advogado,
- for Nersant - Associação Empresarial da Região de Santarém, by A. Robin de Andrade and D. Melo Fernandes, advogadas,
- the Portuguese Government, by L. Inez Fernandes and H. Fragoso, acting as Agents,
- the Hellenic Government, by F. Dedousi and V. Stroumpouli, acting as Agents,
- the Polish Government, by B. Majczyna, acting as Agent,
- the European Commission, by M. Afonso, S. Delaude and MM. A. Tokár and G. Braga da Cruz, acting as Agents,
after hearing the Opinion of the Advocate General at the hearing on 18 December 2014,
makes the present
1 The reference for a preliminary ruling concerns the interpretation of Articles 44 to 48 and 53 of Directive 2004/18 / EC of the European Parliament and of the Council of 31 March 2004 on the coordination of the procedures for the award of public contracts of works, supplies and services (OJ L 134, p.114, and corrigendum OJ L 351, p.44).
2 This application was made in the context of a dispute between Ambisig - Ambiente e Sistemas de Informação Geográfica SA (hereinafter 'Ambisig') and Nersant - Associação Empresarial da Região de Santarém (hereinafter 'Nersant') concerning Nersant's decision to award Iberscal - Consultores Lda (hereinafter 'Iberscal'), and not Ambisig, a contract for the provision of training and advisory services.
The legal framework
3 Recital 46 of Directive 2004/18 recalls that the award of the contract must be made on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee the assessment of tenders in conditions of effective competition.
4 The third paragraph of recital 46 of that directive states:
"When the contracting authorities choose to award the contract to the most economically advantageous tender, they evaluate the tenders in order to determine which offers the best value for money. To do this, they determine the economic and qualitative criteria which, taken as a whole, should make it possible to determine the most economically advantageous tender for the contracting authority. The determination of these criteria depends on the purpose of the contract in so far as these must make it possible to assess the level of performance presented by each offer in relation to the subject of the contract, as defined in the technical specifications, as well as to measure the quality / price ratio of each offer. "
5 Article 44 (1) and (2) of Directive 2004/18 is worded as follows:
1. The award of contracts shall be based on the criteria laid down in Articles 53 and 55, taking into account Article 24, after verification of the suitability of non-excluded economic operators under Articles 45 and 46, carried out by the contracting authorities in accordance with the criteria relating to economic and financial capacity, to the professional and technical knowledge or skills referred to in Articles 47 to 52 and, where appropriate, to the non-discriminatory rules and criteria referred to in paragraph 3.
2. Contracting authorities may require minimum levels of capability, in accordance with Articles 47 and 48, which candidates and tenderers must satisfy.
The scope of the information referred to in Articles 47 and 48 and the minimum levels of capacity required for a specific contract must be related and proportionate to the subject of the contract.
These minimum levels are indicated in the contract notice. "
6 Article 48 (1) of Directive 2004/18 provides that the technical and / or professional capacities of economic operators are assessed and verified in accordance with paragraphs 2 and 3 of that article. According to Article 48 (2) (a) (ii) and (e) of that Directive, the technical capacities may be justified, depending on the nature, quantity or importance, and the use of concerned, in particular, by presenting the list of the main services provided over the last three years and by indicating the educational and professional qualifications of the service provider and / or company managers and, in particular , the person or persons responsible for the provision of services.
7 Article 53 of Directive 2004/18 provides:
1. Without prejudice to national laws, regulations or administrative provisions relating to the remuneration of certain services, the criteria on which contracting authorities rely for awarding public contracts are:
(a) where the award is made to the economically most advantageous tender from the point of view of the contracting authority, various criteria relating to the subject of the public contract in question: for example, quality, price, value; technical, aesthetic and functional, environmental characteristics, cost of use, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery time;
or (b) only the lowest price.
2. Without prejudice to the provisions of the third subparagraph, in the case referred to in point (a) of paragraph 1, the contracting authority shall specify in the contract notice or in the specifications or, in the case of competitive dialogue, in the document description, the relative weighting it gives to each of the criteria chosen to determine the most economically advantageous tender.
This weighting may be expressed by providing a range whose maximum deviation must be appropriate.
Where, in the opinion of the contracting authority, the weighting is not possible for demonstrable reasons, it shall indicate in the contract notice or the specifications or, in the case of the competitive dialogue, in the descriptive document , the decreasing order of importance of the criteria. "
8 According to Article 75 (1) of the Public Procurement Code (Código dos Contratos Públicos, hereinafter 'the CCP'), 'the factors and any sub-factors which form the criterion for awarding the tender economically the most advantageous must include all aspects, and only these aspects, of the performance of the contract to be concluded subject to competition by the specifications, and may not relate, directly or indirectly, to situations, qualities, characteristics or other facts relating to the tenderers'.
The dispute in the main proceedings and the question referred for a preliminary ruling
9 By a notice published on 24 November 2011, Nersant launched a tendering procedure for the acquisition of training and consultancy services for the implementation of a project entitled 'Move SME, quality area'. environment and occupational safety and health, food security Middle East - SMEs ".
10 Article 5 of that contract notice provided that the contract would be awarded to the most economically advantageous tender, determined taking into account the following factors:
A. A. Team Evaluation: 40 %
i) This factor is obtained taking into account the team constitution, the proven experience and the curriculum analysis.
B. Quality and merits of the proposed service: 55 %
i) Overall assessment of the proposed structure, including the work program: 0 to 20 %.
ii) Description of the techniques to be used and the methods of action: 0 to 15 %.
(iii) Description of methods of verification and quality control of work in the different areas of intervention: 0 to 20 %.
C. Overall price: 5 %
Preference is given to the bid with the highest score. "
11 Ambisig submitted an offer in the context of the procurement procedure at issue in the main proceedings. In its preliminary report, the jury evaluating the tenders for the award of this contract classified the tender submitted by Iberscal in first place.
12 On 3 January 2012, Ambisig asked to exercise its right of prior hearing, calling into question the fact that the contract notice in question included in the list of evaluation criteria the factor relating to the assessment of the the team assigned to execute the contract provided for in Article 5 (A) of that opinion.
13 In an addendum of 14 February 2012 to its final report of 4 January 2012, the said panel dismissed the arguments presented by Ambisig in support of its request for a preliminary hearing. According to that same panel, the factor provided for in Article 5 (A) of the contract notice at issue in the main proceedings is intended to assess' the concrete technical team which the tenderer proposes to assign to the work to be performed And "[t] he experience of the proposed technical team [would], in this case, be an intrinsic feature of the bid, and not a characteristic of the bidder".
14 By decision of 14 February 2012, the chairman of the Nersant board of directors, on the basis of the final report of the selection board, awarded the services contract at issue in the main proceedings to Iberscal and approved the draft contract for the performance of the service contract. corresponding services. On March 19, 2012, this contract was entered into between Nersant and Iberscal.
15 Ambisig applied to the Tribunal Administrativo e Fiscal de Leiria (Administrative and Tax Court of Leiria) for an appeal for the annulment of the decision of the Chairman of the Nersant Board of Directors of 14 February 2012 awarding the service contract in cause in the main proceedings in Iberscal. In the course of the proceedings, Ambisig also requested and obtained that the object of the action be extended to the annulment of the service contract concluded on 19 March 2012.
16 As the Tribunal Administrativo e Fiscal de Leiria dismissed the appeal in its entirety, Ambisig appealed the decision of that court to the Central Administrative Court (Central Administrative Court South).
17 The appellate court dismissed the claim for annulment of the award decision by considering that the factor provided for in Article 5 (A) of the contract notice at issue in the main proceedings complied with the Article 75 (1) of the CCP, insofar as that factor concerned 'the team proposed to perform the service contract offered by the competition, and not, directly or indirectly, situations, qualities or characteristics or other facts relating to tenderers'.
18 Ambisig appealed the judgment of the Tribunal Administrativo Sul before the Supremo Tribunal Administrativo (Supreme Administrative Court), alleging in essence that the factor provided for in Article 5 (A) of the contract notice in question in the main proceedings was unlawful under Article 75 (1) of the CCP.
19 In the order for reference, the Supremo Tribunal Administrativo states that the question of law to be decided is whether factors such as that contained in Article 5 (A) of the contract notice at issue in the main proceedings may be legally part of the criteria for the award of contracts, within the meaning of Article 53 of Directive 2004/18, in procurement procedures relating to the acquisition of training and advisory services.
20 In that regard, the Supremo Tribunal Administrativo notes that the European Commission has submitted a proposal for a Directive of the European Parliament and of the Council on the award of public contracts (Commission (2011) 896 final), which constitutes a new element in relation to the case-law of the Court in this respect.
21 In that context, the national court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
'In awarding contracts for the provision of intellectual services, training and advice, is it compatible with Directive 2004/18, [...], to establish, among the factors which make up the criterion of awarding of a public contract, a factor which makes it possible to evaluate the teams concretely proposed by the tenderers for the execution of the contract, taking into account their constitution, their proven experience and the examination of their curriculum? "
The question referred
22 The reference for a preliminary ruling concerns, in essence, whether Article 53 (1) (a) of Directive 2004/18 precludes the establishment by the contracting authority of award of a contract for the provision of services of an intellectual nature, an award criterion which makes it possible to evaluate the quality of the teams specifically proposed by the tenderers for the execution of this contract, criterion taking into account the constitution of the team as well as the experience and curriculum of its members.
23 The referring court has found it necessary to raise this question because of a contradiction which exists between, on the one hand, the case-law of the Court concerning the verification of the ability of economic operators to perform a contract and on award criteria, as resulting from the judgment in Lianakis and Others (C 532/06, EU: C: 2008: 40) and, secondly, the Commission proposal to reform the rules procurement procedures, and the fact that quality is one of the award criteria laid down in Article 53 (1) (a) of Directive 2004/18, which may be linked to the constitution of the team, the experience and the curriculum of its members to whom the execution of the concluded contract would be entrusted.
24 As a preliminary point, Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014 on the award of public contracts and repealing Directive 2004/18 (OJ 1994 L 94, p. 65), which entered into force after the date of the facts in the main proceedings, is not applicable to the present case.
25 Furthermore, the case-law in Lianakis and Others (C 532/06, EU: C: 2008: 40) concerns the interpretation of Council Directive 92/50 / EEC of 18 June 1992 concerning the coordination of procedures for the award of public service contracts (OJ L 209, p.1), which was repealed by Directive 2004/18, and whereas that judgment does not exclude the possibility The contracting authority may, under certain conditions, set and apply a criterion such as that contained in the preliminary question at the stage of award of the contract.
26 Indeed, that judgment relates in fact to the numbers and experience of the tenderers in general and not, as in the present case, the number and experience of the persons constituting a particular team which, in a concrete manner, must perform the task. market.
27 As regards the interpretation, on which the national court is questioning, of Article 53 (1) (a) of Directive 2004/18, it must be pointed out that that directive introduced new elements in EU public procurement legislation compared to Directive 92/50.
28 In the first place, Article 53 (1) (a) of Directive 2004/18 provides that 'the most economically advantageous tender' must be identified 'from the point of view of the contracting authority' and thus grants this contracting authority a greater margin of appreciation.
29 Second, recital 46, third paragraph, of Directive 2004/18 states that, in cases where the contract must be awarded to the tenderer who submitted the most economically advantageous tender, it is appropriate to the offer which "presents the best quality / price ratio", which is thus likely to reinforce the weight of quality in the criteria for awarding public contracts.
30 It should also be added that the criteria which may be used by the contracting authorities to determine the most economically advantageous tender are not exhaustively listed in Article 53 (1) of Directive 2004/18. That provision therefore leaves the contracting authorities to choose the criteria for awarding the contract which they intend to retain. However, that choice can not relate to criteria other than those intended to identify the most economically advantageous tender (see, to that effect, Lianakis and Others, C 532/06, EU: C: 2008: 40, paragraph 28; and 29 and the case law cited). To that end, Article 53 (1) (a) of Directive 2004/18 expressly requires the award criteria to be linked to the subject-matter of the contract (see Commission v Netherlands, C-368 / 10, EU: C: 2012: 284, item 86).
31 The quality of the execution of a public contract may depend crucially on the professional value of the persons responsible for executing it, a value constituted by their professional experience and their training.
32 That is particularly the case where the service which is the subject of the contract is of an intellectual nature and, as in the case in the main proceedings, bears on training and advisory services.
33 When such a contract is to be executed by a team, it is the skills and experience of its members which are decisive in assessing the professional quality of this team. That quality may be an intrinsic feature of the offer and related to the subject-matter of the contract within the meaning of Article 53 (1) (a) of Directive 2004/18.
34 Consequently, that quality may be included as an award criterion in the contract notice or in the contract documents concerned.
35 In the light of the foregoing, the answer to the question referred for a preliminary ruling is that Article 53 (1) (a) for the award of a contract for the supply of intellectual services, training and advice is , of Directive 2004/18 does not preclude the establishment by the contracting authority of a criterion which makes it possible to evaluate the quality of the teams concretely proposed by the tenderers for the performance of this contract, criterion taking into account the constitution of the team and the experience and curriculum of its members. Costs
36 As the proceedings are, in so far as the parties to the main action are concerned, in the nature of an action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than those of the said parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
For the award of a contract for the provision of intellectual services, training and advice, Article 53 (1) (a) 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, supply and service contracts, does not preclude the establishment by the contracting authority of a criterion which makes it possible to assess the quality of the teams in practice. proposed by the tenderers for the execution of this contract, criterion taking into account the constitution of the team as well as the experience and the course of its members.