Légalité du critère relatif au degré de conformité des offres avec les spécifications techniques du CCTP- Obligation de diligences des pouvoirs adjudicateurs et des candidats évincés en cours de procédure

Legality of the criterion relating to the degree of conformity of tenders with the technical specifications of the CCTP- Duty of due diligence of the contracting authorities and of candidates who have been ousted during the procedure

by gmorales on 1 May 2015 | Category: Public markets
Légalité du critère relatif au degré de conformité des offres avec les spécifications techniques du CCTP- Obligation de diligences des pouvoirs adjudicateurs et des candidats évincés en cours de procédure Légalité du critère relatif au degré de conformité des offres avec les spécifications techniques du CCTP- Obligation de diligences des pouvoirs adjudicateurs et des candidats évincés en cours de procédure

Légalité du critère relatif au degré de conformité des offres avec les spécifications techniques du CCTP- Obligation de diligences des pouvoirs adjudicateurs et des candidats évincés en cours de procédure ECJ 12 March 2015, Vigilot Ltd, Case C-538-13

Rule n ° 1: Legality of the criterion relating to the degree of conformity of tenders with the technical specifications of the CCTP

The Court of Justice first recalls the rule of principle that the award of the contract must be made on the basis of objective and non-discriminatory criteria in relation to the subject-matter of the contract before considering that a contracting authority may retain as a criterion for judging tenders "the degree of conformity with the requirements set out in the specifications". For the Court, this criterion can be considered as linked to the object of the contract: it is therefore regular.

Rule 2: The obligation for candidates to exercise "due diligence" in case of imprecision of the judging criteria

The CJEU then reiterates that the fact that the award criteria are incomprehensible or unclear can constitute a violation of the rules of advertising and competition. It is therefore up to the judge to verify whether the tenderer concerned was indeed unable to understand the award criteria in question or whether it should have understood them by applying the standard of a reasonably informed and normally diligent tenderer. The Court notes, however, that the absence of a request for clarification from a candidate must be taken into account in the context of this examination, as the latter can not validly rely on his absence, whereas the other tenderers have been able to to submit offers. The solution reached by the Court of Justice differs from that found by the Conseil d'Etat which considers that it matters little whether or not a candidate has asked a question during the procedure (EC 23 December 2009, Public museum establishment and the National Estate of Versailles, No. 328827: "Considering, fourthly, that the judge hearing the application for interim relief, by a sufficiently reasoned order in this respect, holding that the failure of the PUBLIC ESTABLISHMENT OF THE MUSEUM AND THE DOMAINE NATIONAL DE VERSAILLES to its obligations of publicity and of competition, resulting from the absence of information on the criteria of attribution of the public service delegation, had harmed or was likely to have harmed the company Antenna Audio, notwithstanding the fact that this company had not requested the delegating authority to provide information on these criteria during the preparation of its tender ").

Rule 3: The obligation of the contracting authority to exercise "due diligence" to avoid any conflict of interest in the judging of bids

The principle of equal treatment between tenderers, which aims to promote the development of healthy and effective competition between companies participating in a public contract, requires that all tenderers have the same opportunities in formulating the terms of the contract. their offers and therefore implies that they are subject to the same conditions for all competitors. The principle of transparency, which is its corollary, is also intended to ensure that there is no risk of favoritism and arbitrariness on the part of the contracting authority with regard to certain bidders or offers.

A conflict of interest entails the risk that the public contracting authority may be guided by considerations that are foreign to the relevant market and that a preference be given to a bidder simply because of this. Such a conflict of interest is therefore likely to undermine these principles.

In this respect, the fact that the contracting authority has appointed experts acting on its mandate to evaluate candidates' offers does not relieve it of its responsibility to ensure respect for the equality of candidates.

This judgment is very interesting in that it recalls that it is not for evicted candidates to bring proof of the risk of a conflict of interest, but that it is up to the contracting authority to provide all the evidence that avoids the risk of conflict of interest. such a conflict. Two points merit attention: firstly, the Court reiterates that this situation can be established solely on the basis of an objective situation. Next, as regards the evidence to be taken, the Court considers that it is not for the applicant to prove the partiality of the experts appointed by the contracting authority since it is not, as a general rule not able to access information and evidence to demonstrate such bias.

For example, a candidate's allegations that the links between the experts appointed by the contracting authority and the specialists of the companies awarded the contract, in particular the fact that they work together in the same university, belong to the same group of researches. or have ties of subordination within this university constitute such objective elements to trigger the in-depth examination of the contracting authority and, failing that, that of the administrative or jurisdictional supervisory authorities. If these links are established, the conflict of interest is established and it is up to the contracting authority to remedy them without delay.

On this point, the solution reached by the Court of Justice is identical to that found by the Conseil d'Etat which considers that past collaboration, even if repeated, does not carry the same link as that which could be identified by a wage link of permanent dependence (EC 24 June 2011, Minister of Ecology, n ° 347720).

JUDGMENT OF THE COURT (Fifth Chamber)
March 12, 2015 (*)

" Reference for a preliminary ruling - Public procurement - Directives 89/665 / EEC and 2004/18 / EC - Principles of equal treatment and transparency - Link of the successful tenderer with the experts of the contracting authority - Obligation to take this link into account - Charge of evidence of bias of an expert - no effect of such bias on the final result of the evaluation - time limits for appeal - challenge to the abstract award criteria - clarification of these criteria after full disclosure of award of contract - Degree of conformity of tenders with technical specifications as evaluation criterion »
In Case C 538/13,
REFERENCE for a preliminary ruling under Article 267 TFEU from the Lietuvos Aukščiausiasis Teismas (Lithuania), made by decision of 9 October 2013, received at the Court on 14 October 2013, in the proceedings
eVigilo Ltd
against
Priešgaisrinės apsaugos ir gelbėjimo departamentas prays Vidaus reikalų ministerijos,
supported by :
NT Service UAB,
"HNIT-Baltic" UAB,

THE COURT (Fifth Chamber),
Stop

1 The reference for a preliminary ruling concerns the interpretation of the third subparagraph of Article 1 (1) of Council Directive 89/665 / EEC of 21 December 1989 coordinating the laws, regulations and administrative provisions relating to the the application of the review procedures in respect of the award of public supply and works contracts (OJ L 395, p.33), as amended by Directive 2007/66 / EC of the European Parliament and of the Council of 11 December 2007 (OJ L 335, p.31, 'Directive 89/665'), Articles 2, 44 (1) and 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 contracts, public supply contracts and public service contracts (OJ L 134, p.
2 This application was made in the context of a dispute between eVigilo Ltd (hereinafter 'eVigilo') and the Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos (General Department of Fire and Relief at the Ministry of the Interior, hereinafter 'the contracting authority') concerning the evaluation of tenders submitted by tenderers in connection with the award of a public contract.
The legal framework
Union law
3 The third subparagraph of Article 1 (1) of Directive 89/665 provides:
'Member States shall, with regard to public procurement procedures falling within the scope of Directive 2004/18 / EC, take the necessary measures to ensure that decisions taken by contracting authorities may be and, in particular, as promptly as possible, under the conditions set out in Articles 2 to 2 of this Directive, on the ground that those decisions have infringed Community law on public procurement or national rules transposing that right . "
4 Recitals 2 and 46 to Directive 2004/18 are worded as follows:
'(2) The award of contracts concluded in the Member States on behalf of the State, local authorities and other bodies governed by public law must comply with the principles of the Treaty, in particular the principles of the free movement of goods, freedom of establishment and the freedom to provide services and the principles ensuing from them, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, in the case of public procurement exceeding a certain amount, it is recommended that provisions be drawn up for Community coordination of national procurement procedures based on these principles so as to ensure their effects and their effectiveness. effective competition for public contracts. Therefore, these coordination provisions should be interpreted in accordance with the above-mentioned rules and principles as well as with the other rules of the Treaty.
[...]
(46) The award of the contract should 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 . Consequently, it is appropriate to accept only the application of two award criteria, namely 'the lowest price' and 'the most economically advantageous tender'.
In order to ensure compliance with the principle of equal treatment when awarding contracts, provision should be made for the obligation - enshrined in case law - to ensure the necessary transparency to enable tenderers to be reasonably informed about criteria and modalities that will be applied to identify the most economically advantageous tender. It is therefore the responsibility of the contracting authorities to indicate the award criteria and the relative weight given to each of these criteria, in good time so that tenderers are aware of this in order to draw up their tenders. [...]
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 2 of Directive 2004/18 provides:
'The contracting authorities shall treat economic operators on an equal footing in a non-discriminatory manner and shall act in a transparent manner. "
6 Article 44 (1) of that directive provides:
"The award of the 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 the non-excluded economic operators under Articles 45 and 46 by the contracting authorities in accordance with the criteria relating to the economic and financial capacity, to the professional or 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. '
7 Article 53 (1) (a) of that directive provides:
'Without prejudice to national laws, regulations or administrative provisions relating to the remuneration of certain services, the criteria on which the 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 or execution time ".
Lithuanian law
8 Article 2 (17) of Law No VIII-1210 of 13 August 1996 on public procurement (Žin., 1996, No 84-2000), (hereinafter 'the Law on Contracts public "), provides:
'' Declaration of impartiality 'means a written declaration by a member of the Public Procurement Commission or an expert stating that they are impartial towards the tenderers. "
9 Article 16 (5) of that law provides:
"Any member of the Public Procurement Committee and any expert may participate in the work of the Commission only after having signed a declaration of impartiality and a confidentiality undertaking. "
10 Article 3 of that law, entitled 'Fundamental principles for the award of contracts and their compliance', provides in paragraph 1:
'The contracting authority shall ensure that, in the award and award procedures, the principles of equality of arms, non-discrimination, mutual recognition, proportionality and transparency are respected. "
11 Article 90 of that law provides:
'On the basis of the results of the evaluation of the tenders carried out in accordance with the procedure referred to in Article 39 (7) of this Law, the supplies, services or works shall be purchased from the tenderer who submitted the tender. offers the most economically advantageous or has proposed the lowest price. When tendering for supplies, services or works, the tenders submitted may be assessed on the basis of the criterion of the most economically advantageous tender or the lowest price, or on the basis of the criteria relating to to the subject of the contract which are established in the tender documentation of the contracting authority and which can not falsely and partially limit the access of bidders to the market or grant privileged access to certain bidders, thereby violating the requirements of Article 3 (1) of this Law. "
12 Article 39 (7) of the Public Procurement Act, in the version in force between 1 September 2009 and 2 March 2010, provides:
'In order to take a decision on a successful tender, the contracting authority must:
1) in accordance with the procedure and the evaluation criteria set out in the tender documentation, evaluate without delay the tenders submitted by tenderers and establish their preliminary ranking (unless only one tenderer is invited to submit an offer, or if only one bidder submits an offer). The preliminary ranking of tenders is established in descending order of their economic advantage or in ascending order of their price. In cases where the criterion of evaluation of the most economically advantageous tender applies and where the tenders of several tenderers present an identical economic advantage, during the preliminary classification of the tenders, primacy is granted to the tenderer whose envelope the offers were first registered or the offer was submitted electronically the earliest. In cases where the criterion for the evaluation of tenders is the lowest price offered and where several tenders contain identical prices, during the preliminary ranking of tenders, primacy is given to the tenderer whose envelope containing the tenders has been registered. in the first instance, or whose offer has been submitted electronically, as soon as possible;
(2) notify without delay to any bidder who has made an offer the preliminary ranking of tenders and to any tenderer whose bid has not been entered in that classification, the reasons for the rejection of his tender, including the rejection of the tender because of the non-equivalence or non-compliance with the functional requirements as well as the requirements for the description of expected performance, established by the contracting authority, in accordance with Article 25 of this Law;
(3) to confirm the ranking of tenders and to take a decision on the successful tender only after having examined, in accordance with the procedure laid down in this Law, the requests and remedies of tenderers who have submitted tenders (in the case where such appeals and requests were made), but at least 10 days after the date of dispatch of the notification of the preliminary ranking of tenders to tenderers. "
13 Article 39 (7) of the Public Procurement Act, in the version in force since 2 March 2010, reads as follows:
'In order to take a decision on the award of the contract, the contracting authority must, in accordance with the procedure and the evaluation criteria set out in the tender documentation, evaluate without delay the tenders made by the tenderers , check, in the case referred to in Article 32 (8) of this Law, the conformity of the tenderer, whose tender may be selected on the basis of the results of the evaluation, with the minimum qualification requirements, establish the ranking of tenders (except where only one tenderer is invited to submit an offer, or if only one tenderer submits an offer) and accept an offer. The ranking of tenders is established in descending order of their economic advantage or in ascending order of their price. In cases where the criterion of evaluation of the most economically advantageous tender applies and the tenders of several tenderers present an identical economic advantage or in cases where the criterion of evaluation of tenders is the lowest price and when several tenders contain identical prices, when tenders are ranked, primacy is given to the tenderer whose envelope containing the tenders has been registered first or whose tender has been submitted, by electronic means, the most early. "
The dispute in the main proceedings and the questions referred for a preliminary ruling
14 On 22 January 2010, the contracting authority published an open call for tenders, entitled "Purchase of a warning and information system for the population, using the infrastructure of the tenderers' public mobile telephony network. ", In which eVigilo, together with" ERP "UAB and" Inta "UAB, as well as another consortium consisting of" NT Service "UAB and" HNIT-Baltic "UAB have submitted their offers.
15 According to the national court, since the value of the contract in the case before it was 14 998 972,45 Lithuanian Litas (LTL) (approximately EUR 4 344 002), the invitation to tender at issue concerns a purchase which falls within the scope of Directives 2004/18 and 89/665.
16 It is clear from the file submitted to the Court that, in point 67 of the terms of the invitation to tender, the evaluation criteria include the overall price of the alert system, the number of operators participating in the tendering procedure and the number of operators participating in the tendering procedure. project with the bidder as well as general and functional requirements. These include the justification of the technical and architectural solution as well as the detail of the functional elements and their conformity with the technical specifications and the needs of the contracting authority, the integrity and the compatibility of the proposed system with the IT and technical infrastructures exploited by the authority. contracting authority, the extension of the functional possibilities of the system and the rationale for them, as well as the project implementation strategy, the effectiveness of the management plan, the description of the quality control measures and the description of the project. project team.
17 The tendering commission of the contracting authority, after having examined the evaluation of the technical tenders carried out by six experts, confirmed the results of this one. The contracting authority informed the tenderers on 4 November 2010 of the results of this evaluation.
18 On 2 November 2010, eVigilo lodged an initial appeal concerning the lawfulness of the procedures for awarding this public contract, contesting in particular the lack of clarity of the conditions of the call for tenders.
19 This appeal was clarified on 20 December 2010, setting out the alleged failings of the experts' assessment and the unfoundedness of the results of that assessment.
20 On 31 January 2011, by a second action, eVigilo challenged the legality of the actions of the contracting authority, alleging that the third-party bid had to be rejected because its price exceeded the level of funding awarded to the project in question.
21 On 8 March 2011, the contracting authority and 'NT Service' UAB and 'HNIT Baltic' UAB concluded the contract, whereas the disputes between eVigilo and the contracting authority were still pending.
22 On 19 March 2012, eVigilo completed its first action concerning the legality of the evaluation of tenders, specifying its argument concerning the erroneous definition of the criteria for the evaluation of an economic advantage contained in the appeal. 'offers.
23 On 10 April 2012, eVigilo again completed its first appeal and relied on new facts, related to the partiality of the experts who evaluated the tenders, which could demonstrate the existence of professional relations between the latter and the specialists mentioned in the report. offers from third parties.
24 It argued that the specialists mentioned in the tender of the successful tenderers were, at the Kaunas Technological University (Kauno technologijos universitetas), colleagues from three of the six experts of the contracting authority who drew up the terms of reference and evaluated offers.
25 eVigilo's appeals were rejected by the courts of first instance and appellate courts.
26 By its appeal before the Lietuvos Aukščiausiasis Teismas, eVigilo states that those courts wrongly assessed the links between the specialists mentioned by the tenderers and the experts appointed by the contracting authority. It also contends that those courts have not, therefore, taken into account the partiality of the experts.
27 Furthermore, eVigilo claims that the contracting authority laid down very abstract criteria for assessing the most economically advantageous tender, in particular that of 'compatibility with the needs of the contracting authority', which had an impact on the tenderers' tenders, as well as the evaluation of those by the contracting authority. It maintains that it was able to understand the criteria for the award of the most economically advantageous tender only when the contracting authority provided it with the exhaustive grounds for refusing the award of the contract. Therefore, it is only from that communication that the period of appeal should have started to run.
28 According to the contracting authority and the successful tenderers, the courts of first instance and appellate courts correctly found that eVigilo was required to demonstrate not only objective links between the specialists of the tenderers in the contract and the experts who assessed the offers, but also to prove a subjective fact of bias of the experts. They also claim that eVigilo belatedly contested the legality of the criteria for evaluating the most economically advantageous tender.
29 The contracting authority and the successful tenderers also contest the claim that those criteria for the award of the public contract were defined inappropriately, given that, until the end of the period for the submission of tenders, eVigilo did not not disputed and did not request that they be explained.
30 In those circumstances, the Lietuvos Aukščiausiasis Teismas decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
'(1) Do the provisions of Union law on public procurement, namely the third subparagraph of Article 1 (1) of Directive [89/665], which provides for the principles of effectiveness? and promptness in the defense of tenderers against infringement of their rights, and Article 2 of Directive [2004/18], which provides for the principles of equal treatment of tenderers and transparency, as well as Articles 44 (1) and 53 (1) (a) of that Directive, which lay down the criteria for the award of the contract to the tenderer submitting the most economically advantageous tender, combined or separately (but without to these provisions) must be understood and interpreted in the sense that:
(a) for a tenderer who becomes aware of a possible link between another tenderer and experts appointed by the contracting authority who evaluated the tenders and / or the possible special situation of that other tenderer because of preparatory work carried out previously related to the call for tenders in question, and where the contracting authority has not taken any action in the light of those circumstances, that information alone is sufficient to support a request to the supervisory authority to recognize the the actions of the contracting authority are unlawful without ensuring the transparency and objectivity of the proceedings, without further requiring the applicant to prove concretely the partiality of the experts' conduct;
(b) where the supervisory authority, after ascertaining the merits of the applicant's above-mentioned request, decides on the effects of such unlawfulness on the results of the invitation to tender, is it not not having to take into account the fact that the results of the evaluation of the bidders' tenders would be essentially the same in the absence of partial evaluators among the experts who evaluated the tenders;
(c) the tenderer does not finally [include] the content of the wording of the criteria of the most economically advantageous tender, provided in the abstract and formulated according to the qualitative parameters contained in the tendering conditions (eg integrity or compatibility with the needs of the contracting authority), from which it could essentially make an offer, only where, by virtue of those tenders, the contracting authority has [already] evaluated the tenders' offers and provided interested persons exhaustive information on the reasons for the decisions adopted, and that it is only from that moment that the limitation periods for the review procedure laid down by national law may apply to that tenderer?
(2) Is Article 53 (1) (a) of Directive [2004/18], which applies in the context of the procurement principles laid down in Article 2 of that directive, to be understood and interpreted as meaning that the contracting authorities are prohibited from providing for and applying a tendering procedure for the evaluation of tenders whereby the results of the evaluation of tenders depend on the completeness with which Tenderers have substantiated the conformity of their tenders with the requirements of the tender documentation, ie that a tenderer has described in a (comprehensive) way the conformity of his tender with the conditions of the tender. tender, the more it will get points? "
The questions referred
The first question, under (a) and (b)
31 By its first question, under (a) and (b), the national court asks, in essence, whether the third subparagraph of Article 1 (1) of Directive 89/665 and Articles 2, 44 (1) and 53 (1) (a) of Directive 2004/18 must be interpreted as precluding the unlawfulness of tenderers' evaluation of tenders being established by the sole fact that the successful tenderer has had significant links with experts appointed by the contracting authority having evaluated the tenders, without examining other elements of the procedure including the fact that the possible partiality of those experts did not have any impact on the award decision and without requiring the unsuccessful tenderer to prove concretely the partiality of the behavior of those experts.
32 According to Article 2 of Directive 2004/18, entitled 'Procurement principles', '[t] he contracting authorities shall treat economic operators equally, in a non-discriminatory manner and act in a transparent manner'.
33 The principle of equal treatment between tenderers, which aims to promote the development of healthy and effective competition between firms participating in a public contract, requires that all tenderers have equal opportunities in formulating terms their offers and therefore implies that they are subject to the same conditions for all competitors (see, to that effect, Commission v CAS Succhi di Frutta, C 496/99 P, EU: C: 2004: 236, paragraph 110; , and Cartiera dell'Adda, C 42/13, EU: C: 2014: 2345, item 44).
34 The main purpose of the transparency obligation, which is its corollary, is to ensure that there is no risk of favoritism and arbitrariness on the part of the contracting authority with regard to certain tenderers or offers (see to that effect, Commission v CAS Succhi di Frutta, EU: C: 2004: 236, paragraph 111, and Cartiera dell'Adda, EU: C: 2014: 2345, paragraph 44).
35 A conflict of interest entails the risk that the public contracting authority may be guided by considerations extraneous to the relevant market and that a preference be given to a bidder for that sole reason. Such a conflict of interests is therefore liable to constitute a breach of Article 2 of Directive 2004/18.
36 In that regard, the fact that the contracting authority has appointed experts acting on its mandate to evaluate the tenders submitted does not relieve it of its responsibility to comply with the requirements of Union law (see, to that effect , SAG ELV judgment Slovensko and Others, C 599/10, EU: C: 2012: 191, paragraph 23).
37 The finding of the partiality of an expert requires in particular the assessment of the facts and evidence falling within the competence of the contracting authorities and the administrative or judicial control authorities.
38 It must be observed that neither Directive 89/665 nor Directive 2004/18 contains specific provisions in that regard.
39 According to settled case-law, in the absence of Union rules in this area, it is for each Member State to lay down the detailed rules governing the administrative procedure and those of the judicial procedure intended to ensure the safeguarding of the rights which litigants derive from the law of the Union. These procedural rules should, however, not be less favorable than those concerning similar remedies provided for the protection of rights deriving from the domestic legal order (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by the Union's legal order (principle of effectiveness) (see Club Hotel Loutraki and others judgment, C 145/08 and C 149/08, EU: C: 2010: 247, paragraph 74 and the case-law cited ).
40 In particular, the procedural arrangements for judicial proceedings to safeguard the rights conferred by EU law on candidates and tenderers adversely affected by decisions of contracting authorities must not affect the effectiveness of the directive. 89/665 [see Uniplex judgment (UK), C 406/08, EU: C: 2010: 45, paragraph 27 and the case-law cited].
41 As a general rule, these principles do not preclude that in the Member States the bias of an expert can be established solely on the basis of an objective situation in order to prevent any risk of the public contracting authority to be guided by considerations extraneous to the relevant market which may, by that fact alone, give preference to a tenderer.
42 As regards the rules of evidence in that regard, it should be noted that, in accordance with Article 2 of Directive 2004/18, contracting authorities must treat economic operators equally on a non-discriminatory basis and act with transparency. It follows that an active role is assigned to them in the application of these principles of public procurement.
43 Since that duty corresponds to the very essence of the Directives on public procurement procedures (see Michaniki, C 213/07, EU: C: 2008: 731, paragraph 45), it follows that the contracting authority is, in any case, to check for possible conflicts of interest and to take appropriate measures to prevent, detect and remedy conflicts of interest. However, it is incompatible with that active role to place on the appellant the burden of proving, in the context of the appeal procedure, the concrete partiality of the experts appointed by the contracting authority. Such a solution would also be contrary to the principle of effectiveness and the requirement of an effective remedy laid down by the third subparagraph of Article 1 (1) of Directive 89/665, in particular since a tenderer does not is generally not able to access information and evidence to demonstrate such bias.
44 Thus, if the unsuccessful tenderer submits objective factors calling into question the impartiality of an expert of the contracting authority, it is for that contracting authority to examine all the relevant circumstances which led to the adoption of the decision on the award of the contract to prevent, detect and remedy conflicts of interest, including, where appropriate, by asking the parties to provide certain information and evidence.
45 Elements such as the allegations in the main proceedings concerning the links between the experts appointed by the contracting authority and the specialists of the undertakings awarded the contract, in particular the fact that those persons work together at the same university, belong to the same group of research or have subordinate links within this university, if proven, constitute such objective elements that should trigger the in-depth examination of the contracting authority or, where appropriate, that of the administrative or jurisdictional supervisory authorities.
46 Subject to the fulfillment of the obligations arising from Union law, and specifically from those mentioned in paragraph 43 of this judgment, the concept of 'partiality' and the criteria thereof are to be defined by national law. The same applies to the rules relating to the legal effects of any partiality. Thus, it is for national law to determine whether and to what extent the competent administrative and judicial authorities must take into account the fact that any partiality of the experts has not had an impact on the award decision.
47 In the light of the foregoing considerations, the answer to Question 1 (a) and (b) must be that the third subparagraph of Article 1 (1) of Directive 89/665 and Articles 2, 44, (1) and 53 (1) (a) of Directive 2004/18 must be interpreted as not precluding, in principle, the illegality of the evaluation of tenders submitted by tenderers being by the fact that the successful tenderer had significant links with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, in any event, obliged to check for possible conflicts of interest and to take appropriate measures to prevent, detect and remedy conflicts of interest. In the context of the examination of an action seeking the annulment of the award decision by reason of the partiality of the experts, the unsuccessful tenderer can not be required to prove concretely the partiality of the experts' conduct. It is, in principle, for national law to determine whether and to what extent the competent administrative and judicial authorities must take into account the fact that any partiality of the experts has or has not had an impact on a decision awarding the contract.
On the first question, under (c)
48 By its first question, under (c), the national court asks, in essence, whether the third subparagraph of Article 1 (1) of Directive 89/665 and Articles 2, 44 (1) and 53 (1) (a) of Directive 2004/18 must be interpreted as requiring that a right of appeal relating to the legality of the invitation to tender be accessible after the expiry of the provided for under national law, to a tenderer who was unable to understand the terms of the invitation to tender only when the contracting authority, after evaluating the tenders, provided exhaustive information on the reasons for its decision.
49 That question concerns the time limit for bringing an action relating to the lawfulness of the invitation to tender provided for by national law. That question starts from the premiss that a remedy is available to interested tenderers at the stage of the call for tender, allowing the contestation of the legality of the tender. It concerns whether an interested tenderer is prevented by foreclosure from bringing an action concerning the lawfulness of the invitation to tender he submitted before being informed of the award of the contract in question.
50 In that regard, it should be noted that the provisions of Directive 89/665, designed to protect tenderers against the arbitrariness of the contracting authority, seek to strengthen existing mechanisms to ensure the effective application of the rules of the European Union. with regard to public procurement, in particular at a stage where infringements can still be corrected (Fastweb, C 19/13, EU: C: 2014: 2194, paragraph 34 and the case-law cited). Article 1 (1) and (3) of Directive 89/665 requires effective remedies 'in the manner that Member States may determine' and, in particular, as expeditiously as possible under the conditions set out in Articles 2 to 2 septies of that Directive.
51 In accordance with the case-law of the Court, the establishment of reasonable periods of appeal under penalty of foreclosure satisfies, in principle, the requirement of effectiveness deriving from Directive 89/665, in so far as it constitutes an application of the principle fundamental legal certainty. The complete achievement of the objective pursued by Directive 89/665 would be jeopardized if candidates and tenderers could at any time invoke the award procedure for infringements of the procurement rules, thus obliging the the contracting authority to resume the entire procedure in order to correct these infringements (Universale-Bau and others, C 470/99, EU: C: 2002: 746, paragraphs 75 and 76 and the case-law cited, Lämmerzahl, C 241/06, EU : C: 2007: 597, points 50 and 51, and Commission / Ireland, C 456/08, EU: C: 2010: 46, points 51 and 52).
52 According to the case-law of the Court, the objective laid down in Article 1 (1) of Directive 89/665 of ensuring the existence of effective remedies against infringements of the provisions applicable to the award of public contracts can not be only if the time limits for lodging appeals start to run only from the date on which the applicant became aware or ought to have known of the alleged violation of those provisions [see Uniplex (UK), EU: C : 2010: 45, paragraph 32, and Idrodinamica Spurgo Velox and Others, C 161/13, EU: C: 2014: 307, paragraph 37).
53 It must be held that the criteria for awarding the contracts must appear in the contract notice or in the specifications and that they are incomprehensible or unclear may constitute a breach of Directive 2004/18.
54 At paragraph 42 of its judgment in SIAC Construction (C 19/00, EU: C: 2001: 553), the Court held that the award criteria must be formulated in the contract documents or in the contract notice. so as to enable all reasonably informed and normally diligent tenderers to interpret them in the same way.
55 It follows that it is for the referring court to ascertain whether the tenderer concerned was indeed unable to understand the award criteria in question or whether it should have understood them by applying the standard of a reasonably informed tenderer. normally diligent.
56 In the context of that examination, account must be taken of the fact that the tenderer concerned and the other tenderers were able to submit tenders and that the tenderer concerned, before submitting his tender, did not request clarification to the contracting authority.
57. If it results from that examination that the conditions of the invitation to tender were indeed incomprehensible to the tenderer and he was prevented from lodging an appeal within the period provided for by national law, he is admissible to introduce an appeal until the expiry of the time limit laid down in the award decision.
58 The answer to Question 1 (c) must therefore be that the third subparagraph of Article 1 (1) of Directive 89/665 and Articles 2, 44 (1) and 53 (2) 1 (a) of Directive 2004/18 must be interpreted as requiring that a right of appeal relating to the lawfulness of the invitation to tender be accessible after the expiry of the period laid down in national law, to a reasonably informed and normally diligent tenderer who could only understand the terms of the invitation to tender only when the contracting authority, after having evaluated the tenders, provided exhaustive information on the reasons for its decision. Such a right of appeal may be exercised until the expiry of the period for appeal against the decision awarding the contract.
On the second question
59 By its second question, the national court asks, in essence, whether Articles 2 and 53 (1) (a) of Directive 2004/18 must be interpreted as allowing a contracting authority to as a criterion for evaluating tenders submitted by tenderers to a public contract, the degree of compliance of these tenders with the requirements set out in the tender documentation.
60 Under Article 53 (1) (a) of Directive 2004/18, the most economically advantageous tender from the point of view of the contracting authority is assessed on the basis of various criteria relating to the subject of the public contract in question. question, for example, quality, price, technical merit, aesthetics and functionality, environmental characteristics, cost of use, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery or execution time.
61 According to the case-law, that list, as appears from the use of the words 'for example', is not exhaustive (see Commission v Netherlands, C 368/10, EU: C: 2012: 284 point 84).
62 Thus, the contracting authority may establish other award criteria, to the extent that they are related to the subject of the contract and comply with the principles laid down in Article 2 of Directive 2004 / 18.
63 The contracting authority must be granted such freedom that the most economically advantageous tender is to be assessed 'from the point of view of the contracting authority'.
64 Subject to verification by the national court, it appears that, in the main proceedings, the degree of compliance of the tender with the requirements of the tender documentation is linked to the subject of the contract and nothing indicates that this evaluation criterion does not respect the principles laid down in Article 2 of Directive 2004/18.
65 The answer to the second question must therefore be that Articles 2 and 53 (1) (a) of Directive 2004/18 must be interpreted as enabling, in principle, a contracting authority as an evaluation criterion for tenders submitted by tenderers to a public contract, the degree of compliance of these tenders with the requirements set out in the tender documentation.
Costs
66 Since the proceedings are, in so far as the parties to the main action are concerned, an action brought 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:

1. The third subparagraph of Article 1 (1) of Council Directive 89/665 / EEC of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of review procedures in the field of the award of public supply and works contracts, as amended by Directive 2007/66 / EC of the European Parliament and of the Council of 11 December 2007, and Articles 2, 44 (1) and 53 (1) thereof, (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 contracts, public supply contracts and public service contracts, shall be interpreted as meaning that they do not oppose in principle that the illegality of the tenderers' evaluation of tenders is ascertained by the mere fact that the successful tenderer has had significant links with experts appointed by the judicator having evaluated the offers. The contracting authority is, in any event, obliged to check for possible conflicts of interest.