The Opinion of the Advocate-General was given on a reference by a Portuguese Court for a preliminary ruling by the Court of Justice of the EU in the above matter. The case arose from a procurement whereby Nersant, a public body, sought consultancy and guidance services for a project in relation to air quality, environment, health and safety at work as well as food safety. The question referred by the national court was whether, in the case of services of an intellectual character for guidance and consultancy, as was the case here, it was compatible with Directive 2004/18/EC to have as one of the award criteria (worth 40%) the evaluation of the specific teams proposed by the bidders having regard to sub-criteria by reference to their membership, their experience and review of their CVs.
Issue
The Advocate-General (M Melchior Wathelet) delivered an Opinion on 18 December 2014. (The Opinion of an Advocate-General is followed by the Court in the great majority of cases and the judgment of the Court is awaited in this instance). The point referred concerned the vexed question of evaluation of experience as a factor in relation to an award criterion and the controversy triggered by the decision of the European Court of Justice in Case C-532/06 Lianakis and Others [2008] ECR I-00251.
Opinion
Advocate-General Wathelet reviewed carefully the decision in Lianakis as well as other decisions both before it and subsequent to it. It was noted that, in theory at least, the law did not preclude evaluation of the capacity of a tenderer simultaneously with the evaluation of award criteria but these were nevertheless separate exercises. The key element in relation to Lianakis was that award criteria must be with a view to identifying (in this case) the most economically advantageous tender whereas qualification criteria must relate to the tenderer's ability to perform the relevant contract. This was also consistent with the later decision in Case C-199/06 Commission v Greece. The Advocate-General further derived support from other case law including Case C-31/87 Gebroeders Beentjes v Netherlands [1988] ECR 4635. The Advocate-General distinguished between, on the one hand, an abstract analysis and, on the other hand, a concrete analysis of proposed personnel and he concluded that the latter was not contrary to the judgments in Lianakis and Commission v Greece. Already in the Beentjes decision, the Court had noted that it was appropriate to evaluate the capacity of the bidder at the point of selection but at the point of award it was appropriate to evaluate the particular competences of the members of the team proposed.
The Advocate-General concluded that the factual circumstances in the judgments in Lianakis and Commission v Greece were different from those obtaining in the present case. In effect, in Lianakis the experience criterion was sought to be evaluated by reference to experience of the bidder vehicle over the previous three years and not that of the team proposed to satisfy the award criteria.
The Advocate-General further noted that these matters were put beyond doubt in the new Directive 2014/24/EU (admittedly not applicable in this case) and which at Article 67.2 permissible award criteria include expressly the experience of the staff proposed to be assigned to the implementation of the task which is the subject matter of the tender.
Comment
The Opinion follows what is considered to be the better view of the Lianakis decision and accords with common sense. It will be further reinforced by the provisions of the new 2014 Public Procurement Directive which is due to be transposed into Irish and other national laws by April 2016.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
