Judgment of the Court (Fourth Chamber) of 29 March 2012 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky - Slovak Republic) - SAG ELV Slovensko a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe a.s., TESLA Stropkov a.s., Autostrade per l'Italia SpA, EFKON AG, Stalexport Autostrady SA v Úrad pre verejné obstarávanie
(Case C-599/10)
(Public procurement - Directive 2004/18/EC - Contract award procedures - Restricted call for tenders - Assessment of the tender - Requests by the contracting authority for clarification of the tender - Conditions)
Language of the case: Slovak
Referring court
Najvyšší súd Slovenskej republiky
Parties to the main proceedings
Applicants: SAG ELV Slovensko a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe a.s., TESLA Stropkov a.s., Autostrade per l'Italia SpA, EFKON AG, Stalexport Autostrady SA
Defendant: Úrad pre verejné obstarávanie
In the presence of: Národná dial'ničná spoločnost' a.s.
Re:
Reference for a preliminary ruling - Najvyšší súd Slovenskej republiky - Interpretation of European Parliament and Council Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and, in particular, of Articles 2, 51 and 55 thereof - Possible obligation on the awarding authority to request clarification of a tender in case of need - Extent of that obligation
Operative part of the judgment
1. Article 55 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 must be interpreted as requiring the inclusion in national legislation of a provision such as Article 42(3) of Slovak Law No 25/2006 on public procurement, in the version applicable in the main proceedings, which, in essence, provides that if a tenderer offers an abnormally low price, the contracting authority must ask it in writing to clarify its price proposal. It is for the national court to ascertain, having regard to all the documents in the file placed before it, whether the request for clarification enabled the tenderer concerned to provide a sufficient explanation of the composition of its tender;
2. Article 55 of Directive 2004/18 precludes a contracting authority from taking the view that it is not required to ask a tenderer to clarify an abnormally low price;
3. Article 2 of Directive 2004/18 does not preclude a provision of national law, such as Article 42(2) of the abovementioned Law No 25/2006, according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tenders without, however, requesting or accepting any amendment to the tenders. In the exercise of the discretion thus enjoyed by the contracting authority, that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification cannot appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome.
____________1 - OJ C 72, 5.3.2011.