Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 5 July 2022 – Zamestnik ministar na regionalnoto razvitie i blagoustroystvoto i rakovoditel na Natsionalnia organ po programa ‘INTERREG V-A Romania-Bulgaria 2014-2020’ v Obshtina Balchik
(Case C-443/22)
Language of the case: Bulgarian
Referring court
Varhoven administrativen sad
Parties to the main proceedings
Appellant in the appeal on a point of law: Zamestnik ministar na regionalnoto razvitie i blagoustroystvoto i rakovoditel na Natsionalnia organ po programa ‘INTERREG V-A Romania-Bulgaria 2014-2020’
Respondent in the appeal on a point of law: Obshtina Balchik
Questions referred
Does Article 72(1)(e) of Directive 2014/24, 1 in conjunction with Article 72(4)(a) and (b) thereof, permit a national rule, or practice of interpreting and applying that rule, according to which a breach of the rules on substantial modifications of public contracts can be invoked only where the parties have signed a written agreement/annex amending the contract?
If the first question is answered in the negative, does Article 72(1)(e) of Directive 2014/24, in conjunction with Article 72(4)(a) and (b) thereof, permit a national rule, or practice of interpreting and applying that rule, according to which an unlawful modification of public contracts may take place not only by means of a written agreement signed by the parties but also by joint acts of the parties which are contrary to the rules on the modification of contracts, and are expressed in communications and the associated paper trail (such as that in the main proceedings), from which a common intention to effect the modification can be inferred?
Does the concept of ‘diligent preparation of the … award’ within the meaning of recital [109] of Directive 2014/24, in the part relating to the period for performance of the works, cover an assessment of the risks arising from ordinary weather conditions which could have an adverse effect on the performance of the contract within the time frame, as well as an assessment of statutory prohibitions on the performance of works during a certain period which falls within the period of performance of the contract?
Does the concept of ‘unforeseeable circumstances’ within the meaning of Directive 2014/24 cover only circumstances which arose after the award of the contract (as provided for in the national provision of Paragraph 2(27) of the Dopalnitelni razporedbi na Zakona za obshtestvenite porachki [Additional Provisions for the Law on public procurement]) and which could not have been foreseen even with reasonably diligent preparation and are not attributable to acts or omissions of the parties, but render performance under the agreed conditions impossible? Or does that directive not require that such circumstances arise after the award of the contract?
Do ordinary weather conditions, which do not constitute ‘unforeseeable circumstances’ within the meaning of recital [109] of Directive 2014/24, and a statutory prohibition – announced prior to the award of the contract – of construction works during a certain period constitute objective justification for failure to perform the contract within the time frame? In that context, is a participant obliged (for the purposes of exercising due diligence and acting in good faith) to take ordinary risks relevant to the performance of the contract within the time frame into account in his or her calculation of the time frame proposed in the tender?
Does Article 72(1)(e) of Directive 2014/24, in conjunction with Article 72(4)(a) and (b) thereof, permit a national rule, or practice of interpreting and applying that rule, according to which unlawful modification of a public contract may take place in a case such as that in the main proceedings, where the time frame for performance of the contract within certain limits constitutes a condition of participation in the award procedure (and the participant is excluded if those limits are not complied with); the contract was not performed within the time frame on account of ordinary weather conditions and a statutory prohibition of activities, which was announced prior to the award of the contract, whereby those circumstances are covered by the subject matter and time frame of the contract and do not constitute unforeseeable circumstances; performance of the contract was accepted without any objections regarding the time frame, and no contractual penalty for delay was asserted, with the result that a material condition in the contract documents which determined the competitive environment was modified and the economic balance of the contract was shifted in favour of the contractor?
____________
1 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).