Case C‑387/14

Esaprojekt sp. z o.o.

v

Województwo Łódzkie

(Request for a preliminary ruling fromthe Krajowa Izba Odwoławcza)

(Reference for a preliminary ruling — Public procurement — Directive 2004/18/EC — Principles of equal treatment, non-discrimination and transparency — Technical and/or professional abilities of economic operators — Article 48(3) — Possibility to rely on the capacities of other entities — Article 51 — Possibility to supplement the tender — Article 45(2)(g) — Exclusion from participation in a public contract for serious misconduct)

Summary — Judgment of the Court (Fifth Chamber), 4 May 2017

1.        Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 – Submission of tenders – Possibility for a tenderer to supplement its tender in a substantial and significant manner after the expiry of the time limit for submitting tenders — Not permissible – Breach of the principle of equal treatment and the obligation of transparency

(European Parliament and Council Directive 2004/18, Arts 2 and 51)

2.        Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts – Qualitative selection criteria – Technical and/or professional abilities –Possibility to rely on the capacities of other entities — Limits – Right of the contracting authority to insist on the performance of a contract which cannot be divided by a single operator — Conditions

(European Parliament and Council Directive 2004/18, Arts 2, 44 and 48(2)(a) and 3)

3.        Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Qualitative selection criteria — Technical and/or professional abilities — Possibility to rely on experience acquired as part of a group of companies in connection with another contract — Lawfulness — Condition – Actual and direct participation of the operator in that group

(European Parliament and Council Directive 2004/18, Arts 2, 44 and 48(2)(a) and (3))

4.        Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a tender procedure – Operator guilty of serious misrepresentation in supplying the information — Concept — Need for intentional conduct — No such need

(European Parliament and Council Directive 2004/18, Art. 45(2)(g))

5.        Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Qualitative selection criteria – Technical and professional abilities — bringing together capacities or experience gained by the same operator in relation to different contracts — Lawfulness — Condition – That possibility not excluded in the contract notice or the tender specifications

(European Parliament and Council Directive 2004/18, Arts 2, 44 and 48(2)(a))

1.      Article 51 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 concerning the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in conjunction with Article 2 thereof, must be interpreted as precluding an economic operator from submitting to the contracting authority, in order to prove that it satisfies the conditions for participating in a public tender procedure, documents which were not included in its initial bid, such as a contract performed by another entity and the undertaking of the latter to place at the disposal of that operator the capacities and resources necessary for the performance of the contract concerned after the expiry of the time limit laid down for submitting tenders for a public contract.

Such further information, far from being merely a clarification made on a limited or specific basis or a correction of obvious material errors, within the meaning of the case-law set out in paragraph 38 of the present judgment, is in reality a substantive and significant amendment of the initial bid, which is more akin to the submission of a new tender. In those circumstances, by allowing the presentation by the economic operator concerned of the documents in question in order to supplement its original tender, the contracting authority unduly favours that operator as compared with other candidates and, thereby, breaches the principles of equal treatment and non-discrimination of economic operators and the obligation of transparency which derives from them, to which the contracting authorities are subject by virtue of Article 2 of Directive 2004/18.

(see paras 42, 44, 45, operative part 1)

2.      Article 44 of Directive 2004/18, in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2 of that directive, must be interpreted as not allowing an economic operator to rely on the capacities of another entity, within the meaning of Article 48(3) of that directive, by combining the knowledge and experience of two entities which, individually, do not have the capacities required for the performance of a particular contract, where the contracting authority considers that the contract concerned cannot be divided, in that it must be performed by a single operator, and that such exclusion of the possibility to rely on the experience of several economic operators is related and proportionate to the subject matter of the contract which must be performed by a single operator.

(see para. 54, operative part 2)

3.      Article 44 of Directive 2004/18, in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2 of that directive, must be interpreted as not allowing an economic operator, which has individually participated in an award procedure for a public contract, to rely on the experience of a group of undertakings of which it was a member, in connection with another public contract, if it has not actually and directly participated in the performance of the latter.

In that connection, the experience acquired by an economic operator constitutes a particularly important criterion for the qualitative selection of that operator, as it enables the contracting authority to check the ability of the candidates or tenderers to execute a specific public contract, in accordance with Article 44(1) of Directive 2004/18. Therefore, where an economic operator relies on the experience of a group of undertakings in which it has participated, that experience must be assessed in relation to the effective participation of that operator and, therefore, to its actual contribution to the performance of an activity required of that group in the context of a specific public contract.

(see paras 61, 62, 65, operative part 3)

4.      Article 45(2)(g) of Directive 2004/18, which allows the exclusion of an economic operator from participation in a public contract, in particular if it is guilty of ‘serious misrepresentation’ for making false declarations when submitting the information requested by the contracting authority, must be interpreted as meaning that it may be applied where the operator concerned is guilty of a certain degree of negligence, that is to say negligence of a nature which may have a decisive effect on decisions concerning exclusion, selection or award of a public contract, irrespective of whether there is a finding of wilful misconduct on the part of that operator.

In that connection, it must be observed, first, that the wording of Article 45(2)(g) of Directive 2004/18 does not contain any reference to intentional behaviour by the economic operator. Therefore, the establishment of such conduct cannot be regarded as being an element necessary for the exclusion of such an operator from participating in a public contract. Second, it must be observed that, in accordance with Article 45(2), second subparagraph, of Directive 2004/18, the Member States must specify, in accordance with their national law and having regard for Community law, the implementing conditions for that paragraph. It follows that the concepts in Article 45(2), first paragraph, including ‘serious misrepresentation’, can be specified and explained in national law, provided that it has regard for EU law (see, to that effect, judgment of 13 December 2012, Forposat and ABC Direct Contact, C‑465/11, EU:C:2011:801, paragraph 26)

(see paras 70, 73, 74, 78, operative part 4)

5.      Article 44 of Directive 2004/18, in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2 of that directive, must be interpreted as allowing an economic operator to rely on experience derived from two or more contracts treated as a single contract, unless the contracting authority has excluded such a possibility pursuant to requirements which are related and proportionate to the subject matter and purpose of the public contract concerned.

In that connection, the contracting authority is justified in expressly setting out, in principle in the tender notice or the tender specifications, the requirement to provide evidence of specific capacities and practical arrangements by which the candidate/tenderer must demonstrate its suitability to be awarded and perform the contract concerned. Likewise, it is conceivable that, in specific circumstances, having regard to the nature of the works concerned and the subject matter and purpose of the contract, the contracting authority may lay down limits, in particular regarding the use of a limited number of economic operators, pursuant to Article 44(2) of Directive 2004/18 (see, to that effect, judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 39 to 41, and of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 90 and the case-law cited). However, if the contracting authority decides to make use of such a possibility, it must ensure that the rules it adopts are related and proportionate to the subject matter and objectives of that contract (see, to that effect, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 40 and 56).

(see paras 82, 83, 88, operative part 5)