Cases - Emm. G. Lianakis AE and Others v Dimos Alexandroupolis and Others
Record details
- Name
- Emm. G. Lianakis AE and Others v Dimos Alexandroupolis and Others
- Date
- [2008]
- Citation
- Case C-532/06
- Legislation
- Keywords
- Award criteria - qualitative selection criteria - contracting authority cannot apply weighting rules or sub-criteria to the award criteria that it has not brought to the tenderers’ attention
- Summary
-
The Lianakis case was a decision of the ECJ which concerned procurement of high level town planning and boundary services for a provincial Greek town. The Court held that in a tendering procedure, a contracting authority is precluded by Articles 23(1), 32 and 36(1) of Directive 92/50 (relating to the coordination of procedures for the award of public service contracts), as amended by Directive 97/52, from taking into account the tenderers’ experience, manpower and equipment and their ability to perform the contract by the anticipated deadline as ‘award criteria’ rather than as ‘qualitative selection criteria’.
While that directive does not, in theory, preclude the examination of the tenderers’ suitability and the award of the contract from taking place simultaneously, the two procedures are nevertheless distinct and are governed by different rules.
Article 36(2) of Directive 92/50 requires potential tenderers to be aware of all the criteria, and their relative importance, that the contracting authority will use to identify the most economically advantageous offer. This information must be available to all potential tenderers from the very start of the process. Therefore, a contracting authority cannot apply weighting rules or sub-criteria to the award criteria that it has not brought to the tenderers’ attention.
The ECJ made it clear that there is a big difference between ‘Selection criteria’ and ‘Award criteria’. It ruled that, while you can carry out the procedures at the same time, you can’t consider ‘selection criteria’ when you are looking ‘award criteria’ so that in theory and in practice, they must be considered absolutely separately.
So where the two procedures are carried out separately employers must ask of a tenderer’s ability to perform before proceeding to an award and should be seen to be doing so. If an employer asks too late, that is after the ‘selection’ criteria stage, the process could be challenged. The consequence is that if an employer does not ask at the right time then it will lose the chance to and not be able to ask once the ‘selection’ criteria has or is deemed to have completed.