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ATI
E A C A N D O T H E R S
O P I N I O N O F A D V O C A T E G E N E R A L
RUIZ-JARABO C O L O M E R
d e l i v e r e d o n 8 S e p t e m b e r 2 0 0 51
1.
This reference for a preliminary ruling
concerns the interpretation of Article 36(2)
of Council Directive 92/50/EEC and Article
34(2) of Council Directive 93/38/EEC, which
harmonise the methods of awarding publ ic
service contracts 2and those concluded in
certain sectors.
3
2. The reference from the Consiglio di Stato
relates to the award of a contract to the
economically most advantageous offer and
the guidelines for making the decision, and
raises the question of the powers of the
contracting authority and of the jury, so as to
establish whether the former may simply set
out the parameters in the tender notice or
the contract documents and leave it to the
latter to specify and supplement them.
3. In order to give a reply to that court, it is
necessary to observe mandatory principles
governing public procurement, which seek to
introduce objective rules of participation and
allocation, with transparent procedures in
which discriminatory measures and clauses
are prohibited.
I
The provisions requiring interpreta-
tion
4. Both directives, which focus on the equal
treatment of bidders (Article 3(2) of Direc
tive 92/50 and Article 4(2) of Directive
93/38), provide neutral methods of granting
contracts, either based on the lowest price or
on the most advantageous tender from an
economic point of view (Articles 36(1) and
34(1) respectively).
5.
As re gard s th e latter, Article 36(2) of
Directive 92/50 provides that ' the contract
ing authority shall state in the contract
documents or in the tender not ice the award
1 Original language: Spanish
2
Directive of 18 lune 1992 relating to the coordination of
procedures for the award of public service contracts
(OJ
1992
L
209. p. 1
).
3 Directive of 14 lune 1993 coordina ting the procu reme nt
procedures of entit ies operating in th ewater energy, transport
and telecommunications sectors (Ol 1993 L 199, p 84).
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OPINION OF MR
RUIZ-JARABO
CASE
C-331/04
criteria ... in descending order of impor
tance'. Article 34(2) of Directive 93/38 is
expressed in almost identical terms.
II The facts in the main proceedings
and the questions referred for a prelimin-
ary ruling
6. The temporary association of undertak
ings constituted by EAC Sri and 'Viaggi di
Maio'Sne
('EAC') took part in a negotiated
procedure arranged by the Azienda del
Consorcio Trasporti Veneciano
( ACTV ),
using the second of the methods stated,
pursuant to Article 24(1)(b) of Legislative
Decree No
158/1995,
4
for the subcontract
ing of public passenger transport services. 5
7. The contract documents contained the
instructions for identifying the best tender:
the third instruction related to the organisa
tional procedures and support structures for
implementing the service, which the jury
could assess with a maximum of25points.
6
It was necessary to state: (a) the depots and/
or areas where buses could be parked, (b) the
procedures for supervising the service and
the number of employees supervising the
service, (c) the num ber of regular drivers and
the type of licence which authorises them to
drive coaches, (d) the company's premises in
the province of Venice and (e) the staff
engaged in organising drivers' shifts.
8. After the envelopes had been submitted
and before they had been opened but, in any
event, knowing who the candidates were, the
jury allocated the points between the five
aforementioned headings, giving 8 to the
first, 7 to the second, 6 to the third and 2 to
each of the other two.
9. The service was awarded to the temporary
association of undertakings 'La Lnea', which
received 86.53 points; EAC received only
83.50 points and therefore challenged the
result before the Tribunale Amministrativo
Regionale del Veneto (Regional Administra
tive Court, Veneto) alleging that its opponent
won as a result of the distribution ex post
facto of points relating to the organisational
procedures and support structures, and
relying on Article 36 of Directive 92/50 and
Article 24(1)(b) of Legislative Decree
158/1995.
10.
The Tribunale dismissed the action by
judgment of15April
2003,
against which the
4
Gazzeta Ufficiale
della
Repubblica
No 104, of 6 May 1995.
That article provides that 'in the case ofthemost economically
advantageous tender, decided on the basis of various criteria,
which vary according to the market ..., the contracting
authorities shall state, in the contract documents or in the
tender notice, all the award criteria ... in descending order of
importance'.
5 The Mestre urban transport service, lot No 1, from 16 June
2002 to 31 December2003.
6 Paragraph 3.10, No 6 of the contract documents.
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ATI EAC AND OTHERS
EAC brought an appeal before the Consiglio
di S ta to , whose case- law approves the
practice of giving award juries som e freedom
of action to introduce factors, to add specific
detail to the general guidelines set out in the
tender notice and to provide for subheadings
in the main categories already defined.
11 . In order to establish whether Article 36
of Directive 92/50 and Article 34 of Directive
93/38 permit that interpretat ion, the Con
siglio di Stato refers the following questions
to the Court of Justice:
'(1) Is it lawful to interp ret tho se pr ovisio ns
as flexible rules allowing the contracting
authority, where the award is to be
made on the basis of the economically
most advantageous tender, to fix the
criteria in a general way in the tender
not ice or the contract documents , leav
ing it to the jury to specify or supple
ment those criteria, if need be, provided
always that such specifying or supple
menting is carried out before the pack
ets containing the tenders have been
opened, and does not alter those criteria
or, on the contrary, must those provi
sions be interpreted as a rigid rule
requiring the contracting authority to
determine, analytically, the criteria for
the award of the contract in the tender
not ice or the contract documents , and
in any case before the
prequalification
stage or the invitation to tender, and as
meaning that the jury may not subse
quent ly do anything to specify or
supplement those criteria or to create
subheadings or sub-marking since for
reasons of transparency every piece of
information concerning the criteria for
the award must appear in the notice or
cont ract documents?
In short, is the traditional l ine of
interpretation followed in the past in
the Consiglio di Stato scase-law, which
permits the jury to supplement the
award criteria before the envelopes are
opened, lawful in the light of Commu
nity law?
(2) Is it lawful, in the light of those
provisions loosely interpreted having
regard to the adverbial phra se where
possible , for the c ontra cting autho rity
to adopt conditions for participation
that provide, with regard to one of the
criteria for the award (in this instance,
the organisat ional and support proce
dures),
with reference to a complex
series of parameters for which the
tender notice does not allocate indivi
dual points, so that they were in that
sense in part indeterminate, that the
points should be allocated at the abso
lu t e d i s c re t i on o f t he c on t rac t i ng
authority, or do not those provisions
in any case require that the criteria
should as a general rule be formulated
absolutely definitively, which is not
compatible with the fact that those
cri teria were not al located separate
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OPINION OF MR RUIZ-JARABO - CASE C-331/04
points in the notice; if it is lawful,
because the provisions are considered to
be
flexible
and because it is not essential
to give points to every item, is it
permissible, where the tender notice
does not give express power to the jury,
for the latter to specify or supplement
the criteria (simply by allocating indivi
dual importance and relative weight to
every single item that the notice
intended to be assessed by the overall
allocation of a maximum of 25 points),
or is it not on the contrary necessary to
apply the conditions of the tender
literally, allocating the points on an
overall assessment of the various and
complex matters taken into considera
tion by the
lexspecialis?
(3) Is it lawful, in the light of [those
provisions] to give the jury which is to
assess the tenders, regardless of the
manner in which criteria have been
formulated in the tender notice, in a
procedure for an award on the basis of
the economically most advantageous
tender, the power, in respect of the
complexity of the matters to be
assessed, to restrict its own actions, by
specifying the parameters for the appli
cation of the criteria previously deter
mined in the tender notice, and may
such power be exercised by creating
subheadings, sub-points, or simply by
setting more specific criteria than those
laid down in the tender notice or the
contract documents, before the envel
opes have been opened?'
III
rocedure
before the Court of
Justice
12. W ritten observations were submitted,
within the time-limit laid down in Article
20 of the EC Statute of the Court of Justice,
by the Commission, the Austrian and
Netherlands Governments, EAC and ACTV,
who presented oral argument at the hearing
held on 7 July 2005.
IV
dm issibility of the que stions
referred for a preliminary ruling
13. The Austrian Government and ACTV
contend that the reference for a preliminary
ruling is inadmissible, for different reasons
and to different extents.
14.
The former complains that the order for
reference is vague as to the provisions of
which it requires an interpretation, and
infers from page 10 of the order that Article
34 of Directive 93/38 is unconnected with
the m ain action. Neither of these criticisms is
persuasive, since the Consiglio di Stato raises
its doubts 'with regard to the rule laid down
in Article 34 of Directive 93/38 and, in
particular, to the similar ru le in A rticle 36 of
Directive 92/50', indicating that the appeal
refers to the wording of Article 36 of
Directive 92/50, which is similar to that of
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ATI EAC AN D O T H E R S
Article 34 of Directive 93/38, 'applicable to
the present case, even if it is not expressly
quoted by the appellant ' .
15.
In a way, the Austrian Government is
not seeking the rejection
in limine
of the
proceedings, but wants the analysis to be
limited to the second of the provisions cited,
which has the same meaning as Article 34 of
Directive 93/38. In the circumstances, that
claim of admissibility may only be described
as superfluous because whatever interpreta
tion is suggested will suit both provisions,
and it will be up to the national court to
choose between them; the Court of Justice
must not intervene in that task, unless the
facts are incompatible with Community law
or the doubt raised with regard to inter
pre ta t ion is based on m ere hy pothes i s ,
unconnected with the t rue circumstances of
the case.
16.
AC TV 's claim of inadmissib ility falls
within the latter category, as it only gives
the appearance of having more weight .
ACTV claims that the Italian court 's interest
in knowing whether the jury may 'supple
ment' or 'specify' the award criteria laid
down in the tender notice or the contract
documents is irrelevant because, in this case,
the jury did not carry out such operations;
according to the order for reference, i t
merely created subcriteria of calculation
which define the terms of that document
but do not add to it (final paragraph in Point
5).
17. Irrespective of the problem of deciding
whether the question referred for a pre
liminary ruling is hypo thetical, this argu
ment is contradictory because it accepts that
the approved guidelines were defined more
closely and then, immediately afterwards,
explains that the Consiglio di Stato does not
need to establish whether Article 36 of
Directive 92/50 and Article 34 of Directive
93/38 authorise that subsequent operat ion.
Moreover, the questions are formulated in
such a way as to highlight the legality of the
Italian legislation applicable to the case,
which accords the jury powers to make
additions before the envelopes are opened.
The reference for a preliminary ruling is
therefore appropriate.
V
The rules governing public procure-
men t
18. The Consiglio di Stato wishes to know
whether, in a procedure for an award on the
basis of the economically most advantageous
tender, the provisions to which it refers allow
the contracting authority to fix the criteria
for assessing the tenders in a general way in
the tender not ice or contract documents ,
leaving it to the jury to specify or supplement
them (question 1).
7 T h eonlycase-law which has prohibited hypothetical questions
- established m Case 104 79 Foghai vNmello [1980] F.CR715
and Case 2
81)
foglia v Novelto
[1981]
ECR
3 0 4 5 -
has not
been upheld subsequently and has drawn criticism from the
most authoritative academic lawyers (Barav. A.. Preliminary
Censorship? The ludgment of the European Court in Foglia y
Novello. in European Law Review
1980,
pp. +13 to
4681.
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OPINION OF MR RUIZ-JARABO CASEC-331/04
19. It also seeks to clarify whether, in the
light of that broad interpretation and having
regard to the words 'where possible' used in
the two articles at issue, the Authority may
allocate points to one of the criteria for
assessment, to be divided between complex
parameters, which are stated but without
indication of their relative weight, so that
their order of priority is determined later by
the jury, which may restrict its own actions
by specifying the rules previously determined
in the tender notice, in particular by creating
subheadings or subpoints (questions 2 and
3).
20.
To dispel those doub ts, it is necessary to
follow the advice given in the opinion in
Lombardini and
Mantovani
8
o recall the
principles underlying selection of a contrac
tor, in order better to understand Article 36
of Directive 92/50 and Article 34 of Directive
93/38.
21.
The Directives on public contracts, each
one concerned with a specific field, aim to
promote the development of open competi
tion by realising the four fundamental free
doms of European integration (free move
ment of goods, persons, services and capi
tal). 9Those directives aim to give effect to
the requirements set out by the Community
legislature in A rticles 9, 52, 59 and 73B of the
EC Treaty (now, after amendment, Articles
23 EC, 43 EC, 49 EC and 56 EC).
22.
Giving effect to those requirements and
the pursuit of that objective can
only
be
achieved if those who wish to be awarded
public contracts can apply on an equal basis,
withou t any hin t of unjustified bias. To this
end, a system based on objectivity, in terms
of both substance and form, is indispensable.
Such a system must be established, as
regards substance, by setting objective cri
teria for participation in the tender and
award of contracts,
10
and as regards form, by
making provision for transparent procedures
in which publication is the norm.
23. The criteria for selection of candidates
refer to the professional, economic and
technical suitability of applicants. To rule
8
Joined Cases C-285/99 and C-286/99 [2001] ECR
I-9233.
9 In particular, the second recital in the preamble to Directive
92/50 and the first of the preamble to Directive 93/38. The
same notion is found in the second recital in the preamble to
Directive2004/18/ECof the European Parliament and of the
Council of31March 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) which will replace inter alia Directive 92/50 when the
time-limit for its transposition expires in 2006.
10 The distinction between the two kinds of criteria, which was
drawn by Advocate G eneralDarmonin his Opinion in Case
31/87
Beentjes
[1988] ECR 4635, is also contained in
Directive 2004/18 (recitals 39 and 46).
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E A C A N D O T H E R S
out any discriminatory effect, it is necessary
in each case to predetermine the rules
governing the selection procedure, as well
as the levels of sk i l l and exper ience
required.11
24. Once the tenderers qualifying for award
of the contract have been selected, that
award is subject to objective parameters of
assessment, whether the lowest bid or the
economical ly most advantageous tender. If
the second c riterion is applied, the contra ct
ing authority sets out the award criteria in
the contract doc um ents or tender not ice, 1
2
stating their respective importance, in accor
dance with the provisions with which this
reference for a preliminary ruling is con
cerned.
25.
Consequently, the system leaves nothing
to chance or subject to any arbitrary decision
on the part of the body which makes the final
decision. Equality of treatment for tenderers
requires that any person who wishes to be
awarded a contract must know beforehand
what he must do to be awarded it , so that the
awarding body is confined, given the discre
tion involved in the technical evaluation, to
applying parameters set out in the lex
contractus both those rules governing public
contracts in a general sense, and those which
involve in particular a specific contract.
26. To ensure that such a system is effective
and that there is no discrimination, i t is not
sufficient to set objective criteria for the
procedures, but application of the criteria
must be based on transparency. This must
apply from the time of the tender notice, in
the contract documents and, finally, in the
selection stage
itself 1
3
both in the open
procedures and the restr icted procedures .
VI
The reply to the questions referred
for a preliminary ruling
27. Some of the claims made at the hearing
have taken the Court of Justice far from
Luxembourg, to an Italian court where the
main action is to be decided, but i t must be
made clear that it is not for this European
Court, but for the Consiglio di Stato, to
determine whether the t ransport services
contract in question was awarded in accor
dance with the law.
28.
This Court has a different, more com
plex and more important task: to determine
whether the articles for which an interpreta
tion is sought permit, in the light of the
aforem ent ion ed pr incip les , s i tuat ions in
which th e jury does not merely assess
although, inevitably, with some latitude
the tenders received in accordance with the
rules set out in the tender notice or the
contract documents , because i t has been
11
-
Articles
29 to 35 of
Directive 92
50
and
Articles 30
to 33
o f
Directive 93 38 refer to
this
aspect.
12 The contractor is to be selected according to circumstances
connected
with
the subject-matter of the
contract
which
may
relate to
quality,
technica l merit aesthetic and
functional characterist ics, technical assistance and service,
delivery
date,
delivery period or period of
completion,
cost-
effectiveness,
price or running costs (Article
3b(1)(a)
of
Directive 92 50 and Article
34(1)(a) of
Directive 93
38)
13 Art icle15 and co rrob ora ting a rticles of Directive 92 50, and
also Article
21
et seq. of Directive 93 38.
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OPINION OF MR RUIZ-JARABO CASEC-331/04
given the additional role of specifying,
adding to and supplementing them. In short,
it is necessary to ascertain whether that body,
whose function is to implement, can acquire
'quasi-legislative' responsibilities, by defining
the content of the lex contractus in some
way.
A
The first question referred for a
preliminary ruling
29.
Article 36 of Directive 92/50 and Article
34 of Directive 93/38 are rules for awarding
contracts, which lay down for that purpose
two basic criteria which have already been
mentioned: the lowest price and the eco
nomically most advantageous tender. The
former, because it is fixed, leaves no room for
assessment by the awarding body. The latter,
however, constitutes an undefined legal
concept, which the contracting authority
must specify in each case, to which end
Articles 36(1)(a) and 34(1)(a) provide a non-
exhaustive list of various points which must
be included in the contract docum ents or the
tender notice in descending order of impor
tance, as required under Articles 36(2) and
34(2).
30.
It may therefore be inferred that the
criteria which the jury must take into
consideration when selecting the most
advantageous tender must be laid down by
the contracting au thority in the tender notice
or the contract documents, and they cannot
be fixed by reference, nor can that task be
deferred until a later time.
31.
This, for Community case-law, is an
inescapable corollary of the principles of
transparency, publicity and non-discrimina
tion. The assessment criteria must be appro
priate for identifying the economically most
advantageous tender, so they must necessa
rily be linked to the subject-matter of the
contract
14
and be included in the aforemen
tioned docum ents, 15 in such a way as to
allow all reasonably well-informed and nor
mally diligent tenderers to interpret them in
the same way;
16
their order of importance
should also be
stated.
17
32.
Thus, the contracting authority does not
have complete freedom of action: it does not
have a discretionary power to establish
formulae for assessing the tenders; nor does
it have the capacity to choose when to
publicise them, o r to change them during the
selection procedure, which also prevents it
from altering their
meaning.
18
14
See to this effect Case
C-513/99 Concordia Bus Finland
[2002]ECRI-7213,paragraph59,applying Article 36(1)(a) of
Directive 92/50.
15
The judgment in
Beentjes
stated that a general reference to a
provision of national legislation cannot satisfy the publicity
requirement (paragraph 35).
16 Case C-19/00 SIAC Construction [2001] ECR I-7725,
paragraph 42. The judgment in Case C-448/01 EVN and
Wienstrom
[2003] ECR I-14527, paragraph 57, confirms this
approach.
17 Case C-470/99
Universale Bau
[2002] ECR 1-11617 para
graph 97.
18 This last consequence is reflected in the aforementioned
judgments inSIACConstruction paragraph
43 ,
andEVN and
Wienstrom
paragraph 92.
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ATI EAC
AND
O T H E R S
33. In the light of all those considerations,
the jury must not be permitted to initiate any
changes and its participation must be limited
to applying the criteria prepared beforehand
by the contracting authority, of which all the
tenderers are duly aware, because they have
been subject to transparency and have been
publicised. Consequently, the specification
and supplementation activities to which the
Consiglio di Stato refers in its first question,
to the extent that they involve creating new
schemes, not merely implementing those
already established, infringe the spirit of
Directives 92/50 and 93/38, because they fail
to have regard to the grounds on which they
are based.
34. It is irrelevant that that task is carried
out before the envelopes are opened, because
equal treatment is required not only in the
decision but also in the participation, so that
the lack of complete information regarding
the condi t ions of the select ion procedure
means less publicity, which is likely to leave
out of the run ning possible compe ti tors who,
if they had had access to all the require
ments , might have decided to compete.
19
Furthermore, as the Commission and the
Austrian Government suggest, that possibi
lity would give the body responsible for
identifying the most acceptable offer the
abili ty to influence the end result , thus
jeopardising impartiality, because, when it
comes t o ca l cu l a t i ng t he f i na l t o t a l s ,
although it may not know the content of
the envelopes , i t does know who the
candidates are, and might t ip the scales in
favour of one of them.
35.
In short, under Article 36(2) of Directive
92/50 and Article 34(2) of Directive 93/38,
the contract ing authori ty must s tate the
award criteria, in detail , in the tender notice
or contract documents; the jury is not
authorised to do anything other than to
apply the m an d is preclu ded from mak ing
any alterations, even if this is done before the
envelopes are opened.
B The second and third questions
36. All the weighting factors must therefore
be announced in advance, in decreasing
order of importance.
37. Consequently, the criteria for awarding
the contract must always appear in the
tender not ice or the contract documents ,
19 The judgments in CaseC-87/94 Co ss on v Belgium
[1996] ECR I - 2 0 4 3 ,
paragraph 88,
and in
Universale-Bau.
paragraph 98,
give
as grounds for
the
obligation imposed on
the contracting authorities the expediency of enabling
potential tenderers to be aware, before preparing their
tenders, of the criteria to be taken into account in selecting
the best offer and the relative importance of those criteria.
Moreover
that requirement ensures the observance of the
principles of equal treatm ent a nd of transp arency
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RUIZ-JARABO
- C A S E C-331/04
and the jury may not eliminate any of them,
add others or subdivide those initially laid
down. As I have already pointed out, it does
not have competence to introduce new
criteria or to alter or supplement those
already existing.
38.
If it is impossible to weight the various
award criteria in the tender notice or
contract documents, it might be thought
that this was a task for the jury, but the
wording of Article 36(2) of Directive 92/50
and A rticle 34(2) of Directive 93/38 does not
permit it. This accords with the general
principles of public procurement, because it
might change the parameters and influence
the outcome of the selection procedure. In
that event, it is more in keeping with the
spirit of directives to entrust that task to an
expert, who is not involved in the final
decision.
20
39. Directives 2004/18 and
2004/17/EC,
21
both currently in force, confirm these views,
requiring the contracting authorities, in
Articles 53 and 55 respectively, to state each
of the criteria selected for identifying the
most advantageous offer, using a range of
points with an appropriate m aximum spread.
Where this is not possible for demonstrable
reasons, the contracting authority is required
to indicate the criteria in descending order of
importance. Thus, no competence is con
ferred on the jury to intervene in this matter.
40. There is all the m ore reason for rejecting
amodusoperandisuch as the one adopted in
the main proceedings, in which the con
tracting authority has laid down a criterion
to be assessed on the basis of various factors
to which it allocates an overall number of
points but no order of priority, leaving it to
the jury not only to distribute those points
but also to grade them.
41 . I therefore consider that, where it is
impossible to state the award criteria in
order of importance in the tender notice or
contract documents, Article 36(2) of Direc
tive 92/50 and Article 34(2) of Directive
93/38 do not allow the jury to do so
subsequently, even if it does so before the
envelopes are opened; accordingly, the jury
may not assume rules to govern that
intervention, nor may it distribute the points
initially set out in those documents between
the various parameters, by arranging these in
order of importance.
20 This was implicitly acknowledged by the judgm ent in SIAC
Construction to which I have already referred, which stated
that the opinion of an expert on a factual matter that will be
known precisely only in the future guarantees that the
criteria are applied objectively and uniformly to all tenderers
(paragraph 44).
21 Directive of the European Parliament and of the Council of
31 March 2004 coordinating the procurement procedures of
entities operating in the water, energy, transport and postal
services sectors
(OJ
2004 L 134, p. 1) which, when the time-
limit for its transposition expires , will replace Directive
93/38.
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EAC AND OTHERS
VII Con clusion
42. In the light of the foregoing considerations, I propose that the Court of Justice
give the following reply to the questions referred by the Consiglio di Stato:
(1) Article 36(2) of Co unc il Directive 92/50 /EE C of 18 June 1992 relating to the
coordination of procedures for the award of public service contracts and Article
34(2) of Council Directive 93/38/EC of 14 June 1993 coordinating the
procurement procedures of ent i t ies operat ing in the water , energy, t ransport
and telecommunicat ions sectors require the contract ing authori ty to set out the
award criteria, in detail , in the tender notice or contract documents; the jury is
not authorised to do anything other than to apply them and is precluded from
making any alterations, even if this is done before the envelopes containing the
offers are opened.
(2) W he re it is impossible to state the award criteria in order of im po rtan ce in the
tender notice or contract documents, those provisions do not al low the jury to
do so subsequently, even if i t does so before the envelopes are opened;
accordingly, the jury may not assume rules to govern that intervention, nor may
it distribute the points initially allocated between the various parameters, by
arranging these according to their relative importance.
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