Post a comment
Print articleAward Criteria: can they be changed?
June, 2008 - Mark Robinson
Several years ago the Municipal Council in Alexandroupolis invited tenders for a contract to carry out a project in respect of a town plan. Using the appropriate procedure the Council issued a contract notice identifying the award criteria in order of priority (as was required by the relevant rules). However, during the evaluation procedure the Council decided to develop sub-criteria to use during the evaluation process and on the basis of those sub-criteria awarded the contract to a particular consortium. There was a complaint followed by a challenge and a key argument put forward was that award criteria should only be established at the outset of a tender process and could not be further defined during the evaluation process. Whether this argument was correct was referred to the European Court of Justice and earlier this year it gave a ruling. The ECJ took the view that key treaty principles of equal treatment of economic operators and ensuring transparency in the tender process, when applied to the relevant Directive, meant that a contracting authority in a tendering procedure could not stipulate at a later date weighing factors and sub-criteria to be applied to award criteria that were not referred to in the original published contract notice or in the contract documents. The impact of this decision needs to be taken on board by all those who are conducting or participating in tenders for public contracts. The criteria for the award of a contract must be established and published at the outset and can not change- to do otherwise simply risks a challenge in Court.
