Article 23(8) of Parliament and Council Directive 2004/18/EC of 31 March 2004 on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011, was not applicable to a public contract with a value below the threshold for application laid down by that Directive. In the context of a public contract not subject to that Directive but which had certain cross-border interest, which it was for the referring court to ascertain, the fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination and the consequent obligation of transparency, meant that the contracting authority could not reject a tender which satisfied the requirements of the contract notice on grounds which were not set out in that notice.

The Court of Justice of the European Union so held on a request for a preliminary ruling from the Curtea de Apel Alba Iulia (Romania) in proceedings between the tenderer, SC Enterprise Focused Solutions SRL and the contracting authority, Spitalul Județean de Urgență Alba Iulia (Alba Iulia District Emergency Hospital), concerning the latter’s decision rejecting the tender submitted by the tenderer in the context of a procedure for the award of a public contract.

The contracting authority launched an online call for tenders for the conclusion of a contract for the supply of computing systems and equipment. As regarded the central unit of the computing system, the tender documentation stated that the processor was required to correspond “at least” to a certain make and model of processor. The tender submitted by the tenderer included a different brand of processor. That tender was rejected on the ground that it did not comply with the technical specifications of the contract. The contracting authority reached that conclusion after establishing that first and second-generation processors of the type specified in the documentation were no longer in production or supported by that manufacturer, albeit still commercially available, and that the same type of processor now being produced by that manufacturer was the third-generation processor. It was by reference to that third-generation processor, whose performance was superior to that of the processor offered by the tenderer, that the tenderer was declared not to have complied with the technical specifications of the contract. The tenderer filed a complaint before the National Council for the Settlement of Complaints against the decision rejecting its tender, claiming that the performance of the processor offered in that tender was superior to that of the processor specified in the technical specifications of the contract. It was common ground that the processor offered by the tenderer was indeed superior to that specified. Since the complaint was rejected, the tenderer appealed to the Curtea de Apel Alba Iulia (Alba Iulia Court of Appeal) which stayed the proceedings and referred a question to the Court of Justice for a preliminary ruling.

THE COURT (Fifth Chamber) held that as regarded the principles of equal treatment and of non-discrimination and the obligation of transparency, the member states had to be recognised as having a certain amount of discretion for the purpose of adopting measures intended to ensure compliance with those principles, which were binding on contracting authorities in any procedure for the award of a public contract. The obligation of transparency was in particular intended to preclude any risk of arbitrariness on the part of the contracting authority. That objective would not be achieved if the contracting authority were able to disregard the conditions it had itself imposed. Accordingly, it was prohibited from amending the award criteria during the award procedure. The principles of equal treatment and of non-discrimination and the obligation of transparency had the same effect in that respect with regard to the technical specifications. Consequently, the principle of equal treatment and the obligation of transparency prohibited the contracting authority from rejecting a tender which satisfied the requirements of the invitation to tender on grounds which were not set out in the tender specifications. The contracting authority could not, therefore, after publication of a contract notice, amend the technical specification in respect of an element of the contract in breach of the principles of equal treatment and of non-discrimination and the obligation of transparency. It was irrelevant, in that regard, whether or not the element to which that specification referred was still in production or available on the market.