Lord Justice Stanley Burnton:

Introduction

The facts

“The most economically advantageous tender in terms of the criteria stated below:

1. Price. Weighting: 65.

2. Customer satisfaction. Weighting: 35.”

The notice invited submission of requests to participate by 5pm on 27 July 2007.

“The tender analysis will be on an individual site basis although the Tenderer must indicate with its Tender its particular requirement for minimum numbers or groups of sites for which he wishes to be considered.

All submissions will be evaluated on the basis of:

2.1.1. most economically advantageous to Hertfordshire County Council (65%)

2.1.2. resources (including staff) to be allocated to the delivery of the Services and the manner in which the Tenderer proposes to provide the Services in order to deliver outstanding customer satisfaction (35%).”

It was accepted at trial that the headline criteria had been correctly stated in the Official Journal and that the Council did have and did apply a lowest price criterion as set out in the contract notice published in the Official Journal and (albeit inaccurately described, as to which no point is taken) in paragraph 2.1.1 of the ITT.

“The Tenderer must also submit with its Tender in Volume II: Return Schedules:

…

2.5.2 details of proposed staffing and labour levels together with details of any qualifications to demonstrate technical competence, health and safety, first aid, customer care etc. Minimum numbers of staff to be permanently employed at each Site must be such that all of the requirements of the Contract are complied with, maximum quantities of material are separated for composting, recycling, reprocessing and re-use and Customers given no reason to complain about the level of service provided.”

“Any queries arising from the Tender Documents which might have a bearing on the offer to be made should be raised with Mr MG Shaw as soon as possible (preferably in writing) and in any case not later than Friday 25 July 2008.”

“Tenderers must complete each of Return Schedules 1 to 15 giving full details of the methods it intends to employ to carry out the particular aspect of the Service provided.

Tenderers must also complete Return Schedule 16, the Schedule of Rates, for each Site for which a tender is submitted giving the tendered Site Management Charge.

Tenderers must also complete Return Schedule 17, the summary of completed Return Schedules and other information required.”

“As required under Clause 13 of the Conditions of Contract the Contractor must provide sufficient numbers of suitably qualified Staff to both carry out the Services and provide excellent Customer service at all times.”

This Return Schedule then required the tenderer to set out the staffing levels for each of the sites for which it was tendering.

“The rates and prices shall include for the provision of personnel, supervision, dealing with consignment notes where required and providing all necessary documentation, consumable materials, insurance, overheads and profit and every incidental and contingent cost and charge whatsoever for compliance with the Conditions of Contract and the Specification.

…

THE COUNCIL SEEKS A PRICE FOR ALL ITEMS IN THE SCHEDULES OF RATES AND A SEPARATE RATE MUST BE SUBMITTED AGAINST ALL ITEMS. FAILURE TO SUBMIT SEPARATE RATES AGAINST ALL ITEMS FOR ANY PARTICULAR SITE WILL RENDER THE TENDER NON-COMPLIANT,

…..

Items the price of which are the same must not be bracketed and the use of the word “included” against any item is not permitted.

For Sites for which a tender is not being submitted the words NO TENDER must be entered against the item for total weekly cost.

For a weekly Site Management Charge involving no payment by the Council to the Contractor or no payment by the Contractor to the Council the rate entered should be ‘NIL’”

The contentions of the parties

Discussion

The second issue arises only if the first is decided in favour of Varney.

‘1. cost per kilometre for the services mentioned in Annexes A, B and C to the contract documents:

– max. 60 points allocated on the basis of the ratio: …

2. cost per kilometre for services in addition to those mentioned in Annexes A, B and C to the contract documents:

– max. 10 points allocated on the basis of the ratio: ...

3. organisational procedures and support structures used in carrying out the service, as they appear in the document referred to in paragraph 3(10)(6) of the terms and conditions:

– max. 25 points allocated by ACTV at its absolute discretion.

4. possession of a certificate of conformity …: 5 points.’

– ‘depots and/or areas where buses can be parked, owned by or available to the undertaking, within the territory of the Provincia di Venezia …;

– procedures for supervising the service supplied and number of employees supervising the service itself;

– number of drivers on the route and kind of licence held;

– number of places of business owned by or available to the undertaking (other than depots) within the territory of the Provincia di Venezia …;

– number of employees engaged in organising drivers’ shifts’.

“1. Is it lawful to interpret [Article 36 of Directive 92/50 and Article 34 of Directive 93/38] as a flexible rule 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 notice or the contract documents, leaving it to the jury to specify or supplement those criteria, if need be, provided always that such specifying or supplementing is carried out before the packets containing the tenders have been opened and that such action introduces nothing new in relation to the criteria fixed in the tender notice or, on the contrary, must that provision be interpreted as a rigid rule requiring the contracting authority to determine, analytically, the criteria for the award of the contract in the tender notice or the contract documents, before the prequalification stage or the invitation to tender, and as meaning that the jury may not subsequently in any way 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 contract documents?

…

3. In any case, is it lawful, in the light of that provision, 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, but only in respect of the complexity of the matters to be assessed, to restrict its own actions in a general way, by specifying the parameters for the application of the criteria previously determined in the tender notice, and may such power held by the jury be exercised by creating subheadings, sub-points, or simply by setting more specific criteria for the application of the criteria laid down generally in the notice or the contract documents, before of course the envelopes have been opened?”

“19. … the questions referred should be understood to relate essentially to the question whether Article 36 of Directive 92/50 and Article 34 of Directive 93/38 must be interpreted as meaning that Community law precludes a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those subheadings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared.

…

21 Next, it must be observed that the award criteria defined by a contracting authority must be linked to the subject-matter of the contract, may not confer an unrestricted freedom of choice on the authority, must be expressly mentioned in the contract documents or the tender notice, and must comply with the fundamental principles of equal treatment, non-discrimination and transparency (see Concordia Bus, cited above, paragraph 64).

22 In the present case, it must be observed, in particular, that the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives (see Concordia Bus Finland, paragraph 81) and that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed (see Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 34).

23 It must also be observed that, in accordance with Article 36 of Directive 92/50 and Article 34 of Directive 93/38, all such criteria must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope (see Concordia Bus Finland, paragraph 62).

24 Similarly, in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the economically most advantageous offer, and, if possible, their relative importance, when they prepare their tenders (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 88, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 98).

25 Finally, it is for the national court to assess, in the light of these rules and principles, whether, in the case in the main proceedings, the jury infringed Community law by applying a weighting to the various subheadings of the third criterion for the award of the contract.

26 In that regard, it must be determined first whether, in the light of all the relevant facts of the case in the main proceedings, the decision applying such weighting altered the criteria for the award of the contract set out in the contract documents or the contract notice.

27 If it did the decision would be contrary to Community law.

28 Second, it must be determined whether the decision contains elements which, if they had been known at the time the tenders were prepared, could have affected that preparation.

29 If it did the decision would be contrary to Community law.

30 Third, it must be determined whether the jury adopted the decision to apply weighting on the basis of matters likely to give rise to discrimination against one of the tenderers.

31 If it did the decision would be contrary to Community law

32 Accordingly, the answer to the questions referred must be that Article 36 of Directive 92/50 and Article 34 of Directive 93/38 must be interpreted as meaning that Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared, provided that that decision:

– does not alter the criteria for the award of the contract set out in the contract documents or the contract notice;

– does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation;

“14. In addition, [the public authority] stipulated that experience (first award criterion) should be evaluated by reference to the value of completed projects. Thus, for experience on projects worth up to EUR 500 000, a tenderer would be awarded 0 points; between EUR 500 000 and EUR 1 000 000, 6 points; between EUR 1 000 000 and EUR 1 500 000, 12 points; and so on up to a maximum score of 60 points for experience on projects worth over EUR 12 000 000.”

“The Lianakis and Planitiki consortia took the view that the Loukatos consortium could only have been awarded the project as a result of the Project Award Committee’s subsequent stipulation of the weighting factors and sub-criteria in respect of the award criteria referred to in the contract notice, and challenged the decision taken by the Municipal Council of Alexandroupolis, initially before the Council itself and subsequently before the Simvoulio tis Epikratias (Greek Council of State; ‘Simvoulio tis Epikratias’) on the basis, in particular, of allegations of infringement of Article 36(2) of Directive 92/50.”

“36. According to the case-law, Article 36(2), read in the light of the principle of equal treatment of economic operators set out in Article 3(2) of Directive 92/50 and of the ensuing obligation of transparency, requires that potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous offer, and their relative importance, when they prepare their tenders …

37 Potential tenderers must be in a position to ascertain the existence and scope of those elements when preparing their tenders …

38 Therefore, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention …

39 That interpretation is supported by the purpose of Directive 92/50 which aims to eliminate barriers to the freedom to provide services and therefore to protect the interests of economic operators established in a Member State who wish to offer services to contracting authorities established in another Member State …

40 To that end, tenderers must be placed on an equal footing throughout the procedure, which means that the criteria and conditions governing each contract must be adequately publicised by the contracting authorities (see, to that effect, in relation to public works contracts, Beentjes, paragraph 21, and SIAC Construction, paragraphs 32 and 34; also, in relation to public service contracts, ATI EAC and Others, paragraph 22).

41 Contrary to the doubts expressed by the referring court, those findings do not conflict with the interpretation by the Court of Justice of Article 36(2) of Directive 92/50 in ATI EAC and Others.

42 In the case that gave rise to that judgment, the award criteria and their weighting factors, together with the sub-criteria of those award criteria had in fact been established beforehand and published in the contract documents. The contracting authority concerned had merely stipulated subsequently, shortly before the opening of the envelopes, the weighting factors to be applied to the sub-criteria.

43 In that judgment, the Court held that Article 36(2) of Directive 92/50 does not preclude proceeding in that way, provided that three very specific conditions apply, namely that the decision to do so:

– does not alter the criteria for the award of the contract set out in the contract documents;

– does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and

– was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect, ATI EAC and Others, paragraph 32).

44 It must be noted that in the case in the main proceedings, by contrast, the Project Award Committee referred only to the award criteria themselves in the contract notice, and later, after the submission of tenders and the opening of applications expressing interest, stipulated both the weighting factors and the sub-criteria to be applied to those award criteria. Clearly that does not comply with the requirement laid down in Article 36(2) of Directive 92/50 to publicise such criteria, read in the light of the principle of equal treatment of economic operators and the obligation of transparency.

45 Having regard to the foregoing, the answer to the question referred must therefore be that, read in the light of the principle of equal treatment of economic operators and the ensuing obligation of transparency, Article 36(2) of Directive 92/50 precludes the contracting authority in a tendering procedure from stipulating at a later date the weighting factors and sub-criteria to be applied to the award criteria referred to in the contract documents or contract notice.”

“148 In accordance with settled case-law, it is, none the less, possible for a contracting authority, after expiry of the period for submission of tenders, to determine weighting coefficients for sub-criteria of award criteria previously established, on three conditions, namely that that ex post determination, firstly, does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect and by analogy, ATI EAC e Viaggi di Maio and Others, paragraph 146 above, paragraph 32, and Lianakis and Others, paragraph 131 above, paragraphs 42 and 43).

…

151 It is apparent from the report to the authorising office of 19 November 2004 that the evaluation committee had agreed to break down the first criterion concerning the proposed methodology for the project (which was to include detailed proposals of how the project would be carried out, and milestones and deliverables, as defined in point 3 of the tender specifications), into two sub-criteria: ‘repartition of tasks, manpower offered of quality and man-days (roadmap) – 20%; deliverables – 20%’.

152 Contrary to what the applicant claims, the evaluation committee did not subdivide that award criterion into sub-criteria which had not previously been brought to the tenderers’ attention. Those sub-criteria correspond, essentially, to the description of the first criterion, concerning methodology, as specified in point 13.1 of the tender specifications, read in the light of point 3 thereof ... Accordingly, the evaluation committee merely weighted the 40 points available for the first award criterion by dividing them fairly between those sub-criteria.

153 In the light of those considerations, it must be determined whether, in providing for such weighting, the evaluation committee infringed the Financial Regulation and its implementing rules.

154 It is apparent from the case-law cited in paragraph 148 above that a contracting authority cannot infringe the Financial Regulation or the implementing rules when it divides among the subheadings of an award criterion which are defined in advance the number of points allotted to that criterion when the tender specifications were prepared, provided that that division does not alter the award criteria defined in the tender specifications or the contract notice, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, and was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

155 In the present case, the applicant, by merely referring generically to the fact that the contracting authority subdivided a criterion into two sub-criteria, has not shown that the decision of the contracting authority to make such a division led to an alteration of the contract award criteria previously defined in the tender documents, or that it contained elements which could have affected the preparation of the tenders, or that it gave rise to discrimination against the applicant or one of the tenderers.

…

158 In the light of all the foregoing, the conclusion must be that the second plea in law, as regards tendering procedure C-1/01/04, must be rejected in its entirety.”

“42 It is true that, according to the Court’s case-law relating to public contracts awarded in accordance with all the provisions of the various public procurement directives which preceded the adoption of the Directive, the purpose of the requirement to inform tenderers in advance of the award criteria and, where possible, of their relative weighting, is to ensure that the principles of equal treatment and transparency are complied with (see, inter alia, Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 98, and Case C-331/04 ATI EAC and Viaggi di Maio and Others [2005] ECR I-10109, paragraphs 22 to 24).

43 However, while the requirement to state the relative weighting for each of the award criteria at the stage of publication of the contract notice, as now provided for under Article 53(2) of the Directive, meets the requirement of ensuring compliance with the principle of equal treatment and the consequent obligation of transparency, it cannot legitimately be argued that the scope of that principle and that obligation extends, in the absence of a specific provision to that effect in the Directive, to requiring that, in the context of contracts not subject to a provision such as Article 53 of the Directive, the relative weighting of criteria used by the contracting authority is to be determined in advance and notified to potential tenderers when they are invited to submit their bids. Indeed, as the Court indicated by the use of the phrase ‘where possible’ in the case-law referred to in the paragraph 42 above, the reference to the weighting of the award criteria in the case of a contract that is not subject to a provision such as Article 53(2) of the Directive does not constitute an obligation for the contracting authority.

44 It follows that Ireland, which had granted potential tenderers access to appropriate information concerning the contract at issue prior to the closing date for the submission of tenders, did not infringe the principle of equal treatment or the consequent obligation of transparency by attributing weightings to the award criteria without granting the tenderers access to those weightings before the closing date for the submission of tenders.

….

48 Moreover, the relative weighting of the award criteria communicated to the members of the evaluation committee in the form of a matrix would not have provided potential tenderers, had they been aware of that weighting at the time the bids were prepared, with information which could have had a significant effect on that preparation and did not constitute an alteration of those criteria (see, to that effect, ATI EAC and Viaggi di Maio and Others, paragraph 32).”

“87. In my judgment, when properly analysed the Return Schedules are not separate award criteria. Rather, as I have found above, Return Schedules 1 to 15 are dealing with different aspects of customer satisfaction, one of the stated award criteria and therefore are sub-criteria or a sub-set of that award criterion. Return Schedule 16 deals with rates i.e. price, the other stated award criterion. Accordingly I do not consider that to be a different or new sub-criterion, let alone a separate award criterion. Return Schedule 17 is merely a summary of the information provided by the tenderer and so nothing to do with award criteria.”

“… in reality it was perfectly obvious that the award criteria were going to be marked by reference to the information provided in response to the Return Schedules and if any of the tenderers had wanted clarification of that or of what marks would be attached to each Return Schedule, they would surely have asked. Accordingly I am satisfied that this is a case where, within the ATI principle, there was no requirement to disclose in advance the sub-criteria or the weighting attached to each of them, because such disclosure could not have affected the preparation of any of the tenders. In the circumstances, the Council was not in breach of the obligation of transparency in that regard.”

These are findings of fact that have not been, and could not be, challenged.

Lord Justice Hooper:

Lord Justice Rix:

Annex

The Public Contracts Regulations 2006

Economic operators

4. —(1) In these Regulations, an "economic operator" means a contractor, a supplier or a services provider.

(2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.

(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—

(a) treat economic operators equally and in a non-discriminatory way; and

(b) act in a transparent way.

The restricted procedure

16. —(1) A contracting authority using the restricted procedure shall comply with this regulation.

(2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after informing the intention, a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005, inviting requests to be selected to tender and containing the information therein specified.

(3) Subject to paragraph (5), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to tender shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

(4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt of requests to be selected to tender and for receipt by it of tenders.

(5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (3) may be reduced by 7 days.

(6) Where compliance with the minimum time limit of 37 days referred to in paragraph (3) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit—

(a) a time limit of not less than 15 days from the date of despatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (5), a time limit of not less than 10 days from the date of despatch of the contract notice.

(7) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to tender only if the economic operator—

(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—

(i) economic and financial standing; or

(ii) technical or professional ability.

(8) The contracting authority shall make the selection of the economic operators to be invited to tender in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

(9) Where there is a sufficient number of economic operators suitable to be selected to be invited to tender, the contracting authority may limit the number of economic operators which it intends to invite to tender provided that the contract notice specifies—

(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 5, which the contracting authority intends to invite to tender and, where appropriate, the maximum number.

(10) The contracting authority shall ensure that the number of economic operators invited to tender is—

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (9)(b).

(11) Subject to paragraph (10)(a), where—

(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to tender is less than the minimum number specified by the contracting authority in the contract notice;

that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(12) The contracting authority may require an economic operator to satisfy minimum levels of—

(a) economic and financial standing; or

(b) technical or professional ability;

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(13) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to tender for the contract and the invitation shall—

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(14) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(15) The contracting authority shall include the following information in the invitation—

(a) the final date for the receipt by it of tenders, the address to which they must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (2);

(c) an indication of the information to be included with the tender which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (2).

(16) Subject to paragraphs (18) and (19), the date which the contracting authority fixes as the last date for the receipt by it of tenders and which shall be specified in the invitation to tender in accordance with paragraph (15)(a), shall be not less than 40 days from the date of the despatch of the invitation.

(17) Where compliance with the minimum time limit of 40 days referred to in paragraph (16) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit, a time limit of not less than 10 days from the date of despatch of the invitation.

(18) Where—

(a) the contracting authority has published a prior information notice in accordance with regulation 11;

(b) the prior information notice contained as much of the information referred to in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005 as was available at the time of publication; and

(c) the prior information notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice provided for in paragraph (2) is despatched;

the contracting authority may substitute for the period of not less that 40 days in paragraph (16), a period of generally not less than 36 days and in any event not less than 22 days.

(19) The contracting authority may reduce the time limits for the receipt by it of tenders referred to in paragraphs (16) and (18) by 5 days provided that—

(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.

(20) The contracting authority or entity referred to in paragraph (13)(c) shall supply such further information relating to the contract documents as may be reasonably requested by an economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

(21) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—

(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraph (20) and, for whatever reason, the contract documents or further information are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(22) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (19).

Information as to economic and financial standing

24. —(1) Subject to regulation 27 and paragraph (2), in assessing whether an economic operator meets any minimum standards of economic and financial standing required of economic operators by the contracting authority—

(a) for the purposes of regulation 15(11), 16(7), 17(9) or 18(10); and

(b) in selecting the economic operators to be invited to tender for or to negotiate the contract in accordance with regulation 16(8), 17(10) or 18(11);

a contracting authority may take into account any of the following information—

(i) appropriate statements from the economic operator's bankers or where appropriate, evidence of relevant professional risk indemnity insurance;

(ii) statements of accounts or extracts from those accounts relating to the business of the economic operator where publication of the statement is required under the law of the relevant State in which the economic operator is established; or

(iii) where appropriate, a statement, covering the 3 previous financial years of the economic operator, of—

(aa) the overall turnover of the business of the economic operator; and

(bb) where appropriate, the turnover in respect of the work, works, goods or services which are of a similar type to the subject matter of the public contract.

Criteria for the award of a public contract

30. —(1) Subject to regulation 18(27) and to paragraphs (6) and (9) of this regulation, a contracting authority shall award a public contract on the basis of the offer which—

(a) is the most economically advantageous from the point of view of the contracting authority; or

(b) offers the lowest price.

(2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period and period of completion.

(3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

(4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

(5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

(6) If an offer for a public contract is abnormally low the contracting authority may reject that offer but only if it has—

(a) requested in writing an explanation of the offer or of those parts which it considers contribute to the offer being abnormally low;

(b) taken account of the evidence provided in response to a request in writing; and

(c) subsequently verified the offer or parts of the offer being abnormally low with the economic operator.

(7) Where a contracting authority requests an explanation in accordance with paragraph (6), the information requested may, in particular, include—

(a) the economics of the method of construction, the manufacturing process or the services provided;

(b) the technical solutions suggested by the economic operator or the exceptionally favourable conditions available to the economic operator for the execution of the work or works, for the supply of goods or for the provision of the services;

(c) the originality of the work, works, goods or services proposed by the economic operator;

(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the contract is to be performed; or

(e) the possibility of the economic operator obtaining State aid.

(8) Where a contracting authority establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after—

(a) consultation with the economic operator; and

(b) the economic operator is unable to prove, within a reasonable time limit fixed by the contracting authority, that the aid was granted in a way which is compatible with the EC Treaty.

(9) Where a contracting authority rejects an abnormally low offer in accordance with paragraph (8), it shall send a report justifying the rejection to the Office of Government Commerce for onward transmission to the Commission.

(10) In this regulation "offer" includes a bid by one part of a contracting authority to provide services, to carry out work or works or to make goods available to another part of the contracting authority when the former part is invited by the latter part to compete with the offers sought from other persons.

Enforcement of obligations

47. —(1) The obligation on—

(a) a contracting authority to comply with the provisions of these Regulations, other than regulations 14(2), 30(9), 32(14), 40 and 41(1), and with any enforceable Community obligation in respect of a public contract, framework agreement or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and

(b) a concessionaire to comply with the provisions of regulation 37(3);

is a duty owed to an economic operator.

….

(6) A breach of the duty owed in accordance with paragraph (1) or (2) is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court.

(7) Proceedings under this regulation must not be brought unless—

(a) the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2) by that contracting authority or concessionaire and of its intention to bring proceedings under this regulation in respect of it; and

(b) those proceedings are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

(8) Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may—

(a) by interim order suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of which the breach of the duty owed in accordance with paragraph (1) or (2) is alleged, or suspend the implementation of any decision or action taken by the contracting authority or concessionaire, as the case may be, in the course of following such a procedure; and

(b) if satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with paragraph (1) or (2)—

(i) order the setting aside of that decision or action or order the contracting authority to amend any document;

(ii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or

(iii) do both of those things.

(9) In proceedings under this regulation the Court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into.