It is well known that the Regulations provide for a much less rigorous treatment of public services contracts that are classified as “Part B” services.
This goes as far as not to require the publication of an original OJEU advert. However, a long line of caselaw combined wi th a European Commission “Communication” in 2006 has shown that general EU law principles of non-discrimination and transparency apply to public contracts even when exceptions to the normal OJEU rules may be invoked, provided the contract involves “certain cross border interest” (see Commission v Ireland, better known as the An Post case of 2007).
In another case against Ireland, this time concerning a contract for translation and interpretation services, the European Court of Justice (ECJ) held in November 2010 that the modification of award criteria weightings after initial review of bids was a breach of the general duty of transparency, which very much applied in this case notwithstanding that it was Part B.
The argument that, in the particular case, the revised weightings would not have changed the ranking of the tenders did not find favour with the ECJ.
It would not raise much news to note that modifying award criteria post submission of bids was a breach of transparency ordinarily. It has long been clear that an authority has a duty to disclose the award criteria, their respective weightings, and the various sub-criteria that will be employed to score them.
What is interesting here is that this rule – based as it is on a general principle – has been extended to Part B services contracts where there are no set rules on the ranking order of award criteria or as regards their weighting.
Importantly, the ECJ held that “certain cross border interest” (as taken from An Post) plainly applies because the Irish government anticipated as much by publishing an initial OJEU advert in the case even though this was not strictly mandated (on account of being Part B) and the cross border interest was further underlined when the majority of bidders were not from Ireland.
The lesson here is that in a Part B service scenario if certain cross border interest applies then the general principles of the EU Treaty must be taken on board, and in relation to transparency this includes not just publishing some sort of initial advert but also in terms of general issues like communication of award criteria and the detailed workings behind them.