EMM G Lianakis AE and Others v Municipality of Alexandroupolis

This was a European case about Article 36(2) which provides that:

"Where the contract is to be awarded to the economically most advantageous tender, the contracting authority shall state in the contract documents or in the tender notice the award criteria which it intends to apply, where possible in descending order of importance".

Here, the Council had invited tenders and had set out in the contract notice the award criteria in the order of priority. The list was (i) proven experience on projects carried out over the last three years (ii) manpower and equipment and (iii) the ability to complete the project by the anticipated deadline. Thirteen consultancies responded. During the evaluation procedure, the committee in charge of the appointment set weightings of 60%, 20% and 20% for each of the three award criteria. It also stipulated that experience should be evaluated by reference to the value of completed projects. It awarded similar ranking points for the other criteria. However, the stipulation of the weighting factors and sub-criteria was only made at a later date.

The Greek court asked the European Court whether Article 36(2) precluded a contracting authority 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 notice. The European Court noted that contractual authorities are required to ensure that there is no discrimination between different service providers. Therefore, where a contract is to be awarded to the economically most advantageous tender, a contracting authority must state in the contract documents the award criteria which intends to apply. Potential tenderers must be in a position to ascertain the existence and scope of the criteria elements when preparing their tenders. Therefore, a contracting authority cannot apply weighting rules or sub-criteria which it has not previously brought to the tenderers’ attention. 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. Here, the projects award committee referred only to the award criteria and only later after submission of the tenders stipulated the weighting factors. This did not comply with the Article requirements.