C-410/01

' 1 . The Member States shall take the meas- ures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 2. In a case in which a trader has failed to 77/62/EEC and 92/50/EEC, decisions taken avail itself of the conciliation procedure by the contracting authorities may be provided for under Austrian law, the Bun- reviewed effectively and, in particular, as desvergabeamt is seeking to ascertain rapidly as possible in accordance with the whether the abovementioned provision conditions set out in the following Articles, must be interpreted as meaning that a and, in particular, Article 2(7) on the trader has no interest in obtaining a grounds that such decisions have infringed contract unless it has taken all steps avail- Community law in the field of public able under national law to prevent the procurement or national rules implement- contract from being awarded to another ing that law. tenderer and so to secure the award of the contract to itself.

1 — O r i g i n a l language: French. 2 — OJ 1989L. 3 9 5 , p. 33. 3 — OJ 1992 L 209, p. 1.

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3. The Member States shall ensure that the (b) either set aside or ensure the setting review procedures are available, under aside of decisions taken unlawfully, detailed rules which the Member States including the removal of discrimina- may establish, at least to any person having tory technical, economic or financial or having had an interest in obtaining a specifications in the invitation to particular public supply or public works tender, the contract documents or in contract and who has been or risks being any other document relating to the harmed by an alleged infringement. In contract award procedure; particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.' (c) award damages to persons harmed by an infringement.

8. The awarding body may not award the contract until four weeks after... it has been 6. Paragraph 109 of the BVergG sets out informed in accordance with paragraph 7, the powers of the B-VKK. It contains the failing which the tendering procedure shall following provisions: be declared void...'

' 1 . The B-VKK shall be competent: 7. Paragraph 113 of the BVergG lays down the powers of the Bundesvergabeamt. It provides:

(1) until such time as the contract is awarded, to reconcile any differences of opinion between the awarding body ' 1 . The Bundesvergabeamt is responsible and one or more candidates or ten- on application for carrying out a review derers concerning the application of the procedure in accordance with the following present federal law or its implementing provisions. regulations.

2. To preclude infringements of this Fed- eral Law and of the regulations implement-

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12. Together with a number of partners, since it had not submitted an application Fritsch, Chiari & Partner Ziviltechniker for conciliation to the B-VKK, as it was GmbH ('the applicant') submitted its entitled to do under Paragraph 109(1) of tender as a consortium. By letter of the BVergG. 28 January 2000 the applicant was informed that its tender had been placed second in the evaluation of the tenders and was therefore unsuccessful. On 8 February 2001 it was told that the contract had been awarded to a competitor and was informed of the amount of the contract. 15. In support of its view, Asfinag main- tains that public procurement law does not exist for its own sake but rather serves to determine where pre-contractual liability lies amongst the various parties to public procurement procedures, including the ten- derers. If a tenderer considers that the award criteria do not comply with the law, it is required, as provided in Paragraph 13. The applicant then instituted a pro- 109(6) of the BVergG, to inform the cedure under Paragraph 113(3) of the B-VKK as soon as possible, even before BVergG for a review by the Bundesver- the tenders are opened. The principle of gabeamt, seeking a declaration that the competition prohibits allowing a tenderer contract had not been awarded to the best who considers that the award criteria do tenderer because the award criteria laid not comply with the law, first to submit a down by the contracting authority tender in order to ascertain whether it is the infringed the requirement contained in best tenderer and then to decide on its Paragraph 53 of the BVergG that the best actions according to how the contract is tenderer must be determined in a compre- awarded: if it is the best tenderer it does not hensible manner. make an application, but if it fails to obtain the contract, or is not the best tenderer, it applies to the competent authorities in order to have 'a second bite at the cherry' as a result of the invitation to tender being revoked.

18. Considering that the Austrian legis- lation applying to the case before it should be interpreted in the light of Article 1(3) of 19. In the order for reference the Bundes- Directive 89/665 and that a decision in the vergabeamt points out that in a judgment case therefore required an interpretation of of 12 June 2001 (B 485/01-12, B 584/01-9, that provision, the Bundesvergabeamt, by B 685/01-6) the Verfassungsgerichtshof order of 11 July 2001, decided to stay (Austrian Constitutional Court) stated, proceedings pending a preliminary ruling referring to its judgment of 8 March 2001 by the Court of Justice on the following (B 707/00), that according to the case-law questions: of the Court of Justice, 4the capacity to institute a review procedure under Article 1 of Directive 89/665 must be interpreted broadly and should therefore belong to any

'1. Is Article 1(3) of Directive 89/665 to be 4 — See Case C-81/98 Alcatel Austria and Others [1999] ECR interpreted as meaning that the review I-7671, paragraphs 34 and 35.

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person seeking to obtain a specific public by the Court in Case C-411/00 Swoboda, 5 contract which is the subject of an invi- at least as regards questions referred by the tation to tender. The question therefore Bundesbegabeamt in the exercise of its arises whether that should be the case powers during the period after the award irrespective of whether that person has or of the contract. The Court held in that has not availed himself of the opportunity context that it was a court or tribunal afforded him by the contracting authority within the meaning of Article 234 EC. 6 of exhausting all remedies available under domestic public procurement law (first question) or whether failure to exhaust all possible domestic remedies results in him forfeiting that interest (second question).

24. Like the French Government, I propose to deal with both the questions together. 27. The order for reference does not con- tain any information from which I may conclude that this view is incorrect.

25. Each question corresponds to the view put forward by one of the parties in the 28. In essence, the questions amount to the main proceedings on the point at issue, single question of whether Directive 89/665 namely, the meaning of 'an interest in must be understood as meaning that a obtaining a contract': the first question tenderer has or had an interest in obtaining reflects the applicant's view that the sub- a public contract only if it made a pre- mission of a tender during a contract liminary application to an advisory com- procedure or the request to participate in mittee although such application was such a procedure are sufficient in order to optional. establish that a tenderer has, once and for all, an interest in obtaining the contract, whilst the second question refers to Asfinag's view that the fact that a tenderer does not take or has not taken all steps available to it under national law to 29. In my view the answer to that question prevent the contract from being awarded is no. to another tenderer, namely in this case the fact that it did not make an application to the B-VVK, demonstrates that that tenderer has forfeited an interest in obtaining the contract. 30. First, it is clear straight away that Directive 89/665 does not specify any circumstances in which a tenderer forfeits an interest in obtaining a contract.

36. I therefore suggest that the answer to the questions referred for a preliminary ruling should be that, in itself, Article 1(3) 32. It is true that the directive does not of Directive 89/665 does not mean that an preclude certain obligations being imposed undertaking has or had an interest in on traders under national law. obtaining a particular public contract only if, in addition to its participation in the public procurement procedure, it takes or took all steps available to it under national law to prevent the contract from being awarded to another tenderer and so to secure the award of the contract to itself. 33. This is clear, for example, from the last sentence of Article 1(3) of Directive 89/665, which provides '... the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek 37. In the alternative I should like, how- review.' ever, to consider the questions again from another angle.

34. It is also clear from Case C-470/99 Universale-Bau and Others, 9in which the 38. They could also be interpreted as Court held that extinctive time-limits at meaning that the Bundesvergabeamt is national level were compatible with Direc- seeking to ascertain whether Directive tive 89/665 provided they were reasonable. 89/665 precludes a rule of national law under which a tenderer forfeits its interest in obtaining the contract if it has not taken all steps available to it under national law to prevent the contract from being awarded to another tenderer. 35. However, the directive itself does not impose such obligations on traders, and 10 — Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C-91/92 Faccim Don [1994] ECR I-3325, para- graphs 22 to 25; C a s eC-456/98 Centrosteel [2000| ECR I-6007, paragraph 15, and Case C-443/98 Unilever [2000] 9 — [2002] ECR I-11617 ECR I-7535, paragraphs 50 and 51.

41. In that case, in which reference had likewise been made by the Bundesver- gabeamt, the Court held as follows: 44. Article 1(3) of Directive 89/665 indeed requires review procedures to be made available to 'any person having or having had an interest in obtaining a particular public supply or public works contract and 'Directive 89/665 does not preclude who has been or risks being harmed by an national legislation which provides that alleged infringement', although it does not any application for review of a contracting authority's decision must be commenced within a time-limit laid down to that effect 11 — Universale-Bau, cited above, paragraph 79. and that any irregularity in the award 12 — Universale-Bau, cited above, paragraph 71. procedure relied upon in support of such 13 — See point 30 above.

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73 It is therefore appropriate to determine whether, in light of the purpose of that directive, national legislation such as that at issue in the main proceedings 76 Moreover, the setting of reasonable limitation periods for bringing pro- 14 — SEE, by analogy, Universale-Bau, cited above, paragraph 71 in fine. ceedings must be regarded as satisfying,

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in principle, the requirement of effec- 48. At the hearing the applicant stated that tiveness under Directive 89/665, since it had not had sufficient information to it is an application of the fundamental make a proper application to the B-VKK principle of legal certainty (see, by after being informed, by letter of 28 January analogy, in relation to the principle of 2000, that its tender had been placed the effectiveness of Community law, second in the evaluation of the tenders Case C-261/95 Palmisani [1997] ECR and was therefore unsuccessful. I-4025, paragraph 28, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 33).' 15

50. I therefore suggest that the answer to 47. I should like to stress, however, that the questions referred for a preliminary such forfeiture of an interest in obtaining ruling should, in the alternative, be that the contract, in my view, cannot arise Article 1(3) of Directive 89/665 does not except where the tenderer has failed to preclude a rule of national law under which take all the steps which are reasonably an undertaking has or had an interest in available to it, in the same way as the obtaining a particular public contract only time-limits must also be reasonable. 17 if, in addition to its participating in the public procurement procedure, it takes or took all steps reasonably available to it 15 — Emphasis added. under national law to prevent the contract 16 — See also Alcatel Austria and Others, cited above, para- from being awarded to another bidder and graph 34, and Case C-92/00 HI [2002] ECR I-5553, paragraph 52. so to secure the award of the contract to 17 — Universale-Bau, cited above, paragraph 79. itself.

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V — Conclusion

51. In the light of the above considerations, I suggest that the answer to the questions referred by the Bundesvergabeamt should be as follows:

Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, does not mean that an undertaking has or had an interest in obtaining a particular public contract only if, in addition to its participation in the public procurement procedure, it takes or took all steps available to it under national law to prevent the contract from being awarded to another bidder and so to secure the award of the contract to itself;