C-421/01

1 — Original language: German. 2 —OJ 1993 L 199, p. 54.

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presentation. They shall indicate in the the award, where possible in descending tender notice if variants are not permitted. order of importance.

...'

3. Article 30 B — National law: the Bundesgesetz über die Vergabe von Aufträgen or Bundesver- gabegesetz 1997 (Federal Procurement Law 1997; hereinafter: 'BVergG') 3 ' 1 . The criteria on which the contracting authorities shall base the award of contracts shall be:

4. An alternative tender [or "variant", to 2. has a substantial bearing on the out- adopt the terminology used in Directive come of the award procedure. 93/37/EEC 4 ] is admissible only if it ensures the performance of qualitatively equivalent work. It shall be for the tenderer to prove equivalence. An alternative tender may relate to the work as a whole, to parts of the work or to the legal conditions underlying the performance of the work. Alternative tenders shall be designated as such and shall be submitted separately.

3. Following the award of the contract, the Bundesvergabeamt shall simply establish, in accordance with the requirements of paragraph 1 hereof, whether or not the law ...' has been infringed as claimed.'

5. Paragraph 117 I I I— Facts

6. Acting for and on behalf of the Auto- bahnen- und Schnellstraßen Finanzie- ' 1 . The Bundesvergabeamt must declare rungs-AG (Austrian Motorway and void, by a decision adopted following the Expressway Financing Company; here- recommendation of the conciliation inafter: 'Asfinag'), the Land Government chamber in the case, any decision adopted of Lower Austria launched an open pro- by a contracting authority in the course of cedure throughout the Community on an award procedure which: 27 November 1997 inviting tenders for the repair of the section 'between the 100.2 km and 108.6 km points of the carriageway from Neumarkt to Vienna'. The contract concerned bridge and road construction works. 1. is contrary to the provisions of this federal law or its implementing regu- lations, and

7. With regard to resurfacing outside the 4 — According to the findings or the referring court, an 'alter- native tender' under Paragraph 15(14) of the BVergG is a motorway bridge areas, the tender docu- tender based on an alternative tender proposal from the tenderer and should therefore be regarded as a 'variant' ment stated under the heading 'Official within the meaning of Directive 93/37/EEC. Design' that a dual-layer concrete overlay I - 11946

of surface quality should be laid but did not bitumen material for the concrete surface describe those features as minimum dressing. Technical clarification was pro- requirements. Nor did the tender document vided in the form of an expert opinion contain any explicit statements regarding which stated that under the conditions minimum technical specifications that assumed for the section of carriageway would have to be met by variants that concerned, the asphalt design would pro- might be submitted. The tender document vide adequate resistance to deformation for stated that variants were admissible. How- a period of 20 years. ever, any variants submitted had to be accompanied by a comprehensive list of works as required by the tender document (main tender). No contract award criteria for assessing the economic and technical quality of tenders (whether tenders con- forming to the tender document or vari- ants) were laid down. Nor did the tender document stipulate that variants had to ensure the performance of work equivalent 10. The technical test report commissioned to that defined in the official design (nor by the Land government stated that, while was any reference made to Paragraph 42 of a study on the possibility of substituting the BVergG which lays down that require- asphalt designs had been compiled in 1989, ment), and there was no explanation of earlier contracts had shown that, despite what was meant by 'performance of equiv- careful execution of an asphalt design of alent work' either. this kind in compliance with the contract, grooves of considerable depth had appeared after only a short time and additional repair work had been necessary. It also pointed out that ensuring that the work would be performed in accordance with the official requirements if Traun- 8. Traunfellner, the plaintiff in the main fellner's variant was accepted would proceedings, submitted both a tender con- necessitate additional work at a cost of forming to the tender document and a some ATS 2.5 million, thus reducing the variant. Its variant was the cheapest of all price advantage to ATS 6.9 million. The the tenders submitted but, of all the tenders report went on to explain that if the overlay conforming to the tender document, its was made of concrete, the new technologies own tender came second behind that sub- were such that the road surface could be mitted by the Ilbau — LSH Fischer — expected to resist deformation for at least Heilit & Woerner consortium, to which 30 years. The concrete surface specified in the contract was awarded. the official design would, therefore, have a 50% longer life and cost only 8.5% more. Moreover, the objective of using existing old concrete to obtain a high-quality aggregate for the new concrete overlay (recycling) was not taken into account in the variant since only some of the existing 9. In its variant, Traunfellner proposed crushed concrete would be used on site for substituting an asphalt overlay made from secondary filling-in purposes. Much of the

existing concrete surface would be put to forming to the tender document. The works an otherwise unspecified use off site. Pref- have since been carried out. erence was therefore to be given to the general repair of the carriageway in con- crete, in accordance with the official tender document, at least in view of the lifetime and resistance to deformation of concrete. These two factors would, after all, reduce the subsequent need for maintenance, which in turn would result in less dis- 13. Adjudicating on an appeal lodged by ruption to traffic and was therefore in Traunfellner, the Verfassungsgerichtshof keeping with the objective of minimising (Austrian Constitutional Court) overruled adverse effects on ease of movement, road the decision of the Bundesvergabeamt of safety and traffic flows. Accordingly, the 21 April 1998 for failure to fulfil the variant should not be regarded as meeting obligation to state reasons. Under Austrian the requirements of the official design and law, once the Verfassungsgerichtshof has should therefore be disqualified. On the annulled an administrative act (in this case, basis of that test report, the award com- after the referring court's decision of mission decided on 17 March 1998 to 21 April 1998 had been overruled), the propose that the contract be awarded to the matter at issue is restored to the state it was Ilbau — LSH Fischer — H e i l i t & in prior to the contested decision. The Woerner consortium. referring court is now required to give a fresh ruling on Traunfellner's request of 17 April 1998 for the annulment of the decision to disqualify the variant. How- ever, as the award has since been granted, it merely remains for the court to determine in accordance with Paragraph 117(3) of the 11. Traunfellner requested that the refer- BVergG whether the decision to disqualify ring Bundesvergabeamt annul the decision was lawful. to disqualify its variant. The request was rejected on 21 April 1998 on the ground that the technical equivalence of the variant was not pertinent. It differed from the prescriptions of the tender document to such an extent that it was no longer an admissible variant. Even if it had been admissible, the referring court explained that it would not have been technically equivalent, as the contracting authority had IV — The questions referred for a prelimi- the right to choose from among different nary ruling technical systems.

Question 2: Can a criterion established in national legislation to determine the admissibility of the acceptance of a "vari- ant" within the meaning of the first para- graph of Article 19 of Directive 93/37/EEC, whereby "the performance of qualitatively equivalent work is ensured" by the variant, properly be regarded as a "minimum Question 4b: If the answers to Questions 3 specification" required and stated by the and 4a are in the affirmative, must a contracting authority in accordance with contracting authority conducting a tender- the first and second paragraphs of ing procedure as described in Question 3 Article 19 of Directive 93/37/EEC, if the reject variants proposed by tenderers with- contract documents refer only to the out examining their contents, at any rate if national provision and do not specify the it has not defined contract award criteria comparative parameters to be used to for assessing the technical differences assess "equivalence"? between the variant and the tender notice?

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nor was it compatible with the meaning of respect, inconsistent with the scheme of the the word 'state' [German: 'erläutern']. This directive. word meant to explain and describe in greater detail, something which the con- tracting authority did not do.

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siderable uncertainty among tenderers procedure was initiated under conditions which prepare speculative variants, as it which have proved unlawful and must were, as well as among tenderers which do consequently cease to be applied. However, not propose variants but have to expect a second possible course of action would be that their tenders will be beaten by a to continue with the tendering procedure. It variant which the contracting authority is however essential in this regard to bear in considers to be equivalent after all the mind that the tendering procedure would tenders have been opened. have to be completed under restrictions which had not been notified previously to the tenderers. The tenderers had submitted variants on the assumption that it was permissible to propose variants that would be examined by the contracting authority for 'equivalence', a criterion which was not 22. In effect, the approach adopted leads to defined further. If it is not possible to apply the introduction of a third, unlawful 'mixed the equivalence criterion as permitted by system' operating between the award of the national legal order, then essential contracts on the basis of price alone and conditions governing the preparation of their award on the basis of the most tenders are altered ex post facto. Such a economically advantageous tender. This departure from the conditions forming the system is, according to the Bundesver- basis of the tender document might be gabeamt, inconsistent with the case-law of regarded as an infringement of the principle the Court. 7Furthermore, the application of equal treatment. 9 of a criterion which depends on a mere reference to national legislation is unlaw- ful. 8

ment of some provisions of Community the contracting authority would then have law, especially as the Community require- to accept a tender which did not meet the ments in question may also be met simply qualitative requirements it had itself spec- by refraining from the application, contrary ified, the contracting authority having had to Community law, of an otherwise unde- no possibility of assessing the qualitative fined 'equivalence' criterion. differences against some kind of yardstick. That would be contrary to the purpose of the directive, as defined by the Court, since the contracting authority would not be able in that case to compare tenders or to choose the tender which it considered the most advantageous on the basis of objective 25. If, on the other hand, the tendering criteria. 10 procedure is to be concluded, it is then necessary to determine the arrangements for the award of the contract. The referring court takes the view that there are two options to consider here; under the first, the contracting authority rejects the variant and awards the contract on the basis of lowest price or most economically advan- V — Arguments of the parties and assess- tageous tender, the only criteria that may ment be applied being those required by the contracting authority. That option would meet the objectives of the directive since, under the system referred to in Article 30 of the directive, the different qualities that may be offered were to be assessed pre- cisely on the basis of contract award A — Admissibility criteria. The fact that differences in quality cannot be assessed on the basis of those criteria make it impossible to compare the tender with those submitted by competi- tors. Where a comparison of this kind is 27. In its written observations the Com- impossible, however, the tender concerned mission disputes the admissibility of the would have to be disqualified in accord- reference for a preliminary ruling. It refers ance with the principles of equal treatment. to the arguments it put forward in Case C-314/01, in which it called into question the capacity of the Bundesvergabeamt as a court or tribunal within the meaning of Article 234 EC on the ground that its decisions are non-binding. However, it retracted that objection at the hearing in 26. It would also be possible, however, to view of the judgment which has since been require the contracting authority to accept the variant and to ignore the associated qualitative differences. However, it would 10 — The Bundesvergabeamt refers to Case C-27/98 Metalmec- canica Fracasso and Leitschutz Handels- und Montage not be advisable to adopt that approach as [1999] ECR I-5697, paragraph 31.

32. The French Government considers that the concept of a variant should be given a broad interpretation. In the tender docu- 29. Traunfellner considers that a variant ment, which forms the basis of the main comes into play where the tender proposed proceedings, concrete had not been defined relates to a new execution method, a as an absolutely necessary technical spec- different design, different material or other ification. Accordingly, asphalt was to be alternatives which ensure that the work is regarded as a variant. performed on a more practical or cheaper basis. Asphalt, it argues, is a technical alternative to concrete. Assessment should therefore be aimed at the technical equiv- alence of the tender, the load-bearing capacity, the transverse flatness and the non-skid quality. 33. The Commission points out that the question referred to the Court involves a 11 — Case C-411/00 Felix Swoboda [2002] ECR I-10567, point of fact that is essentially inadmissible. paragraph 27 et seq. Similarly, Opinion of Advocate General Mischo in Case C-410/01 Fritsch, Chiari & It may be answered only after it has been Partner and Others [2003] ECR I-6413, points 20 to 23. Cf. also Opinion of Advocate General Geelhoed in Case C-315/01 Gesellschaft für Abfallentsorgungs-Technik (CAT) [2003] ECR I-6351, point 22 et seq. 12 — COM (86) 679 final of 23 December 1986.

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reworded. In its view, the question has to Consequently, the first question as it is be construed as seeking to ascertain the currently worded is inadmissible. conditions under which an alternative tender proposal can be regarded as a variant. It answers the question reworded in that manner by explaining that a pro- cedure must be in place where the contract is awarded on the basis of the most 36. The Court of Justice may, however, economically advantageous tender, where supply the referring court with an inter- variants may not be precluded and the pretation of Community law that will proposed tender must meet the minimum enable that court to resolve the legal specifications stated. problem before it. 14 Alternatively, should the Court decide to reword the first ques- tion, the following observations should therefore be made.

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According to the account in the order for gungs-Technik (GAT). In his Opinion of reference, the contracting authority dis- 10 October 2002, Advocate General Geel- qualified the variant at issue on the ground hoed considered that approach to be that it was not equivalent, not on the incompatible with the review directive. 17 ground of its inadmissibility. Strictly speak- A judgment has not so far been delivered in ing, the answer to Question 1 is con- that case. The question must remain sequently irrelevant to the dispute in the unanswered in this case as it has not been main proceedings and could therefore be discussed in the proceedings. regarded as a hypothetical question, which is inadmissible under consistent case-law. 15 The same argument applies to Question 2.

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18 — COM (86) 679 final (cited in footnote 12), p. 43, new Article 20a(2). 22 — Cf. Commission's 'Guide to the Community Rules on 19 — COM (86) 679 final (cited in footnote 12), p. 12. Public Works Contracts', p. 60, point 6.4.1, which can be 20 — COM (88) 354 final of 21 June 1988, pp. 13 and 22, in consulted via the homepage of European Commission DG Article 20a. Internal Market at www.europa/comm/internal_market/ 21 — OJ 1989 L 210, p. 1. en/.

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44. I accordingly propose in the alternative 42(4) of the BVergG must be regarded as a that the answer to the first question minimum specification for the purposes of referred should be that, in the context of Article 19 of the directive. The purpose of an award decision on the basis of the most the work to be performed, which is spec- economically advantageous tender in an ified in the tender document and thus open procedure, a variant within the known by all tenderers, constitutes the meaning of Article 19 of Directive central connecting factor for examining 93/37/EEC comes into play where the equivalence. submission of variants is permitted and where the relevant proposal replaces part of the work specified in the tender document yet at the same time meets the required minimum specifications.

47. Even where the tender document does not mention any criteria, it argues, variants have to be assessed. In such circumstances, the contracting authority simply seeks to ensure the performance of qualitatively equivalent work. C — The second and third questions

49. The Austrian Government points out authority from which information concern- first of all that, as far as it can see, the ing the obligations to be fulfilled in terms of referring court is mixing the two aspects of labour law can be obtained. It argues that minimum specifications within the mean- the reference to a general, published provi- ing of Article 19 of the directive on the one sion can be compared to the above arrange- hand and contract award criteria for the ment. purposes of Article 30 of the directive on the other. It argues that the former aspect concerns the admissibility of a variant and the latter concerns the assessment of admissible tenders. The Commission con- curs with that viewpoint. 52. The French Government and the Com- mission take the contrasting view that a reference to applicable provisions does not — as the Court has consistently held — meet the requirements of transpar- 50. The obligation to lay down minimum ency. 23 specifications existed, according to the Austrian Government, irrespective of whether or not variants were allowed. The minimum specifications had to be stated, meaning that the contracting auth- ority was required to point out those specifications which it considered indis- 53. The French Government considers that, pensable and which it would use as assess- in the main proceedings, the approach ment criteria for examining the equivalence taken has resulted in discrimination against of a tender. tenderers resident outside Austria. Fur- thermore, tenderers intending to submit variants were placed at a disadvantage as they did not know the criteria that would be used to assess their tenders. 51. The Austrian Government also con- siders that where minimum specifications are defined, reference in the tender docu- ment to rules which are of general appli- cation and accessible to the public is permitted. Paragraph 31(2) of the BVergG 54. The Commission adds that the refer- expressly requires that it be stated in the ence to the equivalence of the work is tender documents that they are governed by insufficient where the use of specific the BVergG. Interested tenderers can find materials is required. What is more, criteria out about those rules for themselves. It such as durability and resistance to adds that a reference to applicable provi- deformation must be mentioned. sions reduces the number of texts relating to the tender procedure that have to be published. Moreover, under Article 23 of 23 — The parties refer to the judgments in Beentjes (cited in the directive reference may be made to an footnote 5) and Commission v France (cited in footnote 6).

2. Assessment 58. In Beentjes and Commission v France the Court of Justice held that where the authorities awarding the contract have regard to various criteria with a view to awarding the contract to the most econ- 56. The second question is focused on omically advantageous tender, they are determining whether Paragraph 42 of the required to state those criteria in the BVergG can be regarded, by virtue of a contract notice or the contract documents. reference to that provision in the tender A general reference to a provision of documents, as the establishment of mini- national legislation cannot satisfy the pub- mum specifications within the meaning of licity requirement. 24 Article 19 of the directive where there is a failure to specify the comparative par- ameters to be used to assess the equivalence of the work to be performed. This question can be broken down into two parts: first, 59. Those decisions concerning Article 30 the question whether the reference to a of Directive 93/37/EEC are based on the provision of national legislation meets the principles of transparency and equal treat- transparency requirement, and secondly, ment, both of which are dominant prin- the question whether the rules under Para- ciples within the context of public pro- graph 42(4) of the BVergG can be regarded curement which also form the basis of as minimum specifications within the Directive 93/37/EEC, as is clear from the meaning of Article 19 of Directive 93/37. 10th and 11th recitals in the preamble thereto. The two principles must therefore be observed in the interpretation of Article 19 of the directive. Consequently, a general reference to a provision of 57. The third question aims to determine national legislation is not sufficient to meet whether Article 30 of the directive pre- the requirement to state the minimum cludes a provision of national legislation specifications either. which makes the acceptance of a variant conditional on the criterion requiring that a tender for equivalent work be submitted 24 — Beentjes (cited in footnote 5, at paragraph 35) and Commission v France (cited in footnote 6, at paragraph where, rather than being mentioned in the 73).

64. However, as can be seen from the first 61. Strictly speaking, that response obvi- sentence of the second paragraph of ates the need to answer the second part of Article 19 of the directive, where variants the second question concerning the extent are allowed, the contracting authority must to which the rules laid down in Paragraph state in the tender notice the minimum 42(4) of the BVergG can be regarded as requirements to be met by those variants. 26 minimum specifications. I will comment on That obligation arises from the use of the that matter merely in the alternative, in the mandatory expression 'shall state... the event that the Court adopts a different view minimum specifications'. If the contracting as regards the publicity requirement. authority had been at liberty to decide in this case whether or not to lay down minimum specifications, the expression 'may state... the minimum specifications' would certainly have been used. 62. The concept of minimum specifications within the meaning of Article 19 is not defined in the directive. As I have already pointed out with regard to the first ques- tion, the contracting authority enjoys a margin of discretion in laying down mini- mum specifications. Those specifications 65. This reading based on the wording of relate to features or results which distin- the provision concerned is also consistent guish the work specified in the tender with its spirit. Where variants are per- document and which must be satisfied by mitted, tenderers have to know the criteria the work proposed in the tender. on which basis their proposed tenders are to be assessed by the contracting authority. The assessment is carried out by reference to the minimum specifications which define the contracting authority's expectations

vis-à-vis the work for which it has invited Article 19 of Directive 93/37/EEC, or the tenders. Tenders submitted in the form of award of the contract, as provided for in variants are allowed only if the variants Article 30 of the directive. The principle of meet those specifications, which have been equality of tenderers and the principle of laid down previously (principle of equal transparency apply to both provisions. treatment) and notified in the tender docu- ment (principle of transparency). 2 7A tender document which permits vari- ants — since it does not expressly prohibit them — but does not impose any mini- mum specifications does not, therefore, meet the requirements of Directive 93/37. 67. The rules in Paragraph 42(4) of the BVergG require that the work proposed by the variant be equivalent to the work specified in the tender document. That criterion does not relate to the features or result which distinguish the work put out to tender. On the contrary, it concerns the assessment of the work proposed as com- pared with the work for which tenders have been invited. 66. The objection that it is impossible in practice to state all the criteria in advance because the aspects on which variants will be submitted are as yet unknown must therefore be dismissed. The contracting authority should be able to set out its expectations vis-à-vis the work for which it 68. The equivalence criterion is also con- invites tenders and the specifications under tained in the first paragraph in fine of the individual subheadings, such as the Article 19 which states that account may be load-bearing capacity of a bridge or the taken of variants which '... meet the load-carrying capacity and durability of a minimum specifications required by the road surface. The document inviting contracting authorities'. The Commission's tenders for a works contract should above proposal of 1986 stated that account must all set out the result expected by the be taken of variants where they at least met contracting authority. The assessment the prescribed specifications in terms of whether a tender guarantees that result quality. 28 The wording of that proposal, must be carried out — for proposals con- which was amended as early as in the sistent with the tender document and vari- p r o c e d u r e for a d o p t i n g Directive ants alike — on the basis of objective 89/440ÆEC in favour of the version cur- criteria which must be notified to the rently in force, largely corresponds to the tenderers in the tender document. It is of wording of Paragraph 42(4) of the BVergG. no consequence here whether the criteria That provision states that a variant is govern admissibility, as in the context of allowed only if it '... ensures the perform- ance of qualitatively equivalent work'.

D — The fourth and fifth questions 73. With regard to Question 4a, Traun- fellner and the Commission on the other hand consider that, where the tender docu- ment has not met the requirements of Community law, the contracting authority 1. Arguments of the parties may not conclude the procedure and must initiate a new procedure. Variants may be prohibited, in their view, only subject to very strict conditions.

29 — Cited in footnote 16. 71. Asfinag and the Austrian Government 30 — It invokes the Metalmeccanica judgment (cited in footnote take the view that the fourth and fifth 10).

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74. As to Question 4b, Traunfellner main- before which the dispute has been brought, tains that if the contracting authority has and which must assume responsibility for allowed the submission of variants, it must the subsequent judicial decision, to deter- also allow an assessment of equivalence. In mine in the light of the particular circum- view of the broad possibility of submitting stances of the case whether a preliminary variants, it would be unreasonable for the ruling is necessary to enable it to deliver contracting authority to reject them with- judgment and whether the questions which out examination. In the alternative, Asfinag it submits to the Court are relevant. Con- also supports that conclusion. sequently, where the questions submitted by the national court concern the inter- pretation of Community law, the Court of Justice is, in principle, bound to give a ruling. 31

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action. The referring court has itself of that provision. Using award criteria that observed that the contract for the bridge have not been published in the tender and road construction works has been document while continuing the tendering awarded and the works completed. Thus, procedure would be contrary to those it only remains for the Bundesvergabeamt principles. Advocate General Mischo also to rule on whether the disqualification of reaches that conclusion in his Opinion of Traunfellner's variant from the tendering 27 February 2003 in the case of EVN and procedure was lawful. There is no longer Wienstrom. 34 any need in the main proceedings to resolve the issue of whether and, if so, how the tendering procedure is to be continued. Hence it is quite obvious that Questions 4 and 5 bear no relation to the purpose of the main proceedings and are hypothetical. According to settled case-law, such ques- 82. Question 4b: This question is relevant tions do not require an answer. 33 only if the tendering procedure may be concluded. There is no need to give an answer in the light of the previous con- siderations. It should be stated, simply for the sake of completeness, that variants cannot be assessed if assessment criteria have not been published in the tender document. If they were assessed, however, 80. In the alternative, should the Court that measure would offend against the consider the questions to be admissible, I principles of equal treatment and trans- propose that it answer them as follows: parency.

VI — Conclusion

84. O n the basis of the foregoing considerations I propose that the Court should:

(1) declare Questions 1, 4 and 5 inadmissible, and

(2) answer Questions 2 and 3 as follows:

The reference to a provision of national legislation does not meet the requirement to lay down minimum specifications within the meaning of Article 19 of Directive 93/37/EEC or the requirement to lay down contract award criteria for the purposes of Article 30 of the directive.

The equivalence criterion required to assess the admissibility of a variant is not a minimum specification required by the contracting authority for the purposes of Article 19 of Directive 93/37/EEC.