Source: All England Reporter
Publisher Citation: [2005] All ER (D) 336 (Nov)
Court: Court of Justice of the European Communities (Second Chamber)

Judges Timmermans (President of Chamber), Gulmann (Rapporteur), Schintgen, Arestis and Kluka

Judgment Dates: 24 November 2005


European communities - Public procurement - Services - Weighing of criteria for award of tender - Jury weighing criteria after bids submitted - Whether jury permitted to attach specific weight to criteria not published in advance - Council Directive (EEC) 92/50, art 36 - Council Directive (EEC) 93/38, art 34 .

The Case

Article 34 of Council Directive (EEC) 93-38 and art36 of Council Directive (EEC) 92-50 did not preclude a jury from attaching specific weight to the subheadings of an award criterion which were defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contractual documents or notice were prepared, provided that the decision (i) did not alter the criteria for the award of the contract set out in the contractual documents or the contract notice; (ii) did not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and (iii) was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

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