By notice published on 24 November 2011, Nersant opened a public tendering procedure for the purchase of training and consultancy services. Article 5 of the contract notice stated that the contract would be awarded to the economically most advantageous tender, determined on the basis of the following factors:

A. Evaluation of the team — 40%

(i) This factor will be arrived at by taking into account the composition of the team, its proven experience and an analysis of the academic and professional background of its members.

B. Quality and merits of the service proposed — 55%

(i) Overall assessment of the proposed structure including the work programme — 0 to 20%.

(ii) Description of the technical methods to be used and the implementing methodologies — 0 to 15%.

(iii) Description of the methods for checking and monitoring the quality of the work in the various spheres of activity — 0 to 20%.

C. Overall price — 5%

Preference will be given to the tender achieving the highest number of points.”

Ambisig submitted a tender under the tendering procedure at issue in the main proceedings. In its preliminary report, the selection board for the procedure ranked Iberscal in first place. Ambisig exercised its right to a prior hearing, challenging the fact that the contract notice in question included, in its evaluation criteria, the factor relating to evaluation of the team assigned to performance of the contract. The selection board dismissed the arguments put forward by Ambisig stating that the purpose of the factor in Article 5(A) of the contract notice at issue in the main proceedings is to evaluate ‘the specific technical team which the tenderer proposes assigning to the work to be carried out’ and ‘the experience of the proposed technical team is, in this specific case, an intrinsic characteristic of the tender and not a characteristic of the tenderer’.

Ambisig brought proceedings before the Tribunal Administrativo e Fiscal de Leiria (Administrative and Tax Court, Leiria) seeking the annulment of the decision awarding the service contract to Iberscal. Following a number of appeals, the Supremo Tribunal Administrativo decided to stay the proceedings and to refer a number of questions to the Court of Justice EU (CJEU) for a preliminary ruling.

Consideration by CJEU

It should be noted, in relation to the interpretation of Article 53(1)(a) of Directive 2004/18, that the Directive introduced new elements into EU legislation on public procurement in relation to Directive 92/50.

First of all, Article 53(1)(a) of Directive 2004/18 provides that ‘the tender most economically advantageous’ is to be identified ‘from the point of view of the contracting authority’, thereby giving the contracting authority greater discretion in its decision-making.

Secondly, the third paragraph of recital 46 in the preamble to Directive 2004/18 states that, where the contracting authorities choose to award a contract to the most economically advantageous tender, they are to assess the tenders in order to determine which one ‘offers the best value for money’, which tends to reinforce the importance of quality in the award criteria for public contracts.

Furthermore, Article 53(1) of Directive 2004/18 does not set out an exhaustive list of the criteria which may be used by the contracting authorities in determining the economically most advantageous tender, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract. Their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous. To that end, Article 53(1)(a) of Directive 2004/18 specifically requires that the award criteria be linked to the subject-matter of the contract.

The quality of performance of a public contract may depend decisively on the ‘professional merit’ of the people entrusted with its performance, which is made up of their professional experience and background. This is particularly true where the performance of the contract is intellectual in nature and, as in the main proceedings in the present case, concerns training and consultancy services. Where a contract of this nature is to be performed by a team, it is the abilities and experience of its members which are decisive for the evaluation of the professional quality of the team. That quality may be an intrinsic characteristic of the tender and linked to the subject-matter of the contract for the purposes of Article 53(1)(a) of Directive 2004/18.

Consequently, that quality may be included as an award criterion in the contract notice or in the relevant tendering specifications.

The CJEU held that:

With regard to procurement contracts for the provision of services of an intellectual nature, training and consultancy, Article 53(1)(a) of Directive 2004/18/EC does not preclude the contracting authority from using a criterion enabling evaluation of the teams specifically put forward by the tenderers for the performance of the contract and which takes into consideration the composition of the team and the experience and academic and professional background of the team members.

 Why is this decision important?

When preparing a tender for a public contract, the selection of the members of the team is of great importance, particularly if the performance of the contract is intellectual in nature. This decision underlines the need for employers to select a team with great care and attention to the needs of the contracting authority.