Most Economically Advantageous Tender
The culmination of public procurement procedures should be the determination in an objective fashion of the winning bid and the award of the contract. Contracting authorities must award public contracts on the basis of the most economically advantageous tender or the lowest price.
The most economically advantageous tender takes account of issues of
- technical merit,
- functional characteristics,
- environmental characteristics, running costs,
- after-sales service,
- technical assistance,
- delivery date,
- period of completion.
The above are not exhaustive.
Weighting and Criteria
The authority must specify in the notice or in the contract documents or in the case of a competitive dialogue the description documents, the relative weighting given to each of the criteria to determine the most economically advantageous tender. They may be expressed by providing a range with a maximum spread. Where weighting is not possible for objective reasons, the contracting authority must notify in the above documentation the criteria in descending order of importance.
A flexible and wide interpretation has been given by the courts to the concept of the most economically advantageous tender. Factors that are not relevant to determining the most economically advantageous offer by reference to objective criteria are not compatible with the directive.
In some cases, the courts have recognized that social policy considerations including combating long-term unemployment may be legitimate criteria. Environmental and ecological criteria are prospectively permissible. However, they must not discriminate and must not be disguised barriers. They must be clearly indicated in the documentation.
The criteria chosen must relate to the contract and make it possible to determine the most economically advantageous tender. The criteria must be linked to the subject matter of the contract and have effects that can be objectively measured, quantifiable with economic level and capable of guiding the discretion of the authority on an objective basis without introducing an arbitrary element.
The criteria to determine the most economically advantageous tender must be applied in conformity with the procedural rules laid down in the legislation. The criteria must be mentioned in the contract documents or tender notice where possible, in descending order of importance. Operators must be in a position to be aware of their existence and scope.
Authorities may take account of variants that are submitted by a tenderer and meet minimum specifications. The authorities must state the minimum specifications to be respected by the variations and specific requirements for their presentation. If variants are not permitted, this must be specified in the notice.
Authorities may not reject a variant on the grounds that it has been drawn up with technical specifications defined by reference to national standards transposing EU standards, to EU technical standards or common technological standards referred to in the public procurement directive.
Where submissions of variants are permissible, the authority must set out in the contract documents the minimum specifications with which those variants may or must comply. The obligation of transparency is designed to ensure compliance with equal treatment.
When the lowest price is the award criteria, the authority must not refer to any other consideration when deciding the award. An authority may reject the price where it is abnormally low. Where an abnormally low tender appears to have been made, the authority must request in writing details of constituent elements which it considers relevant before rejecting it.
The clarification must relate to the
- the economic aspects
- the construction method,
- the manufacturing process or service,
- the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the work or services.
- the originality of the work supplies or services
- compliance with employment and other legislation
- the possibility of the tender obtaining state aid.
Where the tender is abnormally low because the tenderer has obtained state aid, it can be rejected on this ground alone only after consultation with the tenderer where the latter is unable to prove that the aid was granted legally.
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