2014/95 Harstad municipal authority – 2080.no

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The case concerns the legality of using a specific point calculation model in evaluating the tenderers' prices when awarding the contract to the most economically advantageous tender. The Complaints Board found that the application of a specific relative point calculation model could not be ruled illegal as such, but that the circumstances of the case rendered it illegal.

The municipality of Harstad conducted an open procedure for the procurement of kitchen supplies. The complainant, 2080.no, claimed that the contracting authority had infringed provision § 13‑2 in the Norwegian procurement regulation (implementing directive 2004/18/EC article 53), by using a specific point calculation model for the price criterion that was not known to the tenderers in advance.

The point calculation model entailed that the lowest price offer would attain a score of 10 points. The points awarded to the other tenders were calculated by dividing the lowest price with the price of the evaluated tender, and multiplying this with the maximum score of 10 points. According to this relative scoring method, all tenders except the lowest therefore receive scores in inverse proportion. The tenderers were not informed in the tender documents that this point calculation model would be used.

The Complaints Board (KOFA) held that a contracting authority is not, as a rule, obligated to state the point calculation model in the contract notice or other tender documentation. However, the contracting authority does not enjoy an unrestricted freedom of choice in choosing which point calculation model to apply. To establish the obligations and limitations of the contracting authority's choice in this regard, the Board discussed a range of EU case-law, including the Court of Justice's decisions in C-331/04 (ATI), C-19/00 (SIAC), T-4/01 (Renco), C-252/10 (Evropaïki Dynamiki v. EMSA), C-532/06 (Lianakis) and the General Court's decision in T-402/06, as well as former cases from the Complaints Board. In light of the fact that the value of the contract was below the thresholds in directive 2004/18/EC, the Board also considered the CJEU's decision in C-226/09 (The Commision vs. Ireland). In this decision, the CJEU has established a similar test to the ATI-criteria for contracts not covered by the directive. KOFA found that this test was applicable in assessing the lawfulness of the point calculation model in question.

A consequence of using the point calculation model in question is that price differences from the lowest tender has a decreasingly smaller impact in the awarded points (e.g. double price means 50 % of max score, quadruple price means 25 % of max score). The model, KOFA held, is not on this basis alone, illegal to use. In the present case, however, where the contracting authority chose not to make the method known to the tenderers beforehand, and where the price criterion had a weighting of 60 %, the actual price differences were not reflected in the tenderers' scores on this criterion. Under these circumstances, the contracting authority's use of the model was found to constitute an infringement of the procurement regulations.