BAM Civil Ltd v The Department for Infrastructure

(b) Phase 1: ground investigation, archaeological evaluation design, development and preparation of the "Target".

• The award of public contracts by or on behalf of Member States' authorities has to comply with the principles of the Treaty on the Functioning of the European Union ("TFEU") and in particular the free movement of goods, freedom of establishment and freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency (recital 1).

• The notion of award criteria is central to this directive. It is therefore important that the relevant provisions be presented in as simple and streamlined a way as possible. This can be obtained by using the terminology 'most economically advantageous tender' as the overriding concept, since all winning tenderers should finally be chosen in accordance with what the individual contracting authority considers to be the economically best solution amongst those offered (recital 89).

• Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment with a view to ensuring an objective comparison of the relative values of the tenders in order to determine, in conditions of effective competition, which tender is the most economically advantageous tender (recital 90).

• To ensure compliance with the principle of equal treatment in the award of contracts, contracting authorities should be obliged to create the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied in the contract award decision. Contracting authorities should therefore be obliged to indicate the contract award criteria and the relevant weighting given to each of these criteria (recital 90).