Summary

In a public procurement, a contracting authority cannot be solely guided by the goal of procuring service on the most favourable conditions, but care must also be taken to promote market development and competition by the acts of the contracting authority. The mutual competition of any other conditions besides the price competition is made possible by the criterion of the most economically advantageous tender. The European Court of Justice has expressed its opinion that the widest possible opening-up to competition is contemplated by Community law not only from the point of view of the Community interest in the free movement of goods and services but also the interest of the contracting authority concerned who has thus a greater choice as to the most advantageous tender which is most suitable for the needs of the public. The wording of §31 (3) of the Public Procurement Act indicates that a contracting authority must prefer the very criterion of the most economically advantageous tender. Regardless of that, the organisation of tenders is contrary to that. Out of the 5943 public procurements announced in 2010, only in 14.5% of the cases procurement contracts were entered into based on the most economically advantageous tender.

The article examines the difference between the most economically advantageous tender and the tender with the lowest price and the general requirements for the content of the most economically advantageous tender as an evaluation criterion. It also examines the question of whether the application of conditions regarding qualification as an evaluation criterion is permissible or not.