(1M7) 1987 January10 URIANTAFYLLIDES, Ρ] INTHEMATTEROFARTICLE 146 OFTHECONSTITUTION GEORGE Ρ ZACHARIADESLTD , Applicants, υ THEREPUBLICOFCYPRUS, THROUGH 1 THE DEPARTMENTOF WATERDEVELOPMENT, 2 THE CHAIRMAN OF THE TENDER BOARD, Respondents (CaseNo 809/86) Acts or decisions inthe sense ofArticle 1461 of the Constitution—Tenders— Award of contract—Administratee action inthe realm of public law con cluded bysuchanaward—Steps tobetakenpursuant totheawardare within the domain ofpnvate law and therefore, notwithinthe ambit of theJurisdic tion under Article1461 The applicants who are seeking the annulmentof the decision, whereby the tenderofthe interested party in respect ofthe «Southern Conveyor Pro ject ContractC5(A) No 39/84/73- wasaccepted, applied fora provisional order suspending all further actionby therespondentsin finalizing the award and restraining them from taking any further steptofinalize therelevant contract or from entenngintoitwith the interested party 5 ™ It is common ground that though the tender of the interested partywas accepted the relevant contracthas notyet been executed Held dismissingthe application (1ΐ Inthelight ofthecase law theadminis trative action inthe realm ofpublic lawwas concluded bythe award ofthe 1 5 contracttotheinterestedpartyandthestepstobetakenpursuanttothe award come within the realm of private lawand are outside the junsdicOon under Article 146ofthe Constitution 12)As therefore,thematterstowhich theapplicationrelatesareoutsidethe 68 3 CX.R. Zachariades Ltd v. Republic saidJurisdiction,the applicationhas to be dismissed Application dismissei No orderas tocosts Casesreferredto 5 Medcon Construction ν TheRepublic
(1976)3 C LR 535 Kounnas and Sons ν TheRepublic
(1972)3 C LR 542, Matsoukasv TheRepublic
(1984)3 C LR 1443 Decisions1265/64 and 1296/65 of the Creek Councilof State Applicationfor interimorder. 10 15 Application for an order of the Court suspending all furthei action by respondents in finalizing the award of the tender of tht interested party in respect of the «Southern Conveyor Projec Contract C5(A) No 39/84/73* G Cacoyiannis withΡ Mouaimis for the applicants A Evangelou, Senior Counsel of the Republic for tin respondents T. Papadopoulos, for the interested party Cur adv vuh TRIANTAFYLLIDES Ρ read the following decision The anp ι 20 cantshave filed on the23rd December 1986 thepresentrecoup* by meansofwhich theyareseeking, ineffect theannulmentolth· decision—which was notified to applicants counsel on the 18tl December 1986—to accept, in respect of the «Southern Con veyor Project Contract C5(A) No 39/84/73» the tender of th. 25 interested party instead of thatof the applicants Thisrecourse isinextricably related toan earlier recourse ofthapplicants, No 793/86, which was filed on the 17th Decembt 1986, andby meansofwhich theyare.ineffect, seeking theannul ment of the decision to accept the aforementioned tender of th 30 interestedpartyas valid On the 23rd December 1986 when the present n»t n-r^e \. 809/86, was filed,therewas also hleub theapplicant*anapplica tion for a provisional order suspen^m·: >'l fur.Tier action Κ th respondents m finalizing the au^id of th. --aid contian to th TriantafylUdes P. ZachariadesLtdv.Republic
(1987)interested partyand restrainingthem from takinganyfurther steps tofinalize such contract orfrom enteringintoitwiththe interested party. This application was served on the respondents and the interested partyand,whenitcameupbeforethisCourtforhearing 5 on the 2nd of January 1987, counsel for the respondents and for theinterestedpartyraisedthepreliminaryobjectionthatthisCourt does not possess jurisdiction to make the provisional order applied forasitrelatestomatterswithinthedomainofprivate,and notof public,law,which,therefore, do notcomewithintheambit 10 of the jurisdiction of thisCourt under Article 146ofthe Constitution. Asitappearsfrom thematerialbefore meaMinisterialCommittee decided on the 9th December 1986toaccepttheproposalof respondent 2,whoisthe Chairman oftheTender Board,toaward the contract inquestion totheinterested party. Thisdecision was communicated to the interested party by means of a letter of 15 respondent 1dated the 17th December 1986. itiscommon ground thatsuch contract hasnotyetbeen finally executed. Itis,also,not disputed thattheprocessleadinguptothe award of the relevant contract to the interested party is a composite 20 administrative action in the realm of public law, but that any action- which is to be taken after the execution of the contract wouldbe inthe realm of privatelaw. What is in dispute is whether the steps to be taken after the awardofthecontractandleadinguptoitsexecutionarewithinthe 25 realm of private law or are a continuation of the aforementioned composite administrative action and are, therefore, within the realm of public law. In the light of case-law such as Medcon Construction v. The Republic,
(1968)3 C.L.R. 535, 545, Kounnas and Sons Ltd. v. The Republic,
(1972)3 C.L.R.542, 546 and Matsoukas v. The Republic,
(1984)3C.L.R.1443,1452,1453,1amoftheviewthat, in the present instance, the administrative action in the realm of public taw was concluded by the award of the contract to the interested party and that the steps to be taken pursuant to such award come within the realmsof private law,and are outside the ambitofthejurisdiction ofthisCourtunderArticle146oftheCon70 30 35 3 C.L.R. Zachariades Ltdv. Republic Triantafyllldes P. stitution Iam reinforced in thisview bythe decisions of the Councilof State in Greece in cases No 1265/1964 and 1296/1965.and itis to be observed, in relation tothe reference in the decision of the 5 Council of State in Greece incase 1265/1964 to Articles83 and 86 of the Greek Constitution of 1952, that the junsdiction of the Council of State under Article 83(c) of the Greek Constitution of 1952 (to which corresponds Article 95
(1)(a) of the Greek Constitution of 1975) is analogous to the junsdiction of this Court 10 underArticle 146ofourConstitution, whereasthisCourtdoesnot possessthetunsdictiontodealwiththesubstance ofan administrativedisputeasenvisagedbyArticle86oftheGreekConstitutionof 1952 (towhich corresponds Article 94 of the Greek Constitution of 1975) 15 I am, therefore, of the opinion that the matters to which the application for aprovisional order relatesareoutside the ambitof thejunsdiction of thisCourt under Article 146and for this reason theapplication fora provisional orderhastobe dismissed InconcludingIshouldobservethattheissueofthevalidityofthe 20 tenderoftheinterested party,aswellastheissueofwhetherornot there was actually reached a final agreement as between theGovernment and the interested party in respect of such tender, are issueswhicharenotrelevanttothemattersinrelation towhichthe provisional order hasbeen sought, but they might be found to be 25 relevant tothevalidityofthedecision toaward the contract tothe interested party, which is challenged by means of the present recourse and which iswithin thedomain of publiclaw I shallnot makeany orderastothe costsofthepresent applica non fora provisional order 3® Application forprovisional orderdismissed No orderascosts 71