Evropaiki Dynamiki v Commission (Public service contracts) [2012] EUECJ T-236/09 (15 March 2012)

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(Public service contracts - Tendering procedure - External service provision for development, studies and support of information systems - Rejection of a tenderer's bids - Obligation to state reasons - Equal treatment - Transparency - Manifest error of assessment - Non-contractual liability)

1 The applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company incorporated under Greek law, operating in the field of information technology and communications.

2 By a contract notice of 11 December 2007, published in the Supplement to the Official Journal of the European Union (OJ 2007 S 238), under reference RTD-R4-2007-001, Directorate-General (DG) Research of the Commission of the European Communities launched a call for tenders for all the Directorates-General involved in research concerning 'external service provision for development, studies and support of information systems' ('the call for tenders at issue'), consisting of four lots, including lot 1, 'On-site development expertise (intra-muros)', lot 2, 'Off-site development projects (extra-muros)', and lot 3, 'Quality, audit, security, requirements analysis, specific studies and enterprise architecture'. The purpose of the call for tenders at issue was to select three tenderers per lot. The tender specifications relating to the call for tenders at issue provide that for each lot a number of framework contracts may be signed with the successful tenderers and that the duration of the framework contracts is two years, renewable twice for periods of one year.

3 Section 6 of the tender specifications provides first of all for an exclusion phase and a phase involving the selection of tenderers on the basis of their financial, economic, technical and professional capacity. Section 6.3 of the tender specifications then provides for a phase of evaluation of offers, according to the following procedures:

4 Last, point 6.4 of the tender specifications provides for the award phase, according to the following procedures:

5 The tender specifications also contain a questionnaire for each lot. For each lot the questionnaire provides, in respect of the technical evaluation:

6 On 28 February 2008 the Commission sent the applicant a document entitled 'Questions and answers' containing a consolidated list of all the questions and answers concerning the call for tenders at issue.

7 On 17 March 2008 the applicant, as leader of a consortium consisting of itself and four other companies, submitted a tender in response to the call for tenders at issue for lot 1. On the same date, as leader of a consortium consisting of itself and five other companies, the applicant submitted a tender in response to the call for tenders at issue for lot 2. The applicant also submitted a tender for lot 3.

8 By three letters dated 26 November 2008 and by e-mails of 3 December 2008, the Commission requested the applicant to agree to extend the validity of its offer in respect of lots 1, 2 and 3 until 31 March 2009.

9 By letter of 4 December 2008, the applicant requested the Commission to justify that request for extension and to inform the applicant whether, if one of the tenderers should refuse to extend the validity of its tender, the Commission would cancel the tendering procedure at issue or would continue the procedure with the remaining tenderers. The applicant also asked the Commission what legislation was applicable in such a situation. By letter of 9 December 2008 the applicant stated that it would not communicate its position on the request to extend the validity of its tender until it had received an answer to the points mentioned in its letter of 4 December 2008.

10 By letter of 19 December 2008 the Commission explained that the request for extension of the validity of the tenders was attributable to the large number of tenders received in response to the call for tenders at issue. It stated that the deadline by which the applicant should provide its answer to the request for an extension was 9 January 2009. The Commission also stated that it did not intend to cancel the tendering procedure but that its final decision would be taken, in compliance with the applicable law, when it had received the answers of all the tenderers.

11 By letter of 8 January 2009 the applicant reminded the Commission that it had not received an answer to the inquiries raised in its letter of 4 December 2008. The applicant expressed its fear that the 'evaluation process' would not be fair and stated that for that reason it did not wish the procedure to be extended and that, in its view, pursuant to the relevant legislation and to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) ('the Financial Regulation'), if it refused to extend the validity of its tender the call for tenders at issue would have to be cancelled. The applicant stated that if the Commission considered that it should continue with the procedure even if one of the tenderers did not wish to do so, the Commission should consider that the applicant agreed to extend the validity of its tender.

12 By letter of 12 January 2009, the Commission replied that it took note of the applicant's agreement to extend the validity of its tender. The Commission informed the applicant that all the other tenderers had also agreed to extend the validity of their tenders until 31 March 2009 and that, consequently, the prospect of cancelling the procedure if one tenderer refused to extend its tender had become purely hypothetical and there was no need to discuss it further.

13 By letter of 22 January 2009, the applicant reminded the Commission that it had not responded in a timely manner to the applicant's inquiries concerning the consequence of a refusal to extend the validity of its tender and that it had agreed to extend the validity of its tender only under pressure from the Commission. The applicant stated that, if the Commission agreed that if one tenderer did not want to extend the validity of its tender then the whole procedure should be annulled, it withdrew its tender. The applicant also stated that it considered that a person at the Commission was in a situation of conflict of interests, and that DG Research should use the ESP-DESIS contract and not enter into its own framework contracts.

14 By letter of 19 March 2009 to the European Anti-Fraud Office (OLAF), the applicant stated that it had received on that date an anonymous telephone call informing it that the Commission had decided to award lot 3 of the call for tenders at issue to the applicant and requesting it not to challenge the forthcoming results of the tendering procedure. The applicant thus drew OLAF's attention to the fact that that person was aware of confidential information (namely the fact that the applicant had lodged a complaint concerning the procedure, the results of the evaluation of the tenders before they were published, etc.) and that a third party, claiming to be acting in the interests of the Commission, was attempting to distort a public procurement procedure.

15 By a first letter of 27 March 2009, the Commission informed the applicant that its tender relating to lot 1 had been rejected on the ground that its tender had not obtained one of the three best scores following the quality/price ratio calculation. The Commission stated that the applicant's tender had received a quality/price ratio score of 1.69, whereas the three best tenders had received scores of 2.05, 1.72 and 1.71, respectively.

16 By a second letter of 27 March 2009, the Commission informed the applicant that its tender relating to lot 2 had been rejected on the ground that its tender had not obtained one of the three best scores following the quality/price ratio calculation. The Commission stated that the applicant's tender had received a quality/price ratio score of 2.51 whereas the three best tenders had received scores of 4.78, 3.59 and 3.57, respectively.

17 By a third letter of 27 March 2009, the Commission informed the applicant that its tender had received the best score for lot 3 and that a corresponding award decision had been taken.

18 By letter of 27 March 2009, the applicant requested the Commission to send it additional information concerning the reasons for the rejection of its tender and the relative advantages of the successful tender.

19 The Commission responded to that request by two letters of 3 April 2009, regarding lot 1 and lot 2, respectively.

20 By letter of 3 April 2009 the applicant sent the Commission a number of observations challenging the award of lots 1 and 2 to the successful tenderers and requesting it therefore to annul the award of those lots.

21 By letter of 29 April 2009, the Commission replied to the applicant's observations and informed the applicant that it did not propose to suspend the signing of the contracts with the successful tenderers for lots 1 and 2

22 Following an exchange of letters, the Commission sent the applicant confirmation, by letter of 27 May 2009, that its request for suspension of signature of the contracts with the successful tenderers for lots 1 and 2 had been rejected.

23 By application lodged at the Court Registry on 8 June 2009, the applicant brought the present action.

24 The parties presented oral argument and replied to the questions put by the Court at the hearing on 10 November 2011.

27 The Commission contends that the action brought by the applicant as a representative of the consortia which submitted the tenders for lot 1 and lot 2 is inadmissible because the applicant does not have an express power of attorney ad litem from all the other members of the consortia to represent them in the present proceedings. The Commission does not, however, dispute the applicant's right to bring an action in its own name against the contested decisions.

28 It should be noted that, since the tenders of the consortia tendering for lots 1 and 2, led by the applicant, were rejected, those consortia were never set up. The applicant cannot therefore claim to act on behalf of those consortia. Nor, moreover, can it claim to act on behalf of all the companies comprising them. The applicant provided powers of attorney given by only three companies, annexed to the reply, whereas the consortia were made up of five different companies. The applicant is not therefore permitted to act in the present proceedings either on behalf of those consortia or on behalf of all the companies that are members of those consortia.

29 It must be held, however, that since the contested decisions are addressed to the applicant and the latter has lodged the application in its own name, the action is admissible in so far as the applicant acts in its own name.

30 As a preliminary point, the applicant challenges the entire tendering procedure at issue.

31 The Commission contends that the applicant's arguments for the annulment of the tendering procedure as a whole are inadmissible because those arguments are at odds with the applicant's earlier conduct, since in signing the contract for lot 3 of the call for tenders at issue it had confirmed that the tendering procedure as a whole was lawful and in compliance with the Financial Regulation and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) ('the Implementing Rules').

32 It should be noted that, by its first head of claim, the applicant seeks annulment only of the Commission's decisions rejecting its tender for lots 1 and 2 and the further decisions. The context of the present proceedings is therefore limited to the decisions concerning those two lots.

33 It is therefore necessary to understand the applicant's arguments for the annulment of the entire tendering procedure at issue as relating solely to the procedure which led to the award of lots 1 and 2.

34 The Commission cannot claim that by signing the contract relating to the award of lot 3 the applicant acknowledged the validity of the procedure for awarding the contracts at issue and, as a result, implicitly refrained from seeking annulment of the contested decisions relating to lots 1 and 2 on the ground that the procedure was unlawful. No legal consequences with regard to the applicant's right of appeal may be drawn from the signature of the contract for lot 3.

35 Consequently, the Commission's arguments concerning the inadmissibility of the applicant's contention that the entire tendering procedure at issue should be annulled must be rejected.

36 In the first place, the applicant claims that Article 130(2)(c) of the Implementing Rules does not allow the Commission to extend the validity of tenderers' bids beyond the deadlines stated in the tender specifications without the tenderers' free consent.

37 It should be noted that Article 130(2)(c) of the Implementing Rules provides that '[t]he invitation to tender or to negotiate or to take part in the dialogue shall at least: ... specify the period during which a tender will remain valid and may not be varied in any respect'. That provision creates an obligation for the contracting authority to state in the call for tenders a period during which tenders will remain valid and an obligation on tenderers not to vary the terms of their tenders during that period.

38 That provision does not, however, preclude the contracting authority from requesting tenderers to extend the validity of their tenders beyond the deadline provided for in the tender specifications. Nor, contrary to what the applicant claims, is it apparent from that provision that the Commission was obliged to cancel the tendering procedure in the event of a tenderer refusing to extend the validity of its tender.

39 Furthermore, the applicant cannot claim that the Commission required tenderers to extend the validity of their tenders. It is apparent from the exchanges of correspondence between the applicant and the Commission, cited in paragraphs 8 to 12 above, that the Commission asked the applicant whether it wished to extend the validity of its tender until 31 March 2009 or whether it wished to withdraw its tender, the period of validity of which was nearing expiry. The applicant was free to choose whether or not to agree to extend the validity of its tender, depending on whether it was in its interest to do so and, in particular, as it states itself in the application, whether or not it was in its financial interest to maintain its tender, in view of the specific conditions of the market. The fact that the Commission stated that it did not intend to cancel the tendering procedure in the event of a tenderer refusing to extend the validity of its tender does not mean that the applicant was under pressure to agree to the request for extension.

40 As regards the applicant's argument that the principles of transparency, good administration and equal treatment among tenderers preclude a contract being signed when one or more tenders are no longer valid, suffice it to say that the purpose of the period of validity of tenders is to ensure that a tenderer does not vary his tender during the evaluation stage. Contrary to what the applicant claims, it is not a condition sine qua non for the signature of contracts at the end of the award procedure. In the present case, the decisions to award the contracts were taken on 27 March 2009, that is to say, within the period of validity of the tenders. Moreover, the applicant merely states that signing the contract when one or more tenders are no longer valid is a breach of the principles of transparency, good administration and equal treatment, but does not explain in what way that constitutes a breach.

41 In the second place, the applicant claims that the fact that it was contacted, by telephone, by an unidentified person claiming to be acting on behalf of the Commission, announcing to it the results of the call for tenders at issue and asking the applicant not to exercise its right of appeal so as to avoid the cancellation of the tendering procedure, constitutes a serious breach of the provisions of the Financial Regulation.

42 It should be noted, first, that the applicant asserts there was a breach of the provisions of the Financial Regulation but does not state which provision was infringed. Secondly, as that argument is no more than a mere, unsubstantiated, assertion, the applicant has not shown that the alleged telephone call was made by the Commission.

43 In any event, the applicant has not demonstrated in what way, assuming it did take place, that telephone call is likely to affect the validity of the award procedure and the lawfulness of the contested decisions.

44 Thirdly, the applicant argues that the Commission infringed the principle of good administration by organising the call for tenders at issue, which relates to services identical to those covered by the ESP-DESIS contract.

45 According to settled case-law, the guarantees conferred by the European Union legal order in administrative proceedings include, in particular, the principle of good administration, involving the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see Joined Cases T-376/05 and T-383/05 TEA-CEGOS and STG v Commission [2006] ECR II-205, paragraph 76 and the case-law cited).

46 It must be held that the applicant has not demonstrated how, assuming it were established, the fact that there is already an earlier framework contract relating to services identical to those covered by the call for tenders at issue constitutes a breach of that principle. Moreover, as noted by the Commission, that fact is not such as to call into question the lawfulness of the procedure for the award of the contract concerned.

47 It is apparent from the foregoing that the applicant has not demonstrated the existence of an irregularity that must result in the cancellation of the entire procedure leading to the award of lots 1 and 2.

48 In support of its claim for annulment of the contested decision relating to lot 1 and the contested decision relating to lot 2, the applicant puts forward several pleas for a finding that the Commission ought to have excluded some of the successful tenderers from the call for tenders at issue. Those individual pleas are combined into a first plea alleging that the Commission ought to have excluded some of the successful tenderers from the call for tenders at issue. The two pleas alleging the existence of manifest errors of assessment, concerning lot 1 and lot 2, respectively, will also be combined into a second plea, alleging the existence of manifest errors of assessment.

First plea: the Commission ought to have excluded some of the successful tenderers from the call for tenders at issue

49 By a first part of the first plea, concerning lots 1 and 2, the applicant claims that the Commission infringed Article 93(1) and Article 94 of the Financial Regulation and also the principles of good administration and equal treatment of tenderers by not excluding from the call for tenders at issue a company that was a member of the first consortium selected for lot 1 and selected (with another company) as the first contractor selected for lot 2, although that company had been declared to be in serious breach of its contractual obligations.

50 It should be noted that, under Article 94 of the Financial Regulation, contracts may not be awarded to tenderers who, during the procurement procedure for that contract, find themselves in one of the situations of exclusion, referred to in Article 93(1) of the Financial Regulation, from the procurement procedure for that contract. Under Article 93(l)(f) of the Financial Regulation, tenderers are to be excluded from participation in procurement procedures if they are currently subject to an administrative penalty as referred to in Article 96(1) of that regulation. That provision states that the contracting authority may impose administrative or financial penalties on contractors who have been declared to be in serious breach of their obligations under contracts covered by the budget.

51 It is thus clear from the Financial Regulation that the fact that a tenderer has been declared to be in serious breach of its obligations in the context of another contract does not automatically lead to the adoption of administrative penalties. It is only if the contracting authority decides to impose an administrative penalty on it on the basis of Article 96(1) of the Financial Regulation that a tenderer is to be excluded from participating in tendering procedures under Article 93(1)(f) of the Financial Regulation. Moreover, it should be pointed out that Article 134b of the Implementing Rules provides only that tenderers who have been declared to be in serious breach of their contractual obligations may be excluded from procurement procedures.

52 It should be noted, therefore, that the applicant's arguments are based on a misreading of Article 93(1)(f) of the Financial Regulation and on a misinterpretation of Article 134b of the Implementing Rules. Moreover, in the present case, it is not apparent from the documents before the Court that a company that is a member of the consortium selected for lot 1 and selected (with another company) as the first contractor for lot 2 has been the subject of administrative penalties.

53 The first part of the first plea must therefore be rejected as unfounded without it being necessary to consider whether the applicant's assertions that a company which is a member of the consortium selected for lot 1 and selected (with another company) as the first contractor for lot 2 has been declared to be in serious breach of its contractual obligations in the context of an earlier contract, and committed a serious breach of its obligations in the context of two other contracts, are well-founded.

54 By a second part of the plea, concerning lot 2, the applicant argues that the Commission ought not to have allowed undertakings which are established in a country that is not a signatory to the Agreement on Government Procurement (OJ 1996 C 256, p. 2) contained in Annex 4 to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3) or undertake work as subcontractors in countries that are not signatories to the Agreement on Government Procurement to participate in the tendering procedure or, at least, it ought to proceed in a fair, transparent and non-discriminatory manner, clarifying the selection criteria used for excluding certain companies or accepting others.

55 First of all, it should be noted that Articles 106 and 107 of the Financial Regulation, referred to by the applicant, merely lay down an obligation for the Commission to allow undertakings established in countries that have ratified the Agreement on Government Procurement or in countries which have with the European Communities a special agreement in the field of public procurement to participate in calls for tenders. Those articles do not prohibit undertakings established in countries that have not signed the Agreement on Government Procurement or undertakings which use sub-contractors established in such countries from participating in calls for tenders issued by the Commission.

56 Further, the applicant contends that the Commission's answers to Questions 6 and 33, contained in the document entitled 'Questions and answers' referred to in paragraph 6 above, which state that the Commission could consider accepting, on a case-by-case basis, bids from tenderers which are not established in countries which are signatories to the Agreement on Government Procurement infringe the principles of transparency, equal treatment and good administration since those answers would imply the use of a selection system and criteria not covered in the tender specifications.

57 However, it should be pointed out that in the present case the answers contained in the document entitled 'Questions and answers' which are referred to in paragraph 56 above, were sent to all the tenderers before the end of the period for the submission of tenders. The latter were therefore in possession of the same information for preparing their bids. In those circumstances, that argument alleging infringement of the principles of transparency and equal treatment cannot be accepted.

58 In any event, such an argument is ineffective since none of the members of the applicant's consortium and none of the companies selected for lot 2 is established in a country that is not a signatory to the Agreement on Government Procurement. The answers to Questions 6 and 33 did not therefore have any influence over the conduct and result of the call for tenders at issue. In that regard, the applicant's argument alleging infringement of the principle of equal treatment is based on the mere supposition that the Commission would have excluded its bid if the consortium of which it is a member included a company established in a country that was not a signatory to the Agreement on Government Procurement and must be rejected.

59 Lastly, as regards the applicant's argument that a comparative examination of the person-day rates of the experts proposed for lot 1 and lot 2 show that the Commission favoured the 'three winning tenderers' for lot 2, which transfer their production work to countries which are not signatories to the Agreement on Government Procurement, is based on mere unsubstantiated assertions, since the applicant could not take as evidence the data contained in the bids of the successful tenderers to which it did not have access, and it did not even identify those three tenderers.

60 Consequently, the second part of the first plea must be rejected as unfounded.

61 By a third part of the first plea, concerning lot 1, the applicant maintains that the Commission ought to have excluded from the call for tenders at issue the second and third tenderers selected for lot 1 due to irregularities committed in connection with the ESP-DESIS framework contract. The applicant contends that the second and third tenderers selected for lot 1 transfer a significant part of the work assigned to them under the ESP-DESIS framework contract to undertakings established in countries which have not acceded to the Agreement on Government Procurement. It considers that that practice ought to have resulted in the cancellation of the ESP-DESIS framework-contract and their exclusion from the call for tenders at issue.

62 It should be noted that that part of the first plea is based on mere unsubstantiated assertions. First, the applicant does not state to which companies that are members of the consortia of tenderers selected for lot 1 it refers. Secondly, the applicant does not state under which provision of the Financial Regulation or of the Implementing Rules the Commission should have excluded those successful tenderers from the call for tenders at issue.

63 In any event, if by the third part of the first plea the applicant maintains that the fact that companies transfer some of the work assigned to them under the ESP-DESIS contract to undertakings established in countries which have not acceded to the Agreement on Government Procurement constitutes a breach of their contractual obligations under an earlier contract justifying their exclusion from the call for tenders at issue, it should be pointed out that that argument is similar to the argument that was raised in the first part of this plea (see paragraphs 49 to 53 above) and must be rejected.

64 If by the third part of the first plea the applicant maintains that the fact that companies transfer some of the work assigned to them under the ESP-DESIS contract to undertakings established in countries which have not acceded to the Agreement on Government Procurement should have led to their exclusion from the call for tenders at issue under Articles 106 and 107 of the Financial Regulation, it should be pointed out that that argument is the same as the argument that was raised in connection with the second part of this plea (see paragraphs 54 and 55 above) and must be rejected.

65 Consequently, the third part of the first plea must be rejected as unfounded.

66 By a fourth part of the first plea, concerning lot 2, the applicant maintains that the second tenderer selected was guilty in the past of illegal activities and, specifically, of corruption. It considers that by allowing that tenderer to participate in the call for tenders at issue the Commission infringed Articles 93 and 94 of the Financial Regulation and Articles 133a and 134 of the Implementing Rules, which are designed to exclude from public procurement procedures undertakings which have been convicted of illegal corruption activities, or involved in such activities without yet being convicted.

67 In its defence, the Commission stated that the company which the applicant alleges was involved in illegal activities and corruption is not the second tenderer selected for lot 2 but its parent company. In the reply, the applicant accepts that its arguments concern the parent company of the second tenderer selected and contends that the latter ought therefore to have been excluded from the call for tenders at issue under Article 93(1)(b) and (e) of the Financial Regulation and Article 134(4) of the Implementing Rules.

68 It should be noted that Article 93(1)(b) and (e) of the Financial Regulation provides that candidates or tenderers are to be excluded from participation in procurement procedures if they have been convicted of an offence concerning their professional conduct by a judgment which has the force of res judicata or if they have been the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Communities' financial interests.

69 Suffice it to say that it is common ground that the second tenderer selected is not in one of the situations of exclusion provided for in Article 93(1)(b) and (e) of the Financial Regulation, as is demonstrated by the documents relating to that company (namely, a declaration on oath and an extract from the judicial record) supplied to the Commission under Article 134 of the Implementing Rules.

70 Moreover, the power of the contracting authority, provided for in Article 134(4) of the Implementing Rules, to request documents concerning 'company directors or any person with powers of representation, decision-making or control in relation to the candidate or tenderer' is designed to prove that the tenderer is not in one of the situations of exclusion referred to in Articles 93 and 94 of the Financial Regulation. Those documents can therefore relate only to the personal situation of the tenderer and not that of a separate legal person such as a parent company.

71 In any event, it should be noted that the applicant merely cites the existence of arrangements entered into by the parent company of the second tenderer and the German and American authorities; it does not, as is required by Article 93(1)(b) and (e) of the Financial Regulation, demonstrate the existence of judgments having the force of res judicata by which that parent company has been convicted of corruption.

72 The Commission did not therefore infringe Article 93(1)(b) and (e) of the Financial Regulation and Article 134(4) of the Implementing Rules by not excluding the second tenderer selected from the call for tenders at issue.

73 Consequently, the fourth part of the first plea must be rejected as unfounded.

75 As a preliminary point, it should be noted that, in the context of this plea alleging the existence of manifest errors of assessment made by the evaluation committee in the assessment of the applicant's tender for lots 1 and 2, the applicant claims, several times, failure to state reasons, arguing that the evaluation committee's comments are vague and unsubstantiated.

76 In that connection, it must be borne in mind that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35; judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47; and Case T-89/07 VIP Car Solutions v Parliament [2009] ECR II-1403, paragraph 63).

77 It should be noted that the specific rules regarding the statement of reasons for decisions rejecting bids submitted by tenderers during a procurement procedure that are applicable in the present case are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

78 It is clear from those provisions, and from the case-law of the Court, that the Commission fulfils its obligation to state reasons if it confines itself, first, to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47 and the case-law cited).

79 Such a manner of proceeding satisfies the purpose of the obligation to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (see Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 78 above, paragraph 48).

80 It is also important to bear in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations (see Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 78 above, paragraph 49 and the case-law cited).

81 In the light of those factors, in order to determine whether the Commission fulfilled its obligation to state reasons, as provided for in the Financial Regulation and the Implementing Rules, it is necessary to examine the letters of 27 March and 3 April 2009 in respect of lot 1 and lot 2, respectively, which the Commission sent to the applicant in response to the applicant's express request for additional information on the reasons for the rejection of its tender and the relative advantages of the successful tenders, sent following the Commission's letter of 27 March 2009 informing the applicant that its tender had been rejected.

82 In each of the two letters of 3 April 2009 the Commission provided the applicant with a table setting out the names of the successful tendering consortia and also, for the tenders of the successful tendering consortia and of the applicant's consortium, the scores obtained for the qualitative criteria, the intermediate ranking based on the quality of the tenders, the total weighted price of the tenders, the intermediate ranking based on the total weighted price of the tenders, the scores obtained for the quality/price ratio and the final ranking. In each of those letters the Commission also provided a table setting out the scores obtained for each criterion by the applicant's consortium's tender and by the tenders of the successful tendering consortia and also, for each criterion, the assessments and comments of the evaluation committee for each question in the tender specifications.

83 For each lot, the first table enabled the applicant to make a direct comparison of the scores which its bid had obtained for the quality criteria and those obtained by the bids of the three successful tenderers and the total price of its bid and of those of the successful tenderers. The table also contained the intermediate ranking obtained by each bid after the technical evaluation and after the price of the bids had been taken into account. Finally, that table made it possible to compare the quality/price ratio of the applicant's tender with those of the successful tenderers and the corresponding final ranking, thus enabling the applicant immediately to identify the reasons why its tender was not chosen, namely, because its tender did not offer such good value for money as those of the successful tenderers, since the latter had a better quality/price ratio.

84 In addition, for each lot, a second table contained extracts from the evaluation committee's report giving the scores awarded to the applicant's bid and to the bids of the three successful tenderers for each award criterion, and, in respect of each criterion, the assessments of the evaluation committee and the corresponding comments for each of the questions set out in the tender specifications. Those specific aspects made it possible for the applicant to understand the scores the evaluation committee had awarded to its tender and to those of the successful tenderers in respect of the quality criteria.

85 It follows that, by its letters of 3 April 2009, the Commission provided to the requisite legal standard reasons for the rejection of the applicant's tender for lots 1 and 2 and the relative advantages of the tenders selected and satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

86 It follows that the arguments alleging failure to state reasons must be rejected as unfounded.

87 The applicant claims that the Commission made a number of manifest errors of assessment when evaluating its tender for lot 1, in relation to the first, second, third and fourth evaluation criteria. It challenges the evaluation committee's assessments of the answers given in its tender to the questionnaire contained in the tender specifications.

88 It is settled case-law that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. Review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89 and the case-law cited).

89 In the present case, it is clear from the contract notice and from the tender specifications that the contract was awarded on the basis of the three tenders that offered the best value for money, in accordance with Article 97(2) of the Financial Regulation.

90 In the first place, it should be pointed out that the applicant puts forward a number of arguments that are the same in respect of several of the evaluation committee's comments.

91 First, with regard to the answers given in its tender to questions 5.1.5, 5.2.1, 5.2.3, 5.3.1 and 5.4.1, the applicant argues that although the evaluation committee's comments contain only positive remarks, those answers were assessed only as 'good' or 'very good' and not as 'very good' or 'excellent'.

92 In that regard, it should be pointed out that the fact that the evaluation committee's comments contain positive remarks is designed to justify the assessment 'good' or 'very good' given to the applicant's answer and explains in particular why it was not given a lower assessment such as 'acceptable'. However, those remarks do not mean that the applicant's answers were perfect and warranted the best assessment possible. The applicant has not demonstrated how the fact that the evaluation committee's positive comments correspond to the assessment 'good' or 'very good' constitutes a manifest error of assessment.

93 Secondly, the applicant contends that, as regards the first and fourth criteria, the evaluation committee did not explain why, despite positive comments, it deducted a certain number of points for its tender in relation to the maximum score possible in respect of each criterion (a deduction of 73 points out of 200 for the first criterion and a deduction of 125 points out of 500 for the fourth criterion).

94 In that connection, suffice it to say that the applicant itself made an error as regards the method used by the evaluation committee for evaluating the tenders. As the Commission states, the evaluation committee's assessment is a general appreciation of the tender and each point does not correspond to a certain comment. The evaluation committee does not draft a perfect answer, making it possible for points to be deducted for each error made in the tenders, but awards a score corresponding to the overall quality of the tender.

95 Nor, since that method of evaluation was applied to all the tenders submitted in the call for tenders at issue, can the applicant argue that such a method infringes the principle of equal treatment.

96 In that regard, the comparison made by the applicant of the two assessments made by the evaluation committee of its answer to Question 5.1.2 and of the answer contained in the tender of another tenderer is irrelevant. The applicant cannot claim there was an infringement of the principle of equal treatment because, whilst the evaluation committee's comments on its answer and on the answer given by another tenderer contained negative elements, the applicant's answer was rated 'acceptable' and the other answer was rated 'good'. In fact, the evaluation committee's negative comments related to different elements of each answer.

97 Thirdly, the applicant claims more than once that its tender complied with the tender specifications. Thus, concerning its answers to Questions 5.1.3, 5.2.1, 5.2.2 and 5.3.2, the applicant challenges the evaluation committee's comments, first, making general references to certain passages of its tender and, secondly, maintaining that the evaluation committee made a manifest error of assessment because it failed to establish that the applicant's tender did not comply with the tender specifications. Concerning its answers to Questions 5.1.4 and 5.3.3, in order to establish that the evaluation committee made a manifest error of assessment, the applicant merely states that its tender complied with the tender specifications.

98 Such arguments cannot in themselves demonstrate a manifest error of assessment on the part of the Commission. It was on the basis of a comparative evaluation of the tenders carried out by the evaluation committee that the contract was awarded to the tenders offering the best value for money and not on the basis of mere verification of conformity with the tender specifications. It is apparent from the Commission's letter of 3 April 2009 that the applicant's tender was not one of the three tenders offering the best value for money.

99 Moreover, it should be noted that, if the answers given in the applicant's tender had not complied with the tender specifications, its tender would not have obtained the minimum number of points required for each criterion. The assessment carried out, and the score awarded, by the evaluation committee did not relate only to the tender's compliance with the requirements of the tender specifications, but also to the quality of that tender. Therefore, the applicant's assertion that the evaluation committee failed to establish that its tender did not comply with the tender specifications does not demonstrate that the committee's evaluation was vitiated by a manifest error of assessment.

100 Fourthly, concerning its answers to Questions 5.1.2, 5.1.3, 5.1.4, 5.2.2 and 5.3.2, the applicant challenges certain phrases in the evaluation committee's comments, considering that the latter had not carried out a detailed examination of its tender and had, thus, committed a manifest error of assessment. Suffice it to say that such an argument is insufficient to establish that the evaluation committee's comments were inaccurate and does not demonstrate that it carried out a manifestly erroneous assessment of those answers, especially as the evaluation committee's comments were also based on other phrases substantiating its assessment.

101 In the second place, it is appropriate to examine the applicant's arguments concerning more specifically the evaluation committee's comments regarding some of the answers given in its tender.

102 Concerning its answer to Question 5.1.1, the applicant challenges the evaluation committee's comment that '[a] few inconsistencies concerning the resources' estimate of the management team [are] present in the tender' because it failed to specify the alleged inconsistencies. In that regard, suffice it to say that the evaluation committee concluded, nevertheless, that 'the tenderer can deliver the requested quality of services, even under peak exploitation conditions (high number of requests)'. Thus, the evaluation committee considered that, despite a few inconsistencies, the applicant was capable of providing the quality of services required and therefore warranted the assessment 'good' awarded to that answer. The applicant has not demonstrated that such a comment was erroneous, still less that that comment resulted in a manifest error of assessment in the evaluation of its tender.

103 Concerning its answer to Question 5.1.1, the applicant also challenges the evaluation committee's comment that '[t]here is however a concern linked to the systematic anticipation of all deadlines foreseen in the protocol'. It considers that the statement that 'more time spent in the resource selection process usually results in a better matching between demand and offer' is wrong since shorter deadlines improve the quality of the service, and the mark awarded to it should therefore be higher. Similarly, concerning its answer to Question 5.2.1, the applicant challenges the evaluation committee's comment that '[t]he anticipation of some deadlines ... might raise minor worries about the quality of overall processing'. It contends that the evaluation committee was wrong to consider that the tenderer's capacity to perform the contract within tighter deadlines would influence the quality of the services and takes the view that tenderers which have the capacity to deliver within tighter deadlines than those contained in the tender specifications fully respect the ordering process and they should be awarded a higher score.

104 In that regard, suffice it to say that, in the Commission's answer to Question 177, contained in the document entitled 'Questions and answers', referred to in paragraph 6 above, which was sent to the tenderers, the contracting authority clearly stated that the fact of anticipating the deadlines contained in the tender specifications would not lead to a higher score being awarded for the answers to Questions 5.1.1 and 5.2.1. Since the applicant was aware of that answer to Question 177 before its tender was submitted it cannot argue that the evaluation committee should have taken into account the anticipation of the deadlines in its tender in order to award it a higher score.

105 Moreover, the applicant cannot argue that the evaluation committee's comment on its answer to Question 5.1.1, concerning the systematic anticipation of deadlines in its tender, amounts to casting doubt on its capacity to provide its services in accordance with the tender specifications and thus to using a selection criterion in the award phase. The selection criteria are designed to assess the financial, economic, technical and professional capacity of the candidate or the tenderer, within the meaning of Article 135 of the Implementing Rules, whereas that comment relates only to the quality of the answer to Question 5.1.1 given in the applicant's tender. It should also be noted that, with regard to that answer, the evaluation committee concluded that 'the tenderer can deliver the requested quality of services, even under peak exploitation conditions', and assessed it as 'good'.

106 Concerning its answer to Question 5.1.2, the applicant challenges the evaluation committee's comment that 'as far as the execution of hundreds [of] contracts in parallel is concerned, the sizing of the management team remains too vague to assess whether it can cope with varying load, including peak loads'.

107 For the purposes of disputing that assessment, the applicant confines itself to referring to some passages in its tender in which it described the members of the management team involved in the management of hundreds of concurrent requests. It refers to various points in the answer to Question 5.1.2 given in its tender, namely, to point 1.4, which states that the exact size of the management team depends on the size of the requests and includes a table showing the exact size of the team in relation to the volume of work requested by the client, and to point 1.5, which describes its approach for calculating the exact size of the management team and the metrics ensuring that the team will assure the proper execution of the specific assignments, and lastly to point 7, which contains a presentation of the service management team and its roles and responsibilities during the implementation of the contract.

108 It should be pointed out, however, that those references are not sufficient to demonstrate a manifest error of assessment on the part of the Commission given that, first, contrary to what the applicant claims, point 1.4 does not contain a table giving the exact size of the team in relation to the volume of work and, secondly, the applicant refers to passages in its tender in which the size of the management team is given only in general terms and not the exact size in relation to the volume of work required, inter alia in order to carry out hundreds of contracts at one time. Therefore, the applicant's reference to certain passages of its tender does not affect the evaluation committee's comment that the size of the management team remained too vague for it to assess whether the applicant could cope with a varying load.

109 With regard to its answer to Question 5.1.3, the applicant challenges the evaluation committee's comment that 'the monitoring mechanism the tenderer put in place is not exhaustively described'. With regard to its answer to Question 5.2.2, the applicant challenges the evaluation committee's comment that 'the monitoring of all these parameters [quality indicators] is not sufficiently explained'. With regard to its answer to Question 5.3.2, the applicant challenges the evaluation committee's comment that '[t]he actual monitoring mechanism is however not detailed enough'.

110 In those three cases, the applicant confines itself, on the one hand, to referring to points 1 of the answers to Questions 5.1.3, 5.2.2 and 5.3.2 given in its tender, which contain a detailed analysis of the monitoring process for each service management and ordering process task and for each task related to the services delivery and, in particular, to points 1.4, which describe the monitoring mechanism based on the EOMS platform. On the other hand, it claims that the evaluation committee did not study its tender in detail and failed to identify any failure of the tender to comply with the tender specifications.

111 In that regard, it should be noted that since the Commission's decision is the result of complex technical appraisals, those appraisals are in principle subject to only limited review by the Court, which means that the European Union Courts cannot substitute their own assessment of matters of fact for the Commission's (Case T-201/17 Microsoft v Commission [2007] ECR II-3601, paragraph 88).

112 It should be pointed out that the applicant's argument that the evaluation committee did not study its tender in detail implies necessarily that the Court should itself conduct such an analysis. However, it is not for the Court to conduct a fresh analysis of the applicant's tender in order to determine whether the answers to Questions 5.1.3, 5.2.2 and 5.3.2 given in the applicant's tender contained a sufficiently detailed monitoring mechanism.

113 With regard to its answer to Question 5.2.3, the applicant challenges the evaluation committee's comment that 'some minor inconsistencies were found in the weighting of a few risks', by merely stating that that comment is unfounded.

114 It should be noted that under Article 44(1)(c) of the Rules of Procedure of the General Court, the application must contain a summary of the pleas in law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Case T-19/01 Chiquita Brands and Others v Commission [2005] ECR II-315, paragraph 64 and the case-law cited). Similar requirements are called for where a submission is made in support of a plea in law (Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 333).

115 Moreover, it is not for the Court to speculate about the reasoning and precise observations, both in fact and law, that lie behind the action (judgment of 9 September 2010 in Case T-63/06 Evropaïki Dynamiki v OEDT, not published in the ECR, paragraph 80). The applicant's mere assertion that the evaluation committee's abovementioned comment is unfounded does not make clear the basic legal and factual particulars relied on by the applicant and must therefore be rejected as inadmissible under Article 44(1) of the Rules of Procedure.

116 It is apparent from all the foregoing that the applicant has not demonstrated that the Commission made manifest errors of assessment when evaluating the applicant's tender for lot 1.

117 The applicant claims that the Commission made manifest errors of assessment when evaluating its tender for lot 2, in relation to the first, second, third, fourth and fifth evaluation criteria.

118 In that regard, suffice it to say, as does the Commission, that even if the applicant's tender had received the maximum number of points for all the award criteria it would not have been awarded the contract for lot 2 since its quality/price ratio would have still been below that of the first three tenderers selected.

119 It is apparent from the table sent by the Commission to the applicant with the letter of 3 April 2009 that the applicant's tender for lot 2 obtained a score of 754.03 in respect of the quality criteria and that the total price of the tender was [EUR] 300.50. If the applicant had obtained the maximum score in respect of the qualitative criteria, that is to say 1000, the quality/price ratio of its tender would have been 3.33. That quality/price ratio would still have been lower than that obtained by the third tenderer selected, whose quality/price ratio was 3.57.

120 It follows that, even if the evaluation committee had made an error in its assessment of the applicant's tender for lot 2, that error would have no bearing on the Commission's ultimate finding that the applicant's tender did not obtain a score in respect of the quality/price ratio that was sufficient for it to be awarded the contract. Such an error would be immaterial and accordingly would not be sufficient to warrant annulment of the contested decision since, in the particular circumstances of the case, it could not have had a decisive effect on the outcome (see, to that effect, Case T-126/99 Graphischer Maschinenbau v Commission [2002] ECR II-2427, paragraph 49 and the case-law cited).

121 Consequently, all the arguments relating to the existence of manifest errors of assessment concerning lot 2 must be rejected as ineffective.

123 It follows from the foregoing that, since all the pleas in law relied upon by the applicant in support of the claim for annulment have been unsuccessful, that claim must be dismissed in its entirety.

124 The applicant claims that, if the Court should find that the Commission has acted in breach of the Financial Regulation or of the principles of transparency and equal treatment, the Commission should be ordered to pay the applicant compensation in the amount of EUR 69 445 200 (EUR 33 271 920 in respect of lot 1 and EUR 36 173 280 in respect of lot 2) corresponding to its estimated gross profit (50%) from the procurement procedure at issue if it had been awarded the contract. Its claim in that regard is based on Articles 235 EC and 288 EC. The applicant maintains that the Commission committed a sufficiently serious breach of several superior rules of law for the protection of the individual and that it manifestly and gravely disregarded the limits on the exercise of its powers.

125 In accordance with settled case-law, for the Community to incur liability the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damaged complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; see also to that effect, Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30, and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). Since one of those conditions is not fulfilled the action must be dismissed in its entirety and it is not necessary to examine the other conditions for that liability (Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 83; see also, to that effect, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19).

126 There is a causal link for the purposes of the second paragraph of Article 288 EC where there is a certain, direct causal nexus between the fault committed by the institution concerned and the injury pleaded, the burden of proof of which rests on the applicants (see Case T-304/01 Abad Pérez and Others v Council and Commission [2006] ECR II-4857, paragraph 101 and the case-law cited).

127 As regards lot 1, it is clear from the Court's findings on the claim for annulment that the applicant has not proved unlawful conduct on the part of the Commission.

128 As regards lot 2, even if the applicant had been able to demonstrate unlawful conduct on the part of the Commission, it is apparent from paragraphs 119 and 120 above that that conduct would not have been the reason for the rejection of its tender and the award of the contract to another tenderer. In those circumstances, the applicant is not therefore in a position to demonstrate the existence of a causal link between the Commission's alleged unlawful conduct and the injury alleged to have resulted from rejection of the applicant's tender.

129 It follows that since one of the three conditions for the Community to incur non-contractual liability is not fulfilled the applicant's claim for damages must be dismissed as unfounded.

130 The applicant requests that, even if it were to dismiss the action, the Court should order the Commission to pay the costs, in accordance with the second subparagraph of Article 87(3) of the Rules of Procedure. It submits that the deficient evaluation of its tender, the failure to give reasons for that evaluation, DG Research's refusal to address the applicant's detailed requests for reasons and to present the applicant with the results of its evaluation have forced it to bring the present action. This justifies the Commission being ordered to bear the entirety of legal costs related to these proceedings.

132 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. However, under the second subparagraph of Article 87(3), the Court may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.

133 In the present case, it has been found, inter alia, that the applicant's arguments alleging breach of the obligation to state reasons and of the principle of transparency were unfounded. Moreover, the applicant has not produced any evidence to justify the Commission being ordered to pay any costs considered to have been unreasonably or vexatiously caused.

134 Consequently, since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

2. Orders Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and those incurred by the European Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Evropaiki Dynamiki v Commission (Public service contracts) [2012] EUECJ T-236/09 (15 March 2012) URL: http://www.bailii.org/eu/cases/EUECJ/2012/T23609.html Cite as: [2012] EUECJ T-236/09, [2012] EUECJ T-236/9

Court of Justice of the European Communities (including Court of First Instance Decisions)