Proximus v Council (European Union public contracts - Judgment) [2019] EUECJ T-117/17 (17 January 2019)

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(Public service contracts — Negotiated procedure — Most economically advantageous tender — Rejection of the tender submitted by a tenderer — Discretion of a contracting authority — Lawfulness of the evaluation method — Principle of sound financial management)

Proximus SA/NV, established in Brussels (Belgium), represented by B. Schutyser, lawyer,

Council of the European Union, represented by A. Jaume and S. Cholakova, acting as Agents, and by P. de Bandt, P. Teerlinck and M. Gherghinaru, lawyers,

APPLICATION under Article 263 TFEU seeking annulment of the decision of the Council of 23 December 2016 to award the framework contract for the provision of cybersecurity services [confidential], (1) to another tenderer

composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,

having regard to the written part of the procedure and further to the hearing on 2 May 2018,

1 By letter of 28 July 2016, the Council of the European Union invited tenderers to participate in a negotiated procurement procedure, provided for in Article 104(1)(d) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; ‘the Financial Regulation’), and Article 134(1)(i) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1; ‘the rules of application’), for the purposes of concluding a framework contract for cybersecurity services [confidential].

2 The services to be provided under the framework contract were divided into separate service packages [confidential].

3 According to the tender specifications, the initial term of the contract was six years, which could be extended for two one-year periods. The contract was to be awarded to the tenderer who submitted the tender offering the best value for money.

4 The tender specifications stated that the technical evaluation counted for 60% and the price offered counted for 40%. The technical evaluation was based on various qualitative award criteria and sub-criteria and on a weighting system.

5 In respect of the financial evaluation, it can be seen from the tender specifications that the tenderers had to make a financial price proposal for each service package. A financial score was calculated for each service package by comparing the price calculated for one sub-criterion in a given tender with the sum of all tenders received for that sub-criterion, applying the following mathematical formula (where F^{subcriterion,}i is the cost calculated for one sub-criterion in tender i):

6 A weighting percentage was then applied to each service package and, lastly, each financial tender was given a financial score, corresponding to the weighted total of the scores assigned for each financial criterion, applying the following formula:

7 Once the technical and financial tenders had been evaluated, the contracting authority calculated a global score (G) for each tender, by adding together the technical scores (Q) and the financial scores (F), and applying the corresponding weighting (G = 0.60 × Q + 0.40 × F) to each score.

8 The applicant,Proximus SA/NV, submitted its tender on 26 September 2016. [confidential]

9 On 8 November 2016 the Tender Evaluation Committee sent the [confidential] tenderers a number of questions relating to their respective financial offers. Those tenderers replied to the requests for information within the time limit given by the Council. On 18 November 2016, at the evaluation meeting of the Tender Evaluation Committee, it was decided to commence financial negotiations. By letter of 24 November 2016, the tenderers were invited to a negotiation meeting on financial aspects, including, in particular, certain requests for clarification. The negotiation meeting was held on 1 December 2016. By letters of 2 December 2016, the Council invited the tenderers to reply to a number of points raised in the minutes of the meeting on 1 December 2016 by submitting an amended financial tender, which was to constitute their last and best tender. The tenderers each submitted a final financial tender within the time limit given by the Council. Those final tenders were examined at the final evaluation meeting that was held on 12 December 2016.

10 By letter of 23 December 2016, the Council informed the applicant that its tender had not been accepted and that the contract had been awarded to another tenderer (‘the contested decision’). On the same day, the applicant was notified of the evaluation of its tender.

11 On 29 December 2016 the applicant asked for further information on the characteristics and relative advantage of the successful tender. Furthermore, it stated that the application of the price criterion appeared to be incorrect, in so far as it had obtained a lower score than that of the successful tenderer, although the latter’s tender had a higher total price. Finally, the applicant requested the Council to reconsider the contested decision.

12 By letter of 6 January 2017, the applicant again invited the Council to reconsider the contested decision and not to sign the contract with the successful tenderer. In that letter, amongst other matters, the applicant set out in detail the reasons why, in its view, the method used to assess the tender offering the best value for money was incorrect and why applying that method led to an abnormal result. On 10 January 2017, the applicant sent another letter to the Council, which repeated, with slight amendments, the text of the letter of 6 January 2017.

13 By letter of 13 January 2017, the Council replied to the applicant’s letter of 29 December 2016.

14 By letter of 16 January 2017, the applicant repeated its request that the Council reconsider the contested decision and not conclude the contract with the successful tenderer.

15 By letter of 23 January 2017, the Council expressed a view on the applicant’s letters of 6 and 16 January 2017 and stated that it saw no reason either to reconsider its award decision or not to conclude the contract.

16 By letter of 7 February 2017, the applicant informed the Council that it considered the replies that the Council had given to it to be unsatisfactory and that it had decided to take legal action both by means of an action on the substance and by an application for interim measures, both of which would be brought a few weeks later. Furthermore, it requested that the Council not sign the contract in the meantime.

18 By application lodged with the Court Registry on 23 February 2017, the applicant brought the present action.

19 By a separate document lodged with the Court Registry on the same day, the applicant brought an application for interim measures seeking suspension of implementation of the contested decision and of the contract concluded with the successful tenderer, amongst other measures.

20 On 13 March 2017 the applicant submitted a reasoned application, in accordance with Article 66 of the Rules of Procedure of the General Court, for the content of a document annexed to the application to be omitted from the documents relating to the present case to which the public has access.

21 On 16 March 2017 the Council submitted a reasoned application for certain data to be kept confidential vis-à-vis the public and for the hearing to be held in camera pursuant to Articles 66 and 109 of the Rules of Procedure.

22 By order of 3 July 2017, Proximus v Council (T‑117/17 R, EU:T:2017:600), the President of the General Court dismissed the application for interim measures and reserved the costs.

23 On the proposal of the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral phase of the proceedings and to hold the hearing entirely in camera.

24 By letter from the Court Registry of 14 March 2018, the General Court, by way of measures of organisation of the procedure, requested the Council to reply in writing to a question concerning the mathematical formula applied. The Council complied with that request within the time limit given.

25 The parties’ oral argument and replies to the questions put by the General Court were heard at the hearing of 2 May 2018, which was held in camera.

28 The Council, although not formally objecting in a separate document that the action is inadmissible, claims that the applicant brought the present action in its own name and not in that of the consortium, although it represents only a minor part of the undertakings which, as a group or consortium, undertook to perform the framework contract, and although the applicant was responsible solely for the performance of part of the service packages concerned by the contract. Moreover, even if the applicant were not acting as the lead partner in a consortium, more than one undertaking had undertaken to perform the framework contract. The Council also stated at the hearing that each of those undertakings would be entitled to bring legal proceedings.

30 Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may … institute proceedings against an act addressed to that person or which is of direct and individual concern to them …’.

31 It is common ground that the action has been brought solely in the name of the applicant.

32 It is clear from the information before the Court that the applicant submitted its tender as a candidate assisted by a team of specialist partner undertakings, presented as the applicant’s subcontractors.

33 Furthermore, the letters, printed on the applicant’s letterhead, were sent to the contracting authority by the applicant. Similarly, the accompanying letter sent with the applicant’s tender was signed by the latter’s representatives only.

34 Furthermore, it is apparent from the excerpt from the minutes of the meeting of the applicant’s Management Board of 15 September 2016 that the applicant was authorised to sign and respond, as prime contractor, to the call for tenders, it being understood that it would work ‘with several subcontractors’.

35 It is clear from that evidence that the applicant is indeed the author of the tender and that it appointed other undertakings as sub-contractors in respect of certain services.

36 The fact, put forward by the Council, that the applicant was responsible for the implementation of only part of the framework contract in no way undermines the fact that the applicant ensured the commitment of the other subcontractors.

37 Admittedly, mention is made in the applicant’s tender of the creation, with its partners, of the ONE Cybersecurity Powerhouse group. Although the tender was presented as the applicant’s, the services were presented as coming from that group.

38 However, it is not apparent from the information before the Court that that group has legal personality, which was confirmed by the applicant at the hearing.

39 Last, it is clear from the letter of 26 September 2016 containing the response to the invitation to tender that the applicant was the contact person, through its sales director. The contested decision was, moreover, addressed to the applicant only, as the Council confirmed at the hearing.

40 It follows that, even if it may be considered that the applicant was the lead partner in a possible consortium, it is not apparent from the information before the Court that that consortium had legal personality. In the absence of evidence in the file concerning that legal personality, the General Court has no reason to question the applicant’s assertions on that point.

41 In the light of Article 263 TFEU, since that ad hoc structure was transparent so far as its members were concerned, the members must all be regarded as the addressees of the contested decision. The applicant could therefore, as an addressee of the contested decision, challenge that decision in accordance with the conditions laid down in Article 263 TFEU (see, to that effect, judgments of 19 March 2010, Evropaïki Dynamiki v Commission, T‑50/05, EU:T:2010:101, paragraph 40, and of 22 May 2012, Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 19).

43 The applicant relies on three pleas in law in support of its application for annulment. The first plea alleges infringement of Article 110(4) of the Financial Regulation and of Article 149 of the rules of application, which provide that the contracting authority must base its decision on the most economically advantageous tender. The second plea in law alleges infringement of the principle of sound financial management, enshrined in Article 310 TFEU and Article 30 of the Financial Regulation. The third plea in law alleges infringement of the general principles of transparency, non-discrimination and equal treatment.

1. The first plea in law: infringement of Article 110(4) of the Financial Regulation and Article 149 of the rules of application, on the most economically advantageous tender

44 In support of its first plea in law, the applicant puts forward, in essence, two complaints, seeking to challenge the evaluation method applied in the present case by the Council in order to determine the most economically advantageous offer. First, it contests the mathematical formula provided for in the tender specifications and applied in this case, which, it is argued, did not allow the most economically advantageous tender to be selected. Secondly, the applicant maintains that the comparison of tenders is distorted by the arbitrary weightings applied to the various service packages, the effect of which is that price differences are not taken into account appropriately.

45 First of all, it must be observed that the applicant’s line of argument seeks to dispute the lawfulness of the criteria provided for in the tender specifications. In that connection, it is clear from the case-law that a tenderer is entitled to challenge indirectly the lawfulness of the tender specifications (see, to that effect, judgments of 21 May 2008, Belfass v Council, T‑495/04, EU:T:2008:160, paragraphs 36, 37 and 44, and of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraph 74).

46 Second, as regards the substantive lawfulness of the choice of financial evaluation formula and the contested weightings, it must be borne in mind that Article 110(4) of the Financial Regulation provides that the contracting authority is to base the award of contracts on the most economically advantageous offer, determined according to either the lowest price, the lowest cost or the best price-quality ratio. The third subparagraph of Article 110(4) of the Financial Regulation states that for the best price-quality ratio, the contracting authority is to take into account the price or cost and other quality criteria linked to the subject matter of the contract.

47 In the present case, it is apparent from the tender specifications that, in the light of the requisite technical and financial evaluation, the contracting authority decided to award the framework contract to the tenderer offering the best price-quality ratio. Pursuant to the third subparagraph of Article 110(4) of the Financial Regulation, the contracting authority could therefore take into account the price or cost and other quality criteria linked to the subject matter of the contract.

48 Furthermore, it is settled case-law that the contracting authority has a broad discretion as to the choice, content and implementation of the relevant award criteria linked to the contract in question, including those intended to identify the most economically advantageous tender, since those criteria must correspond to the nature, subject matter and specific features particular to each contract and to serve as best they can the targeted needs and objectives pursued by the contracting authority (see, to that effect and by analogy, judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraphs 137 and 192).

49 The criteria adopted by the contracting authority to identify the most economically advantageous tender need not necessarily be quantitative or related solely to prices. It is sufficient that such criteria can be applied objectively and uniformly in order to compare the tenders, and that they be clearly relevant for identifying the most economically advantageous tender (judgments of 26 September 2014, Evropaïki Dynamiki v Commission, T‑488/11, not published, EU:T:2014:831, paragraph 110, and of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 258).

50 The review by the General Court must be limited to checking compliance with the applicable procedural rules and with the duty to give reasons, whether the facts have been accurately stated, and that there is no manifest error of assessment or misuse of powers. The contracting authority is granted such a broad discretion throughout the tendering procedure, including in relation to the choice and evaluation of the selection and award criteria (judgment of 4 July 2016, Orange Business Belgium v Commission, T‑349/13, not published, EU:T:2016:385, paragraph 45).

(a) The complaint seeking to demonstrate that the mathematical formula set out in the tender specifications does not serve to select the most economically advantageous tender

52 The applicant argues in essence that the formula set out in the tender specifications does not serve to select the most economically advantageous tender, on the grounds that it reflects the relative price difference at the level of each service package, but fails to take into account differences in the total prices tendered. It is claimed that that formula discourages optimal financial tenders.

54 It should be recalled that the financial evaluation method set out in the tender specifications and applied in the present case required (i) the award of a financial score, calculated for each defined service package, and obtained using a mathematical formula; and (ii) the application of a different weighting for each service package. Thus, a financial price tender was to be made for each service package. Pursuant to the prescribed mathematical formula, a financial score was therefore awarded for each service package, by comparing the price calculated for a tender sub-criterion with the sum of all the tenders received for that sub-criterion.

55 The applicant’s line of argument regarding the mathematical formula may, in essence, be divided into three separate arguments.

56 The applicant disputes the service package approach which, it claims, fails to take into account the differences in the total prices tendered.

57 It should be noted that the services provided for by the framework contract were grouped into four service packages. [confidential]

58 That service package approach was clearly set out in the tender documents from the beginning of the procedure. The tender specifications therefore expressly state that a division into lots is not applicable, and the applicant failed to express any reservations concerning the division into service packages at any stage in the administrative procedure.

59 The applicant maintains that, on account of that failure to divide the contract into lots, the financial evaluation of the tenders ought to have been conducted globally, and not at the level of each service package.

60 However, contrary to the applicant’s assertions, the fact that those service packages fall to the same service provider and are linked to each other does not necessarily mean that the comparison of the various tenders must be conducted on the basis of the prices calculated globally.

61 The aim of the decision to provide for service packages and award a score for each — which is a matter for the contracting authority — was, in the present case, to respond to the specific nature of the framework contract in question and the objectives pursued. [confidential]

62 Moreover, [confidential], it was relevant for the contracting authority to assess the tenders at the level of each service package in order to ensure that the candidates would allocate the necessary resources to them in their tender.

63 Accordingly, bearing in mind the nature, subject matter and specific characteristics of the framework contract, it is not apparent from the information before the Court that, in selecting a financial assessment method which consisted in comparing prices in terms of service packages rather than globally, the Commission infringed the rules of application.

64 The applicant maintains that, in so far as the mathematical formula applied failed to take account of differences in the total prices tendered, the financial scores awarded through the application of that formula do not reflect the actual price differences between the tenders from a total cost perspective. The lowest tender was therefore awarded a lower score for the price criterion. According to the applicant, that formula disproportionately rewards the relative price difference for the financially less important service packages, while not taking into account the insignificant absolute price difference between the tenders, thus discouraging optimal financial tenders. Furthermore, it is liable to give rise to price manipulation.

66 It is clear that that argument is linked, in part, to that contesting the service package approach. The applicant takes the view that the real price corresponds to the total price, and the only acceptable formula would be one which compares the price offered by the tenderer under evaluation with the lowest total price offered by the others. It is argued that the formula applied in the present case — which compares, in respect of each service package, the tenderer’s price with the sum of all the prices — is unlawful, as it takes into account the difference between the prices offered. Such a formula therefore fails to take into account the real price differences between the tenders in a proportional manner.

67 However, as has been found above, the service package approach is not flawed. It follows that the financial evaluation is not based on an evaluation of the tenders from the perspective of total cost. In that context, the argument advanced by the applicant that the lowest tender from the perspective of total cost — that is, the tender that is cheapest overall — is wrongly awarded a lower score on the basis of the price criterion must be rejected. That argument is based on the mistaken premiss that the prices tendered in respect of each service package were added together and that the tender evaluation was made globally in the light of the total price, when that is not the case.

68 As regards the mathematical formula itself, it expressed the mathematical deviation between the financial tender made by a tenderer in respect of a given service package and that made by other tenderers in respect of each service package. The greater the deviation, the higher the financial evaluation bonus or penalty. As the Council points out, it follows that the formula awards the best financial score to the lowest tender in respect of each service package.It may be added that the applicant’s tender was awarded a higher score than the successful tenderer in respect of certain service packages.

69 Moreover, as stated by the Council, the multiplication of the ratio by 2, the purpose of which is to minimise the risk of not obtaining a significant difference in result between financial tenders which are very close, does not alter the ranking of the tenders although it does have an amplifying effect. According to the formula, the resulting product of that operation is then deducted from 1, in order to obtain a global financial evaluation between ‐1 and +1, and the result of that operation is finally multiplied by 100 in order to put it back into a scoring scale between ‐100 and +100, identical to the scale applied for the evaluation of the qualitative tenders.

70 The formula applied was therefore designed, according to the Council, to ensure consistency between the technical and financial tenders submitted by the tenderers; to encourage all tenderers to submit their best financial tenders in respect of all services in all service packages, by preventing, with regard to a given service, any important deviation as compared with tenders submitted by the other tenderers; to allow the majority of services to be affordably priced and prevent any dumping on specific services offset later by hidden costs on other items; and to avoid any strategy to manipulate the final scores.

71 The applicant has failed to demonstrate that such an approach exceeded the contracting authority’s discretion, and its assertion that that method deters tenderers from offering competitive prices in respect of service packages with higher total prices has not been demonstrated in any way.

72 The applicant argues that the mathematical formula applied discourages optimal financial tenders and therefore does not serve to select the most economically advantageous tender. That line of argument must, however, be rejected.

73 First, the applicant provides numerical examples which fail to support its assertions. The first two examples concern the situation where the cost of a service package is allocated to another package for which the prices offered are high in real terms, which, it is argued, has a positive impact on the score awarded. However, as stated by the Council, in the situation where the price offered in respect of a service package is nil or abnormally low, such a tender will be rejected pursuant to Article 151 of the rules of application, which prohibits abnormally low tenders. The applicant claims that the third example demonstrates that another tenderer’s price structure affects the deviation between the tenders. That example thereby merely confirms the importance of the factor associated with the deviation between the tenders in respect of each service package, but fails, however, to demonstrate that the formula does not result in the selection of the most economically advantageous tender. In the fourth example, a third tenderer offering the lowest total price could be awarded the highest financial score. Such an example merely confirms that the mathematical formula at issue does indeed lead to the selection of the most economically advantageous tender, even if the scores awarded do not reflect the actual price differences between the tenderers.

74 Second, the judgments on which the applicant relies to support its arguments are irrelevant. In the cases giving rise to the judgments of 16 September 2013, Spain v Commission (T‑402/06, EU:T:2013:445), and of 16 September 2013, Spain v Commission (T‑2/07, not published, EU:T:2013:458), the evaluation method found fault with by the General Court was the average price method. Pursuant to that method, the tender which corresponds to the average price, that is, the price corresponding to the sum of the values of all tenders received divided by the number of tenders, was awarded the highest possible number of points for economic quality. In that way, the tenders closest to the average price were awarded higher scores than those that were further away from it, including the lowest tenders. Such a method could lead to a situation in which, in cases where all the other requirements were identical, and in particular the technical requirements, a tender at a higher price which was closer to the average price was liable to be awarded more points on the basis of its economic quality than another lower tender. The application of such a method was found to be contrary to the criterion of the most economically advantageous tender.

75 That is not so in the present case, however, since the lowest tender in respect of each service package is awarded the best financial score for that package. The method used in the present case therefore gives rise to price competition, since the tenderers must offer their best price for each service package in order to be awarded the contract.

76 Similarly, the applicant relies on certain judgments of national courts. However, there is no need to rule on the question of whether it is possible to take that case-law into account; it is clear that those judgments do not relate to situations that are similar to that in the present case.

77 In the case which gave rise to the judgment of 8 February 2016, the cour d’appel de Paris (Court of Appeal, Paris, France) held that, where there were only two tenderers participating in a call for tenders, the situation in which the tenderer who submitted the most highest tender was awarded the lowest score of 0/40 and the tenderer who submitted the lowest tender was awarded the maximum score of 40/40 was unlawful, in so far as such a method failed to take account of the deviation between the prices offered by the tenderers. In the present case, the evaluation method used by the Council specifically takes account of that deviation.

78 The applicant also relies on judgment No 381095 of 1 July 2015 of the Conseil d’État (Council of State, France), which found fault with a scoring method which consisted in awarding scores to the tenders lot by lot then calculating the average of those scores, finding that that method failed to take sufficient account of the disparity in the values of the various lots, or, subsequently, to identify the most economically advantageous tender. Suffice it to observe that the evaluation method applied in that case differs from that applied in the present case, in which weightings for each service package were set in the tender specifications and in which the lowest tender was awarded the highest score for each service package.

79 The judgments of the Conseil d’État (Council of State, Belgium), relied upon by the applicant, are also irrelevant. In the judgment of 8 June 2006, there was no relationship of proportionality between a low price and a high score, because of the methods applied; and, in the judgment of 26 May 2015, the contracting authority had attacheda different weight to the various price components when no provision had been made for that in the tender documents. That is not the case in the call for tenders at issue in the present case.

80 The judgments relied upon by the applicant do not, therefore, call into question the mathematical formula applied here.

81 Third, the applicant maintains that the financial evaluation method gave rise to price manipulation. It claims that, in knowing the value of each service package, the tenderers could speculate on price differences and be awarded a higher score, even if their tender was not optimal from a financial perspective since it was higher than the others.

83 Although the applicant maintains that the division of the contract into service packages encourages price manipulation, it must be recalled that, as previously found (see paragraphs 61 to 63 above), that division was justified in the present case. There is therefore no artificial splitting up of the contract or artificial grouping of different services in the same contract for the purposes of circumventing the application of certain rules.

84 Moreover, the applicant illustrates its line of argument with the example of a tenderer who, in order to optimise its financial score, submits a tender which includes the costs of one service package in another service package, in respect of which the highest absolute price is offered. However, as stated by the Council, such a situation postulates unlawful behaviour on the part of the tenderer, whose tender would necessarily be rejected for example on the basis of the provisions prohibiting abnormally low tenders, particularly Article 151 of the rules of application. Such an example therefore fails to demonstrate in any way that the prescribed mathematical formula would in itself incite tenderers to behave unlawfully.

85 Last, the applicant relies on the order of 31 January 2005, Capgemini Nederland v Commission (T‑447/04 R, EU:T:2005:27). It argues that in the case which gave rise to that order, the General Court called into question the lawfulness of an evaluation method which assessed tenders not on the basis of the global sum of the prices offered, but rather in relation to the price ratios calculated with regard to 15 separate items, which induced a risk of price manipulation.

86 However, in that case, the General Court did not call into question the validity of the financial evaluation method set out in the call for tenders at issue, as such, but solely its application by the contracting authority to a specific tender. The contracting authority had accepted the absence of any indication of a price or the indication of a zero price for a number of items in the tender as compliant with the tender specifications, when the proposed solution for such item(s) and the relevant prices were included in a number of other items in that tender. In doing so, the contracting authority had applied the financial evaluation system set out in the call for tenders in such a way that the financial tenders did not reflect their actual value in that connection, and the contracting authority’s interpretation of the system did not guarantee that the most economically advantageous tender would be selected. The contracting authority’s acceptance of such a tender as complying with the tender specifications was found to be a manifest error of assessment.

87 That is not so in the present case, and the applicant’s argument based on the order of 31 January 2005, Capgemini Nederland v Commission (T‑447/04 R, EU:T:2005:27), must therefore be rejected.

88 Accordingly, the argument seeking to contest the mathematical formula applied must be rejected.

(3) The argument that tenderers were deprived of a decisive piece of information in the preparation of their tenders

89 The applicant argues that the tenderers were deprived of a decisive piece of information for the preparation of their tenders, namely the sum of the prices proposed by all the tenderers in respect of each service package, on the basis of which the deviation between the prices, and therefore the financial scores, were calculated.

91 It must be observed that the sum of the financial tenders in respect of each service package is set out in the denominator of the mathematical formula applied, which is designed to be applied with a piece of information which is not shared with tenderers.

92 However, the fact that that piece of information is not shared with tenderers does not alter the criteria for awarding the contract defined in the tender specifications. That piece of information was in fact provided for from the outset in the formula set out in the tender specifications. Moreover, it was not added ex post and has no discriminatory effect, since it is mathematically calculated and applied irrespective of the result. Similarly, the applicant has failed to demonstrate in any way that, if it had been known during the preparation of the tenders, that piece of information could have influenced that preparation (see, to that effect and by analogy, judgments of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 43, and of 4 July 2016, Orange Business Belgium v Commission, T‑349/13, not published, EU:T:2016:385, paragraph 143). It has also failed to establish that the fact of not having that piece of information gave rise to a situation of ‘irrational competition’ for the tenderers (see, to that effect, judgment of 16 September 2013, Spain v Commission, T‑2/07, not published, EU:T:2013:458, paragraph 79).

93 It follows that the applicant’s argument that the tenderers were deprived of a decisive piece of information for the preparation of their tenders must be rejected.

94 It follows from all the foregoing that the applicant has failed to demonstrate that the service package approach and the mathematical formula prescribed in the tender specifications were not such as to allow the most economically advantageous tender to be selected and were, accordingly, unlawful.

(b) The complaint alleging the artificial and arbitrary application of weightings

95 The applicant argues that the comparison of the tenders was also distorted because weighting factors were applied artificially and arbitrarily to the service packages, with the effect that the price differences between the tenders were not adequately taken into account, which was detrimental to the applicant. It claims that the genuine weighting of the tenders differs from the weighting factors attributed by the Council, which do not reflect the importance of the scores awarded for each service package. Moreover, the function of those weightings, which ought to have taken into account the estimated volume of services which would be ordered, was explained for the first time only in the Council’s letter of 23 January 2017, addressed to the applicant in response to the latter’s requests of 6 and 16 January 2017 (see paragraph 15 above).

97 It is common ground that the tender specifications clearly provided for the weightings applied in the present case. Those weightings are in themselves a reflection of the importance attached by the contracting authority to the different service packages at issue. As such, they must necessarily be taken into account by the candidates in submitting their tenders.

98 The applicant’s argument that the weightings were artificial or arbitrary and were to its detriment must be rejected. As the Council points out, and as it stated in the letter addressed to the applicant on 23 January 2017, the division into service packages and the corresponding weightings attributed to each service package were designed in particular to take into account the estimated forecast volumes that the participating entities might order throughout the term of the contract. The weighting therefore contributed to a financial evaluation which took into account ‘the future reality of ordering and invoicing’, established on the basis of the contracting authority’s forecasts.

99 It is therefore clear from the information before the Court that, on the facts of the present case, those weightings are plainly not artificial or arbitrary, but rather are intended to reflect the estimated volumes, strategic importance and interinstitutional dimension of each service package.

100 The fact that the application of those weightings had a negative impact on the financial score awarded to the applicant in respect of certain service packages is linked to the content of its tender, and not to the weightings being artificial or arbitrary.

101 Moreover, the applicant maintains that the weighting of tenders which ought to have been applied is different from that required in the present case and ought to have been calculated on the basis of the prices tendered by the tenderers, bearing in mind the estimated volumes of services and goods referred to in the tender specifications.

102 However, in doing so, the applicant relies on calculations which are not those provided for in the tender specifications, since they do not apply the prescribed mathematical formula. What the applicant calls the ‘genuine weighting of tenders’ consists in applying the weighting directly to the price submitted in the tender for the service package at issue, without applying the requisite mathematical formula. Since that argument is based on a calculation method which is not provided for in the tender specifications, it cannot be taken into account. It is not for the General Court to rule on the advantages capable of being derived from an alternative solution proposed by a tenderer in comparison with an arrangement expressly provided for in a call for tender document (judgment of 23 November 2011, bpost v Commission, T‑514/09, not published, EU:T:2011:689, paragraph 109).

103 Last, the weightings indicated in the tender specifications are applicable irrespective of the reasons for them, which do not necessarily have to be stated in the tender specifications. In that connection, pursuant to Article 138(3)(b) and Article 149(2) of the rules of application, concerning the content of tender documents, the contracting authority must state the relative weighting that it confers on each of the criteria selected to identify the most economically advantageous tender in the tender documents, without any statement of reasons being required.

104 The applicant has therefore failed to demonstrate the artificial or arbitrary nature of the weightings, and its second complaint must therefore be rejected.

105 It follows from all the foregoing that, in the light of the case-law cited in paragraphs 48 to 50 above, the applicant has failed to establish that the contracting authority exceeded the limits of its discretion or that the application of the financial evaluation conditions set out in the tender specifications gave rise to outcomes which were incompatible with the needs of the contracting authority and the objectives pursued by the tender procedure at issue.

106 It follows that the first plea in law, alleging infringement of Article 110(4) of the Financial Regulation and Article 149 of the rules of application, relating to the most economically advantageous tender, must be rejected.

2. The second plea in law: infringement of Article 310 TFEU and of Article 30 of the Financial Regulation, on the principle of sound financial management

107 The applicant submits that the method for evaluating the price criterion used in the present case, as a result of which the contract was awarded to the tenderer that was not offering the lowest price or cost, is also contrary to the principle of sound financial management. It contends that the weighting system likewise infringes the principle of sound financial management.

109 It should be recalled that Article 310(5) TFEU provides that the budget is to be implemented in accordance with the principle of sound financial management.

110 Article 30(1) of the Financial Regulation provides that appropriations are to be used in accordance with the principle of sound financial management, namely in accordance with the principles of economy, efficiency and effectiveness. Furthermore, under Article 30(2), the principle of economy requires that the resources used by the institution in pursuit of its activities are to be made available in due time, in appropriate quantity and ‘at the best price’.

111 It follows from those provisions that, contrary to the applicant’s argument, the principle of sound financial management does not mean that the lowest price criterion is the sole criterion taken into account in the award of public contracts.

112 Moreover, as recalled in paragraph 49 above, as regards identifying the most economically advantageous tender, it follows on the contrary from the case-law that the criteria adopted by the contracting authority need not necessarily be quantitative or related solely to prices. It is sufficient that such criteria can be applied objectively and uniformly in order to compare the tenders, and that they be clearly relevant for identifying the most economically advantageous tender (judgments of 29 January 2014, European Dynamics Belgium and Others v EMA, T‑158/12, not published, EU:T:2014:36, paragraph 70, and of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 258).

113 In the context of a framework contract such as that in the present case, and bearing in mind the specific characteristics of the contract at issue, the evaluation method based on the price criterion and the weighting system applied in the present case are not contrary to the principle of sound financial management.

114 In addition, to the extent that the applicant’s argument based on the lowest price and the inappropriate nature of the weightings seeks to contest the financial evaluation method, it is clear that that is a return of the line of argument set out in the first plea in law. As is apparent from the examination of the first plea, the applicant has failed to establish that the division into service packages, the mathematical formula and the weightings applied in the present case did not allow the most economically advantageous tender to be identified. It follows that the principle of sound financial management has been observed.

115 The second plea in law, alleging infringement of the principle of sound financial management, must therefore be rejected.

3. The third plea in law: infringement of the general principles of transparency, non-discrimination and equal treatment

116 The applicant submits that an evaluation method that, in the context of evaluating a price or cost criterion, does not give the best score to the tenderer offering the lowest price or cost infringes the general principles of transparency, non-discrimination and equal treatment. According to the applicant, if the scores attributed to the tenderers do not reflect the actual deviation between their prices, there can be no objective comparison of the real differences in value between the tenders, the evaluation method is inappropriate, and the outcome is purely arbitrary. The applicant points out that the contracting authorities have to estimate the value of the contracts they award and argues that the total estimated value should be indicated for the entire term of the framework contract. The Council therefore cannot, according to the applicant, argue that the total price is not relevant in the present case. The applicant asserts that the weighting system likewise infringes those principles of transparency, non-discrimination and equal treatment.

118 Article 102 of the Financial Regulation provides that all public contracts financed in whole or in part by the European Union budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.

119 It is settled case-law that, in the context of public contracts, the principle of transparency is essentially intended to preclude any risk of favouritism and arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tendering specifications (judgments of 10 October 2012, Evropaïki Dynamiki v Commission, T‑247/09, not published, EU:T:2012:533, paragraph 69, and of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑698/14, not published, EU:T:2016:476, paragraph 88).

120 Under the principle of equal treatment of tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (see judgment of 20 March 2013, Nexans France v European Joint Undertaking Fusion for Energy, T‑415/10, EU:T:2013:141, paragraph 102 and the case-law cited). This also means that the award criteria must be formulated, in the tender specifications or the contract notice, in such a way as to allow all reasonably well-informed tenderers exercising ordinary care to interpret them in the same way and that, when the tenders are being evaluated, those criteria are to be applied in an objective and uniform manner to all tenderers (judgments of 10 October 2012, Evropaïki Dynamiki v Commission, T‑247/09, not published, EU:T:2012:533, paragraphs 67 and 68, and of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑698/14, not published, EU:T:2016:476, paragraph 87).

121 On condition that the abovementioned principles, as interpreted by case-law, are respected, the contracting authority is free to choose the award criteria in the light of which the tenders will be evaluated (see paragraphs 48 to 50 above).

122 It is clearly apparent from the information before the Court that the evaluation method and weightings of the service packages were clearly set out in the tender specifications and were applied without any alteration by the contracting authority, as is also true of the duration of the framework contract.

123 Moreover, it is not apparent from the information before that Court that the tenderers were not given the same information and treatment when the tenders were evaluated.

124 The alleged infringement of the principles of transparency, non-discrimination and equal treatment is therefore not apparent in any way from the information before the Court.

125 The applicant’s line of argument consists in maintaining that those principles were infringed on the grounds that the total price was relevant, the best score was not awarded to the tenderer offering the lowest price and that the score awarded to the tenderers did not reflect the actual deviation between the prices tendered. The applicant claims that the evaluation method is inappropriate and the result arbitrary.

126 It is clear that that line of argument is tantamount to disputing the evaluation method set out in the tender specifications and is a return, in essence, to the arguments under the first plea in law, alleging infringement of Article 110(4) of the Financial Regulation and Article 149 of the rules of application, on the most economically advantageous tender.

127 Since the first plea in law has been rejected (see paragraph 106 above), so too must that line of argument.

128 It therefore follows that the third plea must be rejected, and therefore that the action must be dismissed in its entirety.

129 Under Article 134(1) 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.

130 Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those incurred in the proceedings for interim measures, in accordance with the form of order sought by the Council.

2. Orders Proximus SA/NV to pay the costs, including those incurred in the proceedings for interim measures.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Proximus v Council (European Union public contracts - Judgment) [2019] EUECJ T-117/17 (17 January 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T11717.html Cite as: EU:T:2019:19, [2019] EUECJ T-117/17, ECLI:EU:T:2019:19

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