Yellow Window v EIGE (European Union public contracts - Provision of a service for the implementation of a study on female genital mutilation - Judgment) [2019] EUECJ T-439/17 (05 March 2019)

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(Public service contracts — Tender procedure — Provision of a service for the implementation of a study on female genital mutilation — Rejection of a tenderer’s bid — Obligation to state reasons — Coherence between comments and the numerical score — Non-contractual liability)

Yellow Window NV, established in Antwerp (Belgium), represented by M. Velardo, lawyer,

European Institute for Gender Equality (EIGE), represented by V. Ost and M. Vanderstraeten, lawyers,

APPLICATION (i) under Article 263 TFEU for annulment of the decision of the EIGE of 8 May 2017 rejecting the tender submitted by the applicant in procurement procedure EIGE/2017/OPER/04 and the decisions selecting as successful the tender submitted by Company Y and awarding that contract to it, (ii) under Article 268 TFEU for an award of damages in respect of those decisions and (iii) in the alternative, for compensation for irregularities in the award of that contract,

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,

having regard to the written part of the procedure and further to the hearing on 13 July 2018,

1 The European Institute for Gender Equality (EIGE) was established by Regulation (EC) No 1922/2006 of the European Parliament and of the Council of 20 December 2006 (OJ 2006 L 403, p. 9). Its mission is to support the European Union and its Member States in their efforts to promote gender equality, to fight discrimination based on sex and to raise EU citizens’ awareness of gender equality. Its tasks include collecting and analysing data on gender equality issues, developing methodological tools, in particular for the integration of the gender dimension in all policy areas, facilitating the exchange of best practices, developing dialogue and cooperation on equality at national and European level with organisations, universities, experts, research centres and social partners and, lastly, making documentation available to the public.

2 Against this background, the EIGE published two studies, one in 2012 and the other in 2014, on female genital mutilation and on a methodological approach for estimating that risk.

3 On 16 November 2016, the EIGE published in the Supplement to the Official Journal of the European Union a call for tenders with reference EIGE/2017/OPER/01 (‘the first call for tenders’). The subject matter of that public contract was to produce a new study on female genital mutilation in six Member States, namely Belgium, Greece, France, Italy, Cyprus and Malta (‘the FGM study’). More precisely, it was intended to test and strengthen the EIGE’s methodology in order to further support Member States and help the European Union to achieve the goal of eliminating female genital mutilation. The study was also intended to help the EU institutions and the Member States to estimate the number of women and girls exposed to that risk. It was also intended to contribute to improving the effectiveness of the prevention and the collection of information. Finally, it was intended to raise awareness and facilitate the fight against female genital mutilation in policies by developing recommendations or proposals.

4 On 9 January 2017, the applicant, Yellow Window NV, submitted a tender in response to the first invitation to tender (‘the first tender’). In section 2.6. of that tender, it proposed organising three to five focus groups per country to gather information on the female genital mutilation risk. In section 4.1 of that tender, it mentioned the need to prepare in advance for the meetings that were to take place between weeks 33 and 36. Lastly, in section 4.6.1 of the same tender, it suggested including national researchers in the central team of senior researchers.

5 In addition to the applicant, Eurosupport — Fineurop support Srl and Company X also submitted a tender in response to the first call for tenders.

6 The opening of tenders in the context of the contract award procedure relating to the first invitation to tender took place on 23 and 24 January 2017. The commission for the opening of tenders found that the three tenders complied with the conditions for the opening of tenders, that is to say, they had been received within the prescribed time limit in a closed envelope ensuring their integrity and confidentiality. The tenders were then opened. The minutes relating to that opening stipulate that ‘[t]he integrity of the original tenders [is] guaranteed in the following way. All the three tenders are locked properly in the Procurement Office till the Evaluation Phase with no access to anyone of the Staff’ and that ‘[o]nly after the official assignment of the Evaluation Committee and on the date of commencement of its deliberations, the Procurement Officer will deliver the tenders to the abovementioned Committee’.

7 On 1 February 2017, the EIGE decided to cancel the procurement procedure relating to the first call for tenders. Tenderers who participated in that call for tenders were informed on the following day. That decision was based on the following reasons:

– first, ‘[t]he study [was] substantial for the strategic planning and implementation of the annual work programme goals ...’;

– secondly, ‘[d]espite all the precautions set out for the launch of the procedure, the deadline for disseminating information might have been too short to allow possible tenderers to submit a credible tender; Christmas period might have reduced publicity, since the Contract Notice was published on [16 November 2016] and the deadline for submission of tenders was on [9 January 2017]’;

– thirdly, ‘[o]nly three candidates submitted tenders’ and ‘[t]he specific nature and tasks of the procedure requires genuine and strong competition, therefore, the number is not sufficient for ensuring the best value for money outcome and not reflecting the needs of the [EIGE]’.

8 On 6 February 2017, the applicant sent an email to the EIGE requesting, first, to know what was the number of tenders which is considered sufficient to ensure genuine and serious competition and, secondly, that the first tender be returned to it.

9 On 27 February 2017, the EIGE sent the three tenderers that participated in the first call for tenders envelopes containing the tenders which they had drawn up. The applicant received the letter addressed to it on 3 March 2017.

10 By a notice published in the Supplement to the Official Journal of 21 February 2017, the EIGE relaunched a procurement procedure by a call for tenders with reference EIGE/2017/OPER/04 (‘the second call for tenders’).

11 In section 1.2, entitled ‘Scope of the procedure’, the specifications for the second call for tenders (‘the second specifications’) mentioned that, in order to achieve the objectives pursued, tenders should envisage the organisation of three to five focus target groups in each of the Member States in order to identify the challenges for improving the effectiveness of policies and services related to female genital mutilation, identify levels of awareness of legislation and services available in migrant communities and propose measures to increase that awareness and improve the effectiveness of those policies and services. In section 1.4, entitled ‘Expected results’, those specifications also proposed a deliverable 2.2.8 on the preparation of experience-sharing meetings. Lastly, in section 1.8, entitled ‘Project team’, those specifications provided that the senior team members could not fulfil the role of national researcher.

12 On 20 March 2017, the applicant submitted a tender in response to the second call for tenders. The EIGE also received three further tenders in response to that call for tenders from Eurosupport — Fineurop support, Company X and Company Y.

13 When evaluating the tenders submitted in response to the second call for tenders, the tender evaluation committee (hereinafter referred to as the ‘evaluation committee’) found that the tenders of Eurosupport — Fineurop support and of Company X did not achieve the required minimum score for certain sub-criteria and did not continue the review.

14 The overall evaluation of the tenders submitted by the applicant and Company Y in the context of the tendering procedure for the second call for tenders led to the following classification:

15 On 8 May 2017, the EIGE approved the evaluation mentioned in paragraph 14 above and awarded the contract to Company Y.

16 On 8 May 2017 also, the applicant was informed that its tender in response to the second call for tenders had not been successful. On that occasion the applicant was sent the grounds for the rejection of its tender.

17 By email of 16 May 2017, the applicant requested the characteristics and relative merits of the successful tender and the name of the successful tenderer. The EIGE replied to that request by letters of 18 and 22 May 2017.

18 By application lodged at the Court Registry on 14 July 2017, the applicant brought the present action.

22 On hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral part of the procedure.

23 By letter of 29 May 2018, the Court informed the parties of the measures of organisation of procedure to which the EIGE and the applicant replied on 13 and 14 June 2018 respectively.

24 The applicant and the EIGE presented oral argument and replied to questions put by the Court at the hearing on 13 July 2018. At that hearing, the applicant submitted, as new evidence, an exchange of correspondence with the European Ombudsman. The EIGE took a position on it and it has been added to the file of the case pending a decision on its admissibility.

– annul, on the one hand, the decision of 8 May 2017 which did not accept its tender within the context of the procedure of the second call for tenders, and, on the other hand, the decisions which accepted the tender submitted by Y and which awarded it the contract (‘the contested decisions’);

27 The exchange of correspondence lodged at the hearing consists (i) of a letter of 16 April 2018 from the Board of Eurosupport — Fineurop support asking the Ombudsman to reopen the examination of a complaint previously lodged and which had been rejected on the grounds of an appeal pending before the Court on the same subject, and (ii) of the Ombudsman's reply of 18 June 2018 requesting further information. The submission of that correspondence is admissible. They post-date the last exchange of pleadings and Article 85(3) of the Rules of Procedure of the Court exceptionally allows the parties to produce further evidence before the close of the oral part of the procedure.

28 In support of its claim for annulment, the applicant raises three pleas in law:

– the first plea in law alleges infringement of the principle of equal treatment and the principle of transparency, the duty to respect the confidentiality of tenders, the duty of care and a manifest error of appraisal;

– the second plea in law alleges inconsistency in the grounds and infringement of the principle of proportionality;

– the third plea in law alleges infringement of the principle of good administration.

The first plea in law, alleging infringement of the principle of equal treatment, the principle of transparency, the duty to respect the confidentiality of tenders, the duty to act with care and a manifest error of appraisal

29 The first plea in law comprises four parts, alleging, respectively, infringement of the principle of equal treatment and the duty to respect the confidentiality of tenders, infringement of the principle of transparency, failure to comply with the duty to act with care and the existence of a manifest error of appraisal.

– The first part, alleging infringement of the principle of equal treatment and the duty to respect the confidentiality of tenders

30 The applicant submits that, in relation to the first call for tenders, the second invitation to tender contained a new element, namely that tenders should foresee the organisation of three to five focus groups in each Member State concerned by the FGM study. That new element was derived from its first tender. By using it in the second call for tenders, the EIGE infringed the rule making it necessary to respect the confidentiality of bidders’ tenders. Furthermore, by adding that requirement, the EIGE had lifted the standard of its competitors’ tenders and thus made it lose an advantage over them, thereby infringing the principle of equality for tenderers.

31 It is apparent from the minutes relating to the opening of the tenders in the context of the first call for tenders and from the explanations of the EIGE that, at the time of that opening, the commission for the opening of tenders first examined the validity of the tenders, i.e. whether the tenders had been submitted before the deadline date and time and whether they had been received correctly closed. Next, the tenders were authenticated on every page by the initials of at least one member of the committee. Finally, after the opening of the tenders, the three tenders received were locked away until the evaluation phase, which did not take place, the EIGE in the meantime having cancelled the tendering procedure.

32 That approach is compatible with Article 157(4) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1) under which, during the opening of tenders, the contracting authority is to check the proof of the date and time of receipt of initial tenders and guarantee their integrity.

33 The applicant, on the other hand, adduces no evidence suggesting that, in the context of the contract award procedure relating to the first tender, the commission for the opening of tenders exceeded its powers and examined the tenders on the merits, so that the EIGE would have thus discovered the suggestion by the applicant to form three to five focus groups in each Member State concerned.

34 Moreover, by laying down, in the second specifications, the obligation to organise three to five discussion groups, the EIGE did not add information only present in the applicant’s first tender. Indeed, the obligation to offer discussion groups already appeared in the specifications of the first call for tenders (‘the first specifications’). Thus, the first specifications stipulated, in section 2.1.4, the obligation to organise ‘focus groups on the estimation of girls at risk of Female Genital Mutilation’. Moreover, under the general guidance on methodology, the first specifications stated that the methodological approach ‘should reflect how the information and data providers, including representatives of the relevant communities, [would] be reached and consulted, and how the focus groups’ participants [would] be identified and contacted, how the focus groups [would] be consulted and the relevant information captured ...’.

35 It is true, as the applicant observes, that the second tender specifications stated that the discussion groups should be three to five in each Member State covered by the FGM study. However, as the EIGE argues, and as is evident from its document entitled ‘Estimation of Girls at Risk of Female Genital Mutilation in the European Union — Report’, that addition can be explained by a concern to align those specifications with the methodology that the Institute applies to assess the number of girls at risk of female genital mutilation and which specifically recommends the establishment of three focus groups. In addition, the EIGE cites literature from which it is evident that the formation of three to five discussion groups is a feature of much research in the field of sociology.

37 The applicant maintains that, in the present case, the principle of transparency contained two requirements, namely (i) that the need for strong involvement be included in the first specifications and (ii) that it be made clear, in return, in the second specifications that that requirement was no longer required. The applicant also complains that the EIGE did not reply to its request of 6 February 2017 seeking to know what was the minimum number of tenderers that it considered necessary to ensure the validity of the procedure.

38 In this respect, it should be recalled that the principle of transparency is essentially intended to prevent any risk of favouritism and arbitrariness on the part of the contracting authority, firstly, by allowing all reasonably informed and normally diligent tenderers to understand the exact scope of the specifications and to interpret them in the same way and, secondly, by enabling the contracting authority to effectively check whether the tenderers’ tenders meet the criteria governing the relevant market (see, to that effect, judgment of 14 September 2015, Brouillard v Court of Justice, T‑420/13, not published, EU:T:2015:633, paragraph 110 and the case-law cited).

39 However, the fact that a tendering procedure should provoke considerable participation or, conversely, that that requirement was no longer required or even that the minimum number of tenderers required for the successful completion of that procedure are not formalities without which the tenderers could not understand and interpret the tender specifications in the same way, or without which the contracting authority could not verify the correspondence of the tenderers’ tenders to the criteria governing the contract. Moreover, the applicant does not provide any explanation in this respect.

40 In addition, in this case, the EIGE submits, rightly, that, although it hoped to receive more tenders, it had to decide to award the contract, even though the second call for tenders had provoked only four tenders, because it had become evident that the FGM study did not interest potential tenderers as much as it had initially envisaged.

42 The applicant first complains that the EIGE failed to comply with the principle to act with a certain degree of care by cancelling the procurement procedure for the first call for tenders, and then by re-launching a procurement procedure by the second call for tenders, organised in an almost identical manner, with the amendments made to the second specifications being minor.

43 However, although it has already been held that the tender evaluation committee is obliged to act with ‘a certain degree of care’ when examining the content of each tender (see, to that effect, judgment of 9 September 2011, Evropaïki Dynamiki v Commission, T‑232/06, not published, EU:T:2011:443, paragraph 107), that obligation does not make the re-launching of a procurement procedure by a new call for tenders following the cancellation of a previous procurement procedure subject to substantial changes in the specifications. Moreover, Article 114 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) does not impose such a constraint on the contracting authority.

44 The applicant subsequently alleges again that changes in the second specifications have been drawn from its first tender, which had been initiated under the procurement procedure relating to the first call for tenders.

45 That claim must be rejected for the reasons set out in paragraphs 31 to 35 above, in so far as it concerns the alleged inclusion, in the second specifications, of the requirement to organise three to five discussion groups set out in the applicant’s first tender.

46 The applicant adds that section 1.4, entitled ‘Expected results’, of the second specifications provides for deliverable 2.2.8 relating to the preparation of experience-sharing meetings, which corresponds to a proposal set out in its first tender.

47 In that regard, it should be noted that, in section 4.1, entitled ‘Preparation of meetings’, of its first tender, the applicant had indeed mentioned the need to prepare, in advance, the meetings which should take place between the 33^rd and the 36^th working week and had mentioned, for this purpose, the opportunity to have a list of participants at around the 21^st week.

48 In addition, a deliverable 2.2.8 relating to the preparation of experience-sharing meetings is actually included in section 1.4, entitled ‘Expected results’. The second specifications list therein various topics to be addressed as part of that preparation, such as the drawing up of a list of participants and a methodology for organising those meetings, a description of the way in which those meetings would be facilitated, a schedule and information on the countries in which those meetings would be held, and finally an overview of the issues which would be tackled.

49 As stated in paragraph 33 above, it is not apparent from the file that, in the context of the contract award procedure relating to the first call for tenders, the commission for the opening of tenders examined in detail the tenders submitted in response to that call.

50 In addition, the EIGE credibly claims that deliverable 2.2.8 on the preparation of experience-sharing meetings was added to take account of the shortening of the schedule following the annulment of the contract award procedure relating to the first call for tenders and the re-launching of a contract award procedure, which meant that several activities were likely to take place simultaneously.

51 Moreover, it is clear that the activity proposed by the applicant with a view to preparing experience-sharing meetings, namely having a list of participants, had a more limited scope than that mentioned in the second specifications.

52 Finally, the applicant claims that, in its first tender, it had envisaged that senior researchers can also be part of the team which will be dedicated to the FGM study as national researchers, but that a change to section 1.8, entitled ‘Project team’, of the second specifications has prevented that overlapping of functions. The EIGE was wrong to claim that that change was made following experience acquired in the context of another study conducted at the time of the launch of the second call for tenders, although that study was already ongoing at the time of the first call for tenders. Furthermore, earlier studies conducted under the aegis of the EIGE highlighted the positive impact of a person filling both roles in question.

53 In that regard, it must be noted that, in section 4.6.1, entitled ‘Organisation and responsibilities’, of its first tender, the applicant actually proposed that national researchers should be included among the senior researchers.

54 Furthermore, it is common ground that, in section 1.8, entitled ‘Project team’, of the second specifications, it was added, by contrast, that the senior members of the team entrusted with the FGM study could not fulfil the role of national researcher.

55 The EIGE claims that that addition was made because the fact that the senior members of the team also satisfied the role of national researcher had affected the proper conduct of a study carried out at the time of the second call for tenders. The fact, raised by the applicant, that that study was already ongoing at the time of the first call for tenders does not call into question that explanation. It is not established that the difficulties in question were already known at the time of drawing up the first specifications.

56 Finally, except for substituting its assessment for that of the administration, the Court cannot usefully have regard to the applicant’s assertion, pursuant to which the presence of senior researchers among national researchers would be more beneficial. In any event, even if that assertion were well founded, it does not permit the inference that the EIGE infringed its duty to act with care by stating, in the second specifications, that the senior members of the team entrusted with the FGM study could not fulfil the role of national researcher.

58 The applicant submits that the infringement of the principle of equality and the duty to act with care led to a manifest error of appraisal in the evaluation of its tender in response to the second call for tenders, as the score awarded by the EIGE to its technical offer would have been much higher if the content of its first tender had remained confidential.

59 That fourth part is thus linked to the first and third parts and must consequently be rejected in the same manner.

60 The first plea in law must therefore be dismissed as unfounded in its entirety.

The second plea in law, alleging inconsistency in the grounds and infringement of the principle of proportionality

61 The applicant submits that the obligation to state reasons under the second paragraph of Article 296 TFEU requires the institutions and agencies to demonstrate consistency in the evaluation of tenders and, in particular, the score awarded to a tender to correspond to the comments provided by the evaluators.

62 Furthermore, the principle of proportionality precludes, if a deficiency or a shortcoming is affecting the tender under one evaluation criterion, the same deficiency or shortcoming from justifying the tender being also penalised under a different criterion.

63 Lastly, the applicant disputes the accuracy of certain objections raised against its tender in response to the second call for tenders.

64 It should be noted that the applicant contests, all at once, the reasoning of the contested decisions, which lack consistency, the accuracy of their grounds and the disproportionate nature of the penalties applied to its tender in response to the second call for tenders.

65 The duty to state reasons is an essential procedural requirement, which is distinct from the question whether the grounds given are correct, which goes to the substantive legality of the contested measure (see judgment of 15 October 2013, Evropaïki Dynamiki v Commission, T‑474/10, not published, EU:T:2013:528, paragraph 75 and the case-law cited).

66 It is therefore appropriate to distinguish three parts in the second plea, alleging, the first, an inconsistent statement of reasons, the second, errors in the grounds and, the third, breach of the principle of proportionality.

67 The applicant claims that the grounds of the contested decisions are inconsistent.

68 Concerning the evaluation of its tender in the light of criterion 4, entitled ‘Risk management’, the applicant asserts, first of all, that the evaluation committee’s assessment lacks consistency in that it states that ‘the tenderer outlines several strategies on how to manage and mitigate risks’, but then notes that ‘the risk strategy is limited’.

69 The EIGE, however, observes, correctly, that the two statements above are not contradictory. The first refers to the number of strategies presented, while the second refers to their content. Thus, the evaluation committee states, in particular, that the risk management strategy does not provide the contingency plan in case of any shortfall in the provision of deliverables, nor does it explain how high-quality results would then be guaranteed.

70 The applicant submits, next and more importantly, that, on pain of inconsistency, the mark awarded to a tender must correspond to the strengths and weaknesses identified by the evaluators in their comments.

71 In this respect, the applicant notes, as regards sub-criterion 1.1, entitled ‘Understanding of the general approach of the study’, that the evaluation committee considered that, in its tender, the applicant delegated tasks to the EIGE in disregard of the second specifications. However, the criticism of delegating tasks to the EIGE also appears in the assessment of sub-criterion 1.2, entitled ‘Methodological approach to the collection, analysis and assessment of quantitative and qualitative data’ and in the assessment of sub-criterion 1.6, entitled ‘Methodological approach on regular consultations with EIGE, Member States concerned and communities’.

72 In respect of sub-criterion 1.4, entitled ‘Methodological approach to estimate the risk and to undertake a comparative analysis among the Member States and in reference to EIGE’s previous study’, the applicant submits that the evaluation committee penalised its tender on the ground that its approach to improving and updating the methodology was not sufficiently pro-active and lacked innovative aspects. However, the same criticism, namely the lack of novelty, is also formulated in the light of sub-criterion 1.5, entitled ‘Methodological approach to the analysis of results and developing recommendations-proposals’.

73 Concerning the evaluation of criterion 2, the applicant submits that, in the light of sub-criterion 2.1, entitled ‘Overall project management approach’, the evaluation committee criticised its tender for not having ‘[made it clear] whether the project manager will also fulfil the role of senior researcher’ and that, under sub-criterion 2.2, entitled ‘Composition and organisation of the project team’, that committee similarly criticised ‘the potential double role of the project manager’.

74 Concerning the evaluation of criterion 4, entitled ‘Risk management’, the applicant submits that, by criticising its tender for not proposing risk mitigation, the evaluation committee refers to a deficiency already noted under sub-criterion 1.6, entitled ‘Methodological approach on regular consultations with the EIGE, Member States involved and communities’, to lower the mark.

75 The EIGE does not dispute the above findings and admits having mentioned, in its literal observations, similar complaints in the light of several criteria or sub-criteria.

76 The EIGE states, however, that, in this case, no points have been deducted twice for the same shortcoming and that, if the evaluation committee has sometimes indicated the same shortcomings for several criteria or sub-criteria in order to facilitate the general understanding of its evaluation, that repetition did not mean that points have been withdrawn systematically. That approach would be part of the broad discretion which is afforded to the contracting authority. Furthermore, it follows that the applicant has no interest in relying, in the context of the second plea, on the inconsistency of the grounds of the contested decisions.

77 The applicant takes the view, however, that that clarification provided by the EIGE in its pleadings is not reflected in the assessment made by the evaluation committee and that the latter lacks transparency in any event.

78 In this context, it should be borne in mind that the obligation to state reasons laid down in Article 296 TFEU presupposes that the reference to the strengths and weaknesses of a tender enables the tenderer concerned to understand the marks awarded in the light of the criteria and sub-criteria of the specifications (see, to that effect, judgment of 10 April 2014, Evropaïki Dynamiki v Commission, T‑340/09, not published, EU:T:2014:208, paragraph 135; see also, by analogy, judgment of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 80). A correlation must therefore exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. Moreover, the statement of reasons must show clearly and unequivocally the reasoning of the author of the act, in such a way as to allow (i) interested parties to know the justifications for the measure taken in order to assert their rights and (ii) to enable the Court to exercise its power of review (judgment of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 79). More specifically, Article 113(2) of Regulation No 966/2012 requires the contracting authority to provide the tenderer with the real reasons for the rejection of its tender. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down by the latter provision (see, to that effect, judgment of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 39).

79 It follows from the foregoing that, failing a justification which is neither consistent nor unequivocal nor transparent, the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments.

80 In the present case, however, it is not reflected in the comments of the evaluation committee that, as argued by the EIGE in its pleadings, the complaint alleging that the applicant’s tender would unduly delegate duties to it only led to the subtraction of points at the time of the assessment under sub-criterion 1.1 and not at the time of the evaluation of sub-criteria 1.2 and 1.6, even though that complaint is mentioned therein. Similarly, it is not apparent from those comments that the criticism of the lack of innovativeness of the applicant’s second tender merely justified the deduction of points for sub-criterion 1.4 and not under sub-criterion 1.5 where it also appears. Similarly, it does not result from the comments in question that the complaint based on the possibility that the project manager would also assume the role of a senior researcher was exclusively at the origin of a reduction of points in respect of sub-criterion 2.1, while it also appears under the evaluation in respect of sub-criterion 2.2. Finally, it is not clear from those comments that the complaint alleging that the applicant’s second tender had deficiencies with regard to the risk mitigation methods justified a reduction in points only in relation to criterion 4 and not in relation to sub-criterion 1.6, where the same complaint appears.

81 Taking into account the explanations provided by the EIGE during the proceedings, it must therefore be held that the evaluation committee’s comments on the applicant’s tender list its strengths and weaknesses without indicating, for each criterion or sub-criterion in question, the weaknesses which, because of their repetition, were not taken into account in fixing the corresponding score. The reasoning of the contested decisions thus seems to be inconsistent in so far as the comments of the evaluation committee do not correspond to the points awarded under sub-criteria 1.2, 1.5, 1.6 and 2.2.

82 At least, given the explanations provided by the EIGE during the proceedings, the reasoning of the contested decisions must be considered ambiguous and not transparent.

83 The EIGE cannot entrench itself behind its broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract on the basis of a call for tenders in order to justify the discrepancy between the comments relating to the applicant’s tender and the points which were awarded to it. It should be observed that, where the contracting authority has a broad discretion, respect for the guarantees conferred by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to give reasons for its decisions in a clear and unequivocal manner. Only in this way can the Courts of the Union verify whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, judgment of 15 October 2013, Evropaïki Dynamiki v Commission, T‑474/10, not published, EU:T:2013:528, paragraph 73 and the case-law cited).

84 Similarly, the EIGE cannot validly claim that the applicant has no interest in raising the inconsistency or equivocal nature of the statement of reasons for the contested decisions. The obligation to state reasons is an essential procedural requirement, as a matter of public policy. In view of its importance, that obligation is therefore not available to the parties and may be raised by the Court of its own motion. Consequently, the applicant has failed to prove its interest in relying on the breach.

85 It follows that the first part of the second plea is well founded in that the reasoning of the contested decisions under sub-criteria 1.2, 1.5, 1.6 and 2.2 lacks consistency and transparency.

86 To the extent that the application contains a claim for damages, it is appropriate, in the present case, to continue the examination of the claim for annulment provided that the shortcomings in the reasoning of the contested decisions do not prevent the Court from exercising its power of review in relation to the other parts and the plea raised by the applicant.

87 First, in its assessment under sub-criterion 1.2, entitled ‘Methodological approach to the collection, analysis and assessment of quantitative and qualitative data’, the evaluation committee found that ‘[t]he tenderer’s advice for EIGE’s non participation at the focus groups [was] not in line with requirements in the [second] Tender Specifications and [undermined] the overall transparency of the deliverables’. The applicant submits that, contrary to what is thus submitted, it did not deny the Institute the opportunity to participate in the groups in question.

89 Secondly, as regards sub-criterion 1.3, entitled ‘Methodological approach to the update of legislative, policy frameworks and research in all EU Member States’, the applicant observes that, in its evaluation report, the evaluation committee did not identify any shortcomings, but granted it only 4.9 points and not the maximum, namely 5 points.

90 In its pleadings, the EIGE explained that the evaluation committee had deducted 0.1 points in relation to sub-criterion 1.3 because the schedule presented by the applicant in point 2.11 of its tender for the updating of legislative and policy frameworks and research was not in accordance with the second specifications.

91 However, it must be stated that, in paragraph 2.11 of its tender, the applicant confined itself to setting out the need to consider recent research from 2014 to 2017 without setting any schedule. Viewed from that perspective, the contested decisions are vitiated because of an error of fact.

92 Thirdly, in its assessment under sub-criterion 1.4, entitled ‘Methodological approach to estimate the risk and to undertake a comparative analysis among the Member States and in reference to the previous study [of the EIGE]’, the evaluation committee concluded that ‘the tenderer’s approach to improve/update methodology [was] not sufficiently proactive and lack[ed] innovative aspects’. However, the applicant claims that its proposals on improving and updating the methodology should not have been assessed in the light of sub-criterion 1.4 which concerned only the risk estimation based on the existing methodology. According to the applicant, its proposals ought to have been assessed in the context of sub-criterion 1.5, entitled ‘Methodological approach to the analysis of results and developing recommendations-proposals’, which relates to the recommendations on how to update the methodology.

93 However, it is apparent from the second specifications that sub-criterion 1.4 was intended to enable the evaluation committee to assess whether the tenderer presented a methodology to identify, on the one hand, deficiencies and limitations of the 2014 methodology of the EIGE and to identify, on the other hand, the improvements that would be appropriate. In this context, the evaluation committee was entitled to consider, in the light of that sub-criterion, that the applicant’s approach to improving or updating the methodology was not sufficiently proactive and was lacking in innovation.

94 Fourthly, under sub-criterion 1.5, entitled ‘Methodological approach to the analysis of results and developing recommendations-proposals’, the evaluation committee observed inter alia that ‘the proposal on how to elaborate recommendations on awareness-raising and communication strategies lack[ed] detailed information on methods and expected results’. The applicant denies that its tender was penalised on that ground because, in its view, the recommendations had to specifically result from the relevant market and therefore could not be known at the tender stage.

95 However, it is apparent from the second specifications that sub-criterion 1.5 was intended to enable the evaluation committee to assess the appropriateness of the methodological approach to data analysis in order to make recommendations. It was therefore incumbent, on that basis, for tenderers to explain their method — in other words the ‘manner’ — of drawing up the recommendations. The lack of detailed information on that methodology could therefore be penalised under that sub-criterion.

96 Fifthly, as regards sub-criterion 1.6, entitled ‘Methodological approach on regular consultations with EIGE, Member States involved and communities’, the evaluation committee criticised the applicant’s tender for ‘propos[ing] the second interim meeting to be via [remote communication tool] Skype’. The applicant considers that it could not be penalised for a mere proposal.

97 The characteristic of a tender is, however, to make proposals and the specific objective of the assessment of tenders is to evaluate them. The evaluation committee could therefore consider it appropriate to grant fewer points to a tenderer that proposed to hold meetings via the remote communication tool Skype, rather than in-person meetings in Vilnius (Lithuania).

98 Again in relation to sub-criterion 1.6, the evaluation committee also observed that the applicant’s tender ‘[put] the final responsibility for data collection on EIGE’. The applicant maintains, however, that it did not, at any point in its tender, attribute any liability to the EIGE and that that sub-criterion did not, in any event, relate to data collection, but to consultations with the EIGE, the Member States concerned and the communities involved.

99 However, it is clear that, in paragraph 4.4 of its tender, the applicant had stated that, after the closure of deliverables D.1.1 and D.1.2, all ‘out of time’ information received from the Member States would be sent to the EIGE. However, as the latter observes, responsibility for compliance with deadlines for the collection of information was to lie with the service provider. In addition, contrary to what the applicant claims, the evaluation committee’s criticism could be made under sub-criterion 1.6, which concerned, in particular, the consultation of the Member States.

100 Sixthly, as regards sub-criterion 2.1, entitled ‘Overall project management approach’, the evaluation committee deducted points from the score awarded to the applicant’s tender because ‘it [was] unclear whether the project manager will also fulfil the role of senior researcher’ and because ‘a double role for the project manager [was] not advised by EIGE as it [weakened] the overall project management and consequently the general assignment’. The applicant denies that its tender could be penalised on those grounds. In its view, the second specifications do not preclude the project manager from also assuming the role of senior researcher and that double role from even being an advantage.

101 Nevertheless, the second specifications mentioned what the composition of the team entrusted with the FGM study should be, as well as the profile and tasks of its members by distinguishing the project manager function from that of senior researcher. Moreover, even if those specifications outlined a non-exhaustive list of the tasks incumbent upon each of them, the contracting authority could consider that the overlapping of functions proposed was inappropriate because it risked weakening the overall management of the project and, ultimately, its completion. Finally, the claim that combining the functions of project manager and senior researcher would be an advantage is an unsubstantiated assessment made by the applicant which the EIGE could not share.

102 Seventhly, as regards sub-criterion 2.2, entitled ‘Composition and organisation of the project team’, the evaluation committee penalised the applicant’s tender because ‘the overall internal communication processes [were] only briefly described’. The applicant disputes that assessment on the ground that that criticism should instead have been made under sub-criterion 2.1, entitled ‘Overall project management approach’.

103 However, the second specifications stated, under sub-criterion 2.2, that the tenderer was expected to ensure effective internal communication within the team and in regular consultations with the EIGE. The criticism of the evaluation committee could thus fall within the organisation of the project team rather than the overall assessment of the management of the project team.

104 Still in relation to sub-criterion 2.2, the evaluation committee also penalised the applicant’s tender because ‘the proposed replacement management [was] limited as not all roles within the team [were] to be considered as easily interchangeable’. The applicant considers, however, that the issue of the replacement of members of the team responsible for the FGM study should have been evaluated under criterion 4, entitled ‘Risk management’.

105 It is true that criterion 4 concerned the way in which tenderers intended to manage the risks and mishaps that may arise during the carrying out of the FGM study. However, it is apparent from the second specifications that sub-criterion 2.2 emphasised the need for the tenderer to submit, inter alia, clear proposals describing the composition of the team working on the project, the distribution of tasks and how the stability of the core team would be guaranteed. Moreover, still according to those specifications, the evaluation committee was to assess, inter alia, under sub-criterion 2.2, how the skills of the team members would be used to ensure the completion of the FGM study in a timely manner.

106 Finally, the applicant claims that the criticism concerning its management of staff replacements was unfounded because the team which was working on the FGM study was composed of highly skilled people and because the second specifications did not require its members to be interchangeable.

107 However, the applicant is making pure assertions. Moreover, the evaluation committee did not require members of the team working on the FGM study to be interchangeable. On the contrary, having regard to the second specifications (see paragraph 105 above), it was able to take the view that the management of replacements was envisaged only in a limited fashion.

108 Eighthly, regarding criterion 4, entitled ‘Risk management’, the evaluation committee found that, contrary to what had been stated by the applicant in its tender, Ramadan and the summer holidays were not in conflict with the time limits imposed by the second specifications. The applicant claims, however, that Ramadan and those holidays effectively coincided with the fieldwork period and that it had identified that state of affairs in its tender as presenting a risk for which it had planned measures in order to mitigate that risk.

109 It is apparent from the second specifications that the planned schedule for the carrying out of the FGM study actually covered periods of Ramadan and the summer holidays. The EIGE notes, however, without being contradicted on that point, that, in so far as the period of Ramadan ran from 26 May to 24 June 2017, it did not concern the provision of the first documentary research deliverables and that the fieldwork discussion groups could have started, if necessary, after the summer holidays.

110 Again in relation to criterion 4, the evaluation committee also observed that the applicant’s tender did not mention the possibility, for the team which would be working on the FGM study, of working under pressure and that it did not guarantee the provision of high-quality results in this context. The applicant replies that, previously, it had already provided the EIGE with a first quality study on female genital mutilation in a short period of time and that it had planned measures to ensure that the schedule was respected.

111 However, the EIGE was required to evaluate the applicant’s tender in the light of its proposals, without taking into account its personal knowledge of the applicant’s experience (see, to that effect, judgment of 26 February 2002, Esedra v Commission, T‑169/00, EU:T:2002:40, paragraph 158 and the case-law cited), on pain of disregarding the equality of the tenderers. In addition, the provision of an earlier study, even if it was of high quality, could not guarantee that the applicant was once again able to achieve the expected results within the time limit set by the second specifications.

112 It follows from the foregoing that the second part of the second plea is well founded only in so far as the assessment of the EIGE under sub-criterion 1.3 is vitiated by an error of fact.

113 The applicant submits that the principle of proportionality means that, where a tender is penalised for a weakness or defect under an evaluation criterion, the same deficiency or shortcoming cannot lead to the tender being penalised under another criterion. That is, moreover, the practice followed by the European Commission.

114 In the present case, the applicant submits that, in criticising its tender by a single complaint, namely with regard to sub-criteria 1.1, 1.2 and 1.6, with regard to sub-criteria 1.4 and 1.5, with regard to sub-criteria 2.1 and 2.2 and with regard to sub-criterion 1.6 and criterion 4, the EIGE penalised its tender disproportionately.

115 In addition to the fact that the EIGE claims that it did not deduce points for the same deficiency or for the same shortcoming several times (see paragraph 76 above), it argues that the principle of proportionality does not preclude a deficiency or a shortcoming affecting a tender in view of a criterion from being invoked under another criterion or sub-criterion.

116 However, it follows from the equivocal nature of the reasoning of the contested decisions (see paragraphs 78 to 85 above) and from the resultant impossibility for the Court to ascertain whether, and to what extent, the same deficiency or the same shortcoming has not led to a withdrawal of points in respect of several criteria or sub-criteria that, in the circumstances of the case, it cannot be ascertained whether the EIGE in fact infringed the principle of proportionality, since that control, by nature, can be exercised only in the presence of a statement of reasons making it possible to assess whether or not the administration has exceeded the limits of its discretion (see, to that effect, judgments of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207, paragraph 226, and of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 181).

117 It follows from the preceding examination that the second plea is based solely on the fact that the reasoning of the contested decisions lacks consistency and transparency with regard to sub-criteria 1.2, 1.5, 1.6 and 2.2 (see paragraphs 78 to 85 above).

118 Moreover, only the assessment of the applicant’s proposals in the light of sub-criterion 1.3 is vitiated by an error of fact (see paragraph 91 above).

The third plea in law, alleging infringement of the principle of sound administration

119 The applicant argues that the contested decisions are the result of a biased procedure. In its view, the EIGE should have refrained from opening the first tenders and it should have protected their confidentiality, since it considered that the number of tenderers was insufficient. In addition, the EIGE had cancelled the first call for tenders while using its first tender to prepare a new contract award procedure.

120 The applicant also claims that the EIGE’s conduct was inconsistent in that, (i) the number of four participants following the second call for tenders remained rather low, (ii) no provision imposed a minimum number of participants, and (iii) the EIGE previously accepted a reduced number of tenderers, ranging from two to four, for contracts with a budget greater than that foreseen for the contract in question.

121 The EIGE contends, as a principal claim, that the plea in law is inadmissible as it seeks to criticise its decision to cancel the first tender procedure and its decision to launch a new call for tenders, although those decisions would have become definitive in the absence of having been challenged in sufficient time.

122 As the EIGE submits, the plea criticises the decision, which became final, to cancel the tender procedure for the first call for tenders, in that the applicant argues therein that no provision imposes a minimum number of participants and that the EIGE has previously accepted a very small number of tenderers. The third plea is inadmissible to that extent.

123 By contrast, the complaints alleging that the EIGE used the first tender to prepare the second call for tenders and that its conduct is inconsistent, in so far as the number of four participants in the second call for tenders remained rather low, must be regarded as being directed against the contested decisions.

124 As regards the substance, the complaint alleging that the EIGE used the applicant’s first tender to prepare the second call for tenders overlaps with the first plea and must be rejected for the reasons already set out in paragraphs 31 to 35 and 46 to 56 above.

125 Next, the applicant pleads, to no avail, the inconsistency of the EIGE which would have brought to an end the procedure relating to the second call for tenders, although a participation limited to four tenderers remained relatively low.

126 It is apparent from the decision of 2 February 2017 cancelling the tendering procedure relating to the first call for tenders that it was taken, in essence, for two reasons. Firstly, it was taken because the EIGE deemed the number of tenderers to be insufficient, taking into account the importance of the FGM study and the need for genuine and strong competition. Secondly, it was taken because the EIGE considered that the time limit for the submission of tenders might have been too short and that the Christmas period might have been detrimental to publicity for the first call for tenders.

127 However, as the EIGE stated, having regard to the result of the second call for tenders, it was able to find that the FGM study did not interest the potential tenderers as much as it had hoped, although it needed the results of that study and could no longer afford to postpone the award of the contract. The need to obtain the FGM study without further delay is, moreover, corroborated by the fact that the schedule over eleven months in the first call for tenders was reduced to nine months in the second.

129 In the light of all the foregoing, it is necessary to annul the decision of 8 May 2017 rejecting the applicant’s tender, on the basis of the second plea inasmuch as, first, the statement of reasons for that decision is lacking consistency and transparency with regard to sub-criteria 1.2, 1.5, 1.6 and 2.2 and inasmuch as, secondly, it is vitiated by a factual error with regard to sub-criterion 1.3. Moreover, having regard to the inseparable links between the contested decisions, it is appropriate also to annul the decisions of 8 May 2017 having accepted the tender of Company Y and awarding the contract to it, in accordance with the form of order sought by the applicant (see judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO, T‑556/11, EU:T:2016:248, paragraph 261 and the case-law cited).

130 By its second head of claim, the applicant submits that, even if the Court were to annul the contested decisions, the contract in question would not be awarded to it since its duration was only nine months. It therefore considers that it is entitled to reparation for the damage it suffered. It refers to its claim for annulment in order to demonstrate the unlawful conduct of the EIGE. It adds that, in the absence of such conduct on the part of the EIGE, it would have had a genuine chance of being awarded the contract given that its tender had been assessed as being technically the best one. It assesses its chances of being awarded the contract in the absence of illegality at 80% and therefore estimates its damage at 80% of EUR 389 990, corresponding to the amount of its tender, that is EUR 311 882.

131 According to settled case-law, for the Union to incur non-contractual liability, the applicant must prove the unlawfulness of the alleged conduct of the institution concerned, actual damage and the existence of a causal link between that conduct and the damage complained of. If one of those conditions is not satisfied, the action must be dismissed in its entirety without it being necessary to examine the other conditions of that liability (see judgments of 15 March 2012, Evropaïki Dynamiki v Commission, T‑236/09, not published, EU:T:2012:127, paragraph 125 and the case-law cited, and of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 93 and the case-law cited).

132 In the present case, the claim for damages is based on the same unlawfulness as that put forward in support of the claim for annulment of the contested decisions. However, that claim is vitiated by a failure to state reasons and by a factual error (see paragraph 129 above).

133 However, with respect to the existence of a causal link between instances of unlawful conduct in form and substance and the damage purportedly suffered, it is settled case-law that inadequate reasoning is not capable as such of rendering the European Union liable, in particular because it is not capable of showing that, had the reasoning not been inadequate, the market in question could, or should, have been awarded to the applicant (see, to that effect, judgments of 20 October 2011, Alfastar Benelux v Council, T‑57/09, not published, EU:T:2011:609, paragraph 49; of 17 October 2012, not published, Evropaïki Dynamiki v Court of Justice, T‑447/10, EU:T:2012:553, paragraph 123; and of 14 January 2015, Veloss International and Attimedia v Parliament, T‑667/11, not published, EU:T:2015:5, paragraph 72).

134 In the present case, therefore, it is not possible to recognise the existence of a causal link between the lack of consistency and transparency of the reasoning of the decision of 8 May 2017 rejecting the applicant’s tender which was found and the damage alleged by the applicant.

135 As regards the causal link between the substantive illegality found at paragraph 91 above, namely the factual error committed under sub-criterion 1.3, on the one hand, and the loss of an opportunity, on the other hand, it should be noted that, in the absence of that error, the applicant would not have been ranked first and awarded the contract in question. In view of its financial offer and that of the successful tenderer, in order for the applicant to obtain that contract, its technical offer would have had to collect 11.4 additional points, as noted by the EIGE. However, that offer was penalised only by 0.1 points under sub-criterion 1.3.

136 It follows that, since one of the conditions necessary for the Union’s non-contractual liability is not satisfied, the applicant’s claim for damages cannot be upheld.

137 By its third head of claim, the applicant asserts that, should the Court consider that the various irregularities raised by it justify neither the annulment of the contested decisions nor the award of damages, it should nevertheless obtain compensation which it assesses at EUR 20 000.

138 In so far as it follows from paragraph 129 above that the contested decisions must be annulled, there is no need to examine the present head of claim which was formulated in the alternative. In any event, in so far as it follows from the examination of the second head of claim that the conditions for the Union’s non-contractual liability are not met and the applicant itself provides no indication as to the legal basis of its claim for compensation, that claim must be rejected.

139 Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some heads and fails on others. However, if it appears justified in the light of the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.

140 As the action has been successful in part, the Court will make an equitable assessment of the circumstances of the case in holding that the applicant is to bear 25% of its own costs and orders the EIGE to bear its own costs and to pay 75% of the costs incurred by the applicant.

1. Annuls the decision of the European Institute for Gender Equality (EIGE) of 8 May 2017 rejecting the tender submitted by Yellow Window NV in the context of the EIGE/2017/OPER/04 tender procedure and the decisions of 8 May 2017 adopting the tender submitted by Company Y in the context of that procedure and awarding it that contract;

3. Orders Yellow Window to bear 25% of its own costs and the EIGE to bear its own costs and to pay 75% of the costs incurred by Yellow Window.

Tenderer	Total score for quality	Prices	Final score	Classification
Company Y	77.7	EUR 327 190	23.7	1
[applicant]	81.4	EUR 389 990	20.9	2

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Yellow Window v EIGE (European Union public contracts - Provision of a service for the implementation of a study on female genital mutilation - Judgment) [2019] EUECJ T-439/17 (05 March 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T43917.html Cite as: [2019] EUECJ T-439/17

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