Evropaiki Dynamiki v Commission, [2008] EUECJ T-406/06 (12 November 2008)

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(Public service contracts - Invitation to tender concerning support services for the system of registries established under Directive 2003/87/EC - Rejection of a tender - Decision to award the contract to another tenderer - Manifest error of assessment - Obligation to state the reasons on which the decision is based - Claim for damages)

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and N. Keramidas, lawyers,

Commission of the European Communities, represented by M. Wilderspin and E. Manhaeve, acting as Agents,

APPLICATION for, first, annulment of the Commission’s decision of 19 October 2006 to reject the applicant’s offer in a call for tenders for support services for the system of registries established under Directive 2003/87/CE of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), the Community independent transaction log (CITL), with technical maintenance and user support (OJ 2006 S 102), and an application for annulment of the decision to award the contract to another tenderer and, secondly, a claim for damages,

composed of V. Tiili, President, F. Dehousse (Rapporteur) and I. Wiszniewska-Białecka, Judges,

having regard to the written procedure and further to the hearing on 30 January 2008,

1 The Commission’s procedure for the award of contracts for services is governed by the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’) and the provisions of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1; ‘the Implementing Regulation’), in the version applicable to the facts of the present case.

‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination.’

3 Article 92 of the Financial Regulation provides that ‘a full, clear and precise description of the subject of the contract must be given in the documents relating to the call for tenders’.

4 Article 93(1) of the Financial Regulation specifies the cases in which candidates or tenderers are to be excluded from participation in a procurement procedure and Article 94 of the Financial Regulation specifies the cases in which contracts may not be awarded to candidates or tenderers.

‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating the content of the tenders shall be defined in advance and set out in the call for tender.

2. Contracts may be awarded by the automatic award procedure or by the best-value-for-money procedure.’

‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.

2. The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’

‘The contracting authorities shall draw up clear and non-discriminatory selection criteria.’

‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure.

2. The contracting authority shall, within not more than 15 calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.

3. In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or email, that their application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been accepted.

The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.

Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than 15 calendar days from receipt of the request.

The contracting authority may not sign the contract or framework contract with the successful tenderer until two calendar weeks have elapsed from the day after the simultaneous dispatch of the rejection and award decisions. If necessary it may suspend signing of the contract for additional examination if justified by the requests or comments made by unsuccessful tenderers or candidates during the two calendar weeks following the rejection or award decisions or any other relevant information received during that period. In that event all the candidates or tenderers shall be informed within three working days following the suspension decision.’

9 Article 149(3) of the Implementing Regulation stems from Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005, amending Regulation No 2342/2002 which laid down the Implementing Regulation (OJ 2005 L 201, p. 3), recital 5 in the preamble to which states:

‘It is also appropriate to lay down a procedure for informing unsuccessful candidates and tenderers in procurement procedures conducted by the institutions on their own account. Such information should be provided before the contract is signed and should give the unsuccessful candidates and tenderers the reasons why their application or tender has been rejected. The introduction of such an information procedure is designed to make the institutions subject to an obligation imposed on the Member States by the Court of Justice of the European Communities.’

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

11 By a contract notice of 31 May 2006, published in the Supplement to the Official Journal of the European Union (OJ 2006 S 102), the Commission issued an invitation to tender for services to support the system of registries established under Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), the Community independent transaction log (‘CITL’), together with technical maintenance and user support.

12 Under Directive 2003/87 and Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC of the European Parliament and of the Council (OJ 2004 L 386, p. 1), adopted in order to implement it, the Commission is required to establish, operate and maintain the CITL, which records the greenhouse gas emission allowances issued, transferred and cancelled. As this scheme necessitates the services of professional information technology specialists, who were previously provided by the CITL’s developer, the Commission launched the invitation to tender in issue in the present case.

13 The invitation to tender comprised a section headed ‘technical description’ a section relating to administrative details and a section setting out the selection and award criteria.

14 The section of the invitation to tender headed ‘technical description’ recorded the general background to the contract and described its objectives. It stated that the tasks can be divided into two main groups, called respectively ‘user support profile’ and ‘technical profile’. The nature of the tasks was explained for each of the two groups in eight points. With regard to the second group, ‘technical profile’, it is also stated that:

‘the CITL is a webservices based system … The system will not need major improvements. We only anticipate that it will need minor updates and enhancements to follow the developments of the market. Global corrective maintenance is to be expected.’

15 The ‘technical description’ part of the invitation to tender included a point 4 entitled ‘Experience required of the Contractor’, which stated in particular as follows:

‘In carrying out the assignment the Contractor should preferably possess the following specific skills and expertise:

(d) For the staff undertaking the technical services: deep understanding of the architecture of the registries system and of the technologies employed in programming the Community Registry and CITL applications and deployed in the hosting environment, and of the functional and technical specifications of the Community Registry and the CITL.’

16 The administrative part of the invitation to tender showed the budget allocated to the contract (a maximum of EUR 265 000), specified the requirements relating to the technical proposal and indicated the maximum number of pages of the tender, namely 20 in the present case, excluding the annexes.

17 Finally, the third part of the invitation to tender set out the three stages in the examination of tenders. It stated as follows:

‘The procedure of the award of the contract, which will concern only admissible bids, will be carried out in three successive stages. Only bids meeting the requirements of stage one will be examined in the following stages.

Stage 1: to check, in the first stage (exclusion criteria) whether tenderers can take part in the tendering procedure and, where applicable, be awarded the contract (see annex 3).

Stage 2: to check, in the second stage (selection criteria), the technical and professional capacity as well as the economic and financial capacity of each tenderer who has passed the exclusion stage (see Part 3, point 2 - selection criteria).

Stage 3: to assess on the basis of the award criteria each bid which has passed the exclusion and selection stages (see Part 3, point 3 - Award criteria).’

18 After giving details of the criteria for exclusion and selection, the invitation to tender listed the three criteria for award of the contract as follows:

This criterion is used to assess the degree to which the tender shows a clear understanding of the objectives and tasks of the study/service to be provided.

This criterion relates to the quality of project planning, the organisation of the team with a view to managing a project of this nature and the availability of the resources for the completion of the contractual tasks.

This criterion assesses the suitability and strength of the proposal as measured against the requirements of the specification in terms of the technical content, completeness, originality of ideas (where appropriate) and proposed effort.’

19 A points system was laid down for assessment of the tenders by reference to each of the three award criteria. First, a minimum points threshold was specified for each criterion. The threshold was 24 points for the ‘Understanding’ criterion, 22 points for ‘Project management and availability’ and 16 points for ‘Methodology’. Secondly, an overall minimum of 65 points was required. Tenders obtaining the minimum points required were deemed to be technically sufficient for the purposes of the criteria and were then examined to determine the best-value-for-money tender by dividing the price by the total number of points.

20 Annex 2 to the invitation to tender consisted of a model table relating to the financial part of the tender, entitled:

21 By two faxes of 6 July 2006, the applicant asked the Commission for clarification concerning the invitation to tender (15 questions in all) relating in particular to the meaning of a ‘deep understanding’ of the business area, which the invitation to tender required from bidders, and how that could be demonstrated in the tender. The applicant also asked the Commission for an estimate of the effort required per year and per task and for details of the description of tasks, in particular the operational hours of the user support service.

22 The Commission replied to the 15 questions from the applicant by fax of 10 July 2006. With regard to a ‘deep understanding’, it referred to the passage in the invitation to tender concerning the experience which the contractor was required to have and explained what was envisaged by the term. With regard to the estimate of the effort required, the Commission replied that it could not be estimated with reasonable certainty. The Commission stated that the user support service operated from 08.00 to 18.00 on weekdays.

23 Also on 10 July 2006, the applicant sent a further request for clarification to the Commission in which it stressed that the term ‘deep understanding’ was subjective and not quantifiable and asked how it could demonstrate that it was able to meet that requirement.

24 The Commission replied by fax of 11 July 2006, referring to its previous reply.

25 On 12 July 2006, the applicant submitted its tender to the Commission, which states that it received a total of four tenders.

26 By letter and fax of 19 October 2006 the Commission informed the applicant that its tender had been rejected at the award stage in the following terms:

‘Your organisation failed to represent the best case of value for money in accordance with the award criteria set out in the call for tender. Even though your offer passed the selection and exclusion criteria, we regret to inform you that it had not been retained after detailed examination by the evaluation committee of all the offers submitted to [the Directorate General] Environment. Specifically, the evaluation committee concluded:

1. Understanding: The authors have a good understanding of the project. They do however provide sufficient material to show their understanding of the technical aspect of this contract. There is, nevertheless, a concern that there is much repetition in their offer.

2. Methodology: European Dynamics has underestimated the amount of man-days necessary to cover the user support and only offers 30 man-days for this task. This is unfortunate as they could have offered the necessary days and still be under the Commission’s estimated budget. The offer is not balanced between the two parts of the contract but is concentrated on the technical part. The committee does not feel that the proposed team and the distribution of the workload would be sufficient to cover the needs for this contract.

3. Project management and availability: The presentation of the methodology is very detailed and long but this has [the] effect that it is not focused. Nevertheless European Dynamics presents a methodology that could do the job. There are no interesting new ideas on how to approach the tasks.’

27 The Commission also stated that the contract would not be signed for two calendar weeks from the day following the date on which its letter was sent. The Commission added that any request from the applicant for information and any reply from the Commission could not be regarded as suspending the two-month deadline for lodging an appeal against the contract award decision.

28 By letter and fax of the same date, namely 19 October 2006, the applicant asked the Commission to inform it of the name of the successful tenderer and the scores awarded to its own technical offer and to that of the successful tenderer, and to send the applicant a copy of the evaluation committee’s report and a comparison of its own financial offer with that of the successful tenderer. The applicant added that it would like a reply by fax or email, and set out its contact details.

29 By letter of 26 October 2006, which the applicant states that it received only on 14 November 2006, the Commission informed the applicant that it had been eliminated because the minimum points required for the ‘Project management and availability’ criterion had not been obtained. The Commission referred to the evaluation committee’s findings, giving the number of points obtained by the applicant for each award criterion, together with the name of the successful tenderer and the number of points it obtained.

30 By letter and fax of 13 November 2006, the applicant sent the Commission a letter reminding it of the applicant’s request of 19 October 2006 and adding a request for clarification concerning the evaluation committee’s assessment with regard to the fact that the applicant’s offer had underestimated the number of man-days necessary in offering only 30 man-days.

31 The Commission signed the contract with the successful tenderer on 14 November 2006. It is apparent from the arguments put forward before the Court at the hearing of 30 January 2008 that that signature renders formal the decision to award the tender, which therefore dates from 14 November 2006.

32 By fax of 16 November 2006, the applicant drew attention to the delay in the delivery of the Commission’s response dated 26 October 2006, which it stated it received only on 14 November 2006, and repeated its request for a full copy of the evaluation committee’s report, adding that the Commission could keep confidential those parts of the report which did not concern the applicant or the successful tenderer.

33 The applicant also disputed the evaluation of its tender in relation to the three award criteria. With regard to the ‘Understanding’ criterion, it submitted that its tender was clear and concise. With regard to ‘Project management and availability’, it described the Commission’s letters of 19 and 26 October 2006 as ‘confusing’ in that the evaluation under the heading ‘Methodology’ in the letter of 19 October 2006 was the same as that under the heading ‘Project management and availability’ in the letter of 26 October 2006 and vice versa. The applicant also provided a table showing the profiles of the proposed experts and the number of man-days allocated to each of them, as well as the total man-days (410 man-days a year). The applicant stated that the number of 30 man-days mentioned for covering the user support part was mistaken. It added that it was obvious from the curriculum vitae of the persons proposed that they were capable of covering more than one function if necessary. The applicant also denied that its offer was unbalanced, as the technical part consisted of six pages and the user support part of four pages.

34 In addition, the applicant asked for detailed information on the successful tenderer’s offer. Regarding the proposed budget, the applicant stated that its offer was lower than that chosen. Finally, the applicant disputed the decision to award it a number of points which disqualified it on the second criterion and, having regard to its observations, invited the Commission to suspend the procedure for signature of the contract with the successful tenderer.

35 On 24 November 2006, the Commission replied to the applicant that the contract had been signed with the successful tenderer on 14 November 2006 and that the applicant’s comments and request for re-examination, received by fax on 16 November 2006, were too late in view of the period laid down by Article 149(3) of the Implementing Regulation, which had expired on 3 November 2006.

37 By fax of 30 November 2006, the Commission sent the applicant an extract from the evaluation report in a non-confidential version pursuant to Article 100 of the Financial Regulation. The Commission stated that it could not disclose details concerning the other tenderers which would harm their business interests. The document in question, dated 29 August 2006, contained, first, a note of the exclusion, selection and award criteria and, secondly, a table showing the number of points awarded for each award criterion to the applicant, its total points and the price it had proposed. The name of the successful tenderer appeared in the table, together with its total points and the price it offered. With regard to the other two unsuccessful tenderers, only their names were given. Finally, the report contained, for each tenderer, the evaluation committee’s analysis of their respective offers and the committee’s conclusions, which proposed that the contract be awarded to the successful tenderer finally chosen by the Commission. Only the part of the analysis relating to the applicant was shown. It was worded as follows:

‘1. The authors have a good understanding of the project. They do however provide sufficient material to show their understanding of the technical aspect of this contract. There is, nevertheless, a concern that there is much repetition in their offer.

2. European Dynamics has underestimated the amount of man-days necessary to cover the user support and only offers 30 man-days for this task. This is unfortunate as they could have offered the necessary days and still be under the Commission’s estimated budget. The offer is not balanced between the two parts of the contract but is concentrated on the technical part. The committee does not feel that the proposed team and the distribution of the workload would be sufficient to cover the needs for this contract.

3. The presentation of the methodology is very detailed and long but this has the effect that it is not focused. Nevertheless European Dynamics presents a methodology that could do the job. There are no interesting new ideas on how to approach the tasks.

Evaluation committee’s comment on sub-contracting: there is no sub-contracting.

This offer failed to obtain technical sufficiency for award criteria 2. It is therefore not selected.’

38 By application lodged at the Registry of the Court of First Instance on 28 December 2006, the applicant brought the present action.

39 On hearing the report of the Judge-Rapporteur, the Court of First Instance (First Chamber) decided to open the oral procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 30 January 2008.

- annul the decisions to reject its tender and to award the contract to the successful tenderer;

- order the Commission to compensate it for the loss suffered as a result of the procurement procedure in question, which it assesses at EUR 86 300;

- order the Commission to pay the costs, even if the present action is dismissed.

42 The Court observes, as a preliminary point, that the applicant is seeking the annulment of the decision of 19 October 2006 to reject its tender and of the decision of 14 November 2006 to award the contract to another tenderer.

43 Having regard to the close connection between those two decisions and inasmuch as the applicant’s arguments concern the decision to reject its tender, the Court is of the opinion that it is appropriate to examine first the lawfulness of the second of those decisions (‘the contested decision’).

44 The applicant raises two pleas in law. The first alleges multiple and manifest errors of assessment which the evaluation committee is alleged to have made in assessing the applicant’s offer and the infringement of the principles of equal treatment and transparency. In the second plea, the applicant alleges that the merits of the successful tenderer were not disclosed and that the contested decision lacks a proper statement of reasons.

45 The Court will consider, first of all, the second complaint set out in the second plea, relating to the lack of a proper statement of reasons, then the first plea, alleging manifest errors of assessment, and, lastly, the first complaint set out in the second plea, concerning the failure to disclose the merits of the successful tenderer.

46 The applicant claims, on several occasions, that the contested decision must be regarded as failing to state adequate reasons. It claims, in the plea alleging that the relative merits of the successful tender were not disclosed, that the Commission informed it on 26 October 2006 merely of the successful tenderer’s identity and of the number of points it had received (88 out of 100), without stating the relative merits of the successful tender compared with the applicant’s tender, contrary to Article 100(2) of the Financial Regulation. In addition, in the course of its arguments alleging manifest errors of assessment, it claims that the Commission is attempting to justify the contested decision retrospectively, which leads to discrepancies, demonstrating, in the applicant’s view, the lack of reasoning behind the contested decision.

47 It must be borne in mind, first of all, that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35).

48 In addition, pursuant to Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Regulation, the Commission was under a duty to notify the applicant of the grounds on which its offer was rejected and, the applicant having submitted an admissible tender, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded, within not more than 15 calendar days from the date on which a written request was received.

49 Such a course of action is consistent with the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (Case T-19/95 Adia interim v Commission [1996] ECR II-321, paragraph 32, and judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 68 and 69).

50 Moreover, the observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought (see Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 58, and Case T-4/01 Renco v Council [2003] ECR II-171, paragraph 96).

51 In the present case, it is accepted that the contested decision sets out the grounds on which the offer was rejected. Accordingly, by letter and fax of 19 October 2006, the Commission informed the applicant that its tender had been rejected at the award stage and reproduced the evaluation committee’s findings on each of the award criteria.

52 In addition, in response to a written request from the applicant, also dated 19 October 2006, the Commission, by letter of 26 October 2006, informed the applicant that it had been eliminated because the minimum points required for the ‘Project management and availability’ criterion had not been obtained. The Commission referred to the evaluation committee’s findings, giving the number of points obtained by the applicant for each award criterion. It also stated the name of the successful tenderer, the price that tenderer had offered for the contract and the number of points it had obtained.

53 Although it appears that the letter of 19 October 2006 notifying the applicant of the rejection of its tender reversed the titles of two of the award criteria, that reversal cannot, however, be regarded as a failure in the contested decision to give adequate reasons. In the light of the content of each of the assessments, the wording of the invitation to tender, the content of the letter of 26 October 2006 and the extract from the minutes of the evaluation committee sent to the applicant on 30 November 2006, the applicant was able to identify the specific reasons for the decision to reject its offer, so that that reversal is of no relevance in the present case.

54 Consequently, the argument alleging a failure to give a proper statement of reasons must be rejected.

The first plea, alleging manifest errors of assessment and infringement of the principles of equal treatment and transparency

55 The Court will consider first the arguments raised in respect of the manifest errors of assessment allegedly committed by the evaluation committee, and then the arguments raised in respect of infringement of the principles of equal treatment and transparency.

56 First, the applicant disputes the evaluation committee’s assessment concerning the ‘Project management and availability’ criterion, for which it obtained only 20 out of 35 points, whereas the minimum required was 22 points. Specifically, it denies that there was a ‘lack of balance’ in its offer. It submits, on the contrary, that the part concerning technical services, dealt with in pages 23 to 29 of its offer, and that relating to user support services, analysed in pages 20 to 23 of its offer, addressed the needs of the contracting authority precisely as they were described in the invitation to tender and complied with the limitations imposed on tender volume.

57 It adds that, if the user support element were so important, the specifications should have mentioned that fact. The Commission itself was unable to provide an estimate of the effort required in this respect when the applicant requested one from it on 10 July 2006.

58 The applicant also challenges the evaluation committee’s finding that it underestimated the resources necessary for user support. That committee wrongly assumed that the 30 days allocated for the quality manager was the total number of man-days provided for user support. The applicant claims that, on the contrary, it is evident from its technical offer that the senior analyst, the software and database architect and the senior software engineer were to be involved with user support, that activity also calling for information technology skills. The man-days estimate for the user support activity would therefore amount to approximately 190 man-days, the allocation being 40 man-days for the senior analyst, 40 man-days for the software and database architect and 40 man-days for senior software engineer. It adds that, in the light of the skills, experience and seniority of the proposed personnel and the distribution of the workload, the proposed team was more than adequate to carry out the services envisaged in the contract. It states that it followed the template in the tendering documents and that the breakdown of the number of man-days could not be presented in more detail having regard to the standard reply form in the tender specification.

59 The applicant submits, moreover, that user support is not very different to the technical profile, that the nature of the work to be carried out requires essentially the same type of expertise and that the persons carrying out those functions have to be primarily information technology experts. It claims that it provided a balanced team of multi-disciplinary experts able to carry out all aspects of the work required.

60 In addition, in the reply it disputes the low technical marks awarded to the two proposed experts and states that their rate of pay was found to be entirely satisfactory by the Commission in other contracts.

61 Secondly, as regards the ‘Understanding’ criterion, the applicant disputes the evaluation committee’s assessment that its offer was repetitive. It claims that the evaluation committee, which awarded it 30 points out of 40, failed to give sufficient justification for its decision. It adds, in its reply, that its offer merely addressed all the aspects of the project in order to explain how it would tackle them, following the requested structure and without any superfluous repetition, in particular as regards the software at issue in the present case and its various uses.

62 Thirdly, as regards the ‘Methodology’ criterion, in respect of which the applicant obtained 18 points out of 25, the minimum required being 16 points, it observes that the evaluation committee claimed that its offer was not focused enough and did not contain any interesting new ideas. The applicant submits that this evaluation is arbitrary and unjustified.

64 As a preliminary point, it must be noted that it is settled case-law that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; see Evropïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 89 and the case-law cited).

65 In the present case, the applicant claims the Commission committed several manifest errors of assessment in the evaluation of its offer.

66 As regards the ‘Project management and availability’ criterion, the applicant disputes the evaluation committee’s finding that its offer lacked balance and gave undue weight to the technical part of the contract. It submits that the evaluation committee was wrong to consider that the applicant was offering only 30 man-days for the support services and that it had, in doing so, underestimated the number of days and resources necessary for user support.

67 The Court notes in this connection that the invitation to tender, in the description of the tasks, specified, as regards the technical profile:

‘The system will not need major improvements. We only anticipate that it will need minor updates and enhancements to follow the developments of the market.’

68 Consequently, the wording of the invitation to tender indicates that the technical part was ancillary and the part dealing with user support therefore indeed seems to be the more important.

69 It must be stated that, as regards the evaluation of the number of man-days, the table in the financial proposal in the applicant’s tender provides for four posts, each of which is assessed in man-days and the total of which amounts to 410 man-days. Thus, 30 man-days are allocated to the post of contract/quality manager, 80 man-days are allocated to the post of senior analyst, 80 man-days are allocated to the post of software and database architect and 220 days are allocated to the post of senior software engineer.

70 It is apparent from the description of those four posts by the applicant in its tender that the contract/quality Manager is described as being responsible for the coordination and planning of the activities linked to the project and responsible ‘for the overall contract implementation management, quality assurance, European Commission Security Convention terms follow up and interfacing with the Commission’. His duties can therefore be regarded as covering, at least in part, user support services.

71 By contrast, the duties of the senior analyst, the software and database architect and the senior software engineer are all described as relating to the technical support services of the CITL. They must thus be regarded as meeting the requirements of the technical profile in the invitation to tender.

72 Therefore, it must be stated that the applicant’s tender could be interpreted as meaning that only the post of contract/quality manager clearly fell within the ‘user support’ part. Furthermore, it might also be regarded as only partially falling within that part, since that post was allocated other duties.

73 In addition, the figure of 190 man-days put forward by the applicant is not, in its tender, specifically allocated to the user support service. The evaluation committee is not required to take into account evidence and information not communicated with the tender submitted. Moreover, in contrast to what the applicant asserts, the template adopted in its financial proposal was not obligatory, since the invitation to tender specified that the financial tender template was provided only for purposes of information. The presentation of the applicant’s tender could therefore have been adapted so as to show clearly the figure of 190 man-days, allegedly allocated to the user support service but which does not appear as such in its offer.

74 Therefore the evaluation committee was entitled, without committing any manifest error of assessment, to consider that only 30 man-days, corresponding to the post of contract/quality manager, were allocated to user support and that, as a result, the tender lacked balance having regard to the importance of that task in the invitation to tender.

75 Furthermore, in the light of the division of the posts and methodology proposed by the applicant on the one hand and, on the other, the number of pages devoted to the user support services (three pages) in comparison to the number of pages devoted to the technical services (seven pages), the applicant’s offer could, without a manifest error of assessment, be regarded as weighted towards the technical profile and not towards user support.

76 Lastly, nothing turns on the fact that the Commission had found the rate of the proposed experts’ pay satisfactory in other contracts, since the assessment here concerns only the presentation of the applicant’s team in the contract at issue.

77 In conclusion, the Commission did not commit any manifest error of assessment as regards the ‘Project management and availability’ award criterion.

78 Otherwise, as regards the applicant’s arguments seeking to dispute the evaluation committee’s assessment in respect of the ‘Understanding’ and ‘Methodolody’ criteria, the committee’s assessment on those criteria is not the reason for the Commission’s rejection of the applicant’s tender. Those arguments are therefore irrelevant.

79 It follows from all of the foregoing that the applicant has not proved any manifest error of assessment by the Commission in the present case.

The argument alleging infringement of the principles of equal treatment and transparency

80 The applicant asserts that, by failing to properly examine its tender and rejecting it on the basis of misinterpretations, the Commission infringed the principles of equal treatment and transparency. In this respect, it points out that the selection criteria must be stated clearly and unambiguously in the specifications. However, the invitation to tender requested that tenderers show a ‘deep understanding’ of the relevant field of activity which, it submits, cannot be quantified by persons other than the Commission’s incumbent contractor, and rendered that invitation to tender unduly subjective.

82 Under Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.

83 Thus, according to settled case-law, the Commission is required to ensure at each stage of a tendering procedure equal treatment and, thereby, equality of opportunity for all the tenderers (Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraph 108; see Evropaïki Dynamiki, cited in paragraph 49 above, paragraph 45, and the case-law cited).

84 A system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 51; see Evropaïki Dynamiki, cited in paragraph 49 above, paragraph 46 and the case-law cited).

85 Furthermore, the principle of equal treatment entails an obligation of transparency for the purpose of ensuring it is complied with (see, by way of analogy, Case C-532/06 Lianakis and Others [2008] ECR I-0000, paragraph 34 and the case-law cited). Thus, in order to guarantee that the principles of equal treatment and transparency are observed, potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the offer providing best value for money, and of their relative importance, when they prepare their tenders (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 88; and Lianakis and Others, paragraph 36 and the case-law cited).

86 This obligation of transparency also means that the contracting authority must interpret the award criteria in the same way throughout the entire procedure (see, to that effect, Commission v Belgium, cited in paragraph 85 above, paragraphs 88 and 89, and Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 43).

87 The applicant claims that the requirement for a ‘deep understanding’ of the relevant field was too subjective a criterion.

88 In the present case, the requirement of a ‘deep understanding’ of the relevant field is set out in point 4 of the ‘technical description’ part of the invitation to tender (see paragraph 15 above) and is therefore not included in the part relating to the criteria for the exclusion, selection and the award of the tender.

89 In addition, even if that requirement of a ‘deep understanding’ of the relevant field could have been regarded as a selection criterion in the present case, the Court notes that the applicant’s offer successfully passed the second stage relating to the examination of the selection criteria. ‘Deep understanding’ was therefore, in any event, an evaluation criterion which was not a ground for the rejection of the applicant’s tender by the Commission, the rejection being on the basis of the fact that the applicant had not attained the minimum number of points required in respect of the ‘Project management and availability’ award criterion.

90 It must be stated in this connection that the contested decision does not refer at all to the requirement of a ‘deep understanding’, nor, a fortiori, to the fact that the applicant’s tender failed to satisfy it.

92 It follows from the foregoing that the applicant has failed to establish that the principle of transparency was infringed in the present case. Moreover, the applicant does not claim any discrimination with respect to it.

93 As a result, the argument alleging infringement of the principles of equal treatment and transparency must be rejected.

The second plea, alleging that the merits of the successful tenderer were not disclosed

95 The applicant states that the Commission merely informed it, on 26 October 2006, of the identity of the successful tenderer and of the number of points it had obtained (88 out of 100), without specifying the relative advantages of the successful tender in relation to its own, in breach of Article 100(2) of the Financial Regulation. It refers to the judgment in Case T-169/00 Esedra v Commission [2002] ECR II-609, in which the statement of reasons communicated to the rejected tenderer was more detailed.

96 It adds, in the reply, that the statement of reasons must be appropriate to the act at issue, which in the present case relates to a tendering procedure for a complex information technology contract which cannot be compared to a procedure for the mere provision of agency staff, which was at issue in the case which gave rise to the judgment in Adia interim v Commission, cited in paragraph 49 above, to which the Commission refers in the defence. The requirement of transparency implies, according to the applicant, that the Commission must be able to justify its decision and explain the evaluation procedure that led to the decision, unless that decision is to be held to be arbitrary.

97 The applicant also claims that the Commission’s letter of 26 October 2006 was the only letter sent to it by post, notwithstanding the fact that it had requested the Commission to reply to it by fax or email. It considers that, in so far as it did not receive that letter until 14 November 2006, the Commission should have refrained from signing the contract with the successful tenderer until the legal deadline for opposition had expired.

99 Pursuant to Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Regulation, the Commission had to notify the applicant of the grounds on which its offer was rejected and, the applicant having submitted an admissible tender, of the characteristics and relative advantages of the successful tender and the name of the successful tenderer within not more than 15 calendar days from the date on which a written request was received.

100 In this connection, the contracting authority fulfils its obligation to state reasons if it first informs eliminated tenderers immediately of the fact that their tender has been rejected by a simple unreasoned communication and then subsequently, if expressly requested to do so, informs tenderers of the relative characteristics and advantages of the successful tender and the name of the successful tenderer within 15 days of receipt of a written request (Strabag Benelux v Council, cited in paragraph 50 above, paragraph 54 et seq.).

101 In the present case, three award criteria were set out in the third part of the invitation to tender, entitled ‘Understanding’, ‘Project management and availability’ and ‘Methodology’, in addition to the exclusion and selection criteria. A points system was established for the evaluation of tenders in the light of each of those three award criteria. First, a minimum threshold was laid down for each criterion. Secondly, an overall minimum of 65 points was required. The tenders having obtained the minimum points required, considered to be technically satisfactory in the light of those criteria, were then examined in order to ascertain which tender provided the best value for money, by dividing the price by the total number of points.

102 By letter and fax of 19 October 2006, the Commission notified the applicant that its tender had been rejected at the award stage and informed the applicant of the evaluation committee’s findings for each of the award criteria.

103 In response to a written request from the applicant, also dated 19 October 2006, the Commission - by letter of 26 October 2006 received, according to the applicant, on 14 November 2006 - informed the applicant that it had been eliminated on the ground that it had not attained the minimum number of points required for the ‘Project management and availability’ criterion. The Commission reiterated the evaluation committee’s findings, stating the number of points obtained by the applicant in respect of each award criterion. It also stated the name of the successful tenderer, the price of its tender and the number of points it had obtained.

104 The applicant was therefore able not only to pinpoint the specific reasons for the rejection of its offer, namely that it had not attained the quality score required for the second award criterion (‘Project management and availability’), but also to compare its result (68 points out of 100) with that of the successful tenderer (88 points out of 100). Likewise, it was able to compare the price of the tender it had submitted with that offered by the successful tenderer. Furthermore, the general comments gave details on the aspects of its offer which were considered to be unsatisfactory by the Commission (see, to that effect, Evropaïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 75).

105 The applicant objects that it was not able to compare its results with those of the other tenders and, in particular, with those of the successful tenderer, since it was not notified of the evaluation committee’s findings in its regard and of the details of the points obtained by the successful tenderer for each award criterion.

106 In the present case, the Court observes that the contested decision was not based on a comparison of the services of the various tenderers, but on the fact that the applicant’s tender did not obtain the minimum number of points required with regard to the second award criterion.

107 As provided in the invitation to tender, only the tenders which had obtained the minimum threshold of points were considered to be technically satisfactory in the light of those criteria, those tenders then being examined in order to ascertain which provided the best value for money.

108 As a result, the information communicated by the Commission was, in the present case, sufficient in the light of the relevant requirements.

109 The argument alleging that the statement of reasons communicated to the unsuccessful tenderer was more detailed in Esedra v Commission, cited in paragraph 95 above, does not affect that finding, since the circumstances were different to those at issue in this case. In that case, the tender specifications did not set out, as regards the evaluation of the award criteria, either a minimum threshold or an elimination criterion (paragraphs 128 and 154) and the applicant’s excluded tender had therefore been compared to that of the successful tenderer (paragraph 191).

110 That is not the case in this instance, since the applicant’s tender was not eliminated following a comparison with the other tenders, in particular with that of the successful tenderer, but on the ground that it had not attained the threshold required in respect of one of the criteria.

111 Consequently, the Court takes the view that, in these particular circumstances, the obligation to communicate the characteristics and relative advantages of the successful offer, laid down in Article 100(2) of the Financial Regulation, was satisfied in this case.

112 Furthermore, as regards the applicant’s arguments alleging that it did not receive the Commission’s letter of 26 October 2006 until 14 November 2006 and that the Commission should have delayed signing the contract, it must be stated that that argument also cannot be accepted.

113 The fourth subparagraph of Article 149(3) of the Implementing Rules provides:

‘The contracting authority may not sign the contract or framework contract with the successful tenderer until two calendar weeks have elapsed from the day after the simultaneous dispatch of the rejection and award decisions. If necessary it may suspend signing of the contract for additional examination if justified by the requests or comments made by unsuccessful tenderers or candidates during the two calendar weeks following the rejection or award decisions or any other relevant information received during that period. In that event all the candidates or tenderers shall be informed within three working days following the suspension decision.’

114 It is common ground that in the present case the applicant received notification of the rejection of its offer on 19 October 2006. That notification states that the contract would not be signed during the two calendar weeks following the day after the date on which that letter was posted.

115 The period of two calendar weeks, laid down by the fourth subparagraph of Article 149(3) of the Implementing Rules and which was drawn to the applicant’s attention by the Commission in its notification letter of 19 October 2006, therefore expired on 3 November 2006.

116 In this instance, since the contract was signed on 14 November 2006, that is, after the expiry of the period laid down by Article 149, the Commission complied with the applicable provisions.

117 In addition, it also follows from the fourth subparagraph of Article 149(3) of the Implementing Rules, that the option to suspend signing of the contract for additional examination is provided for only if the requests or comments of the rejected tenderers or candidates are made ‘during the two calendar weeks following the rejection or award decisions’ or if justified by any other relevant information received ‘during that period’.

118 That was not the case here, since the applicant did not make any requests or comments during that period, even though the time-limit of two calendar weeks was drawn to its attention by the Commission in its notification letter of 19 October 2006. The fact that the letter of 26 October 2006 was not sent to it by fax, but by post, and did not reach it until 14 November 2006 is irrelevant in this respect.

120 As regards the application for annulment of the decision awarding the contract to a third party, it must be rejected as a consequence of the rejection of the application for annulment of the preceding decision with which it is closely connected (Case T-195/05 Deloitte Business Advisory v Commission [2007] ECR II-0000, paragraph 113).

121 Under its plea alleging infringement of the obligation to provide a statement of reasons and the lack of transparency, put forward in its reply, the applicant requests a full copy of the evaluation committee’s report. It states that Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) constitutes the general rule and the rule in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules is the particular rule. It submits that the exception to that rule, on grounds of confidentiality, is to be interpreted strictly and restricted to the protection of business secrets and that, in the present case, the Commission has not proved that there are business interests whose protection prohibits disclosing the evaluation report to rejected tenderers who have requested its disclosure.

123 It must be pointed out, first, that the Commission was not required to disclose the evaluation committee’s report to the applicant, as part of the statement of reasons for the contested decision. Article 100(2) of the Financial Regulation provides only that, following a request in writing, the contracting authority is to notify those concerned of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded (Evropaïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 113).

124 Next, even if the applicant’s request were to be understood as a request for access to documents, it must be held that the applicant did not comply with the procedure, laid down in Article 6 et seq. of Regulation No 1049/2001, for applying for access to the evaluation committee report before bringing an action before the Court to challenge the refusal to produce it, which renders such a request inadmissible (Evropaïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 114).

125 Lastly, the Commission sent the applicant, by fax of 30 November 2006, a non-confidential version of an extract from the evaluation report. The Commission stated that it could not disclose the details concerning the other tenderers, which would harm their commercial interests.

126 Accordingly, having regard to the fact that the information in the file does not show any manifest error of assessment or infringement of the duty to provide a proper statement of reasons, the Court considers that, regardless of the legal basis relied upon by the applicant, it is not appropriate to order the Commission to produce the evaluation committee’s report in its entirety.

127 In the light of the foregoing, the application for annulment must be dismissed in its entirety.

128 The applicant states, in the part of its application dealing with the costs, that the Court is likely to rule after the completion of the contract. It requests, in the alternative, that the Court order the Commission to pay it damages of EUR 86 300, corresponding to the net profit which, it estimates, it would have gained from the contract, and relies in this connection on Articles 235 EC and 288 EC.

129 It states in its reply that the contested decision is unlawful and has caused it actual damage, which it assesses at approximately EUR 86 300, calculated on the basis of a gross profit margin of 50% and also taking into account all extensions of the contract. At the hearing, the applicant stated that, of the total price chargeable in respect of a contract, one half will consist of production costs, 40% of general costs and 10% will represent its net profit.

130 The Commission contends that this application for damages is wholly unsubstantiated, that it does not comply with Article 44(1)(c) of the Rules of Procedure of the Court of First Instance and, consequently, that it is inadmissible. It requests in the alternative that the application should be rejected as manifestly lacking any legal basis.

131 Article 44(1)(c) of the Rules of Procedure provides that the application must state the subject-matter of the proceedings and a summary of the pleas in law on which it is based. It is settled case-law that the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if necessary without other supporting information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and comprehensible (Case T-387/94 Asia Motor Finance and Others v Commission [1996] ECR II-961, paragraph 106).

132 The Court considers however that, in the circumstances in the present case, there is no need to rule on the Commission’s argument founded on the inadmissibility of the application for damages, since the forms of order sought by the applicant must, in any event, be rejected on their merits (see, to that effect, Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraph 52; Case C-233/02 France v Commission [2004] ECR I-2759, paragraph 26; and Case T-415/03 Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council [2005] ECR II-4355, paragraph 32, confirmed on appeal by judgment of 22 November 2007 in Case C-6/06 P Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council, not published in the ECR, paragraph 21).

133 In accordance with settled case-law, for the Community to incur liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; see also to that effect Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). Where one of those conditions is not fulfilled, the action must therefore be dismissed in its entirety and it is not necessary to examine the other conditions for that liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19, and Strabag Benelux v Commission, cited in paragraph 50 above, paragraph 83).

134 It is apparent from the Court’s findings on the application for annulment that the applicant has not proved unlawful conduct on the part of the Commission.

136 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

137 Since the applicant has been unsuccessful in all the forms of order it sought, and the Commission has applied for costs, the applicant must be ordered to pay the costs.

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

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Evropaiki Dynamiki v Commission, [2008] EUECJ T-406/06 (12 November 2008) URL: http://www.bailii.org/eu/cases/EUECJ/2008/T40606.html Cite as: [2008] EUECJ T-406/6, ECLI:EU:T:2008:484, EU:T:2008:484, [2008] EUECJ T-406/06

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