Evropaiki Dynamiki v OEDT [2010] EUECJ T-63/06 (09 September 2010)

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(Public service contracts – EMCDDA tender procedure – Supply of software programming and consultancy services – Rejection of a submitted tender – Award criteria – Manifest error of assessment – Equal treatment – Transparency – Principle of sound administration – Obligation to state reasons)

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), represented by D. Storti, acting as Agent, and by J. Stuyck, lawyer,

1 The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) was established by Council Regulation (EEC) No 302/93 of 8 February 1993 on the establishment of the European Monitoring Centre for Drugs and Drug Addiction (OJ 1993 L 36, p. 1), as amended by Council Regulation (EC) No 3294/94 of 22 December 1994 (OJ 1994 L 341, p. 7), Council Regulation (EC) No 2220/2000 of 28 September 2000 (OJ 2000 L 253, p. 1) and Council Regulation (EC) No 1651/2003 of 18 June 2003 (OJ 2003 L 245, p. 30). Under Article 7 of Regulation No 302/93, the EMCDDA has legal personality. Under Article 17 of Regulation No 302/93, ‘[t]he Court of Justice shall have jurisdiction in actions brought against the EMCDDA under the conditions provided for [in the provisions governing the annulment action]’.

2 Article 185(1) 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’) provides:

3 Article 74 of Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of the Financial Regulation (OJ 2002 L 357, p. 72) provides:

4 The procurement procedure for service contracts of the European Union institutions is subject to the provisions of Title V of Part One of the Financial Regulation and to 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), as amended by Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3; ‘the implementing rules’). Those provisions are inspired by the relevant directives, in particular, where service contracts are concerned, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997 (OJ 1997 L 328, p. 1). Directive 92/50 was repealed by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

13 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company incorporated under Greek law, active in the area of information technology and communications.

14 By contract notice of 28 September 2005, published in the Supplement to the Official Journal of the European Union (OJ 2005 S 187) under reference 2005/S 187-183846, the EMCDDA launched a call for tenders for the supply of software programming and consultancy services. The purpose of the contract was to prepare online/electronic data-processing tools for the EMCDDA scientific units and its partners in the ‘cooperating States’. The contract aimed at reorganising data collection, including the way the national focus points submit their studies as well as the way the data is stored and retrieved at the EMCDDA, inter alia the migration and reorganisation of existing data in the Epidemiological Info System on Drug Data (EISDD).

15 Point 10 of the tender specifications lists the award criteria and states that the tenders will be evaluated as follows:

For each offer, a price index will be calculated according to the following formula:

16 On 8 November 2005, the applicant submitted a proposal in response to the call for tenders.

17 By letter of 5 December 2005, the EMCDDA informed the applicant that its tender had not been selected on the ground that it had not been considered the best in terms of the price-quality ratio, according to the established award criteria. The EMCDDA also informed the applicant that it had a right to ask for information concerning the rejection.

18 By letter of 13 December 2005, the applicant asked for information concerning the name of the successful tenderer and, if it had partners or subcontractors, their names and the percentage of the contract allocated to them, the scores obtained by the applicant and the successful tenderer in each award criterion and a comparison of the applicant’s financial offer with that of the successful tenderer, in particular the scores awarded to their respective financial offers. It also requested a copy of the evaluation committee report.

19 By letter of 20 December 2005, the EMCDDA gave the applicant the name of the successful tenderer and, in three comparative tables, the scores obtained by the applicant’s offer and the successful tenderer’s offer in the light of the qualitative award criteria, the financial offers and the price quotations for the two offers, together with the overall score obtained by each.

20 By letter of 23 December 2005, the applicant reiterated its request for a copy of the evaluation report containing, in respect of its offer, the comments of the evaluation committee with regard to each award criterion and a detailed explanation of the technical scores awarded, which it regarded as ‘particularly low’.

21 By letter of 6 January 2006, the EMCDDA provided the applicant with explanations concerning the evaluation of its offer in the light of each of the qualitative award criteria.

22 By letter of 17 January 2006, the applicant disputed the evaluation committee’s appraisal, submitting that it had committed several errors of assessment.

23 By letter of 27 January 2006, the EMCDDA replied to the applicant that the evaluation committee had carried out a comparative evaluation of the tenders examined and that all the competitors had been treated equally in accordance with the applicable rules.

24 By application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 16 February 2006, the applicant brought the present action.

25 Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was transferred to the Fifth Chamber, to which the present case has, in consequence, been assigned.

26 Acting on a report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure. The oral arguments of the parties were heard, together with their replies to the questions of the Court, at the hearing on 11 November 2009. At that hearing, the applicant requested the placing on the case-file of a document replying to the rejoinder. The EMCDDA opposed that request. The Court refused to allow that document to be placed on the case-file, a fact which was noted in the minutes of the hearing.

29 Without formally raising a plea of inadmissibility, the EMCDDA expresses certain doubts concerning the Court’s jurisdiction to rule in the case, in the light of Article 17 of Regulation No 302/93, which refers expressly to the ‘Court of Justice’.

30 Since the conditions for the admissibility of an action relate to the question whether there is an absolute bar to proceedings (see the order of the Court of Justice in Case 108/86 d. M. v Council and ESC [1987] ECR 3933, paragraph 10, and Joined Cases T-309/04, T-317/04, T-329/04 and T-�336/04 TV 2/Danmark and Others v Commission [2008] ECR II-�2935, paragraph 62, and the case-law cited), it is for the Court to decide whether it has jurisdiction to rule in an annulment action brought against an act of the EMCDDA.

31 In that regard, it must be noted that under Article 17 of Regulation No 302/93 it is the ‘Court of Justice’ which is to have jurisdiction in actions brought against the EMCDDA under the provisions governing annulment actions.

32 However, it must be pointed out that the designation used in Article 17 of Regulation No 302/93 does not refer to one particular Court of the European Union but to the institution which includes the Court of Justice and the General Court (see, by analogy, Case C-294/02 Commission v AMI Semiconductor Belgium and Others [2005] ECR I-�2175, paragraph 49). Also, pursuant to the Treaty, the General Court has jurisdiction to hear and determine at first instance applications for annulment such as that brought in the present case.

33 Therefore, it follows from reading the provisions of the Treaty governing actions for annulment in conjunction with Article 51 of the Statute of the Court of Justice and Article 17 of Regulation No 302/93 that the General Court has jurisdiction to rule on the applicant’s action for annulment.

34 In support of its application for annulment, the applicant relies on four pleas in law.

Plea alleging infringement of the Financial Regulation, the implementing rules, Directive 92/50 and the principles of transparency and equal treatment

35 It must be observed, as a preliminary point, that the applicant relies, in relation to this plea, in particular on the infringement of Article 14 of Directive 92/50. It must, however, be noted that that directive was repealed by Directive 2004/18 and that, under Article 105 of the Financial Regulation, the directives on the coordination of procedures for the award of public supply, service and works contracts apply to public contracts awarded by the European Union institutions on their own account only with regard to questions concerning the thresholds which determine the publication arrangements, the choice of procedures and the corresponding time-limits.

36 It follows that, with regard to a public service contract awarded by the EMCDDA, compliance with the contracting authority’s obligation to define in advance and set out in the call for tender the award criteria for evaluating the content of the tenders must be examined, in the present case, in the light of the Financial Regulation and the implementing rules.

37 In that regard, where the contract is awarded by the best-value-for-money procedure, Article 97(1) of the Financial Regulation requires the contracting authority to define in advance and set out the award criteria in the call for tender. In addition, that obligation, which ensures a level of publicity appropriate to the criteria and conditions governing each contract, is set out in more detail in Articles 130 and 138 of the implementing rules.

38 It must be recalled that those provisions are intended to ensure observance of the principles of equal treatment and transparency, enshrined in Article 89(1) of the Financial Regulation, at all stages of the procedure for the award of public contracts. The purpose of those provisions is none other than to allow all reasonably well-informed and normally diligent tenderers to interpret both the selection criteria and the award criteria in the same way and, consequently, to have equality of opportunity in formulating the terms of their tenders (see the judgment of 10 September 2008 in Case T-59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 49 and 50, and the case-law cited).

39 It is in the light of the foregoing that the present plea, which may be divided into two complaints, must be examined.

Complaint alleging infringement of the obligation to distinguish between the selection phase and the award stage

40 At the hearing, the applicant claimed that the evaluation committee was unable to evaluate the curricula vitae of the experts proposed in the tender at the award stage and with regard to the qualitative award criterion concerning the ‘technical merit of the human resources provided for the execution of the tasks’ (‘criterion 1’).

42 It should be pointed out that the applicant, by complaining that the EMCDDA was unable to assess the curricula vitae of the experts proposed in the tender at the award stage, claims that there was an infringement of the obligation to distinguish between the selection phase and the award stage.

43 That complaint, raised for the first time at the hearing, and which moreover was not based on matters of law or of fact which came to light in the course of the procedure and did not expand on a plea in law set out in the application, must be rejected as inadmissible under Article 48(2) of the Rules of Procedure of the General Court.

Complaint alleging the application of award criteria not set out in the contract notice or the specifications

44 The applicant claims that its offer was rejected because it allegedly did not comply with criteria which had not appeared in the contract notice and were not in fact relevant for the project. In that regard, the applicant claims infringement of Articles 89(1), 92 and 97(1) of the Financial Regulation, of Articles 130 and 131 of the implementing rules, and of Article 14 of Directive 92/50, and alleges failure to observe the principles of transparency and equal treatment which require that the subject-matter of each contract, including the award criteria applicable to it, should be expressly and clearly stated in the contract notice. Finally, Directive 2004/18, in particular Articles 23(1) and 26 thereof, refer to the obligation on the contracting authority to comply with the criteria and the conditions set out in the contract notice.

45 In that regard, the applicant refers to the various reasons stated in the EMCDDA’s letter of 6 January 2006 and on which the contracting authority based its rejection of the applicant’s offer, although they did not appear in the tender documents. First, concerning criterion 1, the applicant claims that the specifications contained no specific requirement concerning the profiles to be submitted, in particular with regard to mandatory skills and qualifications. The specific requirements in that regard were stated in a vague way, whereas they should have been included and described in detail in the specifications. Since the possession of certifications was not considered necessary, the project staff were selected on the basis of previous experience with the European Union institutions in the field of information technology, being experience that was clearly relevant to the project. All the proposed experts thus had considerable experience in the – notably successful – provision of services for most of the European Union institutions. By contrast, the applicant does not dispute the role of technical skills and of the specific experience confirmed during the comparison of the tenders or of the proposed experts.

46 Second, still in relation to criterion 1, the specifications do not contain any specific requirement for a database architect profile. According to the applicant, the proposed team covered more than sufficiently all the technical aspects and other needs of the project, including database architecture.

47 Third, the applicant’s tender corresponded, ‘in a very professional manner’, to all the requirements laid down in the specifications, following the same method as that adopted in all the public procurement procedures in which the applicant participated. That was the principal criterion to be taken into consideration in the evaluation procedure, and the size of the document describing the offer was irrelevant, since no limitation in that regard was mentioned in the specifications.

48 The EMCDDA disputes the applicant’s arguments. It points out, moreover, that neither the implementing rules, applicable to the institutions, nor Directive 92/50, which applies to the Member States, are applicable to it as such. It concedes, however, that, under Article 74 of Regulation No 2343/2002, the relevant provisions of the Financial Regulation and of the implementing rules apply to the public contracts awarded by it.

49 It should be noted that point 10 of the tender specifications, as stated in paragraph 15 above, refers to the award criteria laid down by the EMCDDA for awarding the contract to the tender which offers the best value for money, that is, first, three qualitative criteria, indicating the relative weight attached to each and, second, a quantitative criterion which constitutes the price. In point 10 of the specifications, the qualitative criteria are stated as follows:

50 First, the applicant’s allegation that the specifications did not contain any requirement concerning specific profiles or mandatory qualifications must be rejected.

51 In that regard, criterion 1 makes clear that, when the tenders are examined, the ‘technical merit of the human resources for the execution of the tasks’ must be assessed. It follows that, when applying that criterion, the evaluation committee could take into account the qualifications for and relevant professional experience relating to the required tasks, as the applicant moreover recognises in its reply. It must be held that such elements do not constitute criteria in their own right, but indissociable elements of the concept of ‘the technical merit of the human resources’ and that they are therefore elements which may be taken into consideration when applying criterion 1.

52 It also follows from the comments of the evaluation committee, set out in the EMCDDA’s letter of 6 January 2006, that it did not find that the tender did not comply with a requirement concerning a mandatory form of training or qualifications but that it carried out an assessment of the offer. In that context, it considered that the proposed professional experience was limited in certain respects and referred to the lack of formal education in computing, before drawing the conclusion that the evidence of professional certification subsequent to the university studies was weak. Thus, the evaluation committee’s assessment related to the technical merit of the human resources placed at the applicant’s disposal for the execution of the project, in accordance with criterion 1, and was not based on the lack of compliance with a criterion not laid down in the specifications.

53 Second, regarding the applicant’s claim that there was no reference to the database architect profile in the award criteria, it must be noted that the project concerns online/electronic data-processing tools, particularly for the EMCDDA scientific units, and that the evaluation committee’s criticism concerned the absence, in the tender, of any statement concerning the expert who would have to perform the function of the database architect. It must be considered that, with regard to the project, the contracting authority could take into consideration the existence of a database architect profile, since such an element was not an award criterion in itself but an indissociable element of the concept ‘technical value of the human resources’ in the context of the project in question. Therefore, there was nothing to prevent the evaluation committee from taking into account such an element when considering criterion 1 and it fell to it to assess the technical value of the human resources in the light of the applicant’s specific proposals regarding the execution of the services and on the basis of the various profiles proposed for the execution of the project.

54 Third, with regard to the applicant’s allegation that the evaluation committee took into consideration the size of the document describing its offer and classified it as voluminous, it cannot be concluded either from the letters of 5 and 20 December 2005 or from the letter of 6 January 2006 that the evaluation committee took that factor into account as a criterion in the evaluation of the applicant’s offer. The letter of 6 January 2006 contains only, with regard to the application of criterion 3, the reference to the approximate number of pages of the document describing the applicant’s offer and that to the part of that document regarded as important, and a comment on its content and organisation. Thus, it must be concluded that the size of that document describing the applicant’s offer did not constitute an award criterion applied by the evaluation committee.

55 Consequently, the applicant has not demonstrated that the EMCDDA applied criteria not set out in the specifications.

56 In the light of the foregoing, it must be concluded that the applicant has not shown to the requisite legal standard that the EMCDDA had failed to fulfil its obligation to define in the specifications the applicable award criteria or had applied award criteria other than those which had been thus defined. Consequently, the plea alleging infringement of the Financial Regulation, the implementing rules, Directive 92/50 and the principles of transparency and equal treatment must be rejected as unfounded.

57 The applicant concedes that the EMCDDA enjoys a broad discretion in the evaluation of tenders and that the Court’s review must be limited to checking that there has been no serious or manifest error in that assessment. However, it maintains that the EMCDDA did not evaluate its offer objectively, comprehensively, or adequately, as was ‘evident’ from the many grave and manifest errors of assessment made in the course of its evaluation. In addition, while acknowledging that the best-value-for-money procedure applied, the applicant claims that those errors of assessment led to the application of a quality-price relationship to its offer and prevented the correct award procedure from being used.

58 With regard to criterion 1, in the first place, the applicant disputes the evaluation committee’s assessment that ‘[t]he allocated analyst and system architect had a rich academic background but limited experience relevant for this project’. The applicant claims that the individual proposed in the tender has ‘more than adequate technical experience’ in the most recent applications as well as ‘a remarkable academic background’ in software engineering. For more than five years, that person had successfully participated in the implementation, technical management and coordination of large and complex information technology projects for various European Union institutions.

59 In the second place, according to the applicant, the evaluation committee was not entitled to claim that the proposed software developers with experience had no formal education in computing. The two proposed experts both have significant expertise and relevant academic background, one of the two holding a degree from ‘the top engineering school of Greece’, having obtained ‘a diploma of electrical and computing engineering of the National Technical University’, corresponding to five years of university studies and to ‘the highest degree in computing engineering’. The applicant adds that, since university-level computing studies were introduced within the past couple of decades, most experienced information technology experts have completed their academic studies in another field of specialisation, such as mathematics or electrical engineering. Moreover, in many European Union Member States, as in Greece, the best information technology schools or universities are those of electrical engineering. It was indisputable that the proposed experts more than met the requirements, given the nature of their academic education, their vast professional experience in computing and their successful implementation of similar projects for other European Union institutions.

60 Concerning the application of criterion 2, the applicant maintains that the EMCDDA’s assessment also contains a number of manifest errors. First, it disputes the evaluation committee’s assessment that ‘[t]he remaining information concerning the technical approach focused on a metadata-based survey system on an Oracle application server and Oracle 9’ and according to which ‘[t]hough the impressive tools of the application server are listed, it is not clear from the offer which of these functions would be needed, or why there would be a need for an Oracle application server’. In any case, the applicant’s tender contained all the requested information. The applicant refers, in that regard, in its tender, to page 50, paragraphs 2 to 5, to Section 5.2.1, and to Section 5.3, paragraph 5, of the part entitled ‘Tenderer’s Proposed Solution’, which appears in Section VI. At the hearing, the applicant added that the Oracle server function is also mentioned in paragraph 5.3.6.2.

61 Second, the applicant disputes the evaluation committee’s assessment concerning the proposed hardware architecture and, in particular, the claim that ‘what should have been included are proposals for the physical machines in each alternative [shared or dedicated hosting architecture] based on similar projects the company had done, or at least a suggestion based on the existing data volume and the kind of data exchange expected’. According to the applicant, its tender covered all the requirements set out in the contract notice and the specifications. The complete hardware architecture required was referred to in a ‘clear, detailed and professional’ manner, and that approach was based on experience acquired in similar international projects. The applicant confirmed at the hearing that the physical machines were explicitly described in Section VI of its tender, in Figure 17, page 70, and Figure 18, page 71, in the part entitled ‘List of Recent Works Carried Out & Certificates of Satisfactory Execution’.

62 In the third place, the applicant disputes the evaluation committee’s assessment that ‘the proposed survey system, though already showing nice interfaces, is aimed at surveys in the EDDRA [Exchange on Drug Demand Reduction Action] style, which are definitely not at the centre of interest for this project’ and according to which ‘[o]ptions concerning group surveys and “versioning” are not mentioned’.

63 The first point to be made in that regard is that nowhere in the specifications is it stated that the analysis of the data collected is more or less important than data collection. Data collection is of paramount importance for the EMCDDA inasmuch as the applicant concludes from the specifications that, without proper data collection, the annual report could not be produced. The applicant included in its offer detailed descriptions with graphical examples of the dynamic nature of the reporting facilities. Those descriptions clearly show how reports are to be prepared, and also make it possible for the EMCDDA to create new reports without extra cost, using a graphical user interface tool which can cover any needs, including that of the annual report. That extra offer by the applicant covered functionalities which were not explicitly required by the specifications. The dynamic nature of the applicant’s proposal fully covers current EMCDDA needs and the requirements of the call for tenders, while also providing full flexibility to the EMCDDA to redefine the data analysis logic, at no extra cost, to satisfy future needs.

64 Second, the applicant points out that the solution which it proposed was ‘not a survey-based option’ but that it ‘merely included a survey-based option’. It included engines for data collection and an electronic tool for the data processing of mainly quantitative data concerning drugs.

65 Third, the applicant disputes the evaluation committee’s statement that the tender did not present options concerning group surveys. The tender clearly explains how group surveys can be created, on page 73, in the section entitled ‘Survey Attributes unrelated to Survey Content’.

66 Fourth, according to the applicant, the evaluation committee wrongly stated that the applicant did not present options concerning ‘versioning’. On page 73 of the applicant’s proposal, in the section entitled ‘Survey Attributes unrelated to Survey Content’, the applicant clearly shows that surveys can be archived, creating old and new versions of a particular survey. This particular functionality is also graphically depicted on page 74, in Figure 19, where it is stated that surveys can be archived, creating an old version of a particular survey and permitting ‘versioning’.

67 In the fourth place, the applicant disputes the evaluation committee’s assessment according to which ‘[m]odularity, not as a programming tool in the sense of unit development and unit testing, but in the solution proposed, is not mentioned, but the solution is very much bound to the online masks of a survey system’. According to the applicant, the modularity of the solution ‘is directly expressed by the underlying architecture, the module-based approach of the engineer and the loose-coupling of the underlying components’. The module-based approach is explained in detail in a comprehensive section of 26 pages, in Chapter 1.2 of the part of the tender entitled ‘Tenderer’s Proposed Solution’. In addition, Chapters 5 and 6 of the tender contain many references to the ‘openness’ of the suggested solution, offering dynamic creation of new surveys and reports, XML-based data exchange facilitating easy integration with future new modules.

68 In the fifth place, the applicant contests the evaluation committee’s assessment that ‘[a]lternative methods of data submission are not explained’ and that ‘XML-exchange and data migration are mentioned, but not elaborated on, and no evidence could be found of a proposal for interoperability with statistical packages’. According to the applicant, details of those points are given in Chapters 5.3.4 and 5.3.5 of the part of the tender entitled ‘Tenderer’s Proposed Solution’.

69 First, the ‘alternative methods’ of data submission are explained, exhaustively, in Chapter 5.3.5, entitled ‘Data Import/Export Mechanism’, of the part of the tender entitled ‘Tenderer’s Proposed Solution’, which contains an explanation of possible scenarios of an import/export process followed by a figure ‘displaying the data flow and the underlying formats’. It is also explained why and how well-known standards like W3C, XML and Xforms are used in the context of the tender. In addition, the EMCDDA admits ex post facto that the applicant gave an ‘interesting variation of the consultancy report option’, while clearly questioning its ability to deliver a solution with ‘very advanced knowledge’. It is clear that the evaluation committee awarded low technical marks to the applicant not for the offer itself but for its alleged lack of the necessary ‘very advanced knowledge’. The applicant had indeed delivered similar, and even more complex, systems for other European Union institutions ‘with total success’ and it explained in its tender how it addressed all project-related risks.

70 Second, regarding the interoperability with statistical packages, the applicant adds that the specifications do not mention particular statistical packages and that it therefore proposed a solution based on the industry standard XML format. The applicant states that, were the EMCDDA to mention the specific statistical package it had in mind, the applicant would then prove that data import/export could be performed exactly as suggested in its tender with the use of XML and simple interfaces.

71 Concerning the price criterion, the applicant states that the tenderer selected is a local company, established in Lisbon (Portugal), which submitted a significantly more expensive offer than that of the applicant. If the applicant’s tender had been evaluated thoroughly and objectively with regard to the qualitative criteria, the enormous price difference between the two tenders would undoubtedly have led to the selection of the applicant as the contractor. The applicant adds that, under the first and second subparagraphs of Article 138(3) of the implementing rules, the weighting applied to price in relation to the other criteria must not result in the neutralisation of price in the choice of contractor. It is clear from the EMCDDA’s arguments that the price criterion was ‘totally neutralised’ in the selection procedure.

72 The EMCDDA claims that the applicant has not proved that there was any error of assessment, let alone a manifest error of assessment, in the evaluation of its tender. Regarding the price criterion, the latter being certainly less important than the qualitative award criteria, was not however ‘neutralised’ by those criteria in the context of the formula outlined in the specifications. The price criterion was not decisive in the case of offers of similar quality, which was not, however, the case with regard to the applicant’s offer compared with that of the company which was finally successful.

73 As a preliminary point, it must be recalled that the EMCDDA has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and that the Court’s review must be limited to checking that the rules governing the procedure and statement of reasons have been complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see, to that effect, Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; see also Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-�4239, paragraph 56, and the judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 64, and the case-law cited).

74 In the present case, it is clear from the contract notice and the specifications that the contract was awarded to the best-value-for-money offer, in accordance with Article 97(2) of the Financial Regulation.

75 The applicant claims that the EMCDDA made several manifest errors of assessment when evaluating its tender.

76 With regard to criterion 1, first, in relation to the post of ‘system analyst/architect’, the applicant contests the assessment of its tender, emphasising the expert’s academic background and technical experience, gained inter alia as a result of his participation in the implementation of projects for a number of European Union institutions. In that regard, it should be pointed out that the evaluation committee found that the expert had a rich academic background but limited experience relevant to the project in question. It must be held that the applicant provides no evidence showing that the expert has experience which is relevant to the project and not limited.

77 Second, regarding the experienced software developers, the applicant contests the evaluation committee’s assessment that they had no formal education in computing. Although the applicant claims that one of the two experts had a degree in computing engineering and that most experienced information technology experts have completed their academic studies in a field other than computing, it fails none the less to provide any evidence in support of that assertion. As the evaluation committee however pointed out, it must be held that the curricula vitae of the two proposed experts show that one of them has a degree in mathematics and the other in electrical engineering, but no formal education in computing.

78 Consequently, the applicant’s complaint that EMCDDA made a manifest error when assessing the applicant’s tender must be rejected in relation to criterion 1.

79 That finding is not called into question by the applicant’s argument that the proposed experts more than met the requirements, given that they had already successfully implemented projects for other European Union institutions. In that regard, it should be recalled that the award stage involves a comparison in the light of various criteria and not a simple check as to whether the conditions have been complied with. In the present case, the evaluation committee did not find that the education did not satisfy a condition but assessed that element of the offer in relation to the other offers. Consequently, the evaluation committee’s assessment is not vitiated by a manifest error of assessment in that regard.

80 With regard to criterion 2 and, in the first place, the applicant’s criticism of the evaluation committee’s assessment that ‘[t]he remaining information concerning the technical approach focused on a metadata-based survey system on an Oracle application server and Oracle 9’, and that ‘[t]hough the impressive tools of the application server are listed, it is not clear from the offer which of these functions would be needed, or why there would be a need for an Oracle application server’, it must be noted that the applicant merely refers the Court to various parts of its tender annexed to the application, without explaining in what way they provide justification for its criticism of the evaluation committee’s assessment. It must, however, be recalled that it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see Case T-�209/01 Honeywell v Commission [2005] ECR II-�5527, paragraph 57, and the case-law cited, and the order in Case T-144/04 TF1 v Commission [2008] ECR II-�761, paragraph 29), or to speculate about the reasoning and precise observations, both in fact and law, that lie behind its action (see, to that effect, the order in TF1 v Commission, paragraph 57). Therefore, the complaint concerning the abovementioned assessment by the evaluation committee must be rejected as inadmissible in the light of Article 44(1) of the Rules of Procedure.

81 In the second place, with regard to the proposed hardware architecture, the applicant contests the evaluation committee’s assessment and, in particular, the contention that proposals for the physical machines for each proposed alternative were missing (shared or dedicated hosting architecture). However, contrary to the applicant’s statement, meeting the requirements of the specifications is not sufficient to permit the tender to succeed in a best-value-for-money public procurement procedure, since the successful tender must be the best compared with all the tenders submitted. In addition, the applicant states merely that it has described that architecture in Section VI of its tender, in Figures 17 and 18. However, in that regard, it must be held that the tender offers a description of the two proposed forms of architecture, illustrated by two basic figures concerning the physical machines, without precisely describing them and without an actual proposal. Thus, the applicant has not proved that the evaluation committee made a manifest error of assessment in that regard.

82 In the third place, with regard to the proposed survey system, the applicant contests the evaluation committee’s finding that that system is not at the centre of interest for the project and that options concerning group surveys and ‘versioning’ are not mentioned. However, it does not succeed in proving a manifest error of assessment by the evaluation committee in that regard.

83 First, the applicant states that it considered the data-collection procedure to be of paramount importance for the EMCDDA and that in its tender it offered functionalities going beyond those explicitly required by the specifications. It must be concluded that, in doing so, the applicant merely states that it presented a tender based on its interpretation of EMCDDA needs but has not shown in what way the evaluation committee’s assessment that the proposed system was not at the centre of interest for the project was vitiated by a manifest error of assessment.

84 Second, in response to the EMCDDA’s criticism that the applicant did not focus on an electronic tool for the data processing of mainly quantitative data concerning drugs, concentrating rather on a tool for data processing of mainly qualitative data, the applicant merely contends, without substantiating its contention, that its tender included an electronic tool for the processing of mainly quantitative data.

85 Third, with regard to the applicant’s argument that its tender refers clearly to the fact that group surveys may be created, it must be held that the applicant has failed to substantiate that claim sufficiently, inasmuch as it merely refers to page 73 of its tender, in the section entitled ‘Survey Attributes unrelated to Survey Content’. In addition, the EMCDDA pointed out at the hearing, without being contradicted by the applicant, that while the proposed solution was based on a three-pillar model, the tender contained information on only one of them, namely the ‘graphical user interface’. It must therefore be held that the part of the tender to which the applicant refers explains only the ‘graphical user interface’, without containing any explanation of the technical process enabling group surveys to be created.

86 Fourth, concerning ‘versioning’, the applicant refers, without providing a substantive explanation for the referral, to the section of its tender entitled ‘Survey Attributes unrelated to Survey Content’ on page 73, and to Figure 19 on page 74. In any case, in so far as the reference to ‘Archiving a study: how to archive a study’, in the tender actually refers to the ‘versioning’ function which, according to the applicant’s statements at the hearing consists in a complex archiving process, the fact remains that neither that sole reference not Figure 19 corresponds to an indication of options concerning ‘versioning’.

87 In the fourth place, with regard to modularity, the applicant refers to its explanation in Chapter 1.2 of Section VI of its tender, entitled ‘Tenderer’s Approach for Module Development’. However, it must be noted that the evaluation committee criticised the lack of a proposal concerning modularity in the solution itself and not the lack of any reference to modularity in the tender. The applicant does not explain how, in that section, reference is made to modularity in the solution itself and not, as noted in the evaluation report, as a programming tool in the sense of unit development and unit testing. In addition, the applicant states very vaguely that its tender contains, in Chapters 5 and 6, numerous references to the ‘openness’ of the suggested solution, without however explaining how those references permit the conclusion that modularity was proposed in the solution itself. Therefore, the applicant’s arguments in that regard must be rejected.

88 In the fifth place, regarding the ‘alternative methods’ of data submission, XML-exchange and data migration, the EMCDDA stated in its defence and at the hearing, in response to a question from the Court, that those methods were explained too briefly and in too general a fashion, in particular with regard to the options envisaged in the consultancy report annexed to the specifications. However, when contesting the evaluation committee’s assessment, it should be pointed out that the applicant refers merely to Chapter 5.3.5 of its tender, entitled ‘Data Import/Export Mechanism’, stating that that chapter contains an explanation of possible scenarios of a data import/export process followed by Figure 29 ‘displaying the data flow and the underlying formats’. However, it must be held that those arguments do not suffice to show that the evaluation committee made a manifest error of assessment since the explanation, which is contained in Chapter 5.3.5 of the tender and is followed by Figure 29, is in fact brief and general. In addition, the applicant merely states, without substantiating the argument, that its tender explained why and how well-known standards like W3C, XML and Xforms are used. Finally, regarding interoperability with statistical packages, the applicant claims only that that issue is addressed in a detailed way in Chapters 5.3.4 and 5.3.5 of the document entitled ‘Tenderer’s Proposed Solution’, without giving any reasons in support of that reference. Therefore, the applicant’s arguments must be rejected.

89 Consequently, in the light of the foregoing, it must be held that the applicant has failed to prove that the evaluation committee’s assessment was vitiated by manifest errors with regard to criteria 1 and 2. It must also be pointed out that the summary of the evaluation of the tender contained in the extract of the evaluation report does not call into question the applicant’s knowledge or the experience which it has established. During the award stage, those qualities are assessed in the light of the specific proposals made by the applicant regarding the implementation of the defined services. The mere fact that the applicant is given a particular mark in a comparative assessment exercise does not imply that its knowledge or experience is called into question.

90 Finally, the applicant’s assertion that it is clear from the EMCDDA’s arguments that the price criterion was ‘totally neutralised’ in the classification of the offers and that, had the applicant’s tender been evaluated thoroughly and objectively with regard to the qualitative criteria, the enormous price difference between the two tenders would have led to the applicant’s tender being accepted must be rejected. It must be held that the applicant does not put forward any evidence concerning the assessment of the price criterion and that, in any case, it has not proved that the assessment of its tender in the light of the qualitative criteria was vitiated by a manifest error of assessment by the evaluation committee.

91 It follows from all of the foregoing that the applicant has not established that the EMCDDA made a manifest error of assessment when evaluating the applicant’s tender and that, consequently, the plea alleging manifest errors of assessment must be rejected.

The plea alleging infringement of the principles of sound administration and equal treatment

92 The applicant relies on Article 146(3) of the implementing rules, Article 34 of Directive 92/50 and Article 74(5) of Directive 2004/18 in order to claim that the EMCDDA infringed the principles of sound administration and equal treatment. It claims that, although it considered the applicant’s offer ambiguous, the EMCDDA did not request further explanations. The EMCDDA acknowledges its obligation to request clarifications, while failing to prove that certain special circumstances rendered the fulfilment of that obligation ‘superfluous and inappropriate’. Thus, the marks awarded to the applicant’s tender do not reflect the real value of the tender but depict the evaluation committee’s failure to understand it.

93 The EMCDDA disputes the applicant’s arguments. Moreover, noting that Directive 92/50 is not applicable in the present case, it contends that the applicant in reality relies on Article 146(3) and Article 148(3) of the implementing rules.

94 As a preliminary point, it should be recalled that, as stated in paragraph 35 above, Directive 92/50 was repealed by Directive 2004/18 and that the latter is not applicable to the present case.

95 It must be pointed out that Article 146(3) of the implementing rules provides that the evaluation committee or the contracting authority may ask candidates or tenderers to supply additional material or to clarify the supporting documents submitted in connection with the exclusion and selection criteria, within the time-�limit it specifies. Therefore, since the applicant’s tender was rejected at the award stage and not at the stage of selection of the tenders, it must be held that the applicant’s reference to Article 146(3) of the implementing rules is irrelevant.

96 Moreover, according to Article 148(1) of the implementing rules, contact between the contracting authority and tenderers during the contract award procedure may take place, by way of exception. In addition, under Article 148(3) of the implementing rules, the contracting authority may contact the tenderer after the tenders have been opened, if some clarification is required in connection with a tender, or if obvious clerical errors in the tender must be corrected, but that contact may not lead to any alteration of the terms of the tender. It follows that that provision cannot be interpreted as meaning that, in the exceptional, limited circumstances which it identifies, it imposes a duty on the institutions to contact tenderers (see, by analogy, Case T-19/95 Adia interim v Commission [1996] ECR II-�321, paragraphs 43 and 44).

97 Nevertheless, observance of the general principles of law may give rise to an obligation on the contracting authority to contact a tenderer (see, to that effect and by analogy, Adia interim v Commission, paragraph 96 above, paragraph 45).

98 That is the case, in particular, where the terms of a tender itself and the surrounding circumstances known to the contracting authority indicate that the ambiguity probably has a simple explanation and may easily be resolved. In those cases, it is, in principle, contrary to the requirements of sound administration for an evaluation committee to reject the tender without exercising its power to seek clarification. To grant it, in such circumstances, an unfettered discretion would moreover be contrary to the principle of equal treatment (see, to that effect, Case T-211/02 Tideland Signal v Commission [2002] ECR II-�3781, paragraphs 37 and 38). However, it is also essential, in the interests of legal certainty, that the contracting authority should be able to ascertain precisely what a tender offer means and, in particular, whether it complies with the conditions set out in the specifications. Thus, where a tender is ambiguous and it is not possible for the contracting authority to establish, swiftly and efficiently, what it actually means, that authority has no choice but to reject that tender (see, to that effect, Tideland Signal v Commission, paragraph 98 above, paragraph 34).

99 In the present case, it must, first of all, be held that the applicant does not refer to any obvious clerical errors in the tender, the correction of which could have been taken into account by the evaluation committee.

100 Next, the applicant does not specify those parts of its offer which were rejected by the EMCDDA because they were ambiguous and which should have led to a request for clarification, in accordance with the case-law noted in paragraphs 97 and 98 above. In that regard, it must be held that it follows from the letter of 5 December 2005, and from those of 20 December 2005 and 6 January 2006, that the evaluation committee identified a general difficulty when reading the applicant’s tender and that, with regard to criterion 3, it considered that it was not clear from the tender what was specifically proposed for the project, the tender seeming to it to be rather general. Moreover, concerning those factors which, according to the applicant, were vitiated by various errors of assessment, it should be recalled that, in paragraph 91 above, the Court held that the applicant has failed to prove that the EMCDDA made a manifest error of assessment in evaluating its tender.

101 It follows from the foregoing that the applicant has not established that its offer was ambiguous in certain respects which could be simply explained or easily resolved and that, therefore, its offer should have given rise to some requests for clarification by the EMCDDA.

102 Finally, with regard to the alleged infringement of the principle of equality of treatment between tenderers, referred to in Article 89(1) of the Financial Regulation, it must be pointed out that, by virtue of that principle, the contracting authority may exercise its right to seek clarification concerning tenders after they have been opened, under Article 148(3) of the implementing rules, it being understood that it is obliged to treat all tenderers in a similar manner when exercising that power (see, to that effect, Tideland Signal v Commission, paragraph 98 above, paragraph 38).

103 In the present case, the applicant has not proved, or even alleged, that the EMCDDA contacted, during that public procurement procedure, other tenderers in a situation similar to its own, in order to correct possible errors in their tenders or to provide additional information.

104 In the light of all of the foregoing, it must be held that the applicant has not proved that the EMCDDA infringed the principles of sound administration or equal treatment. Therefore, the plea alleging infringement of those principles must be rejected.

105 The applicant claims that, contrary to the requirements laid down in Article 100(2) of the Financial Regulation and the third subparagraph of Article 149(3) of the implementing rules, the EMCDDA did not describe the relative merits of the successful tender. In its letter of 20 December 2005, the EMCDDA presented three tables which did not correspond to the obligation to provide, to the unsuccessful tenderers, full information on the relative merits of the tender accepted, since those tables merely contained the marks from the evaluations, expressed in numbers of points awarded, and not the evaluation itself. However, the EMCDDA was invited, immediately after the notification of its decision awarding the contract and throughout the correspondence with the applicant, to communicate all the necessary information to determine how and where the offer of the successful tenderer was better than that of the applicant and to explain the relative merits of the successful tender.

106 In particular, the evaluation committee did not demonstrate how the experience of the successful tenderer exceeded that of the applicant in relation to database architecture. In addition, in its response of 6 January 2006, the EMCDDA also failed to explain clearly how the applicant’s proposal concerning the ‘systems analyst/architect’ compared to that of the successful tenderer. It also failed to provide details of the merits of the successful tender regarding Oracle. Finally, with regard to the proposed survey system, the risks referred to by the EMCDDA in its defence are not described in detail and there is no indication of the relative merits of the successful tender.

108 In its arguments regarding the assessment of its offer in the light of criteria which are not indicated in the specifications and concerning the existence of manifest errors of assessment, the applicant claims that the EMCDDA did not set out the relative merits of the successful tender, contrary to the requirements of Article 100(2) of the Financial Regulation and the third subparagraph of Article 149(3) of the implementing rules.

109 It should be recalled 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, and Evropaïki Dynamiki v Commission, paragraph 73 above, paragraph 47).

110 In addition, as stated in paragraphs 3 and 4 above, the award of the contract in question is subject to the provisions of the Financial Regulation and its implementing rules and, in particular, with regard to the obligation to state reasons, Article 100(2) of the Financial Regulation and Article 149 of the implementing rules.

111 According to those provisions, and to the case-law, the contracting authority complies with its obligation to state reasons if, first, it merely informs any eliminated tenderer of the reasons for rejection of his tender and then provides any tenderer who has made an admissible tender with the characteristics and relative advantages of the tender selected and the name of the successful tenderer, within 15 days of the date on which a written request is received (see, to that effect and by analogy, Case T-�169/00 Esedra v Commission [2002] ECR II-�609, paragraphs 188 and 189; the judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47, and the case-�law cited; and Case T-437/05 Brink’s Security Luxembourg v Commission [2009] ECR II-�0000, paragraph 160).

112 Such a manner of proceeding satisfies the purpose of 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 (see the judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 69, and the case-law cited, and Evropaïki Dynamiki v Commission, paragraph 73 above, paragraph 49).

113 In addition, it should be recalled that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-�1719, paragraph 63, and the case-law cited, and Evropaïki Dynamiki v Commission, paragraph 111 above, paragraph 49, and the case-law cited).

114 Finally, according to the case-law, where the contracting authority concerned sends a letter, following a request for additional information about a decision before an action is brought, but after the date laid down in Article 149(3) of the implementing rules, that letter may also be taken into account in order to examine whether the reasoning in the particular case was sufficient. 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, but the contracting authority is not permitted to substitute an entirely new statement of reasons for the original statement of reasons (see Evropaïki Dynamiki v Commission, paragraph 73 above, paragraph 50, and the case-law cited).

115 Thus, in order to determine whether, in the present case, the EMCDDA has fulfilled the obligation to state reasons provided for by the Financial Regulation and under the implementing rules, it is necessary to examine the letter of 5 December 2005, and the letters of 20 December 2005 and 6 January 2006 addressed to the applicant in reply to its express request of 13 December 2005, seeking to obtain additional information on the decision to award the contract in question and to reject its tender.

116 In its letter of 5 December 2005, the EMCDDA, in accordance with Article 100(2) of the Financial Regulation, stated the grounds on which the applicant’s tender was rejected, namely that it was not the best in terms of price-quality ratio, on the basis of which the contract had been awarded pursuant to the established award criteria. The EMCDDA also informed the applicant of its right to obtain additional information on the grounds for the rejection of its bid and on the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded.

117 Following the applicant’s written request of 13 December 2005, the EMCDDA replied to it by letter of 20 December 2005, that letter containing various information in response to the clarifications sought by the applicant and stating as follows:

118 It must be held that, in the letter of 20 December 2005, the first table enabled the applicant, for each of the qualitative award criteria laid down in the specifications, to compare directly the points awarded to it with those obtained by the successful tenderer. That letter also makes clear that the applicant’s offer was not classified, under any of those criteria, more favourably than the successful tender. In addition, the second table indicated how the price index was calculated, in accordance with point 10 of the specifications, for the applicant’s tender and that of the successful tenderer. Finally, the last table indicated the overall scores obtained by the applicant and the successful tenderer, calculated in accordance with point 10 of the specifications and enabling the applicant immediately to identify the reasons why its tender was not chosen, namely because its tender was economically less advantageous, because that of the successful tenderer was better value for money.

119 In response to the applicant’s letter of 23 December 2005, reiterating its request to obtain a copy of the evaluation report containing – with regard to its tender – the comments of the evaluation committee on each of the award criteria and a detailed explanation of the technical marks awarded, which the applicant regarded as ‘particularly low’, the EMCDDA, by letter of 6 January 2006, granted the applicant partial access to the evaluation report, providing it with explanations concerning the evaluation of its offer in the light of each of the qualitative award criteria.

120 On the basis of all that information, it must be held that, by its letters of 5 and 20 December 2005 and 6 January 2006, the EMCDDA provided sufficient reasons for its rejection of the applicant’s offer and satisfied the requirements laid down in Article 100 of the Financial Regulation and Article 149(2) of the implementing rules and the case-law cited in paragraph 111 above.

121 It follows from the foregoing considerations that the present plea, alleging infringement of the obligation to state reasons, must be rejected as unfounded.

122 Since the applicant has failed in all its pleas, the present action must be dismissed in so far as it seeks the annulment of the decision not to accept the tender submitted by the applicant and to award the contract to the successful tenderer.

123 The applicant formulates a claim for damages amounting to EUR 122 000, consisting of EUR 80 000 in respect of the expenses incurred in submitting its tender and EUR 42 000, being the net profit it would in its opinion have made from the contract. The applicant explains, in its reply, that its application for damages is based on Articles 235 EC and 288 EC and that it stems from the unlawfulness of the EMCDDA’s decision contained in its letter of 5 December 2005. It maintains that it has proved that the evaluation committee’s decision was based on ‘consecutive and multiple’ manifest errors of assessment and that fundamental rules and principles of public procurement had been infringed by the contracting authority. Its application for damages with interest was therefore ‘in full accordance with settled case-law’ (Case C-63/89 Assurances du crédit v Council and Commission [1991] ECR I-�1799, paragraph 12, and Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-�981, paragraph 102).

124 Finally, the applicant claims that the EMCDDA’s application for a ruling on the admissibility of the damages claim should be rejected to the extent that it was not submitted by separate document, in accordance with Article 114(1) of the Rules of Procedure.

125 The EMCDDA contests the admissibility of the applicant’s damages claim on the ground that it cannot be based on the provisions governing the annulment action. In addition, the applicant stated, only at the stage of its reply, that its application for damages was based on Articles 235 EC and 288 EC. In any case, the claim for damages is without foundation.

126 According to settled case-law, for the Community to incur extra-contractual liability, within the meaning of the second paragraph of Article 288 EC for the illegal conduct of its organs, a number of requirements must be met, that is to say: the unlawfulness of the conduct of which the institutions are accused, the reality of the damage and the existence of a causal connection between that conduct and the damage in question (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Evropaïki Dynamiki v Commission, paragraph 73 above, paragraph 133). Where one of those conditions is not satisfied, the action must be rejected in its entirety, without its being necessary to examine the other preconditions (see, to that effect, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-�4199, paragraph 81).

127 In the present case, as is clear from the considerations concerning the application for annulment, the applicant has failed to prove unlawful conduct on the part of the EMCDDA. Since one of the three conditions for the Community’s extra-contractual liability is not met, the application for damages must be rejected as unfounded, without its being necessary to rule on its admissibility.

128 According to the applicant, the EMCDDA should be ordered to pay the costs, under Article 87(3) of the Rules of Procedure, even if the Court dismisses the present action. In its view, the inadequate assessment of its offer by the EMCDDA and the fact that it did not duly take into consideration its observations compelled the applicant, in the absence of a procedure for review of the evaluation committee’s decision, to bring an action before the Court. It relies in particular on AFCon Management Consultants and Others v Commission, paragraph 123 above, paragraphs 104 to 109.

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

131 It should be pointed out that the paragraphs of the judgment cited by the applicant (AFCon Management Consultants and Others v Commission, paragraph 123 above, paragraphs 104 to 109) are irrelevant since they concern the compensation for harm in the context of a claim for damages and not the question of costs. In addition, the applicant does not claim to have sustained unreasonable or vexatious costs.

132 Consequently, since the applicant has failed in its pleas, it must be ordered to pay the costs, as applied for by the EMCDDA.

2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).

Plea alleging infringement of the Financial Regulation, the implementing rules, Directive 92/50 and the principles of transparency and equal treatment

Complaint alleging infringement of the obligation to distinguish between the selection phase and the award stage

Complaint alleging the application of award criteria not set out in the contract notice or the specifications

The plea alleging infringement of the principles of sound administration and equal treatment

Qualitative criterion 1: Technical merit of the human resources for the execution of the tasks									30%
Qualitative criterion 2: Excellence of the solution proposed in technical terms									40%
Qualitative criterion 3: Quality of proposed project coordination and organisation									30%

Tenderer	Price of the offer	Price of the offer × 100/Cheapest offer	Price index
[Evropaïki Dynamiki]	EUR 244 160	244 160 × 100/244 160 = 100	100
[Successful tenderer]	EUR 299 887	299 887 × 100/244 160 = 122.82	122.82

Tenderer	Number of points for the qualitative criteria	Number of points for the qualitative criteria × 100/Price index	Global score
[Evropaïki Dynamiki]	3.0	3.0 × 100/100 = 3.00	3.00
[Successful tenderer]	6.7	6.7 × 100/122.82 = 5.46	5.46

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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) >> Evropaiki Dynamiki v OEDT [2010] EUECJ T-63/06 (09 September 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/T6306_J.html Cite as: [2010] EUECJ T-63/06, [2010] EUECJ T-63/6

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