Evropaiki Dynamiki v Commission (Public service contracts) [2012] EUECJ T-49/09 (19 April 2012)

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(Public service contracts - Community tendering procedure - Provision of services relating to the maintenance and development of the information systems of the Directorate-General for Regional Policy - Rejection of a tender - Action for annulment - Equal treatment - Obligation to state reasons - Infringement of essential procedural requirements - Manifest error of assessment - Non-contractual liability)

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

2 By a contract notice of 18 June 2008, published in the Supplement of the Official Journal of the European Union (OJ 2008/S 117-155067), the Directorate-General (DG) for Regional Policy of the Commission of the European Communities launched a call for tenders relating to the maintenance and development of its information systems ('the contested public contract'). In essence, the object of the contested public contract was to take over the daily maintenance of DG Regional Policy's information systems and to carry out development work in the event of functionality problems or user demands.

3 Paragraph 6.3 of the tendering specifications, entitled 'Evaluation of offers', contained the list of the technical and financial evaluation criteria. In particular, paragraph 6.3.1 of the specifications stated as follows:

4 Chapter 5 of Annex VI to the tendering specifications, entitled 'Evaluation of the tender - technical evaluation' accordingly consisted of five sections, each containing questionnaires to be filled out by the tenderers. Those sections were designed to evaluate the adequacy of the approach proposed by the tenderers so far as concerns the global project strategy for the operational phase and for the takeover and handover phases (chapter 5.1), the project organisation and teams (chapter 5.2), the methodology, tools and processes (chapter 5.3), project control and the service level agreement (chapter 5.4) and, lastly, the structure, clarity and level of completeness of the proposal (chapter 5.5).

6 By letter of 23 July 2008, the applicant informed the Commission that, in its view, certain criteria of the tendering specifications relating to the technical and financial evaluation of the tenders did not comply with the principles laid down in 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 European public procurement legislation and that they favoured the incumbent contractor. In addition, the applicant submitted that the use of the 40% - 60% (price-quality) weighting, set out in paragraph 6.4 of the specifications, was not consistent with the Financial Regulation. The applicant requested the Commission to amend the specifications accordingly.

7 By letter of 18 August 2008, the Commission rejected the applicant's claim that the incumbent contractor was being favoured, while deciding to modify and clarify certain paragraphs in the tendering specifications. Those modifications and clarifications resulted in the publication, on 15 July 2008, of a corrigendum in the Supplement to the Official Journal (OJ 2008/S 135-180446), which was brought to the attention of all the companies concerned by the public procurement procedure in question.

8 By letter of 19 August 2008, the applicant repeated to the Commission its assertion that the tendering specifications were discriminatory, that they favoured the incumbent contractor and that the use of the 40% - 60% (price-quality) weighting was contrary to the Financial Regulation.

9 By letter of 27 August 2008, the Commission replied to the applicant, stating - essentially - that it maintained its position with regard to the issues raised in the applicant's previous letter.

10 On 2 September 2008, the applicant, in consortium with the company ABG SPIN S.A, submitted a tender in response to the call for tenders in question.

11 By letter of 21 November 2008, the Commission informed the applicant that, having examined the tenders submitted by the tenderers, it had taken the view that the applicant's tender had not satisfied the minimum quality threshold Q1 referred to in chapter 6.3.1 of the tendering specifications, and that the applicant's tender was for that reason excluded from the award phase ('the decision to reject the tender'). The Commission also informed the applicant of its right to request information relating to the rejection of its tender.

12 By letters of 24 November 2008 and 4 December 2008, the applicant requested that the Commission provide it with the name of the successful tenderer, explanations of the scores achieved by the applicant's tender and by that of the successful tenderer for each award criterion, a comparison of the technical and financial aspects of its tender with that of the successful tenderer, the names of the members of the evaluation committee and a copy of that committee's report. It also asked the Commission to refrain from signing the contract with the successful tenderer for a period of 14 days following the date of communication of the information requested.

13 By letter of 8 December 2008, the Commission informed the applicant that signature of the contract had been suspended, in accordance with the third subparagraph of Article 158a(1) 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 Rules'), in order to allow an additional examination to be conducted.

14 By letter of 11 December 2008, the applicant asked the Commission for information concerning the procedure for that examination.

15 By separate letters of 12 December 2008, the Commission firstly informed the applicant that the additional examination had been undertaken with a view to verifying the committee's initial evaluation, in particular with regard to the three tenderers eliminated from the award phase of the contested public contract. The Commission also explained to the applicant that, since the outcome of the additional examination confirmed the findings of the initial evaluation, the suspension of the signature of the contract had been lifted. Secondly, the Commission provided the applicant with the name of the successful tenderer, the scores awarded to the applicant's tender and to that of the successful tenderer for each award criterion, the reasons why the applicant's tender had not achieved the minimum threshold for the award criterion Q1, the relative advantages of the successful tender, and the final amount of the financial offer submitted by the successful tenderer.

16 By letters of 12, 17 and 19 December 2008 addressed to the Commission, the applicant challenged the assessment made by the evaluation committee and, in essence, alleged that the committee had committed several manifest errors of assessment and had failed to provide adequate reasons for its evaluation. The applicant also repeated its request for a copy of the evaluation report.

17 By letters of 18 December 2008 and 20 January 2009, the Commission replied to the applicant that it had provided the latter with all the necessary information in accordance with the Financial Regulation.

18 On 2 February 2009, a contract award notice was published in the Supplement to the Official Journal (OJ 2009/S 44250), announcing that the contested public contact had been awarded, by decision of 21 November 2008, to the consortium consisting of Engineering Ingegneria Informatica SpA and Serco Belgium SA.

19 By application lodged at the Registry of the General Court on 30 January 2009, the applicant brought the present action.

20 Acting upon the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, invited the parties to reply to certain questions. The parties complied with that request within the prescribed period.

23 The applicant has brought an application for annulment and an application for damages.

24 As regards the application for annulment, it should be noted that, as the applicant stated in response to a written question from the Court, by way of a measure of organisation of procedure, its application seeks 'the annulment of the decision of [the Commission] ... communicated ... by letter dated 21 November 2008'. However, the letter of 21 November 2008 contains only the Commission's decision to reject the applicant's tender in response to the contested call for tenders and exclude that tender from the contract award phase.

25 In its response to that same written question, the applicant adds that 'all pleas of law [in its written pleadings] are ... directed against this one Decision of the Commission'. It follows from that clear and unequivocal response that, although that applicant stated, in the form of order sought in the application, that it was seeking the annulment of the decision rejecting its tender 'and all further related decisions of the Commission, including the one to award the contract to the successful contractor', it itself takes the view that none of the pleas in law raised in support of its application is directed against a decision other than the decision rejecting the tender.

26 The scope of the present application for annulment must therefore be limited to examining the legality of the decision to reject the tender.

27 In support of its application for annulment, the applicant raises five pleas, alleging, respectively, breach of the obligation to state reasons, insufficient communication of information regarding the results of the additional examination procedure provided for in the third subparagraph of Article 158a(1) of the Implementing Rules, the existence of manifest errors of assessment by the Commission, the infringement of essential procedural requirements and infringement of the principle of equal treatment.

28 The applicant submits that the Commission breached its obligation to state reasons in that it failed to provide the applicant with sufficiently detailed explanations regarding the decision to reject the tender. Moreover, the applicant complains that the Commission gave reasons for only one of the technical evaluation criteria, that is to say, quality criterion Q1, thereby affecting its rights of defence.

29 The applicant further submits that the Commission should have given it more information on the results reached by the supplementary verification procedure carried out in accordance with the third subparagraph of Article 158a(1) of the Implementing Rules and a copy of the evaluation report resulting from that evaluation.

30 Lastly, the applicant complains that the Commission failed to give it access to the source codes to DG Regional Policy's information systems and associated material, as that information is essential for tenderers when preparing their tenders and, moreover, that the Commission used an incorrect parameter when examining quality criterion Q1.

32 It should be noted from the outset that, apart from the arguments alleging failure to state adequate reasons for the decision to reject the tender, the applicant puts forward, under the present plea, a series of arguments criticising the Commission for not having provided it with certain information necessary for it to prepare its tender and for having used inadequate parameters during its evaluation. In so far as those arguments do not concern the obligation to state reasons for the decision to reject the tender, they must be rejected as ineffective in the context of the present plea.

33 It should be recalled that, in the context of a public procurement procedure such as that here at issue, the content of the contracting authority's obligation to state reasons to tenderers whose tenders have not been successful is governed by Article 100(2) of the Financial Regulation and by Article 149 of the Implementing Rules.

34 It follows from those provisions that a contracting authority fulfils its obligation to state reasons if, first, it confines itself to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received (see, to that effect, judgment of 9 September 2010 in Case T-63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 111, and Case T-300/07 Evropaïki Dynamiki v Commission [2010] ECR II-0000, paragraph 49 and the case-law cited).

35 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal way 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 review (See Evropaïki Dynamiki v EMCDDA, cited in paragraph 34 above, paragraph 112, and Evropaïki Dynamiki v Commission, cited in paragraph 34 above, paragraph 50 and the case-law cited).

36 Moreover, the duty to state reasons must be assessed in the light of the information available to the applicant at the time when the application was brought (Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 58, and judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 50).

37 It should, moreover, be noted 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).

38 In the present case, it should be observed, first of all, that, by letter of 21 November 2008, the Commission stated the following to the applicant:

39 Next, the Commission sent to the applicant, by letter of 12 December 2008, the following explanations:

40 It follows from the foregoing points that, in a first letter, dated 21 November 2008, the Commission communicated to the applicant the decision to reject the tender and informed it of its right to request additional information concerning that rejection. Subsequently, by a second letter dated 12 December 2008 and sent to the applicant in response to its express requests (see paragraph 12 above), the Commission repeated the reason for the decision to reject the tender, that is to say, the failure to satisfy the minimum threshold for quality criterion Q1, and provided a number of reasons for that failure. Similarly, the Commission outlined for the applicant the relative advantages of the tender selected for that criterion. Lastly, the Commission sent to the applicant the name of the successful tenderer, indicated to it the scores awarded to the successful tender and to its own tender for each quality criterion and informed it of the final amount of the financial offer selected.

41 It follows from those elements that the Commission provided the applicant with all the information that it was obliged to supply to it, in accordance with Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.

42 Consequently, contrary to what the applicant claims, the Commission did not fail in its obligation to state reasons for the decision to reject the tender.

43 That finding cannot be called into question by the applicant's complaint that the Commission merely sent it information relating to one single award criterion, thereby affecting its rights of defence. The Commission sent to the applicant, by its letter of 12 December 2008, a table headed 'Quality Evaluation Results Table' stating, for each of the technical evaluation criteria, that is to say, quality criteria Q1, Q2, Q3, Q4 and Q5, the maximum possible points, the quality threshold and the results obtained by the applicant's tender and by the selected tender. Consequently, the applicant's argument that it received no information regarding the other award criteria cannot be accepted.

44 Moreover, it is apparent from both the letter of 21 November 2008 and the letter of 12 December 2008 that the applicant's tender was rejected because it did not meet the minimum threshold for quality criterion Q1. Furthermore, the table set out in the letter of 12 December 2008 indicates that the applicant's tender had obtained results above the minimum threshold for each of the other quality criteria. Consequently, since, in accordance with paragraph 6.3.1 of the tendering specifications, each quality criterion had been evaluated independently and the failure to satisfy a single criterion was sufficient to exclude a tender from the award phase of the contested public contract, the Commission was obliged to inform the applicant only of the factors on which the evaluation of the quality criterion which had not been satisfied was based.

45 Lastly, 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 has been awarded. In those circumstances, the Commission was not under any obligation to disclose to the applicant, as part of the statement of reasons for the decision rejecting the tender, either the evaluation committee's report before the supplementary verification or that prepared following that verification (see, to that effect, judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 113).

46 It follows from the foregoing that the plea alleging breach of the obligation to state reasons must be rejected.

The plea alleging insufficient communication of information concerning the results of the additional examination procedure provided for in the third subparagraph of Article 158a(1) of the Implementing Rules

47 Under the third subparagraph of Article 158a(1) of the Implementing Rules, '[i]f necessary, the contracting authority may suspend the signing of the contract for additional examination if this is justified by the requests or comments made by unsuccessful ... tenderers ... In the case of suspension all the candidates or tenderers shall be informed within three working days following the suspension decision'.

48 Contrary to what the applicant asserts, it is apparent from the letters of 8 and 12 December 2008 that the Commission did inform it, first, of the decision to suspend the procedure in order to conduct such an examination, secondly, of the fact that that suspension was based on the third subparagraph of Article 158a(1) of the Implementing Rules and, finally, of the reasons underlying that decision.

49 In any event, the Commission explained that several requests sent by excluded tenderers, including the applicant, for supplementary observations on the initial results of the evaluation committee justified the suspension of the procedure in order to carry out that examination. Moreover, the Commission added that the additional examination was limited to verifying whether the points had been awarded correctly for each evaluation criterion. Lastly, it is also apparent from the Commission's explanations that the verification was carried out by the evaluation committed as originally constituted, with the result that, contrary to what the applicant appears to be claiming, a second evaluation committee, different from that which carried out the first evaluation, was not created.

50 Consequently, as the Commission did not fail in its duty to provide information, within the meaning of the third subparagraph of Article 158a(1) of the Implementing Rules, in the context of the additional examination, that plea must be rejected as unfounded.

51 The applicant submits that the Commission erred in taking the view that its tender did not meet the minimum threshold for quality criterion Q1 referred to in paragraph 6.3.1 of the tendering specifications.

52 First, the applicant considers that the Commission incorrectly used the number of 'man-days' proposed for the takeover of the project as a parameter to evaluate its tender and compare it with that of the successful tenderer. In essence, the applicant disputes the consistency and adequacy of that parameter since a large number of IT managers do not necessarily guarantee a better quality of service. Moreover, according to the applicant, in order to evaluate the quality of the tenderers' proposals for the takeover phase of the required services, rather than rely on that quantitative parameter, the Commission ought to have relied on the results outlined in their tenders for that phase, or have taken account of other parameters such as the training and experience of the members of the respective teams.

53 In addition, the applicant argues that, even if the parameter relating to the 'man-days' proposed for the takeover of the project was justified, the Commission incorrectly evaluated its tender. In particular, it points out that it explicitly stated, inter alia at points 5.2.2.1 and 5.2.4.2 of its tender, that it would commit to providing a pool of project managers as a backup solution and that it would make available back-up resources per service and per profile to cover the needs of the contract if this should prove necessary. These commitments, it argues, show that the entire team made available by the applicant for the project in question was larger than that of the successful tenderer.

54 Lastly, the applicant asks the Commission to provide the Court with a copy of the successful tenderer's offer with the material necessary to compare the two tenders with regard to those aspects.

56 It must be noted at the outset that, according to settled case-law, the Commission has a 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. In those circumstances, the Court's review must be limited to checking that the rules governing the procedure and statement of reasons are complied with, that the facts are correct, and that 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, and judgment of 3 March 2011 in Case T-589/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 24).

57 In the present case, it should be recalled, first, that, according to the letter of 21 November 2008 (see paragraph 38 above), the applicant was excluded from the procurement procedure of the contested public contract on the ground that it had not reached the minimum threshold for quality criterion Q1 referred to at paragraph 6.3.1 of the tendering specifications.

58 Secondly, it should be noted that, as is clear from paragraph 6.3.1 of the tendering specifications and from chapter 5.1 of Annex VI to those specifications (see paragraphs 3 and 4 above), quality criterion Q1 was intended, in particular, to evaluate the adequacy of the approach proposed by the tenderers as regards the operational, takeover and handover phases.

59 Lastly, it should be noted that, in the letter of 12 December 2008, the Commission informed the applicant of the reasons why its tender had been excluded from the award phase (see paragraph 39 above). In particular, the Commission explained to the applicant that, while its tender had been considered to be 'sufficient' so far as concerned the operational and handover phases, that was not the case for the takeover phase. Moreover, the Commission stated that the estimated effort proposed in the offer for the takeover phase, which amounted to 205 'man-days', had to be regarded as an underestimation for a highly sensitive phase and in comparison with the level of services offered for the operational phase. The Commission added that the successful tenderer had proposed an effort of 760 'man-days', which was judged to be more appropriate and consistent with the proposed targets.

60 It is on the basis of those factors that it is necessary to examine whether the Commission committed a manifest error, in particular when evaluating the proposals made by the applicant for the takeover phase.

61 The applicant puts forward two complaints in that regard. The first alleges that the parameter used by the Commission in order to evaluate the tenders was inadequate so far as that phase is concerned. The second alleges that, even if that parameter was adequate, it was wrongly applied by the Commission.

62 As regards the first complaint, it should be noted, first, that, as is apparent from the letter of 12 December 2008, the Commission used the 'man-days' parameter in order to evaluate the applicant's tender as regards the takeover phase. That parameter appears, inter alia, in paragraph II.2.1 of the contract notice as an indicator of the approximate total volume of work to be performed by the contractor during the contract term in the operational phase of the project. Moreover, the Commission explained, in response to a question put by the Court, that this is a unit of measurement used in the public tender procedures that it organises and which provides it with an estimation of the manpower that each tenderer associates with the performance of the tasks proposed in its tender.

63 In the present case, contrary to what the applicant claims, the 'man-days' parameter used by the Commission does not appear to be manifestly inappropriate for the purposes of evaluating the effort and approach proposed by the tenderers for the takeover phase and could therefore be used in the evaluation of quality criterion Q1.

64 It should be noted that Annex II to the tendering specifications, entitled 'description of the services required', describes the takeover phase of the project as 'a period of progressive learning with the support of the current team and/or DG Regio's officials with a view to transferring knowledge from the previous team and to the handover of operations prior to the full start of the operational phase'. Moreover, paragraph 5.1.2.1 of Annex VI to the tendering specifications states that, during the takeover phase, the tenderers were required to 'take over the current systems and activities guaranteeing at the end of this phase that [they would be] ready to provide the services required [during the operational phase]'.

65 Since, according to the above descriptions, the takeover phase involved the progressive substitution of the existing team with the new contractor's team during a period of transition and, therefore, relieving it of a certain number of IT managers, the 'man-days' parameter was able to provide an appropriate indication of the way in which the tenderers planned to carry out that task and, in particular, the amount of manpower set aside for that purpose.

66 Furthermore, first, it should be noted that the applicant itself proposed, for the takeover phase, the number of 'man-days' in the description of the strategy that it had sent to the Commission. In those circumstances, it cannot argue that such a criterion could not be evaluated by the Commission. Secondly, since the applicant does not dispute that the operational phase of the project could be evaluated on the basis of the 'man-days' parameter, as the Commission had stated in paragraph II.2.1 of the contract notice (see paragraph 62 above), the validity of that parameter for the purpose of evaluating the takeover phase cannot be challenged, since it was designed to be the introductory stage of the operational phase.

67 Lastly, the applicant's argument that a parameter such as the number of 'man-days' could under no circumstances be used in order to evaluate the technical quality of a given service cannot be accepted. Although other parameters taken into account in the evaluation of the quality of a service may also affect that parameter and, therefore, limit estimations made on the basis of the 'man-days' parameter, it cannot be inferred from this that the total amount of manpower proposed to ensure the provision of a service cannot influence the quality of its execution.

68 Contrary to the foregoing conclusions, the applicant claims that, rather than relying on a quantitative parameter such as the number of 'man-days', the Commission ought to have made an overall evaluation of the results which the tenderers had undertaken to achieve in the respective tenders for the takeover phase, or to have taken into account, when evaluating its tender, the training and professional experience of the members of the teams proposed for that phase.

69 However, it must be held that the applicant's argument incorrectly distinguishes between the evaluation of the results of a tender and the methods proposed for achieving those results. In that regard, nothing in the explanations provided by the Commission to the applicant in the letter of 12 December 2008 allows the conclusion to be drawn that the Commission ignored the results that the tenderers undertook to achieve when it evaluated quality criterion Q1. Indeed, those explanations demonstrate that, contrary to what the applicant argues, the Commission verified whether the tenderers' proposals for the takeover phase were consistent with the proposed objectives, and it is in that respect in particular that it had to compare those objectives with the methods outlined for their implementation, in particular manpower. It should be borne in mind that one of the methods set out by the applicant to justify the results proposed concerned precisely the number of 'man-days'. In the present case, the Commission's conclusion led it to find that that comparison showed that the applicant had underestimated the effort required to complete the takeover phase of the project.

70 Finally, it should be noted, as the Commission did, that the other parameter which, according to the applicant, should have guided the Commission's evaluation, that is to say, the training and professional experience of the members of the proposed teams, was, in the context of the contested public contract, one of the parameters which the Commission had to take into account for the purpose of evaluating the tenderers' offers in the selection phase, that is to say, that phase preceding the technical evaluation and award phase. Paragraph 6.2.2 of the tendering specifications, found in the section on '[s]election of tenderers', states that '[t]enderers are required to prove that they have sufficient technical and professional capacity to perform the contract'. In particular, tenderers were required to prove that they fulfilled the following condition: 'manpower and qualified staff appropriate to the required services'. In those circumstances, it must be held that the Commission was not obliged to consider the training or professional experience of the members of the proposed teams when evaluating the award criteria.

71 Consequently, it must be held that the Commission did not commit a manifest error in taking the view that the 'man-days' parameter was appropriate for evaluating the applicant's proposals concerning the takeover phase.

73 As regards the second complaint, the applicant considers that, even if the parameter used by the Commission was appropriate, the Commission failed to apply that parameter correctly in its evaluation, with the result that it wrongly concluded that the applicant's tender underestimated the effort necessary for the takeover phase. In particular, the applicant complains that the Commission failed to take into account all the information that the applicant had provided in its tender on the size of the teams proposed for the takeover. The applicant claims, in this regard, that it expressly undertook in paragraphs 5.2.2.1 and 5.2.4.2 of its tender to make available, as required, all the support staff necessary to meet its obligations under the contract.

74 First, it should be observed that the proposals made by the tenderers concerning the takeover phase, although that phase is transitional in nature, could not be separated from the proposals relating to the operational phase, without causing disruption to the services provided.

75 In the present case it should be noted that, as is apparent from paragraph II.2.1 of the contract notice, the Commission estimated that an approximate number of 7 500 'man-days' per year was adequate in order to provide the services required by the contested public contract and that the duration of the contract was 24 months. This means that it considered the use of 625 'man-days' per month during the period of completion to be necessary. Moreover, it follows from paragraph 2.1 of Annex II to the tendering specifications that the takeover phase was intended to last for two or three months. On the basis of estimations concerning the operational phase, it can be inferred that the takeover phase, if it were to last two months, would require an effort of 1 250 'man-days' and, if it were to last three months, would require an effort of 1 875 'man-days'. Even assuming that, during the operational phase, the effort required had to be greater than that during the takeover phase, the difference between that estimate (1 250 or 1 875 'man-days') and the applicant's estimate (205 'man-days') is still disproportionate.

76 It follows that the Commission did not commit a manifest error of assessment either in concluding that the applicant's tender underestimated the effort necessary for the takeover phase as against the effort for the operational phase, or in taking the view that the successful tenderer's proposal for that phase, that is to say, 760 'man-days' (see paragraph 59 above), was more adequate.

77 Secondly, it should be noted that paragraphs 5.2.2.1 and 5.2.4.2 of the applicant's tender, to which the applicant refers, could be evaluated only under quality criterion Q2 and not under quality criterion Q1. Those paragraphs were intended to evaluate the tenderers' proposals regarding the organisation of the projects and teams, and not the strategy proposed for the takeover phase. In that regard, it should be noted that, as is apparent from the Commission's letter of 12 December 2008, the applicant's tender was not excluded because it failed to satisfy the minimum threshold for quality criterion Q2, but because it failed to satisfy that of quality criterion Q1. It follows that this argument of the applicant must be rejected.

78 Moreover, it should be noted that paragraph 5.2.4.2 of the tendering specifications invites all the tenderers to outline the procedures and methods of personnel management to ensure the availability of a sufficient number of staff as required. In those circumstances, the applicant was not the only one to offer a support team. On the contrary, all the tenderers were required to make proposals in that regard in their respective tenders.

79 Lastly, the comparison made by the applicant between the team proposed by it for the takeover phase and that of the successful tenderer, the applicant's team being larger, lacked rigour. The applicant compares its own basic team, increased by its own support staff, with the successful tenderer's team, which does not include support staff. It should be noted, as the Commission did, that support staff must be considered as a reinforcement which is proposed exceptionally and cannot be added to the teams proposed at each phase to compensate for the deficiencies of the tender in respect of those teams.

80 In the light of the foregoing, the documents in the case-file do not show that the Commission committed a manifest error of assessment in not taking account of the information provided in paragraphs 5.2.2.1 and 5.2.4.2 of the applicant's tender for the purpose of evaluating the size of the teams proposed for the takeover phase.

82 In the light of the foregoing, the plea alleging manifest errors of assessment must be rejected.

83 Lastly, while the applicant asks the Court to request that the Commission produce a copy of the successful tenderer's offer, it should be noted that, in accordance with settled case-law, the party requesting the production of documents must provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraphs 92 and 93, and Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraphs 30 and 31).

84 In the present case, however, it should be noted that, in accordance with paragraph 6.3.1 of the tendering specifications, during the initial phase of the technical evaluation, that is to say, the phase in which the applicant's tender was rejected, the Commission had to evaluate each tender in absolute terms and not in relative terms compared with the offers of other tenderers. In any event, the applicant fails to show how the production of a copy of the successful tenderer's offer could provide new evidence for the purposes of analysing the present plea. Finally, it should be pointed out that the letter of 12 December 2008 provides sufficient comparative elements to identify the advantages of the successful tenderer's offer in comparison with the applicant's tender, in particular so far as concerns the estimated efforts for the takeover phase.

85 In the light of the foregoing, the applicant's request for production of documents must be rejected.

86 First of all, the applicant claims that the Commission's suspension of the procurement procedure for the contested public contract to enable a second committee to conduct an additional examination of the Commission's initial evaluation infringes the essential rules of the procedure. In particular, it draws attention to Article 146 of the Implementing Rules and adds that '... there is no provision of Community law providing for a second evaluation committee, let alone when it is unknown which are its members, and whether there is guarantee against conflicts of interests'. Moreover, the applicant points out that, in the contested public procurement procedure, the second evaluation committee intervened before the award decision.

87 The applicant also claims that, as an interested party, it does not have any information concerning, in particular, the grounds on which the award procedure was suspended, the composition of the second evaluation committee or the nature of its tasks. For that reason, the applicant asks the Court to request production of a copy of the evaluation committee's report on the additional examination and all documents concerning its intervention.

88 The Commission contends, primarily, that the present plea must be declared inadmissible because it lacks clarity and, in the alternative, it refutes the applicant's arguments.

89 Under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to proceedings before the General Court pursuant to the first paragraph of Article 53 of that Statute, and under Article 44(1)(c) of the Rules of Procedure, every application is required to contain, inter alia, a summary of the pleas in law on which it is based.

90 In accordance with the case-law, this means that the information given in the application must be sufficiently clear and precise to enable the defendant to prepare his defence or to enable the Court to decide the case, if appropriate without other 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, even if only stated briefly, provided that the statement is coherent and comprehensible (Case T-195/95 Guérin automobiles v Commission [1997] ECR II-679, paragraph 20, and judgment of 12 March 2008 in Case T-332/03 European Service Network v Commission, not published in the ECR, paragraph 229).

91 In the present case, the applicant's arguments in support of its contention that the Commission infringed the essential procedural requirements of the additional examination lack clarity and precision. Those arguments fail to identify the essential requirements which were allegedly infringed by the Commission or the nature of such an infringement. Moreover, the reference made by the applicant to Article 146 of the Implementing Rules does not provide clarification of its arguments.

92 The Commission is therefore justified in claiming that the manner in which the present plea is set out in the application, in so far as it alleged the infringement of essential procedural requirements, was not sufficiently clear and precise to enable the Commission to prepare its defence. Nor does it enable the Court to determine whether the present plea is well founded.

93 Consequently, the third plea of the application, in so far as it alleges the infringement of essential requirements by the Commission as regards the additional examination conducted in connection with the contested public contract, must be rejected as inadmissible.

94 With regard to the applicant's complaint that it does not have detailed information on the additional examination conducted by the Commission, it should be recalled that, as was stated in paragraph 48 above, the Commission informed the applicant of its decision to suspend the award procedure for the contested public contract in order to conduct such an examination, thereby complying with its obligation to provide information laid down by the third subparagraph of Article 158a(1) of the Implementing Rules. Moreover, the Commission communicated to the applicant the grounds underlying the suspension decision, informed it of the fact that the additional examination had been led by the same evaluation committee and explained to it the specific objective and final result of that evaluation. In those circumstances, it must be held that there is no basis for acceding to the request for production of the additional examination report and the documents linked to that verification. Furthermore, it should be noted that, contrary to what is required by the case-law cited in paragraph 83 above, the applicant has not provided the Court with sufficient information indicating the utility of those documents for the purposes of the present proceedings.

95 Consequently, the applicant's request for the production of documents must be dismissed.

96 The applicant complains, in essence, that the Commission created a situation of inequality between the tenderers participating in the contested public contract both during the preparation and evaluation of their respective tenders and during the final award of the contract. It subdivides this plea into three parts. The first alleges infringement of the principle of equal treatment so far as concerns the approach taken in the present case by the Commission with regard to tenderers making use of subcontractors from non-member countries which are not parties to the Agreement on government procurement (OJ 1996 C 256, p. 2) in Annex 4 to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3). The second alleges that a new criterion for the assessment of quality criterion Q1 was introduced a posteriori. The third alleges that the weighting on which the award criterion set out in paragraph 6.4 of the tendering specifications was based was discriminatory.

97 The Commission submits that the first and third parts of the present plea must be regarded as inadmissible in the present action as they cannot affect the legality of the decision to reject the tender. It disputes the remainder of the applicant's contentions.

98 It should be recalled from the outset that, in accordance with the considerations set out in paragraphs 24 to 26 above, the scope the present action is limited to examining the legality of the decision to reject the tender.

99 As regards the first part of the plea, it must be held that, contrary to what the Commission claims, whose argument seeks, in essence, to have this part of the plea declared ineffective, the alleged discrimination does not lie in the fact that tenderers who made use of the possibility to subcontract their services to companies established in non-member countries which are not parties to the Agreement on government procurement were favoured. By its complaint, the applicant alleges that the Commission infringed the principle of equal treatment by failing to specify the admission criteria for tenderers making use of subcontracting or which are themselves established in non-member countries not parties to the Agreement on government procurement, with the result that the other tenderers did not know whether, in practice, such tenderers were admissible. According to the applicant, that uncertainty obliged it to attempt to lower its costs in order to compete with that type of operator, which had the effect that its tender did not comply with the minimum threshold for quality criterion Q1 and that it was excluded from the subsequent award phase. Since the present part of the plea could affect the legality of the decision to reject the tender, the Commission's argument that it is ineffective must be rejected.

100 By contrast, the third branch must be regarded as incapable of affecting the legality of the decision to reject the tender.

101 It should be noted that it was not until the award phase that the Commission had to compare the particular merits of the tenderers' offers on the basis of the weighting laid down in paragraph 6.4 of the tendering specifications. It is therefore only during that phase that discrimination, as claimed by the applicant, could have occurred.

102 However, in the present case, the decision to reject the tender had the effect of excluding that tender from the award phase of the contested public contract.

103 Moreover, it should be pointed out, as the Commission did, that this third part of the plea does not relate to the assessment of quality criterion Q1 and cannot lead to the annulment of the decision to reject the tender. The applicant also acknowledged, during the hearing, in response to a question to that effect put by the Court, that this third part of the plea could be declared ineffective were the Court to take the view that the action was directed solely against the decision to reject the tender.

104 In so far as the third part of the present plea cannot affect the legality of the decision to reject the tender, it must be declared ineffective.

- Infringement of the principle of equality with regard to the Commission's approach to subcontracting

106 The applicant complains that the Commission took the view, in particular in its letter of 18 August 2008, that it could admit the offers of tenderers established in non-member countries, in particular in those which are not parties to the Agreement on government procurement, or which make use of subcontractors established in those countries, on a case-by-case and discretionary basis. The applicant claims that, in so doing, the Commission infringed both the principle of equal treatment and the principle of transparency.

107 It should be recalled that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I-0000, paragraph 55 and the case-law cited).

108 In the field of public procurement, in accordance with that principle, the Commission is required to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers (see Case T-345/03 Evropaïki Dynamiki v Commission [2008] ECR II-341, paragraph 141 and the case-law cited). Similarly, the principle of equal treatment implies that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (judgment of 17 February 2011 in Case C-251/09 Commission v Cyprus, not published in the ECR, paragraph 39).

109 More specifically, this implies that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way and that, when those bids are being evaluated, those criteria must be applied in an objective and uniform manner to all tenderers (Commission v Cyprus, cited in paragraph 108 above, paragraph 40).

110 The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or the tendering specifications (see Evropaïki Dynamiki v Commission, cited in paragraph 108 above, paragraph 144 and the case-law cited).

111 In the present case, first, it should be noted that paragraph 3.3 of the tendering specifications provides expressly for the possibility of making use of subcontractors to perform the contested public contract and that no limitation was laid down in respect of subcontractors not established in countries which are signatories to the Agreement on government procurement.

112 Furthermore, it should be noted that, in response to a question to that effect by the applicant, the Commission informed it, by letter of 18 August 2008, that the admission of tenderers making use of subcontractors from non-member countries was a possibility that it would consider on a case-by-case basis.

113 It follows that, contrary to what the applicant appears to claim, the possibility of admitting such tenderers was brought to the attention of all tenderers in the context of the contested public contract. Moreover, the Commission responded to the questions on that subject, thereby making every effort to clarify and explain its position in that regard.

114 Furthermore, in the contested tendering procedure, all the tenderers were in the same situation since they could decide, in line with their own strategies, to make use of subcontracting packages including operators established in non-member countries which are not parties to the Agreement on government procurement.

115 Therefore, the Commission did not infringe the principles of equal treatment and transparency when it took the view that it could decide on a case-by-case basis whether tenderers making use of subcontractors from a country which is not party to the Agreement on government procurement could be admitted.

- The alleged introduction a posteriori of a new award criterion for the evaluation of quality criterion Q1

117 The applicant claims, in essence, that the Commission introduced, during the evaluation of quality criterion Q1, technical criteria which were not provided for in the tendering specifications, namely, first, the number of 'man-days' proposed by the tenderers for the takeover phase of the project and, second, the number of persons proposed for PMS, UGTS and OTSS services. The applicant further claims that, if the Commission had wanted the tenderers to specify precisely how many 'man-days' were necessary for the takeover phase, it should have given them access to the source codes of DG Regional Policy's IT applications.

118 First, as regards the applicant's claim that the Commission introduced a new evaluation criterion by referring to the size of the teams proposed for PMS, UGTS and OTSS services, it should be noted that the evaluation of the teams proposed for those services related to quality criterion Q2. Since the decision to reject the tender was not adopted on the ground that that criterion had not been complied with, but on the ground that quality criterion Q1 had not been satisfied, the applicant's arguments must be considered to be ineffective in the context of its application for annulment of the decision to reject the tender.

119 Moreover, it should be recalled that, as paragraphs 56 to 82 above make clear, the Commission did not commit a manifest error of assessment in using the number of 'man-days' as a parameter to evaluate the effort proposed for the takeover phase of the project.

120 Furthermore, it should be recalled that quality criterion Q1, as is clear from paragraph 5.1.2.1 of Annex VI to the tendering specifications, was designed to evaluate the strategy that tenderers planned to implement to 'take over the existing systems and activities' in order to ensure that, at the end of the takeover phase, they would be 'ready to provide the services required'.

121 It is clear from the wording of that criterion that the number of 'man-days' proposed in view of the tasks required could be one of the elements of an effective takeover of the existing activities and systems. It must be considered that that element is not a criterion as such, but is an indissociable element of the evaluation of the strategy proposed for the takeover phase and could therefore be taken in account in the application of quality criterion Q1 (see, to that effect, Evropaïki Dynamiki v EMCDDA, cited in paragraph 34 above, paragraph 51).

122 Lastly, as regards the claim relating to the source codes and other material concerning DG Regional Policy's IT systems, the applicant has not shown that the fact that it did not have access to those data infringed the principle of equal treatment. It must be held, as the Commission has pointed out, that all the tenderers had access to the same type of technical information concerning the IT system used by DG Regional Policy and that they were therefore in the same position when preparing their tenders. In those circumstances, it cannot be held that there was discrimination in the present case by reason of a lack of access to the source codes.

123 The second part must be rejected as unfounded and the plea must therefore be rejected in its entirety.

124 It follows from all of the foregoing that the applicant's application for annulment of the decision to reject the tender must be dismissed.

125 The applicant seeks the sum of EUR 4 520 845.05 by way of damages corresponding to its estimated gross profit from the contested public contract, taking account of the net profit on the contract and, in accordance with case-law, the general costs incurred by the applicant in order to participate in the tendering procedure in question (Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 102). The applicant states that its application for damages stems from the unlawfulness of the Commission's decision contained in the letter of 21 November 2008. In that regard, it submits that it has shown that the decision of the evaluation committee was based on manifest errors of assessment, on the infringement of essential procedural requirements, on the infringement of the principle of equality and on the failure to give an adequate statement of reasons.

127 According to settled case-law, in order for the Community to incur non-contractual liability, within the meaning of the second paragraph of Article 288 EC, for the unlawful conduct of its institutions, a number of requirements must be met, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon (Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I-6513, paragraph 106; Case C-419/08 P Trubowest Handel and Makarov v Council and Commission [2010] ECR I-2259, paragraph 40; Evropaïki Dynamiki v EMCDDA, cited in paragraph 34 above, paragraph 126).

128 It follows from the case-law cited above that it is sufficient that only one of the conditions relating to non-contractual liability on the part of the Commission is not satisfied for the conclusion to be drawn that no such liability exists (see, to that effect, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81).

129 In the present case, since the applicant has not succeeded in proving that the Commission acted unlawfully, as is made clear by the considerations concerning the application for annulment of the decision to reject the tender set out in paragraphs 27 to 124 above, its application for damages must be rejected in its entirety without it being necessary to examine the other conditions.

130 It follows that the application for damages in respect of the damage allegedly suffered by reason of the decision contained in the letter of 21 November 2008 must be dismissed as unfounded.

131 In the light of the foregoing, the action must be dismissed in its entirety.

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

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

134 The applicant nevertheless asks the General Court to order the Commission to pay the applicant's legal costs even if the application is rejected, pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure. In essence, it argues that the incorrect evaluation of its tender by the Commission, the lack of reasoning and the fact that the Commission did not send it the evaluation committee's report forced it to bring the present action.

135 Under the second subparagraph of Article 87(3) of the Rules of Procedure, the Court may order a party, even if successful, to pay to the other party costs which it has caused that party to incur and which the Court considers to be unreasonable or vexatious.

136 According to case-law, that provision is to be applied where a European Union institution, by its conduct, contributed towards creating the conditions for the dispute to arise (Case T-73/95 Oliveira v Commission [1997] ECR II-381, paragraphs 51 and 52, and Case T-81/95 Interhotel v Commission [1997] ECR II-1265, paragraphs 81 and 82).

137 In the present case, an analysis of the Commission's conduct towards the applicant provides no basis for it to be ordered to pay the costs pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure.

138 It should be recalled that an examination of the Commission's evaluation of the tender does not show that the Commission committed any manifest errors in the assessment of the applicant's tender. Moreover, the Commission, in having communicated all of the information required by Article 100(2) of the Financial Regulation, did not infringe its obligation to state reasons. Likewise, pursuant to that provision, the Commission was not required, contrary to what the applicant claims, to provide the latter with a full copy of the evaluation report.

139 In those circumstances, it must be held that the Commission's conduct did not contribute towards creating the conditions for the dispute to arise, as that conduct complied with the European legislation, with the result that the applicant was not forced to bring proceedings before the Court.

2. Orders Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

Criterion:	Q1	Q2	Q3	Q4	Q5	TQ
Possible points	120	280	240	260	100	1 000
Quality threshold	60	140	120	130	----
Tenderer ↓
Engineering- Serco	78,71	182,71	133,93	181,00	71,43	647,79
European Dynamics ABG	59,86	147,71	123,57	144,29	27,14	502,57

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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 Commission (Public service contracts) [2012] EUECJ T-49/09 (19 April 2012) URL: http://www.bailii.org/eu/cases/EUECJ/2012/T4909.html Cite as: [2012] EUECJ T-49/09, [2012] EUECJ T-49/9

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