Evropaiki Dynamiki v Commission [2012] EUECJ T-591/08 (05 October 2012)

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(Public service contracts -� Tendering procedure -� Provision of information technology services -� Selection of the tenderer as second contractor in the cascade procedure -� Action for annulment -� Grounds for exclusion from the tendering procedure -� Conflict of interests -� Obligation to state the reasons on which the decision is based -� Manifest error of assessment -� Equal treatment -� 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 and communications.

2 By contract notice of 12 June 2008 published in the Supplement to the Official Journal of the European Union (OJ 2008 S 120) under reference 2008/S 120 -� 159017 (-�the contract notice-�), Eurostat (the Statistical Office of the European Union) launched a call for tenders for the supply of information technology services in the field of -�Statistical Information Technologies-� (-�the call for tenders-�) with a view to improving the transfer of information between Eurostat, the Member States and other bodies.

3 According to the contract notice, the information technology services at issue were divided into three lots:

4 Under the tender specifications, each tenderer could submit bids for one or more lots. For each lot, tenderers were selected in accordance with the -�cascade mechanism-� (-�the cascade-�).

5 The tender specifications also stated that the contract award procedure involved three stages, each being eliminatory: (i) examination of the conditions for excluding tenderers; (ii) selection of tenderers; (iii) evaluation of the technical quality of the tenders.

6 Within the third stage, the technical quality of the tenders was assessed against five award criteria: -�comprehension-�, -�working method-�, -�technical approach and methodology-�, -�management arrangements-� and -�quality arrangements-�.

7 It also emerges from the tender specifications that, once the stage involving evaluation of the technical quality of the tenders had been successfully completed, the contract was to be awarded to the economically most advantageous tender, since tenders scoring fewer than 65 points out of 100 following the evaluation of the technical quality of tenders could not be included in the financial comparison of tenders. The method for selecting the economically most advantageous tender involved dividing the price of each tender which had scored a minimum of 65 points for technical quality by the number of points awarded to it. The tender with the lowest ratio was to be regarded as the economically most advantageous.

8 On 1 August 2008, the Commission of the European Communities replied to questions of general interest relating to the contract notice (-�the questions of general interest-�).

10 The applicant was successful in the first and second stages of the contract award procedure.

11 By letter of 17 October 2008, the applicant was informed that, following the evaluation of the technical quality of tenders (stage three), its bid for Lot 1 had not been selected, as it had failed to score the minimum 65 points. On the same day, by two separate letters, the Commission informed the applicant -� still in relation to the completion of the third stage of the contract award procedure -� of its decisions to select the applicant as second contractor in the cascade for Lots 2 and 3 and to select other tenderers as first contractors.

12 On 20 October 2008, the applicant asked Eurostat to provide it with certain information regarding its tenders and the tenders of the other selected tenderers. That information included, in particular, as regards Lots 2 and 3: the scores awarded for each award criterion; a comparative analysis of strengths and weaknesses; a detailed copy of the evaluation report relating to the applicant-�s tender; the names of the members of the Evaluation Committee so that it could identify any conflict of interests; and the methods used to compare its financial offer with those of the tenderers ranked first in the cascade.

13 On 24 October 2008, Eurostat sent the applicant, in relation to Lots 2 and 3, the scores awarded to the successful tenders in respect of each award criterion; a summary of the comments made by the Evaluation Committee on the applicant-�s technical offer and the technical offers of the successful tenderers; the financial evaluation of the various tenders; and a copy of the Evaluation Committee-�s report. Eurostat also informed the applicant that there was no reason to give it the names of the members of the Evaluation Committee, all of whom had signed a statement of impartiality and confidentiality.

14 By letter of the same date, the applicant informed Eurostat that one of its former directors might have links with one of the members of the consortium selected as first contractor for Lot 2 and that, if that were the case, the members of the Evaluation Committee and the people who had been directly or indirectly involved in the evaluation of the tenders should be regarded as being in a situation giving rise to a conflict of interests and accordingly excluded from any decision-�making procedure relating to the call for tenders, since they had worked with that former director or had reported to him. The applicant also claimed that one of the members of the consortium ranked first for Lot 2 had been declared to be in serious breach of its contractual obligations in connection with a contract concluded with the Office for Official Publications of the European Communities (OPOCE) and that the Commission should therefore have excluded that consortium from the contract award procedure pursuant to, inter alia, 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-�).

15 On 3 November 2008, in response to the applicant-�s letter of 24 October 2008, Eurostat confirmed that all the members of the Evaluation Committee had signed a -�[d]eclaration of absence of conflict of interests and of confidentiality-� and that, by signing that declaration, each participant had given a personal assurance that he was able to perform his duties as a member of the Evaluation Committee impartially and objectively. In the same letter, Eurostat stated that none of the members of the consortium ranked first for Lot 2 was in a situation warranting exclusion, under Articles 93 and 94 of the Financial Regulation, from the contract award procedure or from the award of the contract at issue.

16 By two separate letters of 3 November 2008, relating to Lots 2 and 3 respectively, the applicant claimed, inter alia, that the Evaluation Committee had made a number of manifest errors of assessment in the evaluation of the applicant-�s tenders.

17 On the same day, in response to the Eurostat letter referred to in paragraph 15 above, the applicant argued that the fact that the members of the Evaluation Committee had signed a declaration as to the absence of any conflict of interests did not mean that a conflict of interests did not exist. It also claimed that a former director of Eurostat had links with an offshore company owning 30.05% of the shares in a company which belongs to the consortium ranked first for Lot 2 and that another member of that consortium had been declared to be in breach of its contractual obligations in connection with a contract with OPOCE.

18 By letter of 14 November 2008, Eurostat first of all reaffirmed that there was no reason for it to give the applicant the names of the members of the Evaluation Committee and that it had sent the applicant all the information it was required to send it under Article 100 of the Financial Regulation and Article 149 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-�). Next, Eurostat claimed that the information provided by the applicant with respect to an alleged conflict of interests was not sufficient to show that any such conflict existed. Eurostat also pointed out that none of the members of the consortium ranked first for Lot 2 was in a situation warranting exclusion from the contract award procedure or from the award of the contract at issue pursuant to Article 93(1) and Article 94 of the Financial Regulation.

19 By letter of the same date, the applicant claimed that Eurostat had produced vague responses and unjustified assertions, and refused to respond clearly to the questions raised.

20 On 27 November 2008, Eurostat informed the applicant that consultation of the -�early-warning system-� in operation at the Commission had revealed no evidence that the members of the consortium ranked first for Lot 2 were in breach of their contractual obligations. Eurostat also pointed out that none of the members of the Evaluation Committee was in a situation giving rise to a conflict of interests, a fact demonstrated by the lack of evidence of irregularities in the evaluation of the tenders.

21 By letter of 28 November 2008, the applicant disputed the answers given by Eurostat in its letter of 27 November 2008 and stated that it had no choice but to bring an action before the General Court.

22 By application lodged at the Court Registry on 29 December 2008, the applicant brought the present action.

23 By letter lodged at the Court Registry on 21 June 2010, the applicant submitted a number of observations in response to the rejoinder and requested that its arguments and the annex to that letter be declared admissible by the Court. It also renewed the request, already submitted in the reply, for a measure of organisation of procedure. That letter and the annex thereto were placed in the case-file.

24 In its observations on the letter referred to in the preceding paragraph, lodged at the Court Registry on 6 August 2010, the Commission contends that that letter and the annex thereto are inadmissible.

25 Upon hearing the Report of the Judge-Rapporteur, the Court (Eighth Chamber) decided, on 29 June 2011, to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, put some written questions to the parties and asked that certain documents be produced. The applicant and the Commission complied with those requests on 4 and 12 August 2011 respectively. On 7 September 2011, the Court asked the applicant to submit observations on arguments raised by the Commission, which it did on 16 September 2011.

26 At the hearing on 29 September 2011, the parties presented oral argument and replied to questions put by the Court.

29 The applicant seeks, first, annulment of the decisions ranking it as second contractor and of the related decisions, including the decisions awarding the contract to the tenderers ranked first in the cascade for Lots 2 and 3, and, second, the award of damages.

1. The application for annulment of the decisions ranking the applicant as second contractor

30 In support of the application for annulment of the decisions ranking the applicant as second contractor, the applicant raises pleas in law alleging: (i) breach of the -�principle of non-discrimination-�, infringement of Article 93(1) and Article 94 of the Financial Regulation and breach of the principle of sound administration; (ii) infringement of Article 97 of the Financial Regulation and breach of the principle of equal treatment; (iii) breach of the obligation to state reasons; (iv) breach of the -�principle of non-discrimination-�; and (v) manifest errors of assessment.

31 As a preliminary point, it must be observed that all the pleas in law are raised in support of the application for annulment of the decision ranking the applicant as second contractor for Lot 2. The third, fourth and fifth pleas in law relate also to Lot 3.

The first plea in law: breach of the -�principle of non-�discrimination-�, infringement of Article 93(1) and Article 94 of the Financial Regulation and breach of the principle of sound administration

32 In the context of the first plea in law, the applicant raises two main complaints.

33 The applicant submits that one of the members of the consortium ranked first in the cascade for Lot 2 had been declared to be in serious breach of its contractual obligations in connection with previous contracts entered into with the Commission, with the result that the Commission should have excluded that consortium from the tendering procedure at issue.

34 Under Article 93(l)(f) of the Financial Regulation, tenderers are to be excluded from participation in tendering procedures if they are currently subject to an administrative penalty, as referred to in Article 96(1) of that regulation.

35 Pursuant to Article 94(c) of the Financial Regulation, a contract is not to be awarded to tenderers who, during the tendering procedure for that contract, fall within, in particular, one of the exclusion categories, referred to in Article 93(1) of that regulation, for that procurement procedure.

36 Under Article 96(l)(b) of the Financial Regulation, the contracting authority may impose administrative or financial penalties on contractors who have been declared to be in serious breach of their obligations under contracts covered by the budget.

37 It follows from those provisions, read together, that to be excluded from the tendering procedure or from award of the contract, a tenderer must not only have been declared to be in serious breach of its contractual obligations but must also have had a penalty imposed on it for that breach, pursuant to Article 96(1) of the Financial Regulation (see, to that effect, Case T-298/09 Evropaïki Dynamiki v Commission [2011] ECR II-�0000, paragraph 68).

38 In the present case, the applicant has failed to provide any evidence to support its claim that one of the members of the consortium ranked first in the cascade had been declared to be in serious breach of contract in connection with a previous contract with an EU institution. The applicant merely states that, according to -�information received from the market-�, on -�information [it] received periodically from the OPOCE-� and -�to [its] best knowledge-�, one of the members of that consortium had been declared to be in serious breach -� without, however, adducing any specific evidence to that effect. Even more vaguely, the applicant states, in its reply, that -�according to information widely available in the market-�, one of the members of that consortium -�should have been found and/or had been declared ... to be in serious breach of its contractual obligations-� in respect of other contracts entered into with the Commission.

39 It must be observed, moreover, that the applicant has failed to establish that one of the members of the consortium ranked first in the cascade had had a penalty imposed on it pursuant to Article 96(1) of the Financial Regulation.

40 Lastly, if the applicant is claiming that the Commission failed to act in so far as, despite the contractual shortcomings of a member of that consortium, it did not declare that member to be in serious breach of its contractual obligations, it must be borne in mind that, even if a serious breach of contractual obligations under earlier contracts were established, exclusion would not be automatic. In that respect, the contracting authority enjoys, under the terms of Article 96(1)(b) of the Financial Regulation, dual discretion as regards both the assessment of the failure to fulfil contractual obligations which could lead to a declaration of serious breach and the penalty to be imposed. Accordingly, even if a contractor has been declared to be in serious breach of contract, the contracting authority is not required to impose on it an administrative or financial penalty, since Article 96 of the Financial Regulation provides that the contracting authority -�may-�, after a procedure during which the persons concerned have had the opportunity to state their position, impose such penalties (Evropaïki Dynamiki v Commission, paragraph 37 above, paragraph 69).

41 In the light of the foregoing considerations, the applicant-�s argument that the Commission used the exclusion provisions in a -�discriminatory manner-�, in so far as one of the members of the consortium ranked first in the cascade was not excluded from the award of the contract, cannot be upheld. The same holds true for the applicant-�s argument calling into question the Commission-�s -�early-�warning system-� in so far as one of the members of the consortium had not been listed even though it had been declared to be in serious breach of its contractual obligations.

43 The applicant claims, in essence, that there was a conflict of interests, in that a former director of Eurostat was a shareholder of a company which belongs to the consortium ranked first in the cascade.

44 Under Article 94(a) of the Financial Regulation, a contract is not to be awarded to candidates or tenderers who, during the procurement procedure for that contract, are subject to a conflict of interests.

45 Under Article 52(2) of the Financial Regulation, a conflict of interests arises where the impartial and objective exercise of the functions of a financial actor or other person, as referred to in Article 52(1), is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other interest shared with the beneficiary.

46 It must therefore be determined whether, as the applicant claims, a company which is a member of the consortium ranked first in the cascade is subject to a conflict of interests on account of the former Eurostat director-�s alleged holding in that company.

47 First, it must be noted that -� as the Commission points out -� the applicant has failed to provide any evidence to support its claim that a former director of Eurostat is a shareholder of a company which belongs to the consortium ranked first in the cascade. The applicant merely asserts that, -�according to information widely available in the market-�, one of the shareholders of one of the consortium members -�could be-� an ex-senior-officer of Eurostat and -�most probably-� an ex-�colleague of certain members of the Evaluation Committee and -�possibly-� the contracting authority-�s authorising officer. In its reply, the applicant states that that former director -�appears to be-� one of the shareholders of a company which belongs to the consortium ranked first in the cascade. Lastly, in the letter of 3 November 2008, referred to in paragraph 17 above, the applicant suggests, in the form of question, that a former director of Eurostat has links with an offshore company owning 30.05% of the shares in a company which is a member of the consortium.

48 Secondly, even if a former director of Eurostat were a shareholder of a company which is a member of the consortium ranked first in the cascade, the applicant has failed to provide any evidence to establish the existence of a link between the factual situation alleged and the selection of that consortium as first contractor in the cascade.

49 Thirdly, as was correctly observed by the Commission, it must be noted that the applicant has failed to prove, or even to provide prima facie evidence of, the telephone conversation which allegedly took place on 9 November 2008 between a former director of Eurostat and the applicant-�s CEO, during which a meeting was proposed for the purposes of discussing an -�interesting business deal to avoid frictions-�. It follows that, without there being any need to rule on the admissibility of the applicant-�s letter lodged at the Court Registry on 21 June 2010 and the annex thereto, referred to in paragraph 23 above, it is necessary to reject the argument which the applicant sets out in that letter, according to which it did not refer to that telephone conversation until the stage of the reply because a formal complaint relating to that former Eurostat director had been lodged with the European Anti-Fraud Office (OLAF) and OLAF had issued an order not to reveal the content of that complaint before completion of the investigation.

50 Lastly, so far as concerns the argument that the Commission failed to act to remove the conflict of interests, it must be noted that the applicant merely makes an unsubstantiated allegation. The Commission stated, in its defence, that it had carried out an investigation as to whether there was a conflict of interests; that it had verified that all the members of the Evaluation Committee had signed a declaration that there was no conflict of interests; and that the officer had failed to find any evidence of a conflict of interests. However, the applicant has made no attempt to challenge, either in its submissions or during the hearing, the results of the investigation as submitted by the Commission.

51 The second complaint must therefore be rejected and, consequently, the plea in law alleging breach of the -�principle of non-�discrimination-�, infringement of Article 93(1) and Article 94 of the Financial Regulation and breach of the principle of sound administration must be rejected in its entirety.

The second plea in law: infringement of Article 97 of the Financial Regulation and breach of the principle of equal treatment

52 The applicant submits, in essence, that, in the context of the evaluation of its tender in the light of the second and third award criteria, the Evaluation Committee took account of criteria not provided for in the tender specifications.

53 Article 97(1) of the Financial Regulation imposes on the contracting authority the obligation to define and set out in advance in the call for tenders both the selection criteria and the award criteria. Moreover, that obligation, which is to ensure an appropriate level of advertising for the criteria and conditions governing each contract, is set out in detail in Articles 135 to 137 of the Implementing Rules as regards the selection criteria, and in Article 138 of the Implementing Rules as regards the award criteria.

54 It must be borne in mind that those provisions are intended to ensure compliance with the principles of equal treatment and transparency, as stated in Article 89(1) of the Financial Regulation, at all stages of the procedure for the award of public contracts, in particular the stage of selection of the tenderers and that of selection of tenders for the award of the contract (see, to that effect, judgment of 10 September 2008 in Case T-59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 49).

55 The sole aim of those provisions is to enable all reasonably well-�informed and normally diligent tenderers to interpret the award criteria in the same way and, consequently, to have equal opportunity in formulating the terms of their applications to take part and their tenders (see, to that effect, Case C-532/06 Lianakis and Others [2008] ECR I-�251, paragraphs 34 to 40, and Case T-59/05 Evropaïki Dynamiki v Commission, paragraph 54 above, paragraph 50).

56 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the second award criterion is worded as follows:

57 The applicant raises two main complaints. First, it submits in essence that, by stating that -�examples such as publications, source code, training material and presentations are lacking-�, the Evaluation Committee has evaluated its tender on the basis of criteria not provided for in the tender specifications. Second, the applicant claims that, in any event, it submitted a sample presentation in its tender.

58 It should be noted from the outset that, according to the requirements set out at the beginning of Chapter B.3.1 of the tender specifications, which is entitled -�Evaluation of the technical quality of the bid-� and which covers all of the Lots, -�the tenderer should provide all the information required to award the contract, including ... models, examples and technical solutions to problems raised in the specifications [of the tender]-�. In addition, before setting out specifications relevant to each Lot, Chapter B.3.1 of the tender specifications provides under the heading -�A general remark on the award criteria-� that -�[i]n order to evaluate the offer, the tenderer shall provide some reference material (publications, presentations, pieces of code, program[me] documentation, support documentation, etc.) or links thereto, preferabl[y] from publicly available sources or previous work for the Commission or other public bodies-�.

59 In Chapter B.3.1 of the tender specifications, with regard to the requirements relevant to Lot 2, it is stated, in respect of the second award criterion, that, -�[b]ased on the references given by the tenderer, the working methods and results are judged upon: style, clarity, comprehensibility, layout and formatting of samples produced by [the] tenderer-�.

60 It is thus apparent from those requirements in the tender specifications that there is no indication to suggest that, as the applicant submits, the tenderers were relieved, in respect of the second award criterion (Lot 2), of the obligation to provide examples or samples such as documents or presentations. In that regard, it must be noted that the applicant has failed to establish that the -�references-� that the tenderers must provide for the evaluation of their bids in respect of the second award criterion (Lot 2) are different from -�reference material-� such as -�publications, presentations, pieces of code, program[me] documentation, support documentation-�, as referred to at the beginning of Chapter B.3.1 of the tender specifications.

61 Moreover, it is clear from the answers to the questions of general interest that the samples that the tenderers are required to submit in their tender in respect of the second award criterion (Lot 2) may be documents. Eurostat specifies in that regard that there is no predetermined list of documents to be provided but that the tender must include -�typical work samples in order to judge the quality of work which [could] be expected [of] a contractor-�. In particular, Eurostat states that, in respect of Lot 2, -�this could be extracts from design documents, program[me] documentation, user manuals and code samples-�.

62 In addition, according to the answers to the questions of general interest, -�the quality and relevance of the samples [was] of importance-�.

63 It follows from the tender specifications, read in conjunction with the clarifications given in the answers to the questions of general interest, that the type of samples to be provided may be diverse and also that the quality and relevance of those samples is important, that is to say, in respect of the activities relating to the Lot in question, so that it is possible to judge the quality of work proposed by the tenderer concerned.

64 Consequently, by stating that -�[t]he provided samples cover some areas, but examples such as publications, source code, training material and presentations are lacking-�, the Evaluation Committee merely indicated that the examples provided by the applicant in its tender were not sufficient for the purposes of enabling the quality of the work proposed in respect of Lot 2 to be evaluated. Moreover, as the Commission states, in the light of the aim of Lot 2, certain samples for establishing the quality of the work were lacking. The applicant cannot therefore maintain that the Evaluation Committee took account of criteria which had not been provided for in the tender specifications.

65 That conclusion is unaffected by the argument put forward by the applicant that the Evaluation Committee cannot point to a lack of certain documents if there is no predetermined list of the documents to be provided. Thus, it cannot be inferred from the comment that certain samples are lacking, that certain documents, identified in advance, had to be provided. The Evaluation Committee merely observed that the samples provided -� albeit of good quality in terms of style, clarity, comprehensibility, layout and formatting -� were not sufficient for the purposes of enabling the quality of work proposed to be evaluated. Examples -�such as publications, code source, training material and presentations-� would have been relevant for the purposes of that evaluation. This was emphasised by the phrase -�[t]he provided samples cover some areas-� in the light of which the comment in question -�but examples such as publications, source code, training material and presentations are lacking-� must be read.

66 As regards the argument that, in any event, the applicant-�s tender included samples, it must be noted that the applicant merely states, in its application, that it -�submitted in its tender a sample presentation under section -�Annex to the Technical Approach and Methodology-�-� and, in its reply, that it provided example documents, in Section Two of its tender, in full compliance with the requirements of the tender specifications -� without, however, providing further details that would substantiate its claim. However, it is not for the Court to seek out 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, or to speculate about the reasoning and precise observations, both in fact and law, that lie behind the action (see, to that effect, judgment of 9 September 2010 in Case T-63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 80).

67 So far as concerns the evaluation of the applicant-�s tender in respect of the third award criterion, the Evaluation Committee found, inter alia, the -�EMI operation manual irrelevant for this section-�.

68 The applicant claims, in essence, that, by making that comment, the Evaluation Committee took account of criteria which were not provided for in the tender specifications. In that regard, it claims that it emerges from the answers to the questions of general interest that the documents provided in support of the tender can, for Lot 2, be extracts from design documents, programme documentation or user manuals.

69 It must be found that, as the Commission pointed out, the answers to the questions of general interest relied on by the applicant, according to which -�for Lot 2, [the documents could be] extracts from design documents, program[me] documentation, user manuals and code samples-�, relate only to the second award criterion and not to the third.

70 The applicant cannot therefore rely on those answers to claim that, with regard to the evaluation of the third award criterion, the Evaluation Committee took account, in breach of Article 97 of the Financial Regulation, of criteria which were not provided for in the tender specifications.

71 In addition, it must be observed that, as the Commission also points out, it does not emerge from the Evaluation Committee-�s comment that the -�EMI operation manual-� is not relevant as such in respect of Lot 2, but that it is not relevant in the context of the evaluation of tenders in respect of the third award criterion.

72 In any event, it must be noted that the applicant merely states that such a manual is relevant with regard to Lot 2, but does not, however, explain why it would be relevant in the context of the evaluation of tenders in respect of the third award criterion. By way of justification, the applicant does no more than state that -�the EMI project is one of the most complex projects-� and that -�its technical background fully covers the technical requirements of the [contract at issue with regard to Lot 2]-�.

73 Consequently, the applicant cannot claim that the Evaluation Committee took account of criteria which were not provided for in the tender specifications when evaluating its tender in respect of the second and third award criteria.

74 The second plea in law, alleging infringement of Article 97 of the Financial Regulation and breach of the principle of equal treatment must therefore be rejected.

75 The applicant claims that, as regards the evaluation of its tender in respect of the first award criterion, the Evaluation Committee does not make clear what is not included or not -�sufficiently described-� in the tender, or how many points it deducted from the tender under that criterion and for what reason; nor does it explain what additional or better proposals the bid of the tenderer ranked as first contractor contains.

76 As regards a decision rejecting the bid submitted by a tenderer in response to a call for tenders, the specific rules which determine the scope of the statement of reasons that that decision must contain are laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. It should be pointed out in that regard that the scope of the statement of reasons cannot be assessed differently where the bid submitted by a tenderer, although not, strictly speaking, rejected, was not ranked first in the cascade.

77 Under those provisions and according to the case-law of the General Court, the Commission fulfils its obligation to state reasons if it confines itself, first, 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 days from the date on which a written request is received (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 54 above, paragraph 47, and Case T-86/09 Evropaïki Dynamiki v Commission [2011] ECR II-�0000, paragraph 30).

78 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 jurisdiction to review legality (see, to that effect, judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 48, and Case T-86/09 Evropaïki Dynamiki v Commission, paragraph 77 above, paragraph 31).

79 It should also be borne in mind that the obligation to state reasons must be assessed in the light of 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 Case T-59/05 Evropaïki Dynamiki v Commission, paragraph 54 above, paragraph 49).

80 In the light of those factors, in order to determine whether the Commission fulfilled its obligation to state reasons, as provided for in the Financial Regulation and the Implementing Rules, it is necessary to examine the applicant-�s arguments concerning the statement of reasons in relation to the decision ranking the applicant as second contractor for Lot 2, in the light not only of that decision but also of the Commission-�s letter of 24 October 2008, referred to in paragraph 13 above, concerning Lot 2, in response to the applicant-�s express request that the Commission provide it with additional information regarding the evaluation of its tender and the bids of the other tenderers.

81 In its letter of 17 October 2008, referred to in paragraph 11 above, the Commission informed the applicant that its tender had been ranked second in the cascade and informed it of the names of the tenderers ranked first and third.

82 In response to the applicant-�s express request of 20 October 2008 for additional information (see paragraph 12 above), the Commission informed the applicant, by letter of 24 October 2008, of the names of the tenderers ranked first and third in the cascade; the scores awarded to the applicant and to the tenderers ranked first and third in the form of a table; the Evaluation Committee-�s comments in respect of the applicant-�s tender and the bids of the tenderers ranked first and third for each award criterion; a comparison of the applicant-�s financial offer with those of the tenderers ranked first and third in the form of a table; and the calculation of the quality/price ratio of the three offers.

83 It must be found that, in the letter of 24 October 2008, the Commission gave a statement of reasons, to the requisite legal standard, showing the relative advantages of the tender selected as compared with that of the applicant. As stated above, that letter set out in tabular form the comments made by the Evaluation Committee on the applicant-�s offer and the offer of the tenderer ranked as first contractor, and their relative scores for each award criterion in respect of Lot 2.

84 According to the letter of 24 October 2008, the Evaluation Committee took the view, in respect of the first award criterion, that the tenderer ranked first -�[had] a very good understanding of the work to be done-� and that -�most critical points [were] mentioned-�. According to the Commission, the -�[k]ey issues and scope of the work [were] addressed-� and the -�expected results and critical points [were] highlighted and to a certain extent elaborated but somewhat weak in the areas how to improve quality of information transmitted, [to reduce] the cost for CNA and to improve the timeliness-�.

85 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the first award criterion is worded as follows:

86 In the light of that information, the applicant was able to compare directly the evaluation of its tender with that of the tenderer ranked first and to identify what that tenderer-�s offer contained which was additional to or better than that contained in its own (see, to that effect, Case T-59/05 Evropaïki Dynamiki v Commission, paragraph 54 above, paragraph 127). In that regard, it must be noted that -� as the Commission points out -� the applicant-�s tender received a negative comment concerning the activities relating to training and participation in working group/task forces, while the evaluation of the first-ranked tender attracted no such comment.

87 It follows from the foregoing that, with regard to the evaluation of the applicant-�s tender in respect of the first award criterion, the Commission satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.

88 The finding that the statement of reasons was sufficient cannot be called into question by the applicant-�s assertion that the Evaluation Committee has not made clear what is not included or not sufficiently described in the applicant-�s tender, or how many points it deducted from the tender under that criterion and for what reason.

89 It must be noted, first of all, that, contrary to the applicant-�s claims, the Evaluation Committee made clear what activities were not sufficiently described (-�[t]he activities around training and participations in working group/task forces-�). It must also be stated that the comment that -�[t]he activities around training and participations in working group/task forces are not sufficiently described-� is sufficient to satisfy the obligation to state reasons in the terms laid down by the EU legislature and the case-law, since that information enabled the applicant to assert its rights before the Court. Moreover, in its application, with regard to the plea in law alleging manifest errors of assessment, the applicant has relied on information drawn from the extracts from the Evaluation Committee-�s report which had been sent to it in the letter of 24 October 2008 to show that its tender contained a description of those activities.

90 Consequently, the plea in law alleging breach of the obligation to state reasons must be rejected as unfounded.

The fourth plea in law: breach of the -�principle of non-�discrimination-�

91 The applicant claims, in essence, that the Commission acted in breach of the -�principle of non-discrimination-� in that, with regard to the third and fifth award criteria, the bid for Lot 2 of the tenderer ranked as first contractor was unduly favoured.

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

93 In the field of public procurement, the principle of equal treatment as between tenderers assumes a very particular importance. The contracting authority must, at each stage of the tendering procedure, act in accordance with the principle of equal treatment of tenderers and, in consequence, ensure that all tenderers have an equal chance (see, to that effect, Case T-345/03 Evropaïki Dynamiki v Commission [2008] ECR II-�341, paragraphs 61 and 141, and Case T-437/05 Brink-�s Security Luxembourg v Commission [2009] ECR II-�3233, paragraph 113).

94 The applicant raises three main complaints: (i) the Evaluation Committee failed to address, in favour of the applicant-�s tender, comments as positive as those addressed to the bid of the tenderer ranked as first contractor so far as concerns the usage of the RUP (Rational Unified Process) methodology, although the applicant had also described such a methodology in its tender; (ii) the tenderer ranked as first contractor had had privileged access to certain information; (iii) the examples provided in the tenders which refer to work delivered in the context of previous contracts must be assessed only during the selection phase and not during the award stage.

95 The applicant-�s tender scored 13.25 points out of 20 whereas the bid of the tenderer ranked as first contractor scored 18 points out of 20.

96 The Evaluation Committee-�s comment on the applicant-�s tender is worded as follows:

97 With regard to the bid of the tenderer ranked as first contractor, the Evaluation Committee made the following comment:

98 It must be noted at the outset that, according to the tender specifications (Chapter B.3.1), the methodology proposed by the tenderers was judged upon, inter alia, their ability to demonstrate efficiency and effectiveness and the -�level of detail of description of the work and the clarity of practical application on how to achieve the project-�s goals and outputs, if possible with examples-�.

99 It is apparent from a comparison of the Evaluation Committee-�s comments that it did not assess the choice of the methodology proposed. Contrary to the assertions made by the applicant, the Evaluation Committee did not place greater emphasis on the methodology proposed by the tenderer ranked as first contractor as compared with that proposed by the applicant. The applicant-�s argument that the choice of the RUP was favoured in respect of the tenderer ranked as first contractor and not in respect of the applicant is not therefore relevant for the purposes of demonstrating unequal treatment.

100 On the other hand, the Evaluation Committee found that, unlike the bid of the tenderer ranked as first contractor, which demonstrated how it intended, in practice, to apply the proposed methodology, with examples to demonstrate its efficiency and effectiveness, the applicant-�s tender did not demonstrate how it intended to apply the proposed methodology or how efficient and effective that methodology would be.

101 The applicant contests the Evaluation Committee-�s comment and claims that its tender also included examples of how the proposed methodology would be applied in practice. It is sufficient however to point out that, in its application and observations of 16 September 2011, referred to in paragraph 25 above, the applicant merely referred to Chapter 4.1.1 of its tender, entitled -�Methodology and technical approach to software development-�, which describes -�in detail the use of the RUP methodology for software development-�, but does not indicate the factors which demonstrate how the proposed methodology would be applied in practice. In that regard, it must be found that, contrary to what the applicant claims in its observations of 16 September 2011, the fact that the applicant-�s tender followed the guidelines in respect of the RUP methodology cannot amount to a demonstration of how the applicant intends to apply the proposed methodology in practice.

102 Moreover, as the Commission points out in its observations of 12 August 2011, referred to in paragraph 25 above, the charts in Chapters 4.1.1 and 4.1.1.6 of the applicant-�s tender clearly do not demonstrate how the proposed methodology would be applied in practice. In that regard, it must be noted that the applicant has itself conceded that Chart 10 in Chapter 4.1.1.6 of its tender also forms an -�integral part of the Commission-�s own RUP methodology manual-�, thus demonstrating the theoretical nature of the description of the proposed methodology. In addition, the explanatory notes to those charts are brief as compared with those in the bid of the tenderer ranked as first contractor, in which -� as the Commission points out -� 18 pages are dedicated to describing the methodology and demonstrating its efficiency and effectiveness, using manifestly more detailed charts than those of the applicant. It should be borne in mind in that regard that, contrary to the applicant-�s argument, the Evaluation Committee stated that the first-ranked tenderer-�s description of the proposed methodology did not follow necessarily any particular -�international standard-� but nevertheless seemed effective and efficient, with sufficient details and examples.

103 Although, as the applicant claims in its observations of 16 September 2011, the proposed methodology was described in detail in its tender, a point which was moreover acknowledged in the Evaluation Committee-�s comments, the applicant nevertheless failed to demonstrate the efficiency and effectiveness of that methodology. It should be observed in that regard that, in its observations of 16 September 2011, the applicant begins by stating that -�a simple reference to the Commission-�s own official guidelines on [the] RUP demonstrates that the content of its tender is accurate-�.

104 In addition, it must be noted that, in its reply, in order to establish that examples were included in its tender, the applicant merely referred to the -�Annex to the Technical Approach and Methodology-� and to a document entitled -�Functional Analysis and Design-�. However, those documents, which were submitted by the applicant on 4 August 2011 at the request of the Court, contain 331 pages but were not accompanied by any of the specific examples described therein which demonstrate the efficiency and effectiveness of the proposed methodology. As has already been stated in paragraph 66 above, 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, or to speculate about the reasoning and precise observations, both in fact and law, that lie behind the action.

105 With regard to the second complaint, it is appropriate to examine, in the present case, whether there was a disparity in terms of information, in so far as the tenderer ranked as first contractor had privileged access to certain information that the applicant claims not to have had.

106 Even if the tenderer ranked as first contractor was effectively the incumbent contractor at the time of the invitation to tender and was therefore likely to have had access to SDMX applications and other related documents, it is apparent from the tender specifications, read in conjunction with the answers to the questions of general interest, that the examples to be provided in the tenders could concern projects other than those related to the SDMX format, such as -� as the Commission pointed out -� -�projects of a comparable complexity and a similar technical background-�. The Commission even observed that the applicant could provide examples from standardisation activities, a field in which it usually operates. The applicant did not challenge this at the hearing.

107 Moreover, as the Commission argues, it is not clear from either the tender specifications or the answers to the questions of general interest that the tenderers were not allowed to include examples of work on the SDMX format taken from the SDMX format website, which is publicly accessible, in their tenders. The applicant-�s argument that only the tenderer ranked as first contractor was able to use the information on the SDMX format website cannot therefore be upheld.

108 As regards the Commission-�s assertion that the SDMX format was not only developed at Eurostat but also at the European Central Bank (ECB), the Organisation for Economic Co-operation and Development (OECD), the International Monetary Fund (IMF), the World Bank and the United Nations (UN), it is enough to note that that assertion is not contested by the applicant.

109 In those circumstances, the applicant cannot claim that the tenderer ranked as first contractor had privileged access to information.

110 So far as concerns the third complaint alleging that the examples describing the work delivered in the context of previous contracts must be assessed only during the selection phase and not during the award stage, it must be borne in mind that, in accordance with the case-law, the examination of the tenderers-� suitability to fulfil the contract and the award of the contract are two distinct procedures and are governed by different rules (see, to that effect, Lianakis and Others, paragraph 55 above, paragraph 26, and Case T-39/08 Evropaïki Dynamiki v Commission [2011] ECR II-�0000, paragraph 18). However, in the present case, it is not apparent from the tender specifications -� as the Commission rightly points out -� that the examples provided in respect of the third award criterion must be looked at for the purposes of assessing the tenderer-�s suitability to perform the contract, and not only in assessing the efficiency and effectiveness of the methodology proposed. The applicant cannot therefore claim that the Commission disregarded the principles laid down in Lianakis and Others, cited in paragraph 55 above.

111 The applicant raises two main complaints: (i) the comments and marks with regard to the presentation of quality metrics and key performance indicators in respect of the applicant-�s tender were not as positive as those attributed to the tenderer ranked as first contractor and (ii) the latter tenderer did not propose any ISO related quality methodology for the provision of services.

112 The applicant-�s tender scored 8.75 points out of 15 whereas the bid entered by the tenderer ranked as first contractor scored 11.25 points out of 15.

113 The Evaluation Committee-�s comment on the applicant-�s tender is worded as follows:

114 The Evaluation Committee-�s comment on the bid entered by the tenderer ranked as first contractor is as follows:

115 With regard to the first complaint, it emerges from a comparison of the Evaluation Committee-�s comments cited in paragraphs 114 and 115 above that the assessment of the applicant-�s tender with regard to the presentation of quality metrics and key performance indicators is less positive than the assessment of the bid entered by the tenderer ranked as first contractor. However, the applicant does not explain, either in its application or in its reply, how its tender is better than that of the first-ranked tenderer. The applicant merely states, in its reply, that the Commission made a manifest error of assessment in finding that the quality arrangements were -�generic-� -� without, however, establishing such an error.

116 As regards the second complaint, it must be noted that, so far as concerns the bid entered by the tenderer ranked as first contractor, the Evaluation Committee took the view that -�[e]very necessary aspect [was] well covered, [and that] extensive quality metrics and KPIs [key performance indicators] [were] presented-�, whereas, in respect of the applicant-�s tender, the Evaluation Committee stated that the customer -�[was] not supposed to provide inputs for quality assessment-�. The applicant fails to demonstrate that a manifest error of assessment was made in respect of the evaluation of the bid entered by the tenderer ranked first in the cascade. It merely stated that the latter had presented a -�very surprising-� and -�totally primitive-� approach in so far as it was -�people-centric-�, and infringed and underestimated the practices and methodologies. The applicant adds that such an approach contravenes in a blatant manner all the applicable methodologies, best practices and rules known in the market and also applied by the Commission -�in a standard manner-� -� without, however, providing evidence of this.

117 With regard to the Evaluation Committee-�s comment in respect of the applicant-�s tender that -�[w]hile a client[-]centric approach is promoted, the customer is not supposed to provide inputs for quality assessment-�, it must be stated first of all that the applicant-�s choice of having a client-centric approach is not as such criticised by the Evaluation Committee.

118 The Evaluation Committee states, however, that the applicant-�s tender does not demonstrate how that approach includes the client in the quality assessment. In its reply, for the purposes of showing that the tender explained how the client would be involved in the quality assessment, the applicant refers to Chapter 3.2 of its tender. The Commission claims, without being challenged by the applicant, that steps 2, 4 and 5 of the client-centric approach described in Chapter 3.2 are formulated in a way which indicates that the applicant had in mind a sort of -�standard benchmark-� for quality, rather than something adapted to the client-�s requirements for a particular project. It must also be added that, in its reply, the applicant itself acknowledges that it had analysed in detail its client-centric approach without involving the client at any point to provide input concerning the quality assessment.

119 Consequently, the plea in law alleging breach of the -�principle of non-�discrimination-� must be rejected.

120 The applicant submits that the Commission made manifest errors of assessment in the evaluation of the applicant-�s tender in the light of the first, third, fourth and fifth award criteria, and that annulment of the decision ranking the applicant as second contractor in the cascade for Lot 2 is accordingly justified.

121 However, as the Commission argues, even if the applicant had been awarded the maximum number of points for each of the five award criteria, the total number of points scored by the applicant-�s tender in respect of Lot 2 would have been 100 out of 100. However, application of the method for selecting the economically most advantageous tender, referred to in paragraph 7 above, would mean that, even with a maximum total of 100 points, the applicant-�s tender would have a higher ratio (49996) than that of the bid entered by the tenderer ranked as first contractor (43546.51). It is apparent from the table set out in the letter of 24 October 2008 in respect of Lot 2, referred to in paragraph 13 above, which compares the applicant-�s financial offer with that of the tenderer ranked first, that the applicant-�s tender was for a higher amount than the latter bid.

122 Accordingly, since the applicant has failed to establish that the Commission acted in breach of the -�principle of non-�discrimination-� by unduly favouring the bid entered by the tenderer ranked first, as was shown in paragraphs 94 to 119 above, the plea in law alleging manifest errors of assessment -� even if it were well founded -� could not lead to the annulment of the decision ranking the applicant as second contractor for Lot 2. It must therefore be rejected as ineffective ab initio.

123 That conclusion cannot be called into question by the applicant-�s argument that the calculation made by the Commission, which is based on a mistaken assumption regarding the applicant-�s financial offer, is wrong. On the one hand, the applicant merely based its arguments on assumptions and general considerations, without adducing any proof that the Evaluation Committee made a calculation error. It even stated that the Evaluation Committee -�apparently-� calculated the financial offer wrongly by relying solely on the level of the proposed daily person-day rates. On the other hand, the applicant has failed to establish that another calculation method would have led to a different result. During the hearing, the applicant even asserted that it could not verify the calculation method which should have been used by the Evaluation Committee.

124 In the light of the foregoing considerations, all the pleas in law raised in support of the application for annulment of the decision ranking the applicant as second contractor for Lot 2 must be rejected.

125 As has already been stated in paragraph 31 above, the applicant raises three pleas in law relating to Lot 3, alleging (i) manifest errors of assessment; (ii) breach of the -�principle of non-discrimination-�; and (iii) breach of the obligation to state reasons.

126 The plea in law alleging breach of the obligation to state reasons should be examined first, followed by the pleas in law alleging breach of the -�principle of non-discrimination-� and manifest errors of assessment.

127 The applicant contests the grounds given for the decision ranking it as second contractor for Lot 3 in relation to the evaluation of its tender in respect of the second, third and fifth award criteria.

128 It is in the light of the considerations set out in paragraphs 77 to 79 above that the applicant-�s arguments must be examined, account being taken not only of the decision ranking it as second contractor for Lot 3, but also of the Commission-�s letter of 24 October 2008, mentioned in paragraph 13 above, sent in response to the applicant-�s request for additional information regarding the evaluation of its tender and that of the tenderer ranked first in the cascade.

129 As the Commission points out, it initially informed the applicant, by letter of 17 October 2008, that it had been ranked second in the cascade and gave it the name of the tenderer ranked first and, in response to the applicant-�s express request, provided it with additional information regarding the evaluation of its tender and the bid entered by the tenderer ranked first.

130 It must therefore be held that the Commission provided a statement of reasons for its decision ranking the applicant as second contractor in the cascade for Lot 3, consistent with the principles devolving from Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, as interpreted by the case-�law.

131 That conclusion cannot be invalidated by the applicant-�s claims relating to the inadequate nature of the Evaluation Committee-�s comments on its tender with regard to the second, third and fifth award criteria.

132 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the second award criterion is worded as follows:

133 First, the applicant claims that the comment -�rather trivial-� to describe the material submitted in support of its tender is -�vague-�. Second, the comment that the layout and formatting are -�pretty much standard, [while] the attractiveness of presentation and training materials is limited-� does not enable the applicant to know the objective criteria on the basis of which the material provided was assessed. Third, the applicant claims that the negative connotation of the term -�standard-� has not been explained.

134 Despite the somewhat laconic nature of the Evaluation Committee-�s comment, it must be held that the information contained therein is sufficient to meet the obligation to state reasons in the terms laid down by the EU legislature and the case-law, since that information enabled the applicant to assert its rights, as shown by its application. In its application, the applicant alleges that the Evaluation Committee-�s comments are -�totally unfounded-� and explains in that regard that, according to the tender specifications, -�the [Evaluation Committee] should evaluate the -�clarity-�, -�comprehensibility-�, -�layout-�, -�formatting-� and -�attractiveness-� of the submitted material-� and that, in that context, -�all th[o]se documents provided ... in its tender, constitute deliverables which were successfully delivered in the context of other projects in the past ... and accepted by the Commission-�. The applicant also adds that -�all the -� deliverables included in its tender, fully cover the Commission-�s standards and the terms of the tender specifications-�.

135 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the third award criterion is worded as follows:

136 The applicant submits in essence that the Evaluation Committee fails to explain in what way the description for the helpdesk tool is -�somewhat vague-�. The applicant adds that the expression -�somewhat vague-�, when used without any indication of what is allegedly missing from the tender in the light of the tender specifications and without any description of what additional or better proposals the other tenderers have put forward, is -�absolutely generic-�.

137 As stated in paragraph 78 above, the reasoning must be sufficiently clear so as to enable the applicant to prepare its defence and to enable the Court to exercise its jurisdiction to review legality. However, in the part of its pleadings dealing with the plea in law alleging manifest errors of assessment, the applicant provides an exhaustive and very detailed explanation in order to show that its tender adequately and sufficiently covers all the help desk requirements, in strict compliance with the tender specifications. The applicant cannot therefore plead breach of the obligation to state reasons.

138 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the fifth award criterion is worded as follows:

139 The applicant submits, first of all, that -�the [Evaluation Committee-�s] position is ... not motivated at all-�. It claims in that regard that there is no negative comment from the Evaluation Committee. Moreover, the Evaluation Committee states in -�generic-� terms that -�[t]he generic ISO 9001 approach can be expected to be implemented in an adequate way-� but fails to identify what the weak points of the applicant-�s tender are in the light of the tender specifications. In addition, the Evaluation Committee did not indicate to what extent the bid entered by the tenderer ranked first was better or more comprehensive.

140 It should first be noted that the applicant-�s tender scored 8.75 points out of 10, which is higher than the score awarded to the bid entered by the tenderer ranked first (7.5 points out of 10), which means that -� as the Commission stated -� the applicant cannot require the Evaluation Committee to state what the first-ranked tender offered in addition or why it was better than the applicant-�s tender.

141 Moreover, the applicant cannot claim that the Evaluation Committee failed to explain why its tender had not scored the maximum number of points in respect of the fifth award criterion. As the Commission states in its defence, without this point being refuted by the applicant, by its comment that -�[t]he generic ISO 9001 approach can be expected to be implemented in an adequate way-�, the Evaluation Committee considered the ISO 9001 approach to be -�generic-� and not -�tailor-�made-� and found its implementation to be simply -�adequate-� and not -�excellent-�.

142 As regards the fact that, by that comment, the Evaluation Committee failed to explain clearly what requirements had been overlooked by the applicant-�s tender in the light of the tender specifications, it must be found that the Evaluation Committee does not claim that the applicant-�s tender fails to fulfil the requirements set out in the tender specifications. It merely points out that the applicant-�s approach is -�generic-�.

143 Consequently, the plea in law alleging breach of the obligation to state reasons must be rejected.

144 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the fourth award criterion is worded as follows:

145 The Evaluation Committee-�s comment on the bid entered by the tenderer ranked first, in the light of the fourth award criterion, is worded as follows:

146 In respect of that criterion, the applicant-�s tender scored 20.25 out of 30 whereas the bid entered by the tenderer ranked first scored 25.25 out of 30.

147 The applicant claims, first, that, so far as the fourth award criterion is concerned, by contrast with the bid entered by the tenderer ranked first, only one negative comment was made about its tender, which was unfounded. The applicant also points out that the Commission does not explain how the tenderer ranked first was able to obtain such high scores given the negative comments made about its tender.

148 It should first be noted that, as the Commission argues, two negative comments were made about the applicant-�s tender: organisation and staffing arrangements were considered to be -�generic-� and the proposed cooperation tool Mermig (-�the Mermig tool-� or -�Mermig-�) could not be accepted.

149 It should be recalled, next, that, despite some negative comments being made about the bid entered by the tenderer ranked first, the Evaluation Committee found that that tenderer demonstrated how an -�excellent [level of] support-� can be reached. No such comment was made by the Evaluation Committee in respect of the applicant-�s tender.

150 In that regard, the applicant claims that the quality of the bid submitted by the tenderer ranked first must be assessed solely against the criteria laid down in the tender specifications and not simply in the light of that tenderer-�s capacity to provide an -�excellent [level of] support-�. Moreover, the Commission fails to justify its decision in relation to the tender specifications by demonstrating how that tenderer-�s bid contains proposals which are additional to or better than those contained in the applicant-�s bid. The Commission confines itself to making a number of random positive comments in an attempt to prove that the winning tender is the best, failing to follow the criteria in a rational manner as the tender specifications require.

151 As the Commission rightly points out, it is apparent from the tender specifications that the management arrangements were appraised, inter alia, upon how the contractor will provide support for -�the management and administration of the contract-�. The applicant cannot therefore claim that the Commission failed to justify its decision in the light of the tender specifications. In that regard, it must also be pointed out that the applicant merely asserts that the Commission fails to follow properly the criteria set out in the tender specifications -� without, however, providing further details that would substantiate its claim.

152 The applicant submits, secondly, that the bid entered by the tenderer ranked first in the cascade did not propose a cooperation tool similar to the Mermig tool. It is sufficient, however, to note that the tender specifications (Chapter B.3.1) do not require a cooperation tool similar to the Mermig to be presented. The applicant asserts, moreover, that the Mermig tool was an additional element proposed as an option.

153 The applicant claims, thirdly, relying on an annex to the reply, that the tenderer ranked first for Lot 3 was the incumbent contractor, in that it already provided helpdesk services, and that, in that capacity, it had privileged access to certain information.

154 As the Commission rightly points out, it is absolutely clear from the document submitted by the applicant that the tenderer ranked first, in the present case, for Lot 3 was, in the context of the previous contract referred to by the applicant, first contractor for Lot 2 of that contract, which does not cover the SDMX format or any SDMX-related activities. The applicant cannot claim, therefore, without further evidence, that the tenderer ranked first for Lot 3 was the incumbent contractor for Lot 3 and that, in that capacity, it had privileged access to certain information regarding the SDMX format.

155 The plea in law alleging breach of the -�principle of non-discrimination-� must therefore be rejected.

156 The applicant claims that the Commission made a number of manifest errors of assessment when evaluating its tender in relation to the first, third and fourth award criteria.

157 Some of the applicant-�s arguments seeking to show that the Commission made a number of manifest errors of assessment when evaluating its tender in relation to the third award criterion are set out in the context of the plea in law alleging breach of the obligation to state reasons. As the obligation to state reasons must be distinguished from the question whether the reasons given are sound, which goes to the substantive legality of the contested measure (see, to that effect, judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47), those complaints should be considered in the light of the plea in law alleging manifest errors of assessment.

158 It is settled case-law that the Commission has broad discretion with regard to the factors to be taken into account for the purposes of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, that the facts are correct and that there has been no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d-�intérims v Commission [1978] ECR 2215, paragraph 20, and Case T-589/08 Evropaïki Dynamiki v Commission [2011] ECR II-�0000, paragraph 24).

159 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the first award criterion is worded as follows:

161 In accordance with the tender specifications (Chapter B.3.1), the tenderer must with regard to the first award criterion demonstrate, on the one hand, that he has understood the terms of reference of the project, its key issues and the scope of the work, in particular the objectives and expected results and, on the other, that he has addressed all the critical points.

162 In the first place, the applicant challenges the Evaluation Committee-�s comment that there was -�not sufficient comprehension shown in connection with the specific objectives of this project-�.

163 It should first be stated that, in response to the Evaluation Committee-�s comment, the applicant refers to Chapter 3.3 of its tender even though the objectives of the project are set out in Chapter 3.2. As the applicant acknowledges, Chapter 3.3 describes the main and secondary activities to be performed, as well as the expected results.

164 Next, it is clear that Chapter 3.2, concerning the objectives of the project, is very brief. That finding is not contested by the applicant.

165 Lastly, the applicant claims that the Evaluation Committee failed to take into account Chapter 3.3.3 of the tender, entitled -�Expected results-�, which refers to another section of the tender, which gives a detailed description of all the project-�s objectives and their expected results. Although, in Chapter 3.3.3 of the applicant-�s tender, a reference is actually made to Section 2 of the tender, entitled -�Technical proposal, technical proposal of the tenderer, technical approach and methodology-�, it must be stated that the applicant provides no evidence in its submissions that, in that section of the tender, sufficient comprehension was shown in connection with the specific objectives of the project. However, as has already been stated in paragraph 66 above, it is not for the Court to seek out 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, or to speculate about the reasoning and precise observations, both in fact and law, that lie behind the action.

166 In the second place, the applicant-�s only response to the Evaluation Committee-�s comment that -�the mission[-]critical[-]incident tracking is missing-� was to refer to Chapter 3.3.1 of its tender, which is worded as follows: -�[t]he whole process (operation of the Help Desk) will be documented so that Eurostat is aware [of] the activities performed, including details as regards the initiator of the call, the nature of [the] support needed, the resolution actions [taken], etc. An automated reporting system will facilitate this approach.-� Clearly, however, it is not apparent from that brief account that the tender includes mission-critical[-]incident tracking.

167 In the third place, so far as concerns the comment that -�SDMX-related material is -�cut and paste-�-�, it must be stated, first of all, that the applicant itself acknowledges that statistical definitions were reproduced in its tender. It is also necessary to point out that the tender contains at least one example of -�copying and pasting-� where no reference to an information source is made. Chapter 3.1.2 of the tender contains six SDMX-ML standard messages which reproduce almost verbatim pages 17 and 18 of the SDMX User Guide available on the website www.sdmx.org, but the tender makes no reference to that source. Admittedly, as the applicant observes, the reference to the website www.jedh.org, from which it is possible to reach the website www.sdmx.org, appears in the tender (Chapter 3.1.2). However, the reference to the website www.jedh.org does not relate to the six standard messages in question but to the source for a project (Joint External Debt Hub).

168 Consequently, the applicant cannot deny that its tender reproduces documents without acknowledging sources.

169 That conclusion cannot be called into question by the applicant-�s argument that -�the [tender specifications themselves] encourage... tenderers to search in specific websites to obtain information concerning the SDMX (e.g. see in ... chapter 1.1 [of the tender specifications] -� General information, p. 16)-�. On the one hand, the applicant does not refer to the correct section of the tender specifications: it is Chapter 3.1 of the tender specifications which relates to Lot 3. On the other hand, the applicant cannot rely on the tender specifications, which invite tenderers to consult various websites, as a basis for the inference that it is permissible to reproduce that information in the tender without referring to information sources.

170 Lastly, so far as concerns the comment that -�[t]here is a misunderstanding on reference metadata-�, the applicant merely points out that the terminology used is in full compliance with the terminology provided by the OECD, Eurostat and other statistics-related organisations -� without, however, providing further details that would substantiate its claim in such a way as to rebut that comment.

171 The wording of the Evaluation Committee-�s comment on the applicant-�s tender in the light of the third award criterion is reproduced in paragraph 135 above.

173 According to the tender specifications, the evaluation of tenders in respect of the third award criterion is based on:

174 It also apparent from the tender specifications that, for Lot 3, it was expected that the future contractor would carry out several activities, including main and secondary activities.

175 There were three main activities in all and they covered the following areas:

176 There were four secondary activities in all and they covered the following areas:

177 The applicant contests the Evaluation Committee-�s comment that -�for the helpdesk tool, the description [was] somewhat vague and could not convince all evaluators-�. It claims that the tender specifications only require a description of the technical approach and methodology proposed for the provision of helpdesk services, but do not call for a detailed description of the specific tools to be used.

178 First, it is common ground between the parties that the tender describes in sufficient detail the methodology proposed for the provision of helpdesk services. Moreover, the Evaluation Committee made a positive comment in respect of that methodology (-�Very good proposal for implementation of support and of testing tools. The expected results and the ways to achieve them are well described and adequate-�). The applicant-�s argument that Chapter 3.1.1 of its tender, entitled -�Methodology and technical proposal-�, provides an exhaustive and very detailed description of the helpdesk operations, cannot therefore rebut the Evaluation Committee-�s comment concerning the helpdesk tool itself.

179 So far as concerns the description of the proposed helpdesk tool, it must be stated, first, that, while the tender specifications do not expressly state that the helpdesk tool must be described in detail, it cannot nevertheless be claimed, in the light of the requirements set out in the tender specifications, that such a description in the tender can be dispensed with. It is apparent from the tender specifications, as has already been stated in paragraph 173 above, that the tenderer must demonstrate, in its tender, -�efficiency and effectiveness of [proposed] approach and method taking into account any particularities that are mentioned in the specific lot-�. A -�level of detail of description of the work-� is also required of the tenderer. As the Commission contends, it does not seem conceivable that the proposed methodology with regard to the helpdesk would not be accompanied by a description of the tool for facilitating the efficiency and effectiveness of that methodology. By requiring a description of the helpdesk tool, the Evaluation Committee has not therefore failed to comply with the tender specifications.

180 It must be stated next that, as the Commission points out, it is clear that the description of the helpdesk tool proposed by the applicant -� namely, Scopus -� is very short (see Chapter 3.1.1.7 of the tender). As the applicant stated at the hearing, that description consists of two paragraphs totalling nine lines of explanation. In those circumstances, the applicant cannot claim that the Evaluation Committee made a manifest error of assessment in finding that the description of the helpdesk tool was -�somewhat vague-�.

181 That conclusion cannot be called into question by the fact that the applicant proposed other helpdesk tools in relation to which it has not been established that they were described in more detail. In that regard, it must be found that, contrary to the assertions made by the applicant, a mere reference to relevant websites cannot suffice.

182 As regards the applicant-�s argument that the Evaluation Committee attributed more importance to the helpdesk operation than to the other activities, it is sufficient to note that, as shown above, the tender specifications make a distinction between main activities and secondary activities and that, as regards main activities, the helpdesk operation is the most important.

183 Lastly, so far as concerns the applicant-�s complaint that the tenderer ranked first had privileged access to certain information relating, in particular, to the helpdesk tools used by the Commission, it should be borne in mind, as has already been stated in paragraph 154 above, that the tenderer ranked first for Lot 3 was, in the context of the previous contract referred to by the applicant, the contractor ranked first for Lot 2 of that contract, which does not cover the SDMX format or any SDMX-related activities.

184 The Evaluation Committee-�s comment on the applicant-�s tender in the light of the fourth award criterion is worded as follows:

186 The applicant challenges the Evaluation Committee-�s comment that -�[t]he proposed co-operation tool -�MERMIG-� [is] not supported by the Commission and cannot be accepted-�, and claims that it is the only negative comment made about its tender in respect of the fourth award criterion.

187 First, it should be noted that, as has already been stated in paragraph 148 above, the score awarded to the applicant-�s tender took account of two negative comments made in respect of that tender: (i) the organisation and staffing arrangements were considered to be -�generic-� and (ii) the proposed cooperation tool Mermig was not accepted by the Commission.

188 It must be observed, moreover, that the applicant challenges only the comment that -�[t]he proposed co-operation tool -�MERMIG-� [is] not supported by the Commission and cannot be accepted-�. Admittedly, in its reply, the applicant submits that it also challenges the comment that -�[o]rganisation and staffing arrangements are generic-� and, in that regard, refers back to its application (paragraph 28). However, it must be found that the application does not cover this aspect.

189 At the hearing, the applicant also claimed that, in its application (paragraph 58), it had submitted that the Evaluation Committee-�s comments relating to the evaluation of its tender in respect of the fourth award criterion are unfounded. However, it is clear from paragraph 58 of the application that the comment made with regard to the organisation and staffing arrangements was not contested by the applicant. On the contrary, the applicant claims that -�[the Evaluation Committee] observed that the [a]pplicant-�s management proposal [was] good-� and that -�the organisation and staffing arrangements sufficiently cover the tender requirements-�. According to the applicant, -�[t]his means that all the requirements of the tender specifications are adequately and sufficiently covered-�. The applicant even adds that -�[t]he only negative consideration of the [Evaluation Committee]-� is that the proposed cooperation tool Mermig could not be accepted by the Commission.

190 Consequently, if the applicant intended, in its reply, to challenge the Evaluation Committee-�s comment that -�[o]rganisation and staffing arrangements are generic-�, that complaint must be rejected as inadmissible. It is clear from Articles 44(1)(c) and 48(2) of the Rules of Procedure, taken together, that the application initiating proceedings must indicate the subject-matter of the dispute and set out in summary form the pleas raised, and that no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure (see, to that effect, Case T-345/05 Mote v Parliament [2008] ECR II-�2849, paragraph 85; judgment of 21 October 2010 in Case T-474/08 Umbach v Commission, not published in the ECR, paragraph 60; and Joined Cases T-568/08 and T-573/08 M6 v Commission [2010] ECR II-�3397, paragraph 76).

191 As regards the Evaluation Committee-�s comment that the cooperation tool Mermig cannot be accepted by the Commission, the applicant puts forward two main arguments. First, it claims in essence that that tool is compatible with the Commission-�s -�standards-� and that it is used by other Commission services. Secondly, the applicant claims that the Mermig tool was proposed in the tender as an -�optional tool-� which is not intended to replace the -�CIRCA tool-�, used regularly by the Commission, but which meets its own internal needs.

192 Even if those complaints were well founded, they are not such as to lead to the annulment of the decision ranking the applicant as second contractor in the cascade for Lot 3. In view of the fact that no manifest error of assessment on the part of the Commission has been established relating to its evaluation of the applicant-�s tender in the light of the other award criteria (as shown in paragraphs 159 to 183 above) and in so far as the applicant has not established that the bid entered by the tenderer ranked first was unduly favoured (as stated in paragraphs 144 to 155 above), it must be found that, even though the applicant was awarded the maximum number of points in respect of the fourth award criterion, that is to say, 30 points, the total number of points awarded to the applicant for Lot 3 was lower (79.75) than that awarded to the tenderer ranked first (86.25).

193 As it is, pursuant to the method for selecting the economically most advantageous tender, referred to in paragraph 7 above, even with a total of 79.75 points, the applicant-�s tender had a higher ratio (45843.26) than the bid entered by the tenderer ranked first (45630.14).

194 The plea in law alleging manifest errors of assessment must therefore be rejected.

195 It follows from all the foregoing that the application for annulment of the decisions ranking the applicant as second contractor must be dismissed in its entirety.

2. The application for annulment of the decisions linked to the decisions ranking the applicant as second contractor, including the decisions awarding the contract to the tenderers ranked first in the cascade for Lots 2 and 3

196 As the application for annulment of the decisions ranking the applicant as second contractor was rejected, it follows that the application for the annulment of decisions linked thereto, including the decisions awarding the contract to the tenderers ranked first in the cascade for Lots 2 and 3, must also be rejected, and there is no need to rule on its admissibility.

197 The applicant claims in essence that, should the General Court find that Eurostat infringed the Financial Regulation or acted in breach of the principles of transparency and equal treatment, the applicant should receive financial compensation in the amount of EUR 4 326 000 representing the gross profit which it would probably have derived from the public procurement procedure if it had been awarded the contract. The applicant also claims that the Evaluation Committee-�s evaluation is based on consecutive and multiple manifest errors of assessment and that the fundamental rules and principles governing public procurement were infringed by the awarding authority.

198 The Commission contends that the applicant-�s claim for damages should be rejected.

199 It is settled case-law that, in order for the Community to incur non-contractual liability, a number of conditions must be satisfied: the institutions-� conduct must be unlawful; actual damage must have been suffered; and there must be a causal link between the conduct and the damage pleaded (see, to that effect, Case T-589/08 Evropaïki Dynamiki v Commission, paragraph 158 above, paragraph 112). Where one of those conditions is not satisfied, the action must be dismissed in its entirety and it is not necessary to consider the other conditions for such liability (Case T-589/08 Evropaïki Dynamiki v Commission, paragraph 158 above, paragraph 112).

200 In the present case, it is apparent from the examination of the application for annulment that the applicant has not proved unlawful conduct on the part of the Commission.

201 It follows, therefore, that the claim for damages must be rejected as unfounded.

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

203 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.

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

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

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Evropaiki Dynamiki v Commission [2012] EUECJ T-591/08 (05 October 2012) URL: http://www.bailii.org/eu/cases/EUECJ/2012/T59108.html Cite as: [2012] EUECJ T-591/08, EU:T:2012:522, [2012] EUECJ T-591/8, ECLI:EU:T:2012:522

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