Evropaiki Dynamiki Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission [2013] EUECJ T-474/10 (15 October 2013)

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(Public service contracts - Tender procedure - External service provision for development, studies and support for information systems (ESP DESIS II) - Classification of a tenderer - Award of the contract - Obligation to state reasons - Transparency - Equal treatment - Manifest error of assessment - Non-contractual liability)

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

European Commission, represented initially by N. Bambara and S. Delaude, and subsequently by S. Delaude, acting as Agents, and by O. Graber-Soudry, Solicitor,

APPLICATION, first, for annulment of four Commission decisions communicated in four separate letters of 16 July 2010 to classify the applicant’s tender submitted in the context of the call for tenders DIGIT/R2/PO/2009/045, concerning ‘External service provision for development, studies and support for information systems’ (ESP DESIS II) (OJ 2009/S 198-283663), for Lot 1A in second place, for Lot 1B in third place, for Lot 1C in second place and for Lot 3 in third place, and also of all the related decisions of the Commission’s Directorate General for Informatics, including the decisions to award the respective contracts to the tenderers classified in first and second places; and, second, for damages,

composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,

having regard to the written procedure and further to the hearing on 14 March 2012,

1 The applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law, active in the field of information technology and communications.

2 By contract notice of 14 October 2009, published in the Supplement to the Official Journal of the European Union (OJ 2009 S 198-283663), the Commission’s Directorate-General for Informatics (‘DIGIT’) launched the call for tenders DIGIT/R2/PO/2009/045 - ESP DESIS II, concerning ‘External service provision for development, studies and support for information systems’ (‘call for tenders ESP DESIS II’). The deadline for the submission of tenders was set at 18 December 2009.

3 Call for tenders ESP DESIS II was held in order to draw up new cascade multiple framework contracts, intended to replace the ESP DESIS contracts, which were about to expire.

4 In the tendering specifications the Commission stated that, for each lot, multiple framework contracts would be signed with the tenderers who submitted the three best tenders. Those specifications stated that such contracts could be awarded to a maximum of three tenderers per lot. When the specific contracts were awarded, the economic operator whose tender was considered to present the best value for money was contacted first. If that first operator was unable to provide the requested service or was not interested, the second best operator was contacted. If the latter was unable to provide the requested service or was not interested, the third best operator was then contacted.

5 Lot 1A concerned development expertise in Database Management Systems (DBMS), application servers and related tools, Lot 1B concerned development expertise in document and content management and GIS tools, Lot 1C concerned development expertise in data warehouse, reporting and statistical tools, and Lot 3 concerned quality, security, requirements analysis and specific studies.

6 The contract notice and the tendering specifications stipulated that for each lot the framework contract would be awarded to the most economically advantageous tender, assessed in accordance with the criteria set out in the tendering specifications.

7 The tendering specifications stated that the assessment would consist of three stages: a first stage, during which exclusion criteria would be applied (section 6.1 of the tendering specifications): a second stage, during which selection criteria would be implemented (section 6.2 of the tendering specifications); and a third stage, during which the award criteria would be evaluated (section 6.3 of the tendering specifications).

8 In respect of the technical evaluation, the tendering specifications set out, at section 6.3.1, five award criteria, as follows:

- award criterion 1: quality of the tenderer’s proposal for organising the overall management of the services;

- award criterion 2: quality of the tenderer’s proposal for the ordering of services;

- award criterion 4: quality of the technological proposal in the domain of the lot;

9 Together, the award criteria represented a total of 1 000 points. The minimum score per award criterion was set at 50%. The scores given were weighted according to the importance of each of the five award criteria. The minimum weighted score was set at 60%. Each tender was evaluated in order to determine the extent to which it satisfied the stated requirements, the successful tender being that which represented the best value for money. Quality, namely the technical evaluation, counted for 60% and price, namely the financial evaluation, counted for 40% (section 6.4 of the tendering specifications).

10 The tendering specifications also contained a questionnaire for each lot, including questions on technical and professional capacity and on technical evaluation. The questions regarding technical evaluation were grouped by award criterion.

11 After the launch of the call for tenders and during the period for submission of tenders, the applicant sent several letters to DIGIT with a view to obtaining clarification.

12 On 18 December 2009, the applicant submitted a tender for Lots 1A, 1B, 1C, 2 and 3. The present action concerns Lots 1A, 1B, 1C and 3.

14 On 16 July 2010, the outcome of the tendering procedure for each lot was sent to the applicant. Those letters informed the applicant that, on the basis of the quality/price ratio of its tender, the applicant had been ranked in second place in the cascade mechanism for Lots 1A and 1C and in third place in the cascade mechanism for Lots 1B and 3 (‘the contested decisions’).

15 By letter dated the same day, the applicant requested additional information from DIGIT, namely the names of the successful tenderers for each lot and those of their subcontractors and the percentage of subcontracting, the scores awarded to each tender for each technical award criterion and an explanation of the relative advantages of the successful tenderers, information on the prices offered by the winning tenderers and the names of the members of the Evaluation Committee.

16 By letter of 30 July 2010, DIGIT sent the applicant the information requested on the tenders submitted by the applicant for the five lots in the call for tenders, the ‘Note for debriefing’, included in the evaluation report, concerning its tender and those ranked higher than it.

17 On 30 July 2010, the applicant reminded the Commission that it was also required to send it information concerning the tenderers ranked in third place in the cascade for Lots 1A and 1C.

18 On 5 August 2010, the applicant complained to the Commission about the generic nature of its debriefing notes and insisted on being provided with a full copy of the evaluation report and detailed explanations justifying such an important decision involving the spending of hundreds of millions of euros.

19 On 10 August 2010, the applicant wrote to the Budgetary Control Committee and the Committee on Employment and Social Affairs of the European Parliament, to the European Ombudsman, to the Court of Auditors of the European Union, to the Secretary-General of the Commission and to the Directors-General of DG ‘Employment, Social Affairs and Equal Opportunities’ of the Commission and of DIGIT.

20 By letter of 16 August 2010, DIGIT replied to the letter of 30 July 2010. Additional information was provided about the companies ranked in third place in the cascade for Lots 1A and 1C.

21 By letter of 18 August 2010, the applicant asked the Commission whether it had authorised the member companies of the consortium which had been awarded the contract (‘the winning consortium’) to use in their tender the services of companies established in countries not signatories 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 applicant also challenged the non-disclosure of the technical and financial evaluation of the tenderers ranked third for Lots 1A and 1C.

22 On 20 August 2010, in response to the applicant’s letter of 5 August 2010, DIGIT sent to the applicant the results of the technical evaluation for each question corresponding to the various award criteria for the lots in which the applicant had participated, so that the applicant could understand the strengths and weaknesses of its tenders. DIGIT also informed the applicant that its request for a review of the outcome of the evaluation would be sent to the awarding authority.

23 On 25 August 2010, the applicant again wrote to DIGIT, reiterating its views on the call for tenders at issue. On the same day, the applicant also wrote to the European Ombudsman requesting further information on the issue of the outsourcing of services to companies established in countries which are not parties to the Agreement on Government Procurement and on the European Ombudsman’s decision in that regard.

24 On 7 September 2010, DIGIT reiterated its position concerning the applicant’s requests to be provided with all the information requested in its previous letters.

25 On 14 September 2010, DIGIT informed the applicant that the awarding authority had examined its requests and comments and had confirmed its initial award decision. DIGIT attached a note for the file containing an assessment of the arguments raised by the applicant in respect of the evaluation of Lots 1A, 1B, 1C, 2 and 3. That letter also informed the applicant that the contracts concerned had been signed or were in the process of being signed.

26 The contract award notice at issue was published on 30 October 2010 in the Supplement to the Official Journal of the European Union (OJ 2010 S 212-323724).

27 By application lodged at the Court Registry Instance on 26 September 2010, the applicant brought the present action.

28 On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, to request the Commission to produce certain documents. The Commission complied with that request within the prescribed period.

29 The parties presented oral argument and answered the questions put by the Court at the hearing on 14 March 2012.

- annul the contested decisions and all the subsequent decisions of DIGIT relating to the call for tenders in question, including the decision to award the contract to the successful tenderers;

- order DIGIT to compensate it for the damage suffered on account of the tendering procedure at issue, which it evaluates at EUR 242 000 000 (EUR 122 000 000 for Lot 1A, EUR 40 000 000 for Lot 1B, EUR 30 000 000 for Lot 1C and EUR 50 000 000 for Lot 3), and to pay the amount of EUR 24 200 000 as compensation for the loss of opportunity and damage to its reputation and credibility;

32 At the hearing the applicant withdrew the first part of its first plea, relating to the alleged breach of a pre-existing contractual obligation by a company belonging to the winning consortium.

33 In support of its application for annulment, the applicant raises, in essence, six pleas in law, alleging:

- second, infringement of Articles 106 and 107 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’), breach of the tendering specifications and breach of the principles of non-discrimination and transparency;

- fourth, breach of the principles of sound administration and equal treatment and also of the rules on conflict of interest;

- fifth, infringement of Article 97 of the Financial Regulation and Article 138 of Commission Regulation (EU, 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’);

1. First plea, alleging breach of the rules relating to the exclusion criteria

34 The applicant claims that the parent company of a company belonging to the winning consortium has been involved in bribery and corruption and fraud and ought to have been excluded from call for tenders ESP DESIS II pursuant to Articles 93 and 94 of the Financial Regulation and Articles 133 and 134 of the Implementing Rules.

35 It should be observed, as a preliminary point, that the applicant also claims that there has been an infringement of Article 45 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). Under Article 105 of the Financial Regulation, from 1 January 2003 - the date on which that regulation entered into force - the directives on the coordination of procedures for the award of public supply, service and works contracts are to be applicable to contracts awarded by the EU institutions, offices and agencies on their own account only in respect of questions relating to the thresholds which determine the publication arrangements, the choice of procedures and the corresponding time-limits. It follows that the applicant’s complaints relating to the award criteria of the contract in question must be examined solely by reference to the provisions of the Financial Regulation and the Implementing Rules.

36 In the first place, it should be borne in mind that Article 93(1)(b) and (e) of the Financial Regulation provides that candidates or tenderers are to be excluded from participation in procurement procedures if they have been convicted of an offence concerning their professional conduct by a judgment which has the force of res judicata or if they have been the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the financial interests of the Union.

37 First, it should be noted that the applicant merely refers to the existence of arrangements between the parent company of a company belonging to the winning consortium and the German and United States authorities, but does not demonstrate the existence of judgments having the force of res judicata, as is required by Article 93(1)(b) and (e) of the Financial Regulation, whereby that parent company has been convicted of corruption or fraud.

38 Second, it is apparent from the file that, in order to determine whether the company belonging to the wining consortium should or should not be excluded from the procedure, the Commission not only checked whether that company was flagged in the early warning system, but also carried out a thorough examination of the allegations of fraud and corruption, in order to rule on the compliance of the company belonging to the winning consortium and its parent company with the exclusion criteria. The Commission asked the latter companies for numerous documents, such as:

- a recent extract from the judicial record of the company belonging to the winning consortium;

- a recent extract from the judicial record of the parent company, showing that it complied with the conditions set out in Article 93(1)(a), (b) and (e) of the Financial Regulation;

- recent certificates issued as evidence that the parent company was not in the situation described in Article 93(1)(d) of the Financial Regulation;

- additional information in order to assess the exclusion criteria of the company belonging to the winning consortium in the framework of its relationship with its parent company, namely a reliability declaration from the parent company and information relating to court cases.

39 The Commission therefore did not infringe either Article 93(1)(b) and (e) of the Financial Regulation or Article 134(4) of the Implementing Rules by not excluding that company belonging to the winning consortium from the call for tenders at issue.

40 In the second place, in the event that the applicant should also mean to claim infringement of Article 93(1)(c) of the Financial Regulation, it would have to be borne in mind that, according to that article, candidates or tenderers are to be excluded from participation in a procurement procedure if they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify.

41 It follows from paragraph 59 of the judgment of 4 July 2008 in Case T-333/07 Entrance Services v Parliament, not published in the ECR, that when the adjudicating authority is informed in the course of the procedure of grave professional misconduct committed by a tenderer, it is required to check that information and, if that grave misconduct is established to the requisite legal standard, to exclude the tenderer in question from the procedure.

42 In the present case, it should be borne in mind that the applicant claims that the parent company of a company belonging to the winning consortium has been involved in bribery and corruption and fraud.

43 It should be borne in mind, in that regard, that the ground of exclusion provided for in Article 93(1)(c) of the Financial Regulation, like the other grounds of exclusion provided for in Article 93(1), applies to candidates or tenderers who participate in the procurement procedure at issue. It is clear upon reading Article 93 of the Financial Regulation in its entirety, and in particular Article 93(2)(a), which refers to the situation in which ‘the candidate or tenderer is a legal entity’, that the candidates or tenderers are the legal entities that participate in the procedure.

44 In that context, the applicant maintains that, under Article 93(2)(a) of the Financial Regulation and Article 134(4) of the Implementing Rules, the awarding authority may request information about the ownership or power of representation, decision or control of a legal person participating in the call for tenders, from which the applicant infers that the parent company’s conduct must also be taken into consideration.

45 In that regard, it should be acknowledged that it does indeed follow from that provision that the awarding authority may deem it appropriate to verify the abovementioned information, which includes information relating to control of the legal person participating in the call for tenders, and take it into consideration.

46 Contrary to the applicant’s suggestion, however, it cannot be inferred from that provision that grave professional misconduct on the part of the parent company of a subsidiary participating in a call for tenders must systematically be attributed to that subsidiary.

47 In the first place, it must be stated that Article 93 of the Financial Regulation is not aimed at economic entities, but at legal entities. Nor does such an interpretation call into question the practical effect of Article 93(2)(a) of the Financial Regulation, since, as is clear from its wording, the purpose of a request for information on the ownership or the management, control and power of representation of the legal person participating in the call for tenders is to ensure the proper application of the grounds for exclusion. That information is therefore primarily intended to establish that the legal entity participating in the call for tenders is not in one of the situations defined in Article 93 of the Financial Regulation that would lead to its exclusion.

48 Nor, in the second place, does such an interpretation call into question the practical effect of the ground of exclusion set out in Article 93(1)(c) of the Financial Regulation. The possibility of requesting all the information necessary to ensure the proper application of that provision also means that the awarding authority is able to request all the information necessary to ensure that the participation of a given legal person in the call for tenders does not constitute an abuse of right, as would be the case, for example, of the participation of a legal person that was formed with the sole aim of circumventing one of the grounds of exclusion set out in Article 93(1) of the Financial Regulation.

49 In the present case, the applicant, by letter of 30 July 2010, requested the Commission to modify the outcome of the evaluation and to reject the bids in which the company belonging to the winning consortium was involved. As the parent company of that company belonging to the winning consortium had on a number of occasions been involved in corruption and fraud, the company belonging to the winning consortium therefore ought not, in the applicant’s submission, to have escaped the application of the exclusion criteria of call for tenders ESP DESIS II, or of those referred to in Article 96 of the Financial Regulation and Article 133(1) of the Implementing Rules. Consequently, its bid ought to have been rejected.

50 In those circumstances, the awarding authority was required to check whether the company belonging to the winning consortium ought to be excluded on the ground of grave professional misconduct, pursuant to Article 93(1)(c) of the Financial Regulation. It was therefore required to make a preliminary assessment and, in the event that the arguments were not well founded, to reject them and to inform the person who had made the accusations that they had been rejected, in keeping with the principles of transparency and sound administration and also with the spirit of the Financial Regulation.

51 By letter of 16 August 2010, the Commission replied that, from a procedural point of view, the applicant’s request to modify or correct the outcome of the evaluation could be understood only as a request to the awarding authority to assess the arguments submitted before the contracts were signed and, should those arguments be well founded, to withdraw the award decision and replace it by a new award decision.

52 By letter of 14 September 2010, the Commission informed the applicant that the awarding authority had reviewed the applicant’s requests and comments and had confirmed its initial award decision. The Commission enclosed a note for the file, containing, in section 3.3, an evaluation of the arguments raised by the applicant, namely that the parent company of a company belonging to the winning consortium was involved in acts of bribery, corruption and fraud. It is clear from that letter that a thorough assessment was carried out during the evaluation process. On 8 April 2010, a detailed request for additional information was sent to the company belonging to the winning consortium and to its parent company, to which those companies responded by providing an exhaustive reply on 28 April 2010 (see paragraph 38 above). Apart from the early warning system, relevant reports from external sources, such as Dun & Bradstreet and Coface, were also consulted. Following that assessment, the awarding authority concluded that the company belonging to the winning consortium could not be excluded from the call for tenders.

53 The Commission therefore carried out an assessment of the applicant’s allegations, not confining itself to the matters submitted by the applicant but requesting additional information relating not only to the company belonging to the winning consortium but also to its parent company. It therefore carried out an assessment for the purposes of Article 93(1)(c) of the Financial Regulation.

54 As regards the complaint that, in the light of the information available to it after it had assessed the information submitted by the applicant, the Commission ought to have excluded the winning consortium on the ground of the grave professional misconduct of the parent company of one of the companies belonging to that consortium, it should be borne in mind that, in support of that complaint, the applicant relies on the fact that the Commission had no discretion as to the exclusion of that member company and also that the World Bank had decided to exclude the parent company of that member company and all the subsidiaries and associates of that parent company from its calls for tenders for a period of two years.

55 In the first place, as regards the argument which the applicant bases on a decision of the World Bank ordering that all the companies in question be excluded from its calls for tenders, it should be pointed out that in its letter of 14 September 2010, referred to above, the Commission correctly observed that, unlike the World Bank, it was subject to the relevant provisions of the Financial Regulation and the Implementing Rules.

56 In the second place, as regards the applicant’s argument that the Commission ought to have excluded the company belonging to the winning consortium and had no discretion in that respect, it should be noted, first, that, according to the Commission’s findings, the company belonging to the winning consortium did not satisfy the conditions that would permit the application of a ground of exclusion within the meaning of Article 93(1) of the Financial Regulation and, second, that the applicant has put forward no argument to show that the company belonging to the winning consortium was itself guilty of grave professional misconduct or was involved in the offending conduct of its parent company. Nor is it apparent from the evidence in the file that that company’s participation in the call for tenders constituted an abuse of right, designed to circumvent a ground of exclusion. In such circumstances, the Commission was entitled to take the view that the company belonging to the winning consortium could not be excluded on the ground of grave professional misconduct.

57 Accordingly, the complaint alleging infringement of Article 93(1)(c) of the Financial Regulation must be rejected.

2. Second plea, alleging infringement of Articles 106 and 107 of the Financial Regulation, breach of the tendering specifications and breach of the principles of non-discrimination and transparency

59 The applicant maintains that the Commission ought to have excluded from participation in the procurement procedure undertakings established in countries which are not signatories to the Agreement on Government Procurement or undertakings which subcontract work to countries which are not signatories to that agreement.

60 In the first part, the applicant claims that a company belonging to the winning consortium ought to have been excluded, since it relied on work carried out in a country which is not a signatory to the Agreement on Government Procurement, by means of subcontracting. In support of its argument, the applicant relies on the Internet site of the member of the winning consortium.

61 First, it should be noted that Articles 106 and 107 of the Financial Regulation, to which the applicant refers, merely require that the Commission allow undertakings established in countries which have ratified the Agreement on Government Procurement or in countries which have with the European Union a special agreement in the field of public procurement to participate in calls for tenders. Those articles do not preclude participation by undertakings established in countries which are not signatories to the Agreement on Government Procurement or undertakings which use subcontractors established in those countries in calls for tenders launched by the Commission.

62 Second, it is apparent from the extracts from the Internet site submitted by the applicant in support of its argument that the member of the winning consortium is established in the European Union and that it is not shown that the actual work to which the tender related was to be carried out or subcontracted outside the European Union by or to undertakings not established in Member States of the Agreement on Government Procurement, in order de facto to circumvent the rules. The first part must therefore be rejected as unfounded.

63 In the second part, the applicant claims that the Commission did not clearly explain the rules applicable to the use of companies established in countries which are not signatories to the Agreement on Government Procurement.

64 It should be borne in mind that the Commission’s approach was explained in the document entitled ‘Questions and answers’. The terms of the tendering specifications provided that tenderers were to be established in countries which were parties to the Agreement on Government Procurement. However, as regards subcontractors, it is apparent from the answers to questions 3.49 and 3.50 that the Commission established the principle that, provided that the rules of the Agreement on Government Procurement were not de facto circumvented, companies outside the EU could act as subcontractors. The answers to questions 5.21 and 6.16 confirm and re-state that position, The answer to question 7.14 again clarifies that point. The second part must therefore be rejected as unfounded.

65 In the third part, the applicant claims that, even on the assumption that the use of such companies had to be tolerated by the Commission, that possibility should have been made available by the tendering specifications to all tenderers, in a fair, transparent and non-discriminatory manner.

66 The principle of transparency, which is the corollary of the principle of equal treatment, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the awarding 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 tendering specifications (Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 109 to 111).

67 The answers set out in the document entitled ‘Questions and answers’ referred to at paragraph 64 above were sent to all tenderers before the deadline for submission of bids. All tenderers therefore had the same information for the purpose of preparing their bids. In those circumstances, the argument alleging breach of the principles of transparency and equal treatment cannot succeed.

68 The argument that the winning consortium breached the provisions of the tendering specifications of the preceding contract, ESP-DESIS, must be rejected, first, because such an argument is not relevant in the present case, as each tendering procedure must be evaluated by reference to its own particular features, and, second, because the applicant has wholly failed to substantiate its allegations.

69 As for the assertion that the person responsible for the winning consortium received especially favourable treatment, it must be held that, here, too, the applicant has adduced no evidence to support that assertion.

70 In the light of all of the foregoing, the second plea must be rejected as unfounded.

71 The applicant submits, in essence, that the Commission did not fulfil its obligations under Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. The applicant maintains that DIGIT failed to notify it of the relative advantages of the successful tenderers for Lots 1A, 1B, 1C and 3 by not providing a full copy of the evaluation report and of those tenderers’ bids, thus failing to fulfil its obligation to state reasons. In addition, the applicant requests the Court to order production of the full evaluation report, including the comments relating to the successful tenderers and a copy of their tenders for each lot.

72 As a preliminary point, it should be borne in mind that 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. The Court’s review of the exercise of that discretion is therefore 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 T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33, and judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

73 It should also be observed that, where the Commission has a broad discretion, respect for the rights guaranteed by the legal order of the Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the Courts of the Union verify whether the factual and legal elements upon which the exercise of the discretion depends were present (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 72 above, paragraph 54; and Case T-89/07 VIP Car Solutions v Parliament [2009] ECR II-1403, paragraph 61).

74 It should also be borne in mind that the requirements to be satisfied by the statement of reasons must be assessed by reference to 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).

75 Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35; judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47; and VIP Car Solutions v Parliament, paragraph 73 above, paragraph 63).

76 In the case of 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 it must contain are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

77 It is clear from those provisions, and from this Court’s case-law, that 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, it provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the winning tender 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 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 72 above, paragraph 47).

78 It should also be pointed out that, if the institution concerned sends a letter in response to a request from an applicant seeking additional explanations concerning a decision before an action is brought but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate. Compliance with the duty to state reasons must be assessed in the light of the information available to the applicant at the time the action was brought (VIP Car Solutions v Parliament, paragraph 73 above, paragraph 73).

79 Likewise, it is settled case-law that the institution is not permitted to substitute an entirely new statement of reasons for the initial statement of reasons (see, to that effect, and by analogy, Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraphs 57 and 58; Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 72 above, paragraph 59; and VIP Car Solutions v Parliament, paragraph 73 above, paragraph 73). Thus, the fact that a third letter has been sent can be taken into account only where such a letter confirms the initial statement of reasons and is restricted to providing further details of the grounds on which the unsuccessful tenderer’s bid was rejected and the contract awarded to the successful tenderer, and not where the Commission sets out other considerations which go so far as to undermine the statement of reasons provided in the first two letters (see, to that effect, Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 72 above, paragraph 75). It must be pointed out in that regard that an institution’s responses to an unsuccessful tenderer’s requests can be taken into consideration as constituents of the grounds for the contested decision only in so far as they are based on points of fact and of law which existed at the date of that decision.

80 Such an approach satisfies the purpose of the obligation to state reasons laid down in Article 296 TFEU, according to which the reasoning followed by the authority which adopted the measure in question 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 review (Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 72 above, paragraph 48).

81 The applicant’s arguments must be examined in the light of the foregoing considerations.

82 In order to determine whether, in the present case, the obligation to state reasons laid down in Article 296 TFEU, the Financial Regulation and the Implementing Rules has been satisfied, the Court must examine not only the contested decision but also the letter of 30 July 2010 sent to the applicant in response to its express request of 16 July 2010 seeking additional information on the rejection of its bids.

83 First, in the contested decisions DIGIT informed the applicant that, in the light of the quality/price ratio of its bids, it had been classified in second place for Lots 1A and 1C and in third place for Lots 1B and 3. It also stated that the applicant could obtain additional information regarding its tenders.

84 Second, in its letter of 30 July 2010, the Commission sent the applicant the names of the successful tenderers, the marks obtained for each technical award criterion for all tenders, in the form of tables, the Evaluation Committee’s comments for the tenders of the tenderers placed higher than the applicant and also for the applicant’s tender, in the form of a table, a comparison of the applicant’s financial offer with those of the other tenderers placed higher than the applicant, in the form of a table, and also the calculation of the quality/price ratios for each lot. That information was presented in the form of a ‘Note for debriefing’ included in the evaluation report.

85 Third, by letter of 16 August 2010, DIGIT sent the applicant, in response to the applicant’s letter dated 30 July 2010, additional information concerning the undertakings classified in third place for Lots 1A and 1C.

86 Fourth, by letter of 20 August 2010, DIGIT sent the applicant, in response to the applicant’s letter dated 5 August 2010, the results of the technical evaluation for each question corresponding to the various award criteria, for the lots for which the applicant had tendered, so that the applicant could understand the strong points and the weak points of its tender.

87 Fifth, by letter of 14 September 2010, DIGIT informed the applicant that the awarding authority had reviewed the applicant’s requests and comments and had confirmed its initial award decision. DIGIT enclosed a note for the file containing, in particular, an assessment of the arguments raised by the applicant in connection with the evaluation of Lots 1A, 1B, 1C, 2 and 3.

88 In case the reasoning set out in the letters of 30 July and 16 and 20 August 2010 should be insufficient, it will be necessary to determine whether the letter of 14 September 2010 may also be taken into consideration for the purposes of assessing whether the decision to classify the applicant’s tender in third place contained a sufficient statement of reasons. It is permissible, in the present case, to take into account the comments made in the letter of 14 September 2010, in so far as they do not replace the initial reasons set out in the letters of 30 July and 16 and 20 August 2010 (see, to that effect, judgment of 9 September 2010 in Case T-387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

89 It should be observed that the Commission supplied the applicant with the names of the successful tenderers and the Evaluation Committee’s comments, for the tenders of the tenderers placed higher than the applicant and for the applicant’s tender, and also the outcome of the financial evaluation, enabling the applicant to know the characteristics and relative advantages of the other successful tenders, as required by Article 100(2) of the Financial Regulation. The technical comments enabled the applicant to compare its score, for each criterion in the tendering specifications, with that of the other tenderers placed higher than the applicant. Furthermore, it is clear from the detailed observations made by the applicant in its letter of 5 August 2010 that it was perfectly aware of the relative advantages of those tenderers.

90 In addition, it must be borne in mind that the decision to select the applicant’s tender in second place for Lots 1A and 1C and in third place for Lots 1B and 3 was taken at the end of the final evaluation, that is to say, after the calculation of the quality/price ratio of each tender. Accordingly, the relative advantages of the bids of the tenderers placed higher than the applicant by comparison with the applicant’s bid did not concern solely the scores obtained in relation to the award criteria, but also related to the price quoted and, in particular, the quality/price ratio of the tender. In those circumstances, by sending the applicant the findings - albeit general - concerning the technical evaluation of the tenders of the tenderers placed higher than the applicant, the price quoted in each tender and the detailed calculation of the quality-price ratio, the Commission sufficiently substantiated the relative advantages of the successful tender’s bid, without having to giving further explanations regarding the scores obtained by the successful tenderer in relation to each of the award criteria.

91 As regards the request to disclose the names of the members of the Evaluation Committee, there is nothing in Article 100(2) of the Financial Regulation to suggest that the Commission is required to do so. Nor does such disclosure form part of the additional information which tenderers may obtain under Article 149(3) of the Implementing Rules.

92 It must therefore be held that the decisions to classify the applicant’s tenders in second place for Lots 1A and 1C and in third place for Lots 1B and 3 are not vitiated by an insufficient statement of reasons. The third plea must therefore be rejected as unfounded.

4. Fourth plea, alleging breach of the principles of sound administration and equal treatment and of the rules regarding conflict of interest

93 The applicant maintains, in essence, that the Commission has breached the principles of sound administration and equal treatment, as laid down in Article 89 of the Financial Regulation, and the rules regarding conflict of interest, as set out in Articles 52 and 98 of the Financial Regulation and Article 145 of the Implementing Rules. The applicant refers in that regard to the numerous cases which it has brought before this Court against the institutions of the Union, to the fact that the Director-General of DIGIT has brought an action for defamation against the applicant before the Brussels (Belgium) courts and to the fact that the evaluation of tenders was carried out principally by DIGIT officials. In the applicant’s submission, the Commission ought to have taken specific measures to set up an impartial and objective Evaluation Committee and to ensure its fairness.

94 In the reply, the applicant claims that the Evaluation Committee was biased and favoured the winning consortium. The winning consortium revealed an irregular approach in its financial offer and presented the cost of the contract fictitiously in order to show a much lower cost. In the applicant’s submission, the contract awarded was implemented differently from the way in which it was defined in the tendering specifications and the winning consortium ‘poached’ experts from the other tenderers.

95 At the hearing, the Commission stated that measures had been taken in the present case to eliminate any appearance of bias, as the Director General of DIGIT had withdrawn from the Evaluation Committee.

96 It must be stated that the applicant merely makes general assertions, which are not substantiated or corroborated by any probative evidence whatsoever. Nor does the applicant demonstrate how all those alleged shortcomings on the part of the awarding authority led to a subjective evaluation of the tenders. It must therefore be concluded that that argument does not substantiate the present plea.

97 In the absence of probative evidence, the fourth plea must therefore be rejected as unfounded.

5. Fifth plea, alleging breach of Article 97 of the Financial Regulation and of Article 138 of the Implementing Rules

98 The applicant claims that the Commission infringed Article 97 of the Financial Regulation and Article 138 of the Implementing Rules by inserting imprecise and irregular award criteria in the tendering specifications. It maintains that the award criteria used adversely affect free and fair competition in a decisive fashion and do not constitute a suitable means of identifying the most economically advantageous tender.

99 It should be stated at the outset that it is apparent from the file that the applicant obtained the best technical evaluation among all tenderers which passed the selection stage for Lots 1A and 1C, in spite of the allegedly imprecise and irregular nature of the award criteria in the tendering specifications.

100 Under Article 97(1) of the Financial Regulation, the contracting authority is required to define the selection criteria and the award criteria in advance and to set them out in the tender documentation. That obligation, which consists in ensuring an appropriate level of publicity for the criteria and the conditions governing each contract, is set out in more 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.

101 It must be borne in mind that those provisions are intended to ensure compliance with the principles of equal treatment and transparency, enshrined in Article 89 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 and by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 90 to 92).

102 The purpose of those provisions is simply to allow all reasonably well informed and normally diligent tenderers to interpret both the selection criteria and the award criteria in the same way (see, to that effect and by analogy, Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 42) and, consequently, to have equality of opportunity in formulating the terms of their applications to participate or of their tenders (see, to that effect, as regards the candidate selection stage, Universale-Bau and Others, paragraph 101 above, paragraph 93, and, as regards the tender comparison stage, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 54).

103 Furthermore, it should be observed that, while it cannot be precluded that the operation of checking the suitability of contractors to provide the services which are the subject of the public contract to be awarded (selection of tenderers) and that of awarding the contract (selection of tenders) may take place simultaneously, it remains the case that those two operations are governed by different rules (see, by analogy, Beentjes, paragraph 101 above, paragraphs 15 and 16, and Case C-315/01 GAT [2003] ECR I-6351, paragraphs 59 and 60).

104 It is necessary to examine, in the light of the foregoing, the allegation that the award criteria defined in the tendering specifications were imprecise and irregular.

105 It should be observed that, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the Implementing Rules, the contract was to be awarded, in the present case, to the tender offering the best value for money (section 6.4 of the tendering specifications, see paragraph 9 above).

106 It should be borne in mind that, in order to ensure compliance with the principles of transparency, equal treatment and non-discrimination at the stage of selection of tenders for the award of a contract, Article 97(1) of the Financial Regulation imposes on the contracting authority, when the contract is to be awarded by the best-value-for-money procedure, the obligation to define and set out in the tendering specifications the award criteria against which the content of the tenders will be evaluated. Those criteria must, in accordance with Article 138(2) of the Implementing Rules, be justified by the subject of the contract. Under Article 138(3) of those rules, the contracting authority is also to specify, in the contract notice or in the specifications, the weighting which it will apply to each of the criteria selected for the purpose of determining best value for money.

107 None the less, those provisions leave to the contracting authority the choice of the award criteria against which the tenders will be evaluated. However, the aim of the award criteria which the contracting authority intends to adopt must, in all cases, be to identify the tender which offers the best value for money (see, to that effect, Case T-4/01 Renco v Council [2003] ECR II-171, paragraph 65, and Strabag Benelux v Council, paragraph 79 above, paragraphs 73 and 74).

108 In addition, the criteria adopted by the awarding authority in order to identify the tender which offers the best value for money need not necessarily be quantitative or related solely to prices. Even if award criteria which are not expressed in quantitative terms are included in the tendering specifications, they may be applied objectively and uniformly in order to compare the tenders and are clearly relevant for identifying the most economically advantageous tender (see, to that effect, Renco v Council, paragraph 107 above, paragraphs 67 and 68).

109 In the present case, it must be stated that the Commission mentioned, in section 6.3 of the tendering specifications, the award criteria which it proposed to use for the purpose of awarding the contract to the most economically advantageous tender. The tendering specifications also contained questionnaires relating to the technical evaluation of the tender for each lot, set out in Annex 1. The questions were set out in that annex for each award criterion.

110 First, as regards the claim that the questions relating to the award of each of the lots were misleading, the applicant refers, by way of example, to question 5.5.3 (concerning Lot 1), whereby tenderers were asked to explain ‘how they were taking into account in the definition of their price the replacement of staff’. In the applicant’s submission, such criteria were not intended to identify the most economically advantageous offer in the case of framework contracts, as tenderers are unaware of the precise nature of the services which they will be asked to supply, the time-limit, the percentage of the profiles of the experts, the percentage of the volume of delivery, etc. The Commission claims, in that respect, that replacements and the availability of staff were evaluated solely as a percentage, and not by volume, and the agreement of the level of service and service requirements defined the necessary conditions by reference to factors such as the handover between teams and the transfer of knowledge, allowing tenderers to make realistic estimates of the costs and the way in which certain factors should be taken into account when cost estimates were being drawn up. It follows that the applicant has not succeeded in showing how such a question could mislead tenderers.

111 Second, the applicant claims that the Commission applied inconsistent criteria with respect to different lots. It submits that tenderers were evaluated, in the context of Lot 1A, according to their approach to the overall management of services. In the context of Lots 1B and 1C, tenderers were evaluated according to their approach to the introductory period. It should be observed, however, as the Commission has correctly submitted, that the applicant does not show how the use of different questions in connection with the award criteria for the different lots constituted a breach of the principles concerned. In addition, it should be recalled that 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, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers’ (see judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89 and the case-law cited).

112 Third, the applicant asserts that the tendering specifications were deliberately vague, thus asking tenderers to proposed what they wished to propose. It must be concluded, however, that the applicant has adduced no evidence to support that assertion.

113 As concerns what is alleged to have been the belated communication of the fundamental modifications which, in the applicant’s submission, were made to the requirements of the tendering specifications, following the questions raised by certain tenderers, in the first place, it should be recalled that it is apparent upon reading the tendering specifications and the document entitled ‘Questions and answers’ that the requirements were not modified but were merely the subject of clarifications. In the second place, the answer to the request for clarification was communicated within the period of six days before the submission of tenders referred to in Article 141(2) of the Implementing Rules. The request was submitted on 26 November 2009 and the answer was sent on 4 December 2009; the answer was therefore communicated within five working days after the question had been submitted.

114 Consequently, it must be held that the tendering specifications, read with the clarifications provided in the document entitled ‘Questions and answers’, was sufficiently precise and relevant in that respect. Furthermore, it should be observed that, before submitting their respective offers, all potential tenderers had in their possession the useful information contained in that document.

115 It follows that the applicant has not shown that the awarding authority failed to fulfil its duty to define and specify, in the documentation relating to the call for tenders in question, the award criteria in compliance with the regulatory framework and the case-law principles set out, in particular, at paragraphs 101 to 103 above. Nor has it been established that the Evaluation Committee used the document entitled ‘Questions and answers’ in order to define new criteria during the evaluation procedure.

117 In the first place, the applicant maintains that the Commission made multiple manifest errors of assessment during the evaluation of the award criteria in connection with the call for tenders at issue. In that regard, the applicant disputes the evaluation of its offer against all the award criteria, which are listed at paragraph 8 above. It disputes the Evaluation Committee’s assessments concerning the responses, in its tender, to the questionnaires in the tendering specifications. The applicant’s comments are based on the information disclosed by the Evaluation Committee for each lot.

118 In the second place, as the questions examined by the Evaluation Committee are very technical, the applicant proposes that an expert, appointed by the Court, should assist the Court in relation to those questions.

119 As a preliminary point, it should be observed that, in the context of the present plea, alleging manifest errors of assessment by the Evaluation Committee in the assessment of the applicant’s tender, the applicant has relied on a number of occasions on a failure to state reasons, emphasising that the Evaluation Committee had not answered certain questions raised by the applicant and that the Evaluation Committee’s comments contained limited information.

120 It should be borne in mind that it follows from the analysis of the third plea (see paragraphs 72 to 92 above and, in particular, paragraphs 82 to 91) that the Commission did meet the requirements set out in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules. Consequently, for the reasons stated in those paragraphs, the arguments relating to the insufficiency of the statement of reasons, which, moreover, ought not to be raised in a plea alleging manifest errors of assessment (see paragraph 75 above), can only be rejected.

121 In addition, it should be borne in mind that, according to consistent 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. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see Case T-250/05 Evropaïki Dynamiki v Commission, paragraph 111 above, paragraph 89 and the case-law cited).

122 In the present case, it is apparent from the tender notice and the tendering specifications that the contract was awarded to the three tenders that offered the best value for money, in accordance with Article 97(2) of the Financial Regulation.

a) Lot 1A: Development expertise in database management systems, application servers and related tools

123 The applicant asserts that the Commission has not explained why it did not obtain maximum points for award criteria 1 to 3, when the assessment contained no negative comment.

124 It should be observed, in that regard, that the fact that the applicant did not obtain maximum points, with no particular negative comment being made, does not mean that its response ought to have obtained maximum points. In this case, the Evaluation Committee made the following comments:

- award criterion 1: ‘Overall management well organised and corresponding to the needs’;

- award criterion 2: ‘The proposal covers well the requirements for the ordering of the services’;

- award criterion 3: ‘The quality of the proposal for the follow-up of the execution (including services to staff) is good’.

125 It must be stated that it is not apparent from those comments that the applicant’s answers were perfect and deserving of the best possible assessment. It is sufficient, moreover, to observe, as the Commission has stated, that the Evaluation Committee’s assessment corresponded to a general assessment of the tender, each point not necessarily corresponding to a specific comment. The Evaluation Committee did not intend, nor was it its role, to prepare a perfect answer, with points being deducted for each error in the tenders; what it did was to award a score corresponding to the general quality of the tender.

- Question 5.4.1.2 : ‘In line with the description of the lot and the profiles in the service requirements, give your global analysis of the perspectives and evolutions during the next 4 years on the business intelligence systems’

- the Evaluation Committee was not justified in considering that the applicant’s tender was incomplete;

- the Evaluation Committee was unwilling to accept that the applications and models described in the applicant’s tender were wholly consistent with the requirements of the call for tenders;

- the Evaluation Committee was not justified in considering that the applicant’s tender displayed structural defects.

127 As regards the first complaint, it follows both from the ‘Note for debriefing’ annexed to DIGIT’s letter of 30 July 2010 and from the note for the file annexed to DIGIT’s letter of 14 September 2010 that in the Commission’s view ‘The analysis [was] estimated not complete for instance on the component based architecture and integration aspects’.

128 The applicant asserts that its response to question 5.4.1.2 clearly indicates that ‘[c]omponent based system development based on [a] variety of quality open source products which are offered with commercial support and are open for flexible adaption and community support is a trend which will be growing in a close future’.

129 It should be observed that the passage identified by the applicant relates to the description of the technological applications and contains no other text presenting the real analysis required by question 5.4.1.2.

130 As regards the second complaint, the applicant acknowledges that ‘section 3 addresses in particular … a component-based development and integration approach’.

131 It should be observed that, as the Commission states, section 3, as presented by the applicant, provided information about a component-based development and integration approach, but provided no analysis of the perspectives and evolutions requested.

132 As regards the third complaint, it should be observed that the applicant used more than three pages, contrary to the instructions for the technical evaluation, which stated that ‘[t]he length of the response to each individual question should be between 1 and 3 pages (excluding examples that [could] be given in annex)’.

133 It is apparent from series 3 in the document entitled ‘Questions and answers’, and more particularly from the answer to question 3.12, that that requirement had been explained in detail.

- Question 5.4.1.3: ‘In line with the description of the lot and the profiles in the service requirements, give your analysis of the perspectives and evolutions during the next 4 years on the statistical information systems’

134 The applicant claims, with respect to the Evaluation Committee’s comment, that the use of the word ‘fully’ should be accompanied by a description of ‘what [was] allegedly missing’.

135 It is apparent from the note for the file that the Commission was of the view that ‘[i]mportant aspects like the collaboration, integration and event driven approach [were] not fully developed in the response’.

136 It must be stated that the applicant’s response did not relate sufficiently to the collaboration, integration and event-driven approach, which were regarded as important for the development of applications. The role of SOA (Service Oriented Architecture) was not mentioned, although it had been asked for in the question, which related to new application development methods.

- Question 5.4.2: ‘Give in order of priority what you consider the 10 most important technological points that will influence this lot in the next 4 years. For each of [these] points, explain how you take it into account in your offer of services for this lot’

137 The applicant claims, in essence, that its tender was consistent with the tendering specifications and disputes the Evaluation Committee’s comments, referring to certain passages in its tender.

138 It should be observed that, by question 5.4.2, tenderers were asked, first of all, to identify the technological points and then to explain how those points would be taken into account in their tenders.

139 By letter of 5 August 2010, the Commission informed the applicant that the Evaluation Committee’s comment on that question was as follows:

‘In the response to question 5.4.2, no response is given on how the tenderer’s offer of services for the lot takes into account the mentioned technological points in [its] offer.’

140 It is also apparent from the note for the file that ‘[t]he tenderer’s response present[ed] the way that the technological points and their order of priority ha[d] been set up, but not the means taken by the tenderer to offer the services related to each of these technological points’.

141 The applicant asserts that the Commission could have established how it proposed to take the technological points into account in its tender if it had referred to chapter 3.1 of the annex to question 5.4.2, to chapters 2.1 and 2.10, to the table in chapter 3.2 and to chapter 5.4.1.

142 It should be observed, on that point, that the Commission cannot be expected to endeavour to assemble scattered information in order to obtain complete responses and that the applicant has not complied with the instructions given in the technical assessment.

143 As regards question 5.5.1 (‘Explain how you take into account the overall management of the contract in your prices. You may consider as a basis a number of 1 000 requests per year with some periods of peak and 500 specific contracts per year’), first, the applicant asserts that it was not clear from the tendering specifications that it was necessary to provide details of the individual costs for each of the aspects taken into account in the calculation of the final rate proposed per profile or the calculation method within that rate. Second, it maintains that the Evaluation Committee’s interpretation of the tendering specifications was incorrect.

144 According to the ‘Note for debriefing’, ‘[t]he proposal [was] acceptable, but few details on the calculation of the figures [were] given’.

145 It is apparent from the note for the file that the determination of the rates attributed to contract management (7%), training costs (3%) and backup and replacement costs (2%) was not analysed in sufficient detail.

146 The second sentence of question 5.5.1 clearly asked tenderers to explain their prices. Furthermore, the Commission did not ask the applicant for excessive details that were impossible to achieve. It merely asked the applicant to justify the figures of the individual costs which the applicant had quoted.

147 The applicant claims that the information about the calculation of costs was provided in section 4 of its response, entitled ‘Overall contract management attribution to proposed daily rates’. It is apparent from the note for the file that section 4 was indeed recognised as a source of information and was analysed by DIGIT, which referred to it as follows: ‘[t]he tenderer’s response to … question 5.5.1 mentions (in [section] 4 “Overall contract management attribution to proposed daily rates”) …’.

148 As for the costs of backup staff and replacements, the applicant claims that the information is provided in sections 2.1 and 2.6 of the response to question 5.5.3 and in section 3, entitled ‘Replacement costs attribution to proposed daily rates’.

149 The Commission contends that the applicant acknowledges that, instead of providing information about the actual calculation requested, it referred to resources to be applied under the framework contract and to factors capable of affecting the calculation of the costs associated with overall management, training, backup staff and replacements. For question 5.5.4 the applicant supplied a table containing elements of detailed costs.

150 It is clear from the file that the way in which the applicant arrived at the percentages referred to at paragraph 146 above is not detailed in the tender. No clear link is established between the analysis and the historical data, on the one hand, and the level of value proposed, on the other, which clearly shows that the applicant did not provide a full explanation, as requested.

151 Accordingly, it must be concluded that the assessment of the tender with respect to Lot 1A by reference to award criteria 1 to 5 did not give rise to any manifest error of assessment by the Commission.

b) Lot 1B: Development expertise in document and content management and GIS tools

152 The applicant states that the arguments relating to award criteria 1 to 3 are the same as the corresponding arguments concerning Lot 1A. The applicant disputes the Commission’s statement that no negative comment was made in respect of its responses.

153 It should be recalled that the fact that the applicant did not obtain maximum points without any particular negative comment being made does not mean that its response should obtain maximum points (see paragraph 124 above). In this instance, the Evaluation Committee made, in essence, the following comments:

154 It should be stated, first of all, that it does not follow from those comments that the applicant’s responses were perfect and deserved the best possible assessment. Next, it is sufficient to observe, as the Commission submits, that the Evaluation Committee’s assessments corresponded to a general assessment of the tender, each section not necessarily corresponding to a given comment. The Evaluation Committee did not intend, nor was it its role, to prepare a perfect response, with points being deducted for each error in the tenders; what it did was to award a score corresponding to the general quality of the tender (see paragraph 125 above).

155 As regards question 5.4.1.5, the applicant asserts that ‘the [Commission] failed to provide explanations regarding its Evaluation Committee’s evaluation as confronted with the applicant’s comments in its letter of [5 August 2010]’.

156 It should be borne in mind that, in that letter, the applicant made the following comment on the assessment of the tender with respect to Lot 1B:

‘No negative comments. Our tender ranked first in this criterion. However, the extracts of the evaluation report do not contain sufficient explanations justifying the difference in ranking with the other tenders.’

157 According to the note for the file, the tenderer’s response gave a general description of the functionalities of the product, but the specific analysis of possible evolutions in the domain of the products and tools was missing.

158 It should be borne in mind, for the sake of completeness, that the Court found, when examining the third plea, that the Commission had stated to the requisite legal standard its reasons for rejecting the applicant’s tender for this lot and also the relative advantages of the winning tenders and had met the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

159 The applicant disputes, in essence, two elements of the assessment of its response to questions 5.5.1 to 5.5.4.

160 In the first place, it claims that the Evaluation Committee made a vague comment by using the expression ‘quite acceptable’. It follows from the ‘note for debriefing’ that the sentence immediately after that assessment states that ‘[f]ew details on the calculation of the figures are given’, which is sufficient to show that the Evaluation Committee’s decision is well founded.

161 In the second place, the applicant disputes that last finding of the Evaluation Committee and refers, for details of the calculations, to other documents in its tender. It should be observed that that approach is contrary to the instructions given for the technical assessment. Furthermore, as the Commission correctly submits, the applicant mentions no specific calculation that was not taken into account by the Evaluation Committee.

162 Consequently, the Commission did not make a manifest error of assessment when assessing the implementation of award criterion 5.

163 Accordingly, it must be concluded that the assessment of the tender in relation to Lot 1B with respect to award criteria 1 to 5 gave rise to no manifest error of assessment on the part of the Commission.

c) Lot 1C: Development expertise in data warehouse, reporting and statistical tools

164 The applicant asserts that the arguments relating to award criteria 1, 3 and 4 are the same as the corresponding arguments concerning Lot 1A.

165 As regards the arguments relating to criteria 1 and 3, it should be borne in mind that the fact that the applicant did not obtain maximum points without any particular negative comment being made does not mean that its response ought to have obtained maximum points (see paragraph 124 above). In this instance, the Evaluation Committee made, in essence, the following comments:

- award criterion 1: ‘[g]lobally good proposal … [t]he localisations of the management are not given’;

166 First, it must be stated that it is not apparent from those comments that the applicant’s answers were perfect and deserving of the best possible assessment. Second, it is sufficient to observe, as the Commission has stated, that the Evaluation Committee’s assessment corresponded to a general assessment of the tender, each point not necessarily corresponding to a specific comment. The Evaluation Committee did not intend, nor was it its role, to prepare a perfect answer, with points being deducted for each error in the tenders; what it did was to award a score corresponding to the general quality of the tender (see paragraph 125 above).

167 As regards the arguments relating to criterion 4, reference should be made to the assessment set out at paragraphs 127 to 142 above concerning Lot 1A.

168 As regards question 5.2.2 (‘what particular attention will you give to assure that your staff available for the contract has skills corresponding to the domain of the lot?’), according to the note for the file, ‘the technologies referred [to] in the response [were] clearly corresponding to another lot (e.g. Lot 1B) and [were] out of the scope of Lot 1C’.

169 The applicant claims that ‘the [Commission] failed to identify any negative point’ and ‘decided to blame the tender because some indicative technologies [had been] presented in the context of an example in order to illustrate the proposed approach’. The applicant concludes that ‘the [Evaluation Committee] should evaluate the tender on the reply to the question [as a] whole, and not on the content of an indicative example’.

170 The Commission claims that the applicant again failed to comply with the instructions for the technical evaluation, according to which the answers were to be clear, precise and specific to the question and the lot.

171 Such an assessment must be considered to be correct, since the answer to question 5.2.2, relating to Lot 1C, is the same as the answer to the same question relating to Lot 1B.

172 It should be borne in mind that Lot 1B concerned development expertise in document and content management and GIS tools and that Lot 1C concerned development expertise in data warehouse, reporting and statistical tools.

173 By giving a standard response, the applicant has therefore not given a precise answer specific to the lot, as the Commission has correctly stated.

174 It is apparent from the ‘note for debriefing’ that the Evaluation Committee assessed the fifth award criterion as follows:

‘The proposal is globally acceptable. However the figures on which the analysis of the overall management is based are incorrect and the details of the calculation are not provided.’

175 As regards question 5.5.1 (‘Explain how you will take into account the overall management of the contract in your prices. You may consider a number of 200 requests per year and a number of 150 specific contracts per year’), the applicant claims that the Evaluation Committee’s comment is unfounded. The Evaluation Committee did not study the applicant’s tender, since it failed to take into account annex 1 to the tenderer’s response to question 5.5.1, chapter 6 (annex to document 5.1.1 of the tender) and documents 5.5.2 to 5.5.4.

176 First of all, the Commission observes that, if the applicant is to be believed, the Evaluation Committee was again required to gather scattered elements in order to find the supposedly useful information that should enable it to find a complete answer to that question. Next, the Commission emphasises that the applicant merely reproduced its answers to other lots. Last, in the Commission’s submission, the applicant used 1 000 requests per year instead of 200 and 500 contracts instead of 150, contrary to the figures stated in question 5.5.1.

177 It should be observed that, as each question was to be evaluated separately, the Commission was therefore unable to take into account information provided in the answers to other questions in order to determine whether the answer to question 5.5.1 was sufficient.

178 Furthermore, it is apparent from the applicant’s answer that, as the Commission correctly claims, the applicant in fact reproduced its answer to another lot, more specifically Lot 1A. It should be noted that even the question as such was copied by the applicant.

179 Consequently, it must be concluded that the assessment of the tender in relation to Lot 1C by reference to award criteria 1 to 5 gave rise to no manifest error of assessment by the Commission.

180 The applicant states that the arguments relating to award criteria 1 and 3 are the same as the corresponding arguments concerning Lot 1A.

181 It should therefore be recalled that the fact that the applicant did not obtain maximum points without any particular negative comment being made does not mean that its response ought to have obtained maximum points (see paragraph 124 above). In this instance, the Evaluation Committee made, in essence, the following comments:

182 First, it must be stated that it is not apparent from those comments that the applicant’s answers were perfect and deserving of the best possible assessment. Second, it is sufficient to observe, as the Commission has stated, that the Evaluation Committee’s assessment corresponded to a general assessment of the tender, each point not necessarily corresponding to a specific comment. The Evaluation Committee did not intend, nor was it its role, to prepare a perfect answer, with points being deducted for each error in the tenders; what it did was to award a score corresponding to the general quality of the tender (see paragraph 125 above).

- Question 5.2.4: ‘Based on the example “Lot 3 - example FP” in annex describe the structure and contents of the proposals that you will submit to the Commission. A practical proposal based on the example has to be given as illustration’

183 The applicant puts forward, in essence, two complaints. First of all, it maintains that ‘[t]he Commission claims unfoundedly that the applicant’s tender describe[d] in chapter 4.1 the profiles and the needed skills, but not the structure of the team’. In the applicant’s submission, the structure of the team corresponded to the profiles described in chapter 4.1. Next, the applicant claims that ‘[t]he [Commission] claims … unfoundedly that chapter 4.2.1 detail[ed] the project management work package and responsibilities, without presenting the structure of the team to be involved in the project’. Last, the applicant asserts that it is clear on reading together chapters 4.2 and 5, concerning the ‘Project workload’, which deals with ‘the effort to be allocated to each one of the profiles to be involved per work package’, that its tender was wholly compliant with the tendering specifications.

184 According to the ‘note for debriefing’, the content of the fixed price proposal was detailed. According to the Evaluation Committee, however, the example in the annex provided no indication of the structure of the team, with the roles and responsibilities of each person.

185 It is apparent from the note for the file that, although sections 4.1, 4.2 and 5 of the applicant’s response contains some information on profiles, the level of expertise and the qualifications of each member of the team, the roles and responsibilities of the members of the team and the estimated workload, there is no mention of the actual structure of the team, as, in particular, the tender contains no description of how the team will be structured and organised in order to deliver the requested work.

186 It is apparent on reading section 4.1 of the tendering specification that the team was to be composed of the following profiles: Senior Consultant (level 4); Consultant (level 3) and Architect (level 3). However, that section did not specify the precise number of persons corresponding to those profiles that should form part of the team. Nor does section 4.2 provide greater clarification on that point. However, it is clear from section 4.2.1 that ‘a Senior IS Consultant [was to] act as project manager 3’, while section 5 reveals not only the precise number of persons necessary to form a team but also the existence of another profile, namely that of ‘Tester’ (level 3). It follows from the foregoing that a team was to include four persons, namely a Senior Consultant (level 4), a Consultant (level 3), an Architect (level 3) and a ‘Tester’ (level 3).

187 As for the roles and responsibilities of the various individuals, it must be concluded that the applicant’s response gave only a description of the profiles, without specifying the specific tasks which it proposed to entrust to each member of the team.

188 It must therefore be concluded that the Commission did not make a manifest error of assessment in considering that the allocation of tasks supplied by the applicant did not present the structure of the team, with a description of the roles and responsibilities of each member.

- Question 5.2.5: ‘Based on the example “lot 3 - example QTM” in annex describe the structure and contents of the proposals that you will submit to the Commission. A practical proposal based on the example has to be given as illustration’

189 The applicant puts forward, in essence, two pleas. First, it claims that the initial answer of the response was amended following the clarifications provided by the applicant and that DIGIT penalised its tender because it was confused. Second, the applicant claims that ‘[the Commission’s] comment introduced a posteriori ([that is to say] that the level of expertise should be mentioned in the workload), is once more wrong’, since it introduces a requirement not specified elsewhere in the tendering specifications.

190 According to the ‘note for debriefing’, the Evaluation Committee expressed the following opinion:

‘… In the example in annex, the structure of the team with roles and responsibilities is missing. Referring to the QTM proposal, only one level of specific expertise is defined in the specifications of the lot for FP/QTM work.’

191 It is apparent from the note for the file that the Evaluation Committee made the following comment:

‘… The correspondence of the expertise levels is not clear in the example: level 3 is proposed for all profiles detailed in … chapter [3] and no level is indicated in the project workload (chapter 5). To avoid any confusion, the normal or expert levels should have been mentioned in the project workload as well’.

192 The Commission maintains that the use of the expression ‘[t]o avoid any confusion’, which was interpreted by the applicant as meaning that DIGIT was confused, results from the finding that the applicant’s references relating to the profiles were incoherent and in fact a source of confusion. In those circumstances, it must be concluded that no additional requirement was imposed.

193 As regards the argument that a requirement not specified elsewhere in the tendering specifications was introduced by DIGIT when it demanded specification of the levels of expertise of the profiles, it must be observed that, contrary to its answer to the preceding question, the applicant did not insert an introductory sentence relating to the structure of the team, setting out the profiles and also their levels. In addition, the applicant once again failed to specify the precise number of persons necessary to form the different teams that would be involved.

194 It must be concluded that the applicant’s allegations therefore do not show that DIGIT’s assessment was vitiated by a manifest error of assessment.

195 In the light of all of the foregoing, DIGIT did not make a manifest error of assessment when evaluating the tender with respect to award criterion 2.

196 The applicant disputes the general comment on all the answers to question 5.4.1 and asserts that the evaluation of its response was flawed. It takes the view that its tender described in detail the best practices to be followed, the best set of tools to be used and the way in which they would be applied to the provision of the service. Nor can DIGIT justify its negative assessment, as it did not specify precisely what was missing from the applicant’s analysis and did not base its assessment on precise criteria.

197 It is clear from the Evaluation Committee’s comments that the applicant’s responses to Questions 5.4.1 consisted mainly in describing the current situations, without sufficiently analysing them, and revealed weaknesses with respect to the offer of services and skills in the domains of the lot. The applicant thus failed to cover, for example, best practices of quality management, a reals analysis of information system security, developments relating to compliance with RUP (Rational Unified Process) and CEAF (Commission Enterprise IT Architecture Framework), an analysis of current evolutions for skills - like SOA - or a presentation of the specific tools and methodologies.

198 Consequently, the applicant did not respond in full to the questions and did not sufficiently develop its offer of services in the domain in question. Nor did it provide a global analysis of perspectives and evolutions, contrary to its assertion.

199 Although the applicant’s response to question 5.4.1.1 does in fact contain a paragraph ‘taking evolutions in the offer of service into consideration’, that response none the less makes no reference to profiles. Nor does that part appear in the responses to questions 5.4.1.2 to 5.4.1.4.

200 The first sentence of the applicant’s response to question 5.4.1.5 reads as follows: ‘We present below a short account of the technical skills and qualifications required for the profiles of this lot.’ That sentence summarises and illustrates the applicant’s response, which was evaluated as presenting an insufficient analysis of the perspectives and current evolutions. The applicant provided a brief statement, descriptive and lacking in any analysis, which did not sufficiently answer the question.

201 The same applied to the first sentence of the applicant’s response to 5.4.1.6, which reads as follows: ‘We present below a short account of the methodologies and tools used for delivery of he studies requested under this lot.’ Just like the answer to question 5.4.1.5, that answer contained no analysis.

202 The Evaluation Committee’s comments concerning the absence of any analysis are, in the circumstances, justified. The Commission cannot therefore be criticised for any error of assessment in the context of the assessment of criterion 4.

203 According to the ‘Note for debriefing’, the applicant’s offer was acceptable. However, few details of the calculations were given. That note also stated that there were some errors in the responses, in particular an incorrect reference to a different lot.

204 According to the note for the file, the answers to questions 5.5.1 to 5.5.3 did not give the details of the calculations.

205 It should be noted that questions 5.5.1 to 5.5.4 are very similar as concerns Lots 1A, 1B, 1C and 3. In the present case, it must be stated that the same percentages were proposed by the applicant, irrespective of the volumes and workloads mentioned in the relevant questions and without any explanation of how those calculations were made. The applicant cannot therefore claim that its tender was consistent with the tendering specifications.

206 Accordingly, it must be concluded that the Commission did not make a manifest error of assessment with respect to award criterion 5.

207 It follows from all of the foregoing considerations that the sixth plea must be rejected as unfounded.

208 The Commission is opposed to the applicant’s request for the appointment of an expert.

209 As regards the extent of the Court’s review in such matters, it should be borne in mind that, according to settled case-law, the Commission enjoys 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, and that review by the Court must be limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and the absence of a manifest error of assessment or misuse of powers (Tideland Signal v Commission, paragraph 72 above, paragraph 33; Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 72 above, paragraph 45; and judgment of 3 March 2011 in Case T-589/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 24).

210 In those circumstances, the applicant’s request for the appointment of an expert must be rejected.

211 Since the applicant has been unsuccessful in all of its pleas relating to the decision to reject its tender, the application for annulment of that decision must be dismissed.

212 As regards application for annulment of the decisions awarding the contract to the tenderers classified in first and second places, it must be rejected following the dismissal of the application for annulment of the preceding decision, to which it is closely linked (Case T-406/06 Evropaïki Dynamiki v Commission, paragraph 75 above, paragraph 120).

213 In the first place, in the event that the Court should consider that the Commission has infringed the Financial Regulation or breached the principles of transparency and equal treatment, the applicant submits a claim for damages in the amount of EUR 242 million, namely EUR 122 million for Lot 1A, EUR 40 million for Lot 1B, EUR 30 million for Lot 1C and EUR 50 million for Lot 3, which corresponds to the gross profit, namely 50%, that would have resulted from the award procedure in question if it had been classified in first place. It bases its claim on Articles 268 TFEU and 340 TFEU.

214 In the second place, the applicant claims damages in the amount of EUR 24 200 000 corresponding to loss of opportunity and damage to its reputation and credibility.

215 In accordance with settled case-law, for the Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its entirety, without there being any need to examine the other conditions (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraphs 19 and 81).

216 It is therefore necessary to consider whether those conditions are satisfied.

217 In the present case, all the arguments which the applicant has put forward in order to demonstrate the unlawfulness of the contested decision have been examined and rejected.

218 It is clear from the conclusions reached in relation to the application for annulment that the applicant has failed to prove unlawful conduct on the part of the Commission.

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

221 The applicant requests the Court to adopt measures of organisation of procedure ordering production of the entire evaluation report, including the comments on the successful tenderers, and also a copy of their tenders. However, since those documents would not in any event call into question the examination carried out above, that request must be refused.

222 The applicant requests that, even if the Court should dismiss the action, the Commission should be ordered to pay the costs, on the basis of the second subparagraph of Article 87(3) of the Rules of Procedure. It submits that the flawed evaluation of its tender, the failure to state the reasons for that evaluation, the failure by DIGIT to respond to the applicant’s administrative requests and the accompanying observations and to inform it of the outcome of the internal evaluations forced the applicant to bring the present action. The Commission should therefore be ordered to pay all the costs of these proceedings.

224 It should be borne in mind that, under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the first subparagraph of Article 87(3) of those Rules, the Court may, where the circumstances are exceptional, order that the costs be shared.

225 In the present case, it was found that all of the pleas must be rejected as unfounded. Furthermore, there is no other reason, in particular those set out in the second subparagraph of Article 87(3) of the Rules of Procedure, why the Court should depart from the abovementioned rule in Article 87(2) of the Rules of Procedure.

226 Consequently, since the applicant has been unsuccessful in all of its claims, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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

2. Second plea, alleging infringement of Articles 106 and 107 of the Financial Regulation, breach of the tendering specifications and breach of the principles of non-discrimination and transparency

4. Fourth plea, alleging breach of the principles of sound administration and equal treatment and of the rules regarding conflict of interest

5. Fifth plea, alleging breach of Article 97 of the Financial Regulation and of Article 138 of the Implementing Rules

a) Lot 1A: Development expertise in database management systems, application servers and related tools

b) Lot 1B: Development expertise in document and content management and GIS tools

c) Lot 1C: Development expertise in data warehouse, reporting and statistical tools

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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 Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission [2013] EUECJ T-474/10 (15 October 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/T47410.html Cite as: [2013] EUECJ T-474/10, ECLI:EU:T:2013:528, EU:T:2013:528

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