Computer Resources International (Luxembourg) v Commission (Judgment) [2014] EUECJ T-422/11 (05 November 2014)

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(Public service contracts — Tendering procedure — Provision of computer services for software development and maintenance, consultancy and assistance for different types of information technology applications — Rejection of a tenderer’s bid — Abnormally low tender — Article 139(1) of Regulation (EC, Euratom) No 2342/2002 — Obligation to state reasons — Choice of legal basis — Misuse of powers)

Computer Resources International (Luxembourg) SA, established in Dommeldange (Luxembourg), represented by S. Pappas, lawyer,

European Commission, represented initially by S. Delaude and D. Calciu, and subsequently by S. Delaude, acting as Agents, assisted by E. Petritsi, lawyer,

APPLICATION for annulment of the decision of the Publications Office of the European Union of 22 July 2011 not to accept the tenders submitted by the consortium formed by the applicant and another company for Lots Nos 1 and 3 in tendering procedure AO 10340, concerning the provision of computer services for software development and maintenance, consultancy and assistance for different types of information technology (OJ 2011/S 66-106099), and to award the framework contracts to other tenderers,

composed of O. Czúcz, acting as President, I. Pelikánová and A. Popescu (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 25 June 2014,

1 By a contract notice of 5 April 2011, published in the Supplement to the Official Journal of the European Union (OJ 2011/S 66-106099), with a corrigendum published in the Official Journal (JO 2011/S 70-113065), the Publications Office of the European Union (PO) launched call for tenders AO 10340 (‘Computer services for software development and maintenance, consultancy and assistance for different types of information technology applications’).

2 According to the contract notice, the computer services at issue were divided into four lots: the two concerned by the present action are Lot No 1 concerning ‘[the] support and [the] specialised administrative applications’ and Lot No 3 concerning the ‘production and reception chains’.

3 The purpose of the call for tenders was to establish, for each of those lots, new service framework contracts designed to replace the framework contracts due to expire. In the tender specifications, the PO had stated that, for each lot, the tenderers were selected according to the ‘cascade mechanism’ and that framework contracts would be signed, for a period of four years, with the tenderers who submitted the three economically most advantageous tenders classified according to their value for money.

4 The contract notice and the tender specifications provided that, for each lot, the tenders would be assessed on the basis of the criteria set out in the tender specifications. Each tender was to be evaluated in order to determine the extent to which it satisfied the stated requirements, the three successful tenders being those which represented the best value for money. Quality, namely the technical evaluation, counted for 50% and price, namely the financial evaluation, counted for 50% (section 2.9 of the tender specifications).

5 The applicant, Computer Resources International (Luxembourg) SA, and Intrasoft International SA, acting together as a consortium (‘the consortium’), submitted tenders for Lots Nos 1 and 3 (‘the applicant’s tenders’).

6 On 27 June 2011, the PO sent a request for information to the applicant, on behalf of the consortium, in which it asked the applicant to explain how the price per man-day had been calculated in its financial tenders. The question had been sent in connection with the review of that price, which the PO indicated could be considered as abnormally low within the meaning of Article 139 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1; ‘the Implementing Rules’).

7 On 29 June 2011, the applicant, as the representative of the consortium, responded to the PO’s request for information of 27 June 2011 (‘the response of 29 June 2011’) by stating that the price per man-day in its tenders could be explained by the consortium’s internal organisation and the optimisation of the balance between the consortium’s activities in Luxembourg and those in Romania. The applicant also stated that the consortium had complied with both Luxembourg and Romanian employment law, in particular with regard to the minimum salary. The applicant added that, as regards the consortium’s activities in Romania, given the four-year length of the contract, the minimum salary had been doubled in order to take into account the inflation in that Member State. Moreover, the applicant provided to the PO detailed information as regards the compliance, in its tenders, with the two national employment laws.

8 By letter of 22 July 2011 (‘the contested decision’), the PO informed the applicant, as the representative of the consortium, first, that its tenders for Lots Nos 1 and 3 had been rejected as abnormally low and, second, of the name of the successful tenderers. The PO also indicated that the consortium could obtain additional information concerning the rejection of its tenders.

9 By letter of 25 July 2011, the applicant informed the PO that it disagreed with the contested decision and requested a number of clarifications, inter alia, concerning the criteria on the basis of which its tenders had been considered to be abnormally low. The applicant also asked the PO to send it, for Lots Nos 1 and 3, the technical evaluations of its tenders and those of the tenderers retained according to the ‘cascade mechanism’, as well as the scores awarded to those tenders. Moreover, the applicant requested confirmation that the ‘abnormally low offer [concerned] only the Extra-Muros pricing, [namely the prices of the services to be provided outside the premises of the PO,] as the Intra-Muros prices, [namely the prices of the services to be provided on the premises of the PO, were] the same as those [which had been] offered and accepted’ in the tenders submitted within the context of previous tendering procedures and which had been accepted by the contracting authority. Lastly, the applicant claimed that its average extra-muros prices in the present tendering procedure were higher than average prices offered in a previous tendering procedure, which had not been rejected as abnormally low.

10 On 27 July 2011, the PO rejected those objections and sent to the applicant extracts from the evaluation report, one of which contained the reasons why its tenders had been considered to be abnormally low because of their price. According to that extract, the clarifications provided by the applicant, as the representative of the consortium, in the response of 29 June 2011 (‘the clarifications provided on 29 June 2011’), concerning the provision of services and also the staff localisation in Romania, were at variance with its tenders and, as a consequence, could not be accepted. The other extracts from the evaluation report included information on the evaluation of the applicant’s tenders and those of the successful tenderers. Moreover, the PO took the view that the applicant’s tenders could not be compared with other tenders made during previous calls for tenders and that, in any event, certain comparisons made by the applicant were incorrect.

11 By application lodged at the Court Registry on 5 August 2011, the applicant brought the present action.

12 By separate document, lodged at the Court Registry on the same day, the applicant made a request for interim measures pursuant to Article 104(2) of the Rules of Procedure of the General Court.

13 Since the European Commission and the PO confirmed, at the request of the Court Registry, that the Commission should be regarded as the only defendant in the case, the Court (Second Chamber), by decision of 28 September 2011, approved the correction of the name of the defendant.

14 By order of 5 October 2011 in Computer Resources International (Luxembourg), T‑422/11 R (EU:T:2011:566), the President of the Court dismissed the applicant’s request for interim measures on the ground that it had not shown that it would suffer serious and irreparable harm in the absence of the interim relief requested.

15 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Ninth Chamber, to which the present case was, accordingly, allocated.

16 Acting upon a report of the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral procedure. Since a member of the Ninth Chamber was prevented from sitting, the President of the Court designated, pursuant to Article 32(3) of the Rules of Procedure, another judge to complete the Chamber. The parties presented oral argument and answered the questions put by the Court at the hearing on 25 June 2014.

19 In support of its application, the applicant puts forward three pleas in law alleging, first, infringement of an essential procedural requirement, second, infringement of the applicable procedure and, third, misuse of power or incorrect legal basis.

20 As a preliminary point, it should be noted that the PO has a broad discretion in assessing the factors to be taken into account for the purposes of deciding to award a contract following an invitation to tender and that the Court’s review must be limited to checking that the rules governing the procedure and statement of reasons have been complied with, that the facts are correct and that there has been no manifest error of assessment or misuse of powers (see, to that effect, judgment of 13 December 2011 in Evropaïki Dynamiki v Commission, T‑377/07, EU:T:2011:731, paragraph 22 and the case-law cited).

21 The applicant claims that, under Article 139 of the Implementing Rules, specific reasoning must be provided in cases where a tender is rejected on the ground that the price offered in that tender is abnormally low and the reasoning must flow from the specific ground on which the rejection is based. The contested decision does not contain any reasoning relating to the specific grounds which the contracting authority took into account when concluding that the applicant’s tenders were abnormally low. Accordingly, the contested decision fails to satisfy an essential procedural requirement, as that gap cannot be filled by reference to other documents.

23 It must be understood that, by this plea, the applicant alleges, in essence, a breach of the obligation to state reasons for the contested decision.

24 It should be noted that where, as in the present case, the EU institutions have broad powers of appraisal, respect for the rights guaranteed by the legal order of the European 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 European Union judicature verify whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, judgment of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, T‑465/04, EU:T:2008:324, paragraph 54).

25 In procedures for the award of public contracts, Article 100(2) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and Article 149 of the Implementing Rules determine the content of the obligation to state reasons which the contracting authority has towards an unsuccessful tenderer in a given procedure for the award of a public contract, and not, as the applicant appears to submit, Article 139 of the Implementing Rules, which concerns the procedure that the contracting authority must follow before rejecting a tender which it considers to be abnormally low.

26 It follows from Article 100(2) of the Financial Regulation, Article 149 of the Implementing Rules and settled case-law that the contracting authority complies with its obligation to state reasons if, first, it merely informs any eliminated tenderer immediately of the reasons for rejection of his tender and then provides any tenderer who has made an admissible tender with the characteristics and relative advantages of the tender selected and the name of the successful tenderer, within 15 days of the date on which an express written request is received (see, to that effect, judgments of 9 September 2010 in Evropaïki Dynamiki v EMCDDA, T‑63/06, EU:T:2010:368, paragraph 111 and the case-law cited, and of 12 December 2012 in Evropaïki Dynamiki v EFSA, T‑457/07, EU:T:2012:671, paragraph 45).

27 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in the second paragraph of 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 (judgments in Evropaïki Dynamiki v EMCDDA, paragraph 26 above, EU:T:2010:368, paragraph 112 and the case-law cited, and Evropaïki Dynamiki v EFSA, paragraph 26 above, EU:T:2012:671, paragraph 46 and the case-law cited).

28 It is also important to note that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63 and the case-law cited, and judgment in Evropaïki Dynamiki v Commission, paragraph 24 above, EU:T:2008:324, paragraph 49).

29 Thus, in order to determine whether, in the present case, the PO has fulfilled the obligation to state reasons, it is necessary to examine the contested decision containing the decision rejecting the applicant’s tenders. It is also necessary to examine the letter of 27 July 2011 sent to the applicant within the time-limit laid down by Article 149(3) of the Implementing Rules in response to its express request of 25 July 2011 seeking additional information on the contested decision.

30 In the present case, by letter of 22 July 2011, the PO informed the applicant of the reasons why its tenders had been rejected, namely the fact that they were abnormally low. The PO also informed the applicant of its right to obtain additional information on the grounds for that rejection.

31 As stated in paragraph 10 above, following a request for clarification submitted by the applicant, the PO informed the applicant by letter of 27 July 2011 that its tenders could not be compared with other tenders made during previous calls for tenders and that, in any event, certain comparisons made by the applicant were incorrect. It also sent the applicant an extract from the evaluation report containing the reasons why its tenders had been considered to be abnormally low because of their price.

32 It was stated in that extract from the evaluation report that the clarifications provided on 29 June 2011 had not dispelled the suspicions concerning the prices proposed in the applicant’s tenders.

33 In reaching that conclusion, first, four pieces of information submitted by the applicant, in the name and on behalf of the consortium, were cited or set out in the following terms:

‘1. “Our consortium has managed to optimise and balance Luxembourg activities with our near[-shore]/off-shore activities in Romania”;

2. “Proximity of personnel: The proposed personnel will be located either in Luxembourg (intra/extra [muros], in order to ensure proximity which is absolutely essential for this project) or in Romania (extra muros)”;

3. [The consortium] calculated itself minimum daily rate for Luxembourg for 138 euro;

4. “Realistic overheads: Our consortium overheads are all inclusive (management, infrastructure related costs, travelling and subsistence costs for the profiles that are located near-shore and off-shore, corporate management overheads facilities overheads, general infrastructure costs, etc.).”’

34 Secondly, it was stated in that extract from the evaluation report that, in respect of points 1 and 2 (‘AD 1 + 2’) (see paragraph 33 above), the ‘near[-shore]/off-shore’ activities in Romania were not referred to in the applicant’s tenders and that all the personnel proposed were established in Luxembourg. It was added that, in the part of those tenders presenting the technical merits of proposed human resources, it had been stated that ‘[a]ll proposed technical candidates [fulfilled] the minimum 3 year university education and experience requirements’ and that ‘[t]hey also all [worked] within driving distance of the [PO]’.

35 In respect of points 2 and 3 (‘AD 2 + 3’) (see paragraph 33 above), it was stated that some of the prices proposed by the consortium per man-day of extra-muros, that is ‘INF-SYS-TRAI — 105 euro’ and ‘INF-SYS-END-USE-SUP — 105 euro’, were lower than the minimum daily rate for Luxembourg as calculated by the applicant in the response of 29 June 2011.

36 Concerning point 4 (‘AD 4’), it was stated that the evaluation committee doubted that a ‘highly qualified ANA-PROG [would] be willing to work for the minimal salary’ and that, contrary to what the applicant claims in the response of 29 June 2011, overheads costs could not be included in price per man-day.

37 The extract from the evaluation report also included two general remarks by which the evaluation committee expressed its doubts as regards the fact that the highly qualified ‘PRO-MAN’ and ‘TEC-CONS’ employees would be willing to work, respectively, for 200 and 210 euro per man-day of extra-muros.

38 Lastly, the extract from the evaluation report contained conclusions that the clarifications provided on 29 June 2011 concerning the place of performance of the services and the staff localisation were in contradiction to the applicants’ tenders and consequently could not be accepted.

39 It must be held that, having regard to the contested decision and the PO’s letter of 27 July 2011, the applicant was able to identify the precise reasons for the decision rejecting its tenders. The PO clearly justified the decision to reject those tenders, first, by setting out the clarifications which appeared to it to be new in relation to those tenders and the contradictions which it considered to exist between those tenders and the clarifications provided on 29 June 2011 and, secondly, by stating that those tenders were abnormally low because of their price.

40 The PO thus considered that the applicant’s tenders were based on the staff located in Luxembourg and working within driving distance of the PO, and not on the staff located in Romania and on the services provided in that Member State. The PO inferred from this that those tenders were abnormally low because, first, for some profiles, the rates mentioned were lower than the minimum daily rate for Luxembourg as calculated by the applicant in the response of 29 June 2011 and, secondly, for some other profiles, it was not economically realistic to consider that the personnel proposed in those tenders would be willing to work in Luxembourg at the proposed rate.

41 In the light of the foregoing, it must be held that, in its letters and in the extract from the evaluation report annexed to the letter of 27 July 2011, the PO provided to the requisite legal standard reasons for the rejection of the applicant’s tenders. It must be concluded that it satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.

42 First, that conclusion is not called into question by the applicant’s argument that the fact that it could be informed of the characteristics and relative advantages of the successful tender was irrelevant because the rejection of its tenders was not based on a comparison of those tenders with the successful tenders.

43 It should be noted that, in the contested decision, the PO did mention the possibility for the applicant to be informed of the characteristics and relative advantages of the successful tenders. If the applicant was not interested in the communication of that information, it was clearly not obliged to request it. The fact remains that, as provided in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules, the PO was required to mention that possibility to the applicant.

44 Secondly, the sufficiently reasoned nature of the rejection of the applicant’s tenders is not called into question by the applicant’s argument that the contested decision infringed an essential requirement laid down in Article 147(3) of the Implementing Rules. According to the applicant, while the decision to which that provision refers has to mention only the reasons for the non-compliance of a tender with the selection criteria or the fact that a tender was not the best according to the award criteria, specific provision is made for the case of rejection of a tender because of its abnormally low nature. Therefore, in the present case, the contested decision infringed that essential requirement.

45 That complaint must be dismissed as unfounded, without it being necessary to rule on its admissibility, which is disputed by the Commission. As its title indicates, Article 147 of the Implementing Rules concerns the results of the evaluation. Paragraphs 1 and 2 of that article relate to the written record of the evaluation, while paragraph 3 of that article concerns the decision taken by the contracting authority. Whilst Article 147(3) of the Implementing Rules sets out the particulars which must appear in that decision, that provision does not lay down that those particulars must be set out in the letter communicating the tenor of that decision to the unsuccessful tenderers. The communication between the contracting authority and the tenderers, in particular those who were unsuccessful, as well as the content of that communication are governed by Article 149 of the Implementing Rules. Article 147 of the Implementing Rules is therefore irrelevant for the purposes of determining the content of the contracting authority’s obligation to state reasons, with regard to an unsuccessful tenderer, concerning the letter communicating to it the tenor of the contracting authority’s decision.

47 By this plea, the applicant alleges, in essence, an infringement of the procedure laid down by Article 139(1) of the Implementing Rules and, more generally, an infringement of that article in so far as the applicant disputes the merits of the rejection of its tenders as being abnormally low.

49 Article 139(1) of the Implementing Rules states that if, for a given contract, tenders appear to be abnormally low, the contracting authority, before rejecting such tenders on that ground alone, is to request in writing details of the constituent elements of the tender which it considers relevant and is to verify those constituent elements, after due hearing of the parties, taking account of the explanations received.

50 In the first place, if the Court were to consider that the statement of reasons for the rejection of its tenders may be found in the letter of 27 July 2011, the applicant observes that the reason for that rejection, which was confirmed by the PO in that letter, was the abnormally low nature of the proposed prices. However, it claims, the statement of reasons which the PO added by reference to the evaluation report of the evaluation committee is unconnected with that reason and is irrelevant. In this connection, the applicant cites the conclusion of that report, according to which ‘information provided by [the] consortium … in its answer concerning the place of performance of the services, as well as the personnel locali[s]ation [was] in contradiction to the offer[s] and consequently [could not have been] accepted’.

51 It must be stated that, by that first complaint, the applicant claims, in essence, that the statement of reasons for the rejection of its tenders set out in the evaluation report is unconnected with the reason for the rejection mentioned in the contested decision.

53 It must be held that, in so far as the applicant seeks to claim that its tenders were rejected for a reason other than that of their abnormally low price, the examination of that complaint falls within the plea alleging an incorrect legal basis of the contested decision.

54 Furthermore, it must be recalled that the Court has already held, within the context of the examination of the first plea, that the PO gave a sufficiently detailed statement of the reason for the rejection of the applicant’s tenders. The PO set out the precise reasons why the clarifications provided on 29 June 2011 had not dispelled the suspicions concerning the prices proposed in those tenders and stated the reasons why those tenders were considered to be abnormally low because of those prices (see paragraphs 39 to 46 above).

55 Lastly, the conclusion mentioned in the extract from the evaluation report and cited by the applicant must be read in its context (see paragraphs 32 to 38 above). The extract begins with the statement that, having analysed the response of 29 June 2011, the evaluation committee came to the conclusion that the applicant’s tenders had to be rejected because of their abnormally low prices. This is followed by an analysis of the clarifications provided on 29 June 2011 concerning the prices considered by the contracting authority to be abnormally low; that analysis highlights inconsistencies between those clarifications and the applicant’s tenders, casts doubt on the economic realism of the prices proposed for some profiles and disputes the inclusion of certain costs in those prices. The extract ends with the conclusion cited by the applicant, summarising the reasons why the clarifications provided on 29 June 2011 could not be taken into consideration because of their inconsistency with the content of the applicant’s tenders. Therefore, contrary to what the applicant claims, that conclusion was not irrelevant with regard to the ground for the rejection of its tenders — in the present case their abnormally low price — and the reasoning which the PO added by reference to the evaluation report of the evaluation committee was not unconnected with that ground.

56 In the second place, the applicant submits that the failure of the evaluation committee to take into account the justification put forward by the applicant in the response of 29 June 2011 amounted to a breach of Article 139 of the Implementing Rules and the case-law. The applicant maintains that, as a result of the failure to take into account its clarifications, there was not an appropriate exchange of views, but rather a monologue on the part of the PO. Although the applicant accepts that the contracting authority is not required to enter into an unending dialogue with the tenderer, it submits that it must allow the tenderer the opportunity to justify its tender.

57 As a preliminary point, it must be borne in mind that, under the provisions of Article 139(1) of the Implementing Rules, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low. Consequently, the obligation to check the seriousness of a tender arises where there are doubts beforehand as to its reliability, also bearing in mind that the main purpose of that article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appears abnormally low (judgment of 11 May 2010 in PC-Ware Information Technologies v Commission, T‑121/08, ECR, EU:T:2010:183, paragraph 72 and the case-law cited).

58 It follows that, in the present case, in so far as the PO had doubts as to the reliability of the applicant’s tenders, it was under an obligation to give the applicant the opportunity to explain the terms of its tenders which appeared to the PO to be abnormally low.

60 In the reply, the applicant’s argument is indeed ambiguous in this respect, accepting that it was given the opportunity to explain the terms of its tenders, while also implying the opposite. In response to a question from the Court at the hearing, the applicant stated that it had been sent only one letter requesting clarifications, which was not sufficient to support the view that the procedure laid down by Article 139 of the Implementing Rules had been complied with.

61 However, it must be held that, in accordance with Article 139(1) of the Implementing Rules, the PO gave the applicant the opportunity to explain the terms of its tenders. By letter of 27 June 2011, the PO sent the applicant, as the representative of the consortium, a request for information, in which it asked the applicant to explain how the price per man-day in its tenders had been calculated (see paragraph 6 above). The applicant complied with that request by the response of 29 June 2011.

62 Moreover, in so far as the applicant claims that the PO sent it the contested decision without providing it with the opportunity to further and fully explain its concerns, it is sufficient to note that, in the reply, the applicant accepts that the PO was not required to enter into an unending dialogue with the consortium.

63 Lastly, in so far as the applicant complains of a failure to take into consideration the clarifications provided on 29 June 2011, it is apparent from the extract from the evaluation report communicated to the applicant that the PO took them into account inasmuch as it examined them and compared them to the applicant’s tenders before rejecting them (see paragraphs 31 to 38 above).

64 Consequently, the applicant has failed to demonstrate the existence of a breach of the procedure laid down by Article 139 of the Implementing Rules.

65 In the third place, the applicant considers the PO’s justification for its failure to take into account the clarifications provided on 29 June 2011 to be unfounded and claims that the PO sometimes misunderstood those clarifications.

66 In that context, the applicant confirmed at the hearing, in response to a question put by the Court, that, by that complaint, it was pleading an error on the part of the contracting authority in the assessment of the clarifications provided on 29 June 2011 and in the rejection of its tenders inasmuch as they were allegedly abnormally low within the meaning of Article 139 of the Implementing Rules.

67 First, the applicant cannot claim that the PO made an error in simply stating that the prices proposed in the tenders submitted within the context of previous tendering procedures were irrelevant, without further explanation, merely because the calls for tenders were independent of one another.

68 It is true that the PO stated that the evaluations were independent for each call for tenders and that, consequently, some comparisons made by the applicant with another contract were irrelevant. However, it added that those comparisons were also incorrect and stated the reasons therefor: according to the PO, (i) the intra-muros prices were not identical in the applicant’s tenders and in those submitted four years previously and (ii) contrary to the assertions which the applicant made in the response of 29 June 2011, its tenders did not include prices lower than those mentioned in previous tenders, cited by the applicant, for extra-muros profiles only.

69 Moreover, the PO correctly took the view that a comparison of the prices proposed in the applicant’s tenders with the prices proposed within the context of other tendering procedures was irrelevant. Contrary to the applicant’s claim that no precedent is irrelevant when it is in the ‘same market’, the content of a tender must be examined in the light of the call for tenders to which it responds.

70 Secondly, the applicant submits that the evaluation committee was wrong to base its claim that the information provided did not dispel the suspicions concerning the proposed prices on the assumption that all personnel proposed by the consortium should be located in Luxembourg. Notwithstanding the fact that there was no obligation or commitment for any of the personnel to be in Luxembourg, the evaluation committee assumed that the personnel proposed by the consortium would remain in Luxembourg. The evaluation committee pursued the procedure and dismissed the clarifications provided on 29 June 2011, in which the applicant explained that some of its Luxembourg personnel might well be sent to Romania, if necessary on a part-time basis. The proximity personnel were proposed in the applicant’s tenders only for the needs of the direct execution of the project.

71 Therefore, the evaluation committee’s statement, set out under reference ‘AD 2 + 3’ (see paragraph 35 above), that ‘some of the prices proposed by the [consortium] per man-day of extra-muros — INF-SYS-TRAI - 105 euro and INF-SYS-END-USE-SUP — 105 euro — [were] lower [than] the minimum daily rate for Luxembourg as [had been] calculated by the [applicant] in [the response of 29 June 2011]’, and the similar answer under reference ‘AD 4’ (see paragraph 36 above), are irrelevant in the present case, because even if the salaries were relatively low for Luxembourg, they have to be set against Romanian salaries which are substantially lower.

72 It should be noted that the evaluation committee took the view that the prices proposed in the applicant’s tenders for the remuneration of the personnel were too low for persons working in Luxembourg. First, it noted that, for some of the proposed profiles, the prices were lower than the minimum salary in Luxembourg, as calculated by the applicant in the response of 29 June 2011. Secondly, the evaluation committee expressed doubts as to whether, for the other proposed profiles, highly qualified employees would be willing to work for the prices stated.

73 In that regard, it must be noted that the applicant does not dispute that the prices stated in its tenders might be considered, in both cases, to be too low for some staff working in Luxembourg.

74 However, the applicant calls into question the evaluation committee’s assessment that its tenders would have been changed if the clarifications provided on 29 June 2011 had been taken into consideration. According to the applicant, the contracting authority wrongly held that it was mandatory to present in the tenders all personnel which could be involved in the execution of the contract and that the clarifications provided by the applicant constituted a modification of its tenders.

75 According to the applicant, the obligation to present in the tenders all personnel which could be involved in the execution of the contract was not, however, as clear as the Commission seems to believe.

76 First, the applicant observes that it is true that, in section 4.3.3.4 (‘Project execution’), ‘the specifications [provided] that only human resources proposed by the contractor as part of its offer [would] be allowed to perform the requested tasks’. However, that section concerned the execution of a specific project under the framework contract, in particular the performance of time and means specific orders or contracts. Therefore, there is a doubt as to whether that section of the specifications related to the tenderer’s bid for the framework contract or to the contractor’s bid for a specific project.

77 Furthermore, the applicant submits that, having regard to section 1.4.2 of the framework contract, according to which the contractor was to make a proposal upon request of the contracting authority for a specific order or contract, with that proposal having to include inter alia the curricula vitae of persons proposed for the execution and a statement of their availability, the only reasonable interpretation of section 4.3.3.4 of the tender specifications was that it related to that specific order or to that specific contract. Therefore, the contracting authority made an erroneous interpretation of that provision and should not have considered that the clarifications provided on 29 June 2011 could not be accepted.

78 Secondly, the applicant submits that, in any case, even if the Court were to consider that that obligation concerned the framework contract, it could not be considered to be a general obligation. Point 3 (‘Human resources issues and replacements’) of section 4.3.3.4 of the tender specifications concerned only the time and means projects, and not the fixed price projects.

79 Therefore, the clarifications provided on 29 June 2011 relating to the location of the provision of extra-muros services were not in contradiction with the obligation to provide only personnel presented in the applicant’s tenders, because such an obligation, if existent, existed only for time and means projects which, according to the administration, are only a minor part of projects and are accordingly not crucial in the determination of the overall price. Therefore, the applicant claims that it could have provided the services offered at the prices proposed in its tenders, counterbalancing the higher prices for the projects of that type with the personnel presented in the tenders, with the lower prices in fixed price projects due to the favourable conditions in Romania. Consequently, the clarifications provided on 29 June 2011 did not lead to a modification of its tenders.

80 It should be noted that the evaluation committee did not refer to the curricula vitae of the persons proposed in the applicant’s tenders, but pointed out the absence, in those tenders, of any mention of activities of the consortium in Romania.

81 Moreover, the evaluation committee noted that all the personnel proposed in the applicant’s tenders were located in Luxembourg and that, in the name and on behalf of the consortium, the applicant had stated that the persons proposed all worked within driving distance of the PO. The applicant does not contest the veracity of those statements and accepts that its tenders did not mention the provision of services in Romania.

82 Therefore, contrary to the applicant’s assertions, the clarifications provided on 29 June 2011 constituted a modification of its tenders and could not be accepted.

83 Without it being necessary to rule on the question of whether, as the applicant claims, a tenderer was entitled to modify, when the framework contract was concluded, the curricula vitae of the persons proposed, it is sufficient for the Court to note that the applicant’s tenders stated that all the persons proposed worked within driving distance of the PO, whose seat is in Luxembourg. However, neither the contract notice nor the tender specifications required the applicant to make such a proposal as to the localisation of the consortium’s personnel in its tenders. Therefore, that proposition must be considered to be part of the applicant’s tenders.

84 It must be noted that, as set out in section 1.10 of the tender specifications (‘Period of validity of the tender’), a tender had to remain valid for nine months following the final date for submission and, during that period, tenderers had to maintain all the conditions of their tender. Furthermore, it should be noted, as did the Commission, that, according to section 1.9 of the tender specifications (‘General terms and conditions for the submission of tenders’), ‘[s]ubmission of a tender [bound] the tenderer to whom the contract [was] awarded during performance of the contract’. Lastly, it must be observed that the end of section 2.7.2 of the tender specifications (‘Evaluation of the technical award criteria’) stated that ‘if a tenderer’s proposal [went] beyond the minimum requirements described in the technical specifications, such a proposal [was] binding during the execution of the contract, if the tenderer [were] awarded the contract’.

85 Therefore, without modifying the terms of its tenders, the applicant could not modify the proposal, set out in those tenders, relating to the localisation of the consortium’s personnel.

86 It must be held that the persons working in Romania cannot be considered to be persons situated within driving distance and in a situation of proximity to Luxembourg.

87 Consequently, the PO correctly took the view that the clarifications provided on 29 June 2011, according to which the personnel proposed would not necessarily be located within driving distance of the PO but would also be located in Romania, constituted a modification of the applicant’s tenders. The PO correctly inferred therefrom that it could not accept those clarifications, and the applicant does not contest the fact that a modification of its tenders could not be accepted at that stage by the contracting authority, in accordance with Article 99 of the Financial Regulation and Article 148 of the Implementing Rules, which prohibit the modification of the terms of the initial tender (see, to that effect, the judgment of 25 October 2012 in Astrim and Elyo Italia v Commission, T‑216/09, EU:T:2012:574, paragraph 95).

88 Lastly, it should be noted that the prices mentioned in the applicant’s tenders for the remuneration of the personnel had to be consistent with the proposal relating to the localisation of the personnel, which was also included in those tenders. However, the applicant has given as an explanation for those prices only the fact that, whilst some employees work in Luxembourg, others work in Romania. Moreover, it should be recalled that the applicant does not dispute that the prices stated in its tenders might be considered to be abnormally low for some staff working in Luxembourg.

89 Therefore, the clarifications provided on 29 June 2011 could not dispel the PO’s suspicions as regards the prices proposed in the applicant’s tenders, which it considered to be abnormally low.

90 It follows that the Court must reject the applicant’s argument by which it calls into question the merits of the rejection of its tenders because of their abnormally low price.

91 That conclusion is not invalidated by the applicant’s argument by which it claims that, since the clarifications do not concern its tenders, they could not lead to the modification of those tenders. According to the applicant, the contracting authority made a mistake by adding a selection criterion to the award criteria and the document answering that criterion cannot be considered as part of the tenders.

92 In that regard, the applicant cites Article 138(2), Article 137(1) and Article 137(2)(a) of the Implementing Rules. In addition, it relies on case-law according to which ‘award criteria’ do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question (judgment of 24 January 2008 in Lianakis and Others, C‑532/06, ECR, EU:C:2008:40, paragraphs 29 and 30).

93 It should be noted that, by that argument, the applicant essentially submits that, when evaluating the tenders, the evaluation committee added a criterion linked to the technical merits of the teams, which constituted a selection criterion, implying that the document answering that criterion cannot be considered to be part of its tenders and could not have modified them.

94 It must be held that that complaint was put forward for the first time in the reply but does not arise from matters of law or of fact which came to light in the course of the procedure or expand a plea of law set out in the application. Consequently, it must be dismissed as inadmissible under Article 48(2) of the Rules of Procedure.

96 The applicant claims first of all that the decision rejecting its tenders could not be based on Article 139 of the Implementing Rules and that it is therefore founded on an incorrect legal basis. The applicant further claims that, for the purposes of rejecting its tenders, the PO misused the procedure laid down in that provision.

98 In the first place, the applicant claims that Article 139 of the Implementing Rules provides only that a tender may be rejected where it is found to be abnormally low and that, accordingly, it cannot be used for the purposes of excluding a tenderer on the ground that it did not entirely describe the functioning of the consortium in terms of human resources.

99 However, according to the applicant, its tenders were rejected for the sole reason that they were not sufficiently complete and comprehensive because they did not refer to a part of the company employing the workforce in Romania. In its analysis of the applicant’s response of 29 June 2011, the evaluation committee stated that ‘the quoted above “near/off-shore activities in Romania” [were] not referred [to] in [the applicant’s tenders]’. That omission in the applicant’s tenders left enough room for the evaluation committee to assess whether the prices proposed in those tenders were abnormally low. According to the applicant, the only possible reasoning behind the rejection of its tenders was with respect to the award criteria.

100 In the reply, the applicant notes that the award criteria included technical merits and price and that, as regards price, its tenders were significantly better than other tenders. However, since the evaluation report did not include the ranking for prices, it was not possible for the applicant to know whether its tenders would have presented the best value for money. The applicant therefore considers that the only lawful way to reject its tenders would have consisted in applying the criteria set out in the contract notice, including the overall assessment of the quality of the consortium’s responses, in respect of which it acknowledges that its tenders could have obtained a rating lower than that of the other tenderers’ bids, having regard to the lack of clarity concerning the functioning of the consortium in terms of human resources. In any event, the award criteria relating to human resources could not have been considered as award criteria, and thus this fact would have led to questioning the legality of the potential rejection of the consortium’s tender.

101 Moreover, the applicant takes the view that having regard to the clarifications provided on 29 June 2011 — in particular in relation to the economic conditions of the provision of services — its tenders could not be classified as abnormally low.

102 It must be stated, first of all, that, contrary to what the applicant claims, the evaluation committee did not examine an award criterion concerning human resources when it compared the information concerning the localisation of the personnel proposed by the consortium and the prices stated. At that stage of the procedure, the evaluation committee merely verified the conformity between the prices stated in the applicant’s tenders concerning the remuneration of the personnel, the applicant’s clarifications according to which those prices were linked to the localisation of the personnel, and the proposals concerning such localisation in those tenders.

103 Next, the applicant wrongly claims that its tenders in fact omitted some information because the consortium did not entirely describe its functioning in terms of human resources.

104 It must be held that there was nothing to indicate or suggest to the contracting authority that a piece of information was missing in the applicant’s tenders. By contrast, the contracting authority was fully entitled to take the view that, when the applicant had been asked, as the representative of the consortium, about the price of its tenders, it had altered the information concerning the localisation of the personnel although that information had been inserted into its tenders without it being required by the terms of the call for tenders or by the tender specifications (see paragraph 83 above). Therefore, the clarifications provided on 29 June 2011 did not supplement the applicant’s tenders, but modified them (see paragraphs 82 to 87 above).

105 Since the evaluation committee was not able to take into account the information sent by the applicant, on behalf of the consortium, without accepting a modification of the applicant’s tenders, that information did not constitute a response to the questions of the contracting authority as to the prices stated per man-day. Since those questions were not answered, the tenders were then rejected because of the abnormally low nature of their price. In that regard, it should be recalled that the applicant has not shown that the PO erred in rejecting its tenders on that ground (see paragraphs 90 and 95 above).

106 It follows that the applicant’s argument that it was not in a position to know whether its tenders would have presented the best value for money and that the only lawful way, if any, to reject its tenders would have been to apply the criteria set out in the contract notice, including the overall assessment of the quality of the consortium’s responses, must be rejected as irrelevant.

107 Consequently, since the applicant’s tenders were not rejected for a reason other than their abnormally low price, the contested decision is not founded on an incorrect legal basis and the applicant’s complaint must be rejected.

108 In the second place, the applicant claims that the examination of an abnormally low price cannot be used to exclude a tenderer for lack of relevance of its tender. Therefore, in the present case, the PO misused Article 139 of the Implementing Rules for the purposes of rejecting the applicant’s tenders after the applicant had demonstrated that its tenders were not abnormally low.

110 It should be borne in mind that, in accordance with settled case-law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose (judgments of 13 November 1990 in Fedesa and Others, C‑331/88, ECR, EU:C:1990:391, paragraph 24, and of 10 May 2005 in Italy v Commission, C‑400/99, ECR, EU:C:2005:275, paragraph 38). Where more than one aim is pursued, even if the grounds of a decision include an improper ground in addition to proper grounds, that would not make the decision invalid for misuse of powers, provided that it does not nullify the main aim (judgment of 21 December 1954 in Italy v High Authority, 2/54, ECR, EU:C:1954:8, p. 37, 54; judgments of 21 September 2005 in EDP v Commission, T‑87/05, ECR, EU:T:2005:333, paragraph 87; and judgment in Evropaïki Dynamiki v Commission, paragraph 20 above, EU:T:2011:731, paragraph 109).

111 In the present case, it is sufficient to note that the applicant has not adduced any relevant evidence to support its claim that the PO had misused Article 139 of the Implementing Rules for the purposes of rejecting the applicant’s tenders.

112 If the applicant seeks, by that complaint, to allege misuse of powers owing to the use of an incorrect legal basis to reject its tenders, it is sufficient to note that the applicant has failed to establish such an error on the part of the contracting authority (see paragraph 107 above).

113 Lastly, it must be held that the applicant has not put forward any evidence to show that the PO used its powers in the present case for purposes other than that of determining which tenders to accept.

114 In the light of all the above considerations, this plea must be rejected and the action must be dismissed in its entirety.

115 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.

116 In the present case, since the applicant has been unsuccessful, it must be ordered to pay the costs, including those relating to the proceedings for interim measures, in accordance with the form of order sought by the Commission.

2. Orders Computer Resources International (Luxembourg) SA to pay the costs, including those relating to the proceedings for interim measures.

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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) >> Computer Resources International (Luxembourg) v Commission (Judgment) [2014] EUECJ T-422/11 (05 November 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/T42211.html Cite as: [2014] EUECJ T-422/11, EU:T:2014:927, ECLI:EU:T:2014:927

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