Global Translation Solutions v Parliament (Public service contracts - Tendering procedure - Translation services - Judgment) [2021] EUECJ T-7/20 (06 October 2021)

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(Public service contracts – Tendering procedure – Translation services – Rejection of a tenderer’s bid – Award of the contract to another tenderer – Award criteria – Format in which a file submitted in a test is to be uploaded)

Global Translation Solutions ltd., established in Valletta (Malta), represented by C. Mifsud-Bonnici, lawyer,

European Parliament, represented by E. Taneva and K. Wójcik, acting as Agents,

APPLICATION under Article 263 TFEU for annulment of the decision contained in the Parliament’s letter of 28 October 2019 rejecting the tender submitted by the applicant for Lot 15 in tendering procedure TRA/EU19/2019 and of the decision contained in the Parliament’s letter of 4 December 2019 awarding the contract to another tenderer,

composed of A.M. Collins, President, Z. Csehi and G. Steinfatt (Rapporteur), Judges,

1 On 18 March 2019, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2019/S 054-123613), as supplemented and corrected by a notice published in the Official Journal of the European Union (OJ 2019/S 060-137775) of 26 March 2019, the European Parliament launched open procedure TRA/EU19/2019 with a view to awarding public contracts for the supply of translation services.

2 On 15 April 2019, the applicant, Global Translation Solutions ltd., submitted, inter alia, a tender for Lot 15 of the invitation to tender, corresponding to the translation of legal texts from English, French, German, Italian and Spanish into Maltese. On 6 June 2019, the applicant took a translation project management test as provided for in the tender specifications for Lot 15 (‘the test at issue’).

3 By letter of 28 October 2019, which was sent to the applicant by email of 29 October 2019, the Director-General of the Parliament’s Directorate-General (DG) for Translation informed the applicant that its tender had been rejected (‘the rejection decision’). The reason given was that the document submitted by the applicant in the test at issue was in Word DOC format, whereas the required format was Word DOCX, and therefore one of the formal eliminatory sub-criteria had not been fulfilled.

4 By letter of 15 November 2019, the applicant sent a request for additional information to the Director-General of the Parliament’s DG for Translation and invited the Parliament to reconsider the rejection decision.

5 By letter of 4 December 2019, the Parliament informed the applicant that it was maintaining its decision and sent the applicant additional information about the results of its tender, including a description of the methodology used to evaluate the test at issue, the detailed results of that test and tables in which the tenderers were ranked (‘the award decision’).

6 By letter of 5 December 2019, the Parliament confirmed the rejection decision.

7 By email of 20 December 2019, the applicant challenged the award decision and invited the Parliament to cancel the tendering procedure for Lot 15 on the ground that only one tenderer had been selected.

8 In its reply of 13 February 2020, the Parliament rejected the request to cancel the tendering procedure for Lot 15 on the ground that the wording of the contract notice could not be interpreted as imposing an obligation to cancel that procedure where only one framework contract could be awarded per lot.

9 By application lodged at the Court Registry on 7 January 2020, the applicant brought the present action.

11 The reply and the rejoinder were lodged at the Court Registry on 15 July and 13 October 2020, respectively.

12 The Court (Third Chamber) has decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.

15 In support of its application for annulment of the rejection decision, the applicant relies on two pleas in law, alleging, first, an erroneous assessment of the facts and infringement of the principle of non-discrimination and, secondly, infringement of the general principles of public procurement and the general principle of good administration. In support of its application for annulment of the award decision, raised in the alternative, the applicant relies on a third plea in law, alleging infringement of the general principles of public procurement, namely the principles of self-limitation, equal treatment and transparency.

1. The first plea, alleging an erroneous assessment of the facts and infringement of the principle of non-discrimination

16 By its first plea, the applicant argues, in essence, that the Parliament’s determination, set out in the rejection decision, that the format of the document submitted in the test at issue was not compliant with the Instructions for the Translation Project Management Test, is based on an erroneous assessment of the facts, and also infringes the principle of non-discrimination in public procurement procedures.

17 In the first place, the applicant submits that the terms of the Instructions for the Translation Project Management Test are not sufficiently clear, precise and unequivocal to require that the document submitted in the test at issue was to be uploaded in DOCX format.

18 First, the applicant observes that the requirement that procurement documents and, in particular, the conditions and detailed rules of the award procedure must be drafted in a clear, precise and unequivocal manner follows from the general principles of equal treatment, promotion of genuine competition and transparency, as codified in Article 102(1) and Article 105 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1). However, on only one occasion in those instructions is the file format DOCX mentioned when Word format is referred to. By contrast, the term ‘Word’ is mentioned on four other occasions without specifying the requirement for a particular file format, namely DOC or DOCX. Reference to Word format on its own can be interpreted as referring to both DOC and DOCX formats. The relevant test was taken by a different person for each lot, and therefore the fact that the persons taking the tests for the other lots submitted documents for those tests in DOCX format does not mean that the requirement was sufficiently clear to the person taking the test at issue.

19 Secondly, the applicant disputes the Parliament’s assertion that the tender specifications provided that the test at issue was intended, inter alia, to assess the ability of the economic operator to take into account client specifications, such as specific instructions, style guides and terminology, when processing an assignment. The Parliament’s instruction that the document submitted in the test at issue was to be in DOCX format cannot be regarded as specific within the context of the Instructions for the Translation Project Management Test. In addition, the other specific instructions relating to that test were adhered to.

20 In the second place, according to the applicant, in terms of functional requirements, the document submitted in the test at issue in DOC format should have been accepted as equivalent to a document submitted in DOCX format, so that, by refusing to accept it, the Parliament infringed Article 105 of Regulation No 966/2012 and Article 139 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1; ‘the Implementing Regulation’), as well as the general principles applicable to public procurement, specifically the principle of non-discrimination.

21 According to the applicant, the requirement that the document be submitted in the test at issue in DOCX format is a technical specification rather than an award criterion. That requirement is, in substance, a formulation of the ‘technical specifications’ selected by the Parliament which the supply of services sought is required to comply with. Consequently, it is disingenuous for the Parliament to argue that, because the requirement to submit the translated text in the test at issue in DOCX format was included in the test instructions, it should be formally regarded as an award criterion. In any event, the general principles of public procurement, as contained in Article 160(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU and repealing Regulation No 966/2012 (OJ 2018 L 193, p. 1), namely, inter alia, the principles of non-discrimination, equal treatment and promotion of genuine competition, which also arise from the Treaties and the relevant case-law, hold good, be it in the context of a selection criterion, technical specification or award criterion.

22 Furthermore, the fact that the document submitted in the test at issue was in DOC format and not DOCX format is irrelevant, since the two formats are functionally equivalent, particularly in the specific context of the test at issue. The document submitted in the test at issue conforms, in its entirety, with the formatting requirements concerning the structure, layout and presentation of the source document, with the result that there is no material difference between those two file formats. None of the differences pointed out by the Parliament undermines the objective pursued by the tendering procedure. Furthermore, the fact that additional technical interventions are necessary in no way detracts from the capacity of an alternative technical solution to achieve the same functional and performance capacity as a technical solution specified in a procurement document.

23 The applicant states that, in practice, it is common for the Parliament to ask a contractor to resubmit an assignment in the correct format if it has been submitted in an incorrect format, which is also expressly provided for in the technical specifications of the tender specifications, under the heading ‘Request for redelivery’. In claiming that the applicant is the only candidate to have submitted the translated text in the test at issue in DOC format, the Parliament itself acknowledged that making such a request would not have been a ‘burden’ for it.

25 The Parliament claims that it is clear from the tender specifications and from the Instructions for the Translation Project Management Test that compliance with DOCX format is a formal eliminatory sub-criterion.

26 There are significant differences between DOCX and DOC formats, so that they cannot be regarded as equivalent. As is not the case with DOC format, the ability to read and write in ‘Office Open XML’ format is not limited to Microsoft Office. Documents in DOCX format can be read by just about any full-featured word processing software, including online tools, because it is an open standard. By contrast, depending on the platform used, a user would encounter difficulties in trying to open a document in DOC format.

27 Conversion of DOC format to DOCX format would require the Parliament’s services to proceed with manual intervention, which would be a ‘burden’ for the Parliament, as it has had to examine a great number of tender offers. Furthermore, according to the proper quality requirements laid down in the call for tenders, the delivered translation assignment should be ready to be used and should not require correction. The contractor must follow any specific instructions and the delivered translation must be produced in the agreed format.

28 In any event, the applicant has confused the notion of ‘technical specifications’ with that of ‘award criteria’. The format required for the document submitted in the test at issue is not a technical specification, since its aim is to evaluate the best candidate in line with award criteria and not to specify what is required during the execution of the contract. It is an eliminatory criterion used to evaluate a tenderer’s ability to follow clear instructions. Neither Regulation 2018/1046 nor case-law impose any functional equivalence principle for award criteria.

29 According to the Parliament, if it had accepted a tender submitted in DOC format, it would have infringed the principles of equal treatment and non-discrimination by favouring a tenderer that did not make the same effort to understand the tender requirements and submit the text translated in the test at issue in DOCX format. Moreover, according to the tender documents, the possibility for it to request that a given translation be corrected is meant to be used only during the contract and not for the test at issue.

30 As a preliminary point, it should be noted that the tendering procedure at issue is not governed by Regulation No 966/2012, but by Regulation 2018/1046, as the applicant accepts in the reply. The tendering procedure was launched on 18 March 2019, that is to say, on a date subsequent to that on which Regulation 2018/1046 became applicable, being 2 August 2018, pursuant to Article 282(2) of that regulation.

31 Article 160(1) of Regulation 2018/1046 provides that all contracts financed in whole or in part by the EU budget are to respect the principles of transparency, proportionality, equal treatment and non-discrimination. According to settled case-law, the contracting authority is required to ensure, at each stage of a tendering procedure, observance of the principle of equal treatment and, thereby, equality of opportunity for all the tenderers (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 108; see also judgments of 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 61 and the case-law cited, and of 16 October 2018, Proof IT v EIGE, T‑10/17, not published, EU:T:2018:682, paragraph 33 and the case-law cited).

32 It is also clear from the case-law that the principle of equal treatment implies an obligation of transparency in order to permit verification that it has been complied with (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 109; of 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 63; and of 9 April 2019, Close and Cegelec v Parliament, T‑259/15, not published, EU:T:2019:229, paragraph 70).

33 The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably well-informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 111; of 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 64; and of 4 July 2016, Orange Business Belgium v Commission, T‑349/13, not published, EU:T:2016:385, paragraph 50). In that regard, the Court of Justice has stated that, in order to assess whether the tenderer concerned was in fact unable to understand the award criteria at issue or whether it should have understood them by applying the standard of a reasonably well-informed tenderer exercising ordinary care, it was necessary to take into account the fact that the tenderer concerned and the other tenderers were capable of submitting tenders and that the tenderer concerned, before submitting its tender, did not request clarification from the contracting authority (see judgments of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraphs 54 to 56 and the case-law cited, and of 4 October 2018, Proof IT v EIGE, T‑914/16, not published, EU:T:2018:650, paragraph 97).

34 In accordance with Article 166(2) of Regulation 2018/1046, the contracting authority is to specify, in the procurement documents, the applicable exclusion, selection and award criteria. According to settled case-law, the contracting authority has a broad discretion with regard to the factors to be taken into account when deciding to award a contract following an invitation to tender, and the 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. The contracting authority has that broad discretion throughout the procurement procedure, including in relation to the choice and evaluation of the selection and award criteria (see judgments of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 31 and the case-law cited, and of 4 July 2016, Orange Business Belgium v Commission, T‑349/13, not published, EU:T:2016:385, paragraph 45 and the case-law cited).

35 In particular, it is open to the contracting authority when choosing the most economically advantageous tender to choose the criteria on which it proposes to base the award of the contract, provided that the purpose of those criteria is to identify the most economically advantageous tender and that they do not confer on the contracting authority an unrestricted freedom of choice as regards the award of the contract to a tenderer (see, by analogy, judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 37 and the case-law cited). Contracting authorities are free not only to choose the criteria for awarding the contract but also to determine the weighting of such criteria, provided that the weighting enables an overall evaluation to be made of the criteria applied in order to identify the most economically advantageous tender (see, by analogy, judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 39). The criteria for awarding the contract must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope (see, by analogy, judgments of 17 September 2002, Concordia Bus Finland, C‑513/99, EU:C:2002:495, paragraph 62, and of 24 November 2005, ATI EAC e Viaggi di Maioand Others, C‑331/04, EU:C:2005:718, paragraph 23). Such criteria must also comply with all the fundamental principles of EU law and, in particular, the principle of non-discrimination (see, by analogy, judgments of 17 September 2002, Concordia Bus Finland, C‑513/99, EU:C:2002:495, paragraph 63, and of 24 November 2005, ATI EAC e Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 21).

36 The first subparagraph of Article 167(4) of Regulation 2018/1046 provides that the contracting authority is to base the award of contracts on the most economically advantageous tender, which shall consist in one of three award methods: lowest price, lowest cost or best price-quality ratio. In accordance with the third subparagraph of that provision, for the best price-quality ratio, the contracting authority is to take into account the price or cost and other quality criteria linked to the subject matter of the contract. The quality award criteria must therefore be linked to the subject matter of the contract.

37 In the present case, the tender specifications provided, on page 34 and under the heading ‘Award criteria’, that the contract would be awarded to the tender offering the best value for money. They specified which criteria would be applied and also set out how points would be awarded for each criterion. In addition to the price criterion, for which a maximum of 50 points was available, the award criteria included a quality criterion for which a maximum of 100 points was available. It was stated that that quality criterion consisted of a translation project management test, the objective of which was, inter alia, to assess project management on the basis, inter alia, of the tenderer’s ability to take into account client specifications, for example specific instructions, when processing an assignment. On page 35 of the tender specifications was the statement that ‘the points for the test will be distributed between [a number of] sub-criteria’, including ‘formal eliminatory sub-criteria’ which provided for the distribution of ‘1 point if the translated document is delivered in the requested file format(s); 0 points if not’. Lastly, on page 36 of the tender specifications, it was unequivocally stated that if the tenderer received zero points for one of the three formal eliminatory sub-criteria, their tender would be rejected. Furthermore, the contracting authority expressly drew potential tenderers’ attention to the importance of having carefully read the Instructions for the Translation Project Management Test and to the fact that it was for tenderers to ensure that all persons involved in the test were aware of those instructions.

38 It is expressly stated in the Instructions for the Translation Project Management Test that the format for uploading the translated file is Word DOCX, with that requirement forming part of six general requirements, a list of which is set out on page 2 of those instructions. By contrast, the other reference to Word format to which the applicant refers and which appears on the first page of those instructions forms part of a description of how the test will be conducted. It could not, therefore, be understood as containing an instruction to the effect that the translation could be submitted in any Word format, as the specific instruction regarding the file format unequivocally required that the translation be submitted in DOCX format.

39 As regards the three other references to Word format invoked by the applicant, it is sufficient to note that they have no connection with the uploading of the translated text in the test at issue. Those references relate either to the source document (page 1 of the Instructions for the Translation Project Management Test) or the basic reference document, including its final version (page 5 of those instructions), as the applicant itself states in paragraph 32 of the application.

40 The tender specifications also state that most translations are produced in DOCX format, but that some are sent in other formats, which are listed in those specifications and do not include DOC format.

41 The description of the formal sub-criterion relating to the required file format and its eliminatory nature were therefore sufficiently clear for tenderers to understand what was expected of them. Accordingly, the applicant was aware of the award criteria, including eliminatory sub-criterion No 1(a), from the publication of the tender specifications. Despite the fact that the Instructions for the Translation Project Management Test gave it the opportunity to obtain additional information by sending an email request, the applicant did not ask the contracting authority for clarification of that sub-criterion. In addition, first, the other tenderers were able to submit tenders in the required format without seeking clarification of that sub-criterion and, secondly, the applicant itself submitted tests for Lots 12 and 13 in DOCX format. It follows that the applicant’s argument that the award criteria, and in particular the formal eliminatory sub-criterion relating to the required file format, were not sufficiently clear cannot succeed.

42 As regards the applicant’s argument that the Parliament should have contacted it in order to ask it to deliver the assignment in the correct format, it is sufficient to note that this arises from confusion between the obligations of the successful tenderer and those of the candidates in the tendering procedure. As the applicant states, the possibility of requesting a completed or corrected assignment to be redelivered is expressly provided for in the tender specifications. That information appears under the heading ‘Performance of framework contracts’. It clearly follows that that information is referring to the conditions of performance of the contract to be concluded with the successful tenderer, and not to the conditions applicable to the test to be submitted.

43 As regards the award criteria, including the required format of the document submitted in the test at issue, the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires all tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 110; of 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 62; and of 16 October 2018, Proof IT v EIGE, T‑10/17, not published, EU:T:2018:682, paragraph 34).

44 While the principle of equal treatment and the obligation of transparency preclude a tenderer from being excluded as a result of that tenderer’s non-compliance with an obligation which does not expressly arise from the documents relating to that procedure, those same principles cannot, as a rule, preclude an economic operator from being excluded from a procedure for the award of a public contract because it has failed to comply with an obligation that is expressly imposed – on pain of the operator’s being excluded – by the documents relating to that procedure. On the contrary, according to the Court of Justice’s settled case-law, where obligations were clearly imposed in the documents relating to the public procurement procedure – on pain of the operator’s being excluded – the contracting authority cannot accept any rectification whatsoever of failures to comply with those obligations (see, by analogy, judgment of 2 May 2019, Lavorgna, C‑309/18, EU:C:2019:350, paragraphs 20 to 22 and the case-law cited).

45 In accordance with those principles, the information that was given about the tendering procedure contained, under the heading ‘General terms and conditions for participating in the invitation to tender’, information to the effect that ‘any contact between the contracting authority and the tenderer during the procedure [was] forbidden, save, exceptionally, under the conditions laid down in Article 169 of [Regulation 2018/1046]’. Article 169(1) of that regulation provides only that the contracting authority may communicate additional information about the procurement documents before the time limit for receipt of requests to participate or tenders if it discovers an error or omission in the text or upon request from candidates or tenderers. Since the Parliament was not faced with such a situation, it was, in any event, prohibited from contacting the applicant to ask it to redeliver the assignment in the required format. It follows that the Parliament is right to argue that it would have infringed the principle of equal treatment if it had allowed a tenderer to resubmit the translated text in the test at issue in the correct format where it was clear from the Instructions for the Translation Project Management Test that delivery of the assignment in a format other than that required was an eliminatory criterion.

(2) The contracting authority’s obligation to accept an equivalent solution in terms of functional requirements

46 According to the applicant, in terms of functional requirements, the document submitted in the test at issue in DOC format should have been accepted as being in a format equivalent to DOCX format, with the result that, by refusing to accept it, the Parliament infringed Article 105 of Regulation No 966/2012, Article 139 of the Implementing Regulation and the general principles applicable to public procurement, specifically the principle of non-discrimination.

47 Article 166(2) of Regulation 2018/1046 provides that the contracting authority is to specify, in the procurement documents, the applicable exclusion, selection and award criteria. That provision reproduces, in essence, the first paragraph of Article 105 of Regulation No 966/2012, relied on by the applicant, which provided that tender documents had to provide a full, clear and precise description of the subject of the contract and specify the exclusion, selection and award criteria applicable to the contract. According to case-law, in organising the conduct of the tendering procedure, a contracting authority may, for the purpose of applying an award criterion, refer to part of the tender specifications relating to the subject matter and performance of the contracts which are the subject of the call for tenders, for the purposes of evaluating, in the light of a real simulation scenario, the services presented by the tenderers in their respective tenders (see, to that effect, judgment of 29 January 2014, European Dynamics Belgium and Others v EMA, T‑158/12, not published, EU:T:2014:36, paragraph 32).

48 It is true that point 17 of Annex I to Regulation 2018/1046 provides for the possibility for the contracting authority to formulate technical specifications. According to the second subparagraph of point 17.1 of that annex, technical specifications are to include the characteristics required of the services, including minimum requirements, so that they fulfil the use for which they are intended by the contracting authority. In relation to those specifications, points 17.4 and 17.5 provide that the contracting authority must not reject a tender which, although not compliant with those specifications, satisfies them in an equivalent manner. However, in the present case, the requirement to submit the translated text in the test at issue in the required format does not constitute a technical specification to which the applicant’s tender was not equivalent. The required format for submitting the translated text in the test at issue is not a characteristic required of the services for which the contracting authority is carrying out the tendering procedure. As has been shown in paragraph 37 above, it is, on the contrary, an eliminatory award criterion in the context of that test which was not fulfilled. It is true that the obligation to submit the translated text in the test at issue in DOCX format is a consequence of the technical specifications in so far as, according to those specifications, the successful tenderer will be required to submit completed translations either in the format of the source document or in the format requested. However, it does not follow that it is itself a technical specification.

49 Nor is the principle of functional equivalence applicable to the Translation Project Management Test, which constitutes the quality award criterion. As the Parliament rightly states, and as is apparent from the tender specifications (see paragraph 37 above), that test is intended to evaluate the offers from the point of view of their quality and is used, inter alia, to assess tenderers’ ability to take into account the tender specifications and, in particular, specific instructions. To achieve that aim, the formal sub-criterion relating to file format is capable of enabling the Parliament to evaluate some of the skills that tenderers will need in order properly to perform the contract. As the Parliament argues, it is stated in the tender specifications, under quality requirements, that delivered translations must be ready to be used and must not require further correction. The technical specifications in Annex I to the tender specifications provide that completed translations must be returned to the relevant institution in their original format or in the requested format. The Parliament has also explained that the DOC format is not equivalent to the DOCX format, since only the latter is compatible with other software tools used for word processing. The applicant has therefore not even been able to demonstrate that the format in which it submitted the translated text in the test at issue was equivalent to the required format and, therefore, that the Parliament would have been required to accept assignments delivered in that format when the contract to be concluded was executed. While it is therefore essential, for the proper performance of the contract, that the tenderer delivers completed assignments in the required file format, it is not disproportionate for the Parliament to ask candidates in the test taken in the tendering procedure to comply with instructions relating to format. If the Parliament were required to accept equivalent solutions when a test is taken, it would be deprived of the opportunity to assess a tenderer’s ability to comply with the specific requirements laid down for a translation project, whereas it has demonstrated that that ability is necessary and that the DOC format is not equivalent to the DOCX format in the light of the contracting authority’s needs.

50 In any event, as the applicant itself states, the obligation to accept functionally equivalent solutions is intended, inter alia, to afford equal access for tenderers. As proved by the files submitted in the tests taken for other lots, the applicant was able to meet the formal requirement to submit files in DOCX format.

51 It follows that the applicant’s line of argument that the Parliament should have accepted the document submitted in the test at issue as being functionally equivalent to the document that should have been submitted, alleging infringement of the principles of non-discrimination, equal treatment, promotion of genuine competition and proportionality, enshrined in Article 160(1) of Regulation 2018/1046, cannot succeed.

52 Accordingly, the first plea, alleging an erroneous assessment of the facts and infringement of the principle of non-discrimination, must be dismissed.

2. The second plea, alleging infringement of the general principles of public procurement and the general principle of good administration

53 In the first place, the applicant submits that the Parliament infringed its obligation to act proportionately, since the evaluation committee had the right, or even the obligation, to contact the applicant in order to correct the obvious clerical error allegedly made in the test at issue, pursuant to Article 160(3) of the Implementing Regulation. Referring to the judgments of 27 September 2002, Tideland Signal v Commission (T‑211/02, EU:T:2002:232), and of 10 December 2009, Antwerpse Bouwwerken v Commission (T‑195/08, EU:T:2009:491), the applicant states that the fact that it saved the test at issue in DOC format and not DOCX format was an oversight which could easily have been rectified and which did not affect the material substance of the test or the tender submitted. The principle of proportionality required the Parliament either to consider that the file submitted in DOC format was functionally equivalent to a file in DOCX format or to allow the applicant to rectify an obvious clerical error by re-submitting the test at issue in DOCX format. Consequently, the rejection decision was neither necessary nor appropriate to achieve the immediate objectives of the test at issue and the wider objective of the procurement procedure for Lot 15.

54 In the second place, the applicant submits that the fact that the Parliament did not seek clarification or permit rectification shows that the Parliament failed to comply with its obligation to act with care when examining the content of each tender. It is apparent from the Court’s case-law that the duty of care, which is a principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case. That duty arises where the competent institution has a power of appraisal, a power which the EU institutions have been recognised as holding in public procurement procedures. A manifestation of that duty is found in Article 96(2) of Regulation No 966/2012, which is expressly based on general principles of administrative law and which, similar to Article 160(3) of the Implementing Regulation, thus provides that, in case of an obvious clerical error in a bid, the evaluation committee has a positive obligation to request clarification or rectification. The Parliament’s assertion that submitting the translated document in the test at issue in DOC format and not DOCX format is not an obvious clerical error is a manifestly erroneous assessment of the facts which led to a breach of its duty to act with care.

55 In response to the Parliament’s argument that the mandatory wording of Article 96(2) of Regulation No 966/2012 was not retained in Article 151 of Regulation 2018/1046, the applicant submits, in essence, that that finding is patently wrong, in so far as, first, the latter provision is drafted in binding terms and, secondly, recital 89 of Regulation 2018/1046, while remaining subordinate to Article 151 of that regulation, provides, inter alia, that the authorising officer responsible should be able to correct an obvious clerical error or request the participant to correct it, so that, where an obvious clerical error is made, the contracting authority should not penalise tenderers without, however, substantially changing the application documents.

56 Furthermore, the issue of the file format is an issue of form which does not materially impact the substance of the test. The Parliament’s decision to reject the applicant’s tender is disproportionate in so far as the Parliament insists that the tender specification concerning the Word file format is to be construed as an eliminatory criterion, whereas it represented only 1 point out of 100 points allocated in the test.

58 The Parliament submits that Article 151 of Regulation 2018/1046, which is not drafted in mandatory terms, affords the contracting authority only the possibility of correcting obvious clerical errors. The wrong format of the document submitted in the test at issue cannot be classified as an obvious clerical error, since it is an eliminatory sub-criterion. If the contracting authority had invited the tenderer to correct the format of the document submitted in the test at issue, this would have led to a different tender from the point of view of the award criteria. Thus, it would have infringed the principle of non-discrimination and equal treatment if it had contacted the applicant about the error made in the context of one of the eliminatory award sub-criteria.

59 The Parliament adds that the rejection of the applicant’s tender for failure to deliver the translation in the test at issue in DOCX format was proportionate to the objective of the test, which was to evaluate the skills that tenderers would need in order to carry out the contract successfully. The tender specifications state, as regards quality requirements, that delivered translations should be ready to be used and should not require any further correction. The technical specifications in Annex I to the tender specifications state that completed translations must be returned to the relevant institution in their original format or in the requested format.

60 Under Article 41 of the Charter of Fundamental Rights, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. In that regard, case-law has made clear that it is for the administration, in accordance with the principle of good administration, to examine all the relevant particulars of a case with care and impartiality and gather all the factual and legal information necessary to exercise its discretion and ensure the proper conduct and effectiveness of proceedings which it sets in motion (see judgment of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 57 and the case-law cited).

61 As set out in recital 89 of Regulation 2018/1046, in line with the principle of good administration, the authorising officer should request clarifications or missing documents while respecting the principle of equality of treatment and without substantially changing the application documents. The authorising officer should have the possibility to decide not to do so only in duly justified cases. In addition, the authorising officer should be able to correct an obvious clerical error or request the participant to correct it. Thus, the first paragraph of Article 151 of Regulation 2018/1046 states that the authorising officer responsible may correct obvious clerical errors in application documents after confirmation of the intended correction by the participant. In accordance with the second paragraph of Article 151 of that regulation, where a participant fails to submit evidence or to make statements, the evaluation committee or, where appropriate, the authorising officer responsible shall, except in duly justified cases, ask the participant to provide the missing information or to clarify supporting documents.

62 The principle of proportionality, which is also pleaded by the applicant, requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. That principle requires that, when the contracting authority is faced with an ambiguous tender, and a request for clarification of the terms of the tender would be capable of ensuring legal certainty in the same way as the immediate rejection of the tender, the contracting authority must seek clarification from the tenderer concerned rather than opt purely and simply to reject the tender (judgment of 25 October 2012, Astrim and Elyo Italia v Commission, T‑216/09, not published, EU:T:2012:574, paragraph 24).

63 In the present case, first, as found in paragraphs 38 and 41 above, the requirement to submit the translated text in the test at issue in DOCX format is an award criterion expressly laid down in the procurement documents, non-compliance with which is penalised by the rejection of the tender in question. It follows that Article 151 of Regulation 2018/1046 is not applicable to the present case. The third paragraph of Article 151 of that regulation provides that any information, clarification or confirmation is not to substantially change application documents. A change which has the effect of rendering admissible a tender which should be rejected due to a failure to comply with an eliminatory criterion can only be regarded as substantial. Furthermore, that article must be read in the light of recital 89 of that regulation, according to which the authorising officer should request clarifications or missing documents, but without substantially changing the application documents and while respecting the principle of equal treatment. It is precisely the latter principle, and the resulting obligation of transparency, which requires the contracting authority to comply with the criteria which it has itself defined. Where, in a tendering procedure, the contracting authority defines the conditions which it intends to impose on tenderers, it places a limit on the exercise of its discretion and cannot subsequently depart from the conditions which it has thus defined in regard to any of the tenderers without being in breach of the principle of equal treatment of candidates (see judgment of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 78 and the case-law cited). Thus, where obligations are clearly laid down in the documents relating to the public procurement procedure – on pain of the operator’s being excluded – the contracting authority cannot accept any rectification whatsoever of failures to comply with those obligations (see, by analogy, judgments of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 49; of 10 November 2016, Ciclat, C‑199/15, EU:C:2016:853, paragraph 30; and of 2 May 2019, Lavorgna, C‑309/18, EU:C:2019:350, paragraph 22). It follows that the Parliament would have infringed the principle of equal treatment of tenderers if it had not complied with the conditions which it had itself defined in the tender documents. It was therefore obliged to reject those tenders which did not fulfil the criteria that had been presented as eliminatory in those documents.

64 The applicant cannot therefore complain that the Parliament infringed the principle of good administration by failing to ask it for clarification or correction of the document submitted in the test at issue before adopting the rejection decision.

65 Secondly, as regards the alleged infringement of the principle of proportionality, it is sufficient to note that, in the present case, the contracting authority was not faced with an ambiguous tender certain elements of which could conceivably have been clarified, with the result that the case-law relied on by the applicant cannot be applied to the present case. On the contrary, the Parliament was faced with a document submitted in the test at issue which did not fulfil one of the eliminatory award criteria, with the result that it could not have requested clarification or correction of the applicant’s failure to submit that document in the correct file format without infringing the principle of equal treatment of all tenderers (see paragraph 63 above). It did not therefore have the choice between several mutually substitutable measures, but was obliged to reject the applicant’s tender. Nor, therefore, could the Parliament have resorted to a less onerous solution by treating the DOC format as equivalent to the DOCX format, contrary to what the applicant claims.

66 It follows that the Parliament likewise did not infringe the principle of proportionality by rejecting the applicant’s tender on the ground that the document which it had submitted in the test at issue did not fulfil one of the eliminatory sub-criteria laid down in the contract documents.

67 Accordingly, the second plea and the application for annulment of the rejection decision must be dismissed.

B. The claim, raised in the alternative, for annulment of the award decision

68 By its third plea, in support of the head of claim put forward if the Court should find that the application for annulment of the rejection decision is unfounded, the applicant alleges infringement of the general principles of public procurement, namely the principles of self-limitation, equal treatment and transparency. The applicant submits, in essence, that the fact that only one tenderer was ranked for Lot 15 should have led to the cancellation of the procurement procedure and the publication of a new procurement procedure for that lot.

69 According to the applicant, the procurement procedure in question and, in particular, the use of the framework procedure, was founded on the premiss that more than two economic operators would have ranked for any given lot, which would have, inter alia, allowed the Parliament to call on secondary contractors in the event that the main contractor declined an assignment. The applicant observes that Article I.7 of the main contract and the tender specifications, under the heading ‘Placement of translation assignments with Secondary Contractors’, provide, in essence, that, where a translation assignment cannot be placed with the main contractor, it will be offered to the highest ranked secondary contractor for the lot. It was important for the Parliament, first, to be able to call on secondary contractors in the event that the main contractor declines an assignment and, secondly, to enjoy the benefit of having multiple economic operators competing for each lot.

70 In addition, it is apparent from the document headed ‘Invitation to Tender and Conditions for Submitting a Tender’ that the Parliament, while retaining discretion, reserved the right to cancel the procurement procedure for a given lot if only two economic operators were ranked for that lot. The decision to award Lot 15 to only one economic operator infringes the terms of the procedure which the Parliament itself dictated ex ante and communicated to all economic operators. By refusing to comply with those terms, it infringed the principles of self-limitation, transparency and equal treatment of tenderers. Furthermore, the principle of genuine competition in public procurement imposes an obligation on the contracting authority to cancel the call for tenders, which it had the right to do. The fact that the possibility for the contracting authority to cancel the award procedure is also provided for in Article 171 of Regulation 2018/1046 means that the cancellation of that procedure for Lot 15 is not only permissible, but imperative. Since the contracting authority is entitled to cancel the tendering procedure under that provision, the wording in tendering procedure TRA/EU19/2019 is, in itself, a limitation on the wider discretion provided for by that provision.

71 Furthermore, the Parliament was not entitled to take into account, in its decision to award Lot 15 to a single tenderer, the fact that that tenderer had successfully performed the main contract following the previous call for tenders, so that it considered that the risk of needing to terminate the contract for reasons of poor quality or other performance requirements was low. Nowhere in the procurement documents or the technical specifications is there any mention of economic operators’ experience of earlier public service contracts concluded with the Parliament. Accordingly, the Parliament infringed the principle of self-limitation by going beyond the parameters which it had itself set in the procurement documents by taking into account matters which were outside the scope of those documents in order to reach its decision whether to award or cancel the call for tenders.

73 The Parliament contends that the contracting authority enjoys a broad discretion to decide whether a tendering procedure should be cancelled or not. It is under no obligation to cancel the tendering procedure when only one or two tenderers have been successful, since the aim of that term in the tender documents is to state the maximum number of contracts per lot and not the minimum.

74 The Parliament states that it did evaluate the risk of proceeding with only one contractor for Lot 15. Since the first placed tenderer for Lot 15 successfully performed the main contract following the previous call for tenders, the Parliament considered that the risk of needing to terminate the contract for reasons of poor quality or other performance requirements was low.

75 The Parliament adds that, pursuant to Article 16.1(d) of Annex I to Regulation 2018/1046, the draft contract annexed to the tender documents is only a draft based on a model contract and is to be adapted based on the outcome of the procurement procedure. It states that, contrary to what the applicant claims, it did not take account of the successful tenderer’s performance of the previous public procurement contract when awarding it the contract under tendering procedure TRA/EU19/2019. It took it into consideration only once the successful tenderer was chosen in order to evaluate the need for a secondary contract in respect of Lot 15. In this case, the contracting authority has a discretionary power to evaluate its needs for translation services for a given language that is not limited by conditions defined in the tender documents.

76 Pursuant to Article 171 of Regulation 2018/1046, the contracting authority may, before the contract is signed, cancel the procurement procedure without the candidates or tenderers being entitled to claim any compensation. The decision is to be justified and brought to the attention of the candidates or tenderers as soon as possible. That provision does not make the contracting authorities’ right to cancel a procurement procedure conditional on the indication, in the calls for tender themselves, of the possible reasons justifying such cancellation. Similarly, there is no requirement to state, in the call for tender documents, the minimum number of tenders required to complete a procurement procedure (see, by analogy, judgment of 5 March 2019, Eurosupport – Fineurop support v EIGE, T‑450/17, not published, EU:T:2019:137, paragraph 84).

77 In the present case, such a limitation on the broad discretion enjoyed by the contracting authority at all stages of the procedure (see paragraph 34 above) is also not apparent from the procurement documents.

78 According to section 2 of the tender specifications and section 8 of the document headed ‘Invitation to Tender and Conditions for Submitting a Tender’ mentioned in paragraph 70 above, to which the applicant refers, the contracting authority envisages the conclusion of a main framework contract and a maximum number of four secondary framework contracts per lot. Nevertheless, if only two framework contracts (a main framework contract and a secondary framework contract) can be awarded per lot, the contracting authority may decide not to award any framework contract for that lot and, instead, to launch a new call for tenders for the translation services in question. It is apparent from the use of the word ‘may’ that the Parliament has the option of deciding not to award any framework contract for the lot in question and to launch a new call for tenders. Those sections cannot be interpreted as fixing a minimum number of framework contracts to be awarded per lot in order to conclude a procurement procedure. It is in no way apparent from those sections that the Parliament is under an obligation to cancel the tendering procedure where only one or two framework contracts can be awarded per lot.

79 Accordingly, the applicant’s claim that the fact that only one tenderer was ranked for Lot 15 should have led to the cancellation of the procurement procedure and the launch of a new call for tenders for that lot must be rejected.

80 Nor can the applicant reasonably argue that the Parliament took into account the successful tenderer’s performance of the earlier public contract in awarding it Lot 15 of the present contract. Such a finding is in no way apparent from the award decision. That decision clearly specifies the methodology used to evaluate the test at issue, the detailed results of that test and the tables in which the tenderers were ranked.

81 The applicant is wrong to claim that it is apparent from the Parliament’s pleadings that it took that fact into account in its award decision. The Parliament has expressly explained that it was after the tenders were evaluated that the finding that the sole successful tenderer had previously successfully performed an earlier contract led it to decide not to cancel the tendering procedure for Lot 15. As already stated in paragraph 34 above, the contracting authority enjoys a broad discretion that also extends to the decision whether or not to cancel a tendering procedure. Judicial review of the exercise of that discretion is therefore limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (judgment of 8 May 2019, Enrico Colombo and Corinti Giacomo v Commission, T‑690/16, not published, EU:T:2019:303, paragraph 81). By applying the award criteria laid down in advance, and then deciding to conclude the procedure, the Parliament neither infringed the procedural rules nor made a manifest error of assessment.

82 In the light of the foregoing, it must be concluded that, by waiving its right to cancel the tendering procedure for Lot 15, the Parliament infringed neither the general principles of public procurement nor, in particular, the principle of self-limitation, as defined in paragraph 63 above.

83 It follows that the third plea, the application for annulment of the award decision and, consequently, the action in its entirety, must be dismissed.

84 Under Article 134(1) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Parliament.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Global Translation Solutions v Parliament (Public service contracts - Tendering procedure - Translation services - Judgment) [2021] EUECJ T-7/20 (06 October 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T720.html Cite as: [2021] EUECJ T-7/20

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