JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
24 April 2013 (*)
(Public service contracts –Tender procedure – Market analysis in view of developing a new approach for a website – Rejection of a tenderer’s bid – Obligation to state reasons – Manifest error of assessment – Selection criteria and award criteria – Non-contractual liability)
In Case T‑32/08,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented initially by N. Korogiannakis, and subsequently by M. Roli and M. Stavropoulous, lawyers,
applicant,
v
European Commission, represented by E. Manhaeve, acting as Agent, assisted by J. Stuyck and A.-M. Vandromme, lawyers,
defendant,
APPLICATION, first, for annulment of the decision of the Commission rejecting the tender submitted by the applicant in connection with the call for tenders for a market analysis in view of developing a new approach for the ‘Environment for Young Europeans’ website and, secondly, for compensation,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 12 December 2012,
gives the following
Judgment
Background to the dispute
1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law active in the information technology and communications sector.
2 By contract notice of 28 April 2007, published in the Supplement to the Official Journal of the European Union (OJ 2007 S 83-100898), the Commission of the European Communities launched a call for tenders for the provision of services relating to a market study in view of developing a new approach for the ‘Environment for Young Europeans’ website (‘the call for tenders’).
3 That website, which was launched in 2002, targets 10 to 16 year olds and aims to raise awareness about environmental problems. The call for tenders was for the provision of three main services consisting in, first, comments and feedback on the current website, second, market analysis across Europe on the basis of a survey and, third, a proposal for how to continue with the website.
4 The estimated total maximum budget for the services agreement was EUR 200 000. The call for tenders and the specifications provided that the framework contract would be awarded to the tender which offered the best value for money assessed on the basis of the criteria defined in the specifications.
5 The specifications provided for a three-stage procedure for assessing the tenders and awarding the contract. The first stage was the application of exclusion criteria, the second was the application of selection criteria, and the third was the application of award criteria. Only tenderers meeting the selection criteria were allowed to participate in this third stage, which was carried out in two phases.
6 In the first phase, the candidates were given a mark according to three award criteria concerning understanding (first criterion), methodology (second criterion) and project management and availability (third criterion). Selected tenderers had to score a minimum of 18 points out of 30 for the first award criterion, 24 points out of 40 for the second, and 18 points out of 30 for the third.
7 In the second phase, tenders which had obtained the minimum number of points for each of the three award criteria intended to evaluate the technical quality of the tenders, and had obtained a total of at least 65 points, were deemed to be technically sufficient. The specifications also stated that tenders would be ranked according to the price-quality ratio, corresponding to the price divided by the total number of points awarded. The contract would be awarded to the tender with the lowest price-quality ratio.
8 On 6 June 2007, the applicant submitted a tender, after asking the Commission several questions relating to the call for tenders and receiving replies. Five other undertakings also submitted tenders.
9 By letter of 9 November 2007, the Commission informed the applicant that its tender had been rejected, on the ground that it was not the tender which offered the best value for money having regard to the award criteria and that the contract had been awarded to another tenderer (‘the contested decision’). It stated that the applicant had passed the exclusion and selection criteria, but that, at the third stage, that is to say, the award stage, it had obtained 16.67 points out of 30 for the third criterion relating to project management and availability, whereas the minimum number of points required for that criterion was 18 points. In the third stage, the total number of points obtained by the applicant was 64.34 out of 100 and that obtained by the successful tenderer was 91.17 points.
10 The marks obtained by the applicant were justified as follows:
‘Award criteria 1 – Understanding (min 18 – max points 30)
Standard technical approach demonstrating basic understanding (21.67/30)
Award criteria 2 – Methodology (min 24 – max points 40)
Concerning the survey, it seems that there will be no real interviews and no direct contact with the children. The interviewees will have to access a website and answer questions. Also, some recommendations are already made in the offer but the focus is rather on insignificant details. It seems that the main deliverable is a “final proposal” for a new website, whereas the technical annex stipulated that guidance and recommendations for a strategic approach are requested (26/40)
Award criteria 3 – Project management and availability (min 18 – max points 30)
European Dynamics is an IT company and the composition of the team is not best suited to carry out this project. It is not clear how the environment policy consultant will add value to the project (16.67/30).’
11 By letter of 13 November 2007, the applicant asked to be sent a copy of the evaluation committee’s report and the justification for the marks awarded to its own tender and to that of the successful tenderer.
12 By letter of 16 November 2007, the Commission informed the applicant of the marks awarded to the successful tender, for each of the three award criteria, and of the justification for them.
13 By letter of 6 December 2007, the applicant disputed the assessments of the evaluation committee relating to its tender and requested additional information.
14 By letter of 6 February 2008, the Commission replied that the full extract from the evaluation report concerning the applicant’s tender had already been provided to it. The Commission added that the evaluation committee, having analysed the applicant’s latest comments, maintained its position and it communicated the committee’s replies to the applicant.
Procedure and forms of order sought
15 By application lodged at the Registry of the General Court on 18 January 2008 the applicant brought the present action.
16 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the applicant the sum of EUR 65 565 as compensation for the damage caused by the ‘award procedure’;
– order the Commission to pay all the costs, even if the current application is rejected.
17 The Commission contends that the Court should:
– declare the action for annulment unfounded;
– declare the claim for damages to be inadmissible or, in the alternative, unfounded;
– order the applicant to pay the costs.
18 Since the Judge-Rapporteur was prevented from sitting, the President of the Court reassigned the case to the Fourth Chamber of the General Court and appointed a new Judge-Rapporteur.
19 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure without any preparatory inquiry.
The application for annulment
20 The applicant raises three pleas in law alleging, respectively, a manifest error of assessment, the mixing of selection criteria and award criteria, and insufficient reasoning.
21 The first plea in law is formulated in three parts, each alleging a manifest error of assessment in the application of one of the three award criteria intended to evaluate the technical quality of the tenders. Since the second plea in law, concerning the mixing of selection criteria and award criteria, relates to the implementation of the third award criterion, it must be examined along with the third part of the first plea in law, which also concerns that third award criterion, and it is necessary, for that purpose, to examine the first two pleas in law together.
22 Moreover, it is appropriate to examine first the third plea in law, alleging insufficient reasoning, before subsequently dealing with the first and second pleas in law, alleging a manifest error of assessment and the mixing of selection criteria and award criteria.
23 However, it is necessary, at the outset, to examine the applicant’s preliminary submissions concerning the scope of the review which the Court is called upon to carry out in the present case.
The scope of the Court’s review
24 The applicant submits that in the procedure for the award of public contracts by the institutions of the European Union established by the provisions 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 Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1), as amended inter alia by Regulation No 1261/2005 (OJ 2005 L 201, p. 3, ‘the Implementing Rules’) there is no administrative appeal procedure against the decisions of the evaluation committee.
25 The applicant indicates in that respect that the procedure for the award of public contracts by the institutions of the European Union is therefore different from the legislation applicable to the Member States, which provides for non-judicial remedies, thus reinforcing the principles of transparency and equal treatment between tenderers.
26 Consequently, in the applicant’s view, the General Court should take account of the incomplete nature of the procedure for the award of public contracts by the institutions of the European Union, by carrying out a thorough review of the assessments of the evaluation committee which were repeated by the Commission in the contested decision. The applicant states that a restricted review, limited to declaring invalid manifest errors of assessment, diminishes the possibility of a detailed examination of the substance of the contested decision.
27 In that respect, it must be recalled, first, that under Article 89(1) of the Financial Regulation and in accordance with the Court’s case-law, the institution concerned is required, subject to review by the Courts of the European Union, to ensure the compliance at every stage of the call for tenders procedure with the principle of the equal treatment of tenderers and the principle of transparency which is its corollary, so as to afford equality of opportunity to all tenderers (see, to that effect, Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraphs 108 to 111; Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 39, and judgment of 8 July 2010 in Case T‑331/06 Evropaïki Dynamiki v AEE, not published in the ECR, paragraph 60).
28 In that context, the applicant has not put forward any convincing argument that, in the absence of an administrative appeal procedure against the findings of the contracting authority, the respect for the principles of equal treatment and of transparency are not guaranteed in the context of the procedure for the award of public contracts by the institutions of the European Union.
29 It must be pointed out, secondly, that the procedure followed in the present case was intended to identify the tender which offered the best value for money. It is settled case-law that, in that respect, the Commission has broad discretion with regard to the factors to be taken into account in the implementation of criteria set out in the specifications. 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 (judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragaph 45, and judgment of 15 March 2012 in Case T‑236/09 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 88).
30 The fact that the legislature did not establish an administrative appeal procedure, in the context of the procedure for the award of public contracts by the institutions of the European Union, cannot have any effect on the scope of the review carried out by the Courts of the European Union, as specified in paragraph 29 above. The existence or absence of such an appeal procedure is irrelevant to defining the scope of the Court’s review, since that review is different – both in its nature and the safeguards it presents – from an administrative appeal procedure.
31 It follows from all of the above that the Commission’s findings relating to the call for tenders and the choice of the tender offering the best value for money may only be subject to a restricted review by the Court.
The third plea in law, alleging insufficient reasoning
32 According to the applicant, the Commission did not justify the low scores awarded to the applicant’s tender for the three award criteria intended to evaluate its technical quality. First, the communication of those scores was not sufficient. Only the communication of the reasons that led to those marks would fulfil the obligation to state reasons. Secondly, the Commission did not disclose to the applicant the relative merits of the successful tender. The communication of the list of scores awarded to the successful tender is, in the applicant’s view, insufficient, and the explanations given in that regard are vague and arbitrary.
33 Accordingly, the applicant requests the Court to order the Commission to produce the full evaluation report, including the comparison of the relative merits of the winning tender and the applicant’s tender, as well as a copy of the successful tender.
34 The Commission contends that the contested decision contains an adequate statement of reasons.
35 It should be observed that the specific rules regarding the statement of reasons for decisions rejecting bids submitted by tenderers during a procurement procedure that are applicable in the present case are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
36 It is clear from those provisions, and from the Court’s case-law, that the Commission fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, if requested in writing to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which the request is received (Case T-236/09 Evropaïki Dynamiki v Commission, paragraph 29 above, paragraph 78).
37 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its review (Case T‑236/09 Evropaïki Dynamiki v Commission, paragraph 29 above, paragraph 79).
38 It does not follow from either the first subparagraph of Article 100(2) of the Financial Regulation, the third subparagraph of Article 149(3) of the Implementing Rules or the Court’s case-law, that, on written request by an unsuccessful tenderer, the contracting authority is bound to supply it with full copies of the evaluation report and the successful tender (Order of 13 January 2012 in Case C‑462/10 P Evropaïki Dynamiki v AEE, not published in the ECR, paragraph 39).
39 In the present case, it must be observed, first, that the Commission immediately communicated to the applicant, in the contested decision, the reasons for the rejection of its tender. That decision indicated the score awarded to that tender for each of the three award criteria intended to evaluate the technical quality of the tenders and stated, for each of those award criteria, the reasons why the evaluation committee awarded it that score (see paragraph 10 above). The reasons for the rejection of the applicant’s tender are therefore clear from the contested decision, without prejudice to the assessment of the substance of that rejection (see paragraphs 47 to 89 below).
40 Secondly, it must be pointed out that, in response to the applicant’s letter of 13 November 2007 expressly requesting further information (see paragraph 11 above), the Commission sent the applicant, by letter of 16 November 2007, the scores awarded to the successful tender, for each of the three award criteria intended to evaluate the technical quality of the tenders, and the justification for those scores.
41 The scores awarded, in respect of the three award criteria intended to evaluate the technical quality of the tenders, to the successful tender were justified as follows:
‘Award criterion No 1: Comprehension (min 18 – max 30 points)
Excellent understanding of the issue at hand as well as of all the tasks to be undertaken and the content of the deliverables. The bid is clear and complete (28/30).
Award criteria 2 – Methodology (min 24 – max points 40)
Overall, the methodology is excellent. The content of the analysis is very well pre‑structured and questions/criteria/indicators are explained and clearly defined. The offer also shows a sound knowledge of the functioning of focus groups and other data collections methods. The use of the European School and a panel of independent experts offers specific environmental education expertise needed for the project. Furthermore, creativity and added value are provided: A prototype of a new website will be created for testing purposes, thus allowing the sample groups to better evaluate the contractor’s proposed solution (36/40).
Award criteria 3 – Project management and availability (min 18 – max points 30)
The project team is very well organised and capable of undertaking all of the tasks efficiently (27.11/30).’
42 The examination of that supplementary information, sent by the Commission to the applicant by letter of 16 November 2007, allows the conclusion that the reasons stated for the contested decision were sufficiently clear to enable the applicant to compare, as regards the three award criteria intended to evaluate the technical quality of the tenders, the scores awarded to the successful tender with the scores awarded to its tender, and their respective justifications, and to allow the Court to exercise its power of review. The applicant’s claim that the reasons stated for the contested decision are vague and arbitrary as regards the scores awarded to the successful tender must therefore be rejected.
43 Thirdly, it must be pointed out that the contracting authority was not required to provide a statement of reasons comparing the scores awarded to the unsuccessful tenders, in respect of each award criteria, with those awarded for each of those criteria to the successful tender. Since, in accordance with the specifications, only the selected tenders which had obtained the minimum number of points required for each of the three award criteria intended to evaluate the technical quality of the tenders, and had obtained a total score of at least 65 points, were considered to be technically sufficient and could be taken into consideration at the second step of the award stage (see paragraph 7 above), and since the score awarded to the applicant’s tender, in respect of the third award criterion, was less than the minimum number of points required for that criterion, the Commission could, without breaching its obligation to state reasons, confine itself to providing information to the applicant relating to the scores awarded to its tender and those awarded to the successful tender in respect of each of the three award criteria intended to evaluate the technical quality of the tenders. It was not required to provide the applicant with information relating to the other tenderers or to other award criteria.
44 Consequently, by providing the applicant with the reasons for the rejection of its tender, and, subsequently, at its request, the scores awarded to the successful tender in respect of each of the three award criteria intended to evaluate the technical quality of the tenders and the reasons for those scores, the Commission enabled the applicant to ascertain the reasons for the contested decision and to bring an action against that decision.
45 Moreover, as the unsuccessful tenderers were not entitled to be sent full copies of the evaluation report and the successful tender (see paragraph 38 above), the Court rejects the applicant’s claim that the Court should order the production of those documents.
46 For all of those reasons, the plea in law alleging insufficient reasoning must be rejected as unfounded.
The first and second pleas in law, alleging respectively a manifest error of assessment and mixing of selection criteria and award criteria
47 As a preliminary, it must be recalled that, according to Article 138(2) of the Implementing Rules, the tender offering the best value for money is the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract. It follows that, during the award stage of the procurement procedure, the contracting authority carries out a comparative, overall evaluation on the basis of the scores awarded for the award criteria defined in the specifications (see paragraphs 6 and 7 above).
48 In the present case, the applicant contests the scores awarded to its tender for the three award criteria intended to evaluate the technical quality of the tenders.
49 In that respect, it is clear from the contested decision that the applicant’s tender was rejected on the ground that, in essence, it did not obtain the minimum number of points required as regards the third award criterion, relating to project management and availability. The applicant’s tender obtained 16.67 points out of 30, whereas the minimum number of points required was 18, as noted in paragraphs 6 and 9 above.
50 Since the applicant’s tender did not obtain the minimum number of points required as regards the third award criterion, the Court considers it appropriate to examine first the third part of the first plea in law, alleging a manifest error of assessment in the application of that criterion. As pointed out in paragraph 21 above, the second plea in law, alleging the mixing of selection and award criteria, will be examined in conjunction with the third part of the first plea in law.
51 The score of 16.67 points out of 30 awarded to the applicant’s tender for the third award criterion was justified as follows: ‘European Dynamics is an IT company and the composition of the team is not best suited to carry out this project. It is not clear how the environment policy consultant will add value to the project.’
52 The applicant claims that this finding is contrary to the specifications to the extent that it is based on a mixing of the third award criterion with the selection criterion relating to technical and professional competence. Furthermore, that finding is, it claims, clearly erroneous.
53 The Commission disputes that argument.
54 It is necessary to examine in turn the two complaints relied on by the applicant.
The mixing of selection criteria and award criteria
55 The applicant claims that, in the third stage of the evaluation procedure of the tenders, the Commission mixed the selection criteria and the award criteria by relying, in the application of the third award criterion, on the fact that it was active in the information technology sector and on the composition of its team. It submits that its team had already been evaluated on the basis of the selection criteria, at the second stage of the procedure. It is apparent from the relevant legislation that, during that third stage, the Commission should have assessed the role of the experts’ network and not the skills and qualifications of the members of that network.
56 In that respect, it should be recalled that, under Article 97(1) of the Financial Regulation, contracts are to be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 93, 94 and 96(2)(a) of that regulation has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders.
57 In part 3 of the specifications, entitled ‘Assessment and award of contract’, which defines the exclusion, selection and award criteria, the selection criterion relating to technical and professional competence is defined as follows:
‘Experience as evidenced by the qualifications, both educational and professional, of the service provider or contractor and those of the firm’s managerial staff and, in particular those of the person or persons responsible for carrying out the service/work. Curriculum vitae must be provided.’
58 According to part 3 of the specifications, the third award criterion ‘relates to the quality of project planning, the organisation of the team with a view to managing a project of this nature and the availability of the resources for the completion of the contractual tasks on time’.
59 The selection criteria and the award criteria are therefore clearly defined and are governed by different rules, in accordance with the case-law relied on by the applicant at the hearing (judgment of 12 December 2012 in Case T‑457/07 Evropaïki Dynamiki v EFSA, not published in the ECR, paragraph 63).
60 The sole purpose of the qualitative selection stage is to verify the ability of the tenderers to carry out the contract. In that respect, it is expressly clear from Article 137 of the Implementing Rules that, at the selection stage, the contracting authority is to confine itself to evaluating and verifying the technical and professional capacity of economic operators, depending on the nature, quantity or scale and purpose of the supplies, services or works to be provided, on the basis of, inter alia, the educational and professional qualifications of the service provider or contractor and/or those of the firm’s managerial staff and, in particular, those of the person or persons responsible for providing the services or carrying out the works.
61 However, according to Article 138 of the Implementing Rules, the award criteria are intended to determine the tender offering the best value for money, that is to say, the tender with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the quality and technical merit of the tender. Since Article 138 of the Implementing Rules does not set out an exhaustive list of award criteria, that provision leaves it open to the contracting authority to select the criteria on which it proposes to base the award of the contract. However, that choice is limited to criteria designed to identify the tender offering the best value for money (see, to that effect, Evropaïki Dynamiki v EFSA, paragraph 59 above, paragraph 67).
62 Therefore, award criteria cannot include criteria that are not designed to identify the tender offering the best value for money, but are instead essentially linked to the evaluation of the tenderers’ technical and professional capacity to perform the contract in question (see Evropaïki Dynamiki v EFSA, paragraph 59 above, paragraph 68 and the case-law cited).
63 The applicant is therefore correct in claiming that, at the award stage, the Commission could only evaluate the services proposed, the methodologies and the number of experts involved in the project, and the structure of the team and its organisation. The Commission was no longer entitled to verify whether the experts on the team had the minimum technical and professional capacity required, as such an examination formed part of the prior selection stage.
64 However, it cannot be inferred from either the applicable legislation or the Court’s case-law that the evaluation, at the award stage, of the qualifications and competences of the staff employed should, as a rule, be precluded if it serves to identify the tender offering the best value for money and not the tenderers’ ability to perform the contract, which has already been established (see, to that effect, Evropaïki Dynamiki v EFSA, paragraph 59 above, paragraph 75). The calibre of the staff employed or, more generally, the technical merit of the tender, may affect the performance of a contract for the provision of services in terms of quality and, as result, the economic value of a tenderer’s bid for such a contract (judgment of 20 September 2011 in Case T‑461/08 Evropaïki Dynamiki v EIB, not yet published in the ECR, paragraph 147). In those circumstances, the evaluation, at the award stage, of the qualifications and competences of the staff employed is not intended to determine whether that staff possess the minimum technical and professional capacities required, but rather to evaluate the technical and professional quality, and organisation, of that staff (see, to that effect, judgment of the General Court of 17 October 2012 in Case T‑447/10 Evropaïki Dynamiki v Court of Justice, not published in the ECR, paragraph 49).
65 In the present case, it must be pointed out, first, that it is not apparent from either the reasons stated for the scores awarded to the applicant’s tender, or the evaluation committee’s explanations reproduced in the Commission’s letter of 6 February 2008 that, in the application of the third award criterion, the Commission re-examined the technical and professional capacity of the firm’s managerial staff, experts, or consultants responsible for carrying out various tasks within the project team, in order to verify for a second time the applicant’s capacity to carry out the contract. In that respect, in section 4.1.4 of the applicant’s tender, it is indicated that the team proposed for the project includes two environmental experts, which the applicant confirmed at the hearing, in response to a question from the Court. Although the curricula vitae of those two experts were sent to the Commission and examined at the selection stage, it does not appear from the file, and nor, moreover, does the applicant claim, that, at the award stage, the Commission re-examined the technical and professional capacity of those two experts which formed part of the team proposed for the project.
66 The applicant does however claim that the Commission verified the technical and professional capacity of the members of the ‘eGovernment observatory’ experts’ network. According to the applicant, the evaluation committee found that, on the basis of the information provided in the tender, it did not have sufficient elements to assess whether that network was in a position to provide expertise in environmental policy and education. The evaluation committee observed, inter alia, that the applicant had not identified those experts or provided their curricula vitae, and that it had not explained how those experts would implement their technical competences. Consequently, the evaluation committee found that it could not draw any positive conclusions on their suitability to be part of the team or the organisation of work in the domain of environmental policy and education.
67 In that respect, it is clear from the applicant’s tender that the team proposed for the project did not include members of the ‘eGovernment observatory’ experts’ network. In section 4.1.2 of that tender, titled ‘Proposed project team organisational structure’, the applicant stated that the project would be carried out by a ‘project team’, consisting of the project manager, the quality assurance manager and a ‘Core Team’ consisting of experts. It added that, in addition to the team proposed for the project, there would be an ‘auxiliary team’, whose role would be to assist and consult on the tasks undertaken. At the hearing, the applicant stated, in response to a question from the Court, that the ‘auxiliary team’ would be composed of members of the ‘eGovernment Observatory’ experts’ network. The latter were referred to alongside the team proposed for the project, in the succinct organisation chart set out in section 4.1.2 of that tender, under the designation ‘Infodis Lot 2 Experts Network – Pool of Local and International experts covering the European Union Countries’. In that organisation chart, that reference was placed outside the frame grouping together the various categories of posts included in the project team and was linked only by a dotted line to the post of project manager. Moreover, section 4.1.3.3 of that tender indicates, without any further detail, that the ‘Core Team’ will include two environmental experts and that another group of experts, in particular from the Infodis project, will be made available if necessary. Furthermore, the tender at issue merely indicated that, through the ‘INFODIS Lot 2 “eGovernment observatory”‘framework contract, the applicant had a network of experts covering several fields of expertise, including those related to environmental policy and education.
68 In those circumstances, the capability of the ’eGovernment Observatory’ experts’ network should not have been verified and was not verified in respect of the selection criteria, at the second stage of the tender evaluation procedure. The specifications expressly indicated that the verification of the technical and professional competence, at the selection stage, concerned the members of the team responsible for carrying out the project, in accordance with the provisions of Article 137 of the Implementing Rules, the terms of which it reproduces (see paragraph 57 above).
69 Secondly, it is clear from the Commission’s letter of 6 February 2008 that, in the assessment of the third award criterion, the evaluation committee did not verify the professional competence of the members of the ‘eGovernment Observatory’ experts’ network, but rather evaluated the technical contribution that those experts were likely to make to the work of the project team. In the absence of sufficient information in the applicant’s tender, the evaluation committee did not have the elements allowing it to consider that the experts in that network were in a position to be part of the project team or provide technical competences in the domain of environmental policy and education (see paragraph 66 above).
70 It must be observed that such an assessment was carried out in the context of the evaluation of tenders in respect of the third award criterion, relating to project management and availability, as it is defined in the specifications (see paragraph 58 above). That criterion involves not only an analysis of the planning and the organisation of the work of the team responsible for carrying out the project, but also an examination of the means by which outside experts would be associated with it and of their collective expertise as regards the services to be carried out. It was therefore for the evaluation committee to examine the manner in which the applicant planned, in its tender, to integrate the members of the ‘eGovernment observatory’ experts’ network into the work of the ‘project team’.
71 In particular, in the light of the highly technical nature of the three principle services referred to in the call for tenders, described in paragraph 3 below, and the necessity of organising the project team and having the necessary resources in both the environmental and educational fields, an examination intended to evaluate the qualifications of the auxiliary team and their capacity to be integrated into the project team was justified by the subject of the contract (see, to that effect, Evropaïki Dynamiki v EFSA, paragraph 59 above, paragraph 76). That examination was particularly justified, as regards the subject of the contract, since the ‘project team’ was essentially composed of experts in the field of information technology. The applicant’s tender mentions only two environmental experts and does not refer to any experts qualified in the field of education.
72 In that respect, it is necessary to reject the argument put forward by the applicant at the hearing, according to which the specifications did not require that it be specified in advance which experts would be responsible for which tasks. Since the specifications expressly refer to ‘the organisation of the team with a view to managing a project of this nature and the availability of the resources for the completion of the contractual tasks on time’, the examination of the qualifications of the experts composing the ‘auxiliary team’ and the linking of their tasks with those of the ‘project team’ respects the fundamental principles of equal treatment, non-discrimination and transparency, and does not appear to be incorrect for the purposes of identifying the tender offering the best value for money (see, to that effect, Evropaïki Dynamiki v EFSA, point 59 above, paragraph 76).
73 It follows that the Commission did not apply a selection criterion at the award stage of the procurement procedure. The applicant’s complaint of such an application must therefore be rejected as unfounded.
The manifestly incorrect nature of the Commission’s assessment
74 The applicant claims that the Commission wrongly considered that the composition of the applicant’s team was not the best suited to carry out the project because it is an undertaking active in the information technology sector. That assessment does not, according to the applicant, relate to the third award criterion and is manifestly incorrect.
75 The applicant states that it is clear from paragraph 4.1.2 of its tender that the ‘eGovernment Observatory’ experts’ network would conduct surveys and collect information, in particular in the field of environmental education. Moreover, it claims that sections 3.2.2, 3.2.4, 3.2.5, 4.1.2 and 4.1.3 of its tender specified the role, within the Project team, of each of the environmental policy consultants in the different stages of the implementation of the project.
76 Moreover, the applicant submits that the Commission should specify the profile of the environmental experts in the successful offer.
77 Lastly, the applicant claims that, since its total score of 64.34 points was very close to the minimum of 65 points required, the Commission, in accordance with the principle of sound administration, should have allowed it to remain in competition, because its tender offered better value for money than that of the successful tender.
78 The Commission contests that line of argument.
79 It is appropriate to verify whether the score obtained by the applicant’s tender in respect of the three award criteria is vitiated by a manifest error of assessment as regards the role, in carrying out the project, of, on the one hand, the members of the ‘eGovernment observatory’ experts’ network and, on the other hand, the environmental policy experts in the ‘project team’.
80 First, as regards the ‘eGovernment observatory’, it must be pointed out that, contrary to the applicant’s claims, the Commission did not fail to evaluate the devolved role of that network in the applicant’s tender. On the contrary, it found that the applicant’s tender did not contain any elements showing the capacity of those experts to be integrated into the ‘project team’ and to take part in its work (see paragraph 69 above).
81 The examination of the applicant’s tender confirms the absence of any explanation concerning the manner in which the members of the ‘eGovernment observatory’ experts’ group would participate in the work of the project team. That tender merely indicates that the network would be activated to provide expertise and reliable information on environmental policy and education, in each of the Member States (see paragraph 67 above). In those circumstances, the mere fact, relied on by the applicant, that the Commission had signed, with the applicant, the ‘Infodis Lot 2’ contract, in the context of other procurement procedures, cannot compensate for the lack, in the present case, of sufficient concrete information, in that tender, concerning the contribution of those experts to the performance of the contract at issue. The quality of the tenders must be assessed on the basis of the tenders themselves and not on that of the experience acquired by the tenderers with the contracting authority in connection with previous contracts (Evropaïki Dynamiki v EFSA, paragraph 59 above, paragraph 104).
82 Secondly, as regards the environmental policy consultants, it is clear from the reasons stated for the score awarded to the applicant’s tender, read in conjunction with the Commission’s letter of 6 February 2008, that the evaluation committee found that the applicant’s tender did not show how those consultants would be used in order to determine the relevance and interest, as regards the target audience, of information provided on the ‘Environment for Young Europeans’ website. In that respect, the committee found that those consultants’ tasks were described in an excessively vague manner in that tender, which merely indicated that they would be responsible for all the environmental aspects of the project. Moreover, the tender at issue did not specify how their technical competences would be integrated in the overall process.
83 The examination of the part of the applicant’s tender concerning the third award criterion, in particular sections 4.1.2 and 4.1.3.3 of that tender as regards the project team, confirms the lack of any concrete information relating to the tasks for which the environmental policy experts would be responsible.
84 It is not correct to state, as the applicant does in the reply, that section 3.2 of its tender clearly indicates the role of each of the environmental policy consultants. That tender sets out only in a general manner that the environmental policy consultants will be responsible for all the environmental aspects of the project. The tender does not contain any information concerning the specific work which those consultants will carry out or the linking of that work with that of the other members of the project team, throughout the performance of the contract. Sections 3.2.2.2, 3.2.3.2, 3.2.4.2 and 3.2.5.2 of the tender at issue merely describe the various responsibilities which will be taken on by the project manager and the other members of the ‘project team’ in order to carry out each task. However, that tender does not contain any information on the specific role of the environmental consultants in the performance of those different tasks, whether the elaboration and implementation of questionnaires or the selection of target groups and the organisation of meetings of those groups.
85 The only, very general, reference to the role of the environmental consultants is in the table titled ’Effort Allocation’ in section 3.3.2 of the applicant’s tender. However, that table only refers to the number of those consultants allocated to the evaluation of the current website, to the market analysis across Europe, and to the proposition and testing of a new approach.
86 Thirdly, it follows from paragraphs 79 to 85 above that the score which the evaluation committee awarded to the applicant’s tender in respect of the third award criterion was based on a detailed examination of that tender as regards the role of the various environmental experts and consultants. Contrary to what the applicant suggests, that score was not based solely on the general finding that the applicant is a company active in the information technology sector.
87 Fourthly, the applicant cannot complain that the Commission breached the principle of sound administration by failing to take the applicant’s tender into account at the second step of the award stage, even though that tender had obtained a total score of 64.34 points in respect of the three award criteria intended to evaluate the technical quality of the tenders, a score which was very close to the minimum score of 65 points required. In rejecting that tender on the basis, in essence, that it had obtained only 16.67 points out of 30 in respect of the third award criterion, whereas the minimum number of points required was 18 points, the Commission merely applied the provisions of the specifications.
88 Since the Commission could thus reject the applicant’s tender because it had not obtained the minimum number of points required in respect of the third award criterion, it is not necessary to examine the complaints relating to the first two award criteria (see paragraph 50 above).
89 For all of those reasons, the pleas in law alleging a manifest error of assessment in the examination of the third award criterion and mixing of selection criteria and award criteria must be rejected as unfounded.
90 Accordingly, the application for annulment must be dismissed in its entirety as unfounded.
The claim for compensation
91 The applicant submits that its claim for compensation is admissible and that the conditions for establishing liability on the part of the European Union are met. The claim is based on the Commission’s unlawful conduct in the examination of the three award criteria intended to evaluate the technical quality of the tenders which the applicant has complained of in the application for annulment. It claims that, because of that unlawful conduct, it was not awarded the contract, suffering a loss of profit and incurred costs in participating in the tender procedure.
92 The Commission contends that the claim for compensation must be rejected as inadmissible under Article 44(1)(c) of the Rules of Procedure of the General Court. Moreover, it submits that, in any event, that claim is unfounded.
93 According to the case-law, the non-contractual liability of the European Union depends on proof by the applicant of the unlawfulness of the alleged conduct of the Community institution concerned, the reality of the damage and the existence of a causal link between that conduct and the alleged damage (Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44). Where one of those conditions is not satisfied the application must be dismissed in its entirety without it being necessary to examine the other preconditions for such liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81).
94 In the present case, it must be found that, as regards the assessment of its tender in respect of the third criterion, the applicant has not shown the existence of unlawful conduct on the part of the Commission, complained of in the third branch of the first plea in law and in the second plea in law, as is clear from the Court’s findings in its examination of the application for annulment (see paragraphs 46, 73 and 89 above).
95 Moreover, it must be noted that, as is clear from paragraphs 49 and 50 above, the rejection of the applicant’s tender was not connected with the scores obtained by that tender in respect of the first and second award criteria. Accordingly, no causal link exists between the alleged unlawful conduct relating to those criteria, complained of by the applicant in the first and second parts of the first plea in law, and the damage which it claims to have suffered as a result of the rejection of its tender.
96 It follows that, since the conditions for the European Union’s extra-contractual liability have not been satisfied, the claim for compensation must, in any event, be rejected as unfounded, and it is not necessary to rule on the admissibility of that claim.
97 It follows from all the foregoing that the present action must be dismissed in its entirety.
Costs
98 The applicant requests that, even if the Court were to dismiss the action, the Commission be ordered to pay the costs in accordance with the second subparagraph of Article 87(3) of the Rules of Procedure. It claims that the Commission’s deficient evaluation of its tenders and the failure to state reasons concerning the relative merits of the successful tender forced the applicant to bring the present action.
99 The Commission contests that request.
100 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the second subparagraph of Article 87(3) of those rules, the Court may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.
101 In the present case, it has been found that the applicant failed to show that the reasons stated for the contested decision were insufficient or that the evaluation of its tender was vitiated by a manifest error of assessment (see paragraphs 46 and 89 above). Moreover, the applicant has not provided any evidence that would allow the Court to consider that the Commission unreasonably or vexatiously caused the applicant to incur costs.
102 Accordingly, since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay the costs incurred by the European Commission.
Pelikánová | Jürimäe | Van der Woude |
Delivered in open court in Luxembourg on 24 April 2013.
Table of contents
Background to the dispute
Procedure and forms of order sought
The application for annulment
The scope of the Court’s review
The third plea in law, alleging insufficient reasoning
The first and second pleas in law, alleging respectively a manifest error of assessment and mixing of selection criteria and award criteria
The mixing of selection criteria and award criteria
The manifestly incorrect nature of the Commission’s assessment
The claim for compensation
Costs