Notice for the OJ

 

Action brought on 14 February 2005 by European Dynamics S.A. against the European Maritime Safety Agency

    (Case T-70/05)

    Language of the case: English

An action against the European Maritime Safety Agency was brought before the Court of First Instance of the European Communities on 14 February 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Korogiannakis, lawyer.

The applicant claims that the Court should:

-    annul the decision of EMSA, to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

-    annul all subsequent decisions of EMSA related to the Tenders under examination in the current application;

-    order EMSA to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed bids in response to EMSA's calls for tenders EMSA C-1/0104-20041 and EMSA C.2/06/042 for the SafeSeaNet Validation and further development and for the marine casualty database, network and management system. By the contested decisions the applicant's bids were rejected and the contracts awarded to another bidder.

In support of its application to annul the contested decisions the applicant claims first of all that the defendant agency violated the principles of good faith and good administration by acting with significant delay and failing to offer adequate answers to the tenderers' requests before the submission of the bids. The defendant refused to answer the applicant's questions, on the grounds that they had not been submitted in time, even though it had accepted indirectly that technical problems under its own control prevented the questions from being received. The applicant considers that had the defendant answered its questions timely and with diligence, it would have been able to submit a more competitive offer.

The applicant further contends that the defendant violated the Financial Regulation3 as well as Article 17 (1) of Directive 92/504 by using evaluation criteria, especially the tenderers' prior experience, that were neither specified nor included in the call for tenders.

The applicant also claims that the defendant committed a manifest error of appreciation in considering that the successful bidder's offer was superior to that of the applicant. In this respect, the applicant contends that no predetermined objective methodology was used to evaluate its offer, that on the contrary the criteria used left room for subjective evaluation and that, finally, there were no clear and objective metrics.

The applicant finally submits that the defendant failed to provide pertinent information and state adequate reasons for its acts by not replying to the applicant's legitimate and timely questions.

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¹ - OJ 200/S 126-10625

² - OJ 200/S 128-108027

³ - Coucil Regulatio (EC, Euratom) No 1605/2002 of 25 Jue 2002 o the Fiacial Regulatio applicable to the geeral budget of the Europea Commuities, OJ L 248, 16/09/2002 p.1

⁴ - Council Directive 92/5/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 29, 24/7/1992 p. 1