JUDGMENT OF THE GENERAL COURT (First Chamber)

10 April 2014 (*)

(Public service contracts — Call for tenders by the Publications Office — Assistance in the provision of publishing and communication services in connection with the CORDIS website — Rejection of a tenderer’s offers and decision to award the contracts to other tenderers — Classification of the tenderer’s offer — Obligation to state reasons — Article 148(1) and (3) of the Implementing Rules — Manifest error of assessment — Non-contractual liability)

In Case T‑340/09,

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

applicant,

v

European Commission, represented initially by S. Delaude and N. Bambara, and subsequently by S. Delaude, acting as Agents, assisted by C. Erkelens, lawyer,

defendant,

APPLICATION, first, for annulment of the decision of the Office for Official Publications of the European Communities, notified to the applicant by letter of 9 June 2009, not to select its tenders submitted in response to call for tender No 10017 (CORDIS) in relation to Lot B, entitled ‘Editorial and publishing services’, and Lot C, entitled ‘Provision of New Digital Information Services’, respectively, and to place its tender, submitted in response to that call for tenders in third position for Lot E, entitled ‘Development and Maintenance of Core Services’, and, second, for damages,

THE GENERAL COURT (First Chamber),

composed of S. Frimodt Nielsen, acting as President, M. Kancheva and E. Buttigieg (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 28 May 2013,

gives the following

Judgment

 Background to the dispute

1        The applicant, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law, operating in the field of information technology and communications.

2        By a call for tenders of 12 December 2008 published in the Supplement to the Official Journal of the European Communities (OJ 2008/S 242-321376, corrigendum OJ 2009/S 40-057377), the Office for Official Publications of the European Communities (‘Publications Office’) issued call for tenders No 10017 (CORDIS) for assistance in the provision of high quality, state-of-the-art, and cost effective publishing and communication services in relation to the Community research and development information service (CORDIS).

3        The abovementioned call for tenders concerned five lots, including Lot B ‘Editorial and Publishing Activities’, Lot C, ‘Provision of New Digital Information Services’ and Lot E ‘Development and Maintenance of Core Services’.

4        The Tender Specifications (‘the specifications’) stated that the tenders would be assessed in three stages, that is to say the exclusion stage, the selection stage and the award stage.

5        In the third stage, the award stage, which is relevant in this case, the specifications laid down that the contracting authority would assess, on the basis of the award criteria, each bid which passed the first and second stages. The assessment was to be made first on the basis of technical criteria and, second, for tenders having satisfied those technical criteria, on the basis of the financial criteria.

6        The technical award criteria were set out, for each lot, in Volume II of the specifications.

7        Point 2.7.2 of Volume II of the specifications concerning Lot B, read in conjunction with clarification No 12, stated that Lot B would be awarded to the tenderer who submitted the most economically advantageous bid on the basis of the following criteria:

8        Point 2.7.2 of Volume II of the specifications concerning Lot C, read in conjunction with Clarifications Nos 5 and 12, stated that Lot C would be awarded to the tenderer who submitted the most economically advantageous bid on the basis of the criteria set out below:

9        Point 2.7.2 of Volume II of the specifications concerning Lot E, read in conjunction with Clarification No 12, stated that Lot E would be awarded to the tenderer who submitted the most economically advantageous bid on the basis of the following criteria:

10      For each of the three lots, it was stated that the mark awarded following the technical assessment corresponded to the sum of the points obtained in the assessment of each criterion. Only those bids which are awarded at least half of the points for each criterion and a total score of at least 65 points will be considered for the award of the contract for the relevant lot.

11      The specifications further specified two points relevant in the present case concerning the technical award criteria.

12      First, the specifications indicated that the Publications Office could contact tenderers only if clarification was required or obvious clerical errors had to be corrected. They also stated that that contact can only lead to clarification of points already mentioned in the bid and may not lead to an alteration of the terms of the bid.

13      Second, paragraph 2.7.2 of Volume II of the specifications concerning lots B, C and E stated that the mere repetition of mandatory requirements set out in those specifications, without going into details or without giving any added value, will result only in a very low score.

14      According to the specifications, only those offers that have passed the previous stages (of exclusion, selection and award) could be considered for the final evaluation.

15      With regard in particular to lots B and E, the specifications stated that they would be awarded to the three tenderers whose tenders presented the best quality/price ratio. For each lot, the successful tenderers would be ranked on a list in descending order, with the tenderer offering the best quality/price ratio ranked in first place. The latter would be offered an order or a specific contract in preference to the other successful tenderers.

16      With regard to lot C, the specifications stated that it would be awarded to the eight tenderers whose tenders presented the best quality/price ratio. Those eight tenderers would again have to compete against each other when a specific contract was to be awarded.

17      The specifications finally set out a mathematical formula in which the quality of the offer and the price proposed would each be given a weighting of 50%.

18      On 16 March 2009, the applicant submitted tenders for Lots B, C and E.

19      By letter of 16 April 2009, the Publications Office requested certain additional information from the applicant concerning its offer for Lot B, to which it replied by letter of 22 April 2009.

20      By letter of 9 June 2009, the Publications Office sent the applicant the results of the call for tenders. That letter provided the following information.

21      With regard to Lots B and C, the letter of 9 June 2009 informed the applicant that its tenders had not been successful as they did not receive a sufficient number of points with regard to the technical award criteria, as set out in the specifications. The letter informed the applicant of the number of points awarded to its tenders, the names of the successful tenderers, the number of points awarded to their tenders with regard to the technical award criteria, the price proposed in their tenders and the quality/price ratio offered by their tenders.

22      As regards Lot E, the letter of 9 June 2009 informed the applicant that its tender had been selected and had been ranked in third place. That letter also informed the applicant of the number of points awarded to its tender and the quality/price ratio that its tender offered, the names of the tenderers ranked above it, the number of points awarded to their tenders with regard to the technical award criteria, the price proposed in their tenders and the quality/price ratio offered by their tenders.

23      By letter of 9 June 2009, the applicant contested the results of the call for tenders with regard to Lots B, C and E and requested the Publications Office to provide it with additional information including the individual scores under each criterion given to its tenders and to the bids of the successful tenderers, a comparative analysis of the strong and weak points of its tenders and those of the successful tenderers, a detailed copy of the evaluation report and the names of the members of the Evaluation Committee, in order to check whether they were subject to any conflicts of interest.

24      In response to the letter of 9 June 2009, by letter of 11 June 2009 the Publications Office sent the applicant an extract from the evaluation report indicating the scores awarded to the successful tenders and to the applicant’s tenders in respect of each technical award criterion, as well as the Evaluation Committee’s comments regarding each of the successful tenders and the applicant’s tenders under each technical award criterion. The Publications Office refused to disclose the names of the members of the Evaluation Committee, maintaining that that was confidential information.

25      By letter of 12 June 2009, the applicant submitted observations concerning the marks awarded in respect of its tender for Lot C under technical award criteria Nos 2 and 3 and invited the Publications Office to complete its evaluation in the light of those observations.

26      In response to the letter of 12 June 2009, the Publications Office, by letter of 19 June 2009, contested the applicant’s observations on the score awarded to its tender for Lot C with regard to technical award criterion No 2 and therefore refused to re-evaluate it. On the other hand, it did take into consideration the applicant’s observations in relation to technical award criterion No 3 and increased the score given by 2 points.

27      By letter of 19 June 2009, the applicant replied to the arguments of the Publications Office contained in the letter of the same day and reiterated its request that it reconsider the score given to its tender for Lot C in relation to technical award criterion No 2.

28      By letter of 24 June 2009, the applicant submitted detailed observations on the Evaluation Committee’s comments regarding its tenders for Lots B and E, which had been sent to it in the letter from the Publications Office dated 11 June 2009. In essence, the applicant submitted that those comments were based on manifest errors of assessment and that it had been the victim of discriminatory behaviour by the Publications Office. Finally, it repeated its request to the Publications Office to send it the names of the members of the Evaluation Committee to check whether they were subject to any conflicts of interest.

29      In its letter of 7 July 2009, responding to the applicant’s letter of 19 June 2009, the Publications Office continued to refuse to re-evaluate the applicant’s tender for Lot C and called upon the applicant to desist from further correspondence on the matter.

30      By letter of 7 July 2009, the applicant informed the Director-General of the Publications Office of the issue connected with the evaluation of its tender for Lot C.

31      Responding to the letter of 7 July 2009, the Director-General of the Publications Office, by letter of 13 July 2009, drew attention to the fact that the applicant had failed to introduce any relevant new arguments in its letter and decided to cease all contacts with regard to the applicant’s tender for Lot C. She also rejected the applicant’s argument that it had been the victim of discrimination.

32      Moreover, in response to the letter of 24 June 2009, the Publications Office, by letter of 15 July 2009, submitted inter alia that the evaluation of the tenders had been carried out in an objective and non-discriminatory way, ensuring equal treatment to all tenderers. That evaluation was based on the award criteria specified in the contract notice and in the specifications. The Publications Office thus rejected the applicant’s allegations contained in the letter of 24 June 2009 as inappropriate and without foundation and called upon the applicant to desist from further correspondence on the subject.

33      By letter of 27 July 2009 addressed to the Directors-General of the Office européen de lutte antifraude (European Anti-Fraud office) (OLAF) and the Publications Office, the applicant informed them of an anonymous letter which it had received that same day, according to which one of the successful tenderers for Lots C and E had formed a ‘secret strategic partnership’ with a tenderer for Lot B who is also the incumbent contractor of CORDIS, with the result that the prohibition on multiple bids in the award procedures for the various lots, laid down in the specifications, had not been observed. The applicant asked the two addressees of its letter to conduct further investigations into the content of that anonymous letter and to inform it of the results of those investigations.

34      By letter of 7 August 2009, the Publications Office acknowledged receipt of the applicant’s letter of 27 July 2009, stating that it would reply to it after analysing the facts in that letter.

35      By letter of 25 November 2009, the Publications Office stated that, in so far as the invitation to tender at issue was subject to legal proceedings before the General Court, it would refrain from commenting on the subject raised by the applicant in the letter of 27 July 2009.

 Procedure and form of order sought by the parties

36      By application lodged at the Registry of the General Court on 19 August 2009, the applicant brought this action.

37      Upon hearing the Report of the Judge-Rapporteur, the General Court (First Chamber) decided to open the oral procedure and, in respect of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put some written questions to the parties and asked them to lodge certain documents. The parties acceded to those requests within the period prescribed.

38      The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 28 May 2013.

39      The applicant claims that the Court should:

–        annul the Publication Office’s decision, contained in the letter of 9 June 2009, not to select its tenders for Lots B and C and to rank its bid for Lot E as third, and all subsequent decisions related to the decision in the aforementioned letter, including the one awarding the lots at issue to the successful tenderers;

–        order the European Community to compensate it for the damage suffered in the context of the invitation to tender at issue;

–        order the Commission to pay the costs, even if the present action is dismissed.

40      The Commission contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

 Law

I –  Application for annulment

A –  Admissibility

41      By its first head of claim, the applicant seeks annulment of the decision contained in the letter of the Publications Office of 9 June 2009 and of all subsequent decisions related to that decision, including the one awarding the lots at issue to the successful tenderers.

42      With regard to the application to annul the decision contained in the letter of the Publications Office of 9 June 2009, that application must be held admissible.

43      With regard to the request to annul all subsequent decisions related to that decision contained in the letter of the Publications Office of 9 June 2009, including that awarding the lots in question to the successful tenderers, the applicant stated, in reply to a question posed by the Court at the hearing, that its action sought essentially the annulment of the decision contained in the Publication Office’s letter of 9 June 2009. Furthermore, the application for annulment of the other decisions linked to the decision contained in that letter must be held to be inadmissible. Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, as well as under Article 44(1)(c) of the Rules of Procedure of the General Court, all applications initiating proceedings are to state the subject-matter of the proceedings and to include a summary of the pleas on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review. In order to guarantee legal certainty and the sound administration of justice, the basic legal and factual particulars relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself (Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 96). In the present case, the applicant does not specify what further decisions are covered beyond the decision contained in the letter of 9 June 2009 and does not put forward any arguments in support of its request for annulment of those other decisions.

44      Consequently, what must be examined is only whether the application for annulment of the decision contained in the letter of 9 June 2009 not to select the applicant’s tenders for Lots B and C and to place its tender for Lot E in third position (‘the contested decision’) is well founded.

B –  Substance

45      In the course of the hearing, the applicant withdrew, first, the plea alleging the infringement of the principle of non-discrimination, the infringement of the exclusion criteria laid down in the specifications, the infringement of Articles 93(1) and 94 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), as amended by Council Regulation (EC) No 1525/2007 of 17 December 2007 (OJ 2007 L 343, p. 9) (‘the Financial Regulation’) and the breach of the principle of sound administration, in so far as that plea concerned the participation in the invitation to tender at issue of Intrasoft International (‘Intrasoft’) and of Siemens IT Solutions and Services and, second, the plea alleging infringement of Articles 106 and 107 of the Financial Regulation, linked to the breach of the principles of transparency and non­discrimination.

46      Having withdrawn the two abovementioned pleas, the applicant bases its application for annulment of the contested decision, first, on a plea alleging infringement of the obligation to state reasons, second, on a plea alleging infringement of Article 148(1) and (3) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation No 1605/2002 (OJ 2002 L 357, p. 1), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13) (‘the Implementing Rules’) and of the principles of sound administration and equal treatment, third, on a plea alleging breach of the principle of non-discrimination, infringement of the exclusion criteria laid down in the specifications, infringement of Articles 93(1)(f) and 94 of the Financial Regulation and breach of the principle of sound administration, in so far as that plea concerns the participation of Siveco in the invitation to tender for the award of Lots C and E to it and, fourth, on a plea based on the existence of manifest errors of assessment, breach of the principle of equal treatment and the introduction of new technical award criteria in the specifications.

1.     Plea alleging breach of the obligation to state reasons

47      The applicant complains that the Publications Office infringed the obligation to state reasons as provided for in Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules. In that regard, it submits that, for each of the lots in question, the contracting authority provided it with only general and vague information concerning the relative advantages of the tenders of the successful tenderers or the tenders better placed than its own.

48      The applicant also submits that a number of the comments of the Evaluation Committee concerning the offers for Lots B and E, contained in the extract of the evaluation report communicated to it, are vague and lacking in depth, which makes it difficult for it to understand the scores given to those tenders.

49      The applicant finally requests the Court to order the Publications Office to send it the Evaluation Report in its entirety together with copies of the successful tenders because, in the absence of those documents, it cannot fully exercise its rights and the General Court cannot exercise its review.

a)     General issues

50      At the outset, it must be noted that the institutions of the European Union enjoy broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. Judicial review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraph 33, and judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

51      In addition, where an institution has broad discretion, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union courts verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Evropaïki Dynamiki v Commission, cited at paragraph 50 above, paragraph 54; and VIP Car Solutions v Parliament, cited at paragraph 43 above, paragraph 61).

52      It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and case-law cited).

53      For the award of public service contracts, as is the case here, the obligation to state reasons is given specific expression by Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, according to which a contracting authority fulfils its obligation to state reasons if it confines itself, first, to informing unsuccessful tenderers immediately of the reasons for the rejection of their tender and then subsequently, if expressly requested to do so, provides to all tenderers who have made 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 days from the date on which a written request is received (Evropaïki Dynamiki v Commission, cited in paragraph 50 above, paragraph 47, and judgment of 17 October 2012 in Case T‑447/10 Evropaïki Dynamiki v Court of Justice, not published in the ECR, paragraphs 71 and 76).

54      That manner of proceeding satisfies the purpose of the duty to state reasons, 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 assert their rights; and, on the other, to enable the Court to exercise its supervisory jurisdiction (see Evropaïki Dynamiki v Commission, cited in paragraph 50 above, paragraph 48, and Evropaïki Dynamiki v Court of Justice, cited in paragraph 53 above, paragraph 72, and the case-law cited).

55      Finally, it should be added that compliance with the duty to state reasons must be assessed in the light of the information available to the applicant at the time when the action is brought (Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 58).

56      It is in the light of the abovementioned principles that it must be examined, separately for each lot, whether the Publications Office infringed, in the present case, the obligation to state reasons laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. In that regard, account must be taken of the letters of 9 and 11 June 2009 sent by the Publications Office to the applicant before the present action was brought.

b)     Statement of reasons in relation to Lot B

 Letter of 9 June 2009

57      By its letter of 9 June 2009, the Publications Office informed the applicant that its tender had not been successful for Lot B, since it had failed to obtain the minimum number of points required by the specifications concerning the technical award criteria. That letter informed the applicant that its tender had obtained 50.5 points from a maximum of 100 points, whereas the minimum required by the specifications was 65 points.

58      The letter of 9 June 2009 also informed the applicant that the framework contract in relation to Lot B had been proposed to the two other tenderers listed (in order of priority) whose tenders satisfied all the criteria laid down in the specifications and offered the best quality/price ratio: in the first place, to a consortium of Intrasoft and the European Services Network (members) (points for the technical award criteria: 65.4; financial offer: EUR 7 988 760; quality/price ratio: 93.54) and, second, to Tipik Communication Agency (points for the technical award criteria: 75.1; financial offer: EUR 10 999 996.52; quality/price ratio: 86.46).

59      The letter of 9 June 2009 finally informed the applicant of its right to request in writing information on the characteristics and relative advantages of the successful tenders.

60      It follows that, by the letter of 9 June 2009, the Publications Office satisfied the obligation, provided for in Article 100(2) of the Financial Regulation, to inform the applicant of the reasons why its tender was rejected and the names of the successful tenderers. Nevertheless, that provision also requires that a contracting party communicate the characteristics and relative advantages of the successful tender, at their written request, to all unsuccessful tenderers. In the present case, it is not disputed that the applicant submitted an admissible tender within the meaning of the abovementioned provision and that it requested, by letter of 9 June 2009, additional information on the results of the invitation to tender, including the characteristics and relative advantages of the successful tenders. The applicant was, therefore, entitled to receive information on the characteristics and relative advantages of those offers.

 The letter of 11 June 2009

61      Following the applicant’s letter of 9 June 2009, the Publications Office, by letter of 11 June 2009, sent the applicant an extract of the Evaluation Committee’s report. With regard to Lot B, that extract contained the scores awarded to the applicant’s tender and to the tenders of the successful tenderers with regard to each technical award criterion and sub-criterion. That extract also contained brief comments by the Evaluation Committee on each of the tenders with regard to each technical award criterion and sub-criterion.

62      As a preliminary point, it should be mentioned that the letter of 11 June 2009 was sent by the Publications Office within the period of fifteen calendar days from the receipt of the applicant’s written request of 9 June 2009 and thus fulfils, in that regard, the temporal requirements laid down by Article 149(2) of the Implementing Rules.

63      It must then be checked whether the extract of the Evaluation Committee’s report contained in the letter of 11 June 2009 enabled the applicant to acquire knowledge of the characteristics and relative advantages of the successful tenders, in accordance with Article 100(2) of the Financial Regulation. It is also necessary to check whether that extract, by means of the information contained in it, enables the applicant to effectively assert its rights before the Court and allows the Court to carry out its review of legality.

64      In that regard, it should be noted that the Evaluation Committee commented on the tenderers’ offers and that those offers were awarded scores in respect of each technical award criterion and sub-criterion. The final mark given to those tenders is the sum of the scores given in respect of each technical award criterion and sub­criterion.

65      The applicant also refers to the vague and abstract nature of a number of the comments made by the Evaluation Committee.

66      Accordingly, the Court considers that the checks referred to in paragraph 63 above must relate to the information given to the applicant with regard to each technical award criterion and sub-criterion.

67      With regard to technical award criterion No 1, marked out of 70 points, with a minimum score of 35 points, the extract of the evaluation report contains the following information.

68      With regard to the first sub-criterion, ‘Editorial portfolio management’, marked out of 15 points, without a required minimum, the extract of the evaluation report informed the applicant that its tender had received 6.3 points out of 15. The Evaluation Committee’s comments on the tender were as follows:

‘(+) reference to every item of the specifications, but (-) very limited own approach, generally copy/paste of the specifications, the company says what it will have to do but does not explain how it will do it, (-) no clear description of the roles and responsibilities of the team.’

69      The extract of the evaluation report also informed the applicant that the tender submitted by Tipik Communication Agency (‘the Tipik tender’) had obtained 11.5 points out of 15 and that the evaluation committee’s comments on the tender were as follows: ‘(+) very strong on the editorial portfolio management (+) convincing tracking tool, (o) mixed opinion on data quality management.’ The Evaluation Committee’s extract also informed the applicant that the tender of the consortium of Intrasoft and European Services Network (‘the Intrasoft tender’) had obtained 8.9 points out of 15 and that the committee’s comments on the tender were as follows:

‘(+) roles and responsibilities are indicated, (-) limited description of process.’

70      The Court considers that the abovementioned information enabled the applicant first of all to understand the reason why it had received a relatively low score with regard to the sub-criterion ‘Editorial portfolio management’ and to contest before the Court whether it was justified. The information revealed that, according to the Evaluation Committee, the applicant’s tender was essentially a copy/paste of the specifications, without added value and without sufficient explanation of the manner in which the applicant would carry out the tasks described in its tender. It also emerges that, according to the Evaluation Committee, the applicant’s tender failed to include a clear description of the role and responsibilities of the proposed team.

71      The Court also takes the view that the abovementioned information enabled the applicant to acquire knowledge of the characteristics and relative advantages of the successful tenders which scored more highly than its tender with regard to the abovementioned sub-criterion. Thus, it follows from that information that Tipik’s tender, which got the best mark, presented inter alia a convincing tracking tool, whereas Intrasoft’s tender, which received the second best score, indicated the roles and responsibilities of the proposed team. In addition, it can be inferred from the extract of the evaluation report that the Tipik tender and the Intrasoft tender did not have the disadvantages of the applicant’s tender and in particular the lack of added value owing to the copy-pasting of the specifications.

72      It follows that, with regard to the sub-criterion ‘Editorial portfolio management’, the reasoning contained in the letter of 11 June 2009 is sufficient to satisfy the requirements set out in paragraph 63 above.

73      With regard to the second sub-criterion, that is, ‘Editorial activities’, marked out of 15 points, with no required minimum, the extract of the Evaluation Report informed the applicant that its tender had obtained 6.4 points out of 15. The comments of the Evaluation Committee on that tender stated as follows:

‘(-) limited elaboration on the specifications (-) no work flow (-) the CORDIS technology offer is a copy/paste of the specifications (point 3.7), (-) point 3.13 focuses on strategic development which is a task for Lot A and not Lot B, (-) the moderation process itself is not described, (-) point 3.6 consists of one-and-a-half page of copy-paste and half a page of the company’s own ideas.’

74      The extract of the evaluation report also informed the applicant that the Tipik tender had obtained 9.4 points out of 15 and that the comments of the Evaluation Committee concerning that tender were as follows: ‘(+) clear workflow, (+) how editorial consistency is achieved, (-) no mention of moderation activities, (-) no scientific personnel already working for the company.’ The extract of the evaluation report also informed the applicant that the Intrasoft tender had obtained 9.4 points out of 15 and that it had received the following comments from the Evaluation Committee: ‘(-) the approach for moderation is limited in detail’. In addition, with regard to the part of the tender drafted in response to section 3.7 of the specifications, the following comments were made:

‘(+) good understanding of what is currently missing in CORDIS, (-) workflow of the offer assessment and rewriting process is mentioned but not clearly described.’

75      The Court considers, first, that the score awarded to the applicant’s tender is sufficiently reasoned. That score, which is rather low, reflects the fact that the tender contained, according to the Evaluation Committee, copy/paste in section 3.6, entitled ‘Authoring and content development’ and in section 3.7, entitled ‘CORDIS technology offers’, of the specifications, whereas it contained no workflow statement or description of moderation activities.

76      In addition, the abovementioned comments enabled the applicant to acquire knowledge of the characteristics and relative advantages of the tenders which scored more highly than its tender with regard to the sub-criterion in question. Thus, it follows from that information that the Tipik tender was notable for its clear workflow details, whereas it was evident from the drafting of the Intrasoft tender in reply to section 3.7 of the specifications that the tenderer had a good understanding of what was currently lacking in CORDIS. In addition, it can be inferred from the extract of the evaluation report which was communicated that the two tenders previously mentioned did not have the disadvantages of the applicant’s tender, in particular the lack of added value owing to the copy-pasting of the specifications.

77      It follows that, with regard to the sub-criterion entitled ‘Editorial activities’, the reasoning contained in the letter of 11 June 2009 is sufficient to satisfy the requirements of paragraph 63 above.

78      With regard to the third sub-criterion, entitled ‘Content collection, processing and publication activities’, marked out of 15 points, without a minimum requirement, the extract of the evaluation report informed the applicant that its tender had obtained 6.3 points out of 15 and that the comments of the Evaluation Committee on that tender were as follows:

‘(+) reference to every item of the specifications but (-) very limited own approach, generally copy/paste of the specifications, (-) the company does not sufficiently elaborate its own approach (‘could be retrieved …ʼ (point 3.1.1.1.8 of the offer)).’

79      The extract of the Evaluation Committee’s report also informed the applicant that the Tipik tender had obtained 9.4 points out of 15 and that it had been commented upon by the Evaluation Committee as follows: ‘(+) logical workflow, (o) mixed opinion on data quality management, (-) the offer does not explicitly mention the process of data collection, (-) data quality management very basic.’ The extract of the evaluation report also informed the applicant that the Intrasoft tender had obtained 10 points out of 15 and that it had received the following comments from the Evaluation Committee:

‘(+) generic workflow with an overview of the collection and processing activities, (-) point 3.7, workflow of the offer assessment and rewriting process is mentioned but not clearly described.’

80      The Court takes the view first that the score awarded to the applicant’s tender in relation to the abovementioned sub-criterion is sufficiently reasoned. The Evaluation Committee emphasises the fact that, with regard to this sub-criterion, the applicant’s tender amounts in general to a copy/paste of the specifications, it having failed to present its own approach to the execution of the tasks described in that document. The evaluation committee also gives a specific example in that regard drawn from point 3.1.1.1.8 of the applicant’s tender, entitled ‘Content Formats’.

81      The General Court also considers that the extract of the Evaluation Committee’s report enables the applicant to acquire knowledge of the characteristics and relative advantages of the tenders which scored more highly than its tender with regard to that sub-criterion. The Evaluation Committee’s comments show that it assessed the workflow explanations contained in the two successful tenders: the explanation in the Tipik tender was described as ‘logical’ whereas that in the Intrasoft tender was praised for the fact that it provided a generic view of the content collection and processing activities. In that regard, it is not possible to accept the applicant’s argument that the comment based on the wording ‘(+) generic workflow with an overview of the collection and processing activities’ concerning the Intrasoft tender was negative in nature, which would render the higher mark given to that tender (in relation to the sub-criterion in question) than to the applicant’s tender incomprehensible. In fact, while the term ‘generic’, taken on its own out of context, could perhaps have a negative connotation, the fact remains that the applicant can appreciate, by use of the plus sign ‘(+)’ preceding the comment in question and the high score given to the Intrasoft tender (10 points out of 15), that that comment was of a positive nature, thus expressing the Evaluation Committee’s opinion that the explanation of the workflow contained in the Intrasoft tender covered the activities of content collection and processing.

82      It follows from the above considerations that, with regard to the sub-criterion ‘Content collection, processing and publication activities’, the reasoning contained in the letter of 11 June 2009 satisfies the requirements set out in paragraph 63 above.

83      With regard to the fourth criterion, entitled ‘Translation, proofreading and other multilingual services’, marked out of 10 points, without a minimum requirement, the extract of the evaluation report informed the applicant that its tender had obtained 4.6 points out of 10. That extract also informed the applicant that the evaluation committee had made the following comments on its tender:

‘(-) no methodology, (-) no explanation of the workflow, (-) copy/paste of the specification without added value.’

84      The extract of the evaluation report also informed the applicant that the Tipik tender had obtained 9 points out of 10 and that it had received the following comments from the Evaluation Committee: ‘(+) inhouse translators for all languages that regularly follow training, (+) workflow convincing, (+) tracking tool is an efficient way of management, (+) control of the quality of the translations as part of the workflow, (-) knowledge of translating web content and scientific material.’ The extract of the Evaluation Committee report also informed the applicant that the Intrasoft tender had obtained 8.3 points out of 10 and that that tender had been commented upon as follows by the Evaluation Committee:

‘(+) all requested services are covered, (-) workflow of the translation process is mentioned but not clearly described.’

85      It must be observed that the mark given to the applicant’s tender is sufficiently reasoned. The Evaluation Committee considered that that tender did not give any indication of the methodology or workflow and that it amounted, as already stated in relation to the other sub-criteria, to a copy/paste exercise without any added value.

86      The abovementioned comments of the Evaluation Committee also enabled the applicant to acquire knowledge of the characteristics and relative advantages of the successful tenders. Thus, it follows from the comments of the Evaluation Committee that the Tipik tender obtained a very good mark because, inter alia, that company has a team of inhouse translators covering all the languages, who undertake regular training, and, second, that tender contains a convincing workflow explanation which covers the control of translation quality. The comments of the Evaluation Committee also make clear that Intrasoft’s tender covered all the services requested by the specifications, without having the disadvantages of the applicant’s tender, which are that it contains no methodology and provides no added value compared to the specifications.

87      It follows from the foregoing that, with regard to the sub-criterion ‘Translation, proofreading and other multilingual services’, the reasoning contained in the letter of 11 June 2009 satisfies the requirements laid down in paragraph 63 above.

88      With regard to the fifth sub-criterion, entitled ‘Templating of new services (graphic design) and other graphical support’, marked out of 10 points, without a required maximum, the extract of the evaluation report informed the applicant that its tender had received 4.1 points out of 10. That extract also contained the following comments of the Evaluation Committee regarding that tender: ‘(+) on page 19, paragraph 3.10, the offer describes a process, but only partly [and regarding] paragraph 3.11 (-) theoretical approach that could be read in any textbook, (-) simple list of things that the company will provide.’

89      The extract of the evaluation report also informed the applicant that the Tipik tender had obtained 8.3 points out of 10 and that it had received the following comments from the Evaluation Committee: ‘(+) inhouse photolibrary, (+) awareness of issues related to multilingualism on the web, (+) very strong on usability, (0) mixed opinion on the capability regarding layout for diverse media, (-) no mention of technologies proposal.’ The extract of the evaluation report also informed the applicant that the Intrasoft tender had obtained 6 points out of 10 and had been the subject of the following comments by the Evaluation Committee:

‘[P]oint 3.5 (-) the description of the process is very limited, (-) emphasis is on design for the web, (-) point 3.11, workbook approach, explanation of how [the proposals contained in the tender] will be applied to CORDIS limited’.

90      First, the Court notes that, contrary to the evaluation of the applicant’s tender which contained a positive comment (and two negative ones), the assessment of the Intrasoft tender contained only negative comments and that, none the less, that tender received a better mark than that of the applicant in relation to that sub­criterion.

91      Second, the Court notes that both the applicant’s tender and that of Intrasoft were the subject of similar criticism by the Evaluation Committee with regard to their explanations in reply to section 3.11 of Volume II of the specifications concerning Lot B. Both tenders attracted the same criticism of being, in essence, too theoretical.

92      Third, the Court notes that both the comments in relation to the Intrasoft tender and those concerning the applicant’s tender were directed at specific points of detail of the two tenders and there was no difference in their nature such as to justify the difference between the marks given to the two tenders.

93      Accordingly, the Court considers that, as argued by the applicant, the information made available to it in the evaluation report does not enable it to understand the mark awarded to its tender in relation to the present sub-criterion and, in particular, the reason why that mark is less than that awarded to the Intrasoft tender. The applicant is also not in a position to understand the characteristics and relative advantages of the Intrasoft tender which would warrant the higher mark received by the latter. The conclusion must therefore be that, in relation to the sub­criterion ‘Templating of new services (graphic design) and other graphical support’, the reasoning contained in the letter of 11 June 2009 does not satisfy the criteria laid down in paragraph 63 above.

94      With regard to the sixth and last sub-criterion of criterion No 1, entitled ‘Training and information support services’, marked out of 5 points, without a required minimum, the extract of the evaluation report informed the applicant that its tender had obtained 2.5 points out of 5 and been commented on as follows by the Evaluation Committee:

‘(+) the overall approach goes from initial analysis through to evaluation and updating of courses, the theory is comprehensive, (-) limited application to the CORDIS needs and without detailed consideration of users’ needs’.

95      The extract of the evaluation report also informed the applicant that the Tipik tender had obtained the maximum available points concerning this sub-criterion, that is to say 5 points out of 5, and that it had received the following comments from the Evaluation Committee: ‘(+) good training plan, (+) logistics for training, (+) catering for training needs.’ The extract of the evaluation report also informed the applicant that the Intrasoft tender had obtained 2.6 points out of 5, accompanied by the following comments of the Evaluation Committee: ‘(+) good understanding of CORDIS needs, (-) limited description of materials and the full training cycle’.

96      The Court considers first that the abovementioned information enabled the applicant to understand the reason for the mark given to its tender. The Evaluation Committee considered in essence that that tender, while satisfactory from a theoretical perspective, did not take the needs of CORDIS users specifically into account.

97      The abovementioned information also enabled the applicant to acquire knowledge of the characteristics and relative advantages of the successful tenders. That information revealed that the Tipik tender contained a good training plan and foresaw satisfactory logistics for training, whereas the Intrasoft tender, in contrast to the applicant’s tender, took greater account of the needs of CORDIS users.

98      It should therefore be concluded that, with regard to the sub-criterion ‘Training and information support services’, the reasoning contained in the letter of 11 June 2009 satisfies the requirements set out in paragraph 63 above.

99      With regard to technical award criterion No 2, marked out of 10 points, with a minimum required of 5 points, the extract of the evaluation report informed the applicant that its tender had obtained 7 points out of 10, that is to say the best mark of all the tenderers with regard to this criterion. The comments of the Evaluation Committee on the applicant’s tender are as follows:

‘(+) very short deadlines, (-) concern for risk in the turnaround of the work and the possibility to maintain quality.’

100    The extract of the evaluation report also informed the applicant that the Tipik tender had obtained 6.9 points out of 10 and that it had received the following comments: ‘(+) very good quality management, (+) relatively longer, but possibly more realistic, deadlines, (-) very low values for liquidated damages points’. With regard to the Intrasoft tender, the extract of the evaluation report informed the applicant that that tender had obtained 6.4 points out of 10 and that it had received the following comments from the Evaluation Committee:

‘(-) relatively short deadlines for the items relating to layout for diverse media indicate a potential risk to quality, (+) comprehensive, taking account of specific conditions relating to certain units’.

101    The Court notes that the Evaluation Committee’s comments concerning the applicant’s tender are contradictory to some extent, in so far as, in its first comment, the Evaluation Committee assessed positively the fact that the applicant proposed short deadlines in its tender for execution of the tasks to be carried out whereas, in the second comment, it expressed doubts regarding the applicant’s capacity to provide quality services because of those very short deadlines. That contradiction is confirmed by the Evaluation Committee’s comment concerning the Tipik tender about ‘relatively longer but possibly more realistic deadlines’ which, read in conjunction with the comments concerning the applicant’s tender, leads to the legitimate conclusion that the Evaluation Committee would have granted a higher mark than 7 out of 10 to the latter tender if it had proposed longer deadlines, which does not make any sense.

102    It follows that the abovementioned comments did not enable the applicant to understand what the Evaluation Committee would have expected from its tender with regard to the proposed deadlines in order to award it a higher score.

103    In addition, the comment of the Evaluation Committee expressing doubt regarding the applicant’s ability to provide a quality service owing to the very short deadlines proposed is vague in so far as it does not specify to which of the activities proposed in the applicant’s tender it refers. The applicant’s tender proposed strict deadlines for a number of important activities in relation to section 2.4, entitled ‘Collection, preparation and delivery of content for the publishing’, section 2.5, entitled ‘Layout for different media’, section 2.6, entitled ‘Authoring and content development’ and section 2.9, entitled ‘Templating of new services’, of Volume II of the specifications dealing with Lot B. Thus, the applicant is unable effectively to challenge the comment before the Court so that it can show that it is not well founded and is manifestly erroneous.

104    Precisely because of the broad discretion enjoyed by the Publications Office in relation to public procurement, the comments of the Evaluation Committee, which served as the basis for the decision to award the contract, must be sufficiently clear and specific so as to enable the applicant to acquire knowledge of the elements of law and fact on which the Publications Office based its decision. Only such reasoning enables the applicant to assert its rights before the Court and the Court to exercise its supervisory jurisdiction (see, to that effect, Evropaïki Dynamiki v Court of Justice, cited in paragraph 53 above, paragraph 96). In the present case, the negative comment of the Evaluation Committee did not enable the applicant to acquire knowledge of those elements.

105    On the basis of the foregoing considerations, it must be concluded that, with regard to technical award criterion No 2, the reasoning contained in the letter of 11 June 2009 does not satisfy the requirements set out in paragraph 63 above.

106    With regard to award criterion No 3, marked out of 10 points with a minimum required of 5 points, the extract of the evaluation report informed the applicant that its tender had obtained 5.3 points out of 10. The Evaluation Committee’s comment with regard to that tender stated as follows:

‘(-) Mostly theoretical and does not sufficiently describe how it could be applied to a real examples [sic] of QTMs [quoted time and means estimates].’

107    The extract of the Evaluation Report also informed the applicant that the Tipik tender had received 7.8 points out of 10 and that that tender had received the following comments from the Evaluation Committee: ‘(+) very clear, (+) well structured, (+) one worked example, (-) undestimation of the complexity’. The extract of the Evaluation Committee’s report also informed the applicant that the Intrasoft tender had obtained 7.5 points out of 10 and that, with regard to that tender, the Evaluation Committee had made the following comments:

‘(+) clear workflow with roles and responsibilities, (+) structured offer, (-) no worked example’.

108    The Court considers, first, that the abovementioned comments of the Evaluation Committee enabled the applicant to understand the score of 5.3 out of 10 awarded to its tender. According to the Evaluation Committee, the applicant’s tender was essentially theoretical and failed to give examples of how the applicant would deal with a request for quoted time and means or describe the methods which would have to be used.

109    The Court also considers that the abovementioned comments of the Evaluation Committee enabled the applicant to acquire knowledge of the characteristics and relative advantages of the tenders which obtained a higher score than its tender. It can thus be inferred from that information that, in contrast to the applicant’s tender, the Tipik tender contained a specific concrete example of how the tenderer would deal with a request for quoted time and means. That tender was also categorised by the Evaluation Committee as being very clear and well structured. Contrary to the applicant’s arguments, those comments are not deprived of any meaning in the context of an evaluation procedure: ‘clarity’ and ‘good structure’ are comments which make perfect sense when assessing a written proposal, meaning that those remarks can justify the scores given. It is also clear from the comments of the Evaluation Committee that the Intrasoft tender contained a clear statement of the workflow and the roles and responsibilities of the persons employed and that it was structured.

110    It must therefore be concluded that, with regard to technical award criterion No 3, the reasoning contained in the letter of 11 June 2009 satisfies the requirements set out in paragraph 63 above.

111    With regard finally to technical award criterion No 4, marked out of 10 points with a required minimum of 5 points, the extract of the evaluation report informed the applicant that its tender obtained the best score, that is 8 out of 10. That tender was the subject of the following comment by the Evaluation Committee: ‘(+) clear and comprehensive presentation’.

112    The extract of the evaluation report also informed the applicant that the Tipik tender had received 7.8 out of 10 points and was commented upon as follows by the Evaluation Committee: ‘clarity’, (+) very good project plan including Maelstrom, (-) slightly optimistic, (-) no mention of interaction with other lots.’ The extract of the Evaluation Committee also informed the applicant that the Intrasoft tender received 6.3 points out of 10 and that it had received the following comments from the Evaluation Committee:

‘(+) Interaction between the lots is considered, (-) timing of activities is mentioned but not presented in a clear chart’.

113    The Court considers that the abovementioned information of the Evaluation Committee did not enable the applicant to understand the score awarded to its tender. Taking into account the positive nature of the only comment provided by the Evaluation Committee concerning that tender, the applicant is unable to understand the reason why its tender did not receive the maximum number of points provided for in the specifications, that is to say 10 points, and on what basis two points were deducted from its tender. The Court notes in that regard that, in the context of the sixth sub-criterion of technical award criterion No 1, the Tipik tender, having also received only positive comments from the Evaluation Committee, obtained the maximum points available, that is to say 5 out of 5 (see paragraph 95 above). Accordingly, the Court considers that, with regard to technical award criterion No 4, the reasoning contained in the letter of 11 June 2009 does not satisfy the requirements laid down in paragraph 63 above.

114    That inadequacy of reasoning cannot be offset by the elaboration provided by the Commission in the proceedings before the Court, according to which the applicant’s tender did not obtain the maximum grade because it did not contain enough information in relation to e.g. the proposed hardware deployment or disaster recovery during take-over. Those explanations were provided for the first time in the course of the proceedings before the Court. As a consequence, taking into account the principle that compliance with the duty to state reasons must be assessed in the light of the information available to the applicant at the time when the action is brought (see paragraph 55 above), the abovementioned explanations may not be taken into account for the purposes of the assessment of compliance with that obligation.

 Interim conclusion

115    In the light of the foregoing considerations, it must be held that the contested decision is not sufficiently reasoned with regard to the fifth sub-criterion of technical award criterion No 1 and technical award criteria Nos 2 and 4. However, it should be pointed out that where a number of components of the statement of reasons for a decision on their own provide a sufficient legal basis for that decision, any inadequacy of the other components of the decision has no effect on its operative part (Case T‑210/01 General Electric v Commission [2005] ECR II‑5575, paragraph 42; judgment of 9 September 2010 in Case T‑387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 59; see also, by analogy, Joined Cases C‑302/99 P and C‑308/99 P Commission and France v TF1 [2001] ECR I‑5603, paragraphs 26 to 29). In such a case, the decision cannot be annulled on account of the inadequacy of the statement of reasons unless it is found not only that the statement of reasons for certain components of the decision is inadequate but also that the other components of that decision which are not vitiated by inadequate reasoning do not provide a sufficient legal basis for justifying that decision (Case T-387/08 Evropaïki Dynamiki v Commission, cited above, paragraph 59).

116    In the present case, the reasoning related to the technical award criteria and sub­criteria, with the exception of the fifth sub-criterion of criterion No 1 and criteria Nos 2 and 4, is sufficient. Even if the applicant had been awarded the full number of points available for the technical award criteria and sub-criteria in respect of which the statement of reasons was inadequate, it would not, in any event, have scored the minimum total of 65 points that would have enabled it to proceed to the financial stage. In such a case, the applicant’s tender would obtain only 61.4 points.

117    Nevertheless, in so far as the evaluation of the tender with regard to the other technical award criteria and sub-criteria which are not vitiated by inadequate reasoning is contested in substance by the fourth plea in law, that plea must be examined before a conclusion can be reached on whether the inadequacy of the statement of reasons with regard to the fifth sub-criterion of technical award criterion No 1 and technical award criteria Nos 2 and 4 can lead to the annulment of the contested decision in relation to Lot B.

c)     Statement of reasons with regard to Lot C

 Letter of 9 June 2009

118    By letter of 9 June 2009, the Publications Office informed the applicant that its tender had not been successful for Lot C, since it had failed to obtain the minimum number of points required by the specifications concerning the technical award criteria. That letter informed the applicant that its tender had obtained 59 points out of a maximum of 100 points, whereas the minimum required by the specification was 65 points.

119    The letter of 9 June 2009 also informed the applicant that the framework contract in relation to Lot C had been proposed to the two other tenderers listed (in alphabetical order) whose tenders satisfied all the criteria laid down in the specifications and offered the best quality/price ratio: first, to ABG (points for technical award criteria: 68; financial offer: EUR 2 760 450; quality/price ratio: 70.22), second, to Bibliomática (points for technical award criteria: 65; financial offer: EUR 2 187 150; quality/price ratio: 75.85), third, to a consortium formed by Siveco (bid leader), Artemis (member) and Reggiani (member) (points for technical award criteria: 72; financial offer: EUR 1 573 380; quality/price ratio: 94.17) and, fourth, to Sword Technologies (points for technical award criteria: 81.5; financial offer: EUR 2 741 000; quality/price ratio: 78.70).

120    It should also be noted that the letter of 9 June 2009 also informed the applicant of its right to request in writing information on the characteristics and relative advantages of the successful tenders.

121    By the letter of 9 June 2009, the Publications Office satisfied thus its obligation, provided for in Article 100(2) of the Financial Regulation, to inform the applicant of the reasons why its offer was rejected and the names of the successful tenderers.

 Letter of 11 June 2009

122    It should be recalled that, by letter of 11 June 2009, the Publications Office sent the applicant an extract of the Evaluation Committee’s report. With regard to Lot C, that extract contained the scores awarded to the applicant’s tender and to the tenders of the successful tenderers with regard to each technical award criterion and sub-criterion. That extract also contained brief comments by the Evaluation Committee on each of the tenders with regard to each technical award criterion and sub-criterion.

123    The applicant does not call into question the sufficiency of the comments of the Evaluation Committee with regard to its understanding of the scores which were awarded to its tender with regard to each technical award criterion and sub­criterion. It nevertheless complains that the contracting authority failed to inform it of the relative advantages of the tenders of the successful tenderers.

124    The extract of the report of the Evaluation Committee communicated to the applicant by letter of 11 June 2009 shows that the applicant’s offer obtained zero points with regard to technical award criterion No 2 because the document submitted by the applicant in relation to that criterion was not relevant. The minimum number of points required by the specifications for technical award criterion No 2 was 10. The extract of the Evaluation Committee report also informed the applicant that the offers of the successful tenderers had obtained good scores with regard to technical award criterion No 2, the best score having been awarded to Sword Technologies which obtained 16 points out of 20.

125    The extract of the report of the Evaluation Committee also informed the applicant that its tender had obtained a low score, that is to say 4 points out of 10, with regard to technical award criterion No 3 and that the Evaluation Committee criticised it for not having completed the draft Service Level Agreement (SLA) and for providing liquidated damages only for general Key Performance Indicators (KPIs) and not for performance KPIs. The extract of the Evaluation Committee report also informed the applicant that the tenders of the successful tenderers had obtained very good scores with regard to technical award criterion No 3, three tenders having obtained 9 points out of 10 and the fourth 7.5 points out of 10. According to that extract, the common characteristics of the tenders which obtained 9 points out of 10 were, first, their clear explanation of the approach followed by the tenderers, second, the fact that the KPIs proposed were well balanced and, third, the fact that the tenderers proposed additional KPIs.

126    The extract of the Evaluation Committee’s report finally informed the applicant that its tender had obtained the highest score with regard to technical criterion No 4, that is to say 8.5 points out of 10, and the second best score with regard to technical award criterion No 1, 46.5 points out of 60, only the tender of Sword Technologies having obtained a better score under that criterion, 48 points out of 60. That slight difference of scores between Sword Technologies and the applicant’s tender can be explained inter alia by the different scores in relation to sub-criterion No 1, entitled ‘Coding’, for which the tender of Sword Technologies obtained 9 points out of 10, whereas the applicant’s tender obtained 7 points out of 10. The comments of the Evaluation Committee concerning the tender of Sword Technologies with regard to the sub-criterion entitled ‘Coding’ were as follows:

‘Very good. The tenderer proposes automated documentation and automated testing of this code. Software inspections and code reviews are supposed to be conducted on a regular basis.’

 Interim Conclusion

127    It follows from the abovementioned arguments that, by means of the extract of the Evaluation Committee report communicated to the applicant by letter of 11 June 2009, the applicant was able to acquire knowledge about the relative characteristics and advantages of the successful tenders. Those advantages concern, inter alia, technical award criterion No 2, for which the applicant obtained zero points. It must therefore be concluded that the plea alleging a deficiency in reasoning must be rejected with regard to Lot C.

d)     Reasoning with regard to Lot E

 Letter of 9 June 2009

128    By letter of 9 June 2009, the Publications Office informed the applicant that its tender had been selected and placed in third position. By that letter, the Publications Office also communicated to the applicant the name of the successful tenderers placed in first and second position, the final score awarded to each of the three successful tenders with regard to the technical award criteria, the price of each of the financial offers and the quality/price ratio presented by each tender.

129    According to that letter, the tender submitted by the consortium formed by Siveco (bid leader), Artemis (member) and Reggiani (member) was placed in first position (points for technical award criterion: 76.25; financial offer: EUR 1 398 178; quality/price ratio: 100), the tender submitted by the consortium formed by ARHS (bid leader) and Siemens IT Solutions and Services (member) in second position (points for technical award criterion: 76; financial offer: EUR 1 563 142; quality/price ratio: 93.35) and the tender submitted by the applicant in third position (points for technical award criteria: 73; financial offer: EUR 1 896 940; quality/price ratio: 82.83). For ease of reference, the Court will refer infra to the tenders classified in first and second position as ‘the Siveco tender’ and ‘the ARHS tender’, respectively.

130    It must therefore be held that, by its letter of 9 June 2009, the Publications Office satisfied its obligation, provided for in Article 100(2) of the Financial Regulation, to inform the applicant of the reasons for the placement of its tender in third position and the names of the tenderers who were ranked above it. It must also be held that the letter of 9 June 2009 enabled the applicant to understand that the main weakness of its tender was the fact that its price substantially exceeded the price proposed by the tenders placed in first and second position.

 Letter of 11 June 2009

131    With regard to Lot E, the extract of the Evaluation Committee Report communicated to the applicant by letter of 11 June 2009 contained the scores awarded to the applicant’s tenders and to the tenders of the tenderers ranked above it in relation to each technical award criterion and sub-criterion. That extract also contained the Evaluation Committee’s comments on each criterion and sub­criterion.

132    With regard to the applicant’s complaint that the contracting authority failed to communicate to it the characteristics and relative advantages of the tenders ranked above its tender, it must be held that, as is apparent from the extract of the Evaluation Committee’s report, the applicant’s tender obtained the best score among the tenders accepted with regard to technical award criteria Nos 1, 3 and 4 but only a mediocre score, 10 points out of 20, with regard to technical award criterion No 2, whereas, with regard to the latter criterion, the more highly-ranked tenders each obtained 15 points out of 20. There is therefore no doubt that, from a technical point of view, the relative advantages of the tenders ranked above that of the applicant concern technical award criterion No 2. The comments of the Evaluation Committee informed the applicant that, with regard to technical award criterion No 2, the tenders ranked above its tender are characterised by the fact that they propose additional KPIs and precisely describe the conditions for the application of liquidated damages, whereas its tender was criticised for the fact, inter alia, that the liquidated damages were defined as a percentage of the deliverable’s value, which makes them difficult to calculate.

133    It follows from the foregoing considerations that, by means of the extract of the Evaluation Committee report communicated to the applicant by letter of 11 June 2009, the applicant was able to acquire knowledge of the characteristics and relative advantages of the tenders ranked above its tender, those advantages concerning technical award criterion No 2. It must also be noted that the letter of 9 June 2009 enabled the applicant to understand that the price of its tender for Lot E was the highest of the successful tenders. Consequently, the applicant’s complaint that the contracting authority did not communicate to it the characteristics and relative advantages of the tenders ranked above its tender must be rejected.

134    The applicant also submits that, with regard to certain technical award criteria and sub-criteria, the comments of the Evaluation Committee are vague and do not permit it to understand the scores awarded to its tender relating to them.

135    In that regard, the Court finds, in the first place, that, with regard to the first, second, third, sixth and seventh sub-criteria of technical award criterion No 1 and criteria No 2 and 4, the comments of the Evaluation Committee are specific, precise and indicate succinctly but sufficiently clearly both the strong and weak points of the applicant’s tender, thus enabling it to understand the scores given with regard to those criteria and sub-criteria and the reason why those scores, the majority of which were high, were not even higher.

136    In particular, with regard to the first sub-criterion of technical award criterion number 1, entitled ‘Project and quality management’, the applicant’s offer obtained 8 points out of 10 because, in essence, of the fact that it contained a good description of the project and quality management activities but failed clearly to identify the links between those activities. Among the positive aspects of the tender, reference is made to the fact that there is a detailed plan for the due diligence period. As a negative aspect of the tender, the Evaluation Committee notes that the tender contains a discrepancy between the graphic and the accompanying text on page 5.

137    With regard to the second sub-criterion of technical award criterion No 1, entitled ‘Detailed design’, the applicant’s tender received the score of 10.5 points out of 13.75. The Evaluation Committee noted as a positive aspect that the tender contained a good description of the design and an extensive list of the tools and methods, but that it did not contain information on how they would be used. The Evaluation Committee also noted that the tender contained a lot of information on the detailed design but that the relationships between the elements of information were not clearly defined.

138    With regard to the third sub-criterion of technical award criterion No 1, entitled ‘Coding’, the applicant’s tender obtained 10.5 points out of 13.75. The Evaluation Committee stated that the applicant’s tender contained a sufficient explanation of the coding activities. Nevertheless, the approach to the source-code management was not particularly adapted to the agile development methodology mentioned in the tender proposal.

139    With regard to the sixth sub-criterion of technical award criterion No 1, entitled ‘Transferring of the development’, the applicant’s tender received 4 out of 5 points. The Evaluation Committee stated in its comments that that tender contained a description of all the steps in the process of transfer of the development to the hosting party but that the transition between those steps was not always clear.

140    With regard to the seventh sub-criterion of technical award criterion No 1, entitled ‘Production of documentation’, the applicant’s tender received 3.5 out of 5 points. The Evaluation Committee noted that the tenderer’s offer contained a good description of the process of production as such but no information about the possible content of the documents mentioned by way of example.

141    With regard to technical award criterion No 2, the applicant’s tender, as already stated (in paragraph 132 above), obtained 10 points out of 20, being criticised inter alia for the fact that it defined the liquidated damages as a percentage of the deliverable’s value, which makes them difficult to calculate (see also paragraph 259 below).

142    With regard finally to technical award criterion No 4, the applicant’s tender received 8 points out of 10. That tender was praised for the fact that it clearly identified the work packages. It was nevertheless criticised for the fact that the technical environment proposed by the tenderer for take-over activities did not take into account specific requirements of the ICA2 and CMS2 tools. The offer was also criticised for not foreseeing risk management activities.

143    In the second place, the Court finds that, with regard to the fourth, fifth and eighth sub-criteria of technical award criterion No 1 and to technical award criterion No 3, the applicant’s complaint referred to in paragraph 134 is well founded.

144    First, with regard to the fourth sub-criterion of technical award criterion No 1, entitled ‘Testing’, marked out of 5 points, the extract of the Evaluation Committee report informed the applicant that its tender had obtained 4.5 points out of 5. The comments of the Evaluation Committee on that tender were as follows:

‘Very good description of the testing approach. The testing methodology to be used is well explained, including the various types of testing to be performed.’

145    The Court considers that, taking their entirely positive nature into account, the abovementioned comments do not enable the applicant to understand the reason why its tender did not obtain the maximum amount of points available, that is to say, 5 points out of 5, with regard to the present sub-criterion.

146    Before the Court, the Commission pointed out that while the applicant’s tender was good, it was not excellent, which explained why it did not obtain a higher mark. According to the Commission, the applicant could have provided more added value as regards the implementation of the testing in the CORDIS environment.

147    Nevertheless, in the light of the principle set out in paragraph 55 above, that explanation by the Commission submitted for the first time before the Court may not be taken into account in assessing the adequacy of the reasoning given.

148    It must therefore be held that, with regard to the sub-criterion ‘Testing’, the reasoning contained in the letter of 11 June 2009 does not satisfy the requirements set out in paragraph 63 above.

149    Second, with regard to the fifth sub-criterion of technical award criterion No 1, entitled ‘Assistance’, marked out of 2.5 points, the extract of the evaluation report informed the applicant that its tender had obtained 1.5 points out of 2.5. The comments of the Evaluation Committee concerning that tender read as follows:

‘Good understanding of the 3rd level help-desk responsibilities, however some practical aspect could be described in depth. The tenderer proposes an extensive training to the third parties which will be responsible for the support and maintenance after expiry of the guarantee period.’

150    It must therefore be held that the only part of the abovementioned comments which could explain the loss of one point by the applicant’s tender is that stating that ‘some practical aspect could be described in depth’. There is however no indication which practical aspects of the tenderer’s offer relating to the sub­criterion ‘Assistance’ could be described in more detail.

151    Before the Court, the Commission stated that the abovementioned comment meant that there was only a general description of its tender relating to assistance, without providing an added value as regards the implementation within CORDIS. According to the Commission, the applicant failed to present information on how its approach to providing assistance would interact in the real CORDIS environment. It must therefore be held that, apart from the fact that, applying the principle stated in paragraph 55 above, that clarification by the Commission may not be taken into account in assessing the adequacy of the reasoning given, that clarification still does not provide a response to the question which practical aspects of the applicant’s tender relating to the assistance could be described in greater detail.

152    It must therefore be concluded that, in relation to the sub-criterion ‘Assistance’, the reasoning contained in the letter of 11 June 2009 does not satisfy the requirements laid down in paragraph 63 above.

153    Third, with regard to the eighth sub-criterion of technical award criterion No 1, entitled ‘Refactoring’, marked out of 5 points, the extract of the Evaluation Report informed the applicant that its tender had obtained 4 points out of 5. The comment of the Evaluation Committee relating to that tender was: ‘Good, even if some elements are theoretical’.

154    That comment is vague and concise and does not enable the applicant effectively to contest before the Court whether it is well founded. Before the Court, the Commission pointed out that the comment concerned inter alia the points entitled ‘Refactoring/Unification on the source code’, ‘Implementation’ and ‘Testing’ of the applicant’s tender. However those clarifications, which could easily be included in the extract of the Evaluation Committee’s report, thus permitting the applicant effectively to assert its rights before the Court, cannot, applying the principle laid down in paragraph 55 above, be taken into account in assessing the adequacy of the reasoning.

155    Thus, with regard to the sub-criterion ‘Refactoring’, the reasoning contained in the letter of 11 June 2009 does not satisfy the requirements set out in paragraph 63 above.

156    Finally, fourth, with regard to technical award criterion No 3, marked out of 10 points, the extract of the Evaluation Committee report informed the applicant that its tender had obtained 8.5 points out of 10 and had received the following comment from the Evaluation Committee:

‘Good presentation of the tenderer’s approach. Methodologies for calculation of the price, workload and allocation resources are well described’.

157    There is thus no explanation why the applicant’s tender lost 1.5 points.

158    Before the Court, the Commission stated that that tender was not excellent and that was why it did not receive the maximum number of points available. Among the shortcomings, the Commission mentioned the following: first, the length of time taken by the applicant to acknowledge receipt of the request for a time and means quotation and, second, the vague reference to a ‘draft offer’ which was not mentioned again in the tender.

159    It must be held that those clarifications could easily be included in the extract of the Evaluation Committee report communicated to the applicant, which would have enabled it to understand the loss of 1.5 points by its tender and effectively to contest before the Court whether that was well founded. Since those clarifications were provided for the first time during the proceedings before the Court and according to the principle laid down in paragraph 55 above, they cannot be taken into account in assessing the adequacy of the reasoning of the mark granted to the applicant in respect of technical award criterion No 3.

160    Accordingly, with regard to technical award criterion No 3, the reasoning contained in the letter of 11 June 2009 does not satisfy the requirements set out in paragraph 63 above.

 Interim conclusion

161    In the light of the foregoing considerations, it must be held that the contested decision is vitiated by a deficiency of reasoning with regard to the fourth, fifth and eighth sub-criteria of technical award criterion No 1 and award criterion No 3. However, applying the considerations set out in paragraph 115 above, it must be held that, even if the applicant had been awarded the full number of points available for that criterion and those sub-criteria, it would still have been placed in third position because of the proposed price, which is much higher than that proposed by the two other successful tenders.

162    In particular, even if the applicant had obtained 77 points for its tender, its quality/price ratio would have been 84.96, that of the Siveco tender 99.51 and that of the ARHS tender 92.86.

163    None the less, as with the considerations set out in the context of Lot B (see paragraph 117 above), in so far as the evaluation of the tender with regard to the other technical award criteria and sub-criteria which are not vitiated by inadequate reasoning is contested in substance by the fourth plea in law, that plea seeking annulment must be examined before a conclusion can be reached on whether the inadequacy of the abovementioned reasoning can lead to the annulment of the contested decision.

e)     The adoption of measures of inquiry

164    With regard to the applicant’s proposal that the Court adopt measures of inquiry (see paragraph 49 above), by the letters of 9 and 11 June 2009, the contracting authority communicated to the applicant, with the exception of the fifth sub­criterion of technical award criterion No 1 of Lot B, the characteristics and relative advantages of the successful tenders, in accordance with the requirements of Article 100(2) of the Financial Regulation.

165    It must also be observed that, with the exception of the fifth sub-criterion of technical award criterion No 1 and technical award criteria Nos 2 and 4 in Lot B and the fourth, fifth and eighth sub-criteria of technical award criterion No 1 of Lot E and of technical award criterion No 3 of that lot, the contracting authority provided sufficient information enabling the applicant to understand the scores which were awarded to its tenders under the various award criteria and sub-criteria and thus to contest before the Court whether they are well founded. That information also enables the Court to exercise its review of legality, as will be apparent from the following paragraphs. Furthermore, the Court, where it considered that the information contained in the extract of the report of the Evaluation Committee required clarification, posed written questions to the parties and requested documents pursuant to the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure. The parties acceded to those requests within the periods laid down and were able to submit observations on the replies and the documents submitted.

166    In the light of those elements, the Court considers that, in order to exercise its review of legality, it is not necessary to grant the applicant’s request.

2.     The plea in law alleging infringement of Article 148(1) and (3) of the Implementing Rules and of the principles of equal treatment and of sound administration

167    With regard to Lot C, the applicant maintains in essence that, by submitting in reply to technical criterion No 2 a copy of the document submitted in reply to technical award criterion No 4, it made an obvious clerical error within the meaning of Article 148(3) of the Implementing Rules. Pursuant to that provision, but also in accordance with the general principles of sound administration and equal treatment, the contracting authority had the obligation to contact the tenderer to enable it to correct that error. By not acting accordingly and by awarding zero points to its tender with regard to technical award criterion No 2, the contracting authority infringed the abovementioned provision and general principles.

168    Article 148(3) of the Implementing Rules provides that if, after the tenders have been opened, some clarification is required in connection with a tender, or if obvious clerical errors in the tender must be corrected, the contracting authority may contact the tenderer, although such contact may not lead to any alteration of the terms of the tender.

169    It follows that that provision cannot be interpreted as imposing, in the exceptional, limited circumstances which it identifies, a duty on the institutions to contact tenderers (see Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 54).

170    It can be otherwise only if, by virtue of the general principles of law, that power has evolved into an obligation on the part of the Publications Office to contact a tenderer (see Antwerpse Bouwwerken v Commission, cited in paragraph 169 above, paragraph 55 and case-law cited).

171    That is the position, inter alia, where a tender has been drafted in ambiguous terms and the circumstances of the case, of which the Publications Office is aware, suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved. In principle, it would be contrary to the requirements of sound administration for the Publications Office to reject the tender in such circumstances without exercising its power to seek clarification. It would also be contrary to the principle of equal treatment to accept that, in such circumstances, the Publications Office enjoys an unfettered discretion (see Antwerpse Bouwwerken v Commission, cited in paragraph 169 above, paragraph 56 and case­law cited).

172    However, it is also essential, in the interests of legal certainty, that the Publications Office be able to ascertain precisely what a tender submitted in the course of a procurement procedure means and, in particular, to determine whether the tender complies with the conditions set out in the contract documents. Thus, where a tender is ambiguous and the Publications Office is not in a position to establish, quickly and efficiently, what it actually means, that institution has no choice but to reject the tender (see, to that effect, Antwerpse Bouwwerken v Commission, cited in paragraph 169 above, paragraph 58 and case-law cited).

173    In the present case, it should be recalled that the applicant’s tender for Lot C obtained zero points for technical criterion No 2, which required the tenderer to submit ‘a document of maximum 15 pages of A4 format font-size 12 describing the tenderer’s approach to the execution of the tasks related to the software maintenance (methods, standards and tools)’.

174    The comments of the Evaluation Committee contained in the extract of the evaluation report communicated to the applicant, and explaining the zero score, read as follows:

‘Document submitted for the award criterion 2 presents “Tenderer’s methodological approach to handle a request for a quoted time and means” which is not relevant to this criterion. (It is a copy of the document submitted for award criterion 4.) Consequently, as it contains no information relevant for award criterion 2, the Evaluation Committee awarded 0 points for this criterion.’

175    As correctly pointed out by the Evaluation Committee, the document submitted by the applicant in response to technical award criterion No 2 is a copy of a document submitted in response to technical award criterion No 4, according to which the applicant must produce ‘a document of maximum 10 pages of A4 format font-size 12 describing the Tenderer’s approach to handle [sic] a request for a quoted time and means offer (estimation and pricing of the work-load, resources allocation, planning, etc.)’. The two documents differ from each other only with regard to their footers, the footer on the first document reproducing the title of criterion No 2, that is to say ‘Tenderer’s approach to the execution of tasks related to software maintenance’, whereas that of the second document reproduces the title of technical award criterion No 4, that is to say, ‘Request handling for a time and means quotation’.

176    It is in those circumstances that the Evaluation Committee considered that the document submitted by the applicant in response to technical award criterion No 2 was not relevant for the purposes of that criterion. It therefore gave the mark of 0 points to the tenderer’s offer, taking the view that the tender lacked information bearing upon that abovementioned criterion.

177    In the light of the foregoing arguments, the Court is not, first, convinced by the applicant’s argument that the fact that the document submitted in response to technical criterion No 2 was the same as that submitted in relation to technical award criterion No 4 constituted an ‘obvious clerical error’ on its part, within the meaning of Article 148(3) of the Implementing Rules. Both the fact that the document submitted in response to technical criterion No 2 contained in the footer the title of technical criterion No 2, that is to say, ‘Tenderer’s approach to the execution of tasks related to software maintenance’, and the fact that that document had a cover page containing the title of technical award criterion No 2, were such as to entitle the Evaluation Committee to conclude that the applicant deliberately submitted the same document in response to technical award criteria Nos 2 and 4. In other words, taking into account those factual aspects, the applicant’s error cannot be regarded as ‘obvious’. Consequently, on that basis, the Evaluation Committee was correct not to contact the applicant after the tenders were opened.

178    In any case, even assuming that the error made by the applicant constituted an ‘obvious clerical error in the tender’ within the meaning of Article 148(3) of the Implementing Rules, the Evaluation Committee was still right not to contact the applicant in order to correct that error, in so far as it was not at all clear that the applicant could make that correction without its leading to an alteration of the terms of the tender, in infringement of Article 148(3) of the Implementing Rules.

179    With the exception of the document submitted by the applicant in error in response to technical award criterion No 2 and which was not relevant to that criterion, no other document contained in its tender for Lot C could be taken into account by the Evaluation Committee as a response to technical award criterion No 2. It follows that, in order to correct the alleged obvious clerical error made, the applicant would have to replace the document submitted in response to technical award criterion No 2 by another document which was not contained in its tender submitted for Lot C. Such a step would amount to an alteration of the terms of the tender within the meaning of Article 148(3) of the Implementing Rules which the contracting authority is not authorised to allow both under Article 148(3) of the Implementing Rules and according to the principle of equal treatment, which protects the other tenderers who, like the applicant, are subject to the same duty of diligence when preparing their tender.

180    Neither during the administrative process, as is apparent from its letter of 12 June 2009, nor before the Court, did the applicant submit that the Court had to consider as a response to technical criterion No 2 another document already contained in the tender for Lot C. It does however complain before the Court that the Evaluation Committee did not regard the document it submitted in response to the technical award criterion No 1 of Lot E as an answer to technical award criterion No 2 of Lot C, in so far as those two award criteria concerned the same subject and the tenders submitted for Lots C and E were part of the same submission and contained in a single package. According to the applicant, in those circumstances, for the Evaulation Committee to consider the document submitted in response to technical award criterion No 1 of Lot E as an answer to technical award criterion No 2 of Lot C, as requested by the applicant in its letter of 12 June 2009, would not lead to an alteration of the terms of its tender.

181    That complaint by the applicant must be rejected.

182    First, it must be observed that the applicant expressly stated in its tender that it was submitting a set of documents to the contracting authority specifically relating to the technical award criteria for Lot C and a set of documents specifically relating to the technical award criteria for Lot E. The document concerning technical award criterion No 1 for Lot E was therefore part of a set of documents that was clearly distinct from the set of documents pertaining to the technical award criteria for Lot C.

183    Furthermore, that structure of the tender submitted by the applicant follows the requirements of the specifications. Section 2.3 of Volume I of the specifications lays down that, where a tenderer makes an offer for more than one lot, he must, inter alia in relation to the technical award criteria, provide a separate set of documents for each lot.

184    Given the clearly separate approach followed by the applicant to the documentation concerning the technical award criteria of Lot C and the documentation in relation to the technical award criteria of Lot E, the Evaluation Committee was right to refuse to take into account as an answer to technical award criterion No 2 of Lot C the document submitted in response to technical award criterion No 1 of Lot E, in so far as such taking into account would lead to an alteration of the terms of the tender in infringement of Article 148(3) of the Implementing Rules.

185    Second, it must also be held that Lots C and E concern the provision of distinct services. Lot C relates to the provision of new digital information services in the framework of which the successful tenderer is to develop new software, whereas Lot E relates to the development and maintenance of existing CORDIS core services, made up of the following two elements: ‘Integrated CORDIS Architecture (ICA(2))’ and ‘Content Management System (CMS(2))’. As stated by the Commission — without that statement being called into question by the applicant — given that the scope of the two aforementioned lots varies, the requirements when it comes to maintenance of the software (such maintenance being covered by technical award criterion No 2 of Lot C and technical award criterion No 1 of Lot E) are very different in relation to the two lots, meaning that it was not possible to regard the approach to the maintenance of the two lots as identical.

186    Given the differences which distinguish Lot C from Lot E, the Evaluation Committee was right to refuse to consider as an answer to technical award criterion No 2 of Lot C the document submitted by the applicant in response to technical award criterion No 1 of Lot E because were it to do so it would not be able to determine quickly and precisely what the applicant’s tender meant within the meaning of the case-law cited in paragraph 172 above and could not, therefore, quickly and efficiently, assess its value. To accede to the applicant’s request would thus result in infringement of the principles of sound administration and legal certainty and, also, of the principle of equal treatment, to the detriment of the other tenderers who, like the applicant, are all subject to the same duty of diligence when drafting their tender.

187    On the basis of the foregoing considerations, the present plea must be rejected as unfounded.

3.     Plea alleging breach of the principle of non-discrimination as between tenderers, infringement of the exclusion criteria laid down in the specifications, infringement of Articles 93(1)(f) and of Article 94 of the Financial Regulation and breach of the principle of sound administration

a)     Preliminary observation

188    The Commission pleads the inadmissibility of the present plea in so far as, by means of that plea, the applicant complains, in essence, that the contracting authority ‘failed’ to exclude the tenderer in, that is the company Siveco, from the call for tenders in question. Thus, according to the Commission, such a plea should have been founded on Article 232 EC, which concerns an action for failure to act, and not on Article 230 EC, which the applicant used as the legal basis in the present case.

189    The applicant contests the plea of inadmissibility relied on by the Commission.

190    The Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the plea on the merits, without first ruling on the objection of inadmissibility raised by the defendant (see, by analogy, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 52; judgment of 27 June 2007 in Case T‑65/04 Nuova Gela Sviluppo v Commission, not published in the ECR, paragraph 28).

191    In the circumstances of the present case, it is necessary, in the interests of procedural economy, to begin by examining the plea in law put forward by the applicant, without first ruling on the Commission’s objection of inadmissibility, since that plea in law is, on the grounds set out below, unfounded in any event.

b)     Substance

192    The applicant claims, in essence, that there is a secret partnership between Siveco, which tendered for the award of Lots C and E, and Intrasoft, which tendered for the award of Lots B and D, and that the first company is in essence an ‘homme de paille’ (a front) for the second. Therefore, applying the rule of exclusivity among the various lots provided for in the specifications, which entails that the tenderer for Lot D is not permitted to tender for the award of Lots C and E, the Siveco tender may not be accepted for the award of those lots.

193    In support of its argument, the applicant refers to an anonymous letter which it received, informing it of the alleged relationship between the two abovementioned companies (see paragraph 33 above). It also refers to a certain number of elements purporting to prove the veracity of the contents of the letter, such as, inter alia, the recourse by Intrasoft, in the past, to ‘hommes de paille’ in public procurement procedures, cooperation between Intrasoft and Siveco in other tender procedures and the fact that Intrasoft had a production centre in Romania near the offices of Siveco.

194    The applicant also complains that the Publications Office failed to make enquiries concerning the content of the abovementioned anonymous letter, despite being asked by the applicant to do so, thus infringing the principle of sound administration.

195    As a preliminary point, it must be observed that the applicant does not explain in its arguments in what way Article 93(1)(f) and Article 94 of the Financial Regulation, which are referred to in the wording of the plea, are infringed in the present case. The applicant also fails to explain in what way the principle of equal treatment as between tenderers is also infringed. That principle, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers 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 (see, to that effect, Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 34, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 93).

196    Therefore, in the context of the present plea it must be examined whether, in the present case, the specifications were infringed as a result of the alleged conduct of Intrasoft and Siveco, and whether the principle of sound administration was infringed as a result of the alleged failure by the Publications Office to follow up the facts as alleged by the applicant.

197    First of all, it must be held that the applicant failed to submit any specific evidence confiriming its arguments concerning the existence of a secret partnership between the abovementioned companies. The anonymous letter received by it in that regard and which it sent to the Publications Offices does not qualify as such proof because the letter’s origin and its sender are unknown. The applicant’s assumptions concerning the existence of a secret partnership between Intrasoft and Siveco, based essentially on the fact that the first company had recourse to similar practices in the past, the fact that the two companies cooperated in other public procurement procedures and the fact that Intrasoft had a production centre in Romania near the offices of Siveco do not, a fortiori, constitute proof.

198    There are also no other elements in the file which serve to prove the existence of a secret partnership between Intrasoft and Siveco. On the contrary, according to the file, the applicant’s allegations were brought before OLAF which decided, on 23 November 2009, to take no further action on the case. According to point 3.2.3.7 of the OLAF manual entitled ‘Operational Procedures’, of 1 December 2009, no further action is taken on a file inter alia when OLAF concludes that the allegations made are not credible or insufficiently serious, or Union interests do not appear to be at risk

199    On the basis of the evidence in the file, the applicant’s complaint that there is a secret partnership between Siveco and Intrasoft which, pursuant to the specifications, would not permit the contracting authority to accept the tenders made by Siveco in the context of the award of Lots C and E, must therefore be rejected.

200    With regard to the applicant’s complaint concerning the alleged failure by the Publications Office to look into the facts alleged by it, it should be recalled that, following the applicant’s letter of 27 July 2009 informing OLAF and the Publications Office of the existence of the anonymous letter, the Publications Office, by letter of 7 August 2009, informed the applicant that it would reply to its letter of 27 July 2009 after having analysed the facts set out in that letter.

201    By letter of 25 November 2009 addressed to the applicant after the bringing of the action before the General Court, the Publications Office informed it that, in so far as the call for tenders in question was now the subject of legal proceedings, it would refrain from commenting on the subject raised by the applicant in the letter of 27 July 2009.

202    Furthermore, in the rejoinder, the Commission pointed out that it had sought to determine, by means of letters sent to the two companies, whether the content of the anonymous letter received by the applicant reflected actual events and that the two companies denied any form of cooperation in the context of the call for tenders concerned.

203    Finally, in the rejoinder, the Commission also referred as evidence to the decision of OLAF of 23 November 2009 (see paragraph 198 above).

204    Taking all of the abovementioned factors into account, the Court holds that the applicant’s complaint that the Publications Office did not look into those allegations, in infringement of the principle of sound administration, must be rejected as unfounded.

205    The present plea must therefore be rejected.

4.     Plea in law based on the existence of manifest errors of assessment, on breach of the principle of equal treatment and on the introduction of new technical award criteria in the specifications

206    By this plea, the applicant contests, in essence, the validity of the assessments made by the Evaluation Committee with regard to each of the technical award criteria of Lots B and E and their sub-criteria, as communicated to it in the extract of the Evaluation Committee’s report.

207    In that regard, it should be noted that the institutions enjoy a broad margin of assessment with regard to the factors to be taken into account when deciding to award a contract pursuant to an invitation to tender, and that review by the General Court is, thus, 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.

208    It should be recalled that all the applicant’s complaints concerning the vague and concise nature of some of the comments of the Evaluation Committee and the lack of communication of the characteristics and relative advantages of the tenders selected or better placed than its tender were examined in the context of the first plea for annulment.

209    Thus, with regard to Lot B, it was concluded that the reasoning of the contracting authority concerning the scores given to the applicant’s tender in the light of the fifth sub-criterion of award criterion No 1 and of award criteria Nos 2 and 4 was insufficient. With regard to Lot E, the same conclusion was reached with regard to the fourth, fifth and eighth sub-criteria of technical award criterion No 1 and technical award criterion No 3.

210    In the following paragraphs, the Court will examine, in the context of the fourth plea for annulment, the lawfulness of the scores awarded to the applicant’s tender in the light of the technical award criteria and their sub-criteria which are not vitiated by a lack of reasoning.

a)     Lot B

 Technical award criterion No 1

211    It should be recalled that, in response to technical award criterion No 1, the tenderer is obliged to submit a document describing its approach to the execution of the tasks covered by Lot B (methods, standards and tools). Technical award criterion No 1 contains six sub-criteria.

–       The first sub-criterion, entitled ‘Editorial portfolio management’

212    The Evaluation Committee granted 6.3 points out of 15 to the applicant’s tender, criticising it for copy-pasting the specifications and thus for the limited added value. It also criticised the applicant for not having explained how it would complete the tasks set out in its tender. Finally, it criticised the applicant for not having clearly described in its tender the roles and responsibilities of the proposed editorial team.

213    The applicant disputes those allegations. It explains the copy/paste used in its tender by the fact that public procurement tenderers have an obligation to use the exact terms which are indicated in the specifications so that the contracting authority knows that they are referring to the very same task described in the specifications. The applicant adds that the copy/paste of which he is accused consists in reproducing in its tender the key words describing the services requested and provided which are found in the tender specifications. The applicant also contests the criticisms of the Evaluation Committee as to the lack of added value and of detail in its tender, referring inter alia to sections 1.1 and 1.3 of its tender.

214    The Court observes that the Commission provided it with a copy of the applicant’s tender showing, by way of example, parts of that tender amounting to a copy/paste of the specifications and the sections of the specifications concerned by the copy/paste. In the passages identified by the Commission, the applicant reproduces in essence almost word for word the description of the activities which must be undertaken in the context of ‘editorial portfolio management’, as referred to in the specifications. The Court refers inter alia to point 1.1.1.6 of the applicant’s tender, entitled ‘Monthly monitoring and management of incoming research projects and outputs’ and to point 1.1.1.7 thereof, entitled ‘Preparation and Submission of the Monthly Editorial Portfolio Management Report’. Consequently, the Evaluation Committee’s criticism of copy/paste in the applicant’s tender is not vitiated by manifest error.

215    In addition, irrespective of the copy/paste found to have occurred, the applicant fails to prove as manifestly erroneous the Evaluation Committee’s criticism that its tender does not provide any added value compared to the specifications or any details as to how the applicant will carry out the activities described in its tender (that description copying, furthermore, to a large extent the content of the specifications).

216    In order to counter those criticisms, the applicant confines itself to referring in a general way to sections 1.1 and 1.3 of its tender, entitled ‘Editorial Portfolio Management Activities’ and ‘Evolution and Maintenance of the Service Architecture and Processes’, respectively. Nevertheless, apart from that general and abstract reference, the applicant does not specifically explain, for instance by giving examples, to what extent and in what way its tender provides added value as against the content of the specifications. It must be noted in that regard that the applicant’s general and abstract reference is not an approach which could lead the Court to find that the Evaluation Committee made a manifest error of assessment, in so far as that reference, without further specification, presupposes that the Court is a ‘second’ Evaluation Committee and that it will condemn every error or imprecision committed by the Evaluation Committee. However, that is not the Court’s role when reviewing the manifest error of assessment relied upon by the applicant (see, to that effect, judgment of 9 September 2011 in Case T‑232/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 190). In order to prove a manifest error of assessment, the applicant must provide the Court with the information necessary to permit it to determine the existence of that manifest error.

217    In any case, in the context of its review of the manifest error of assessment, the Court finds that, in conformity with the criticisms of the Evaluation Committee, the applicant presents, in section 1.1 of its tender, the activities which it will carry out in the context of ‘editorial portfolio management’, without explaining the manner and approach which it will follow or the timescale for carrying them out. In addition, in the same section of the tender, the applicant refers, at several junctures, to the ‘editorial team for Lot B’, without further specifying who the members of that team are or their respective responsibilities.

218    Finally, the applicant’s argument that, first, the specifications did not require more details to be provided than those in its tender and, second, in any case, it could not provide any further details since the contract was a framework one – and it was, accordingly, unable to know what exactly would be requested, when and in which context – must be rejected.

219    First, it suffices to recall that point 2.7.2 of Volume II of the specifications for Lots B, C and E laid down that the mere repetition of the mandatory requirements set out in these specifications, without going into details or without giving any added value, would inevitably result only in a very low score (see paragraph 13 above). Second, it should be noted that the abovementioned criticisms levelled by the Evaluation Committee concern the lack of information as to how the applicant intends to carry out the tasks described in its tender and, therefore, those criticisms are valid irrespective of whether the contract in question is a framework contract or a specific contract.

220    On the basis of the foregoing considerations, the Court holds that the applicant has not proved that the comments of the Evaluation Committee with regard to the sub­criterion ‘Editorial Portfolio Management’ and, thus, the score awarded under that criterion, are manifestly erroneous.

–       The second sub-criterion, entitled ‘Editorial activities’

221    The Evaluation Committee granted 6.4 points out of 15 to the applicant’s tender, criticising that tender inter alia for its copy-pasting of the specifications without adding value to them and for failing to describe the workflow or the moderation process.

222    The applicant disputes those criticisms. It reiterates its argument concerning the presence of copy/paste in its tender (see paragraph 213 above) and refers to paragraph 2.1.1 and to section 2.3 of that tender to respond to the criticisms concerning the lack of description of the workflow and the lack of moderation.

223    The applicant also submits that the Evaluation Committee’s comment on the phrase ‘good understanding of what is currently missing in CORDIS’ relating to the Intrasoft tender, shows that the Evaluation Committee favoured the incumbent contractor of CORDIS which would have privileged access to information not disclosed to the other tenderers. That non-disclosure amounts, according to the applicant, to an infringement of the principle of equality of treatment. The applicant also comments that the criterion ‘good understanding’ is not included in the award criteria. That fact, it believes, shows that the Evaluation Committee based its evaluation on new criteria which are not specified in the specifications, in infringement of the applicable legislation and case-law.

224    The Court observes in the first place that the annotated copy of the applicant’s tender provided by the Commission to the Court (see paragraph 214 above) proves that the tender contains large passages of copy/paste of the specifications, thus showing that that tender contains no added value as against the specifications. It is evident that that copy/paste concerns, inter alia, all of section 2.1 of the applicant’s tender, entitled ‘Authoring and Content Development’, which was drafted in response to section 3.6 of the specifications in relation to Lot B.

225    The applicant has failed to put forward any specific evidence to counter the Evaluation Committee’s fundamental criticism that its tender lacks substantive added value as against the specifications. In particular, the applicant made no effort to explain before the Court, in a precise and specific way, to what extent, for example, section 2.1 of its tender, notwithstanding the fact that it was essentially copy/paste, added value to the specifications. The Court therefore concludes that the comments of the Evaluation Committee on the copy/paste contained in the applicant’s tender, and on the consequent lack of added value as against the specifications, are not vitiated by manifest error.

226    Second, it must also be held that the applicant fails to prove that the comment of the Evaluation Committee on the lack of a description of the workflow was manifestly erroneous. The applicant confines itself in essence to referring in a general way to paragraph 2.1.1 of its tender and to stating that that point contains a detailed description of the workflow proposed for each activity. Thus, that reference and that statement, without further details, are not sufficient to show the manifestly erroneous nature of the abovementioned comment of the Evaluation Committee. The Court refers in that regard to the arguments set out in paragraph 216 above. In addition, the applicant has not seriously contested the Commission’s allegation made in response to a written question of the Court that its tender lacked any serious description of the workflow, in so far as it failed to give sufficient information regarding the content of the steps of the workflow, the evolution from one step to the next and the events which would trigger each new step.

227    Third, the applicant’s argument concerning the Evaluation Committee’s comment on Intrasoft’s tender must also be dismissed (see paragraph 223 above). Without any specific supporting evidence, the applicant argues that that comment shows that Intrasoft had, in infringement of the principle of equal treatment, privileged access to information which was not disclosed to other tenderers. There is however no supporting evidence to that effect in the file. On the contrary, the Court has no reason to doubt the Commission’s allegation put forward in its response to a written question by the Court that all the tenderers had the opportunity to make a thorough analysis of the Internet site of CORDIS and the specifications, in order to better understand the needs of the system and therefore to propose suitable services. Therefore, Intrasoft’s ‘good understanding’, praised by the Evaluation Committee, was the result of that thorough analysis and not of the disclosure to that company of information not communicated to the other tenderers.

228    Finally, the applicant’s argument that the criterion ‘good understanding’ is not included as one of the technical award criteria must be rejected. Even if ‘good understanding’ of the CORDIS system was not included in the technical award criteria, it goes without saying that that good understanding is the premiss of a tender which offers added value, as required by point 2.7.2 of the specifications. Consequently, there is no substance in the allegation that the Evaluation Committee’s comment concerning the Intrasoft tender and relating to ‘good understanding’ of the gaps in CORDIS shows that the Evaluation Committee based its tender on a criterion which did not exist in the specifications.

229    In the light of the foregoing arguments, all the applicant’s complaints regarding the score which was awarded to its tender with regard to the sub-criterion ‘Editorial activities’ must be rejected.

–       The third sub-criterion, entitled ‘Content collection, processing and publication activities’

230    The Evaluation Committee granted 6.3 points out of 15 to the applicant’s tender, criticising the applicant for not having sufficiently elaborated its own approach with regard to the tasks to be carried out and for having copy-pasted the specifications. The Evaluation Committee referred to point 3.1.1.1.8 of the applicant’s tender.

231    The applicant disputes the Evaluation Committee’s assessment by referring in particular to point 3.1.1 of its tender, entitled ‘Methodology for the provision of the tasks’, in which it presented its approach for each proposed activity.

232    The applicant also argues that the fact that its tender is criticised for being based on the specifications, whereas the other tenderers obtained the best scores despite the fact that they contained serious weaknesses, as is apparent from the Evaluation Report, is a manifest error of assessment.

233    The Court confirms that the annotated copy of the applicant’s tender as supplied by the Commission (see paragraph 214 above) shows that certain passages of that tender are a copy/paste of the specifications, showing that the Evaluation Committee’s criticism that the tender contains no added value is not manifestly erroneous. Point 3.1.1.1.8 of the applicant’s tender, entitled ‘Content Formats’, is in fact an example of that copy/paste, as mentioned in the extract of the report of the Evaluation Committee, since it reproduces word for word point 3.4.2.1 of Volume II of the specifications relating to Lot B.

234    The applicant fails to satisfy its obligation to prove that the Evaluation Committee’s criticism that it does not sufficiently describe its approach to the tasks to be carried out is manifestly erroneous. The applicant confines itself, in effect, to arguing before the Court that, in point 3.1.1 of its tender, it describes its approach and adds that ‘In particular the tender presents for each activity the proposed workflow, the time to be foreseen per activity, [and] allocates specific profiles, providing their roles and responsibilities.’ The applicant concludes its arguments as follows:

‘It is therefore clear that the Applicant’s tender adapted the proposed approach to what is requested in the specifications. In particular, the tender presents how it will integrate its own approach in the provision of the services.’

235    That general argument cannot prove that the Evaluation Committee may have made a manifest error of assessment. The applicant was obliged, by contrast, to explain in detail, with reference where appropriate to examples derived from its tender, that the tender satisfied the requirements of the specifications relating to the level of detail required and the added value offered.

236    Finally, in response to the applicant’s argument presented in paragraph 232 above, the Court considers that the comments of the Evaluation Committee regarding the Intrasoft and Tipik tenders and the scores awarded to those tenders under this sub­criterion also fail to show that the mark awarded to the applicant’s tender in respect of that sub-criterion is manifestly erroneous. The higher marks granted to the two successful tenders are justified by comments of a different kind and relate to subjects which are not the same as those in respect of which the applicant’s score was awarded (see paragraphs 78 and 79 above).

237    In the light of the foregoing arguments, it must be concluded that the score given to the applicant’s tender in relation to the sub-criterion ‘Content collection, processing and publication activities’ is not manifestly erroneous.

–       The fourth sub-criterion, entitled ‘Translation, proofreading, other multilingual services’

238    The Evaluation Committee granted 4.6 points out of 10 to the applicant’s tender, criticising the tender on the ground that it lacked methodology or explanation of the workflow and amounted to a copy/paste without added value.

239    The applicant contests the Evaluation Committee’s findings concerning methodology and workflow, referring to section 4.1 of its tender. It calls the criticism relating to copy/paste arbitrary and submits that the Evaluation Committee ignored point 1.3.1 of its tender which contains suggestions and innovative ideas for translation services.

240    The Court holds that the annotated copy of the applicant’s tender provided by the Commission during the written procedure (see paragraph 214 above) shows that certain passages of that tender amount to a copy/paste of the specifications, thus proving that the Evaluation Committee’s criticism that the tender did not add value is not manifestly erroneous. The Commission, in addition, in answering the Court’s written question, and by means of specific examples, also further explained the lack of added value provided by the applicant’s tender. According to those explanations, that lack of added value is derived from the fact that the tenderer’s offer confined itself in essence to reproducing word for word or in paraphrasing the description of the activities which a tenderer must undertake contained in the specifications, without explaining how the applicant would carry out those activities.

241    By way of illustration, among the examples provided by the Commission, in the fourth paragraph of section 4.1 of its tender the applicant states: ‘All translations will be accurate, fully representing and conveying the meaning of the source text.’ That statement paraphrases point 3.9.6, first paragraph, of Volume II of the specifications concerning Lot B. With regard to that statement, the Commission submitted that the Evaluation Committee wished to know how the applicant would observe the obligations it had undertaken. The Commission provided other similar examples, derived from section 4.1 of the applicant’s tender, which serve to show that the Evaluation Committee’s criticism regarding the lack of added value of the applicant’s tender was not manifestly erroneous.

242    The applicant did not submit specific evidence showing that criticism to be manifestly erroneous. It alleges only that the Evaluation Committee ignored the fact that, in point 1.3.1 of its tender, entitled ‘New Developments’, it presented innovative ideas concerning, inter alia, translation. It must be observed that, in that point, the only information which is relevant in relation to the sub-criterion in question is the statement that ‘CORDIS can also offer e-translation and e­interpretation to eliminate linguistic barriers’. That statement does not prove that the Evaluation Committee’s comment was manifestly erroneous.

243    In addition, with the exception of the abstract reference made in points 4.1.1 and 4.1.2 of its tender, the applicant has failed to adduce specific or precise proof that the Evaluation Committee’s comment on the lack of a workflow description was manifestly erroneous. With regard to that reference by the applicant, the Commission explained, furthermore, in an answer to one of the Court’s written questions, without being contradicted by the applicant, that section 4.1 of the applicant’s tender did not contain a serious workflow description. According to the Commission, the applicant presents as a workflow the breakdown of the activity into the various tasks, that analysis being moreover a copy of the specifications.

244    It follows from the foregoing that the applicant has not proved that the score given to its tender under the sub-criterion ‘Translation, proofreading, other multilingual services’ was manifestly erroneous.

–       The sixth sub-criterion, entitled ‘Training and information support services’

245    The Evaluation Committee granted 2.5 points out of 5 to the applicant’s tender, criticising that tender for not having taken the needs of CORDIS users sufficiently into account.

246    The applicant contests the Evaluation Committee’s criticism. Referring also to the comment concerning the ‘good understanding of CORDIS’ needs’ in relation to the Intrasoft tender, the applicant repeats its argument relating to the infringement of the principle of equal treatment (see paragraph 223 above).

247    The Court observes that, in order to contest the Evaluation Committee’s criticism, the applicant submits that its approach is based on the information contained in the specifications. It also refers to section 6.1 of its tender, entitled ‘Overall approach for the delivery of training services’ in which it specified that one of the main tasks of the training services was to analyse the current situation and to define the training needs. It also mentions, without further detail, the section of its offer entitled ‘Definition of Target Audience and Diversity of Needs’.

248    There is no doubt that that argument, because of its abstract nature, fails to prove that the Evaluation Committee’s criticism was manifestly erroneous. The applicant’s statement contained in the abovementioned section 6.1 of its tender –according to which one of the principal activities of the training services consists in analysing the current situation and in defining training needs – does not, in accordance with the Evaluation Committee's criticism, in any way prove that that tender takes the needs of CORDIS users sufficiently into account.

249    Furthermore, in the light of the arguments contained in paragraph 227 above, the argument based on breach of the principle of equal treatment must also be rejected. The applicant resorts to suppositions and does not adduce a single item of proof that the ‘good understanding of CORDIS’ needs’ which the Evaluation Committee attributes to the Intrasoft tender results from that tenderer having enjoyed access to information which the other tenderers did not share. In addition, it should also be noted that the Intrasoft tender received only 0.1 more points than that of the applicant.

250    In the light of the foregoing, all of the applicant’s complaints concerning the score given to its tender with regard to the sub-criterion entitled ‘Training and information support services’, must be rejected.

 Technical award criterion No 3

251    It should be recalled that, in response to technical award criterion No 3, the tenderer was obliged to submit a document describing its intended approach to handling a request for a quoted time and means offer (estimation and pricing of the work­load, resources allocation, planning, etc.).

252    The Evaluation Committee awarded 5.3 out of 10 points to the applicant’s tender, criticising it for being too theoretical and for failing to provide actual examples of its proposed approach.

253    The applicant contests the Evaluation Committee’s criticism. It refers in that regard to point 3.1.2 of its tender, entitled ‘Estimation task’, in which it described the procedure to follow in calculating the effort for establishing a quoted time and means offer. It also submits that ‘it divides [in its tender] the tasks which may be ordered into the different types of services so as to present a practical approach for estimating the necessary effort’. It adds that, in conformity with the specifications, its tender submits, in section 2.2, entitled ‘Request-handling process’, the general approach followed in dealing with requests, in section 3.2, entitled ‘Resources allocation’, the allocation of resources and, in section 3.3, ‘Planning Estimation’, its planned timetable. It thus concludes that in its view the Evaluation Committee made a manifest error of assessment.

254    It must be observed that the abovementioned references made by the applicant to its tender are abstract and do not respond to the Evaluation Committee’s criticism as to its allegedly theoretical nature. It must therefore be held that the applicant has not proved that the score given to its tender in relation to technical award criterion No 3 was manifestly erroneous.

 Interim conclusion

255    On the basis of the foregoing arguments, with regard to Lot B, the present plea must be rejected as unfounded.

b)     Lot E

 Preliminary observation

256    The applicant contests the findings of the Evaluation Committee and, consequently, the scores awarded to its tender with regard to the technical award criteria and sub-criteria which are not vitiated by deficient reasoning.

257    The Court considers it appropriate to begin its review with technical award criterion No 2.

 Technical award criterion No 2

258    It may be recalled that, in response to technical award criterion No 2, the tenderer is obliged to submit its proposal for SLA, including a quality assurance plan.

259    The Evaluation Committee awarded 10 points out of 20 to the applicant’s tender. It criticised it for having defined liquidated damages as a percentage of the deliverable’s value, complicating their calculation. It also criticised it for the fact that, with regard to Key Performance Indicator (KPI) No 9, the liquidated damages were defined as the price for one man-day of the project manager, which meant that it was not possible for the Evaluation Committee to assess them, taking into account the fact that, during the technical evaluation, that committee did not have access to the prices proposed by the tenderers.

260    The applicant submits that the abovementioned comments contravene the specifications since, in its tender, it proposes the same method for calculation of liquidated damages for KPIs as that required by that document. It therefore concludes that the Evaluation Committee based its assessment not on the criteria laid down in the specifications but on arbitrary considerations, and that it made a manifest error of assessment. The applicant also submits that, in so far as the specifications prescribe that the liquidated damages must be fixed by reference to the KPI concerned, it made a rational decision to link the liquidated damages for KPI No 9 to the man-day rate for the project manager. The applicant notes finally that KPI No 9 as proposed in its tender is an additional KPI that it proposed in order to ensure the proper execution of the contract in question.

261    The SLA is in essence an agreement between the contracting authority and the successful tenderer which defines, on the basis of a certain number of KPIs, the quality of the services which must be provided by that tenderer.

262    The specifications prescribe liquidated damages where the SLA is infringed. Chapter 6 of the document, entitled ‘Basic performance indicators for the definition of the SLA’ for Lot E contained in the specifications, provides for a system of points for determining liquidated damages. Section 6.3 of the abovementioned document states that the value of a liquidated damages point is set at an initial nominal value of 1 Euro.

263    The specifications stipulate that there are two categories of KPIs, the general KPIs and the specific KPIs for each lot.

264    The general KPIs are common to all the lots and are 5 in number. For the general KPIs Nos 1 and 2, as stated by the applicant, liquidated damages are fixed by the contracting authority as a percentage of the deliverable, whereas for KPIs Nos 3, 4 and 5 the liquidated damages are calculated by reference to points the number of which is to be defined by the tenderer in its tender.

265    The specifications also stipulate 7 specific KPIs for Lot E, which are to be added to the 5 general KPIs. For those specific KPIs the liquidated damages are calculated by reference to points, the number of which is to be defined by the tenderer in its tender.

266    According to the file in its tender for Lot E, the applicant proposed, apart from the 5 general KPIs, 10 specific KPIs (the 7 proposed in the specifications and 3 more). In relation to all the specific KPIs, it fixed the liquidated damages as a percentage of the deliverable, with the exception of KPI No 9, entitled ‘Timeline — Offers submission’, in relation to which it fixed liquidated damages as the price of one man-day of the project manager per day of delay.

267    It follows from the foregoing that the Evaluation Committee’s criticism, according to which the applicant defined liquidated damages as a percentage of the price of the deliverable, which complicates their calculation, does not contravene the specifications, since that document stipulates that, for the 7 specific KPIs, the liquidated damages must be defined by the tenderers with reference to points. The applicant, contrary to those statements in the specifications, proposed to calculate liquidated damages for KPIs Nos 1 to 7 as a percentage of the deliverable.

268    It follows that the abovementioned criticism of the Evaluation Committee with regard to the applicant’s tender, contrary to the latter’s arguments, does not contradict the specifications but is in compliance with them. The fact, relied on by the applicant, according to which the specifications provide that the liquidated damages for the general KPIs Nos 1 and 2 must be fixed as a percentage of the price of the deliverable, does not affect the failure by the applicant to abide by the method for determination of the liquidated damages for the specific KPIs Nos 1 to 7, as stipulated in the specifications.

269    The Court notes, in addition, that the applicant does not contest the fact relied on by the Evaluation Committee that it was not in a position to assess the value of the liquidated damages proposed for KPI No 9, since those liquidated damages were determined on the basis of the man-day rate of the project manager and the Evaluation Committee was unaware of that rate when conducting the technical evaluation of the applicant’s tender.

270    Taking into account the abovementioned arguments, all the applicant’s complaints about the score given to its tender in relation to award criterion No 2 must be rejected and it must also be held that that score is not manifestly erroneous.

 Interim conclusion

271    With regard to the conclusion to be drawn from the finding in paragraph 270 above, it should be noted that, even assuming that the scores granted to the applicant’s tender in relation to all the other technical award criteria, with the exception of award criterion No 2, were unlawful, that illegality would not affect the final classification of that tender. Even if the applicant’s tender had obtained the maximum number of points in relation to all the award criteria, with the exception of criterion No 2, it would still be classified in third position, in so far as, because of the substantially higher price of its tender compared to the price of the tenders of the other two tenderers, the quality/price ratio would always have been inferior to that of the tenders of the other two tenderers.

272    In particular, even if the tenderer’s offer had obtained 90 points (that is 100 points, which is the maximum number of points available under Lot E, less 10 points being the points deducted because of the score of 10 out of 20 awarded in relation to award criterion No 2 which is not vitiated by illegality), the quality/price ratio would have been 84.96 applying the formula referred to in paragraph 17 above. However, applying that same formula, the quality/price ratio of the Siveco tender would have been 92.36 and the quality/price ratio of ARHS’s tender 85.73.

273    It follows from the foregoing arguments that the unlawfulness which would affect the scores granted to the applicant’s tender with regard to all the technical award criteria, except criterion No 2, would be immaterial and could not be sufficient to warrant the annulment of the contested decision in relation to Lot E since, in the particular circumstances of the present case, it could not have had a decisive effect on the outcome (see, to that effect, judgment of 15 March 2012 in Case T‑236/09 Evropaïki Dynamiki v Commission, not reported in the ECR, paragraph 120 and case-law cited).

274    Consequently, the present plea seeking annulment must be rejected in so far as it concerns Lot E.

5.     Conclusions concerning the request to annul the contested decision

275    With regard to Lot B, it must be recalled that the reasons given for the scores awarded to the applicant’s tender in relation to the fifth sub-criterion of technical award criterion No 1 and technical award criteria Nos 2 and 4 are insufficient (see paragraphs 115 to 117 above).

276    However, that unlawfulness is not sufficient to lead to the annulment of the contested decision in relation to Lot B since, even if the applicant were awarded all the points allocated to the abovementioned criteria and sub-criteria, its tender would in any case not reach the threshold of 65 points allowing it to pass to the financial assessment phase. The contested decision in relation to Lot B is supported to the requisite legal standard by grounds which are not vitiated by illegality (General Electric v Commission, cited in paragraph 115 above, paragraph 42, and Evropaïki Dynamiki v Commission, cited in paragraph 115 above, paragraph 163; see also, by analogy, Commission and France v TF1, cited in paragraph 116 above, paragraphs 26 to 29). It must therefore be concluded that the plea alleging infringement of the duty to state reasons in relation to Lot B must be rejected (see paragraph 117 above).

277    Since the applicant has been unsuccessful in all its pleas for annulment in relation to Lot B, the present action must be dismissed in so far as it seeks annulment of the contested decision relating to that lot.

278    The action must also be dismissed in so far as it concerns the annulment of the contested decision in relation to Lot C, all the pleas for annulment relating to it having been rejected.

279    With regard to Lot E, it should be recalled that the scores awarded to the applicant’s tender with regard to the fourth, fifth and eighth sub-criteria of technical award criterion No 1 and award criterion No 3 are vitiated by inadequate reasoning.

280    However, as noted in paragraphs 271 to 274 above, those illegalities linked to that lack of reasoning and the illegalities which might be established by the Court in relation to the remainder of the sub-criteria of technical criterion No 1 and criterion No 4 are not sufficient to lead to the annulment of the contested decision with regard to Lot E. That decision is supported to the requisite legal standard, first, by the price of that tender, which is substantially higher than the price proposed by the two other successful tenders which score higher than it and, second, by the score awarded to the applicant’s tender in relation to technical award criterion No 2, which is not vitiated by any form of illegality.

281    It must therefore be concluded that, since the applicant has been unsuccessful in all its pleas for annulment in relation to Lot E, its action must be rejected in so far as it seeks annulment of the contested decision in relation to that lot.

282    It follows that the applicant’s request for annulment must be rejected in its entirety.

II –  The claim for damages

283    The applicant requests that the Commission be ordered to pay damages totalling EUR 7 215 405 in accordance with Articles 235 EC and 288 EC, as compensation for the damage caused by its adoption of the contested decision.

284    In particular, the applicant seeks EUR 5 291 935 in damages for Lot B and EUR 948 470 for Lot E, those amounts corresponding to the gross profit which would have been attained by it if those lots had been awarded to it as contractor ranked in first place.

285    With regard to Lot C, the applicant claims that its tender should have been selected and Siveco’s rejected. The applicant concludes from this that, since it was one of the four selected contractors allowed to bid to obtain specific contracts, it should have obtained at least one quarter of the budget for Lot C, that is EUR 975 000, assuming that it won a quarter of the requests issued by the Publications Office. That is the amount which the applicant seeks in damages with regard to Lot C.

286    In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). Where one of those conditions is not satisfied, the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraphs 19 and 81).

287    With regard to the condition concerning the causal link between the alleged conduct and the damage complained of, according to settled case-law the alleged damage must be a sufficiently direct consequence of the conduct complained of and such a causal link must be the determining cause of the damage. The burden of proof of such a casual link rests on the applicant (see Case T‑461/08 Evropaïki Dynamiki v EIB [2011] ECR II‑6367, paragraph 209, and case-law cited).

288    With regard to Lot B, it can be recalled that the illegalities which have been established are not sufficient to lead to the annulment of the contested decision rejecting the applicant’s tender for that lot. Those illegalities are not, therefore, causally linked to the alleged damage since, as has already been held, even in their absence, the applicant’s tender would still have been rejected in relation to Lot B.

289    For the sake of completeness, it should be noted that the applicant’s claim for damages with regard to Lot B is based on the assumption not only that its tender would obtain 65 points but that it would be placed in first position. However, according to the evidence in the file, it is by no means certain that the quality/price ratio of the applicant’s tender would exceed that of the other two successful tenders. Furthermore, the Court lacks information concerning the price of the applicant’s offer for Lot B, which would be used in calculating the quality/price ratio.

290    Accordingly, it must be held that the applicant has failed to establish the required causal link for the award of damages in relation to Lot B.

291    With regard to Lot C, it should be recalled that no unlawful conduct on the part of the Publications Office has been established.

292    With regard, finally, to Lot E, it may be recalled that both the illegalities determined by the Court and those which may be established by it (see paragraph 280 above) are not sufficient to lead to the annulment of the contested decision concerning the classification of the applicant’s tender in third position with regard to that lot. Those illegalities are not, therefore, causally linked to the alleged damage since, as has already been held, even if they were not present, the applicant’s tender would still have been placed in third position with regard to Lot E.

293    For the sake of completeness, it must be observed that the applicant’s damages claim in relation to Lot E is based on the assumption that its tender would be placed first. That is however not a realistic assumption because, even supposing that the applicant’s tender obtained the total number of points provided for in relation to the technical award criteria, that is 100, the quality/price ratio would still be inferior to that of the Siveco tender, given the substantially higher price proposed.

294    In particular, assuming that the applicant’s tender had obtained 100 points, its quality/price ratio would have been 84.96, where Siveco’s price/quality ratio would have been 88.125 and that of ARHS 81.51.

295    In that regard, it should also be recalled that the plea questioning the legality of Siveco’s participation in the award procedure for Lots C and E has been rejected.

296    On the basis of the foregoing, it must be concluded that the applicant has not proved the existence of the causal link required in order to warrant the award of damages in relation to Lot E.

297    Taking into account the fact that, in relation to each of the three lots in question, one or more of the conditions for establishing the Community’s non-contractual liability is lacking, and applying the case-law cited in paragraph 286 above, it must be held that such liability is not established.

298    It follows that the applicant’s claim for damages must be rejected.

 Costs

299    The applicant further requests the Court to order the Commission to pay the applicant’s costs, even if the Court rejects the application, in accordance with the second paragraph of Article 87(3) of the Rules of Procedure. According to the applicant, the evident illegality of the contested decision combined with the contracting authority’s refusal to provide it with the information referred to in the Financial Regulation and the Implementing Rules compelled it to bring the present action. The applicant therefore considers that it is reasonable for the Commission to bear the entirety of the costs irrespective of the Court’s findings as to the merits.

300    The Commission replies that it did not cause the applicant to incur costs unreasonably or vexatiously, within the meaning of the second paragraph of Article 87(3) of the Rules of Procedure, and that that request must therefore be rejected.

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

302    According to case-law, the Court may order an institution whose decision has not been annulled to pay the costs on account of the inadequacy of that decision, which may have led an applicant to bring an action (see Evropaïki Dynamiki v Commission, cited in paragraph 115 above, paragraph 177, and case-law cited). In the present case, it should be recalled that the scores awarded to the applicant’s tender in relation to certain technical award criteria or sub-criteria for Lots B and E were not supported by adequate reasoning. It should also be recalled that certain comments of the Evaluation Committee were brief, which led the Court to ask a number of written questions, inter alia to the Commission, in order to seek clarification. It must therefore be admitted that that those factual circumstances may have led the applicant to bring the present action.

303    Therefore, the Court considers that an equitable assessment of the circumstances of the case should be made and holds that the applicant should bear 90% of its own costs and pay 90% of the costs incurred by the Commission, and that the Commission should bear 10% of its own costs and pay 10% of those incurred by the applicant.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear 90% of its own costs and 90% of the costs incurred by the European Commission and orders the Commission to bear 10% of its own costs and 10% of the costs incurred by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis.

Frimodt Nielsen Kancheva Buttigieg

Delivered in open court in Luxembourg on 10 April 2014.

[Signatures]

Table of contents

Background to the dispute

Procedure and form of order sought by the parties

Law

I –  Application for annulment

A –  Admissibility

B –  Substance

1.  Plea alleging breach of the obligation to state reasons

a)  General issues

b)  Statement of reasons in relation to Lot B

Letter of 9 June 2009

The letter of 11 June 2009

Interim conclusion

c)  Statement of reasons with regard to Lot C

Letter of 9 June 2009

Letter of 11 June 2009

Interim Conclusion

d)  Reasoning with regard to Lot E

Letter of 9 June 2009

Letter of 11 June 2009

Interim conclusion

e)  The adoption of measures of inquiry

2.  The plea in law alleging infringement of Article 148(1) and (3) of the Implementing Rules and of the principles of equal treatment and of sound administration

3.  Plea alleging breach of the principle of non-discrimination as between tenderers, infringement of the exclusion criteria laid down in the specifications, infringement of Articles 93(1)(f) and of Article 94 of the Financial Regulation and breach of the principle of sound administration

a)  Preliminary observation

b)  Substance

4.  Plea in law based on the existence of manifest errors of assessment, on breach of the principle of equal treatment and on the introduction of new technical award criteria in the specifications

a)  Lot B

Technical award criterion No 1

–  The first sub-criterion, entitled ‘Editorial portfolio management’

–  The second sub-criterion, entitled ‘Editorial activities’

–  The third sub-criterion, entitled ‘Content collection, processing and publication activities’

–  The fourth sub-criterion, entitled ‘Translation, proofreading, other multilingual services’

–  The sixth sub-criterion, entitled ‘Training and information support services’

Technical award criterion No 3

Interim conclusion

b)  Lot E

Preliminary observation

Technical award criterion No 2

Interim conclusion

5.  Conclusions concerning the request to annul the contested decision

II –  The claim for damages

Costs

* Language of the case: English.