JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
24 April 2012 (*)
(Public service contracts – Call for tenders – Provision of business, technical and project consultancy services for European Union computer applications in the customs, excise and taxation areas – Rejection of a tender – Decision to award the contract to another tenderer – Action for annulment – Inadmissibility – Claim in damages – Selection and award criteria – Duty to state the reasons on which a decision is based – Manifest error of assessment)
In Case T‑554/08,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, P. Katsimani and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by N. Bambara and E. Manhaeve, then by E. Manhaeve, acting as Agents, and C. Erkelens, lawyer,
defendant,
ACTION for annulment of the Commission’s decision of 26 September 2008 rejecting the tender submitted by the consortium formed by the applicant and other companies in response to call for tenders ‘TAXUD/2007/AO-005’ relating to the provision of business, technical and project consultancy services for Community computer applications in the customs, excise and taxation areas (‘TIMEA’), and all consequential decisions, including the decision to award the contract to the successful tenderer, brought pursuant to Articles 225 EC and 230 EC, and a claim in damages brought pursuant to Articles 225 EC, 235 EC and 288 EC,
THE GENERAL COURT (Sixth Chamber),
composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 19 January 2012,
gives the following
Judgment
Facts
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 contract notice dated 3 January 2008 and published in the supplement to the Official Journal of the European Union (OJ 2008 S 1-59), the Commission’s Directorate-General (‘DG’) for Taxation and Customs Union (‘DG TAXUD’) launched a call for tenders for the award of a framework contract for the ‘provision of business, technical and project consultancy services for Community computer applications in the customs, excise and taxation areas – TAXUD/2007/AO-005 (TIMEA)’ (‘the TIMEA call for tenders’). The contract was to be awarded to the most economically advantageous tender, that is to say the one presenting the best price-quality ratio. The last date for applications was 7 March 2008.
3 On 8 February, 26 February and 3 March 2008, the applicant sent DG TAXUD requests for clarification concerning the TIMEA call for tenders. The answers to the questions of the interested parties were published on the website of DG TAXUD on 3 March 2008.
4 On 7 March 2008, the consortium ED‑ABG Spin‑ZZI, made up of the applicant and two other companies, responded to the TIMEA call for tenders.
5 The opening of the tenders took place on 14 March 2008. Six tenders were received, all of which were declared valid and passed the exclusion stage.
6 By fax of 7 April 2008, DG TAXUD asked the applicant for clarification concerning its partners, to which it responded by letter and fax of 14 April 2008.
7 At the selection stage, four tenders, including the applicant’s, were rejected by the evaluation committee on the ground that they failed to satisfy selection criteria relating to technical and financial capacity. Only two tenders were retained for the final assessment of their price‑quality ratio.
8 The evaluation committee proposed awarding the contract to the Guess consortium, whose offer, in its view, presented the best price‑quality ratio.
9 The applicant was notified of the outcome of the TIMEA call for tenders by letter dated 27 September 2008, sent by express post on 30 September 2008, informing it that its tender had not been selected because it had not reached the required technical quality threshold (‘the contested decision’).
10 By registered letter and fax of 2 October 2008, the applicant asked DG TAXUD to provide it with (i) the name of the successful tenderer and the names of its consortium partners, if any, (ii) the scores awarded in each award criterion for both its technical offer and that of the successful tenderer, along with an explanation of how its offer compared to that of the successful tenderer, and also an explanation of what additional or better services were offered by the successful tenderer that justified the differences in the evaluation, (iii) a detailed copy of the report of the evaluation committee, and (iv) the financial offer of the successful tenderer and how it was better than the applicant’s tender.
11 By letter of 3 October 2008, the Commission sent the applicant an extract from the evaluation committee’s report. The extract contained, inter alia, the following table concerning the tender of ED-ABG Spin-ZZI consortium:
Requirement | Submitted | Passed/Failed |
4 CVs for each of the 7 profiles (28 in total) demonstrating expertise in specified technologies | 28 CVs, of which CVs Nos 18 & 19 do not have the required experience | Failed |
6 Project references (PRF) concerning Time & Means projects, each for a minimum of 220 days, in the period 2005-2006, and demonstrating use of specified technologies (Oracle in 3 PRFs, BEA in 1 PRF, XML in 1 PRF, and Business Objects in 1 PRF) | 6 PRFs, of which both PRF Nos 1 & 6 are not acceptable.
The use of Business Objects technology is not demonstrated. | Failed |
12 By letter of 9 October 2008, the applicant sent DG TAXUD its comments on the evaluation of its tender and called upon it to suspend the award procedure and establish a new evaluation committee to re-evaluate its tender and that of the successful tenderer.
13 On 18 October 2008 the notice of the award of the contract to the Guess consortium was published in the supplement to the Official Journal of the European Union, giving the date of the award of the contract as 26 September 2008 (OJ 2008 S 203-268728).
14 By letter of 20 October 2008, the applicant informed the Commission of its objections to that publication and asked it for information concerning the date on which the contract had been signed, so that it could check whether the 14-day stand-still period had elapsed.
15 By letter of 22 October 2008, the Commission informed the applicant that the publication had been an administrative error. On the same day the applicant demanded publication of a corrigendum. On 24 January 2009, the Commission published a corrigendum in the supplement to the Official Journal of the European Union (OJ 2009 S 16-021635) correcting the date of the award of the contract from 27 September to 16 December 2008.
16 Also on 22 October 2008, the applicant sent a letter to the European Anti-fraud Office (OLAF) stating that the successful tenderer’s bid ‘… follow[ed] in a very strange and surprising manner the structure and content of our own company’s tenders for similar projects …’ and that ‘… we reasonably suspect[ed] that the successful tenderer may have breached the intellectual property rights of [its] own company …’ and inviting OLAF to investigate the case.
17 On 25 November 2008, the applicant made the same observations to DG TAXUD and asked it to investigate the matter.
18 By letter of 28 November 2008, DG TAXUD replied to the observations set out by the applicant in its letters of 9, 20 and 22 October and 25 November 2008, stating that the two series of verifications carried out had confirmed the decision on the award of the contract. It added that it was not appropriate for the Commission to comment on infringements of intellectual property rights.
19 The procurement contract was signed on 16 December 2008.
Procedure and forms of order sought by the parties
20 By application lodged at the Registry of the General Court on 8 December 2008, the applicant brought the present action.
21 When the composition of the chambers of the Court was altered, the Judge‑Rapporteur was assigned to the Sixth Chamber, to which this case was, consequently, assigned.
22 By means of a measure of organisation of procedure, the Commission was invited, on 24 May 2011, to produce the letter of the Secretary General of the Commission of 19 December 2008 sent to the applicant. The Commission complied with that request within the prescribed period.
23 Upon hearing the report of the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral procedure.
24 The parties presented oral argument and gave their replies to the questions put by the Court at the hearing on 6 July 2011.
25 As a member of the Sixth Chamber was unable to sit, the President of the General Court designated another Judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure of the General Court.
26 By order of 18 November 2011, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a new hearing.
27 The parties stated their views at the new hearing on 19 January 2012.
28 The applicant claims that the Court should:
– annul the contested decision and all consequent decisions, including the decision to award the contract to the successful tenderer;
– order the Commission to compensate it for the losses which it sustained in the context of the TIMEA call for tenders, in the sum of EUR 7 638 125;
– order the Commission to pay the costs, even if the present action is dismissed.
29 The Commission contends that the Court should:
– declare the action for annulment unfounded;
– declare the claim in damages to be inadmissible or, in the alternative, unfounded;
– order the applicant to pay the costs.
Law
1. Admissibility
30 The Commission observes that it is not clear from the application whether it has been brought by the applicant in its own name or on behalf of the consortium of which it was a member, and has asked the applicant to clarify this issue. The applicant states that it has an individual right of recourse against the contested decision addressed to the ED‑ABG Spin‑ZZI consortium, of which it was a member.
31 Under the fourth paragraph of Article 230 EC, ‘[a]ny natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’.
32 According to the Court’s case‑law, a consortium constitutes an ad hoc structure whose members remain visible, and the companies concerned must all be regarded as the addressees of the contested decision. Therefore, a member of the consortium, as addressee of the contested decision, is entitled to challenge that decision in accordance with the conditions laid down by Article 230 EC.
33 In the present case, the contested decision was addressed directly to the applicant, which was at the head of the ED‑ABG Spin‑ZZI consortium. As is apparent indirectly from the reply, that consortium never enjoyed legal personality.
34 It results from the foregoing that the applicant was entitled, as a direct addressee of the contested decision, to challenge that decision in accordance with the conditions laid down by Article 230 EC. The action is therefore admissible.
2. The application for annulment
The first plea in law, alleging infringement of the principles of sound administration and the protection of legitimate expectations and of Article 100 of the Financial Regulation
35 In the context of its first plea, the applicant essentially makes two complaints regarding, first, the fact that a fixed number of curricula vitae (‘CVs’) and project references was called for and, second, the infringement of the alleged duty on the Commission to seek clarification in their regard.
The number of CVs and project references called for
36 The applicant submits that the bid selection procedure was irregular in that a fixed number of CVs and project references was called for, thus preventing tenderers from submitting a larger number if they so wished. The Commission contends that there is no rule to prevent its departments from requiring a fixed number of CVs.
37 It should be noted, at the outset, that it is clear from settled case-law that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the General Court must be limited to checking compliance with the applicable procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 147; and Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 47).
38 The contracting authorities are granted such a broad margin of assessment throughout the tendering procedure, including in relation to the choice and evaluation of the selection criteria (Agence européenne d’intérims v Commission, paragraph 37 above, paragraph 20; ADT Projekt v Commission, paragraph 37 above, paragraph 147; and Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraphs 95 and 114, concerning technical and financial capacity).
39 In the present case, it needs to be determined whether the European institutions, when acting as contracting authorities, are required to choose minimum selection criteria or whether they are at liberty to choose fixed selection criteria, without being required to give tenderers the opportunity to supply as much evidence as they wish in order to prove their technical and professional capacity.
40 The award of public service contracts by the European Commission is governed by the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and by the provisions of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. l) (‘the implementing rules’), in the versions thereof applicable at the time of the facts.
41 Article 97(1) of the Financial Regulation imposes on contracting authorities the obligation to define and set out in advance in the call for tenders both the selection criteria and the award criteria. Pursuant to Article 135(1) and (2) of the implementing rules, the contracting authorities are to draw up clear and non‑discriminatory selection criteria and may lay down minimum capacity levels below which it cannot select candidates. In accordance with Article 135(5) of those rules, the information requested and the minimum levels of capacity required may not go beyond the subject of the contract.
42 It should be noted that those provisions are intended to ensure respect for the principles of equal treatment and transparency, enshrined in Article 89 of the Financial Regulation, at all stages of the procedure for the award of public contracts, in particular the stage of selection of the tenderers and that of selection of tenders for the award of the contract (see, to that effect and by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale‑Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92).
43 The very purpose of those provisions is to allow all reasonably well-informed and normally diligent tenderers to interpret both the selection criteria and the award criteria in the same way (see, to that effect and by analogy, Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 42) and consequently to have equality of opportunity in formulating the terms of their applications to take part and their tenders (see, to that effect, as regards the stage of selection of candidates, Universale-Bau and Others, paragraph 39 above, paragraph 42).
44 It is apparent from the foregoing that, when choosing selection criteria, the contracting authority enjoys a broad margin of assessment, but is required to respect the principles of transparency and equal treatment of tenderers.
45 The implementing rules allow contracting authorities to determine the minimum levels of capacity below which candidates cannot be considered, which may not go beyond the subject of the contract, but they do not impose an obligation to act in such a way. There is no reference in those rules to the fixing of maximum levels of capacity or specific levels of capacity, which correspond to both the minimum and maximum capacity which tenderers are required to establish. There is no obligation in either the legislation or in the case‑law for the Commission to leave a certain margin between the minimum and maximum amount of information which tenderers must submit to prove their capacities.
46 In the present case, section 4.2 of the questionnaire annexed to the tender specifications (‘the questionnaire’) clearly provides that DG TAXUD was required to evaluate the capability of the tenderers to provide the required profiles on the basis of a set of four CVs for each of the seven required profiles, which corresponded to a total of 28 CVs. As regards the required project references, it is stated, in section 4.6.3 of the questionnaire, that the tenderers were required to submit six recent project references for projects carried out for different customers. Therefore, the Commission acted in accordance with the implementing rules in setting, for the evaluation of the technical and professional capacities of the tenderers, 28 CVs and six project references as the minimum capacity threshold, which also constituted the maximum required capacity.
47 The Commission stated those points 12 times in response to various questions put by various potential tenderers, that is to say, in the answers to questions Nos 13, 24, 35, 51, 62, 66, 67, 116 and 118, concerning the number of CVs to be submitted, and the answers to questions Nos 44, 92 and 93, concerning the number of project references. It was pointed out to potential tenderers that the specified number of 28 CVs and six project references was both the minimum and maximum amount to be complied with. In addition, it was stated that only tenderers which had provided 28 CVs and six project references would be admitted to the selection stage.
48 It is apparent from the foregoing that the selection criteria regarding the number of CVs and project references was clear, non‑discriminatory and known to all the tenderers in such a way as to provide them with the same opportunities in relation to the compilation of their tenders. Moreover, the applicant has not stated and it does not result from the procedural documents that those criteria went beyond the purpose of the call for tenders. The applicant does not dispute the clear, proportionate and non-discriminatory nature of that criteria, but merely insists that the fact that the Commission used such criteria was contrary to its practice, that it had not had the opportunity to submit as many CVs and project references as it wished and that, in any event, those items were indicative. However, none of those arguments calls into question the Commission’s power to choose the selection criteria which it considers best suited to the purpose of the call for tenders, provided that the chosen criteria are clear, proportionate to the purpose of the call for tenders and non‑discriminatory.
49 It follows from the foregoing that the Commission acted within the limits of its powers of assessment granted to it under the Financial Regulation and the implementing rules in using the possibility to fix the minimum threshold of capacity required and to request tenderers to submit a specific number of CVs and project references. There are no grounds for concluding that the Commission had a duty to allow tenderers to submit as many CVs and projects references as they wished or to fix a different minimum and maximum number for each of them. The principle of sound administration relied on by the applicant cannot transform into an obligation something which the legislature did not regard as being an obligation (see, to that effect, Case C‑255/90 P Burban v Parliament [1992] ECR I‑2253, paragraph 20, Case T‑236/07 Germany v Commission [2010] ECR I‑0000, paragraph 67). The complaint under consideration must therefore be rejected.
The duty of the Commission to request clarification regarding the CVs and project references submitted
50 The applicant maintains that, in rejecting its tender without asking for clarification regarding the CVs and project references which it submitted, the evaluation committee departed from the Commission’s standard practice and breached the stipulations in the tender specifications which provide that the contracting authority should contact tenderers to seek clarification. The Commission denies that its general practice is to contact tenderers to seek clarification of their tenders.
51 It must be recalled at the outset that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations, which constitutes one of the fundamental principles of European Union law, extends to any individual who is in a situation in which it is clear that the European Union authorities have, by giving him precise assurances, led him to entertain legitimate expectations. Irrespective of the manner in which it was communicated, precise, unconditional and consistent information coming from authorised and reliable sources amount to such assurances. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration (see Joined Cases T‑66/96 and T‑221/97 Mellett v Court of Justice [1998] ECR‑SC I‑A‑449 and II‑1305, paragraphs 104 and 107 and the case‑law cited; Case T‑290/97 Mehibas Dordtselaan v Commission [2000] ECR II‑15, paragraph 59; and Case T‑273/01 Innova Privat‑Akademie v Commission [2003] ECR II‑1093, paragraph 26 and the case‑law cited).
52 Article 146(3) of the implementing rules provides that tenders which do not contain all the essential information required by the supporting documentation or which do not satisfy all the specific requirements laid down therein are to be eliminated. However, the evaluation committee may ask tenderers to supply additional material or to clarify the supporting documents submitted in connection with the exclusion and selection criteria.
53 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.
54 Section 10 of the Guidebook for tenderers, annexed to the tender specifications of the TIMEA call for tenders, states that, once the offers have been opened, contact may be initiated as follows:
‘[W]e may contact you in writing to obtain further clarification on specific points of your offer or to correct obvious clerical errors … Such contacts must not lead to any alteration of the terms of the offer. More particularly: - You must not modify your offer or add any new elements to it (other than purely administrative documentation). Your reply must therefore make clear reference to the relevant information already present in the file … If you fail to observe these restrictions, your reply may be disregarded.’
55 Those requirements are perfectly in line with the fact that the institutions are empowered to contact tenderers in exceptional circumstances (Case T‑19/95 Adia interim v Commission [1996] ECR II‑321, paragraph 44, and Case T‑495/04 Belfass v Council [2008] ECR II‑781, paragraph 64). It follows that that provision cannot be interpreted as imposing a duty on the institutions to contact such tenderers (Adia interim v Commission, paragraph 44).
56 None the less, it is also established in the case‑law that the power to seek clarification is accompanied by an obligation to exercise that power in circumstances where clarification of a tender is clearly both practically possible and necessary (Case T‑22/99 Rose v Commission [2000] ECR‑SC I‑A‑27 and II‑115, paragraph 37, and Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraph 37). Compliance with the general principles of law may, in particular, give rise to an obligation on the part of the contracting authority to contact a tenderer (Tideland Signal v Commission, paragraphs 37 to 46; Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439; and the judgment of 9 September 2010 in Case T‑63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 97).
57 In the present case, it needs to be determined whether the general principles of law required the Commission to make use of its power to seek clarification from the applicant regarding the professional experience shown on CVs Nos 18 and 19 and the use of the Business projects programme in project references Nos 1 and 6.
58 In accordance with the case‑law in this area, the possibility of seeking clarification from tenderers becomes an obligation where there has been a ‘particularly obvious’ material error in the tender (Adia Interim SA v Commission, paragraph 55 above, paragraph 46). That would not be the case for an ‘error in the calculation of the billing rates on the basis of the gross hourly wages’ (Adia Interim SA v Commission, paragraph 46) or an ‘arithmetical error’ (Belfass v Council, paragraph 55 above, paragraph 65). The Commission would also not be required to request additional information in the event of a conflict of interest (Case T‑195/05 Deloitte Business Advisory v Commission [2007] ECR II‑871, paragraph 103) or an ambiguous offer (Evropaïki Dynamiki v EMCDDA, paragraph 56 above, paragraph 101).
59 In the present case, the applicant does not refer to any manifest material error in the drafting of its tender. It refers to a possible ‘error of interpretation’ on the part of the evaluation committee, but does not claim that there was ambiguity regarding certain aspects of its tender which could have been removed easily and simply. On the contrary, the applicant submits that the contracting authority should have asked it to provide ‘clarifications and additional material, in order to make sure that [it was] indeed not qualified’. That therefore constitutes more than a particularly obvious material error or an ambiguity which may be removed easily and explained simply.
60 In the circumstances of the present case, the general principles of law do not, consequently, require the contracting authority to make use of its power to request clarification and the evaluation committee thus did not commit an manifest error in that regard.
61 With regard to the alleged infringement of the principle of equality of treatment between tenderers, in Article 89(1) of the Financial Regulation, it must be pointed out that, by virtue of that principle, the contracting authority may exercise its right to seek clarification concerning tenders after they have been opened, under Article 148(3) of the Financial Regulation, it being understood that it is obliged to treat all tenderers in a similar manner when exercising that power (see, to that effect, Tideland Signal v Commission, paragraph 56 above, paragraph 38).
62 In the present case, the applicant states that, in the context of that tendering procedure, it did not have information regarding the possibility of the evaluation committee’s getting into contact with other tenderers in a situation comparable to the applicant’s to request additional information concerning the CVs and project references which they submitted. Although it does not raise any particular doubts regarding an infringement of the principle of equal treatment in the present case, it does, however, request that the Court require the Commission to provide it, for the purposes of its examination, with all correspondence between DG TAXUD and all the tenderers from the time tenders were lodged till the date of notification of the award.
63 It is apparent from the documents in the file that, during the selection stage, the Commission made use of its power to request clarification from the applicant in relation to its social security contributions and tax payments. It also requested confirmation of information relating to the annual turnover of another member of the ED-ABG Spin‑ZZI consortium. In relation to the successful tenderer, the Commission requested it to define the exact nature of its relations with a contractor of DG TAXUD.
64 The file does not contain any information on any requests for clarification made to the other candidates. Four of the six candidates, including the applicant, were eliminated during the selection stage. More specifically, it is clear from the file that one candidate did not demonstrate the financial capacity required and that three candidates, including the applicant, did not demonstrate the technical and professional capacity required.
65 As regards the applicant’s statement that the Commission knew, as it has often contracted its services, that it had the technical and professional capacity required, it must be found that that statement has no effect on the outcome of the action in this case. The fact that the applicant has already worked with the Commission did not create any obligation for the evaluation committee to contact it to request it to complete its file. Such an initiative would have been discriminatory towards the other tenderers which, having failed to provide the required CVs and project references, would have had their tenders rejected on the sole ground that the evaluation committee was not familiar with them (see, to that effect and by analogy, Burban v Parliament, paragraph 49 above, paragraph 15).
66 The applicant considers that the Commission cannot rely on the principle of equal treatment of tenderers to justify its refusal to make contact with it so as to enable it to provide clarification and further CVs and project references. To accept that argument would mean that, in all the tender procedures in which the Commission did ask tenderers for explanations or additional documentation, it infringed the principle of equal treatment. In any event, that argument has no impact on the outcome of the present case, as was the case with a request for the Court to examine the correspondence between the Commission and the tenderers in the context of another tender procedure (ESP-DESIS).
67 As regards the protection of legitimate expectations, which is regarded as a fundamental principle of European Union law (see paragraph 48 above), the applicant merely refers to the position adopted by the Commission in other tender procedures. In support of its statements regarding the Commission’s practice in that regard, the applicant provided the Court with a list of calls for tender in which it had received requests for clarification, citing in its application the example of the Commission’s CIRCA call for tenders and a call for tenders launched by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). However, such circumstances do not constitute precise assurances given by the institution and, accordingly, cannot form the basis of a legitimate expectation (Deloitte Business Advisory v Commission, paragraph 58 above, paragraph 87).
68 The argument raised by the applicant, that the provision of the Guidebook for tenderers, which provides that ‘[the applicant might be] contact[ed] … in writing to obtain further clarification on specific points of [its] offer or to correct obvious clerical errors ...’ bound the Commission and gave rise to legitimate expectations on its part, cannot be upheld. As has already been stated, neither the Guidebook for tenderers nor the implementing rules give rise to an obligation on the Commission to act in that way. The provision referred to by the applicant clearly provides the Commission merely with a possibility, which, by definition, prevents the wording of that provision from being qualified as a precise assurance capable of giving rise to founded expectations on the part of the applicant.
69 In addition, the applicant wrongly relies upon case-law according to which ‘the effects of Community legislation must be clear and predictable for those who are subject to it’ (Case T‑75/06 Bayer CropScience and Others v Commission [2008] ECR II‑2081, paragraph 245). In the present case the issues is an alleged administrative practice, not legislation.
70 In the light of the foregoing, it must be concluded that the principle of protection of legitimate expectations has not been infringed.
71 So far as concerns the applicant’s argument that, even if the principle of the protection of legitimate expectations had not been infringed, there was an overriding public interest preventing the Commission from changing practice, namely that of avoiding awarding the contract to the most expensive tenderer and to ensure genuine competition (see, by analogy, Case C‑152/88 Sofrimport v Commission [1990] ECR I‑2477), that argument cannot be upheld.
72 The case‑law referred to by the applicant reads as follows:
‘Under the first subparagraph of Article 3(3) of Regulation No 2707/72, “the [protective measures in the fruit and vegetable sector] shall take account of the special position of products in transit to the Community”. The effect of that provision is to enable an importer whose goods are in transit to rely on a legitimate expectation that in the absence of an overriding public interest no suspensory measures will be applied against him’ (Sofrimport v Commission, paragraph 71 above, paragraph 16).
73 The applicant’s reasoning is in fact at odds with the case‑law cited. In Sofrimport v Commission, paragraph 71 above, the Court of Justice accepted that an importer may rely on the principle of the protection of legitimate expectations in the absence of an overriding public interest, whereas the applicant submits, on the contrary, that the principle of the protection of legitimate expectations may substitute an overriding public interest.
74 It is apparent from the foregoing that the applicant’s argument must be rejected, as must, therefore, the first plea in its entirety.
The second plea, alleging a misuse of powers and manifest errors of assessment
75 It should be noted, at the outset, that the applicant alleges that DG TAXUD committed manifest errors of assessment during the selection procedure in the context of the TIMEA call for tenders, with a view to further alleging, in essence, a misuse of powers. It is appropriate to address the latter complaint before ruling on the possible existence of manifest errors of assessment.
76 It should be borne in mind that, in accordance with settled case-law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose (Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 24, and Case C‑400/99 Italy v Commission [2005] ECR I‑3657, paragraph 38). Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, provided that the decision does not cease to pursue the main aim (Case 2/54 Italy v High Authority [1954] ECR 37, 54, and Case T‑87/05 EDP v Commission [2005] ECRII‑3745, paragraph 87).
77 It must be found that the applicant does not raise any argument capable of demonstrating that DG TAXUD used its powers for purposes other than to determine whether its tender was to be retained for the selection stage. In addition, the applicant abandons that line of argument in its reply and concentrates on its argument alleging a manifest error of assessment. Therefore, the complaint alleging a misuse of powers must be rejected as unfounded.
78 In the context of the present plea, the applicant essentially raises three other complaints, the first and second alleging manifest errors of assessment committed by the Commission in relation to the rejection of CVs Nos 18 and 19 and project references Nos 1 and 6 respectively, and the third, a manifest error of assessment in relation to the evaluation of the successful tender.
The conformity of CVs Nos 18 and 19 with the tender specifications
79 The applicant asserts that CVs Nos 18 and 19 included in its tender satisfied the criterion of a minimum of six years of professional experience stipulated in section 4 of the tender specifications. The evaluation committee failed to examine in detail the CVs provided by the ED-ABG Spin-ZZI consortium and thus led the Commission to make manifest errors of assessment in its evaluation of the candidates’ experience. The Commission asserts that CVs Nos 18 and 19 clearly did not satisfy the criteria stipulated in the TIMEA call for tenders as the condition of a minimum of six years of professional experience in the specified fields was not fulfilled by either of the two persons concerned.
80 It should be noted, at the outset, that the Commission has significant discretion in the field and that review by the Court must be limited to ensuring that the Commission did not commit any manifest errors when exercising that discretion.
81 Pursuant to Article 97(1) of the Financial Regulation, the selection criteria are to enable the capability of candidates and tenderers to be evaluated.
82 Section 9.2.2 of the tender specifications provides that certain criteria (‘skill, efficiency, experience, reliability and similar circumstances’) are to be used to check whether tenderers have sufficient technical and financial capacities to perform the contract.
83 Section 4.1 of the terms of reference, concerning required profiles, states that the tenderers are required to provide evidence of sufficient technical capacity in the areas of business support, technical and project management and IT support activities.
84 As regards Profile P 5, which corresponded to the post of senior consultant with a minimum of six years IT experience in relation to the activities concerned in the field of project support, section 4.1.3 provided that ‘The Project Office [was] responsible for the smooth running of the project(s) from an organisational point of view, i.e., dealing with the respect of the procedures; follow up of the deliverable timetable, etc’.
85 The experience and capacity required for project support, profile P 5, were the following: ‘minimum 6 to 10 years experience in Project Office, preferably within IT and/or Taxation, Excise and Customs environment; experience with Project Office tools; Experience in project coordination procedures, preferably involving a recognised methodology; design, setting-up and maintenance of project reporting systems in large organisations, evaluating quality of project deliverables; strong organisational skills needed; good communication skills, rapid self-starting capability and ability to work autonomously are mandatory; ability to participate in multi-lingual meetings, ease of communication in front of large audiences, experience in international/multicultural environment and public administration are assets; technical drafting such as Service Level Agreements, Terms of Collaboration, planning schedules, etc’.
86 Section 4.2 of the questionnaire clearly stated that the CVs proposed had to conform to the profiles and requirements of the TIMEA call for tenders.
87 According to the reply given by DG TAXUD to question No 80 of the potential tenderers concerning profile P 5, the requirement of experience in project coordination procedures referred to ‘project management’ methodologies. The term ‘recognised methodology’ was to be interpreted as a methodology existing and known by a large public. In that regard, the Commission gave the example of the ‘Prince2’ methodology.
88 In the present case, it must therefore be determined whether, in considering that CVs Nos 18 and 19 could not be accepted since the people at issue ‘[did] not have enough relevant experience according to the consultant profile requirements’ (paragraph 4), and none of them ‘[had] reached the minimum threshold for seniority (minimum 6 years)’, the evaluation committee led the Commission to vitiate the contested decision with a manifest error of assessment.
– CV No 18
89 In its pleadings, the Commission sets out the grounds of the evaluation committee and submits, concerning CV No 18, that the experience predating 1999 was not acceptable because there was no indication of the professional experience of the person concerned. Similarly, the experience acquired between January 1999 and December 2001, between May 2002 and February 2003, and since May 2002 and between September 2004 and March 2006, could not be accepted because the functions described on the CV for those periods did not match the essential technical and professional skills required for the post at issue. Therefore, the CV in question did not satisfy the minimum criteria of six years professional experience required for the profile of Senior Project Office.
90 The applicant disputes the Commission’s claims and submits that CV No 18 demonstrates relevant professional experience for all the periods referred to above. It states that the Commission’s claim that the CV at issue did not satisfy the minimum criterion of six years professional experience required for the profile of Senior Project Office is contrary to the tender specifications, which did not require the profile of Project Office, but that of Project Support.
91 It is apparent from CV No 18 that the Commission did not commit a manifest error of assessment by excluding certain periods during which the functions carried out did not count as experience as a member of a Project Office. As regards the periods from May 2002 to February 2003, from May 2002 to the time of the applicant’s tender, and from September 2004 to March 2006, CV No 18 shows experience as a ‘Senior Analyst/Technology Expert’, and not as ‘Project Office’, as was clearly required for Profile P 5.
92 So far as concerns the applicant’s complaint relating to the Commission’s comment that CV No 18 was not compatible with the profile of Project Office, whereas the tender specifications required a profile of Project Support, it must be found that there is no such comment in the report of the evaluation committee, but merely in the Commission’s defence. Consequently, it cannot vitiate the contested decision with a manifest error of assessment.
– CV No 19
93 In its pleadings, the Commission sets out the grounds of the evaluation committee and submits, concerning CV No 19, that the professional experience acquired between December 1996 and January 1998, between July 1999 and the end of 2002, and between May 2004 and May 2005 could not be taken into consideration, since no information had been provided in relation to the profile of Project Office.
94 The applicant admits that the evaluation committee did not err in taking account of the experience acquired during the period from December 1996 to January 1998. However, it states that the Commission’s claim that the professional experience referred to on CV No 19 was below the minimum of six years required for the profile of Senior Project Office is contrary to the tender specifications, which did not require a profile of Project Office, but that of Project Support.
95 It must be found that, as in the case with CV No 18, that observation on the part of the Commission is not set out in the report of the evaluation committee, but only in the Commission’s defence, and it can thus not vitiate the contested decision with a manifest error of assessment.
96 In any event, it does not follow from the file that the evaluation committee led the Commission to commit a manifest error of assessment by rejecting CVs Nos 18 and 19, which were chosen by the applicant itself to satisfy the requirements laid down in the tender specifications.
The conformity of project references Nos 1 and 6 with the tender specifications
97 It should be noted, at the outset, that the Commission has significant discretion in the field and that review by the Court must be limited to ensuring that the Commission did not commit any manifest errors in exercising that discretion.
98 Pursuant to Article 97(1) of the Financial Regulation, the selection criteria are to enable the capability of candidates and tenderers to be evaluated.
99 Section 9.2.2 of the tender specifications provides that the criteria used to assess the technical and financial capacities of the tenderer to perform the contract are ‘skill, efficiency, experience, reliability and similar circumstances’.
100 Section 4.6.3.1 of the questionnaire referred to the request made to potential tenderers to enclose ‘a completed Project Reference Form for each of 6 recent … time and means projects in the area of the required services, each done for a different customer …’. It was stated in that section that ‘use of the following technologies [was] required as a minimum: - Oracle RDBMS in 3 references – Business Objects in 1 reference’. Finally, that provision stated that ‘[t]he tenderers who [did] not comply with these thresholds [would] be judged as not having the minimum technical capacity to deliver the required services’.
101 According to the reply given by DG TAXUD to question No 25 of the potential tenderers in relation to project references, the tenderers could not give ‘fixed fee’ project references instead of TIMEA references, but could, however, give project references where some components were ‘fixed fee’ and some TIMEA references ‘on the condition that a clear split [was] provided between both components of the project and that the [TIMEA] component [fitted] the minimum requirement as requested in the questionnaire’.
102 It is clear from that questionnaire that references to ‘6 recent … time and means projects in the area of the required services’ had to be submitted’. In addition, that requirement was reiterated by DG TAXUD in its reply to question No 25 referred to above. Moreover, the applicant wrongly refers to the reply to question No 5, which concerns client references (section 4.6.1 of the questionnaire), and not project references (section 4.6.3 of the questionnaire).
103 Consequently, the Court must reject the applicant’s argument that, since none of the selection criteria required references specifically in the scope of TIMEA, the Commission erred in rejecting project references Nos 1 and 6 on the ground that those projects did not fall within the same field as the TIMEA project.
– Project reference No 1
104 The applicant points out that the TIMEA call for tenders asked for six recent project references in the area of the required services. It submits that the evaluation committee wrongly rejected project reference No 1 on the ground that it fell outside the scope of TIMEA. The Commission responds that project reference No 1, as submitted by the applicant, fell outside the scope of TIMEA, even though it was explained in detail what was expected, so there could be no doubt about the scope of that requirement.
105 In relation to project reference No 1, the evaluation committee made the following comments:
‘[Project reference] No 1 concerned the provision of services regarding information systems relying principally on the internet/intranet paradigm (Web application). This is outside the scope of TIMEA and therefore not relevant for the purposes of [the TIMEA] call for tenders. The majority of the profiles provided under time and means for this PRF relate to Web Design developer and Webmaster (activities outside the scope of the TIMEA [call for tenders]). It should also be mentioned that in fact the contractor in that case (ESP5 Temporary Association) was a temporary association composed of 5 companies, of which European Dynamics was one member. It is impossible to determine the exact proportion of profiles provided by European Dynamics, as distinct from the 4 other partners of that temporary association who are not part of the tendering consortium for TIMEA. The Business Objects reference in [project reference] No 1 cannot be taken into account as it is linked to activities outside the scope of the TIMEA [call for tenders].’
106 It is thus clear from the file itself that the evaluation committee’s assessment was not erroneous and that it could thus not have led the Commission to vitiate the contested decision with a manifest error. The applicant’s argument that the Commission rejected project reference No 1 without examining in detail the services which it offered and without having assessed its exact nature can thus not be upheld.
– Project reference No 6
107 The applicant submits that the evaluation committee failed to examine this project reference in detail, which led the Commission to make a manifest error of assessment in taking the view that it failed to prove its relevancy to Business Objects technology. The Commission contends that project reference No 6 failed to satisfy the requirement that it demonstrate expertise in Business Objects technology and therefore had to be rejected in its entirety.
108 In the present case, it needs to be determined whether, in considering that project reference No 6 could not be accepted because it failed to prove the use of Business Objects technology, the evaluation committee arrived at the wrong decision and, consequently, whether it led the Commission to vitiate the contested decision with a manifest error of assessment.
109 In respect of that project reference, the evaluation committee stated that ‘[reference project] No 6 relate[d] mainly to development (60%)’ and that, ‘even though Business Objects is mentioned in the Correlation Table, there [was] no clear demonstration of use of this technology in this project reference (the Time and Means activity [was] about pre-study and not linked to the software)’. It thus concluded that that project reference could not be taken into account, since the requirement concerning demonstration of expertise in Business Objects technology had not been fulfilled.
110 Thus, here again, it is clear from the documents in the file that the assessment of the evaluation committee was not erroneous and that, consequently, the Commission did not vitiate the contested decision with a manifest error. The applicant’s argument can therefore not be upheld.
Evaluation of the successful tenderer’s bid
111 The applicant submits that the bid put forward by the successful tenderer was vitiated by serious errors that ought to have led the evaluation committee to exclude it. The Commission replies that this argument bears no relevance to the present plea and observes that it was not required to communicate to the applicant its evaluation of the successful tenderer’s bid.
112 The Court notes the imprecise nature of the complaint alleging a manifest error of assessment in relation to the evaluation of the successful tenderer. Moreover, the structure of the application reveals that that argument by the applicant serves primarily to introduce the plea concerning the wrongful application of the selection criteria.
113 It needs to be determined, in the present case, whether the applicant may rely on a manifest error of assessment in relation to that assessment during the award stage, its own bid having been rejected at the earlier selection stage. If that is deemed to be the case, it will then need to be examined whether the applicant’s argument is well founded.
114 In order to do so, it needs to be assessed whether, in the present case, the possible acknowledgement of such an error is likely to procure an advantage for the applicant (see, to that effect, Antwerpse Bouwwerken v Commission, paragraph 56 above, paragraphs 33 to 37).
115 In the case at hand, as the applicant’s bid was rejected at the selection stage, it was not evaluated in the light of the award criteria and did not enter into competition with the successful tenderer’s bid. If the successful tenderer’s bid had received lower scores, the applicant’s situation would not have been any different. Only annulment of the contested decision on another ground would change the applicant’s situation in that regard. It may be necessary to assess that issue after having examined the applicant’s pleas of annulment.
116 It follows from the foregoing that a definitive decision as to whether that argument is well founded will be made subsequently, as will the decision as to whether the second plea is founded in its entirety.
The third plea, alleging infringement of the principles of transparency and equal treatment, and also of Article 93(1)(c) of the Financial Regulation
117 The applicant submits that the bid of the successful tenderer is in many respects similar to the bids which it submitted for the TIMEA project and other similar projects. It points out that the tendering team of the successful tenderer is composed of three of its former employees who left it shortly before submission of the TIMEA call for tenders, thus breaching their contract with the applicant. The Commission responds that tenderers are directly responsible for the declarations they make and the documents they submit and that any civil action for infringement of intellectual property rights should be brought directly against them.
118 At the outset, it is necessary to reject as inadmissible the argument raised by the applicant at the reply stage that the principles of transparency and equal treatment were infringed as a result of the fact that the Commission published the invitation to tender, even though it contained an error and then failed to publish a corrigendum in good time.
119 Under the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. In that regard, a plea which constitutes an amplification of a submission previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible (see Case T‑195/00 Travelex Global and Financial Services and Interpayment Services v Commission [2003] ECR II‑1677, paragraphs 33 and 34, and Case T‑151/01 Duales System Deutschland v Commission [2007] ECR I‑1607, paragraph 71).
120 Although the applicant states, in the application, that the Commission published the decision to award the contract to the Guess consortium in the supplement to the Official Journal on 18 October 2008, and that it did not remedy that ‘administrative error’ until 24 January 2009, it does not submit, however, that an infringement of the principles of equal treatment and transparency results therefrom. It does not base a complaint on those facts and does not draw any legal consequences from them.
121 The third plea raised in the application, alleging infringement of the principles of equal treatment and transparency, is based on facts which are different from the argument in question, raised by the applicant in its reply. Thus, there does not appear to be any link between the two, other than in the heading of the plea.
122 Consequently, that argument must be rejected as inadmissible.
123 Moreover, in its third plea, the applicant submits, in essence, that the successful tenderer appears to have copied its own tender and that, by refusing to investigate that issue and to reject that tenderer’s bid, the Commission infringed Article 93(1)(c) of the Financial Regulation and paragraph II.12.1(c) and (e) of the tender specifications. The principle of equal treatment, the applicant claims, was infringed as a result of the Commission’s conduct since it privileged the successful tenderer.
124 It should be noted that, pursuant to Article 93(1)(c) of the Financial Regulation, ‘[c]andidates or tenderers shall be excluded from participation in a procurement procedure if: … they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify’.
125 The contract notice states, in paragraph III.2.1.I.3, that any candidate may be excluded from participation who has been guilty of grave professional misconduct proven by any means which the contracting authority can justify. The Guidebook for tenderers contains an equivalent provision in section 9.1.
126 It is apparent from Articles 93 and 94 of the Financial Regulation and Article 133 of the implementing rules that if the contracting authority, by any means which it can justify, finds there to have been grave professional misconduct on the part of a tenderer, it must exclude that tenderer from participation in a procurement procedure.
127 Consequently, the contracting authority is required, as soon as it is informed, during the procedure, of alleged grave professional misconduct by a tenderer to verify that information and, if that grave misconduct is established to the requisite legal standard, to exclude the tenderer in question from the relevant procedure. In the absence of detailed information in that regard in the relevant legislation, it must be found that the contracting authority has a certain margin of discretion in relation to the assessment of the gravity of the misconduct which may be held against the tenderer (judgment of 4 July 2008 in Case T‑333/07 Entrance Services v Parliament, not published in the ECR, paragraph 59).
128 In the present case, first, the selection and evaluation of the bids took place in several stages and lasted from 18 March until the end of May 2008, the first meeting having taken place on 4 September 2008. The first stage of the procedure was the examination of the exclusion and selection criteria. To prove their technical and professional capacity and to be admitted to the next stage, namely the award stage, tenderers had to fill out section 4 of the questionnaire. It is at that stage that the applicant’s bid was rejected. It is only after having examined the conformity of the bids with the exclusion and selection criteria that the evaluation committee examined the award criteria. Consequently, even supposing that the applicant’s claims were founded, it was impossible for the evaluation committee to make that finding during the assessment of the bids, since, as is apparent from its report, those points of the bid had not yet been examined.
129 Second, the applicant received the report of the evaluation committee by letter of 3 October 2008 and sent its comments to DG TAXUD on 25 November 2008. However, in the meantime, it had sent a letter to OLAF on 22 October 2008 informing it of the situation and requesting it to act. Moreover, on 1 December 2008, the applicant sent the President of the Commission a letter entitled ‘Serious infringement of the applicable public procurement legislation by DG TAXUD leading to a loss of more than 9 million EURO to the tax payer’.
130 In the present case, it can be surmised from the documents in the file that, in two letters of 28 November 2008 and in a letter of 17 December 2008, the Commission stated that the applicant’s arguments were totally unfounded. Moreover, the letter of 19 December 2008 of the Secretary General of the Commission classed the title and content of the letter of 1 December 2008, referred to above, as ‘exaggerated and misleading’, thereby stating that it did not consider the applicant’s claims to be credible.
131 It should be noted that the circumstances of the present case must be distinguished from those which gave rise to the case in Entrance Services v Parliament, paragraph 125 above, on one important point. In the latter case, the professional misconduct alleged by the applicant was proven by a Commission decision sanctioning the successful tenderer for unlawful cartel activity, whereas, in this case, a tenderer has raised suspicions.
132 In any event, the Commission has a duty to look into possible fraud which is brought to its attention. The Commission is required to make a prima facie assessment and, where is finds that the allegations of fraud to be unfounded, to reject them and to inform the party making the allegations thereof, in compliance with the principles of transparency and sound administration and in accordance with the Financial Regulation.
133 In the present case, by letters of 28 November 2008 and 17 December 2008, the Commission informed the applicant that its suspicions were unfounded. OLAF’s refusal to initiate an investigation confirms that analysis, even though the applicant had been excluded from the tender procedure at the selection stage and not at the award stage. Finally, the applicant has not brought a legal action against the successful tenderer, which it accuses of fraud, and has failed to provide any concrete evidence to support its assertion which, consequently, amounts to no more than pure allegation.
134 It thus follows from the assessment of the circumstances of the present case that the third plea must be rejected.
The fourth plea, alleging infringement of the duty to state reasons
135 The applicant essentially raises two complaints in support of its allegation of infringement of the duty to state reasons. Firstly, it states, in the context of the plea alleging manifest errors of assessment, that the Commission did not provide sufficient grounds in the contested decision regarding the rejection of CVs Nos 18 and 19. Secondly, it submits that, by refusing to send it a proper analysis of the verifications which it carried out further to the applicant’s observations on the report of the evaluation committee, the Commission infringed its duty to state reasons. The Commission disputes the applicant’s allegations, arguing that it acted in accordance with the applicable law, namely Article 100(2) of the Financial Regulation and Article 149 of the implementing rules. Moreover, by its letter of 3 October 2008, it provided the applicant with the information it had requested regarding the selection and evaluation process.
136 It is clear from Article 100(2) of the Financial Regulation, Article 149 of the implementing rules, and the case‑law of the Court, that the Commission fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received (see, to that effect and by analogy, Adia interim v Commission, paragraph 55 above, paragraph 31; Esedra v Commission, paragraph 38 above, paragraphs 188 and 189; Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 54; and the judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47).
137 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its review (see Evropaïki Dynamiki v Commission, paragraph 136 above, paragraph 48 and the case‑law cited, and Evropaïki Dynamiki v EMCDDA, paragraph 56 above, paragraph 112).
138 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 the case-law cited, and Evropaïki Dynamiki v Commission, paragraph 136 above, paragraph 49).
139 Moreover, according to the case-law, if the institution or agency concerned sends a letter in response to a request for additional explanations concerning a decision before proceedings are instituted but after the date laid down in Article 149(3) of the implementing rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 73 and the case-law cited). The applicant’s arguments must be examined in the light of those considerations.
140 As regards the first complaint, in order to determine, regarding the rejection of CVs Nos 18 and 19, whether the Commission complied with its duty to state reasons laid down in the Financial Regulation and the implementing rules, the contested decision and the letters of 3 October 2008 and 28 November 2008 need to be examined.
141 The contested decision informs the applicant that the bid made by the consortium of which it formed part had not been chosen for the contract in question and states that the bid was not successful because it did not satisfy the minimum level of technical capacity required. It is also stated in the contested decision that the applicant could obtain further information on the grounds for the rejection of its tender and that, if it made a request in writing, it could be informed of the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Finally, the letter also states that certain details regarding the successful tenderer will not be communicated where it would hinder application of the law, would be contrary to the public interest, would harm the legitimate business interests of public or private undertakings or could distort fair competition between them. It follows that that letter, although somewhat formulaic in nature, is drafted in accordance with Article 100(2) of the Financial Regulation.
142 The letter of 3 October 2008, from the Commission to the applicant, provides the latter with an extract from the evaluation committee’s report. That letter was sent in response to a written request made by the applicant on 2 October 2008.
143 That extract from the report of the evaluation committee mentions the name of the successful tenderer, the reasons why the tender of the ED‑ABG Spin-ZZI consortium was rejected at the selection stage and the characteristics and advantages of the successful tender.
144 It also contains comments of the assessment committee on the tender of the ED‑ABG Spin‑ZZI consortium concerning CV Nos 18 and 19, referred to in paragraph 85 above.
145 That information must be assessed in the light of point 4.1.3 of the tender specifications, to which the evaluation committee refers and which sets out in detail the required professional experience, as is apparent from the exhaustive quotations set out in paragraphs 84 and 85 above. CV Nos 18 and 19 were rejected because they did not satisfy the criteria set out in point 4.1.3 of the terms of reference.
146 It must be found that, in accordance with Article 100(2) of the Financial Regulation, the Commission, in the present case DG TAXUD, informed the applicant of the grounds for rejecting its tender, namely because the persons to whom CV Nos 18 and 19 belonged did not reach the level of relevant professional experience required in point 4 of the terms of reference.
147 It is true that that explanation is succinct, since it does not state which periods of professional experience were not accepted or, precisely, the criteria, among those set out in point 4.1.3 of the terms of reference, which were not satisfied. However, the reasons why the CVs were rejected are given, namely the fact that they did not provide evidence of the required six years of professional experience, and the CVs which did not meet that criteria, namely CV Nos 18 and 19, are identified. In reading the CVs at issue and the terms of reference it is possible to identify which parts of the professional experience could be regarded as problematic.
148 In the light of all of the foregoing, it must be concluded that that statement of reasons provided by the Commission enabled the applicant to assert its rights before the Court and the Court to exercise its review of legality with regard to the contested decision.
149 As regards the applicant’s second complaint, alleging that the Commission infringed its duty to state reasons by limiting itself, in the letter of 28 November 2008, first, to stating that it had taken account of the points raised by the applicant in its letters of 9, 20 and 22 October 2008 and, second, to confirming its decision to allocate the contract to the successful consortium, it must be found that the contracting authority did not provide a detailed response to the applicant’s objections.
150 However, the Commission cannot be criticised for that since, having provided grounds for the contested decision in accordance with Article 100(2) of the Financial Regulation, it was under no obligation to respond (judgment of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 78). Moreover, that circumstance cannot, in itself, call into question the lawfulness of the contested decision (see, to that effect and by analogy, Case T‑30/04 Sena v EASA [2005] ECRSC I‑A‑113 and II‑519, paragraph 95; Evropaïki Dynamiki v Commission, paragraph 78; and the judgment of 1 July 2008 in Case T‑211/07 AWWW v FEACVT, not published in the ECR, paragraph 43).
151 The fourth plea must therefore be rejected.
The fifth plea, alleging abuse in the application of the selection criteria
152 The applicant submits that DG TAXUD wrongly applied the selection criteria in the TIMEA call for tenders in order to exclude its tender from the award stage. The Commission believes that it is not requested to react further to the unfounded allegation of the applicant that it has been the victim of an orchestrated plan to exclude it from information technology contracts.
153 It should be noted, at the outset, that the applicant alleges, inter alia, an infringement of Article 32(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). Under Article 105 of the Financial Regulation, from 1 January 2003 – the date on which that regulation entered into force – the directives on the coordination of procedures for the award of public supply, service and works contracts are applicable to contracts awarded by the Community institutions on their own account only in respect of questions relating to the thresholds which determine the publication arrangements, the choice of procedures and the corresponding time-limits.
154 By its fifth plea, the applicant appears to be submitting, in essence, that there has been a misuse of powers. The Commission, it claims, required tenderers to submit a specific number of CVs and project references in order to create an artificial obstacle and to exclude the applicant from the contract.
155 It is appropriate at this juncture to refer to the case‑law cited in paragraph 73 above and to point out, in addition, that, a decision is only vitiated by misuse of powers if taken with the exclusive or main purpose of achieving an end other than that stated by the institution or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C‑442/04 Spain v Council [2008] ECR I‑3517, paragraph 49 and the case‑law cited; Case T‑266/97 Vlaamse Televisie Maatschappij v Commission [1999] ECR II‑2329, paragraph 131; Case T‑158/99 Thermenhotel Stoiser Franz and Others v Commission [2004] ECR II‑1, paragraph 164; and the judgment of 22 April 2009 in Case T‑286/05 CESD-Communautaire v Commission, not published in the ECR, paragraph 84).
156 In the present case, first, it must be found that, contrary to what the applicant claims, the Commission did not infringe Article 135(2) and Article 148(3) of the implementing rules.
157 Second, the applicant has not provided the Court with any objective, relevant and consistent evidence to show that the Commission decided to request a specific number of CVs and project references as evidence of the technical capacity of the tenderers with the exclusive or main purpose of achieving an end other than that of evaluating the technical capacity of the tenderers and thereby to designate those which would be admitted to the award stage.
158 As regards the alleged abuse in the determination of the selection criteria at issue, the applicant has failed to show that the Commission committed any abuse.
159 Third, so far as concerns the discrimination alleged by the applicant, it should be noted that there is no evidence to conclude that the Commission used its powers for the purpose of achieving an end other than that for which those powers were provided.
160 In the light of the foregoing, the fifth plea must be rejected. Given that there is no illegality in the contested decision, for the reasons set out in paragraphs 112 and 113 above, it is also necessary to reject the argument alleging a manifest error of assessment in relation to the evaluation of the bid of the successful tenderer and, consequently, the second plea in its entirety. It follows that the action for annulment must be rejected in its entirety.
3. The claim in damages
Admissibility
161 The Commission submits that the claim in damages is inadmissible since it fails to specify the circumstances giving rise to non-contractual liability, as is required by Article 44(1)(c) of the Rules of Procedure. The contested decision in this case cannot be regarded as unlawful conduct. Moreover, the application lacks precision as regards the nature of the damages since it does not enable the damages claimed to be calculated and does not establish a causal nexus between the allegedly unlawful conduct and the harm alleged. The applicant asserts that the infringements which it alleges in its application for annulment provide sufficient grounds for its claim in damages. As regards the nature of the damages, the applicant maintains that it has presented a specific method of calculation based on undisputed financial principles. It is because the Commission withheld information about the evaluation procedure that the applicant has not managed to give more information in support of its claim in damages.
162 It is apparent from Article 44(1)(c) of the Rules of Procedure that the application must state the subject‑matter of the proceedings and a summary of the pleas in law on which it is based. In accordance with the case‑law, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraph 106, and the judgment of 12 November 2008 in Case T‑406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 131).
163 In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (Asia Motor France and Others v Commission, paragraph 161 above, paragraph 106, and Case T‑19/01 Chiquita Brands and Others v Commission [2005] ECR II‑315, paragraph 65).
164 It is apparent from the application that the unlawful conduct complained of is the alleged unlawfulness of the contested decision, as supported by the pleas seeking annulment. As regards the nature of the damages, it is clear from the application that the applicant ‘requests monetary compensation equal to EUR 7 638 125 from DG TAXUD, corresponding to its estimated gross profit from the aforementioned public procurement procedure, should [it] have been awarded the contract’. So far as concerns the requirement of a causal link, it emerges sufficiently from the application that the applicant considers that the damage it suffered resulted from the adoption of the contested decision by the Commission and the alleged infringements, by that decision, of European Union law.
165 Accordingly, the claim in damages must be declared admissible.
Substance
166 The applicant claims that, should the Court find that the contested decision was adopted in breach of the Financial Regulation and/or the principles of transparency and equal treatment, and given that the Court will in all likelihood adjudicate on the present case after the contract has been fully performed by the successful tenderer, it should order DG TAXUD, on the basis of Articles 235 EC and 288 EC, to pay the applicant compensation of EUR 7 638 125. The Commission argues that the claim in damages is unfounded. First, the applicant has failed to prove any unlawful conduct on the Commission’s part. Secondly, the calculation method which the applicant used to estimate its loss of profits is not valid. Third and finally, the applicant has not furnished evidence that the contract would have been awarded to it if its tender had not been rejected.
167 It is settled case‑law that, in order for the Community to incur non‑contractual liability under the second paragraph of Article 288 EC for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; 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).
168 If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraphs 19 and 81, and Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37).
169 In the present case, it has been held, in relation to the action for annulment, that the contested decision was not vitiated by an illegality.
170 Since the requirement of illegality has not been satisfied, the claim in damages must be rejected as unfounded, as must, therefore, the action in its entirety.
Costs
171 According to the applicant, even if the Court decides to reject the action, the Commission should be ordered to pay the costs of the proceedings, in accordance with Article 87(3) of the Rules of Procedure.
172 It should be noted that, under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared where the circumstances are exceptional.
173 As there are no exceptional circumstances and the applicant has been unsuccessful, it is to be ordered to pay its own costs and those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the European Commission.
Jaeger | Wahl | Soldevila Fragoso |
Delivered in open court in Luxembourg on 24 April 2012.
[Signatures]