JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

23 May 2014 (*)

(Public service contracts — Tender procedure — Provision of services relating to IT infrastructure and applications for the ECB — Rejection of the application — Action for annulment — Act open to challenge — Admissibility — Criteria for selecting candidates — Compliance of an application with the conditions laid down in the call for applications — Obligation to state reasons — Failure to exercise the power to ask for clarification in relation to an application — Manifest errors of assessment — Misuse of powers — Action for damages)

In Case T‑553/11,

European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg), represented by N. Korogiannakis and M. Dermitzakis, lawyers,

applicant,

v

European Central Bank (ECB), represented by F. von Lindeiner and P. Pfeifhofer, acting as Agents,

defendant,

APPLICATION (i) for annulment of the decision of the ECB to reject the application of a temporary grouping of undertakings including the applicant to participate in a negotiated tendering procedure concerning information technology services, of the decision of the Procurement Review Body of the ECB to reject the appeal against that decision, and of all related decisions of the ECB and (ii) for damages,

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), acting as President, A. Popescu and G. Berardis, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 26 June 2013,

gives the following

Judgment

 Background to the dispute

1        By a contract notice published on 16 April 2011 in the Supplement to the Official Journal of the European Union (OJ 2011/S 75) under reference 14159/IS/2010, the European Central Bank (ECB) launched a negotiated tendering procedure for the provision of information technology (‘IT’) infrastructure and applications services, in accordance with Article 13 of Decision ECB/2007/5 of the ECB of 3 July 2007 laying down the rules on procurement (OJ 2007 L 184, p. 34), as amended. On 7 May 2011 a corrigendum to the contract notice was published in the Supplement to the Official Journal of the European Union (OJ 2011/S 89).

2        The negotiated tendering procedure is divided into two lots. The purpose of lot 1 was to select up to five contractors to provide to the ECB services and works for ‘IT applications and IT infrastructure (in part or full): design, build, operate, support and maintain’.

3        The call for applications contains information on the evaluation process, the selection criteria and the methodology to be applied. Section III.1 describes the evaluation process as follows:

‘The ECB intends to invite up to 8 Candidates for lot 1 and up to 5 Candidates for lot 2 to submit a tender provided that a sufficient number of Candidates meeting the selection criteria is available. The ECB shall invite the Candidates (i) whose applications comply with the formal requirements laid down in this call for applications; (ii) who meet the eligibility criteria set out in Section 3; and (iii) who best meet the selection criteria set out in Section 4 below.

The ECB may request Candidates to supplement their application or to clarify specific points within the limits set out in Article 20 of Decision [2007/5].’

4        In respect of the selection criteria, Section III.4.2 of the call for applications specifies two minimum requirements. Section III.4.2(a) requires candidates to have had a minimum turnover in the last three financial years. Section III.4.2(b) requires:

‘at least three similar contracts performed during the last three financial years, which are comparable in terms of scope, size and complexity with the Contracts tendered by the ECB, including both the application landscape and the area of IT infrastructure’.

5        Section III.4.2 of the call for applications further requires that ‘as proof candidates shall submit the information and documents listed in Annex l’ to the call for applications.

6        Annex 1 to the call for applications contains an application form for candidates, whose Section 6.2, entitled ‘Relevant experience and references’, indicates the information to be supplied in order to meet the minimum requirement set out in Section III.4.2(b) of the call for applications.

7        Candidates were instructed to provide the required information in a summary table and several detailed tables, limited to one A4 page for each contract reference.

8        By emails dated 27 April, and 2 and 3 May 2011, European Dynamics SA submitted 33 questions on the tender documentation to the ECB, which were answered on 5 and 10 May 2011. One question concerned the number of contract references required to meet the selection criterion set out in Section III.4.2(b) of the call for applications.

9        On 12 May 2011 European Dynamics Luxembourg SA, acting on behalf of a temporary grouping consisting of itself and European Dynamics, AlmavivA SpA and KPMG Advisory SpA (together ‘the consortium’), submitted an application for lot 1, which contained six contract references as evidence of experience, as required under Section III.4.2(b) of the call for applications.

10      The procurement committee, which carried out the negotiated tendering procedure at issue, appointed an evaluation committee, which assessed the formal requirements and eligibility criteria of the 15 applications filed, an examination that was successful as regards the application submitted by the consortium.

11      At the next stage, the evaluation committee considered that five applications fulfilled the selection criteria and, in particular, the minimum requirements concerning capacity levels. The consortium’s application was found not to meet the minimum requirements of Section III.4.2(b) of the call for applications.

12      On 11 July 2011, the procurement committee approved the report prepared by the evaluation committee and invited the three candidates who best met the selection criteria to submit a tender in the next stage of the negotiated procedure.

13      By letter of 5 August 2011 (the ‘decision of 5 August 2011’), the ECB informed the applicant, in its capacity as leader and representative of the consortium, that the consortium’s application had not been successful because the information provided did not show that the minimum requirements laid down in Section III.4.2(b) of the call for applications had been fulfilled.

14      By letter of 11 August 2011, the applicant requested that the ECB provide it with the reasons for the rejection of its application, an extract from the evaluation report showing how the requirements of the call for applications were alleged not to have been fulfilled and copies of all documents relating to the evaluation of its application, in accordance with Article 28 of Decision 2007/5, and the names of the successful candidates or temporary groupings (including their composition), as well as the key characteristics and relative advantages of their applications. The applicant also requested that the procedure be ‘frozen’ until all information had been provided.

15      By letter of 22 August 2011, the ECB replied to the applicant, giving reasons for its decision and providing an extract from the evaluation report and the detailed evaluation matrix relating to the consortium’s application. In addition, the ECB stated that the request for the call for applications to be frozen was inadmissible in the context of a request for information based on Article 28(3) of Decision 2007/5.

16      On 31 August 2011, the applicant lodged an appeal under Article 33 of Decision 2007/5 requesting that the ECB, inter alia, review and annul the decision of 5 August 2011.

17      By fax dated 29 September 2011 (the ‘decision of 29 September 2011’), the Procurement Review Body of the ECB informed the applicant that its appeal had been rejected as inadmissible and unfounded.

 Procedure and forms of order sought

18      By application lodged at the Court Registry on 14 October 2011, the applicant brought the present action.

19      Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure.

20      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 26 June 2013.

21      The applicant claims that the Court should:

–        annul the decision of 5 August 2011;

–        annul the decision of 29 September 2011;

–        annul all related decisions of the ECB;

–        order the ECB, pursuant to Articles 256 TFEU, 268 TFEU and 340 TFEU, to pay it the sum of EUR 2 million in damages for loss of opportunity and damage to its reputation and credibility;

–        order the ECB to pay legal and other costs and expenses incurred in connection with the present action.

22      The ECB contends that the Court should:

–        dismiss the application as inadmissible, or, in the alternative, as unfounded;

–        order the applicant to pay the costs of the present proceedings.

 Law

1.     The applications for annulment

 Admissibility

 The act which is open to challenge

–       Admissibility of the action inasmuch as it relates to the annulment of the decision of 29 September 2011

23      The ECB submits that the decision of 29 September 2011 merely confirms that of 5 August 2011. That decision does not have any additional legal effect since the appeal was rejected as inadmissible. Accordingly, the claim for annulment of the decision of 29 September 2011 is inadmissible.

24      The applicant submits that the decision of the Procurement Review Body cannot be considered simply as a confirmatory act inasmuch as it constitutes the outcome of the review procedure provided for in Decision 2007/5 and concerns the substance of the case with the addition of new elements.

25      First, it must be stated that the decision of 29 September 2011 was taken at the end of the internal appeal procedure provided for by Article 33 of Decision 2007/5, to which both Section IV.2 of the call for applications and Section VI.4) of the contract notice refer.

26      Article 33 of Decision 2007/5, entitled ‘Appeal procedure’, provides:

‘1.       In public tender procedures under Chapter II, candidates/tenderers may challenge in writing the ECB’s decision to reject their application or tender within 15 days from the receipt of the information specified in Article 28(3) or, if no information is requested, within 15 days from the receipt of the notification. The appeal shall include all supporting information and reasoned objections.

2.       The appeal shall be addressed by the ECB’s Procurement Review Body (PRB). If the PRB considers that the decision to reject the appellant’s application or tender infringes this decision or general principles of procurement law it shall either order that the tender procedure or parts of it are reiterated or take a final decision. Otherwise the appeal shall be rejected. The PRB shall notify the appellant in writing of its decision within one month following the receipt of the appeal. The decision shall state the reasons on which it is based.

3.       The appeal shall not have suspensory effect. If deemed appropriate, the PRB may suspend the procurement procedure or the award of the contract.’

27      Article 34 of Decision 2007/5 entitled ‘Jurisdiction’, provides:

‘The Court of Justice ... shall have exclusive jurisdiction in any dispute between the ECB and a supplier relating to this Decision or a specific procurement procedure. If an appeal procedure is available under Article 33 the appellant shall await the ECB’s decision on the appeal before bringing the matter to the Court of Justice. Time limits set out in the Treaty shall begin to run from receipt of the appeal decision.’

28      It follows, first, that, under Article 33(2) of Decision 2007/5, the role of the Procurement Review Body of the ECB is to check whether the decision to reject the appellant’s application or tender infringes Decision 2007/5 or the general principles of procurement law, in which case it is open to that body to order that the tender procedure or parts of it be reiterated or to take a final decision. Otherwise it shall dismiss the appeal. It is required to give a statement of reasons.

29      Secondly, Article 34 of Decision 2007/5 states that, if ‘an appeal procedure is available under Article 33 the appellant shall await the ECB’s decision on the appeal before bringing the matter to the Court of Justice’, that provision being supplemented by the statement that the time for bringing proceedings shall only begin to run from the date of the receipt of the decision adopted by the Procurement Review Body of the ECB.

30      By establishing such a mechanism of self-monitoring and dispute resolution prior to court proceedings, Articles 33 and 34 of Decision 2007/5 aim to provide an additional guarantee for candidates and tenderers and to prepare or avoid litigation before the Courts of the European Union.

31      In addition, by providing for precise and short time periods for bringing an internal appeal and for notifying the decision of the Procurement Review Body, as well as the possibility of suspending the procurement procedure or the award of the contract under Article 33(3), Decision 2007/5 also pursues, in the interests of sound administration, the objective of allowing the correction of any deficiencies in a timely manner.

32      Furthermore, it should be noted that it follows from Article 33 of Decision 2007/5 that the procedure laid down by that provision is not merely a conciliation mechanism whose purpose is to reach an out­of­court settlement, but is an effective remedy whose purpose is to ensure that the lawfulness of the decision to reject the applicant’s application or bid is verified by a body separate from the one which made the initial rejection decision and giving rise to a decision open to judicial review.

33      In the present case, after bringing an internal appeal before the Procurement Review Body of the ECB against the decision of 5 August 2011, which was dismissed by the decision of 29 September 2011, the applicant brought an appeal before the Court seeking, inter alia, the annulment of the decision of 5 August 2011 and of the decision of 29 September 2011.

34      The conduct of the proceedings and the wording of the decisions of 5 August and 29 September 2011 are consistent with the internal appeal procedure as just described.

35      Thus, the decision of 5 August 2011 refers, for information on possible remedies, to Section IV of the call for applications which, as set out in paragraph 25 above, itself refers to the internal appeal procedure provided for in Decision 2007/5, which states that the applicant is to await the decision of the Procurement Review Body of the ECB before bringing an appeal before the Court.

36      The decision of 29 September 2011 ends with the words ‘[t]his decision may be contested in the Court of Justice of the European Union’, coupled, inter alia, with a reference to Article 263 TFEU. Contrary to what was argued at the hearing by the ECB, which noted some ambiguity in the wording of the last three sentences of the decision of 29 September 2011, those words cannot be understood as a reference to the decision of 5 August 2011 as the only one which may be the subject of an action before the Court of Justice of the European Union.

37      At the end of the decision of 29 September 2011, the Procurement Review Body states its decision, namely that ‘[it] is of the view that the [procurement committee] has correctly evaluated [the] application [of the consortium] and taken a lawful decision’, and then continues by expressing its hope that ‘this decision does not prevent [the applicant] from participating in tender procedures conducted by the ECB in the future’. The decision referred to in that sentence can only be the decision set out in the previous sentence, which is the decision of the Procurement Review Body that the procurement committee had taken a legal decision. Next, the last sentence of the decision of 29 September 2011 states that ‘[t]his decision may be contested in the Court of Justice of the European Union …’. In view of the foregoing, the decision to which that indication refers can only be the decision referred to in the previous sentence, which is the decision of the Procurement Review Body finding the decision of 5 August 2011 to be lawful. That reading flows not only from the very wording of the decision of 29 September 2011, but is also the only one which is consistent with the internal appeal procedure established by Articles 33 and 34 of Decision 2007/5 as described above and understood by the applicant.

38      Having regard to all the foregoing, the admissibility of the present action so far as concerns the application for annulment of the decision of 29 September 2011 does not depend on whether or not that decision confirmed the initial decision rejecting the application of the consortium.

39      It should be recalled in that regard that when the European Union judicature is called upon to determine whether one act confirms another, the purpose thereof is in particular to avoid improperly starting time running again in regard to expired time-limits for bringing an action. According to settled case-law, where an applicant allows the time-limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him to expire, he cannot start time running again by asking the institution to reconsider its decision and bringing an action against the refusal confirming the decision taken previously (see order of the General Court of 10 October 2006 in Case T‑106/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 55, and order of the General Court of 15 September 2011 in Case T‑407/07 CMB and Christof v Commission, not published in the ECR, paragraph 96).

40      Apart from the fact that in the present case the issue of time-limits for bringing an action does not arise, the principle of the confirmatory act does not in any event apply having regard to the internal appeal procedure as provided for under Articles 33 and 34 of Decision 2007/5 and to the objective of that procedure described in paragraphs 30 to 32 above.

41      It follows from all the foregoing that the application for annulment of the decision of 29 September 2011 is admissible.

42      Secondly, it is appropriate to examine whether it is necessary, in the present case, in view of the content and scope of the decision of 29 September 2011, and in view of the heads of claim submitted by the applicant against it, to specifically examine the legality of that decision.

43      First, it should be noted that it is only in the context of its argument that the Procurement Review Body of the ECB incorrectly declared the appeal inadmissible on the grounds that the applicant did not have standing to represent the consortium that the applicant specifically disputes the decision of 29 September 2011.

44      However, on the one hand, it appears that the main purpose of the applicant’s argument is to counter a purported line of argument by the ECB that the appeal against the decision of 29 September 2011 was inadmissible before the Court because of the decision’s statement that the applicant’s appeal was inadmissible. To the extent that the ECB’s line of argument may be construed to that effect, it is sufficient to note in that regard that it is stated at paragraph 41 above that the application is admissible in that it seeks the annulment of the decision of 29 September 2011.

45      On the other hand, it is clear that the Procurement Review Body of the ECB did not merely declare inadmissible the action brought by the applicant, but also assessed its merits, which, moreover, renders the applicant’s challenge to that declaration of inadmissibility nugatory.

46      Secondly, as regards the scope of the decision of 29 September 2011, it should be noted that the Procurement Review Body of the ECB, in that decision, merely stated that the decision of the procurement committee to reject the consortium’s application, to which the Procurement Review Body expressly referred, was ‘lawful’. In the same way, it confirmed the grounds for that decision, namely that none of the five contractual references to the IT infrastructure was comparable to the contract to be awarded and therefore did not meet the selection criteria defined in section III.4.2(b) of the call for applications.

47      The Procurement Review Body of the ECB also responded to some of the applicant’s arguments, submitted in support of the internal appeal, and dismissed complaints about the improper use of selection criteria, the role of the procurement committee and the lack of requests for clarification — though provision is made therefor under Article 20 of Decision 2007/5 — or of contact with reference persons.

48      While the decision rejecting the internal appeal therefore contains a statement of reasons in law and fact which is more detailed than the letter of 5 August 2011, supplemented by the letter of 22 August 2011, the second decision of 29 September 2011 none the less has substantially the same scope as that which is the subject of that action, namely the rejection of the consortium’s application in the context of the procedure of the call for applications referred to in paragraph 1 et seq. above.

49      It follows from the foregoing that there is no need to specifically examine the legality of the decision of 29 September 2011, but that it is appropriate to conduct a review of the legality of the rejection of the consortium’s application taking into account all the reasons relied on during the procedure, bearing in mind that in public procurement, the obligation to state reasons pertaining to a decision may be fulfilled in several stages (see, to that effect and by analogy, Case T‑50/05 Evropaïki Dynamiki v Commission [2010] ECR II‑1071, paragraph 133 and the case-law cited, and judgment of 22 May 2012 in Case T‑6/10 Sviluppo Globale v Commission, not published in the ECR, paragraph 29), and must be assessed in the light of information available to the applicant at the time of bringing the action (Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 58, and Case T‑4/01 Renco v Council [2003] ECR II‑171, paragraph 96).

–       Admissibility of the appeal in so far as it seeks the annulment of ‘all related decisions of the ECB’

50      The ECB submits that the action is inadmissible in so far as it seeks annulment of ‘all related decisions of the ECB’. It maintains that the applicant must specifically identify, in its application, which act it is seeking to have annulled and that, if it fails to do so, as in the present case, the application is inadmissible on the ground that its subject­matter is unknown. The ECB adds that, despite the information provided by the applicant in the reply, the challenge to ‘all related decisions’ remains unclear and must therefore be dismissed.

51      In the reply, the applicant argues that, in using the term ‘all related decisions of the ECB’ in the context of the present procedure, it is referring to all the decisions taken by the ECB in relation to the procurement procedure at issue — other than those explicitly identified in the application — which were not notified to it but which affect its interests and are necessarily and by their nature associated with the present proceedings, ‘e.g. the award decision of the respective negotiated procedure’.

52      It should be recalled that the subject-matter of the dispute and the applicant’s heads of claims are two essential indications which must, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and with Article 44(1)(c) and (d) of the Rules of Procedure of the General Court, be included in the application initiating the proceedings (order of 7 May 2013 in Case C‑418/12 P TME v Commission, not yet published in the ECR, paragraph 32).

53      It should also be noted, in that regard, that, as the Court has consistently held, all applications initiating proceedings must indicate the subject-matter of the proceedings and a summary of the pleas in law; that indication must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. Similarly, the heads of claim in the application initiating proceedings must be unequivocal to prevent the Court from ruling ultra petita or from failing to rule on a complaint (see order in TME v Commission, paragraph 52 above, paragraph 33 and the case-law cited).

54      Heads of claim, such as those listed in the application, that seek the annulment of acts related to challenged acts which are not identified must be declared inadmissible as a result of the lack of precision of their subject-matter (see, to that effect, order in Case T‑166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II‑3991, paragraph 79).

55      That finding is not undermined by the fact that it has been held, first, that the identification of the contested act could be implicitly inferred from the indications contained in the application and from the argument therein as a whole and, secondly, that an action formally brought against an act that is part of a series of acts forming a whole could be regarded as directed also, so far as necessary, against the others (order in Case T‑320/09 Planet v Commission [2011] ECR II‑1673, paragraph 23). Indeed, such a deduction is impossible specifically when the arguments contained in the application manifestly lack clarity and precision (order in Case T‑64/96 Jorio v Council [1997] ECR II‑127, paragraph 35), as is the case in the present case (see paragraph 51 above).

56      The applicant has admittedly referred, for the first time in the body of the reply, to the decision to award the relevant contract, while maintaining, in the form of order sought, its request for the annulment of ‘all related decisions of the ECB’.

57      Article 48(2) of the Rules of Procedure allows new pleas in law to be introduced on condition that they are based on matters of law or of fact which came to light in the course of the procedure. It is apparent from the case-law that that condition a fortiori governs any amendment to the form of order sought and that, in the absence of matters of law or of fact coming to light in the course of the written procedure, only the order sought in the application may be taken into consideration (Case 83/63 Krawczynski v Commission [1965] ECR 623, paragraph 2, and order in Case T‑236/07 Germany v Commission [2010] ECR II‑5253, paragraph 28).

58      However, the applicant neither claims that, nor a fortiori shows how, the amendment of its heads of claim was attributable to matters of law or fact which came to light during the written procedure.

59      It follows from the foregoing that the action is inadmissible in that it seeks annulment of ‘all related decisions of the ECB’.

 Admissibility of the action brought in the name and on behalf of the consortium

60      It is not disputed that the present action was brought by the applicant both in its own name and in the name and on behalf of the consortium.

61      The ECB submits that the action is inadmissible, whether the applicant acted as a representative of the consortium or individually.

62      At the outset, it should be noted that the present issue arises only with respect to the decision of 5 August 2011, which was addressed to the applicant in its capacity as leader and representative of the consortium. As the decision of 29 September 2011 was addressed not to the consortium, but to the applicant only, as the person bringing the internal appeal, the applicant is perfectly entitled, as addressee of the decision, to bring an action against it under the fourth paragraph of Article 263 TFEU, without having to prove it was directly and individually concerned by that measure.

63      The ECB states that the applicant does not provide any evidence to show that it is empowered to lodge an application on behalf of the other members of the consortium. Both the powers of attorney and the ‘teaming agreements’ produced by the applicant, in that respect, are lacking in probative value.

64      The applicant relies, in general, on the powers of attorney entitling it to represent the consortium and submits, in particular, that, as set out in the teaming agreement concluded between the members of the consortium, it has the right to represent the latter before all competent fora and exercise all rights of appeal.

65      It must first be noted that the applicant produced at the hearing the powers of attorney nominating it as representative given by the other consortium members and which were included in the application file.

66      Under those powers of attorney, the applicant was designated as the member responsible for the final version of the consortium’s application and of any future bid and was authorised to act as supervisor, coordinator and representative body ‘in all relations with the contracting authority throughout all the stages of the negotiated tender procedure’; various examples of specific measures related to that competence were mentioned in the powers of attorney.

67      Whilst the wording of the powers of attorney reveals that the other members of the consortium authorised the applicant to represent them in the context of the tender procedure, no entitlement may be inferred to bring on behalf of the consortium an action before a court of the European Union against a decision of the ECB concerning the conduct of that procedure.

68      Next, it is appropriate to note that the applicant annexed to the reply copies of the teaming agreements pertaining to the contract at issue, mentioning ‘4 May 2011’ as the date on which the agreements were concluded and providing that it was authorised, in the context of the contract, ‘to represent the consortium before all competent fora and exercise on behalf of the consortium all appeal rights as they arise from the applicable legislation and the Financial Regulation 1605/2002 as implemented by Council Regulations 2342/2002, 1261/2005 and 1248/2006’.

69      The ECB notes that the teaming agreements, first, were not attached to the application to take part in the tender procedure or to the appeal brought before the body responsible for the review of procurement contracts, nor were they attached to the appeal before the Court, and, secondly, refer to ‘Financial Regulation 1605/2002’, which is not applicable in the present case. Nor, it claims, has the applicant produced any documents establishing that it was authorised to represent European Dynamics, another member of the consortium.

70      First, it should be noted that the fact that the teaming agreements may not have been included in the consortium’s application file, or by way of annex to the internal appeal brought before the body responsible for the review of procurement contracts, does not support the conclusion that the applicant does not have standing to represent the consortium before the Court.

71      Secondly, it follows from the ECB’s written submissions that it relies, in substance, on the inadmissibility of Annexes 1 and 2 to the reply, comprising the teaming agreements, on the grounds that they were produced late in the course of the procedure.

72      It should be recalled that, under Article 44(1)(e) and Article 48(1) of the Rules of Procedure, the application must contain, where appropriate, offers of evidence, and that the parties may submit further evidence in support of their arguments in the reply or rejoinder, provided that they give reasons for the delay in submitting it. Thus, evidence in rebuttal and the amplification of previous evidence submitted in response to evidence in rebuttal from the opposite party in its defence are not covered by the time-bar laid down in Article 48(1) of the Rules of Procedure. That provision concerns submissions of fresh evidence and must be read in the light of Article 66(2) of the Rules of Procedure, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraphs 71 and 72, and Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, paragraph 189).

73      In the present case, in order to show that it has standing to represent the consortium and that it is authorised to act, generally, in the name and on behalf thereof and of the other companies comprising it, including before the Courts of the European Union, the applicant annexed to its application powers of attorney signed by the other companies, whose probative value was disputed by the ECB in its defence.

74      The teaming agreements, included for the first time in the reply, do not therefore constitute new evidence, but are simply an amplification of evidence that had already been produced by the applicant at the application stage, which amplification seeks to provide a detailed response to the arguments put forward by the ECB in its defence. It follows that the documents included by the applicant in Annexes 1 and 2 of its reply are admissible (see, to that effect, order of 12 September 2007 in Case T‑448/04 Commission v Trends and Others, not published in the ECR, paragraph 55).

75      Thirdly, the ECB’s citation from the teaming agreements is manifestly selective. Under those agreements, the applicant is authorised to exercise on behalf of the consortium all rights of action resulting from the ‘applicable legislation’, a general term which may include Decision 2007/5, which is applicable to the contract at issue, and the relevant provisions of the FEU Treaty.

76      Fourthly, while the applicant indeed produced teaming agreements with AlmavivA and KPMG Advisory which showed that it was authorised to bring proceedings on behalf of the consortium, that is not the case, as noted by the ECB, in relation to European Dynamics, another member of the consortium.

77      When questioned on that point at the hearing, the applicant merely indicated that it was linked to European Dynamics and referred to a broader agreement without, however, providing any specific evidence in support of its statements.

78      In those circumstances, the action must be held inadmissible in as much as it was brought in the name and on behalf of the consortium.

 Admissibility of the action brought in the name of the applicant

79      As regards the challenge to the admissibility of the action brought by the applicant in its own name, the ECB claims that, according to the Court’s case-law, the consortium at issue is a legal person within the meaning of Article 263 TFEU and that, accordingly, as the applicant is a member of that consortium, it is not directly concerned by the decisions in question and therefore does not fulfil the condition for admissibility of the action set out in the above provision.

80      In that regard, the ECB relies on the judgment in Case 135/81 Groupement des Agences de voyages v Commission [1982] ECR 3799, paragraph 11, in which the Court of Justice decided that an ad hoc association of 10 travel agencies grouped together in order to respond jointly to an invitation to tender, having been allowed to take part by the Commission in the tendering procedure and having been considered and its tender rejected, fulfilled the conditions required by EU law for the purpose of recognition as having the character of a ‘legal person’ within the meaning of the fourth paragraph of Article 263 TFEU. That is also the case of the consortium in the present case.

81      Consequently, the ECB submits that the Court’s reasoning in the judgment in Evropaïki Dynamiki v Commission, paragraph 49 above (paragraph 40), according to which a consortium which has never had legal personality is an ad hoc transparent structure with regard to its members, who must therefore be considered the addressees of a decision to reject the application or tender submitted by the consortium, is not relevant in the present case.

82      That line of argument cannot be upheld inasmuch as the approaches applied in the two cases above cannot be regarded as mutually exclusive.

83      Pursuant to the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may … institute proceedings against an act addressed to that person or which is of direct and individual concern to them …’.

84      In the present case, while the decision of 5 August 2011 is, from a formal point of view, addressed to the candidate, that is to say, to the consortium, the fact remains that, as the applicant stated without being contradicted by the ECB, the consortium has never had legal personality. Accordingly, pursuant to Article 263 TFEU, since that ad hoc structure was transparent so far as its members are concerned, the four companies concerned must be regarded as addressees of that decision. It was therefore open to the applicant, as an addressee of the decision of 5 August 2011, to challenge the decision under the conditions laid down by Article 263 TFEU (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 49 above, paragraph 40, and Sviluppo Globale v Commission, paragraph 49 above, paragraph 19).

85      That finding cannot be called into question by the wording of the judgment in Groupement des Agences de voyages, paragraph 80 above, on which the ECB’s objection is founded.

86      In that judgment, the Court of Justice ruled on a challenge to the admissibility of an action for annulment brought by a company being formed, comprising 10 travel agencies, on the ground that such an entity lacked ‘capacity to institute proceedings’ (Groupement des Agences de voyages, paragraph 80 above, paragraph 8).

87      After noting that the concept of ‘legal person’ in the Treaties is not necessarily the same as in the various legal systems of the Member States, the Court stated that, having been allowed by the Commission to take part in the tender procedure and having been considered and its tender rejected, the company at issue fulfilled the conditions required by EU law for recognition as having the character of a ‘legal person’ within the meaning of the Treaties (Groupement des Agences de voyages, paragraph 80 above, paragraphs 10 and 11).

88      The Court then stated that ‘the contested decision may further be regarded as having caused “direct and individual” injury to the association constituted by the 10 agencies since if the association could submit a tender, subject of course to being subsequently transformed into a formally constituted company, it obviously had an interest in having its tender accepted’ (Groupement des Agences de voyages, paragraph 80 above, paragraph 13).

89      The fact that an ad hoc association of undertakings without legal personality could still be classified as a ‘legal person’ within the meaning of the Treaties, be recognised as having standing and, consequently, the right to bring proceedings before the Courts of the European Union does not mean that the members of that body are, therefore, necessarily deprived of such a right.

90      In that respect, it should be noted that that procedural recognition does not change the nature of such a body with regard to its members, legally independent companies which are gathered together, for the purposes of responding to a tender procedure, within an ad hoc and temporary structure and which, in accordance with the case-law referred to in paragraph 84 above, may be regarded as addressees of a contracting authority’s negative decision on their collectively expressed application or offer.

91      In addition, it is not clear why the principle in Evropaïki Dynamiki, paragraph 49 above (paragraph 40), confirmed by Sviluppo Globale, paragraph 49 above (paragraph 19), noted in paragraph 84 above, that a consortium which never had legal personality is an ad hoc structure which is transparent with regard to its members, which must accordingly be regarded as addressees of decisions concerning the application or tender submitted by the consortium, cannot be relevant in the present case, given that the consortia at issue in the cases giving rise to the above judgments also fulfilled the conditions for their recognition as a ‘legal person’ within the meaning of Article 263 TFEU, as set out in Groupement des Agences de voyages, paragraph 80 above.

92      Finally, it should be noted that, having stated that the ‘contested decision is neither of direct nor of individual concern to the applicant’, the ECB states that the applicant is unable to show ‘sufficient legal interest, since even if a single member of a consortium successfully challenged the rejection of the consortium’s bid, it could not be awarded the contract’ and notes, in that regard, that the applicant does not itself fulfil the minimum requirements of the negotiated procedure.

93      The applicant submits in that regard that the decision to reject the consortium’s application has caused it to incur losses to the extent, in particular, that it invested resources in participating in the application.

94      Inasmuch as the ECB’s line of argument can be understood as disputing the existence of the applicant’s legal interest in bringing proceedings, it should be noted that it has consistently been held that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure, which presupposes that annulment of the contested measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it (see Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 33 and the case-law cited).

95      Furthermore, it is apparent from the case-law that, even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; that interest consists either in the tenderer’s situation being properly restored by the contracting authority to its original position or in prompting that authority to make suitable amendments in the future to the tendering procedure if that procedure is found to be incompatible with certain legal requirements (see, to that effect, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 32; Joined Cases T‑191/96 and T‑106/97 CAS Succhi di Frutta v Commission [1999] ECR II‑3181, paragraph 63; and judgment of 12 December 2012 in Case T‑457/07 Evropaïki Dynamiki v EFSA, not published in the ECR, paragraph 27).

96      That case-law is applicable by analogy to the situation of an unsuccessful applicant seeking the annulment of the decision rejecting his application, prohibiting him, as a result, from submitting a bid for the award of the contract.

97      The fact relied on by the ECB that the contract could not have been awarded to the applicant does not therefore prevent the annulment of the decision rejecting the consortium’s application from being capable of benefitting the applicant.

98      It follows from all the foregoing that the action is admissible in that it seeks annulment of the decisions of 5 August and 29 September 2011, bearing in mind that those requests for annulment have essentially the same subject-matter (see paragraph 48 above).

 Substance

 The lack of precision of the selection criterion mentioned in Section III.4.2(b) of the call for applications

99      The applicant claims that the selection criterion in Section III.4.2 of the call for applications, which the consortium allegedly did not meet, was too vague, in so far as it did not provide any information about the ‘contracts tendered by the ECB’ or about the areas of IT infrastructure relating to those contracts. In the absence of clear tender documentation, the incumbent contractor was evidently in a much better position to present ‘adequate’ references, contrary to the principles of transparency, equal treatment and non-discrimination, which, according to case­law, must be observed throughout the tendering procedure.

–       Admissibility of the head of claim

100    The ECB submits, in essence, that Article 21(2) of Decision 2007/5 is an administrative measure which bars certain objections relating to the incomplete, inconsistent or illegal nature of tender documentation, if they are not raised in time. The applicant did not make any criticism of this kind within the 15 day time limit and is, therefore, no longer entitled to do so in the context of the present proceeding.

101    Article 21(2) of Decision 2007/5, as amended, states:

‘If candidates or tenderers consider that the ECB’s requirements laid down in the contract notice, the invitation to tender or supporting documents are incomplete, inconsistent or illegal or that the ECB or another applicant/tenderer has infringed the applicable procurement rules, they shall notify their objections to the ECB within 15 days. If the irregularities affect the invitation to tender or other documents sent by the ECB, the time limit shall start to run from the date of receipt of the documentation. In other cases, the time limit shall start to run from the moment the candidates or tenderers become aware of the irregularity or could reasonably have become aware of it. The ECB may then either correct or supplement the requirements or remedy the irregularity as requested, or reject the request indicating the reasons therefor. Objections which were not communicated to the ECB within 15 days may not be raised at a later stage.’

102    As is apparent from a simple literal reading of the above provision, the ECB cannot validly consider non-compliance with the 15 day time limit provided therein as an absolute bar to any head of claim raised during a judicial procedure that relates to the incomplete, inconsistent or illegal nature of the documentation pertaining to the tender procedure.

103    The last sentence of Article 21(2) of Decision 2007/5, according to which ‘[o]bjections which were not communicated to the ECB within 15 days may not be raised at a later stage’, must be read in conjunction with the preceding sentence which states that ‘[t]he ECB may then either correct or supplement the requirements or remedy the irregularity as requested, or reject the request indicating the reasons therefor’.

104    The above quotation reflects the objective pursued by the provision at issue, which is, according to the ECB’s own writings, to enable it to take, where necessary, corrective measures in the interest of all participants in the tender procedure.

105    The ECB does not refer to anything in Article 21(2) of Decision 2007/5 that permits the conclusion that the time-bar for which it provides extends to court proceedings, as alleged.

106    It should be noted that Article 21 of Decision 2007/5 is entitled ‘Rectification of tender documentation’ and falls under Section 2, itself entitled ‘Conduct of the procedure’. That provision distinguishes between two types of situations depending on the origin of the rectification: either at the initiative of the ECB itself, before expiry of the deadline for the submission of applications or tenders, or at the request of a candidate or tenderer, within a period of 15 days from the time the candidates or tenderers had or could reasonably have been aware of the irregularities at issue, that time limit being imposed on the candidates or tenderers in order to allow the contracting authority to intervene in a timely manner.

107    Accordingly, it is the ECB and only the ECB which is to quickly remedy, in accordance with the requirements of good administration, irregularities which may affect the tender procedure, for the sole purpose of ensuring its proper conduct and thus avoiding the need, if necessary, to repeat the procedure from the beginning.

108    It is thus apparent that the scope of Article 21(2) of Decision 2007/5, and in particular the limitation period set out therein, is limited to the conduct of the tender procedure and can in no way be considered a restriction of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union which, in accordance with the first subparagraph of Article 6(1) TEU, has the same legal value as the Treaties.

109    It should, moreover, be noted that, given the scope of the provision at issue, which also requires any objections to be notified in the situation where, according to a very broad formulation, ‘the ECB or another candidate/tenderer has infringed the applicable procurement rules’, the ECB’s interpretation is capable of seriously undermining the effectiveness of a judicial remedy against the decision to award the contract.

110    Concerning the ECB’s argument in relation to the purported compliance of Article 21(2) of Decision 2007/5 with Article 1(1) and (4) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended, it should be noted that, while it is true that the provisions of Decision 2007/5 are based on EU directives on the topic, in particular Directive 89/665 and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) (see, to that effect, order of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 1), it must be stated, none the less, that, according to Article 84 of Directive 2004/18 and Article 6 of Directive 89/665, only Member States are addressees of those directives and, accordingly, the directives only govern public procurement procedures relating to institutions of the Member States. It follows that, while the interpretation of those directives by the Courts of the European Union may be useful, only the provisions laid down in Decision 2007/5 are applicable in the present case (see, to that effect, judgment of 12 July 2012 in Case T‑476/07 Evropaïki Dynamiki v Frontex, not yet published in the ECR, paragraph 48, and the judgment of 3 March 2011 in Case T‑589/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 23 and the case-law cited).

111    In any event, the case-law on the application of the directives is not such as to cast doubt on what has been stated in paragraphs 101 to 109 above.

112    Thus, Article 1(1) of Directive 89/665 requires that ‘[t]he Member States shall take the measures necessary to ensure that ... decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible ..., on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law’.

113    Pursuant to Article 1(4) of Directive 89/665, ‘Member States may require that the person wishing to use a review procedure has notified the contracting authority of the alleged infringement and of his intention to seek review’.

114    In reply to requests for preliminary rulings on the compliance of national legislation with the above provisions, the Court of Justice stated that, as is apparent from the first and second recitals in the preamble thereto, Directive 89/665 is intended to strengthen existing mechanisms, both at national and Community level, in order to ensure the effective implementation of directives relating to public procurement, especially at a stage where infringements may still be corrected. To that effect, Article 1(1) of that directive requires Member States to guarantee that unlawful decisions of contracting authorities can be subjected to effective review which is as swift as possible (Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 74).

115    In order to attain the objective of promptness pursued by Directive 89/665, Member States may lay down limitation periods for bringing actions in order to require traders to promptly challenge preliminary measures or interim decisions taken in public procurement procedures, provided that the periods in question are reasonable (see, to that effect, Universale-Bau and Others, paragraph 114 above, paragraphs 75 to 79; Case C‑241/06 Lämmerzahl [2007] ECR I‑8415, paragraphs 50 and 51; Case C‑406/08 Uniplex (UK) [2010] ECR I‑817, paragraph 38; and Case C‑456/08 Commission v Ireland [2010] ECR I‑859, paragraph 60).

116    That case-law is based on the consideration that the full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements (Universale-Bau, paragraph 114 above, paragraph 75; Lämmerzahl, paragraph 115 above, paragraph 51; and Commission v Ireland, paragraph 115 above, paragraph 52).

117    There can be no doubt that penalties such as a time-bar are such as to ensure that unlawful decisions of contracting authorities, as soon as they become known to those concerned, are challenged and corrected as soon as possible, which is also in accordance both with the objectives of Directive 89/665 and with the principle of legal certainty (Universale-Bau and Others, paragraph 114 above, paragraph 78).

118    However, if Member States put in place an arrangement requiring traders, to avoid a time-bar, to promptly challenge irregularities arising during the procedure, Member States must ensure that such an arrangement and its implementing rules do not render impossible or excessively difficult the exercise of any rights which the interested parties derive, where applicable, from EU law. Thus, in compliance with the requirements of legal certainty, interested parties must be in a position to determine how the arrangement relating to a time-bar applies with sufficient clarity to ascertain their rights and obligations and be able effectively to bring proceedings within the periods laid down (see, to that effect, Lämmerzahl, paragraph 115 above, paragraph 52; Uniplex (UK), paragraph 115 above, paragraphs 39 and 40; and Commission v Ireland, paragraph 115 above, paragraphs 61 to 63).

119    Accordingly, assuming that the ECB was able, like the Member States, to establish, in Decision 2007/5, a provision requiring that persons wishing to make use of an appeal procedure must, to avoid a time-bar, notify the contracting authority of the alleged infringement and of their intention to appeal, it is clear that Article 21(2) of that decision cannot be given such a meaning without there being any need to rule on the reasonableness of the period introduced by that provision, which is challenged by the applicant.

120    Contrary to what the ECB submits, the wording of Article 21(2) of Decision 2007/5, according to which ‘[o]bjections which were not communicated to the ECB within 15 days may not be raised at a later stage’, does not make it possible for candidates and tenderers to determine with certainty and predictably whether that period is relevant only to the remainder of the tendering procedure or also to a possible appeal procedure. That provision is therefore not sufficiently clear, precise and explicit for it to be considered that the period provided therein applies not only to the tender procedure, but also to an appeal procedure (see, to that effect, Commission v Ireland, paragraph 115 above, paragraph 58).

121    It follows that the applicant’s claim, in the context of the present proceeding, that the tender documentation is incomplete, is admissible.

–       The merits of the head of claim

122    It must be noted that the principles of transparency, equal treatment and non­discrimination are general principles of law applicable to the ECB in the course of public procurement pursuant to Article 3 of Decision 2007/5.

123    The principles of non-discrimination and equal treatment entail an obligation of transparency in order to enable the contracting authority to ensure compliance with them (Case C‑275/98 Unitron Scandinavia and 3-S [1999] ECR I‑8291, paragraph 31; Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 and 61; and Case C‑92/00 HI [2002] ECR I‑5553, paragraph 45).

124    The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 111; judgment of 12 March 2008 in Case T‑332/03 European Service Network v Commission, not published in the ECR, paragraphs 126 and 127; and judgment of 20 March 2013 in Case T‑415/10 Nexans France v Entreprise commune Fusion for Energy, not yet published in the ECR, paragraph 71).

125    In the present case, first, it is important to note that the ECB has stated, without being contradicted by the applicant, that it resorted to a negotiated tender procedure on the basis of Article 13(1)(b) of Decision 2007/5, which provides for such a possibility where ‘the nature of the services is such that specifications cannot be established with sufficient precision to permit the award of the contract by selection of the best tender according to the rules governing open or restricted procedures’.

126    Furthermore, it must be noted that Section III.4.2 of the call for applications, entitled ‘Selection criteria and minimum capacity levels’ requires candidates to comply with two requirements. Section III.4.2(a) requires candidates to have had a minimum turnover in the three previous financial years. Section III.4.2(b) sets out the following requirement:

‘at least three similar contracts performed during the last three financial years, which are comparable in terms of scope, size and complexity with the contracts tendered by the ECB, including both the application landscape and the area of IT infrastructure.

As proof, Candidates shall submit the information and documents listed in Annex 1.’

127    As correctly stated by the ECB, while the above provision is rather abstract so far as concerns the contracts to be awarded in the context of the tender procedure at issue, an overall reading of the tender documentation was such as to provide all candidates with sufficient information on the characteristics of those markets and, accordingly, to allow them to choose, in full knowledge of the facts, the most appropriate contractual references.

128    First, both the contract notice and the call for applications contain relevant information on the contracts to be awarded.

129    In the introduction to the call for applications, at the beginning of Section I, it is stated that the purpose of the contract notice is to establish several framework agreements covering, for lot 1, ‘“all-round” consultancy and services for the design, build, operate, support and/or maintenance of applications and infrastructure services’, which, in the applicant’s own words, makes clear ‘the scope of “the Contracts tendered by the ECB”’.

130    In Section II.1.5 of the contract notice entitled ‘Short description of the contract or purchase(s)’ and in Section I.1 of the call for applications, it is stated as follows:

‘1.       Background

The contracts resulting from this tender procedure will enable the ECB to source IT activities across the services lifecycle of IT infrastructure and applications services. This includes also management consultancy, strategic and process development services.

With the IS Consultancy and Services framework, the ECB intends to improve project delivery and post go-live operations for IT infrastructure and applications, as well as increase the efficiency and flexibility to resource a large number of its IT activities.

The framework contractors shall provide consultancy services and works in the following areas:

–        IT Infrastructure management consultancy and delivery services including development, system integration, operations and support;

–        application management consultancy and delivery services. These include application development, maintenance and support, based on open frameworks (e.g. Java), product based platforms (e.g. SAP), and/or specialised technical markets (e.g. Security, document management),

…’

131    Section II.1.2 of the contract notice states that the ‘[m]ain place of performance’ shall be the ‘ECB, Frankfurt-on-Main’ and the ‘National Central Banks of the ESCB’. Section I.2 of the call for applications states that ‘[t]he Contracts are expected to be performed primarily on the premises of the ECB in Frankfurt am Main’, but that ‘framework contractors may also be required to perform services at a different location (e.g. at another central bank in the EU as part of a joint project) or to perform work (e.g. the development of software or other deliverables) off-site’.

132    Section II.1.5 of the contract notice and Section I.3 of the call for applications alert candidates to the existence of two lots, lot 1 being defined, in an identical manner, as follows:

‘Services and works related to applications and IT infrastructure (in part or full): design, build, operate, support and maintain.’

133    Section II.3 of the contract notice and Section I.4 of the call for applications state the duration of the contractual relationship, which in the case of lot 1, consists of framework agreements of four years’ duration, which may be extended for a further four years.

134    Section I.5 of the call for applications alerts candidates to tenders which are in place or are currently tendered covering IT activities within the ECB, and does so in a detailed manner, thus allowing candidates to understand the contractual environment of the tender procedure at issue.

135    Secondly, it must be noted that Section III.4.2(b) of the call for applications, which sets out the selection criterion at issue, makes express reference to Annex 1 to that document.

136    Annex 1 to the call for applications is an application form whose Section 6 is entitled ‘Organisational and technical capacity for lot 1’.

137    Section 6.1 of the application form contains a detailed list of the services tendered by the ECB, divided into distinct areas of services and containing 30 categories. That section requires candidates to confirm that they provide services in all relevant areas and to provide information concerning the responsible body and possible subcontracting for each service.

138    Section 6.2 of the application form, entitled ‘Relevant experience and references’, is worded as follows:

‘Please provide details of three major recent contracts in application development of bespoke software and product specific developments (including maintenance and support) and three in IT infrastructure development (including maintenance and support) that you have been awarded for the provision of services similar to those required by the ECB.

For each contract please provide reference and clearly indicate:

–        customer name, address

–        contract award date

–        duration of the contract

–        approximate contract value

–        temporary grouping members / subcontractors used and their role

–        description of the service(s) undertaken.

If for reasons of confidentiality, you are not able to disclose the name of your clients or detailed information on the reference projects, please provide the information in an anonymous format.’

139    Candidates were instructed to insert the required information in a summary table setting out the context of each completed contract and in several detailed tables describing each of the contractual references required, and to do so on one A4 page.

140    The wording of Section 6.2 of the application form, more particularly the mention of a request for information on recent major contracts obtained ‘for the provision of services similar to those required by the ECB’ reveals a clear link between Sections 6.1 and 6.2 of the application form, which relate to the same issue, namely the requirement for each candidate to show its organisational and technical capacity to perform the contracts which are the subject of the tender procedure concerned, as required by Section III.4.2(b) of the call for applications.

141    The precise information on the number and nature of the services required allowed the candidates to understand the size or significance of the contracts to be awarded, as well as their complexity. More generally, all the information contained in the tender documentation was such as to clarify the triple dimension of comparability, mentioned in Section III.4.2(b) of the call for applications, between contracts implemented by the candidates and contracts to be awarded.

142    Thirdly, the wording of Article 19(4) of Decision 2007/5 should be noted, which is as follows:

‘Candidates or tenderers may submit in writing questions concerning the contract notice, the invitation to tender or the supporting documents to the ECB in accordance with the conditions laid down in the contract notice or the invitation to tender. The ECB shall reply to such questions within reasonable time limits, and shall communicate the answers to all candidates/tenderers on an anonymous basis if they are of relevance to all of them.’

143    In that regard, the applicant produced at the hearing a list of 53 questions and the ECB’s answers thereto, it being noted that European Dynamics asked 33 questions concerning the tender procedure at issue.

144    In the context of question 24, European Dynamics expressly made a link between Section II.1.5 of the contract notice defining lot 1 of the tender procedure and Section III.4.2(b) of the call for applications setting out the selection criteria relating to the minimum requirements by stating that ‘[its] understanding [was] that the aforementioned minimum requirement shall be met by a Candidate, by providing the corresponding contract references under point 6.2 Relevant experience and references’ and by seeking ‘confirm[ation] that [its] understanding [was] correct’. In response, the ECB stated: ‘Yes, your understanding is correct.’

145    In relation to question 3, European Dynamics expressly made a link between Section III.4.2(b) of the call for applications and Section 6.2 of the application form, entitled ‘Relevant experience and references’ by stating that ‘[it] assum[ed] that in total six (6) similar contracts should be presented, three (3) in “application landscape” and three (3) in “IT infrastructure” (as in section 6.2 of the application form) and that [it was] not required that similar contracts should include both the “application landscape” and the area of “IT infrastructure”’. In response, the ECB stated:

‘The minimum requirement is three similar contracts. This can be proven by means of presenting references for 3 contracts that cover both “application landscape” and “IT infrastructure”, or up to 6 contracts in the case that each of the six would cover only either “application landscape” or “IT infrastructure”.’

146    In the context of question 7, referring to Section 6.2 of the application form, European Dynamics asked whether ‘on-going’ contracts were acceptable as references. In response, the ECB stated:

‘If by ongoing you mean signed active contracts, the answer is yes. If the contracts are not yet concluded, the answer is no.’

147    It is thus evident that the ECB provided clear and precise answers to European Dynamics’s questions on the selection criterion at issue. The applicant does not refer to any questions relating specifically to the scope of the concept of ‘contracts tendered by the ECB’ nor to the content of contractual references relating to the field of IT infrastructure, having regard to the services to be provided. It is further undisputed that the consortium has not, in accordance with Article 21(2) of Decision 2007/5, notified the ECB of any objection as to the incomplete or inconsistent nature of the tender documentation at issue.

148    Fourthly, it should be noted that, having reproduced the wording of Section III.4.2(b) of the call for applications, Section I.1 of the call for applications on ‘the scope of the contracts tendered by the ECB’ for lot 1, Section I.2 of the call for applications concerning the place of performance of the services, Section I.3 of the call for applications defining the content of lot 1, Sections 6.1 and 6.2 of the application form and the ECB’s response to question 3, the applicant states that it clearly ‘prepared its application taking into account all above described elements and included the maximum amount of references allowed, namely six (6) references to contracts which are comparable in terms of scope, size, and complexity with the Contracts tendered by the ECB, including both the application landscape and the area of IT infrastructure, and which covered the services defined in Section 6.1 on “Service coverage” of the “Application Form” document’. The applicant concluded, moreover, that its application fully complied with the eligibility and selection criteria relating to minimum levels of capacity specified in the tender documentation at issue.

149    It follows from all the foregoing that the head of claim alleging that the selection criteria mentioned in Section III.4.2(b) of the call for applications are imprecise must be dismissed.

 Breach of the obligation to state reasons

150    The applicant submits that the ECB did not explain, in the decision of 29 September 2011 or even in the context of the present proceedings, in what way it had failed to meet the selection criteria, or even indicate the criteria which it had not met.

151    The applicant states, furthermore, that the procurement committee has not presented any consistent reasons for its negative decision, showing in what respect the successful tenderer’s offer was more or better than the applicant’s. According to the applicant, ‘both the Financial Regulation and the Implementing Rules’ require contracting authorities to inform all tenderers whose tenders are rejected, who make a request in writing, of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or of the parties to the framework agreement, and this is confirmed by case-law. The applicant states in the reply that it did not ask for the relative merits of the successful tenderers to be disclosed but for those of the successful candidates. That information would have allowed the applicant to measure, by comparison with the other bids, what was missing in its bid.

152    In that regard, it should be noted that, where, as in the present case, the institutions, bodies or agencies of the European Union have a broad power of appraisal, respect for the rights guaranteed by the legal order of the European Union 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 Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (see, to that effect, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 54; and Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 61).

153    The Court has consistently held that the statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. 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. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

154    In addition, it must be noted that the duty to state reasons provided for under Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Commission v Sytraval and Brink’s France, paragraph 153 above, paragraph 67; Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35; and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 146).

155    It must be stated, in that regard, that the public procurement at issue is governed only by Decision 2007/5, whose Article 28 is worded as follows:

‘1.       At its earliest convenience, the ECB shall notify its decision in writing to all candidates or tenderers whose applications or tenders are rejected.

2.       The notification shall be sent at least 10 days prior to the signature of the contract by the ECB if the notification is sent by fax or electronic means, or at least 15 days prior to the signature of the contract if other means of communication are used.

3.       Candidates and tenderers may, within 15 days of receipt of the notification, request the ECB to provide the reasons for rejecting their application or their tender and to provide copies of all documents relating to the evaluation of their application or tender. Unsuccessful tenderers whose tender was admissible may also ask for the name of the successful tenderer as well as the key characteristics and relative advantage of its tender. They may also request copies of all documents relating to the evaluation of the successful tender, subject to paragraph 4.

4.       However, the ECB may decide to withhold certain information where the release of such information would affect other suppliers’ legitimate commercial interests, would hinder application of the law or would otherwise be contrary to the public interest.

5.       In addition, the ECB shall publish an award notice in the Official Journal on the outcome of the procurement procedure. The notice shall be sent within 48 days after signature of the contract.’

156    First, it is not disputed that, by decision of 5 August 2011, the ECB informed the applicant, in its capacity as leader and representative of the consortium, that the consortium’s application had not been successful because the information provided did not demonstrate fulfilment of the minimum requirements laid down in Section III.4.2(b) of the call for applications.

157    By letter of 11 August 2011, the applicant requested the ECB to send it the reasons for the rejection of its application, an extract from the evaluation report setting out the alleged non-fulfilment of the requirements of the call for applications and copies of all documents relating to the evaluation of its application, in accordance with Article 28 of Decision 2007/5, and the names of the successful candidates or temporary groupings (including their composition), as well as the key characteristics and relative merits of their applications.

158    By letter of 22 August 2011, the ECB responded to the applicant by stating the reasons in support of its decision, by reproducing the terms of Section 3.2 of the assessment report in the following manner:

‘In the Introduction to the call for applications (Sections 1, 2 and 3), the framework contract services for lot 1 are defined as (i) “consultancy and services for the design, build operate support and/or maintenance of applications and IT Infrastructure”, and (ii) to be performed primarily at the ECB’s premises in Frankfurt. The applicant provides in the summary table a total of five Infrastructure references. The first two references in the area of applications and the first reference in the area of Infrastructure (which is an e-procurement system) describe the functional elements of the applications without sufficient specific information about the performance of activities related to IT Infrastructure. The second infrastructure reference is the outhosting/outsourcing of a customer’s data centre at AlmavivA’s premises and the third reference contract consists of assessment, monitoring and certification of systems and products. Furthermore, Application reference 3, and IT infrastructure references from AlmavivA and KPMG contain the sentence “Services provided which are similar to the envisaged contract” and a list of services and … technologies without any explanation that could be considered in the evaluation.

In summary, references for infrastructure are not comparable in scope and complexity, and they do not demonstrate sufficient capability to provide IT infrastructure engineering, integration and rollout (e.g. virtual infrastructure, cloud computing, desktops) at customers’ data centres.’

159    The ECB also stated as follows:

‘In addition, you request access to the names of successful applicants and the key characteristics and relative advantage of the successful applications. Please note that Article 28.3 second sentence of Decision 2007/5 ... explicitly limits the right to get detailed information on competitors to unsuccessful tenderers who have submitted an admissible tender. Unsuccessful candidates have therefore no right to obtain detailed information on the applications submitted by other candidates. Based on this and on the principle of confidentiality contained in Article 19.5 of Decision [2007/5], the ECB cannot provide you with such information.’

160    Attached to the letter of 22 August 2011 were extracts of the evaluation report and the detailed evaluation matrix of the consortium’s application.

161    The relevant part of the detailed evaluation matrix relating to the contractual references in the field of IT infrastructure submitted by the consortium shows the following:

Element and description of the criterion		Evaluation	Explanation
Comparable in scope	IT infrastructure management consultancy and delivery services, including development, system integration, operations and support	No	Infrastructure reference 3, IT assessment, monitoring and system certification does not include the rollout of IT hardware and software, this would be relevant for lot 2.
			Infrastructure reference 1 … is the deployment of an e-procurement application and therefore not a reference that can be qualified in the area of infrastructure.
			The first two references in the area of applications that were marked with ‘Y’ in the overview table describe the functional elements of the applications without sufficient specific information about the performance of activities related to IT infrastructure.
Comparable in Size/Duration		No	There is no three valid references to be considered in terms of duration.
Comparable in complexity	Assess duration, number of experts, technical scope, customer similarity	No	Infrastructure reference 3, IT assessment, monitoring and system certification does not include the rollout of IT hardware and software, this would be relevant for lot 2. Reference 2 consists of an outsourcing contract for hosting in their own premises the data centre of their customer.

162    The evaluation matrix summarises the evaluation of the selection criteria of Section III.4.2(b) of the call for applications as follows:

‘The applicant provides a list of references in the area of Infrastructure which include an outsourcing of a data centre in their own premises, an application project (e-procurement) and a reference contract consisting of assessment, monitoring and certification of systems and products. Therefore, there is no reference on core infrastructure (e.g. network devices, storage, large systems) integration and rollout at customer’s data centres.’

163    The decision of 29 September 2011 states the following:

‘[The procurement committee] correctly applied the minimum requirement regarding reference projects defined in section III.4.2(b) of the Call for Applications. It did not introduce additional elements that were not discernible from the tender documentation. The application documents and forms enabled potential suppliers to decide to what extent their own reference projects were comparable to the contract to be awarded. For example, section 2 of the Call for Applications explained that the contract to be awarded shall be performed primarily on the premises of the ECB in Frankfurt am Main. Section 6.1 of the application form included a detailed list of services and requirements that would form part of the contract. It was also clear that the successful contractor should perform services on the ECB’s core IT infrastructure.

[The procurement committee] also duly evaluated the consortium’s reference projects. The evaluation matrix which you received in response to your request for information shows that your reference projects and the scope of services of each reference project were duly assessed against the minimum requirements and selection criteria. However, for various reasons, none of your five references on IT infrastructure was comparable to the contract to be awarded. Your appeal essentially reiterates the description of services that the consortium already provided within its application and does not indicate an error of assessment.

[The procurement committee] was not obliged to ask the consortium to submit additional information, or contact its reference points. According to Article 20 of Decision [2007/5], the ECB may request candidates to provide missing documentation to clarify specific points, but it is not obliged to do so. In the case of the consortium, a clarification or completion of the application would not have been sufficient. Since its reference projects did not fulfil the minimum requirements, the consortium could only have been invited to bid if it would have submitted completely new reference projects.

The letters from other Union institutions or agencies that you submitted with your appeal [do] not indicate that the [procurement committee] acted unlawfully. They do show that European Dynamics failed to submit complete and consistent applications to other tender procedures.

Under the ECB’s procurement framework, the mission of a [procurement committee] is not to select as many as possible eligible candidates. [The procurement committee] indicated that it would invite up to eight eligible candidates and its final decision on the shortlist of candidates is fully in line with this. The selection was made according to objective criteria published in section III.4.3 of the call for applications.’

164    It is therefore apparent that the ECB unequivocally stated that the consortium’s application did not meet the selection criteria referred to in Section III.4.2(b) of the call for applications, which required a minimum level of organisational and technical capacity, and explained the reasons which led to that conclusion.

165    Beyond the general complaints as to the information provided by the ECB, described as ‘vague comments’, to justify the rejection of the consortium’s application, the applicant makes more specific claims about the inadequacy of the statement of reasons with respect to the contractual references’ lack of compliance with the requirements of the tender documentation.

166    First, the applicant claims that the line of argument put forward by the ECB in the decision of 29 September 2011 ‘implies (in a very vague manner lacking justification), that a reference proposed by a tenderer, concerning services provided to a client at the place where the IT infrastructure is located, would be considered invalid if such location does not coincide with the administrative offices of the client’, which is ‘totally absurd’.

167    It should be noted that, in the context of assessing compliance by the ECB with the duty to state reasons, it is necessary to take into account the decision of 5 August 2011, the evaluation report, the evaluation matrix and the decision of 29 September 2011, bearing in mind that compliance with that duty must be assessed in the light of the information available to the applicant at the time the action was brought (Strabag Benelux, paragraph 49 above, paragraph 58, and Renco, paragraph 49 above, paragraph 96).

168    It is clear from those documents that the ECB clearly referred to Section I.2 of the call for applications relating to the place of provision of the services and stated that ‘Reference 2 consist[ed] of an outsourcing contract for hosting in their own premises the data centre of their customer’, which did not make it possible to consider it an appropriate reference.

169    It is therefore evident that the ECB’s statement of reasons is, contrary to the applicant’s assertions, clear; the applicant’s allegation that the statement of reasons is ‘absurd’ falls within the question of the existence of a manifest error of assessment and not that of an infringement of an essential procedural requirement.

170    The applicant notes, next, that the evaluation matrix states that ‘there is no reference on core infrastructure (e.g. network devices, storage, large systems) integration and rollout at customer’s data centres’ and that, according to the ECB, the term ‘large systems’ was used by the evaluation committee to describe the general impression that the infrastructure on which the consortium members had worked was less complex than the IT infrastructure concerned by the tender procedure.

171    It submits that no indication is given in the call for applications and/or in the form about the size of that infrastructure, such that candidates may provide measures which are comparable in their description in one page of references. In addition, the ECB does not explain what elements the evaluation committee took into account in deciding that the IT infrastructure referred to in the references were less complex or large than the ECB’s. Moreover, even if that had been the case, quod non, the ECB failed to explain how that affected the evaluation and the lack of compliance with the call for applications or the application form.

172    It should be noted that the quotation referred to in paragraph 170 above is a summary of the evaluation of the consortium’s contractual references. That summary, which contains a brief overall assessment, is preceded by an explicit individual analysis of those references revealing mainly a lack of precision in them which, combined with other factors such as the nature of the contracts concerned, their duration or the location of the works, led to the conclusion that those references were not relevant in the field of IT infrastructure.

173    The term ‘large systems’ is a mere illustration of the complaint relating to the failure to integrate and deploy basic IT infrastructure relating to the references produced; the applicant’s argument leads to the artificial isolation of that indication.

174    That term must be compared to Section 6.1 of the application form which contains the specific list of IT services required in the context of the contracts to be awarded, those services having to cover the entire lifecycle of the IT infrastructure under the terms of Section I.1 of the call for applications, which reflects the size and complexity of the IT infrastructure in question.

175    In addition, the analysis of the evaluation carried out by the committee at issue, in the light of the requirements of Article 296 TFEU, is itself inseparable from the nature of the complaint made by the committee, namely the lack of probative value of the references, mainly as a result of the lack of precision thereof.

176    It follows from the foregoing that the ECB has stated, clearly and to the requisite legal standard, the reasons which led to the rejection of the consortium’s application.

177    Finally it should be noted that the applicant’s allegation that the ECB has not complied with its obligation to provide a copy of all documents relating to the evaluation of the consortium’s application, in accordance with Section IV.1.2 of the call for applications, which merely reproduces the terms of Article 28(3) of Decision 2007/5, is in no way supported and is contradicted by the fact that an extract of the evaluation report and of the detailed evaluation matrix relating to the consortium’s application was sent to the applicant.

178    Secondly, as regards the communication of names of successful candidates and the relative advantages of their applications requested by the applicant in its letter of 11 August 2011, it should be noted that the reference in that letter to 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), and to Commission Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Regulation (EC, Euratom) No 1605/2002 (OJ 2002 L 357, p. 1), as amended, as a basis for its application, is totally irrelevant, as that legislation does not apply in the present case.

179    It is apparent from a simple literal reading of Article 28(3) of Decision 2007/5, whose wording was reproduced in paragraph 155 above, that the applicant cannot usefully rely on that provision in support of its claims either.

180    That provision explicitly provides that only ‘unsuccessful tenderers whose tender was admissible may also ask for the name of the successful tenderer as well as the key characteristics and relative advantages of its offer’.

181    It is important to note that Decision 2007/5 makes a clear distinction between candidates and tenderers. Thus, Article 13(3) to (5) of that decision, which governs the negotiated procedure, provides as follows:

‘3.       On publication of a contract notice, interested suppliers may apply for participation in the negotiated procedure …

4.       The ECB shall verify the eligibility of candidates and evaluate the applications against the selection criteria set out in the contract notice. The ECB shall invite at least three eligible candidates who satisfy the selection criteria to submit a tender …

5. Following the evaluation of the tenders, the ECB may negotiate with tenderers in order to bring their tender in line with the ECB’s requirements …’

182    Suppliers who submitted an application to participate in the negotiated procedure are referred to as ‘candidates’ and those who are invited to submit a tender are referred to as ‘tenderers’. In the present case, the consortium must be classified as a ‘candidate’ and not a ‘tenderer’ in the context of the negotiated procedure at issue, since it submitted an application, but was not invited to submit an offer.

183    The applicant maintains, in essence, that an offer which meets the formal requirements and the eligibility criteria but does not meet the selection criteria specified by the contracting authority should not be considered an ‘inadmissible tender’ within the meaning of Article 28(3) of Decision 2007/5, but an ‘unsuccessful tender’ to which all the rights afforded by that provision pertain.

184    The applicant’s argument reflects a misunderstanding of the concepts of requests to participate and tenders and, accordingly, of candidates and tenderers. The applicant’s assertions as to what should be considered an ‘inadmissible tender’, a term not included in the above provision, or an ‘unsuccessful tender’ are irrelevant to the extent that the consortium was not, in any event, invited to take part in the second stage of the negotiated procedure and therefore did not submit an offer.

185    The same is true of the reference to paragraph 136 of the judgment in CMB and Christof v Commission, paragraph 39 above, which states that ‘a key part of the public procurement procedure is to verify that the selection criteria have been met’, such that it is appropriate to ‘check whether the contracting authority has indeed verified whether the tenders submitted by the tenderers contain ... proof’ relating to the construction of reference installations required in the contract notice.

186    Those grounds are stated in the context of a legal problem which is very different to the specific issue relating to the ECB’s compliance with the duty to give reasons when acting as a contracting authority in respect of a candidate whose application has been rejected.

187    Indeed, in the context of the case which gave rise to the judgment in CMB and Christof v Commission, paragraph 39 above, the applicant, comprised in that case of two firms whose tender had not been selected, claimed that the contractor had not adduced evidence of the realisation of reference installations, which was a selection criterion under the contract notice.

188    It should also be noted that the applicant has not alleged that the successful tenderer, or any of the other candidates invited to take part in the second stage of the process which begins with an invitation to submit a tender, did not meet the selection criteria. The applicant merely asserted that its own application met all the criteria and should have been selected for the second stage of the negotiated procedure.

189    The applicant further claims, in its reply, that the ECB’s interpretation of Article 28(3) of Decision 2007/5, which is an exception to the principle of transparency laid down in Article 3 of that decision and to be interpreted strictly, is in direct contradiction with that principle ‘if it could be considered to exclude tenders that met the formal requirements and the eligibility criteria and were considered by the evaluation team as not reaching the selection criteria set, since this would mean that the bigger the error of assessment in the Evaluation procedure, the less rights would the disadvantaged party have in the context of the administrative and further Judicial control of the award Decision’.

190    More precisely, the applicant made the following submission:

‘[T]he disclosure of the relative merits of the successful candidates could permit to verify if indeed the selection criteria have been met by the respective candidates and if the selection procedure followed was the one provided by the ECB’s Procurement Decision as specified in the documents of the respective [call for applications]. It is this way that the Applicant could without doubt establish that the evaluation of the applications against the selection criteria was conducted properly and consistently. Moreover, such information on the bids of the other candidates would put the Applicant in the position to verify what kind of contracts were considered as related to the intended contract and constituted proper proof of the required experience of the candidates.’

191    When questioned at the hearing about the exact scope of that argument and, in particular, on the possibility that it could be regarded as a plea of illegality in relation to Article 28(3) of Decision 2007/5, the applicant replied in the negative. In any event, such a plea of illegality, which is not based on any matter in law or fact which came to light during the proceedings within the meaning of Article 48(2) of the Rules of Procedure (Joined Cases T‑134/03 and T‑135/03 Common Market Fertilizers v Commission [2005] ECR II‑3923, paragraph 51), would have been declared inadmissible as a result of having been raised for the first time at the stage of the rejoinder (Case C‑442/04 Spain v Council [2008] ECR I‑3517, paragraph 23).

192    As regards the argument referred to in paragraph 189 above, it should be noted that it consists of mere speculative general statements not capable of establishing a breach of Article 28(3) of Decision 2007/5 and that an interpretation of that provision does not, in any case, lead to a distortion of its clear terms, which provide that only the tenderers are to be informed of the name of the successful tenderer and of the essential characteristics and relative merits of its bid.

193    As regards the applicant’s submissions referred to in paragraph 190 above, it is important to note that Article 28(3) of Decision 2007/5 is a specific rule relating to the statement of reasons for the measures taken by the ECB, adopted in its capacity as contracting authority, which are capable of affecting the legal status of candidates or tenderers.

194    As has been pointed out in paragraph 153 above, the purpose of the statement of reasons is to enable the person concerned to be made aware of the reasons for the measure taken, so that they may defend their rights and verify whether or not the decision is well founded or otherwise, and so that the European Union judicature may exercise its power of review.

195    The applicant cannot therefore validly claim that selected candidates’ relative merits be disclosed for it to check, in general, whether the selection criteria were actually met by the various candidates and whether the selection procedure followed was that prescribed by Decision 2007/5 as specified in the tender documentation concerned.

196    It follows, moreover, from the evaluation report that the consortium’s application was individually evaluated in the light of the selection criteria, set out in Section III.4.2 of the call for applications, for proof of a minimum level of organisational and technical capacity, and that it was rejected due to the lack of contractual references as evidence of such capacity.

197    Given that situation, the consortium’s application was not taken into account in the next step of the evaluation process, which included a comparison of the previously selected applications, in accordance with Section III.4.3 of the call for applications.

198    The provision at issue indeed provides that it is among the candidates who meet the minimum requirements specified in Section III.4.2 of the call for applications that the ECB selects those who best meet various selection criteria to which weighting coefficients have been assigned.

199    It is therefore apparent that the applicant has not submitted any evidence capable of showing that the information regarding the selected applications was necessary for it in order to determine whether the evaluation of the consortium’s application was conducted in accordance with Decision 2007/5.

200    It follows that the complaint alleging breach by the ECB of the duty to state reasons must be rejected, without any need to order, as requested by the applicant, the production of references of selected applications, such a measure being of no use in the resolution of the dispute.

 The introduction of new selection criteria

201    The applicant submits that the ECB has clearly disregarded the tender documentation and disqualified its application by introducing a posteriori new criteria unknown to the candidates, and thus in contradiction with the principle of equal treatment of operators and the ensuing obligation of transparency.

202    First, the applicant asserts that, by claiming that services should have been provided ‘at the customer premises’, the ECB introduced a posteriori a new criterion unknown to the candidates.

203    It is clear that this conclusion is based only on a simple affirmation by the applicant which is in no way substantiated. The applicant’s written pleadings, on the contrary, even reproduce Section I.2 of the call for applications relating to the place of performance of the services.

204    It follows therefrom and from Section II.1.2 of the contract notice that the candidates had to provide contractual references showing the provision of services relating to IT infrastructure located in customer premises, the simple reference to performance of ‘work’ off-site corresponding to a minor activity relating to applications and not to IT infrastructure.

205    This is in no way a selection criterion in itself, but a part of the evaluation, inseparable from the selection criterion relating to the requirement of a minimum level of organisational and technical capacity and the subsequent production of comparable contractual references in terms of scope, size and complexity to the contracts covered by the tender procedure (see, to that effect, order of 9 September 2010 in Case T‑63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraphs 51 and 53).

206    The argument made by the applicant in paragraphs 32 to 38 of the application, in the context of the complaint relating to the introduction of new selection criteria, relates in fact to the criticism of the merits of the decision to reject the consortium’s application and, more specifically, to the allegation of the existence of manifest errors of assessment as regards the distinction between the provision of services performed at the ‘premises of the ECB’ and at the premises of hosting providers.

207    Secondly, the applicant submits that duration is not a valid selection criterion because the tender documentation does not mention that candidates were only to submit references relating to periods of four years. Moreover, the aim of a project reference is to allow a candidate to demonstrate that it has the capacity to undertake projects of a minimum size and technological complexity; the fact that most of the applicant’s references have a duration of two years does not make them inappropriate and demonstrates, on the contrary, that it is capable of delivering services over four years.

208    It is sufficient to note that Section II.3 of the contract notice and Section I.4 of the call for applications clearly state the duration of the contractual relationship, which in the case of lot 1, consists of framework agreements of four years’ duration, which may be extended for a further four years, and that the applicants therefore had the opportunity to choose, in full knowledge of the facts, contractual references which were comparable ratione temporis.

209    Once more, it is not a new selection criterion, but a known element of the evaluation, indissociable from the selection criterion requiring the provision of contractual references comparable in scope, size and complexity to the contracts covered by the tender procedure.

210    The applicant’s considerations as to whether the contractual references are nonetheless appropriate for a period of two years are not relevant in the context of the assessment of the complaint relating to the introduction of new selection criteria.

211    Thirdly, the applicant submits that, in alleging that it had failed to prove its ‘capability to provide IT infrastructure engineering, integration and rollout (e.g. virtual infrastructure, cloud computing, desktops) at customers’ data centres’, and failed to provide references ‘on core infrastructure (e.g. network devices, storage, large systems) integration and rollout at customer’s data centres’, the ECB introduced and applied, ‘pour les besoins de la cause’, new selection criteria.

212    The applicant submits that those elements are not explicitly mentioned in the call for applications as part of the selection criteria. Nowhere in the call for applications or in the application form is it mentioned that the IT infrastructure references provided by the candidates should also demonstrate coverage of all the areas listed in Section 6.1 of the form; that is confirmed by an objective finding as to the disparity between the length of the text devoted to the presentation of those areas and the brief description of each item, which was limited to one page. The applicant denies that those elements can be regarded as ‘indissociable’ from the selection criteria listed in Section III.4.2(b) of the call for applications, simply because they refer to ‘IT infrastructure’ and because some of them are mentioned in Section 6.1 of the application form.

213    First, it should be recalled that in order to meet the selection criteria set out in Section III.4.2(b) of the call for applications, the candidates were to provide references relating to three recent contracts for the development of IT infrastructure (including maintenance and support) comparable in terms of scope, size and complexity with the contracts covered by the tender procedure of the ECB.

214    For a complete understanding of that requirement, it is necessary to refer inter alia to the application form and, in particular, Sections 6.1 and 6.2 thereof.

215    The explicit wording of Section 6.2 of the application form contradicts the applicant’s claim that Section 6.1 is an independent selection criterion relating to a candidate’s necessary and simple confirmation that the services mentioned therein will be provided. It follows from Section 6.2 of the application form that contractual references must relate to contracts for the ‘provision of services similar to those required by the ECB’ and therefore to those mentioned in Section 6.1 of the application form.

216    The argument based on the allegedly very restricted format prescribed for the description of references cannot invalidate that finding, without distorting the clear and precise terms of Section 6.2 of the application form.

217    Aside from the fact that the applicant relies on the meaningless assumption that it is necessary to reproduce each term of Section 6.1 of the application form in the prescribed format, it should especially be noted that Section 1 of the form clearly indicates that, ‘where the space given for any answer is insufficient, please continue your answer on a separate page, again clearly marking your company’s name and the question number to which it relates’.

218    Secondly, it should be noted that the quotes highlighted by the applicant, set out in paragraph 211 above, correspond to the summaries of the evaluation of the consortium’s contractual references contained, respectively, in the report and evaluation matrix. Those summaries, which contain a brief overall assessment, are preceded by an express individual analysis of those references revealing mainly a lack of precision in them which, combined with other factors such as the nature of the contracts involved, their duration or the place of performance, led to the conclusion that those references were irrelevant in the field of IT infrastructure.

219    Items in brackets, namely ‘virtual infrastructure’, ‘cloud computing’, ‘desktops’, ‘network devices’, ‘storage’ and ‘large systems’, are merely illustrations of the final complaint relating to a deficiency in relation to engineering, integration and deployment of IT infrastructure which the applicant cannot validly isolate artificially from the overall grounds in order to classify them unreasonably as new selection criteria.

220    The applicant does not dispute and does not provide, in any event, any concrete evidence which contradicts the ECB’s objective finding that engineering, integration and deployment are basic skills relating to IT infrastructure.

221    As correctly stated by the ECB, the elements ‘virtual infrastructure’, ‘cloud computing’ and ‘desktops’ are mentioned in the tender documentation and more particularly in items 1.1.4 and 2.1 of the table in Section 6.1 of the application form, which the applicant does not dispute. The applicant itself completes the ECB’s statements by stating, as part of its argument that there is a manifest error of assessment, that those elements are also referred to in items 1.4.2 and 1.4.4 of the table contained in Section 6.1 of the application form.

222    The ECB adds, correctly, that it was ‘clear to all [candidates] that they would have to provide services relating to network devices and storage as these systems are core elements of every IT infrastructure’.

223    Far from denying such a claim, the applicant expressly agrees, as it states itself in the footnote on page 28 of the reply that ‘network devices and storage are always part of the infrastructure of any organisation’.

224    The ECB further states that the term ‘large systems’ was used by the assessment committee to describe the general impression that the infrastructure on which the consortium members had worked was less complex than the specific IT infrastructure covered by the tender procedure.

225    That term must be compared to Section 6.1 of the application form, which contains the specific list of IT services required in the context of contracts to be awarded, those services being required to cover the entire lifecycle of IT infrastructure under the terms of Section I.1 of the call for applications, which reflects the size and complexity of the IT infrastructure in question.

226    In that regard, it is clear that the size of the system, which is the subject of the contractual references, is a significant element of the evaluation, bearing in mind that candidates must provide references for markets that are comparable in terms of scope, size and complexity with the contracts covered by the tender procedure of the ECB in the field of IT infrastructure.

227    It follows from the foregoing that the applicant has failed to demonstrate that the ECB introduced new selection criteria in order to ‘disqualify’ the consortium’s application, and the plea submitted to that effect must therefore be dismissed.

 The existence of manifest errors of assessment

228    The applicant submits that it included, in its application, six references relating to contracts comparable in scope, size and complexity to the contracts for which the ECB launched a tender procedure, which covered both the application landscape and the field of IT infrastructure, and covered the services defined in Section 6.1 of the application form. The ECB made manifest errors in the assessment of those references which led it to reject the application because of alleged non-compliance with the selection criteria defined in Section III.4.2 of the call for applications.

229    According to settled case-law, EU institutions, bodies and agencies enjoy a broad margin of 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, and review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and ensuring that there is no serious and manifest error of assessment or misuse of powers (see, to that effect, Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T‑203/96 Embassy Limousines & Services v Parliament [1998] ECR II‑4239, paragraph 56; and Evropaïki Dynamiki v EMCDDA, paragraph 205 above, paragraph 73).

230    In the present case, it should be recalled that the ECB rejected the consortium’s application on the ground that it did not meet the selection criteria provided for in Section III.4.2(b) of the call for applications, which requires candidates to provide proof of at least ‘three similar contracts performed during the last three financial years, which are comparable in terms of scope, size and complexity with the Contracts tendered by the ECB, including both the application landscape and the area of IT infrastructure’.

231    In response to a question from European Dynamics on the exact number of contractual references to be provided, the ECB stated that:

‘The minimum requirement is three similar contracts. This can be proven by means of presenting references for 3 contracts that cover both “application landscape” and “IT infrastructure”, or up to 6 contracts in the case that each of the six would cover only either “application landscape” or “IT infrastructure”.’

232    The file shows that six contractual references were indeed provided as part of the consortium’s application with, from a formal point of view, three references relating to applications and three references relating to IT infrastructure.

233    The three references relating to applications are as follows:

–        Reference 1: ‘ESP DESIS — External service provision for Development, studies and support of information systems’, contract performed by European Dynamics, which began in October 2006 and was completed in April 2011;

–        Reference 2: ‘MARS — Military archiving and retrieval system’, contract performed by European Dynamics, which began in December 2005 and was completed in December 2010;

–        Reference 3: ‘RUN — Human Resources Network’, contract performed by AlmavivA and concluded for the period from January 2007 to December 2009, renewable annually, ongoing.

234    The three references relating to IT infrastructure are as follows:

–        Reference 1: ‘Introduction, application and deployment of a total solution for the implementation of electronic procedures in conducting public procurement competitions in Cyprus’, contract performed by European Dynamics, which began in October 2007 and was completed in November 2009;

–        Reference 2: ‘Hosting service for the Ministry of Health’, contract performed by AlmavivA, which began on 1 September 2008 and was completed on 31 August 2009;

–        Reference 3: ‘IT assessment, monitoring and system certification’, contract performed by KPMG Advisory, which began in 2008 and was completed in 2009.

235    It should be noted that candidates were required to complete a summary table indicating the context of each reference and including, in particular, two sections entitled ‘Application management consultancy & delivery services’ and ‘IT infrastructure management consultancy and delivery services’.

236    It is not disputed that the applicant completed the table by indicating that:

–        not only the three references relating to applications, but also reference 5 relating to IT infrastructure fall under the heading ‘Application management consultancy & delivery services’;

–        not only the three references relating to IT infrastructure, but also references 1 and 2 relating to applications fall under the heading ‘IT infrastructure management consultancy and delivery services’.

237    The summary table of the consortium’s contractual references therefore contains a total of five references relating to IT infrastructure.

238    First, the applicant challenges the evaluation committee’s analysis of the probative value of the three references specifically identified as relating to IT infrastructure and claims that the allegedly indissociable elements of the selection criterion, that is to say ‘virtual infrastructure, cloud computing, desktops, network devices, storage, large systems’ are present in at least three references, namely applications reference 3 ‘RUN — Human Resources Network’, IT infrastructure reference 2 ‘Hosting service for the Ministry of Health’ and IT infrastructure reference 3 ‘IT assessment, monitoring and system certification’.

239    The applicant submits that the evaluation committee did not consider applications reference 3 ‘RUN — Human Resources Network’ of AlmavivA as a valid IT infrastructure reference and, in so doing, made a manifest error of assessment. It is a valid reference, both in relation to applications and IT infrastructure, and the fact that it was not listed in the summary table is manifestly due to a clerical error that does not make it inappropriate to be taken into account as an IT infrastructure reference. A simple check of the description of the reference immediately reveals its nature, the description of the services provided being equivalent to IT infrastructure references 2 and 3. The applicant submits that the evaluation committee considered, rightly, that ‘Infrastructure Reference 1 [was] also valid as an application’, which it should also have noted in relation to applications reference 3.

240    First, it should be noted that the ECB’s argument submitted in response to the applicant’s aforementioned complaint contains an inherent contradiction regarding the evaluation committee’s role.

241    The ECB states that the committee was not required to correct the references mentioned by the candidates, nor authorised to do so, that the way the table at issue is filled in is the sole responsibility of the candidates, and that the committee cannot go against candidates’ choices.

242    However, the ECB admits, at the same time, that the evaluation committee did consider that IT infrastructure reference 1 ‘Introduction, application and deployment of a total solution for the implementation of electronic procedures in conducting public procurement competitions in Cyprus’ was also valid as an application reference, even though that reference was not listed as such in the summary table prepared by the applicant.

243    The ECB even explicitly recognises that the task of the evaluation committee is to ‘determine the content of the reference as a whole’, that it has the ‘duty to assess the content of reference projects in order to determine whether they meet the minimum requirements or not’ and that the committee ‘has taken into consideration the entire contents of each reference and concluded that they were not of sufficient quality’.

244    In any event, it is sufficient to note that it is apparent from the report and the evaluation matrix that the committee concerned indeed took into account and analysed each of the references produced by the consortium, including applications reference 3 ‘RUN — Human Resources Network’, in order to assess its technical capacity to perform the contracts to be awarded, in accordance with the selection criteria of Section III.4.2 of the call for applications.

245    Secondly, as regards the probative value of applications reference 3 ‘RUN — Human Resources Network’ and the last two references specifically listed as relating to IT infrastructure, entitled ‘Hosting service for the Ministry of Health’ and ‘IT assessment, monitoring and system certification’, the evaluation committee clearly stated that the description of those references, including the words ‘Services provided which are similar to those of the envisaged contract’ followed by a list of services and technologies without explanation, could not be taken into account in the evaluation.

246    In that regard, it should be noted that the description of applications reference 3 ‘RUN — Human Resources Network’, in the consortium’s application, contains two parts. The first contains descriptive elements of the contract at issue and refers to the software and its features, with no component of IT infrastructure appearing in that part.

247    The second part, entitled ‘Services provided which are similar to those of the envisaged contract’, is worded as follows:

‘IT infrastructure engineering, development and integration; Analysis of IT technical infrastructure; elaboration of service management and operational requirements; Security consultancy: documentation of security requirements, operational procedures, Risk assessments; IT Infrastructure development, engineering, support and operations services; Engineering services related to systems and hosting services based on Unix/Linux/Windows, Citrix and VMware ESX; Engineering services related to cloud computing and private clouds; Data centre operations, Service Desk, IT Hardware Of?ce, IT Support; Engineering, integration and support services related to the IT workplace including desktops, thin clients, portable and mobile devices, as well as client/application virtualisation, software packaging and deployment; Infrastructure integration and rollout; Microsoft and Of?ce based development and support; SAP related services based development, maintenance and support for all its different modules (specify degree of coverage for each module); Business Intelligence and Data warehousing development including ETL development, maintenance and support (primarily based on Business Objects and SAP); Engineering on email services, identity management, directory services and access management solutions using Microsoft, Oracle products and LDAP technologies; Active security and internal monitoring: forensics, malware analysis, reverse engineering; Security device management; System security operation and engineering (Microsoft, Sun, Linux, UNIX, Oracle, SAP); System development, integration and support on Enterprise Resource Management tools and platforms; System development, integration and support on IT Service Management tools and platforms’.

248    As correctly noted by the ECB, that description consists of a long series of words, akin to a list of keywords, without explanation as to the relationship between those terms and the contract in question.

249    In its written pleadings, the applicant purely and simply reproduces the second part of the description of the reference at issue and states that it is almost identical to that of IT infrastructure references 2 and 3.

250    Those assertions alone are not sufficient to show that the evaluation committee committed a manifest error of assessment in not considering applications reference 3 ‘RUN — Human Resources Network’ as a valid reference in the field of IT infrastructure, bearing in mind that the applicant bears the burden of proof of an irregularity in the examination of the applications submitted (see, by analogy, CMB and Christof, paragraph 39 above, paragraph 183).

251    The mere mention of ‘IT infrastructure’ or other terms related thereto in an abstract list of elements which follow each other without apparent order and any explanation whatsoever as to how and to what extent those elements were actually delivered and implemented for the purposes of performing the relevant contract does not make it possible to conclude that the evaluation committee should have considered applications reference 3 ‘RUN — Human Resources Network’ as a valid reference proving the requisite technical capacity in the field of IT infrastructure.

252    The applicant’s statement that the second part of the description of applications reference 3 ‘RUN — Human Resources Network’ is almost identical to that of the last two references specifically listed as relating to IT infrastructure, even though they relate to three distinct contracts, only emphasises the lack of precision in the descriptions of all the references and, consequently, the qualitative deficiency of the consortium’s application.

253    It should be noted that the applicant does not provide any more concrete and objective evidence to contradict the evaluation committee’s assessment of the probative value of its last two references entitled ‘Hosting service for the Ministry of Health’ and ‘IT assessment, monitoring and system certification’.

254    The applicant, once more, merely reproduces, in its written pleadings, the part of the description of the references beginning with the words ‘Services provided which are similar to those of the envisaged contract’ and chooses, from that telegraphic style enumeration of IT services and technologies, those terms bearing a relation with the field of IT infrastructure and in particular the concepts of virtual infrastructure, cloud computing, desktops, network devices and storage mentioned by the evaluation committee in a concluding synthesis as to the general finding of the insufficiency of the references relating to IT infrastructure that were individually taken into account and analysed.

255    The quotations put forward by the applicant do not rebut the finding of a lack of sufficient explanation as regards the relationship between the list of services in the references at issue, which for the most part is a reproduction of Section 6.1 of the application form, and the content of the referenced contract.

256    Thirdly, in relation to reference 1 on IT infrastructure, ‘Introduction, application and deployment of a total solution for the implementation of electronic procedures in conducting public procurement competitions in Cyprus’, the applicant disputes the fact that the evaluation committee does not consider the reference as valid in the field of IT infrastructure given the nature of the contract at issue and the fact that the reference describes ‘the functional elements of the applications without sufficient specific information about the performance of activities related to IT Infrastructure’.

257    It is clear that, in support of its complaint, the applicant merely relies on the mention, in the description of the reference at issue, of the term ‘environment’, which ‘includes the delivery of both hardware and software’, and that of ‘deployment’, which refers to ‘the deployment of both the IT infrastructure (hardware and system software) and the application (e-procurement system)’, without further information.

258    In addition to those peremptory statements, the applicant reproduces part of the description of the reference at issue as follows:

‘Hardware: Servers (Linux), load balancers, network equipment (routers, switches), firewalls, helpdesk infrastructure, intrusion detection devices, antivirus, hot standby database, full system backup solution, network attached storage (NAS).’

259    That is, once more, an abstract list of elements which follow each other with no apparent order and no explanation whatsoever as to how and to what extent those elements were actually supplied and installed for the purposes of the performance of the relevant contract.

260    Those submissions do not make it possible to establish the existence of a manifest error in the assessment, by the evaluation committee, of IT infrastructure reference 1 ‘Introduction, application and deployment of a total solution for the implementation of electronic procedures in conducting public procurement competitions in Cyprus’.

261    The applicant’s submissions, in fact, merely reflect and highlight the lack of precision of the consortium’s contractual references, given that the applicant only relies on purely deductive reasoning based on the evocative value of certain technical terminology.

262    The satisfaction of the selection criteria relating to the candidate’s organisational and technical capacity and the relevance of the contractual references supposed to illustrate it cannot be inferred, as claimed in essence by the applicant, from the mere mention of various elements related to the concept of IT infrastructure, without explanations as to their practical implementation in the performance of the relevant contract, bearing in mind that the consortium was subject, like all other candidates, to a duty of care in the preparation of its application (see, to that effect and by analogy, Case T‑19/95 Adia interim v Commission [1996] ECR II‑321, paragraph 47).

263    Secondly, the applicant contests the evaluation committee’s assessment of IT infrastructure reference 2 ‘Hosting service for the Ministry of Health’, which was considered inappropriate as it did not correspond to a service provided in the customer premises.

264    According to the applicant, it is clear from the tender procedure documentation that candidates were to have experience of providing services both in customer premises and other premises and to demonstrate the provision of services at the same place as that of the location of the IT infrastructure, irrespective of whether the latter coincides with the customer’s premises or not. IT infrastructure reference 2 ‘Hosting service for the Ministry of Health’ is perfectly consistent with the ECB’s requirement that the contract be performed in the premises where the IT infrastructure is located. Its exclusion and the corresponding admission of only references for services provided at customer premises are discriminatory, as a provider offering services from a hosting site takes on many more responsibilities than a provider who merely makes available experts responsible for carrying out tasks at the client’s premises.

265    It is appropriate to note the relevant terms of the tender procedure documentation.

266    Section II.1.2 of the contract notice states that the ‘[m]ain place of performance’ is the ‘ECB, Frankfurt-on-Main’ and the ‘[n]ational central banks of the ESCB’. Section I.2 of the call for applications states that ‘[t]he Contracts are expected to be performed primarily on the premises of the ECB in Frankfurt am Main’, but that ‘the framework contractors may also be required to perform services at a different location (e.g[.] at another central bank in the EU as part of a joint project) or to perform work (e.g. the development of software or other deliverables) off­site’.

267    As the ECB rightly notes, the candidates could clearly deduce from those provisions that their references were to focus on services provided at customer premises, the mere mention of the performance of ‘work’ off-site obviously corresponding to a minor activity relating to applications and not to IT infrastructure.

268    However, it is not disputed that IT infrastructure reference 2 ‘Hosting service for the Ministry of Health’ is described in the following manner in the consortium’s application form:

‘The site offered to host the infrastructure of the Ministry of Health Data Centre is located at AlmavivA’s site in Rome.’

269    In light of that description, the evaluation committee correctly referred to that reference as follows:

‘Reference 2 consists of an outsourcing contract for hosting in their own premises the data centre of their customer.’

270    Irrespective of the fact that those formulations suggest that the IT infrastructure in question was indeed the client’s, it is undeniable that that infrastructure was housed in AlmavivA’s premises, which contradicts the clear terms of the tender procedure documentation.

271    The applicant’s submissions on the preference of most organisations for their data centre to be established in an external hosting centre, the greater responsibility of the company providing services in the context of such a centre or the equivalence of the services provided to the end user, whether or not the IT infrastructure is physically located in the customer’s premises, are irrelevant as they are not capable of rebutting the objective finding referred to in the preceding paragraph.

272    Those unsubstantiated submissions in fact call into question the definition of the selection criterion relating to the demonstration of candidates’ technical capacity to perform the contracts to be awarded, which falls within the discretion of the ECB.

273    In any event, the applicant has failed to demonstrate that the evaluation committee committed a manifest error of assessment in distinguishing the situation of a company providing IT infrastructure services relating to IT infrastructure at its own premises from that of the supply of services carried out at the premises of a third party.

274    In the latter situation, and as rightly pointed out by the ECB, the company concerned must adapt to the requirements, processes and external infrastructure, which constitute the real complexity of the business environment, and the quality of its services will depend greatly on adapting perfectly to external contingencies. It is clear that IT infrastructure reference 2 ‘Hosting service for the Ministry of Health’ was, in that regard, inappropriate, inasmuch as it was not likely to demonstrate experience in terms of adaptability.

275    Thirdly, the applicant challenges the evaluation committee’s assessment that ‘there is no three valid references to be considered in terms of duration’ in the field of IT infrastructure. Apart from its argument that the concept of duration is a new selection criterion, already considered and rejected in paragraphs 208 to 210 above, the applicant submits that the fact that most references have a term of two years does not make them inappropriate.

276    It is not disputed that the three references listed specifically as related to the field of IT infrastructure concern contracts whose duration is less than four years, which is the duration of the contractual relationship under Section II.3 of the contract notice and Section I.4 of the call for applications for the framework agreements relating to lot 1, which may be extended for a period of a further four years.

277    The applicant’s claim that a contractor who provides services for more than two years thereby demonstrates his ability to provide services for a period of four years, which may extend to eight years, rests on a simple subjective presupposition which is not capable of rebutting the objective finding of a lack of appropriate contractual references in terms of timeframes.

278    As regards the three references specifically listed as relating to the field of applications, it should be noted that the first two meet the temporal time requirement set out in the tender documentation, as they relate to contracts with an actual duration of more than four years, and were submitted by the applicant, in the form’s summary table, as also relating to the field of IT infrastructure.

279    Applications reference 3 ‘RUN — Human Resources Network’ concerns a contract performed by AlmavivA concluded for the period from January 2007 to December 2009, renewable annually, and listed as ‘ongoing’ when the application was submitted.

280    It should be noted that, in the context of question 7 relating to Section 6.2 of the application form, European Dynamics asked whether ongoing contracts were acceptable as references. In response, the ECB said:

‘If by ongoing you mean signed active contracts, the answer is yes. If the contracts are not yet concluded, the answer is no.’

281    Given the ECB’s response, applications reference 3 ‘RUN — Human Resources Network’ was able to be taken into account in the context of the assessment of the selection criterion defined in Section III.4.2 of the call for applications and, taking account of its annual renewal, the relevant contract reached an actual implementation period of more than four years at the time the consortium’s application was filed on 12 May 2011.

282    However, those considerations are not capable of altering the evaluation committee’s negative conclusion with respect to the contractual references in the field of IT infrastructure.

283    Indeed, as has been stated, the applicant has not shown that the evaluation committee committed a manifest error of assessment in not considering applications reference 3 ‘RUN — Human Resources Network’ as a valid reference in the field of IT infrastructure (see paragraphs 246 to 252 above).

284    In addition, it should be noted that, in order to justify its negative conclusion, the evaluation committee stated that ‘[t]he first two references in the area of applications … describe the functional elements of the applications without sufficient specific information about the performance of activities related to IT Infrastructure’.

285    That finding is confirmed by a simple reading of the description of the contractual references concerned, it being observed that the description of the reference entitled ‘ESP DESIS — External Service Provision for Development, Studies and Support of Information Systems’ even notes the use of the infrastructure provided by the Commission.

286    With respect to the first two references specifically listed in the field of applications, the applicant only asserts the following in paragraph 35 of the reply:

‘As regards the first two application references, which are marked with a “Y[es]” in the table of page 42 of Annex 6 of the Application, the heading of the respective column is “IT infrastructure management consultancy and delivery services, including development, system integration, operations and support” … considered in the broader IT area. As a consequence, a “Y[es]” mark is justified. The [evaluation committee] once more misinterpreted the [call for applications]’s indications.’

287    It is therefore evident that the applicant merely highlights the relevance of its own classification of the two references at issue in the summary table with respect to the heading of one of the sections of the table. It makes no submission relating to the content of the description of those references in order to contradict the assessment of the evaluation committee.

288    It follows that the applicant has not demonstrated that the evaluation committee made a manifest error of assessment in finding that there were no ‘three valid references to be considered in terms of duration’ in the field of IT infrastructure.

289    Finally, it must be noted that the applicant has produced a summary table which purports to show that the contracts provided as references covered all the services relating to IT infrastructure falling within the ECB’s contract, as those services are defined in Section 6.1 of the application form.

290    In that table, the applicant has merely connected each of the six references of the application with some of the IT services referred to in Section 6.1 of the application form, without providing further details or explanations.

291    That document, prepared by the applicant itself for the purposes of the present proceedings, cannot be regarded as proof of the existence of manifest errors of assessment made by the evaluation committee.

292    It follows from all the foregoing considerations that the plea relating to the existence of manifest errors of assessment must be rejected.

 Infringement of Article 20 of Decision 2007/5 and the principles of sound administration, proportionality and equal treatment

293    The applicant states that although Article 20 of Decision 2007/5 and Section III.1.2 of the call for applications give the evaluation committee the opportunity to seek clarifications, this does not absolve the ECB of its obligation to act as a sound and impartial authority and respect the applicant’s legitimate expectations, arising from those provisions, that, where necessary, the contracting authority will make good use of the powers conferred upon it in order to make a fair evaluation of the applications. It points out that the European Union judicature has linked the contracting authority’s discretionary power with the principle of sound administration — with a corresponding obligation to exercise that power in circumstances where, as in the present case, clarification of a tender is clearly both practically possible and necessary — and with the principle of proportionality. That conclusion is all the more obvious in cases where the tender specifications are not clear and in which tenderers are obliged to submit their offer on a single page. The applicant states that all committees in a similar situation seek explanations, as is clear from Annex 12 to the application, and the ECB itself customarily uses such an approach.

294    Article 20 of Decision 2007/5 reads as follows:

‘After the ECB has opened applications or tenders, it may request candidates and tenderers to supplement the documentation provided or to clarify specific points. Such requests must not distort fair competition between or give rise to unequal treatment of the candidates/tenderers and must not lead to an alteration of the terms of the applications or tenders.’

295    Section III.1.2 of the call for applications states the following:

‘The ECB may request Candidates to supplement their application or to clarify certain points within the limits set out in Article 20 of Decision … 2007/5. Candidates shall respond to such requests within the reasonable time-limits set by the ECB.’

296    Section III.1.3 of the call for applications provides:

‘For the purposes of the evaluation, the ECB may also take account of any other relevant information, from public or specialist sources. The ECB may contact the reference persons indicated by the Candidates and ask specific questions. The questions and answers shall be documented in writing.’

297    It should be noted that, just as the ECB has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a public contract following an invitation to tender, it also has a broad discretion in determining both the content and the application of the rules applicable to the award of a contract, for its own account, following a call for tenders (see, to that effect, Joined Cases T‑376/05 and T‑383/05 TEA-CEGOS and Others v Commission [2006] ECR II‑205, paragraphs 50 and 51, and Evropaïki Dynamiki v EFSA, paragraph 95 above, paragraph 61).

298    It is apparent from the very wording of Article 20 of Decision 2007/5 that it gives the ECB the power to make contact with candidates or tenderers in the limited circumstances set out therein. The same applies to the questioning, pursuant to Section III.1.3 of the call for applications, of reference persons mentioned by the candidates.

299    Nevertheless, compliance with the general principles of law may create an obligation for the contracting authority to make contact with a candidate or tenderer (see, to that effect and by analogy, Adia interim v Commission, paragraph 262 above, paragraph 45, and Evropaïki Dynamiki v EMCDDA, paragraph 205 above, paragraph 97).

300    That is the case, in particular, where it is both clearly physically possible and necessary to obtain clarification concerning applications. Where the wording of an application and the circumstances of the case of which the contracting authority has knowledge indicate that the ambiguity can in all likelihood be explained simply and easily removed, it is, in principle, contrary to the principle of sound administration for an evaluation committee to reject an application without exercising its power to ask for clarification (see, to that effect and by analogy, Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraph 37, and Antwerpse Bouwwerken v Commission, paragraph 94 above, paragraph 56). However, if the contracting authority does not have the possibility of establishing, quickly and efficiently, what the application actually relates to, it has no choice but to reject it, bearing in mind that it is essential in the interests of legal certainty, that the contracting authority is able to ascertain precisely the content of the application and, in particular, compliance thereof with the conditions laid down in the tender procedure (see, to that effect and by analogy, Tideland Signal, paragraph 34, and Evropaïki Dynamiki v EMCDDA, paragraph 205 above, paragraph 98).

301    It should also be noted that the principle of proportionality requires that the acts of institutions, bodies and agencies of the Union should not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued and that, where there is a choice between several appropriate measures, recourse must be had to the least onerous (see, to that effect, Case C‑157/96 National Farmers’ Union and Others [1998] ECR I‑2211, paragraph 60).

302    It should further be noted that the contracting authority is obliged to treat all candidates or tenderers in the same manner with regard to the exercise of the power to ask for clarification on applications or tenders (see, to that effect and by analogy, Tideland Signal, paragraph 300 above, paragraph 38, and Antwerpse Bouwwerken, paragraph 94 above, paragraph 79).

303    In the present case, the applicant merely cites two of the relevant committee’s observations which are set out in the report evaluating the consortium’s contractual references, namely ‘without sufficient specific information about the performance of activities related to IT infrastructure’ and ‘Without any explanation that could be considered in the evaluation’ in order to claim the existence of ambiguities capable of being clarified with ‘a simple explanation’.

304    It must be noted that, in so doing, the applicant neither claims nor shows the existence of ambiguities on specific points of the references at issue which could have been explained simply and clarified easily. On the contrary, the applicant also argues that, having received a sufficient number of contractual references on the content related to the subject of the call for applications, the ECB, to the extent that the evaluation committee was required to assess the appropriateness of those references, was ‘if in doubt’ to ‘seek clarification’ from the applicant and those considerations clearly go well beyond the concept of an ambiguity which can be clarified easily and explained simply (see, to that effect, order of the General Court of 24 April 2012 in Case T‑554/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 59).

305    The applicant’s general statements only emphasise the lack of precision, which is also general, of the contractual references, which, combined with other factors such as the nature of the contracts, their duration or the place of performance, led to the finding that the references were not relevant.

306    The above considerations are not invalidated by the vague and unsubstantiated claim that the ‘specifications’ lack clarity or by reiterating the plea, already rejected at paragraph 217 above, relating to the format for the submission of references.

307    It also follows from those considerations that the applicant has failed to show that the implementation of Article 20 of Decision 2007/5 could result in a small interruption and delay for the tender procedure at issue (see, to that effect, Tideland Signal, paragraph 300 above, paragraph 43).

308    With respect to the principle of equal treatment, it is important to note that the applicant has neither shown, nor even and especially argued, that the ECB made contact, in the context of the proceedings, with other candidates which are in a position comparable to its own, in order to obtain information or details concerning their contractual references, or with reference persons mentioned in the consortium’s application.

309    It should also be noted that the ECB has clearly indicated that it did not ask any candidate to provide additional information on their contractual references; there is no evidence in the file to doubt the truth of that assertion.

310    In light of the foregoing, it is apparent that the applicant has not established that the evaluation committee infringed Article 20 of Decision 2007/5 in deciding not to use its power to seek clarification, or the wording of Section III.1.3 of the call for applications in not questioning reference persons mentioned in the consortium’s application.

311    That finding is not altered by the two arguments raised by the applicant in its written submissions.

312    First, the applicant states that all evaluation committees in a similar position to that of the ECB seek clarification, and it produces a table containing ‘extracts of similar requests’ which it was sent by contracting authorities. It also produces a letter from the Commission, addressed to the ECB, reporting European Dynamics’ declarations in relation to a request from the evaluation committee of the ECB for a telephone interview with an officer of that institution in order to obtain information on the performance of a framework contract, which is the subject of a reference produced in the context of a tender procedure for the ECB.

313    Such documents do not, however, make it possible to make a proper comparison and to assimilate the requirements of the present call for applications and the content of the application submitted in that context with the same elements existing or which existed in the context of other tender procedures.

314    Secondly, the applicant states that Article 20 of Decision 2007/5 and the case-law relating to similar provisions have raised legitimate expectations that where necessary the contracting authority would make good use of the opportunity to seek clarification in order to make a fair assessment of applications.

315    It thus follows from the applicant’s own written submissions that it recognizes the conditionality of the power conferred upon an institution or an adjudicating authority to request clarification from the candidates or tenderers. However, the applicant has not adduced proof that the ECB should, in the circumstances of the case, have made use of that power. It cannot therefore usefully rely on any breach of its legitimate expectations.

316    It should finally be noted that the applicant submits that evaluating the relevance of the evaluation committee’s decision ‘requires that Your Court should be in a position to check if the contracting authority sought (in the present or in other [calls for tenders] and [calls for applications]) clarification(s) from other candidates and if so what kind of clarification’.

317    In accordance with Article 64(1) of the Rules of Procedure, the purpose of measures of organisation of procedure is to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions. The measures of inquiry under Articles 65 to 67 of those rules are intended to allow proof of the truth of the factual allegations made by a party in support of its case to be adduced. There is no need to order a measure of organisation of procedure or of inquiry suggested by an applicant where its purpose is not to state the pleas it raised or to prove the truth of its factual submissions, but rather appears to be an attempt to obtain new evidence in support of its action, unless the applicant raises specific complaints which can be checked or clarified by a request for information or for specific documents (order in Case T‑175/97 Bareyt and Others v Commission [2000] ECR‑SC I‑A‑229 and II‑1053, paragraphs 89 to 91).

318    The party making the application for a measure of organisation of procedure or instruction must provide at least a minimum of information giving credence to the usefulness of the measure for the requirements of the proceedings (judgment in Case T‑141/01 Entorn v Commission [2005] ECR II‑95, paragraph 132, upheld on appeal by order of 12 January 2006 in Case C‑162/05 P Entorn v Commission, not published in the ECR ).

319    In view of the fact that the applicant does not even allege the existence of any contact between the ECB and other candidates seeking, on the basis of Article 20 of Decision 2007/5, information or clarifications, and in view of statements from the ECB as to the absence of such contacts, which the Court has no reason to doubt, there is no reason, in accordance with the case-law referred to above, to grant the applicant’s application, which moreover lacks precision, referred to in paragraph 316 above.

320    It follows from all of the foregoing that the plea alleging infringement of Article 20 of Decision 2007/5 and the principles of sound administration, proportionality and equal treatment, must be dismissed.

 Misuse of powers

321    As a preliminary point, it should be noted that, in the context of the complaint alleging breach of Article 20 of Decision 2007/5 and the principles of sound administration, proportionality and equal treatment, the applicant also submitted an argument whose purpose was, in fact, to show that the ECB misused its powers during the tender procedure.

322    The applicant submits that the selection phase was used as an award phase without regard for the specific rules and criteria laid down by the applicable law; the ECB is alleged to have infringed the very purpose of a selection procedure. Contracting authorities have neither the right nor any reason to unreasonably impede eligible tenderers’ access to the subsequent stages.

323    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 purposes other than those stated (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).

324    In the present case, the Court notes the vagueness of the applicant’s submission that ‘the selection phase in the current case was used as an award phase without following the specific rules and criteria provided by the applicable legislation’; no indication is provided as to the exact nature of the ‘rules’ or ‘criteria’ referred to.

325    The applicant merely states that ‘selection criteria cannot be used to eliminate arbitrarily eligible tenderers who allegedly did not manage to demonstrate their eligibility e.g. (a) using vague and unclear tender specifications, (b) by allowing only one page for the presentation of their previous references, etc.’. In so doing, the applicant merely reiterates the head of claim, previously dismissed at paragraph 217 above, relating to the format for the submission of the references and pleads, vaguely and without justification, the lack of precision of the ‘specifications’; that does not constitute objective, relevant and consistent evidence of the existence of misuse of powers.

326    The applicant also submits that the evaluation committee made ‘irregular use of the selection criteria, ignoring that selection criteria are used in order to certify whether a tenderer is eligible to participate in a [call for tenders] or not’ and that ‘[i]t is a fact that Contracting Authorities invite candidates to present their previous references in order merely to demonstrate that they meet such criteria’.

327    It should be noted that traders’ capacity to perform the contract is verified by the contracting authority against the selection criteria, that is to say, the criteria of economic, financial, technical and professional capacity (see, to that effect, Evropaïki Dynamiki v EFSA, paragraph 95 above, paragraphs 64 and 68 and the case-law cited).

328    In the present case, the provision of contractual references was specifically requested in the context of the selection criterion defined in Section III.4.2 of the call for applications and in relation to verifying candidates’ organisational and technical capacity to perform the contracts to be awarded.

329    In the circumstances, the applicant cannot validly complain that the ECB made ‘irregular use of the selection criteria’.

330    The applicant further submits that the number of candidates finally selected by the ECB, namely three, coincides with the number of contractors for the relevant markets.

331    While the ECB does not dispute the factual authenticity of that observation, it claims that the applicant’s argument is inadmissible as a result of ‘a lack of legal interest’, since the decision of the procurement committee on the number of candidates to be invited to participate in the tender procedure does not concern the applicant.

332    It should be noted that it is specifically in view of the fact that the consortium’s application did not meet the selection criterion specified in Section III.4.2 of the call for applications, because of the inadequacy of its contractual references, that the application was not the subject of a comparative analysis under Section III.4.3 of the call for applications and that the consortium was therefore not invited to submit a tender. The applicant is therefore perfectly entitled to submit any argument to show the illegality of the rejection of the consortium’s application, including an argument that characterises objective and relevant evidence as a misuse of powers based on the coincidence of the number of candidates selected with the number of contractors for the markets concerned.

333    While that argument is admissible, it is, however, unfounded.

334    Under the terms of the contract notice, Section III.1.1 of the call for applications provides that the ECB ‘intends to invite up to 8 Candidates for lot 1 … to submit a tender provided that a sufficient number of Candidates meeting the selection criteria is available’, the aim being to select up to five contractors to establish framework agreements for lot 1 in accordance with Section I.4 of the call for applications.

335    Section III.4.3 of the call for applications indicates that, among candidates meeting the minimum requirements defined in Section III.4.2 of that document, the ECB selects those who best meet various selection criteria mentioned in Section III.4.2.

336    The above provisions reflect the ECB’s discretion in determining the total number of candidates who may be invited to submit a bid and of contractors for lot 1 of the negotiated procedure at issue.

337    It should also be noted that Article 13(4) of Decision 2007/5 on the negotiated procedure requires the ECB to invite ‘at least three eligible candidates who satisfy the selection criteria to submit a tender, provided that a sufficient number of candidates meeting the selection criteria is available’.

338    It follows that the head of claim alleging misuse of powers must be rejected.

339    It follows from the foregoing that the applications for annulment of the decisions of the ECB of 5 August and 29 September 2011 must be dismissed.

2.     The claim for damages

340    The applicant claims that it should be paid damages to compensate for the injury constituted by the loss of opportunity and damage to its reputation and credibility resulting from the ECB’s unlawful decision to reject the consortium’s application.

341    It should be noted that, in accordance with the wording of the third paragraph of Article 340 TFEU, the ECB, in accordance with the general principles common to the laws of the Member States, is to make good any damage caused by it or its servants in the performance of their duties.

342    In accordance with settled case-law, for the European Union to incur non‑contractual liability under the second paragraph of Article 340 TFEU, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon (see Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44). Where one of the conditions is not satisfied, the application must be dismissed in its entirety without it being necessary to examine the other preconditions (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). That case-law is applicable to the ECB’s incurring non-contractual liability under the third paragraph of Article 340 TFEU.

343    In the present case, it was noted in the context of the review of the applications for annulment that the decisions of 5 August and 29 September 2011 are not vitiated by any illegality.

344    Accordingly, as the condition relating to the unlawfulness of the ECB’s conduct is not satisfied, the claim for damages must be dismissed as unfounded, without it being necessary to examine whether the other conditions for incurring non‑contractual liability are fulfilled or to grant the applicant’s request that the Court invites the ECB to provide ‘the documents and relevant information it possesses’ so that it can estimate the precise amount of the alleged damage.

345    It follows from all the foregoing considerations that the application must be dismissed.

 Costs

346    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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the ECB. 

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders European Dynamics Luxembourg SA to bear its own costs and to pay those incurred by the European Central Bank (ECB).

Martins Ribeiro Popescu Berardis

Delivered in open court in Luxembourg on 23 May 2014.

[Signatures]

Table of contents

Background to the dispute

Procedure and forms of order sought

Law

1.  The applications for annulment

Admissibility

The act which is open to challenge

–  Admissibility of the action inasmuch as it relates to the annulment of the decision of 29 September 2011

–  Admissibility of the appeal in so far as it seeks the annulment of ‘all related decisions of the ECB’

Admissibility of the action brought in the name and on behalf of the consortium

Admissibility of the action brought in the name of the applicant

Substance

The lack of precision of the selection criterion mentioned in Section III.4.2(b) of the call for applications

–  Admissibility of the head of claim

–  The merits of the head of claim

Breach of the obligation to state reasons

The introduction of new selection criteria

The existence of manifest errors of assessment

Infringement of Article 20 of Decision 2007/5 and the principles of sound administration, proportionality and equal treatment

Misuse of powers

2.  The claim for damages

Costs

* Language of the case: English.