JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
22 September 2011(*)
(Public service contracts – Tendering procedure – Provision of computer and related services, including the maintenance and development of the information systems of the Commission Directorate-General for Maritime Affairs and Fisheries – Rejection of a tender – Obligation to state reasons – Equal treatment – Transparency – Award criteria – Conflict of interests – Manifest error of assessment – Non-contractual liability)
In Case T‑86/09,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, P. Katsimani and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by N. Bambara and E. Manhaeve, acting as Agents, assisted by J. Stuyck, lawyer,
defendant,
APPLICATION for annulment of the Commission’s decision of 12 December 2008 rejecting the tender submitted by the applicant in response to Call for Tenders MARE/2008/01 for the provision of computer and related services, including the maintenance and development of the information systems of the Commission’s Maritime Affairs and Fisheries Directorate-General (OJ 2008, S 115) and of the decision to award the contract to another tenderer, and an application for damages,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 3 February 2011,
gives the following
Judgment
Background to the dispute
1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company incorporated under Greek law, operating in the field of information and communications technology.
2 By contract notice of 14 June 2008, published in the Supplement to the Official Journal of the European Union (OJ 2008, S 115) under the reference MARE/2008/01, the Commission Directorate-General for Maritime Affairs and Fisheries (‘DG MARE’) launched a call for tenders for the ‘provision of computer and related services, including the maintenance and development of [DG MARE’s] information systems’ (‘the call for tenders at issue’). The purpose of the call for tenders at issue was to conclude a framework contract with a single operator for the supply of those services for a term of one year renewable up to three times.
3 Section 4 of the Tendering Specifications relating to the call for tenders at issue (‘the Specifications’), entitled ‘Evaluation and award of the contract’, provides that the evaluation is to proceed in four stages. Those stages are: (i) identification of the tenderers (Section 4.1 of the Specifications); (ii) application of the ‘exclusion criteria’, to determine whether the tenderer is authorised to participate in the procurement procedure (Section 4.2 of the Specifications); (iii) application of the selection criteria (Section 4.3 of the Specifications), with a view to determining whether the tenderer has the necessary financial, economic, technical and professional capacity to carry out the contract; and (iv) application of the award criteria (Section 4.4 of the Specifications), in order to choose between the tenders which have been submitted by the tenderers not subject to exclusion and which meet the selection criteria.
4 As regards the award criteria, Section 4.4 of the Specifications provides that the contract is to be awarded to the tenderer offering the best value for money, regard being had to the following evaluation method:
‘4.4.1 Technical evaluation
A maximum of 100 points will be awarded for the quality of the tender. The criteria for the assessment of the quality are:
(a) Management and coordination methods and means for
– the overall management of the contract and coordination with DG MARE;
– the coordination of the provision of services between in-house and outside resources;
– measures to ensure the loyalty of resources and to ensure the continuity of services.
Maximum 25 points, minimum: 15 points.
To this end, the tenderer should provide a detailed description of the management and coordination methods, measures and means specifically proposed for the framework contract.
(b) Quality assurance plan (QAP).
Maximum 50 points, minimum: 30 points.
To this end, the tenderer should provide a detailed QAP specifically proposed for the framework contract as well as a management summary for the QAP. The QAP will be evaluated according to the following criteria: compliance to Internal Control Standards of the Commission, RUP@EC documents and MARE‑QAP, applicability to the size and kind of projects developed in DG MARE, simplicity, comprehensiveness, ease of implementation, effectiveness. The QAP should also mention metrics with performance key indicators (PKI).The criteria will be the number and meaningfulness of the PKI, the ease of computation and checking by both parts.
(c) Composition of the team that the tenderer would propose for the performance of the contract.
Maximum 25 points, minimum: 15 points.
To this end, the tenderer should provide a description of the team (in-house and outside number of persons, profiles, allocation of tasks and balance of technologies listed in Sections 2.7 and 2.9) which would be proposed for the performance of a yearly volume, as described in Section 2.14, considering QAP elements and other relevant specifications (documents, etc). Based on the elements given in this call for tenders, the tenderer will have to show why the proposed team is the best balanced one for the development and maintenance of DG MARE IT projects. Furthermore, the proposed team could be used as a basis for the first specific contracts.
Only the tenders having reached the minimum number of points required for each of the criteria for the assessment of the quality and a minimum score of 65 out of 100 will be considered for the financial evaluation.
…
4.4.3. Award of the contract
The contract shall be awarded to the tender offering the best quality/price ratio, with a 70/30 weighting between technical quality and financial value.
This will be achieved by multiplying:
– the result of the technical evaluation (number of points) by 0,7
– the result of the financial evaluation (price index) by 0,3
The two results will be added together and the contract will be awarded to the tender obtaining the highest score at the end of this process.’
5 By letters of 7 August and 2 September 2008, the applicant submitted a number of comments to DG MARE regarding the Specifications.
6 By letters of 1 and 22 September 2008, DG MARE responded to the comments made by the applicant.
7 On 5 September 2008, the applicant submitted a tender in response to the call for tenders.
8 In a letter of 24 September 2008, the applicant noted that only two tenderers – itself and the incumbent contractor – had responded to the call for tenders at issue, which implies, according to the applicant, that the market had realised that the Specifications were in favour of the incumbent contractor. The applicant stated that it maintained the position specified in its previous correspondence.
9 By letter of 12 December 2008, DG MARE informed the applicant that its tender had not been selected, on the ground that it had not obtained the highest score at the end of the final evaluation.
10 By letter of 12 December 2008, the applicant asked DG MARE to send it additional information on the reasons for the rejection of its tender and the relative advantages of the successful tender.
11 By letter of 23 December 2008, DG MARE sent the applicant information regarding the details of the evaluation of the two tenders considered for award of the contract.
12 By letters of 26 December 2008 and 27 January 2009, the applicant informed DG MARE of its objections to the latter’s decision to reject its tender.
13 By letters of 26 January and 11 February 2009, DG MARE replied to the applicant’s comments.
Procedure and forms of order sought
14 By application lodged at the Court Registry on 19 February 2009, the applicant brought the present action.
15 Upon hearing the report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, asked the applicant to produce certain documents. The applicant complied with that request within the time allowed.
16 At the hearing on 3 February 2011, the parties presented oral argument and replied to the questions put by the Court.
17 The applicant claims that the Court should:
– annul the Commission’s decision rejecting its offer and all the Commission’s subsequent decisions, including the decision awarding the contract to the successful tenderer;
– order the Commission to pay compensation for the damage suffered on account of the tendering procedure in question, in the amount of EUR 2 520 000;
– order the Commission to pay the costs, even if the action is dismissed.
18 The Commission contends that the Court should:
– dismiss the action for annulment as unfounded;
– dismiss the application for damages as inadmissible and, in the alternative, as unfounded;
– order the applicant to bear the costs.
Law
1. Action for annulment
19 In support of its application for annulment, the applicant raises four pleas in law, alleging respectively: (i) infringement of Article 93(1) and Article 94 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’), and breach of the principles of equal treatment and non-discrimination; (ii) breach of the obligation to state reasons and of the principle of transparency; (iii) infringement of Article 52 of the Financial Regulation; and (iv) manifest errors of assessment in the evaluation of the applicant’s tender. It is appropriate to begin by considering the second plea.
The second plea: breach of the obligation to state reasons and of the principle of transparency
Arguments of the parties
20 The applicant refers to Article 100(2) of the Financial Regulation and claims that the evaluation committee’s remarks concerning its tender are unfounded and general. As regards the award criterion under Section 4.4.1(b) of the Specifications, relating to the ‘Quality Assurance Plan’ (‘QAP’) (‘criterion (b)’), the evaluation committee’s assessment is not based objectively on the criteria indicated in the Specifications but on false assumptions. As regards the award criterion under Section 4.4.1(c) of the Specifications, relating to the ‘composition of the team’ (‘criterion (c)’), the evaluation committee did not make any specific negative criticisms; nor did it specify accurately the imbalance deemed to affect the organisational structure and the distribution of the tasks and responsibilities set out in the applicant’s tender. The applicant submits that, by basing its evaluation on general and arbitrary considerations, the evaluation committee made manifest errors of assessment.
21 In its reply, the applicant claims that the Commission failed to provide sufficient information concerning the relative advantages of the successful tender. As regards criterion (b), the Commission failed to recognise that the applicant describes in detail in its tender the templates and documents to be used in the context of DG MARE’s framework contract. The applicant provided information concerning the templates for the reports; furnished specific templates for the request management process; undertook to use the technical templates used by DG MARE; and describes the main structure of the document deliverables.
22 As regards criterion (c), that applicant maintains that – contrary to the assertions made by the Commission – the profile of the Quality Manager rightfully does not appear in the table set out in the applicant’s tender summarising the activities per profile and per task. Furthermore, the applicant maintains that the description in its tender of the roles and tasks of the Quality Manager is consistent and that the different denominations of that role used in the tender – namely, ‘Contract Quality Manager’ and ‘Quality Assurance Manager’ – are the result of a small typing error which cannot be so grave as to penalise the applicant’s tender. The Commission, by repeating the content of the evaluation report, failed to justify the negative comments contained in that report.
23 The Commission maintains that DG MARE fulfilled its obligation to state reasons, in accordance with Article 100(2) of the Financial Regulation, and contests the applicant’s arguments.
Findings of the Court
24 It should be noted at the outset, first, that the present plea alleges breach of the principle of transparency and breach of the obligation to state reasons. However, the principle of transparency, which is the corollary of the principle of equal treatment, 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 the tendering specifications (Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 109 to 111). Yet none of the arguments raised by the applicant in the context of this plea relates to breach of the principle of transparency.
25 Secondly, the applicant claims in the context of the present plea that, in evaluating the applicant’s responses to criterion (b) and criterion (c), as presented in its tender, the Commission based its findings on general and arbitrary considerations and in consequence made several manifest errors of assessment. Accordingly, some of the applicant’s arguments are not directed to establishing that the contested decision is inadequately reasoned, but rather to showing that the decision is erroneous. In that way, under the cloak of challenging the reasons stated for the contested decision, the applicant is really challenging the merits of that decision.
26 It should be borne in mind, however, that the obligation to state reasons 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 (Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35; judgment of 12 November 2008 in Case T‑406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47; and Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 63).
27 In those circumstances, the second plea in law must be understood as alleging that Article 253 EC has been infringed in that the decision rejecting the applicant’s tender and the letter of 23 December 2008 containing additional information on the grounds for that rejection are inadequately reasoned. The arguments concerning the merits of the decision, relating to criterion (b) and criterion (c), will be addressed in the context of the fourth plea.
28 The applicant claims that the evaluation committee based its assessment of the applicant’s tender on very general considerations, making it impossible for the applicant to identify the reasons why its tender did not satisfy criterion (b) or criterion (c). In the reply, the applicant claims that the evaluation committee failed also to explain sufficiently the relative advantages of the bid submitted by the successful tenderer.
29 It should be noted that the specific rules, applicable in the present case, regarding the statement of reasons for decisions rejecting bids submitted during a tendering procedure are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1; ‘the Implementing Rules’).
30 Under those provisions and the case-law of the General Court, the Commission fulfils its obligation to state reasons if it confines itself, first, to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47 and the case-law cited).
31 Such a manner of proceeding is consistent with the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its supervisory jurisdiction (see Evropaïki Dynamiki v Commission, paragraph 30 above, paragraph 48 and the case-law cited).
32 It should also be noted that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited, and Evropaïki Dynamiki v Commission, paragraph 30 above, paragraph 49).
33 In the light of those factors, in order to determine whether the Commission fulfilled its obligation to state reasons, as provided for in the Financial Regulation and the Implementing Rules, it is necessary to examine the letter of 23 December 2008 which the Commission sent to the applicant in the wake of its letter of 12 December 2008 informing the applicant that its tender had been rejected, in response to the applicant’s express request for additional information on the reasons for the rejection of its tender, the characteristics and relative advantages of the successful tender, and the name of the successful tenderer.
34 In its letter of 23 December 2008, the Commission gave the applicant the name of the successful tenderer; in tabular form, the scores obtained by the applicant’s tender, and that of the successful tenderer, in relation to each award criterion; the evaluation committee’s comments on the applicant’s tender in relation to each of the award criteria; the conclusions of the evaluation committee concerning the technical evaluation of the successful tender and that of the applicant’s tender; in tabular form, a comparison between the financial offer made by the applicant and that made by the successful tenderer; and the calculation of the quality-price ratio of the two offers.
35 It must be held that, in that letter, the Commission provided to the requisite legal standard reasons regarding the rejection of the applicant’s tender and the relative advantages of the successful tender as compared with the tender submitted by the applicant. A first table enabled the applicant to make a direct comparison of the scores awarded to it, and those obtained by the successful tenderer, in relation to each award criterion set out in the Specifications. In addition, a second table displayed the amount of each offer, so that the applicant was able to compare its financial offer with that of the successful tenderer. Lastly, the Commission provided, in relation both to the applicant’s tender and to the successful tender, the details of the quality-price ratio calculation carried out in accordance with the method specified in Section 4.4.3 of the Specifications, thereby enabling the applicant to identify immediately the reason why its tender had not been chosen, namely the fact that it did not represent such good value for money as that of the successful tenderer, because the latter offered a better quality-price ratio.
36 As regards the grounds for rejecting the applicant’s tender, the letter of 23 December 2008 also revealed that the applicant’s tender had not been ranked, in relation to any of the three award criteria set out in the Specifications, higher than the successful tender. The Commission provided an extract from the evaluation committee report concerning the assessment of the applicant’s tender in relation to each of the three award criteria, giving details of the aspects of the tender which the Commission had considered to be unsatisfactory. Those specific aspects made it possible for the applicant to understand the scores that the evaluation committee had awarded to its tender in respect of those criteria.
37 In that regard, the applicant cannot claim that the evaluation committee’s assessment was based on general considerations and did not contain any specific negative criticism. It should be observed, first, that, as regards criterion (b), the evaluation committee found that the applicant’s tender was vague with regard to its commitments in terms of methods and standards, and regarding their implementation. In particular, the evaluation committee clearly stated that the tender offered no commitment to any target for the Performance Key Indicators (‘PKIs’); that it was difficult to assess how those PKIs had been established and how they could be used to check that the targets had been achieved; that the QAP proposed in the applicant’s tender was contradictory, both intrinsically and in relation to the other parts of the tender with regard to the definition of the roles and responsibilities (for example, the roles of the Contract Project Manager and the expert); and that the QAP was not sufficiently precise and practical. Secondly, it should be observed that, in relation to criterion (c), the evaluation committee listed a certain number of negative aspects to the applicant’s tender, namely, that the balance between internal and external resources was not adequate in terms of organisational structure or the distribution of tasks and responsibilities according to technical knowledge and capacity; that there is a contradiction in the table summarising the activities per profile and per task (for example, the ‘Quality Manager’ role proposed previously did not appear); and that there is a substantial overlap between some profiles (for example, between developers and analyst developers).
38 As regards the relative advantages of the successful tenderer, the applicant stated at the hearing that the few lines in the letter of 23 December 2008 on the findings of the evaluation committee concerning the technical evaluation of the successful tender were not sufficient to enable those advantages to be ascertained. However, it should be pointed out that the rejection of the applicant’s tender took place at the end of the final evaluation, that is to say, after the quality-price ratio had been calculated. Accordingly, the relative advantages of the successful tender as compared with the applicant’s tender do not concern solely the score awarded in relation to award criteria, but also the price quoted and, in particular, the value for money represented by the tender. In those circumstances, by sending the applicant the findings – albeit general – concerning the technical evaluation of the successful tender, together with the price quoted in each tender and the detailed calculation of the quality-price ratio, the Commission sufficiently substantiated the relative advantages of the successful tender, without giving further explanations regarding the scores obtained by the successful tenderer in relation to each of the award criteria.
39 It follows that, by its letter of 23 December 2008, the Commission provided to the requisite legal standard reasons regarding the rejection of the applicant’s tender and the relative advantages of the successful tender and satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
40 The second plea in law must therefore be rejected as unfounded.
The first plea: infringement of Article 93(1) and Article 94 of the Financial Regulation and breach of the principles of equal treatment and non-discrimination
First part: infringement of Article 93(1) and Article 94 of the Financial Regulation
– Arguments of the parties
41 The applicant maintains that it repeatedly informed DG MARE that the successful tenderer has been declared to be in serious breach of its contractual obligations under a contract for services, similar to those covered by the contract at issue, to be provided to the Publications Office of the European Union. DG MARE should therefore have excluded that tenderer from the procurement procedure at issue in the present case. The Financial Regulation does not require contracting authorities to list excluded companies in the early warning system, but it does require companies in serious breach of contract to be excluded from tendering procedures. However, DG MARE merely checked the early warning system. The applicant states that the Commission used its early warning system in an improper manner and that it failed to list the successful tenderer on that system, even though it had been declared to be in serious breach of its contractual obligations.
42 The applicant submits that, where a tenderer is in breach of its contractual obligations, it is to be automatically excluded, for at least two years, from any similar call for tenders, pursuant to Article 93(l)(f) of the Financial Regulation. That argument is borne out by Article 134b(1) of the Implementing Rules. Pursuant to Article 95 of the Financial Regulation, a tenderer of that kind must also be automatically listed in the Commission’s early warning system. Furthermore, a tenderer which is in breach of its contractual obligations may, on the basis of Article 134b(1) of the Implementing Rules, receive a financial or administrative penalty. In the present case, the evaluation committee infringed the above provisions of the Financial Regulation.
43 The Commission contests the applicant’s interpretation of Articles 93 to 96 of the Financial Regulation. It states that, in the present case, the early warning system set up pursuant to Article 95 of the Financial Regulation made no mention of an administrative penalty being imposed on the successful tenderer following a serious breach of its obligations under contracts covered by the budget.
– Findings of the Court
44 It should be noted that, pursuant to Article 94 of the Financial Regulation, a contract is not to be awarded to tenderers who, during the tendering procedure for that contract, fall within one of the exclusion categories, referred to in Article 93(1) of that regulation, for that procurement procedure. Under Article 93(l)(f) of the Financial Regulation, tenderers are to be excluded from participation in tender procedures if they are currently subject to an administrative penalty, as referred to in Article 96(1) of that regulation. Article 96(1) of the Financial Regulation provides that the contracting authority may impose administrative or financial penalties on contractors who have been declared to be in serious breach of their obligations under contracts covered by the budget.
45 Thus, it is clear from the Financial Regulation that the fact that a tenderer has been found to be in serious breach of its obligations under another contract does not automatically lead to the adoption of administrative penalties. It is only if the contracting authority decides to impose an administrative penalty on the basis of Article 96(1) of the Financial Regulation that a tenderer is to be excluded from participation in tendering procedures pursuant to Article 93(1)(f) of that regulation. It should also be noted that Article 134b of the Implementing Rules provides only that tenderers who have been declared to be in serious breach of their contractual obligations may be excluded from procurement procedures.
46 It should therefore be pointed out that the applicant’s arguments are based on a misreading of Article 93(1)(f) of the Financial Regulation and a misinterpretation of Article 134b of the Implementing Rules.
47 In consequence, the first part of the first plea, alleging infringement of Article 93(1) and Article 94 of the Financial Regulation, must be rejected, without there being any need to consider whether the applicant’s claim that the successful tenderer had been declared to be in serious breach of its contractual obligations under another contract is well founded.
The second part: breach of the principles of equal treatment and non-discrimination
– Arguments of the parties
48 The applicant maintains that, according to settled case-law, the principle of equal treatment of tenderers implies that tenderers must be in a position of equality both when they prepare their tenders and when those tenders are being assessed by the contracting authority.
49 First, the applicant submits that the refusal of DG MARE to accede to its request for access to the source code and other indispensable technical documentation relating to DG MARE’s IT applications constitutes a breach of the principles of equal treatment and non-discrimination. DG MARE refused to allow all the tenderers to have full access to the information relating to the IT applications referred to in pages 18 and 19 of the Specifications (technical documentation, source code), to which the incumbent contractor alone had access. However, that information was of paramount importance for tenderers for the purposes of producing an optimum tender, in particular, for responding to criterion (c) and for offering the most competitive prices. The applicant claims that it was therefore obliged to increase its estimations of the necessary skills of its proposed experts and accordingly to increase its person-day rates. Since access to the technical information was not given to all the tenderers, criterion (c) – as defined in the Specifications – favoured the incumbent contractor. The applicant maintains that, in all similar calls for tender, such information, which is essential in order to respond adequately to the criteria, is sent to tenderers by the Commission.
50 The applicant also submits that knowledge of DG MARE’s IT applications was of critical importance if tenderers were to be able to present a proper project team. In particular, the applicant states that the evaluation committee found that the applicant had made a ‘wrong allocation of resources’. However, a tenderer cannot make a ‘correct allocation of resources’ for the maintenance and development of an IT application if it does not have access to the IT application in question. According to the applicant, the call for tenders at issue concerned only a specific number of DG MARE’s IT applications, not a general framework contract, as the Commission maintains. If a call for tenders relates to a framework contract, evaluation of the tenders must be based on general concepts and methodologies and no evaluation criterion should focus on the particularities of the IT applications; that was not the position in the present case.
51 Secondly, the applicant maintains that the Commission acted in breach of the principles of equal treatment and non-discrimination by using a weighting ratio of 70% (quality) / 30% (price). Such a weighting ratio is inconsistent with Article 138 of the Implementing Rules, because it has the effect of neutralising the price criterion in the choice of contractor in a call for tenders where the contract is supposed to be awarded to the most economically advantageous offer. The applicant claims that the Commission has always used a weighting ratio of 50% (quality) / 50% (price) for evaluating bids in calls for tender such as the one in this case and that nothing in the call for tenders at issue was so complicated that so much weight had to be given to the technical side. The choice of a weighting ratio of 70% / 30% creates indirect discrimination between the various service providers of the Commission, since the other Directorates-General have awarded contracts through procurement procedures based on a 50% / 50% weighting, thus obtaining lower hourly rates for the same type of services.
52 Thirdly, the applicant submits that the Commission acted in breach of the principles of equal treatment and non-discrimination by introducing new award criteria which were not set out in the Specifications.
53 The applicant claims that the evaluation committee stated that the applicant’s tender ‘does not commit on any target for the performance indicators and it is difficult to assess how these indicators have been established and how they can be used to verify the attainment of related targets’. According to the applicant, those assertions are in contradiction with the requirements of the Specifications. The applicant states that the Specifications made no mention of the tenderer’s bid having to present targets and thresholds for the PKIs but only of the tender having to propose PKIs which would be evaluated according to their number and their meaningfulness, the ease of their computation and checking by both parts. The applicant’s tender presents PKIs for each type of service that may be requested under the contract, and also their purpose, the procedure for calculating them and separate category metrics covering the whole process of the implementation of the framework contract.
54 According to the applicant, in order to be in a position to define PKIs and to attribute a concrete value to them, all the parameters of the mission must be known in advance. If the contract relates to a framework contract where the contracting authority is free to assign from time to time specific tasks unknown to the tenderers during the tendering procedure, then PKIs may be defined beforehand, but only some of those PKIs can take fixed values if the nature of all the specific contracts is not known. The values of the PKIs are defined only when the nature of the specific missions is known to the contractor, and in agreement with the contracting authority.
55 In the present case, certain PKIs are based on elements clearly described in the Specifications and are not related either to the special conditions of the specific assignments that will be requested in the context of the framework contract or to the technical information specific to DG MARE’s systems. In its tender, the applicant defined specific target values for those PKIs. Thus, the PKIs which are related to the submission stage of the tender are specified in detail and specific thresholds are defined for PKIs such as ‘revisions to approved plan’ and ‘changes to customer requirements’. The applicant presented PKIs with specific target values for developing software, in particular the software deliverables to be provided. However, since DG MARE refused to provide the necessary technical information and to describe the type of task it would request, the applicant was not in a position to determine values for the PKIs which depend on the request for services to be provided or the technical requirements of the existing IT systems. It nevertheless presented in its tender a very detailed measurement process for those PKIs, enabling their value to be defined when the specific requirements are known. Consequently, the applicant’s tender guaranteed high level quality of service, both at the level of the framework contract and of each specific contract, and defined the PKIs that will be taken into consideration in the context of each specific request for services, as well as the process for measuring those PKIs.
56 The applicant states that, apparently, the successful tenderer assigned a value to all the PKIs and the evaluation committee therefore awarded its tender higher technical marks. The successful tenderer was in a position to determine the value of all the PKIs and of the specific objectives because, as incumbent contractor, it had privileged access to the technical requirements of DG MARE’s IT applications.
57 The applicant states that, according to the Specifications, the tenders had to be based on DG MARE’s existing QAP, which included neither specific targets nor quality measures. In that way, the evaluation committee penalised the applicant by evaluating its tender on the basis of criteria relating to PKI thresholds which were not required in the Specifications. The applicant adds that, in similar calls for tenders for framework contracts, the Commission has itself provided the values for the PKIs. The fact that DG MARE did not do so in this case reveals discrimination against the applicant.
58 The Commission contests the applicant’s arguments.
– Findings of the Court
59 Under Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.
60 In consequence, according to settled case-law, the contracting authority is required to ensure at each stage of a tendering procedure equal treatment, and thereby equality of opportunity, for all the tenderers (see Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 75 and the case-law cited, and Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 141).
61 Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (see Evropaïki Dynamiki v Commission, paragraph 60 above, paragraph 143 and the case-law cited).
62 It is also clear from the case-law that the principle of equal treatment implies an obligation of transparency so that it is possible to verify that that principle has been complied with (Case C-92/00 HI [2002] ECR I-5553, paragraph 45; Case C‑470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 91; and Evropaïki Dynamiki v Commission, paragraph 60 above, paragraph 142).
63 It should also be borne in mind that 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 procurement procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tendering specifications. The principle of transparency therefore implies that all technical information relevant for the purposes of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public tendering procedure in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner and, secondly, to enable the contracting authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question (Evropaïki Dynamiki v Commission, paragraph 60 above, paragraph 144 and 145).
64 As regards the first complaint, the applicant claims, essentially, that the Commission undermined the equality of opportunity for tenderers and the principle of transparency by refusing it access to the source code and the technical documentation relating to DG MARE’s IT applications (‘the technical information’), even though that information was indispensable for responding to criterion (c) and for making the best possible financial offer. It is appropriate to take account, in the context of this complaint, the argument raised by the applicant in the context of its third complaint, to the effect that that information was necessary for defining the PKIs.
65 According to settled case-law, if it were established that equality of opportunity and the principle of transparency had been undermined in that manner, this would constitute a defect in the pre-litigation procedure, adversely affecting the right of the parties concerned to information. That procedural defect could lead to the annulment of the decision in question only if it were shown that, but for that breach, the administrative procedure could have had a different outcome if the applicant had had access to the information in question and if there was even a small chance that the applicant could have brought about a different outcome to the administrative procedure (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 60 above, paragraph 147 and the case-law cited).
66 In that regard, it must be examined whether the unequal treatment alleged, consisting in a disparity in the provision of certain technical information to tenderers other than the successful tenderer, constitutes as such a procedural defect, in that information which was in fact necessary for the preparation of the tenders was not made available to all the tenderers as soon as possible (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 60 above, paragraph 148).
67 As regards, first, the disparity of the provision of information, to the benefit of the successful tenderer, it is common ground that the technical information was available to the successful tenderer, who was the incumbent contractor, when it prepared its tender. The Commission does not deny that it did not provide the applicant with the technical information, but it maintains that the information was neither necessary nor useful for preparing tenders. It follows that, when the tendering procedure for the contract at issue was launched and until the deadline for the submission of tenders, technical information to which the applicant had no access was available to the successful tenderer, because it was the contractor for DG MARE.
68 Secondly, it is necessary to consider whether the technical information which was available to the successful tenderer and which the Commission did not send to the applicant was genuinely necessary for preparing the applicant’s tender. Accordingly, an examination must be made of the arguments put forward by the applicant as to the relevance, for the purposes of preparing its tender, of the undisclosed material. In that regard, the applicant maintains that the technical information was necessary, indispensable, crucial or decisive for preparing the response to criterion (c) presented in its tender, for establishing its financial offer and for defining the PKIs.
69 As regards the applicant’s argument that the call for tenders at issue concerned only a small specific number of DG MARE’s IT applications, and not a framework contract, it is sufficient to point out that, under Section 1.1 of the Specifications, the contract at issue concerned a framework contract for the provision of computer and related services, including the maintenance and development of DG MARE’s information systems.
70 First of all, as regards the need to have access to the technical information in order to respond to criterion (c), it should be recalled that the Specifications provide:
‘To this end, the tenderer should provide a description of the team (in-house and outside number of persons, profiles, allocation of tasks and balance of technologies listed in Section 2.7 and 2.9) which would be proposed for the performance of a yearly volume, as described in Section 2.14, considering QAP elements and other relevant specifications (documents, etc).’
71 Section 2.10.1 of the Specifications lists the profiles of the resources required and specifies, for each profile, the competences and experience required and the role of each profile in the contract at issue. Section 2.14 of the Specifications contains tables showing the breakdown by activity, the effort by project, the splitting of the effort by task and the breakdown of resources by profile, in relation to the current contract. The financial tender form provided in Annex 2 to the Specifications describes the yearly volume of activity required for the contract at issue.
72 As the Commission had informed the applicant in its letter of 1 September 2008, the team proposed by a tenderer had to be based exclusively on the information provided by the Specifications, that is to say, the team proposed had to match the profiles defined in Section 2.10 and had to apply to the yearly volume of activity, which was also pre-established. Accordingly, the composition of the team, to be submitted in the tender in response to criterion (c), had to take account of the profiles of the resources, and the yearly volume of activity, described in the Specifications.
73 It must therefore be held that knowledge of the technical information was not indispensable or crucial for the composition of an appropriate team. In that regard, it should be noted that the evaluation committee found that ‘[i]n terms of size or number of members of the team the [applicant’s] tender [was] adequate according to the volumes described in the tendering specifications’.
74 Furthermore, it is necessary to reject the applicant’s argument that the evaluation committee found that the applicant had made a ‘wrong allocation of resources’ in its tender, even though, according to the applicant, in order to make a ‘correct allocation of resources’ for the maintenance and development of an IT application, access to that application was indispensable.
75 It should be noted, first, that the Specifications provided that the tenderers had to propose a balanced team for the maintenance and development of DG MARE’s information systems, not for the maintenance and development of a specific IT application. Secondly, as regards the response to criterion (c) presented in the applicant’s tender, the evaluation committee found that ‘the balance proposed between internal and external resources is adequate in quantities but not as regards organisational structure and distribution of tasks and responsibilities according to the technical knowledge and capacity’. That assessment on the part of the evaluation committee concerned the division of tasks and responsibilities within the team proposed by the applicant in the light of the technical competence of the various profiles. That assessment did not concern the knowledge possessed by the members of the team proposed by the applicant, or their lack of knowledge, of DG MARE’s IT applications.
76 It follows that the applicant’s argument that the technical information relating to DG MARE’s IT applications was indispensable for the purposes of responding to criterion (c) is unfounded.
77 Next, as regards the need for the technical information in order to make an optimal financial offer, it should be noted that the financial tender form provided in Annex 2 to the Specifications contained two tables, the first relating to daily rates for the profiles defined in the Specifications and the second corresponding to the costs for an annual volume specifying the person-day requirements for each profile. Accordingly, it was for the tenderers to quote unit prices expressed in daily rates for each necessary staff profile defined in Section 2.10.1 of the Specifications. In order to arrive at the price of the tender, those unit prices had then to be multiplied by the number of days set by the contracting authority.
78 Thus, by determining the yearly volume of activity required for the performance of the contract, the contracting authority itself estimated the scale of the work to be done, thus relieving tenderers of the need to undertake that task and focusing competition between tenderers on the daily rates proposed for each necessary staff profile.
79 Accordingly, the applicant cannot claim that, because it did not have access to the technical information, it had to increase the necessary skills of its proposed experts and, in consequence, its person-day rates. The profile of the experts was precisely defined in Section 2.10.1.1 of the Specifications, which indicated in particular the computer technologies of which the experts had to have knowledge, and the number of person-days required by the contract is defined in the financial tender form. The applicant has not shown that its lack of knowledge of the technical information had any impact at all on the daily rate quoted for its staff. It has failed to show, therefore, that the technical information was necessary in order to offer the most competitive prices.
80 Consequently, the applicant’s argument that the technical information relating to DG MARE’s IT applications was indispensable or crucial for the drawing up of its financial offer is unfounded.
81 Lastly, as regards the need to have the technical information in order to define the PKIs, it should be borne in mind that the call for tenders concerned a framework contract for the development and maintenance of IT services in general, not services to be performed on the basis of particular IT applications. As regards the selection criteria, tenderers needed to show that they had the technical competence to offer the services defined in the Specifications, which explained the tasks to be performed and the technology to be used. In the QAP, tenderers had to provide, inter alia, PKIs so that the quality of the service could be measured and to commit to the value of those PKIs. Those PKIs had to be determined in relation to the services as defined in the Specifications, that is to say, on the basis of generic models which apply globally to technologies defined in the Specifications, not in relation to specific tasks bringing into play DG MARE’s IT applications. Accordingly, the definition of the values of the PKIs did not depend on the specific technical features of the IT applications used by DG MARE. It must therefore be held that the applicant has not shown that the technical information was necessary to define the PKIs in the QAP.
82 It follows that the applicant’s argument that the technical information relating to DG MARE’s IT applications was necessary in order to define the PKIs is unfounded.
83 Consequently, the first complaint must be rejected as unfounded.
84 As regards the second complaint, by which the applicant contests the weighting ratio of 70% (quality) / 30% (price) in the call for tenders at issue, claiming in essence that the weight attributed to the price criterion in the weighting ratio chosen by the Commission in the tendering procedure at issue was insufficient, it should be noted that, according to the table set out in the Commission’s letter of 23 December 2008, comparing the financial offer of the applicant with that of the successful tenderer, the applicant’s offer was in a higher amount than the offer made by the successful tenderer.
85 Consequently, if the final assessment had been carried out using a weighting ratio of 50% (quality) / 50% (price), instead of 70% (quality) / 30% (price), giving more weight to price than to quality in the final assessment of the bids, the result would still have been that the applicant’s bid would have obtained a poorer quality-price ratio than the bid submitted by the successful tenderer.
86 This means that, even if that complaint were well founded, it could not lead to the annulment of the decision rejecting the applicant’s tender, in so far as a weighting ratio giving more weight to price than to quality would have placed the applicant’s tender at a disadvantage. The complaint must therefore be rejected as ineffective.
87 As regards the third complaint, by which the applicant submits that, by finding in its assessment of the response to criterion (b) submitted in the applicant’s tender, that the tender did not commit to any target for the PKIs, the evaluation committee relied on an award criterion that was not mentioned in the Specifications, it should be borne in mind that, under Article 97 of the Financial Regulation and Article 138(3) of the Implementing Rules, when a contract is awarded by the best-value-for-money procedure, the contracting authority must indicate, in the tender specifications or in the contract notice, the award criteria applicable and their weighting.
88 Those provisions, read in the light of the principles of the equal treatment of economic operators and of transparency, referred to in Article 89(1) of the Financial Regulation, require that potential tenderers be aware, when they prepare their tenders, of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous tender, and of their relative importance (see, to that effect and by analogy, Case C‑331/04 ATI EAC e Viaggi di Maio and Others [2005] ECR I‑10109, paragraph 24, and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 36).
89 In the present case, the Specifications provided, in the description of criterion (b), that the QAP proposed by the tenderers was ‘also [to] mention metrics with performance key indicators (PKI) [and that t]he criteria are to be the number and meaningfulness of the PKI, the ease of computation and checking by both parts’.
90 It is clear from criterion (b), as defined in the Specifications, that, in their bids, tenderers had to define PKIs – which are parameters, the value of which make it possible to check the performance of a project – and to describe how to measure and calculate them effectively. The definition of targets for PKIs and the description of the means of ensuring that those targets are met must be regarded as elements inextricably linked to the assessment of the definition of the PKIs in the tenders, which could be taken into account in the assessment of the response to criterion (b).
91 In addition, it should be recalled that, as regards the response to criterion (b), the applicant’s tender was awarded a score of 36 out of 50, the minimum number of points required being 30. The evaluation committee stated that the QAP presented in the applicant’s tender was complete. The evaluation committee’s comments concerning the PKIs set out in that QAP form part of the more general assessment of the response to criterion (b) presented in the applicant’s tender, according to which the applicant ‘is not specific on its commitments with regard to methods, standards and the implementation thereof’.
92 It thus clear from the evaluation committee’s assessment that it did not conclude that the applicant’s tender failed to meet the required standard in respect of criterion (b). The committee carried out an assessment of the QAP provided in the applicant’s tender and, as part of that assessment, it found that that QAP was not sufficiently precise with regard to its implementation. In particular, regarding the PKIs defined in the applicant’s tender, the evaluation committee found that the lack of any specific commitment in relation to the targets identified made it impossible to understand how those PKIs would actually be applied to the contract at issue.
93 Consequently, the evaluation committee’s assessment concerned the inadequate information regarding the application, in practice, to the contract at issue of the QAP provided in the applicant’s tender, in the light of the requirements of criterion (b), and was not based on failure to meet a criterion which was not laid down in the Specifications.
94 It follows that the applicant has failed to demonstrate that the Commission applied an award criterion which was not laid down in the Specifications and the third complaint must be rejected as unfounded.
95 In the light of all of the foregoing, the second part of the first plea, alleging breach of the principles of equal treatment and non-discrimination, must be rejected.
96 Accordingly, the first plea must be rejected.
The third plea: infringement of Article 52 of the Financial Regulation
Arguments of the parties
97 The applicant claims that some members of DG MARE have in the past expressed negative views with regard to the applicant. In its judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, paragraph 30 above, the General Court recognised that DG MARE’s evaluation committee had acted in breach of the principle of equal treatment, to the detriment of the applicant, and had favoured the same incumbent contractor as in the present case. The applicant is uncertain, therefore, as to whether those members of DG MARE’s evaluation committee could take part in the evaluation of the call for tenders at issue, since their situation reflects a serious conflict of interest for the purposes of Article 52 of the Financial Regulation.
98 The applicant submits, therefore, that it has a right to know the names of all the members of the evaluation committee, so that it can verify whether there is a conflict of interest within the evaluation committee and within DG MARE’s decision-making bodies. In support of its request, the applicant has invoked the fundamental right of any entity which is subject to decision-making to know the identity of the decision-makers and to conduct a detailed investigation into them so as to ensure that they can take decisions in a total absence of conflict of interest.
99 The Commission contests the applicant’s arguments.
Findings of the Court
100 Under Article 52(2) of the Financial Regulation, there is a conflict of interests where the impartial and objective exercise of the functions of a financial actor or other person, as referred to in Article 52(1), is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other shared interest with the beneficiary.
101 In the present case, the applicant merely asserts that some members of the evaluation committee faced a conflict of interests because they have in the past expressed negative views with regard to the applicant. It should be noted that the applicant does not claim that the members of the evaluation committee shared interests with the successful tenderer for the purposes of Article 52 of the Financial Regulation.
102 Accordingly, it is sufficient to point out that such claims do not constitute grounds substantiating the existence of a conflict of interest for the purposes of Article 52 of the Financial Regulation and that the applicant has not demonstrated that there was a conflict of interests involving the members of the evaluation committee.
103 Moreover, the applicant does not specify on what basis it had the right to be provided with the names of the members of the evaluation committee. Such information is not part of the additional information which unsuccessful tenderers may obtain pursuant to Article 149(3) of the Implementing Rules.
104 The third plea must therefore be rejected as unfounded.
The fourth plea: manifest errors of assessment
Arguments of the parties
105 The applicant submits that the Commission made several manifest errors of assessment in the evaluation of the responses, presented in the applicant’s tender, to the award criterion laid down in Section 4.4.1(a) of the Specifications, relating to ‘management and coordination methods’ (‘criterion (a)’), and to criterion (c).
106 First of all, the applicant claims that the limit placed on the number of pages to be used for tenders, even though it was made known to all tenderers in advance, in fact restricted the ability of tenderers to describe their tender freely and operated in favour of the incumbent contractor, who had privileged access to all the technical information. The applicant observes that the evaluation committee concluded that the applicant’s tender did not sufficiently cover the conditions set out in the Specifications and that it presented ‘some weaknesses on the substance and quite a poor quality in its presentation and structure’. By failing to observe at the same time that the applicant had used the limited space assigned to it, which prevented it from submitting all the necessary information, the Commission made a manifest error of assessment.
– Criterion (a)
107 First, the applicant disputes the finding made by the Commission in its assessment of the applicant’s tender that ‘[f]or many of the elements proposed, it is not specified how they would be implemented in practice (for example, risk management, loyalty of personnel, overall resources, etc)’.
108 The applicant maintains that, under the Specifications, the tenderers were not asked to cover risk management or overall resources in their tenders. Accordingly, this constitutes a new criterion which was not known to the tenderers. The applicant provided an answer in compliance with the Specifications, concentrating its bid on the information which was explicitly requested in the Specifications, and presented supplementary measures, ensuring proper performance of the contract and continuity of service. According to the applicant, it covered all the management and coordination methods and means in its tender.
109 The applicant maintains that, as regards risk management, the tender’s general approach is presented in the part dealing with the response to criterion (a) from the point of view of service continuity management (Chapter 4). According to the applicant, its tender states that risk management is to be one of the daily tasks of each member of the proposed team; that it will also be centrally organised and planned at the beginning of the project; and that it will be constantly reviewed and re-adjusted during the evolution of the project. In addition, the applicant’s tender presents the practical processes to be followed during the performance of the contract and, in particular, it describes the methodological steps for risk assessment and risk control. The applicant maintains that risk management was not even required by the Specifications and that it could not provide details when the length of its reply was limited. In addition, the applicant explained, in the response to criterion (b), who would be responsible for risk management and the risk reporting methods (Sections 4.3, 7.3 and 9.3.1 of the QAP).
110 Regarding the loyalty of its personnel, the applicant claims that the part dealing with the response to criterion (a) from the point of view of service continuity management – and, in particular, the passage relating to risk management (Chapter 4) – specifically presented its policy for the development of the loyalty of its resources. In its tender, the applicant described inter alia the significant factors and practical means, such as the establishment of orientation programmes, staff rewarding activities, the definition of professional growth, the establishment of career development programmes, the competence development procedures, the training courses and certifications and the continuous follow-up and support. That efficient approach meets the requirements of the project and complies with the Specifications. Furthermore, the applicant questions the validity of an award criterion which refers to elements such as ‘the loyalty of the personnel to its employer’.
111 The applicant submits that, as regards the pool of resources, its tender proposed the establishment of a pool of experts to ensure the proper implementation of the contract and service continuity, specifying the criteria for selecting the experts, as well as their functionality. Furthermore, the applicant specified that the Contract Project Manager (CPM) was to be responsible for communicating with the experts and utilising them if it were considered necessary for the proper performance of the contract. Moreover, according to the applicant, the Commission cannot claim that the tender did not provide any explanation concerning the composition of the team, since the applicant stated that that pool of resources consisted of highly qualified personnel.
112 The applicant also states that, in spite of the fact that the response to criterion (a) was limited to a maximum of five pages, it nevertheless provided a concise and professional approach and made references to certain passages in its bid when it wished to give details of its approach. For continuity of services, the applicant referred to the document relating to the QAP provided in its tender which describes the pool of experts in detail (Chapter 6.7). The evaluation committee failed to refer to that point, which shows that it had not studied the applicant’s tender in detail.
113 Secondly, the applicant disputes the Commission’s finding, in its assessment of the applicant’s tender, that ‘[t]he diagram describing the organisational structure is not clear and the related description in the text is somewhat contradictory (for example, the CPM role not included in the diagram, communication lines in the diagram not explained, etc.)[; t]he profile of the CPM is not clearly defined despite the fact that the tender assigns a key coordination role to that profile’.
114 As regards the evaluation committee’s assertion that the Contract Project Manager (CPM) does not appear in the diagram, the applicant maintains that the evaluation committee failed to understand that the expert profile, presented in that diagram, corresponded to the Project Manager, as is specified in several passages in its tender. Chapter 4.3.1.2 of the QAP provided in its tender clearly states that ‘[t]he CPM will be a functional role and the actual profile will be the expert’. As regards the assertion that the communication lines in the diagram depicting the organisational structure presented in response to criterion (a) are not explained, the applicant contends that a number of chapters in its tender clearly explain the communication line between the contractor’s service team and between the contractor and DG MARE.
– Criterion (c)
115 First, the applicant disputes the finding made by the Commission in the assessment of its tender that ‘[t]he balance proposed between internal and external resources is adequate in quantities but not as regards organisational structure and distribution of tasks and responsibilities according to the technical knowledge and capacity’.
116 The applicant states that the Commission’s refusal to send it the technical information relating to DG MARE’s IT applications prevented it from providing effective competition. It adds that the allocation of tasks and responsibilities was directly related to that technical knowledge.
117 The applicant maintains that the team proposed in its tender was very well balanced and respected the requirements of the Specifications and also the limitations and indications concerning the volume and nature of the tasks of the contract. Indicatively, the applicant presented a table summarising the activities per profile and per task under the current contract, which was the only indication contained in the Specifications concerning the new team proposed. The applicant also presented a table including an analysis of the information provided in relation to its proposed team. The expert profiles are not included in that table, since they do not exist in the contract at issue. As regards the expert profiles, the allocation which the applicant provided is in compliance with the Specifications.
118 Secondly, the applicant disputes the finding made by the Commission in the assessment of its tender that ‘[t]here is a contradiction in the table where the effort per profile and task is summarised (e.g. the Quality Manager role proposed previously does not appear)’.
119 The applicant argues that the table summarising the effort per profile and per task presents the profiles that would be involved in the project. The Quality Manager is an expert who would not be dedicated to that project, but he belongs to the tenderer’s internal quality assurance department. The profiles of the quality assurance team are not indicated in that table either, since they constitute supplementary profiles, internal to the applicant, which provide their services free of charge to the client. It is apparent from the table summarising the activities per profile and per task that the quality assurance activities are performed mainly by the Contract Manager in consultation with the applicant’s Quality Assurance Manager. The applicant’s tender contains no contradiction, therefore, between the summary of profiles and the above table.
120 Thirdly, the applicant disputes the finding made by the Commission in the assessment of its tender that ‘[t]here is a substantial overlap between some profiles (for example, developers and analyst developers) and the potential of some profiles with important technical knowledge risks not being fully exploited’.
121 The applicant maintains that, in the Specifications, there was already an overlap between some profiles. For example, according to the Specifications, the tasks consisting in running tests and carrying out maintenance work and development had to be performed either by analyst developers or developers. According to the Specifications, tenderers had to propose qualified experts capable of covering all the requirements, which in some cases overlapped between the proposed profiles. Lastly, the applicant disputes the negative finding made by the evaluation committee to the effect that the applicant’s tender proposed over-qualified experts.
122 The Commission contests the applicant’s arguments.
Findings of the Court
123 It is settled law that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following a call for tenders. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89 and the case-law cited).
124 In the present case, it is clear from the Specifications that the contract was awarded to the tender representing the best value for money, in accordance with Article 97(2) of the Financial Regulation.
125 First, as regards the argument raised in the context of the second plea, alleging that the Commission made a manifest error of assessment in the evaluation of the applicant’s response to criterion (b), it should be pointed out that, in the application initiating proceedings, the applicant merely asserts that the evaluation committee based its findings on general and arbitrary considerations. In its reply, the applicant does not specify which assessment on the part of the evaluation committee is vitiated by a manifest error of assessment. It confines itself to general criticism, which is not supported by any convincing evidence and which does not show that a comment made by the evaluation committee was wrong, still less that there was a manifest error of assessment. The applicant has therefore failed to establish that the Commission committed a manifest error of assessment in the evaluation of the response to criterion (b) provided in the applicant’s tender.
126 As regards the applicant’s argument that the Commission made a manifest error of assessment in the evaluation of the applicant’s tender by finding that the tender presented ‘some weaknesses on the substance and quite a poor quality in its presentation and structure’, when the limit placed on the number of pages prevented the applicant from submitting all the information necessary, it should be pointed out that the applicant puts forward no evidence to demonstrate how that assessment on the part of the evaluation committee constitutes a manifest error. Furthermore, the limit placed on the number of pages to be used for responding to criterion (a) and criterion (c) applied to all the tenderers. As regards the responses to those two criteria as set out in the applicant’s tender, it should be noted that the evaluation committee considered them acceptable and awarded them a score equivalent to the minimum required. The criticisms made by the evaluation committee do not concern the incomplete nature of the applicant’s tender, but rather its lack of clarity or practicality and the existence of contradictions.
127 In consequence, the applicant’s argument, put forward in various paragraphs of the application initiating proceedings, to the effect that the limit placed on the number of pages to be used for the responses to criterion (a) and criterion (c) led the Commission to make manifest errors of assessment must be rejected.
– Criterion (a)
128 First, it should be pointed out that the evaluation committee found that the response to criterion (a) presented in the applicant’s tender was acceptable and awarded it a score of 15 out of 25.
129 As regards the applicant’s argument that the Specifications did not provide that the tenderers had to describe risk management and overall resources in their response to criterion (a), it should be noted that, under the Specifications, the tenderers had to provide in their response to criterion (a) ‘a detailed description of the management and coordination methods, measures and means specifically proposed for the framework contract’. Risk management and overall resources form part of those management methods, measures and means, as is indicated in Chapter 4 of the response to criterion (a) presented in the applicant’s tender. Moreover, it is inconsistent for the applicant to claim, on the one hand, that it had described risk management and overall resources in Chapter 4 of the response to criterion (a) presented in its tender and, on the other hand, that this was not required under the Specifications, while at the same time claiming that the limit placed on the number of pages to be used for the response prevented it from submitting all the information necessary to reply to the call for tenders at issue.
130 In the first place, it is necessary to examine whether the Commission’s assessment referred to in paragraph 107 above is vitiated by a manifest error of assessment.
131 First, as regards risk management, the applicant merely refers to the response to criterion (a) presented in its tender, cites other extracts from its tender and asserts that that they met the requirements under the Specifications. It has not, however, put forward any specific facts or evidence capable of establishing the existence of a manifest error vitiating the Commission’s assessment.
132 Moreover, it should be noted that, in the paragraph on risk management, set out in Chapter 4 of the response to criterion (a), the applicant does no more than provide abstract definitions of risk, risk management and the risk management process. It states that ‘risk management, as a concept, falls within the daily tasks of each member of the management team’. In Chapters 4.3, 7.3 and 9.3.1 of the QAP provided in the applicant’s tender, to which the applicant refers, no practical guidance is given as to how to manage risk in the context of the contract at issue. Chapter 4.3 of the QAP provided in the applicant’s tender, concerning the contractor’s team, mentions that the Contract Project Manager (CPM) is to be responsible for carrying out additional tasks relating to the management of the project, including proposals for risk management; Chapter 7.3 of the QAP addresses, in a general way, ‘corrective action’ in the context of adapting the quality management system to DG MARE’s environment; and Chapter 9.3.1 of the QAP, concerning the definition of the detailed management plan, states only that that plan is to operate for the quick and efficient resolution of certain questions during the takeover period, in particular risk management.
133 It must therefore be held that it is apparent from a mere reading of the pages of the applicant’s tender to which it refers that the Commission did not make a manifest error of assessment in finding that the information provided in those pages is not sufficiently practical.
134 Consequently, the applicant has failed to show that the Commission made a manifest error of assessment in finding that the applicant’s tender did not specify how risk management would be implemented in practice.
135 As regards, secondly, the loyalty of personnel, it must also be held that the applicant merely refers to extracts from the response to criterion (a) presented in its tender, asserting that its tender complied with the Specifications. It has not, however, put forward any specific evidence capable of establishing the existence of a manifest error vitiating the Commission’s assessment.
136 In any event, it should be observed that, in the part of the response to criterion (a) relating to service continuity management, in particular the passage concerning risk management (Chapter 4), mentioned by the applicant, the applicant did no more than describe its general policy for securing the loyalty of personnel, but did not give any details as to how this would be applied in the implementation of the framework contract.
137 The applicant has therefore failed to show that the Commission made a manifest error of assessment in finding that the applicant’s tender did not specify how the loyalty of personnel would be achieved in practice.
138 Thirdly, as regards the overall resources, it should again be stated that the applicant confines itself to referring to the response to criterion (a) presented in its tender and to referring to other extracts from the tender, in particular Chapter 6.7 of the QAP provided, in order to show that it complied with the Specifications. The applicant did not, however, put forward any specific evidence capable of establishing the existence of a manifest error vitiating the Commission’s assessment.
139 Furthermore, the simple statement, in Chapter 4 of the response to criterion (a), that the group of experts is to consist of high quality staff who will be available to the contractor’s team, cannot be regarded as offering practical guidance, making it possible to assess, in particular, the effectiveness of that group and the manner in which it will actually be made available in the course of the performance of the contract at issue, for example in terms of the deadline for availability. Moreover, Chapter 6.7 of the QAP provided in the applicant’s tender, which the applicant mentions, states only that the group of experts is to be available to the contractor’s team, without giving any further practical information. Accordingly, the applicant cannot infer from the fact that the evaluation committee did not mention Chapter 6.7 of the QAP that the evaluation committee did not examine its tender in detail.
140 The applicant has therefore failed to show that the Commission made a manifest error of assessment in finding that the applicant’s tender did not specify the details regarding the implementation in practice of the overall resources.
141 In the second place, it is necessary to examine whether the Commission’s assessment referred to in paragraph 113 above is vitiated by a manifest error of assessment.
142 As regards the evaluations committee’s finding that the diagram is unclear, it should be noted that, in Chapter 2.1 regarding the organisational structure, in the response to criterion (a), the applicant first lists the various members of the contractor’s team, including the Contract Manager (CM); the Contract Project Manager/team leader (CPM) and the Contract Quality Manager (CQM), who form the management team, and the expert, the analyst-developer, the developer and the tester, who form the service delivery team. That organisational structure is then described in a diagram.
143 It is clear from that diagram that the role of Contract Project Manager (CPM) does not feature, a point which the applicant does not, moreover, dispute. The applicant’s argument that the role of Contract Project Manager is filled by the expert featured in that diagram cannot be accepted, since the expert also features in the list set out in Chapter 2.1. In addition, the Contract Project Manager is presented there as a member of the management team, even though the expert is a member of the service delivery team. It is also clear from that diagram that there is no key explaining the role of the lines of communication connecting the various members of the team.
144 Accordingly, the Commission did not make a manifest error of assessment in finding that the diagram describing the organisational structure was not clear and that it contradicted the description given in the text.
145 As regards the evaluations committee’s finding that the profile of the Contract Project Manager (CPM) is not clearly defined, it cannot be called in question by the applicant’s claim that it indicated in Chapter 4.3.1.2 of the QAP presented in its tender that the Contract Project Manager (CPM) has a functional role which corresponds to that of the expert.
146 It should be pointed out that, in the description of the contractor’s team – set out in Chapter 2.1 on the organisational structure, contained in the response to criterion (a) – reference is made both to the Contract Project Manager (CPM) and to the expert, who belong to different teams. This is confirmed, moreover, by the description of the roles of the various members of the contractor’s team, set out in Chapter 4.3 of the QAP provided in the applicant’s tender, which defines the role of the Contract Project Manager (CPM) within the management team (Chapter 4.3.1.2) and the role of the expert within the service delivery team (Chapter 4.3.2.1).
147 Consequently, the Commission did not make a manifest error of assessment in finding that the profile of the Contract Project Manager (CPM) was not clearly defined.
148 It follows from the foregoing that the applicant has not established that the Commission made a manifest error of assessment in assessing the response to criterion (a) presented in the applicant’s tender.
– Criterion (c)
149 It should first of all be observed that the evaluation committee found that the response to criterion (c) presented in the applicant’s tender was acceptable and awarded it a score of 15 out of 25.
150 In the first place, regarding the Commission’s assessment referred to in paragraph 115 above, the applicant merely refers to the response to criterion (c) presented in its tender and, in particular, to the two tables set out in that response and asserts that its tender was in compliance with the Specifications. The applicant did not, however, put forward any specific facts or evidence capable of establishing the existence of a manifest error vitiating the Commission’s assessment.
151 Moreover, with regard to the applicant’s argument that access to the technical information on DG MARE’s IT applications was necessary in order to allocate the tasks and responsibilities correctly, reference should be made to the assessment of the second part of the first plea, carried out above.
152 In the second place, regarding the Commission’s assessment referred to in paragraph 117 above, it should first be noted that the applicant does not deny that the Quality Manager does not feature in the table summarising the activities per profile and per task, set out in the response to criterion (c). Secondly, according to the response to criterion (a), in the part concerning the organisational structure, the Contract Quality Manager is a member of the management team. In Chapter 2.2.2 of the reply to criterion (a), the applicant describes the role of the Contract Quality Manager as being ‘the main point of contact between the DG MARE and the Service Delivery team for all quality issues of the framework contract’. It is stated that the Contract Quality Manager ‘will cooperate with the quality manager of DG MARE to ensure that quality assurance procedures are followed and remedy any degradation in the service delivery process’. In addition, in the response to criterion (c), the Quality Manager is described as the supervisor of the quality assurance team and, in the table produced in Point 2, he is clearly presented as a member of the Contractor’s Outside Team. Accordingly, the applicant cannot claim that the Contract Quality Manager does not appear in the table summarising the activities per profile and per task on the ground that he is an expert belonging to the tenderer’s internal quality service.
153 Consequently, the Commission did not did not make a manifest error of assessment by noting that the role of Quality Manager did not feature in the table summarising the activities per profile and per task and that that constituted a contradiction in the applicant’s tender.
154 Thirdly, regarding the Commission’s assessment referred to in paragraph 120 above, none of the applicant’s arguments can succeed.
155 In the first place, the applicant’s argument that the Specifications provided that certain tasks could be performed as well by the analyst developers as by the developers is ineffective. That argument has its origins in the fact that the applicant has confused the tasks to be carried out by members of the proposed team with the profiles of those members, that is to say, with their competences. The assessment made by the evaluation committee does not address an overlap of the tasks entrusted to the developers and to the analyst-developers in the applicant’s tender, but an overlap of their respective profiles, as described inter alia in the table, set out on page 5 of the response to criterion (c), showing the technical specialisations of the members of the proposed team.
156 In the second place, the applicant’s argument challenging the legitimacy of the evaluation committee’s finding that the experts proposed in the applicant’s tender were ‘overqualified’ has its origins in a misreading of the evaluation committee’s assessment. The evaluation committee did not find that the experts proposed in the applicant’s tender were ‘overqualified’, but that that they had been assigned functions which did not reflect their competences, which meant that their potential was under-used.
157 It follows that the applicant has failed to establish that the Commission made a manifest error of assessment in its evaluation of the response to criterion (c) presented in the applicant’s tender.
158 The fourth plea must therefore be rejected.
159 It follows from the foregoing that, since all the pleas in law relied upon in support of the application for annulment have been unsuccessful, that application must be dismissed in its entirety.
2. The claim for damages
Arguments of the parties
160 The applicant claims that, in the event that the Court should find that the Commission has acted in breach of the Financial Regulation and/or the principles of transparency and equal treatment, the Commission should be ordered to pay the applicant compensation in the amount of EUR 2 520 000, corresponding to its estimated gross profit (50%) from the procurement procedure at issue, if it had been awarded the contract. The applicant bases its claim in that regard on Articles 235 EC and 288 EC.
161 The applicant claims that the Commission committed a sufficiently serious breach of several superior rules of law for the protection of the individual and that it manifestly and gravely disregarded the limits on the exercise of its powers.
162 The Commission challenges the admissibility of the claim for damages on the ground that it does not comply with the conditions laid down in Article 44(1)(c) of the Rules of Procedure. In any event, the Commission contends that the claim for damages should be declared unfounded.
Findings of the Court
163 According to settled case-law, for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; see also, to that effect, Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 83; see also, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 19).
164 As it is, it is clear from the findings of the Court in relation to the application for annulment that the applicant has failed to prove unlawful conduct on the part of the Commission.
165 It follows that, since one of the three conditions for the Community’s extra-contractual liability has not been satisfied, the claim for damages must be rejected as unfounded, without it being necessary to rule on the admissibility of that claim.
Costs
166 The applicant requests that, even if the Court were to dismiss the action, the Commission be ordered to pay the costs in accordance with the second subparagraph of Article 87(3) of the Rules of Procedure. The applicant submits that it was forced to bring the present action because of the incorrect evaluation of its tender and the failure to give reasons for that evaluation, and because of DG MARE’s refusal to address the administrative appeal in detail and to present the applicant with the results of its evaluation.
167 The Commission contests the applicant’s claim.
168 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the second subparagraph of Article 87(3) of those rules, the Court may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.
169 In the present case, it has been found, inter alia, that the second plea, alleging breach of the obligation to state reasons and of the principle of transparency, was unfounded. Furthermore, the applicant has provided no evidence to justify an order that the Commission pay costs considered to be unreasonable or vexatious.
170 Consequently, since the applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.
Dittrich | Wiszniewska-Białecka | Prek |
Delivered in open court in Luxembourg on 22 September 2011.
[Signatures]