JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
16 July 2014 (*)
(Public procurement of services — Tender procedure — Services of translation into Polish — Decision altering an earlier decision to classify the applicant in first place on the list of selected tenderers — Award of the main framework contract to another tenderer — Request for re-evaluation of tender — Time-limit — Suspension of tender procedure — Transparency — Equal treatment)
In Case T‑48/12,
Euroscript — Polska Sp. z o.o., established in Krakow (Poland), represented by J.-F. Steichen, lawyer,
applicant,
v
European Parliament, represented by L. Darie and P. Biström, acting as Agents,
defendant,
APPLICATION to annul the Parliament’s decision of 9 December 2011 altering its decision of 18 October 2011 to classify the applicant in first place on the list of selected tenderers and award it the main contract in tender procedure PL/2011/EU, relating to translation into Polish (OJ 2011/S 56-090361), or alternatively, to annul the tender process,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 30 January 2014,
gives the following
Judgment
Legal context
1 The procurement of contractual services by the European Parliament is governed by the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and by the provisions of Title V of Part 1 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002, laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. l, ‘the Implementing Rules’) in their versions applicable to the facts of the case.
The Financial Regulation
2 Article 100(2) of the Financial Regulation provides as follows:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
3 Article 103 of the Financial Regulation reads:
‘Where the award procedure proves to have been subject to substantial errors, irregularities or fraud, the institutions shall suspend the procedure and may take whatever measures are necessary, including the cancellation of the procedure.
Where, after the award of the contract, the award procedure or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud, the institutions may, depending on the stage reached in the procedure, refrain from concluding the contract or suspend performance of the contract or, where appropriate, terminate the contract.
...’
The Implementing Rules
4 Article 149 of the Implementing Rules provides:
‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure.
2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.
3. In the case of contracts awarded by the Community institutions on their own account, with a value equal to or more than the thresholds set in Article 158 and which are not excluded from the scope of Directive 2004/18/EC, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, by mail, fax or e-mail, that their application or tender has not been accepted, at either of the following stages:
(a) shortly after decisions have been taken on the basis of exclusion and selection criteria and before the award decision, in procurement procedures organised in two separate stages;
(b) as regards the award decisions and decisions to reject offers, as soon as possible after the award decision and within the following week at the latest.
In each case, the contracting authority shall indicate the reasons why the tender or application has not been accepted and the available legal remedies.
The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than 15 calendar days from receipt of the request.’
5 Article 153 of the Implementing Rules provides as follows:
‘1. Contracts shall be suspended under Article 103 of the Financial Regulation in order to verify whether presumed substantial errors or irregularities or fraud have actually occurred. If they are not confirmed, performance of the contract shall resume as soon as possible.
2. A substantial error or irregularity shall be any infringement of a provision of a contract or regulation resulting from an act or an omission which causes or might cause a loss to the Community budget.’
6 Article 158a(1) of the Implementing Rules is in the following terms:
‘The contracting authority shall not sign the contract or framework contract, covered by Directive 2004/18/EC, with the successful tenderer until 14 calendar days have elapsed.
That period shall run from either of the following dates:
(a) the day after the simultaneous dispatch of the award decisions and decisions to reject;
(b) where the contract or framework contract is awarded pursuant to a negotiated procedure without prior publication of a contract notice, the day after the contract award notice referred to in Article 118 has been published in the Official Journal of the European Union.
If necessary, the contracting authority may suspend the signing of the contract for additional examination if this is justified by the requests or comments made by unsuccessful or aggrieved tenderers or candidates or by any other relevant information received. The requests, comments or information must be received during the period set in the first subparagraph. In the case of suspension all the candidates or tenderers shall be informed within three working days following the suspension decision.
Except in the cases provided for in paragraph 2, any contract signed before the expiry of the period set in the first subparagraph shall be null and void.’
Call for tenders
7 Call for tenders PL/2011/EU (‘the Call for Tenders’) related to the supply of services consisting of translation from English, French German, Italian and Spanish into Polish for the Parliament, the European Court of Auditors, the Committee of the Regions and the European Economic and Social Committee. It was made up of the invitation to tender and the specifications.
8 Point 23 of the specifications, which refers to Articles 93 and 94 of the Financial Regulation, sets out the criteria for exclusion from the contract in question.
9 Under point 24 of the specifications, the tenderer awarded the contract has a period of 10 working days, running from notification of the provisional award of the contract, to supply evidence that it was not in any of the situations described in point 23.
10 Point 26.3 of the specifications, headed ‘Award of the contract’ provides as follows:
‘Contracts will be awarded to the tenderers offering the best value-for-money in the light of the award criteria, i.e. the quality-price ratio.
...
A list of a maximum of five successful tenderers will be drawn up, and the main contract will be awarded to the tenderer offering the best value-for-money.’
11 Point 27 of the specifications, headed ‘Notification of results’ provides:
‘The Contracting Authority will inform all unsuccessful tenderers, simultaneously and individually, by registered letter and by e-mail or fax, that their tender has not been accepted. In each case the Contracting Authority will indicate the reasons for the rejection of the tender and possible means of appeal.
Simultaneously with the notifications of rejection the Contracting Authority will communicate the award decision to the successful tenderer, stating that this does not constitute an obligation on the part of the Contracting Authority. The contract may not be signed until a period of 14 calendar days, commencing the day after the date of simultaneous notification of the rejection and award decisions, has elapsed. In any event the award decision will become definitive only when the selected tenderer has submitted the requisite documentary evidence concerning the exclusion criteria referred to in point 23 of these specifications and when this has been accepted by the Contracting Authority. Such acceptance shall always be communicated in writing, and will enable the selected tenderer to sign the contract if the period of 14 calendar days has elapsed.
Any contract which is signed before the above period of 14 calendar days has elapsed is null and void.
Any unsuccessful tenderer may obtain additional information about the grounds for the rejection of his tender by requesting this in writing, by letter, fax or e-mail. Only tenderers who have submitted an admissible tender may obtain information about the characteristics and relative advantages of the tender chosen, together with the name of the tenderer awarded the contract. Tenders from tenderers who are not excluded and who comply with the selection criteria are deemed admissible. However, some information will not be communicated if it would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between them.’
12 Under point 28 of the specifications, headed ‘Suspension of the procedure’, it is provided as follows:
‘If necessary, after the results have been notified and before the contract is signed, the Authorising Authorities may suspend the signing of the contract for additional examination if this is justified by the requests or comments made by unsuccessful or aggrieved tenderers or by any other relevant information received. The requests, comments or information concerned must be received during the 14 calendar days commencing the day after the date of simultaneous notification of the rejection and award decisions or, where applicable, the publication of a contract award notice. In the case of suspension all the tenderers shall be informed within three working days of the suspension decision. Following the additional examination arising from the suspension of the procedure the Authorising Authorities may confirm their award decision, modify it or, where applicable, cancel the procedure. The reasons for any further decision shall be stated and communicated in writing to all the tenderers in contention.’
Background to the dispute
13 On 22 March 2011, the Parliament issued the Call for Tenders.
14 The applicant, Euroscript — Polska Sp. z o.o., a Polish translation company, submitted a tender within the time-limit.
15 By letter of 18 October 2011 (‘the Initial Decision’), the Parliament informed the applicant that its tender had been selected and that it was in first position on the list of selected tenderers. In accordance with points 23 and 24 of the specifications, the applicant was invited to supply evidence relating to the exclusion criteria laid down in Article 93 of the Financial Regulation, within 10 working days of receipt of the Initial Decision. The letter stipulated that:
‘We ... reserve the right to suspend the signing of the contract for additional examination if this is justified by the requests or comments made by unsuccessful tenderers, or by any other relevant information received, in which case you will be notified.
This notification of award does not constitute an obligation on our part. Until signature of the contract the Contracting Authority may withdraw from the contract, or cancel the tender procedure, without giving rise to any right to compensation in your favour.’
16 On the same day, the Parliament sent a letter to Agencja MAart, a Polish company which had also submitted a tender under the relevant call, notifying it that its tender had been accepted and that it was in second position in the classification of tenderers. In that letter the company was invited, in the same terms appearing in the Initial Decision, to supply evidence relating to the exclusion criteria.
17 By letter of 24 November 2011, Agencja MAart requested certain details regarding the evaluation of its tender from the Parliament, before asking, in a letter of 30 November 2011, for the procedure to be suspended and the selected tenders reconsidered, on the basis of matters and omissions relating to its tender, which were detailed in an attachment to the letter.
18 The evaluation committee met on 6 December 2011 to reconsider Agencja MAart’s tender. The tender was awarded 3.58 additional quality points.
19 Following the meeting, on 8 December 2011, the Parliament adopted a new decision listing the tenderers selected for the award of the contract. Agencja MAart was in first position and the applicant in second.
20 By letter of 9 December 2011, the Parliament notified the applicant that its tender was now in second position in the classification of tenderers, following the award of 3.58 additional quality points to Agencja MAart (‘the Contested Decision’).
21 By letter of 12 December 2011, the applicant asked the Parliament, pursuant to the Financial Regulation, to inform it of the characteristics and relative advantages of the tender in first position. The applicant also asked Parliament to inform it of the date on which Agencja MAart had appealed the decision placing it first in the classification of tenderers, the reasons for the 3.58 additional quality points awarded to Agencja MAart and the reason why it had not been informed that the signing of the contract had been suspended.
22 The Parliament replied to the applicant by letter dated 20 December 2011, in which it stated that the evaluation committee had awarded 94.9 points to Agencja MAart after it had obtained 3 additional quality points for the way it had taken the observations of the contracting authority into account and 0.58 points for its coverage of two additional languages, namely Czech and Bulgarian. The evaluation committee’s assessment of the applicant’s tender was attached to the letter, setting out details of the 75.45 points awarded together with the committee’s observations.
23 By letter sent to the Parliament on 22 December 2011, the applicant asked to be informed of the relative characteristics of the first-placed tender and the name of the tenderer, and repeated the requests contained in its letter of 12 December 2011, relating to the date on which Agencja MAart had appealed the decision placing the applicant first in the classification and the reason why it had not been informed that the signing of the contract for translation services had been suspended.
24 In its reply, sent to the applicant on 12 January 2012, the Parliament set out the nature and chronology of the events leading to the change in the classification of selected tenderers, making clear that the procedure had not been suspended.
25 By letter of 12 January 2012, the applicant once again asked the Parliament to inform it of the characteristics and relative advantages of the first-placed tender. It also asserted that Agencja MAart’s request for reconsideration of its tender was late, and therefore, inadmissible, with the result that the evaluation committee had no power to adopt the decision of 6 December 2011.
26 In its reply of 18 January 2012, the Parliament stated that its initial decision did not constitute a decision awarding the contract, such a decision having been adopted on 9 December 2011. It was therefore from that date that the period of 14 calendar days began to run. In that letter, the Parliament informed the applicant of the price per standard page offered by Agencja MAart and attached the evaluation committee’s assessment of its tender. The Parliament also informed it that the contract had entered into force on 3 January 2012.
27 By letter of 18 January 2012, addressed to the Parliament’s Directorate-General for Translation, the applicant asserted that there had been irregularities in the tender procedure for translation into Polish and asked the Director General to annul the Contested Decision and award it the main contract.
Procedure and arguments of the parties
28 By application lodged at the Registry on 6 February 2012, the applicant brought the present action.
29 Following changes in the composition of the Chambers of the Court, the case was assigned to the Sixth Chamber.
30 Upon the report of the Judge-Rapporteur, the Court of First Instance (Sixth Chamber) decided to open the oral procedure.
31 The applicant claims that the Court should:
– annul the Contested Decision;
– alternatively, annul the Call for Tenders;
– order the Parliament to pay the costs.
32 The Parliament claims that the Court should:
– dismiss the action as being unfounded;
– order the applicant to pay the costs.
33 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 30 January 2014.
34 At the hearing, the Parliament was asked to produce the letter it had sent to Agencja MAart, within 3 weeks. It complied with this request on 4 February 2014.
35 The applicant made its observations on that document on 14 February 2014.
36 The oral procedure was closed on 24 February 2014.
Law
37 In support of its application, the applicant relies on two grounds, based firstly on misuse of powers and secondly on breach of the rules and principles of the European Union. It is convenient to begin with the second ground.
Arguments of the Parties
38 In relation to that ground, the applicant argues that Agencja MAart was out of time when it made contact with the Parliament and when it asked for its tender to be reconsidered, on the basis that, in accordance with the specifications, it had a period of 14 days running from notification of the Initial Decision to ask the contracting authority to inform it of the characteristics and relative advantages of the successful tender. It submits that since the Initial Decision had become definitive, the Parliament could not refuse to sign the contract unless it suspended or cancelled the tender procedure, or decided not to enter into a contract.
39 According to the applicant, as both point 27 and point 28 of the specifications refer to a period of 14 days, that period does not apply solely in the event of a request for a suspension made by rejected tenderer. On the contrary, it is apparent from Article 158a of the Implementing Rules that the period applies generally, whether or not there has been a decision to suspend the signing of the contract, except in the cases set out in Article 158a(2). The purpose of the time-limit is to bring the award procedure to an end, and prevent it from continuing indefinitely. Accordingly, the applicant maintains that the Parliament had no power to act on the request for reconsideration made by Agencja MAart more than a month after the Initial Decision.
40 The applicant relies on the fact that it sent the Parliament its documentation in relation to the exclusion criteria before the 14-day period expired, such that it was not open to the Parliament to revisit its Initial Decision in the absence of a request to suspend the signing of the contract.
41 The Parliament points out that Agencja MAart asked for its tender to be reconsidered during the period for evaluation of the exclusion criteria, although there is no time-limit for making such a request, which can be done at any time up to the signing of the contract (as it was in this case). The Parliament also points out that no request to suspend the signing of the contract was made within the time-limit of 14 days, and in any event that a contracting authority is not obliged to grant such a request.
42 According to the Parliament, the applicant has conflated the period of 15 days referred to in the fourth subparagraph of Article 149(3) of the Implementing Rules, which concerns the time allowed to the contracting authority for providing information as to the characteristics and relative advantages of the selected tender to a tenderer who, having submitted an admissible tender, has requested that information, and the period of 14 days referred to in the third paragraph of Article 158a(1) of the Implementing Rules, which makes detailed provision as to the suspension of the signing of the contract for additional examination. The Parliament maintains that it did not commit any error of law in considering that there was no need to suspend the signing of the contract. Even supposing that the period laid down in the third subparagraph of Article 158a(1) of the Implementing Rules operates as a time-bar, the Parliament points out that Agencja MAart made its observations before the definitive award decision (that is, the Contested Decision) was taken.
43 The Parliament considers that it carried out an objective examination of the tenders submitted in accordance with the terms of the Call for Tenders. It also points out that the applicant did not make a request for the signing of the contract to be suspended after being notified of the Contested Decision.
Findings of the Court
44 It is apparent from the specifications that three successive stages of the tender process are to be distinguished: a first stage during which the selection criteria set out in point 25 are put into effect, a second in which tenders are evaluated according to the award criteria set out in point 26, and a third in which the exclusion criteria set out in point 24 are applied.
45 In accordance with point 26.3 of the specifications, the evaluation committee was to draw up a list of up to five successful tenderers, and the main contract was to be awarded to the tenderer offering the best value-for-money.
46 It is apparent from the file that the Initial Decision was taken according to the award criteria set out in point 26 of the specifications. Furthermore, on 18 October 2011 the Parliament notified the tenderers concerned that their tenders had been selected, and informed them of their ranking. The letters sent to the applicant and Agencja MAart on that date indicated that the Parliament had ‘notified all tenderers of the results of the selection and award stages ... and asked the selected tenderers to supply the documents required for the exclusion stage’. It was also stated that ‘this notification of the award of a contract does not constitute an obligation on [the] part [of the Parliament]’.
47 Although described as a ‘notification of the provisional award of the contract’ in point 24 of the specifications, the Initial Decision marked the end of the second stage referred to in paragraph 44 above and thus enabled the tenderers concerned to provide evidence as to the exclusion criteria. Accordingly, the Initial Decision constituted an award decision within the meaning, firstly, of the third subparagraph of Article 149(3) of the Implementing Rules, whose effect is stated in the second paragraph of point 27 of the specifications, and secondly, of Article 158a(1) of the Implementing Rules, which relates to the standstill period before signature of the contract, and provides, in (a), that the contracting authority shall not sign the contract or framework contract until 14 calendar days have elapsed, that period running from the day after simultaneous dispatch of the rejection and award decisions. That period is reiterated in point 27 of the specifications.
48 Furthermore, under the third subparagraph of Article 158a(1) of the Implementing Rules, which is restated in point 28 of the specifications, requests or comments made by unsuccessful or aggrieved tenderers or candidates must be received by the contracting authority during the same period of 14 calendar days beginning the day after the date of simultaneous notification of the rejection and award decisions. Where necessary, the contracting authority may suspend the signing of the contract for additional examination if this is justified by such requests or comments, or any other relevant information received.
49 As the award decision was notified to the applicant and Agencja MAart on 18 October 2011, the period of 14 days began to run on 19 October 2011 and expired on 2 November 2011.
50 On 24 November 2011, Agencja MAart wrote to the Parliament requesting certain details as to the evaluation of its tender.
51 It should be noted that no time-limit for such requests is laid down in Article 149(2) of the Implementing Rules. Furthermore, since a request of that kind does not seek information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, it is not caught by the last subparagraph of Article 149(3).
52 On the basis of the information it obtained, on 30 November 2011 Agencja MAart wrote to the Parliament, asking for the procedure to be suspended and the tenderers reconsidered, on the basis of the matters and omissions it had identified concerning its own tender.
53 That request fell within the third subparagraph of Article 158a(1) of the Implementing Rules, and was thus required to be received within the period of 14 days laid down in that provision.
54 That interpretation is supported by the fact that neither the Financial Regulation, nor the Implementing Rules, nor the specifications, envisage that tenderers may send ‘requests, comments or information’ to the contracting authority outside the period of 14 days provided for in the third subparagraph of Article 158a(1) of the Implementing Rules, and restated in point 28 of the specifications.
55 Moreover, the objective of a tender procedure would be compromised if it was open to tenderers to send the contracting authority requests, comments or information at any stage of the procedure, such that the authority was required to respond and, where necessary, suspend or restart the procedure in order to correct any irregularities (see, in this regard, the analogous observations in Case C‑314/09 Strabo and Others [2010] ECR I‑8769, at paragraph 37).
56 In the present case, it is common ground that Agencja MAart’s letter was sent to Parliament on 30 November 2011, or in other words several weeks after the period laid down in the third subparagraph of Article 158a(1) expired, on 2 November 2011. Consequently, Agencja MAart was out of time to ask for the procedure to be suspended and the tenders reconsidered.
57 It should nevertheless be noted that the first and second paragraphs of Article 103 provide as follows:
‘Where the award procedure proves to have been subject to substantial errors, irregularities or fraud, the institutions shall suspend the procedure and may take whatever measures are necessary, including the cancellation of the procedure.
Where, after the award of the contract, the award procedure or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud, the institutions may, depending on the stage reached in the procedure, refrain from concluding the contract or suspend performance of the contract or, where appropriate, terminate the contract.’
58 It follows that, although the period referred to in the third subparagraph of Article 158a(1) had expired at the time Agencja MAart asked for the procedure to be suspended and the tenders reconsidered, it was still open to the Parliament, if it determined that there had been a substantial error, to suspend the tender procedure, and if appropriate to carry out a fresh evaluation of the tenders.
59 In this regard, it should be noted that according to case law in the field of public procurement, the contracting institution must observe both the principle of equal treatment of tenderers, and that of transparency, at every stage of the tender procedure (Case C‑87/94 Commission v Belgium [1996] ECR I‑2043, paragraph 54, and Case T‑203-96, Embassy Limousines & Services v Parliament [1998] ECR II‑4239, paragraph 85. The principle of transparency involves an obligation on the part of the contracting authority to publish full and precise information concerning the conduct of the entire procedure. The public information objectives that the contracting authority must observe in connection with its duty of transparency are, firstly, to ensure that all tenderers have equal opportunity, and secondly, to protect the legitimate expectations of the selected tenderers (see Case T‑125/06, Centro Study Mainer v Council [2009] ECR II‑69, paragraphs 86 to 89).
60 In the present case it is clear, firstly, that the Parliament did not suspend the procedure which was under way, but limited itself to scheduling a further meeting of the evaluation committee on 6 December 2011, without informing any of the tenderers who had been notified of the Initial Decision. However, such reconsideration of a tender required Parliament to suspend the award of the contract and inform the selected tenderers of that fact, so as to comply with its duty of transparency. This it failed to do.
61 Secondly, contrary to the procedure laid down by the Financial Regulation and the Implementing Rules, the Parliament carried out a re-evaluation of a single tender, that of Agencja MAart, rather than all of the tenders received. It thus gave different treatment to one of the tenderers participating in the procedure, in breach of the principle of equal treatment.
62 Accordingly, the Contested Decision should be annulled, and it is unnecessary to give judgment on the first ground.
Costs
63 Under Article 87(2) of the Rules of Procedure of the General Court, 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 Parliament has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Annuls the Parliament’s decision of 9 December 2011 altering its decision of 18 October 2011 to classify Euroscript — Polska Sp. z o.o. in first place on the list of selected tenderers and award it the main contract in tender procedure PL/2011/EU, relating to translation into Polish (OJ 2011/S 56-090361);
2. Orders the Parliament to pay the costs.
Frimodt Nielsen | Dehousse | Collins |
Delivered in open court in Luxembourg on 16 July 2014.
[Signatures]