JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
1 December 2021 (*)
(Public service contracts – Tendering procedure – Services for the specification, development, maintenance and support of IT platforms for DG ‘Taxation and Customs Union’ – Rejection of the tender submitted by a tenderer and decision to award the contract to another tenderer – Obligation to state reasons – Abnormally low tender)
In Case T‑546/20,
Sopra Steria Benelux, established in Ixelles (Belgium),
Unisys Belgium, established in Machelen (Belgium),
represented by L. Masson and G. Tilman, lawyers,
applicants,
v
European Commission, represented by L. André and M. Ilkova, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of the Commission’s decision of 2 July 2020 which, first, rejected the joint tender submitted by Sopra Steria Benelux and Unisys Belgium for Lot A in the tendering procedure bearing reference TAXUD/2019/OP/0006 for services for the specification, development, maintenance and support of the third level of the IT platforms of the Directorate-General for ‘Taxation and Customs Union’ and, second, awarded the contract to the other consortium which submitted a tender,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg and R. Mastroianni (Rapporteur), Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written procedure and further to the hearing on 5 October 2021,
gives the following
Judgment
Background to the dispute
1 On 6 December 2019, the European Commission published in the supplement to the Official Journal of the European Union (OJ 2019/S 236-577462) a contract notice concerning a tendering procedure bearing the reference TAXUD/2019/OP/0006 for the procurement of services for the specification, development, maintenance and support of the third level of the IT platforms of the Directorate-General for ‘Taxation and Customs Union’. The contract was divided into two lots, namely Lot A, entitled ‘Evolution Services for the CCN/CSI Platform’, and Lot B, entitled ‘Evolution Services for the CCN2(ng), SPEED2(ng), CDCO/TSOAP and SSV Platforms’, in respect of which the award criterion was the best quality/price ratio, with technical quality weighted against price on a 70/30 basis in the evaluation of the tenders submitted. For each of the two lots, the Commission had to conclude a 36-month framework contract, renewable three times for 12-month periods, with the tenderer offering the best quality/price ratio, on the condition that the tenderer satisfies certain minimum criteria relating to eligibility, non-exclusion, capacity and conformity of the tender.
2 On 27 February 2020, the applicants, Sopra Steria Benelux (‘Sopra’) and Unisys Belgium, submitted a joint tender as a consortium led by Sopra. The only other bid submitted for Lot A within the time limit was that of the ARHS-IBM consortium, formed by ARHS Developments SA and International Business Machines of Belgium SA.
3 By letter of 2 July 2020, the Commission informed the applicants of the rejection of their tender submitted for Lot A, on the ground that it was not the most economically advantageous tender, and of the award of the contract to another tenderer (together, ‘the contested decision’). It attached an extract from the evaluation report of their tender indicating the scores awarded to it, accompanied by explanations, and informed them that the characteristics and relative advantages of the selected tender, the value of the contract and that the name of the successful tenderer could be sent to them upon written request. The applicants submitted such a request on the same day.
4 It is apparent from the extract from the evaluation report that the applicants’ tender received a total score of 90.81 points, broken down as follows:
Tenderer | Price | Qualitative Score | Financial Score | Total Score |
Sopra and Unisys Belgium consortium | EUR 21 699 281.86 | 70.00 | 20.81 | 90.81 |
5 By letter of 3 July 2020, the Commission informed the applicants that the contract had been awarded to the ARHS-IBM consortium and sent them an extract from the evaluation report of the successful tender indicating the scores awarded to it, accompanied by explanations.
6 It is apparent from that extract from the evaluation report that the successful tender received a total score of 98.53 points, broken down as follows:
Tenderer | Price | Qualitative Score | Financial Score | Total Score |
ARHS-IBM consortium | EUR 15 054 925.60 | 68.53 | 30.00 | 98.53 |
7 By letter of 10 July 2020, the applicants disputed the outcome of the tendering procedure and, with regard to the price set out in the selected tender, they expressed doubts that a price much lower than the price they proposed, which they described as reasonable and in line with market conditions, could be viable without the risk of ‘social dumping’. They accordingly invited the contracting authority, inter alia, to confirm that it had verified that the successful tender did not pose any risks to that effect.
8 By letter of 20 July 2020, the Commission replied, inter alia, that a detailed financial analysis of the selected bid had found it to be in line with the market conditions in the countries from which the contractors and their sub-contractors would perform the requested services.
Procedure and forms of order sought
9 By application lodged at the Registry of the General Court on 2 September 2020, the applicants brought the present action.
10 On 4 December 2020, the Commission lodged its defence at the Court Registry.
11 On 21 December 2020, the Court decided, pursuant to Article 83(1) of the Rules of Procedure of the General Court, that a second exchange of pleadings was unnecessary.
12 The written phase of the procedure was concluded on 15 January 2021.
13 By document lodged at the Court Registry on 9 February 2021, the applicants made a request for a hearing.
14 On 15 June 2021, the applicants submitted a further offer of evidence, in accordance with Article 85(3) of the Rules of Procedure.
15 On 2 July 2021, the Commission adopted its position on that offer.
16 At the hearing held on 5 October 2021, the parties presented their oral arguments and answered the oral questions asked by the Court.
17 The applicants claim, in essence, that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
18 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
19 The applicants put forward two pleas in law in support of their action. The first plea alleges infringement of paragraph 23 of Annex I to Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’), and manifest error of assessment. The second plea alleges infringement of the obligation to state reasons.
20 By the second plea, which should be examined first, the applicants claim, in essence, that the contracting authority failed to take account of the substantial difference between the price proposed in their tender and that proposed by the successful tenderer, which should have been considered to be evidence arousing suspicion that the tender was abnormally low, and that it failed to provide a sufficient statement of reasons as to why it considered that the successful tender was not abnormally low.
21 More specifically, the contested decision and the extracts from the evaluation report are vitiated by a failure to give reasons with regard to the question whether the tender selected for the Lot A of the contract at issue was excessively low.
22 According to the applicants, the Commission’s letter of 2 July 2020 did not contain any justification for the choices made by the contracting authority. The Commission’s letter of 3 July 2020 did not include any further explanations or reasons for the choices made in the context of the award of the contract. Lastly, regarding the letter of 20 July 2020, following their express request, the applicants claim that the Commission merely stated that an in-depth financial assessment of the successful tender had revealed that it was in line with the market conditions in the countries from which the contractors and their sub-contractors would provide their services. However, such a statement demonstrates that the Commission had prima facie doubts about whether the price proposed in the tender submitted by the ARHS-IBM consortium was in the normal range, which stands in contradiction to the terse statement of reasons supporting the decision accepting it.
23 The applicants thus criticise the Commission for not explaining the reasons why it considered the price proposed in the successful tender to be normal and, first, for not setting out the reasoning on the basis of which it concluded that, because of its principally financial characteristics, that tender complied inter alia with the national legislation of the countries in which the services were to be carried out in terms of remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards, and, second, for not stating whether it had determined that the proposed price included all the costs arising from the technical aspects of the selected tender.
24 The Commission therefore failed to provide adequate reasons for its assessment of the potential consequences of an abnormally low tender, expressly referred to by the applicants in their letter of 10 July 2020, consisting namely in a risk of social dumping and a risk for the continuity of service provision.
25 The Commission disputes the arguments put forward by the applicants.
26 In its submission, the specific rules concerning the obligation to state reasons in respect of abnormally low tenders applies only if there are doubts as to whether the price of a tender is in the normal range, which was not so in the present case, so that only the general obligation to state reasons is applicable.
27 In the present case, the Commission maintains that, by its letter of 3 July 2020, it provided the applicants with the information requested. The evaluation report makes no reference to the price of the selected tender being abnormally low, since no evidence to that effect was found during the examination of it.
28 The Commission points out that, by letter of 20 July 2020, it responded to the applicants’ questions concerning, in particular, the risk of social dumping, stating that each tender had been assessed in detail and that it appeared prima facie that the tenders were in line with the market conditions of the countries from which the services would be performed.
29 In that regard, the Commission submits that, contrary to what the applicants claim, the fact that it specified that it had carried out an ‘in-depth assessment’ in no way indicates that it had prima facie doubts about whether the price proposed by the ARHS-IBM consortium was in the normal range. Each tender is the subject of an in-depth evaluation and the contracting authority is required to verify prima facie the indicia on the basis of which it could appear that a tender is not in line with market conditions. It is in that light that the statement of reasons set out in the letter of 20 July 2020 must be read.
30 The Commission therefore considers that it complied with its general obligation to state reasons, the specific obligations relied on by the applicants being applicable only where there are doubts about whether the price proposed in a tender is in the normal range, which was not the case here.
31 As a preliminary point it should be noted that, by the present plea, alleging failure to state reasons, the applicants are essentially referring to the inadequacy of the reasons given for the contested decision with regard to the possible abnormally low price of the successful tender, as is apparent from both the application and their oral arguments.
32 In that regard, it should be borne in mind that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. 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 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 35 and the case-law cited).
33 According to settled case-law, where the Commission has broad discretion, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union Courts determine whether the factual and legal elements upon which the exercise of the discretion depends were present (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 10 September 2008, Evropaïki Dynamiki v Commission, T‑465/04, not published, EU:T:2008:324, paragraph 54; and of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 36).
34 In accordance with Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, the administration is obliged to give reasons for its decisions. That obligation to state reasons means, in accordance with the second paragraph of Article 296 TFEU, the author of a measure must disclose in a clear and unequivocal fashion the reasoning underlying that measure so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Courts of the European Union to exercise their power of review (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 16 May 2019, Transtec v Commission, T‑228/18, EU:T:2019:336, paragraph 91).
35 Thus, the obligation for the administration to give reasons for its decisions is not merely a general expression of the transparency of the administration’s actions, but is also intended to give the individual the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in his or her applying to the courts. There is therefore a close connection between, on the one hand, the obligation to give reasons and, on the other, the fundamental right to effective legal protection and the right to an effective remedy guaranteed under Article 47 of the Charter of Fundamental Rights. In other words, the obligation to state reasons helps to ensure effective judicial protection (see, to that effect, judgments of 10 October 2012, Sviluppo Globale v Commission, T‑183/10, not published, EU:T:2012:534, paragraph 40, and of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 73 and the case-law cited).
36 It follows that compliance with the duty to state reasons must, in principle, be determined in accordance with the information available to the applicants, at the latest, when the action was brought. Accordingly, the reasons for a decision cannot be explained for the first time ex post facto before the Court and only exceptional circumstances may justify the Court taking into consideration evidence adduced in the course of the proceedings (see judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 74 and the case-law cited).
37 Furthermore, the requirement to state reasons must be determined in accordance with the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116 and the case-law cited, and of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 75 and the case-law cited).
38 The EU rules on public procurement contained in the Financial Regulation and in Annex I thereto set out the duty of the contracting authority to state reasons. More specifically, with regard to unsuccessful tenderers, Article 170 of the Financial Regulation and paragraph 31 of Annex I thereto provide for reasoning in two stages.
39 First of all, the contracting authority must inform all unsuccessful tenderers that their tender has been rejected and of the grounds for that rejection. Next, under Article 170(3) of the Financial Regulation and paragraph 31.2 of Annex I thereto, if an unsuccessful tenderer who is not in an exclusion situation and satisfies the selection criteria makes a request in writing, the contracting authority is to communicate as soon as possible and in any case within 15 days of receipt of that request, information on the characteristics and the relative advantages of the successful tender, the price paid or contract value and the name of the successful tenderer.
40 That disclosure of reasons in two stages is consistent with the purpose of the duty to state reasons which, as stated in paragraphs 34 and 35 above, consists, on the one hand, in making the persons concerned aware of the reasons for the measure and, thereby, enabling them to defend their rights and, on the other, enabling the Courts of the European Union to exercise their power of review (see, to that effect, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 79 and the case-law cited).
41 Since, as recalled in paragraph 37 above, the obligation to provide a statement of reasons for an act depends on the factual and legal context in which it was adopted, account must also be taken in the present case of the regulatory framework governing abnormally low tenders.
42 In that context, paragraph 23.1 of Annex I to the Financial Regulation provides that, ‘if, for a given contract, the price or costs proposed in a tender appears to be abnormally low, the contracting authority shall request in writing details of the constituent elements of the price or costs which it considers relevant and shall give the tenderer the opportunity to present its observations’.
43 In accordance with paragraph 23.2 of Annex I to the Financial Regulation, the contracting authority is to ‘only reject the tender where the evidence supplied does not satisfactorily account for the low price or costs proposed’. In addition, the contracting authority is to ‘reject the tender where it has established that the tender is abnormally low because it does not comply with applicable obligations in the fields of environmental, social and labour law’.
44 The concept of ‘abnormally low tender’ is not defined in the provisions of the Financial Regulation. However, it has been held that the abnormally low nature of a tender must be assessed by reference to the composition of the tender and the services at issue (see judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 83 and the case-law cited).
45 The contracting authority’s obligation to check the seriousness of a tender arises where there are doubts beforehand as to its reliability, bearing in mind that the main purpose of paragraph 23.1 of Annex I to the Financial Regulation is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appear abnormally low. Thus, it is only where such doubts exist that the evaluation committee is required to request relevant information on the composition of the tender, before, if necessary, rejecting it under paragraph 23.2 of that annex. However, if a tender does not appear abnormally low under paragraph 23.1, that provision does not apply (see, to that effect and by analogy, judgments of 6 July 2005, TQ3 Travel Solutions Belgium v Commission, T‑148/04, EU:T:2005:274, paragraphs 49 and 50; of 5 November 2014, Computer Resources International (Luxembourg) v Commission, T‑422/11, EU:T:2014:927, paragraph 57; and of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 85).
46 It is apparent from the case-law that such doubts may exist, in particular, if it does not appear certain whether, first, a tender complies with the legislation of the country in which the services are to be supplied, in terms of remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards and selling at a loss and, second, that the price proposed includes all the costs generated by the technical aspects of the tender (see judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 86 and the case-law cited).
47 It is apparent from the foregoing that the assessment by the contracting authority of the existence of abnormally low tenders is made in two stages.
48 In the first stage, the contracting authority determines whether the price or costs proposed in a tender ‘appear’ to be abnormally low. The use of the verb ‘appear’ in paragraph 23.1 of Annex I to the Financial Regulation requires the contracting authority to carry out a prima facie assessment of the abnormally low nature of the tender and not to conduct, on its own initiative, a detailed analysis of the composition of each tender in order to establish that it is not an abnormally low tender. Thus, in the first stage, the contracting authority need only determine whether the tenders submitted contain evidence likely to arouse suspicion that they might be abnormally low. That is the case in particular, where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price. If the tenders submitted do not contain such evidence and therefore do not appear to be abnormally low, the contracting authority may continue the evaluation of those tenders and the award procedure for the contract (see, to that effect and by analogy, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 88).
49 In the second stage, if there is evidence which arouses suspicion that a tender may be abnormally low, the contracting authority must, however, check the composition of the tender in order to ensure that it is not abnormally low. Where it carries out that check, the contracting authority must give the tenderer concerned the opportunity to set out the reasons why it considers its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected (judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 89).
50 The Court has already had the opportunity to rule on the contracting authority’s duty to state reasons with regard to unsuccessful tenderers where, in the evaluation of the tenders, it had doubts as to the abnormally low character of a tender and that it held, after hearing the tenderer concerned and carrying out a more detailed analysis, that that tender was not abnormally low. In particular, it held that, in order to provide sufficient reasons as to why, after carrying out a detailed analysis, the tender accepted was not abnormally low, the contracting authority had to set out the reasoning at the end of which, first, it concluded that, by its mainly financial characteristics, that tender complied in particular with the legislation of the country in which the services were to be supplied, in terms of remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards and, second, it had to check that the price proposed included all the costs generated by the technical aspects of the tender (see judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 91 and the case-law cited).
51 As to the scope of the contracting authority’s duty to state reasons when it considers that the tender accepted does not appear to be abnormally low, it is clear from the rules governing abnormally low tenders set out in paragraphs 42 to 45 above and, more specifically, the fact that the contracting authority need, in the first stage, only carry out a prima facie assessment of the abnormally low nature of a tender, that its duty to state reasons is limited in scope. To require the contracting authority to set out in detail why a tender does not appear to be abnormally low does not take into account the distinction between the two stages of the examination provided for by paragraph 23 of Annex I to the Financial Regulation (see, to that effect, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 92).
52 In particular, where a contracting authority accepts a tender, it is not required to state explicitly, in response to any request for a statement of reasons submitted to it in accordance with Article 170(3) of the Financial Regulation, the reasons for which the tender it accepted does not appear to it to be abnormally low. If that tender is accepted by the contracting authority, it follows, implicitly but necessarily, that the contracting authority considers that there was no evidence that that tender was abnormally low. However, such reasons must be brought to the attention of an unsuccessful tenderer which has expressly requested them (see, to that effect and by analogy, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 93).
53 The contracting authority’s duty to justify, at the request of the unsuccessful tenderer, the reasons why the successful tender is not abnormally low enables compliance with Article 170(3) of the Financial Regulation and paragraph 31.2 of Annex I thereto, since such reasons provide the unsuccessful tenderer with important information regarding the characteristics and relative advantages of the successful tender (see, to that effect and by analogy, judgments of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 66, and of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 51).
54 Furthermore, according to the case-law, it is not sufficient for the contracting authority merely to state that the tender selected in the context of the award of the contract is not abnormally low or to state that it was considered that that tender was not abnormally low (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 47 and the case-law cited).
55 In the present case, it should be noted that, by its letters of 2 and 3 July 2020 (see paragraphs 3 and 5 above), the Commission, first, in accordance with Article 170 of the Financial Regulation and paragraph 31 of Annex I thereto, merely informed the applicants that their tender had been rejected and attached an extract from the evaluation report relating to their tender and, second, following a written request from the applicants, informed them of the name of the successful tenderer and provided them with another extract from that report regarding the characteristics and relative advantages of the successful tender. It is apparent from that last extract that the details of the successful tender communicated to the applicants, in addition to the price, financial score and quality/price ratio as expressed by the final score, related only to the technical aspects of the selected tender. In particular, at that stage, the details provided did not relate in any way to the examination of the price proposed by the successful tender with regard to the possible abnormally low nature of it.
56 By letter of 10 July 2020 (see paragraph 7 above), the applicants requested that the Commission confirm, inter alia, that it had verified that, in terms of the price proposed, the successful tender did not pose any risk of ‘social dumping’ and put forward the realistic and competitive price proposed in their tender, taking account of market conditions, their experience as contracting parties with the Commission and the risks involved in performing a contract for which the price proposed in the selected tender was considerably lower than the price proposed in their own tender.
57 Although the applicants did not expressly invoke the concept of ‘abnormally low tender’, the fact remains that, in so far as they put forward that argument in the application, without being contradicted in that regard by the Commission in its defence or in reply to a question asked by the Court during the hearing, they clearly alluded to the potential consequences inherent in submitting an abnormally low tender, namely a risk of social dumping to the extent that such a tender could not be consistent with the national legislation of the countries in which the services were to be carried out in terms of remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards, and a risk for the continuity of service provision.
58 In that regard, it is clear that, in its letter of 20 July 2020, the Commission merely replied that a detailed financial analysis of the successful tenderer’s tender had found it to be in line with the market conditions in the countries from which the contractors and their sub-contractors would perform the requested services.
59 However, it follows from the Commission’s letter of 2 July 2020 that the joint tender for Lot A submitted by the consortium formed by the applicants was rejected, because it was not considered to be the most economically advantageous tender. It is apparent from the two extracts from the evaluation report sent by the Commission to the applicants (see paragraphs 4 and 6 above) that there were fewer than 7.72 points separating the total score obtained by their tender and that obtained by the successful tender. It is also apparent that that difference was based entirely on the significant difference – EUR 6 644 356.26 – in the price proposed by the applicants and that proposed by the successful tenderer which amounted to a difference of 9.19 points in the financial score to the disadvantage of the applicants’ tender whereas, for the qualitative score, their tender obtained 1.47 points more than the successful tender.
60 In those circumstances, given that the consortium formed by the applicants and the successful tenderer were the only ones to submit a tender for Lot A and that the price proposed by the applicants was therefore the only point of comparison on the basis of which to establish whether there was any indication that the price proposed by the successful tender could be considered to be abnormally low, the Commission could not merely note that the successful tender was in line with the market conditions in the countries from which the contractors and their sub-contractors would perform the requested services. In view of the fact that the price criterion was the determining factor in ranking the tenders and that the price proposed by the successful tender was the only relative advantage that characterised it, the Commission, in order to respond adequately to the applicants’ request, should have provided, at the very least, information relating to the percentage corresponding to the share of the contract that would be performed under a subcontracting arrangement and the countries from which the requested services would be performed, as it did in its defence and at the hearing, which would have enabled the applicants to understand better the reasons for the difference between the prices proposed in the two tenders. Such information would also have provided them with sufficient information to have full knowledge of the reasons why the Commission considered that the successful tender did not appear to be abnormally low and possibly, therefore, to challenge the merits of that assessment.
61 Having merely affirmed, through a simple assertion in its letter of 20 July 2020, that the price proposed in the successful tender was not abnormally low in nature, the Commission failed to fulfil its obligation to state reasons as warranted by the circumstances of the present case.
62 That finding cannot be called into question, first, by the Commission’s argument that there are specific rules concerning the extent of the statement of reasons relating to the possible existence of abnormally low tenders, which apply only if there are doubts about whether the price of the successful tender is in the normal range, which was not the case here.
63 That argument is based on a misreading of paragraph 49 of the judgment of 10 September 2019, Trasys International and Axianseu – Digital Solutions v AESA (T‑741/17, EU:T:2019:572), relied on by the Commission, in which it is stated that, where there is evidence such as to arouse suspicion of the existence of abnormally low tenders, the contracting authority is required to inform the unsuccessful tenderer of the reasons why the tender it accepted does not appear to it to be abnormally low, if the unsuccessful tenderer has made an express request in that regard.
64 That paragraph of the judgment of 10 September 2019, Trasys International and Axianseu – Digital Solutions v AESA (T‑741/17, EU:T:2019:572), applies, in the case giving rise to that judgment, the lesson drawn by the Court in paragraph 93 of the judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways (T‑392/15, EU:T:2017:462), to which it expressly refers, and which states that the reasons which led the contracting authority not to consider an offer to appear to be abnormally low must be brought to the attention of an unsuccessful tenderer which has expressly requested them (see also, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 49).
65 It must therefore be stated that, contrary to what the Commission contends, the alleged clarification provided by the Court, in particular, in paragraph 49 of the judgment of 10 September 2019, Trasys International and Axianseu – Digital Solutions v AESA (T‑741/17, EU:T:2019:572), must be read in the specific context of the case giving rise to that judgment, where it was established that there were doubts as to the prices proposed by a number of tenderers (see, in particular, paragraph 47 of that judgment), and cannot call into question the principle that the reasons which led the contracting authority not to consider that the successful tender appeared to be abnormally low, which form part of the assessment regarding the characteristics and relative advantages of that tender, must be brought to the attention of an unsuccessful tenderer which has expressly requested them (see paragraphs 52 and 53 above).
66 In the light of the considerations set out in paragraphs 56 and 57 above, it is established that the applicants made a request to that effect.
67 Second, the Commission claims, in essence, that the Financial Regulation does not provide for any obligation for the contracting authority to indicate to an unsuccessful tenderer, if the unsuccessful tenderer has made a request in that regard, the reasons why it did not consider the selected tender to be abnormally low, a fortiori because, according to paragraph 23.1 of Annex I to that regulation, such an analysis is carried out only in cases in which an offer appears abnormally low.
68 However, it cannot be accepted that a contracting authority, by merely invoking that provision, avoids the obligation, provided for in Article 170(3) of the Financial Regulation, to inform the unsuccessful tenderer who has made a request in writing of the characteristics and advantages of the successful tender, which unquestionably includes the reasons on the basis of which that tender did not appear to be abnormally low. The Commission could not therefore limit itself to stating that it had not considered that the successful tender appeared abnormally low, without specifying to the applicants, who made an express request to that effect, the reasons for that finding, as is apparent from the case-law cited in paragraph 53 above.
69 It is true that the Commission provided some explanations in the course of the proceedings to the effect, in essence, that a large part of the services provided by the successful tender would be performed under a subcontracting arrangement, the majority of them in Greece and Romania, so that the wage differences existing in the places of performance explain the – substantial – difference in price between the tenders submitted. However, irrespective of any consideration as to their merits, those explanations cannot be taken into account. It is apparent from the case-law cited in paragraph 36 above that account can only be taken of information received by the applicants before the present action was brought, since the reasoning cannot, in principle, be explained for the first time ex post facto before the court.
70 Moreover, in the light of the reasons provided by the Commission in its letter of 20 July 2020 and the information contained in its earlier letters and in the extracts from the evaluation report annexed thereto, it cannot be considered that the applicants could have had knowledge of all the information relating to the composition of the tender submitted by the ARHS-IBM consortium which enabled the Commission to consider that that tender did not appear abnormally low.
71 In the light of all the foregoing considerations, it is necessary to uphold the present plea, alleging, in essence, a failure to provide a sufficient statement of reasons as regards the reasons which led the contracting authority to conclude that the successful tender did not appear abnormally low and, consequently, annul the contested decision, without its being necessary to examine the first plea in law concerning its internal lawfulness, according to which, in essence, the contracting authority found, incorrectly, that that tender was not abnormally low (see, to that effect and by analogy, judgments of 10 October 2012, Sviluppo Globale v Commission, T‑183/10, not published, EU:T:2012:534, paragraph 46, and of 10 September 2019, Trasys International and Axianseu – Digital Solutions v AESA, T‑741/17, EU:T:2019:572, paragraph 88 and the case-law cited), or to rule on the applicants’ offer of evidence and the admissibility thereof, disputed by the Commission.
Costs
72 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants, in accordance with the forms of order sought by the applicants.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Annuls, as regards Lot A, European Commission Decision of 2 July 2020 which, first, rejected the joint tender submitted by Sopra Steria Benelux and Unisys Belgium in the tendering procedure bearing reference TAXUD/2019/OP/0006 for services for the specification, development, maintenance and support of the third level of the IT platforms of the Directorate-General for ‘Taxation and Customs Union’ and, second, awarded the contract to the other consortium which submitted a tender;
2. Orders the Commission to bear its own costs and to pay those incurred by Sopra Steria Benelux and Unisys Belgium.
Spielmann | Öberg | Mastroianni |
Delivered in open court in Luxembourg on 1 December 2021.
[Signatures]