ORDER OF THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES
14 September 2007 (*)
(Public procurement – Community tender procedure – Procedure for interim relief – Lack of urgency)
In Case T‑211/07 R,
AWWW GmbH ArbeitsWelt-Working World, established in Göttingen (Germany), represented by B. Schreier, lawyer,
applicant,
v
European Foundation for the Improvement of Living and Working Conditions (Eurofound), represented by C. Callanan, solicitor,
defendant,
APPLICATION to suspend the operation of the decision of Eurofound concerning contract No 2007/S 13‑014125 entitled ‘Information and analysis on quality of work and employment, industrial relations and restructuring covering the European level’ until the Court of First Instance has given judgment in the main action,
THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES,
replacing the President of the Court of First Instance, in accordance with Article 106 of the Rules of Procedure,
makes the following
Order
Factual background
1 In February 2006, the applicant, AWWW GmbH ArbeitsWelt-Working World, in its capacity as leader of a consortium, entered into contract No 06‑3030‑14 with the European Foundation for the Improvement of Living and Working Conditions (Eurofound), concerning project No 337 entitled ‘Information Services – European Union’. The contract covered the supply of information reporting services for an initial period of 12 months, starting on 1 March 2006, and was renewable each year, for a maximum duration of four years. The contract was not renewed at the end of its initial period, since the other members of the consortium had indicated that they were no longer willing to participate.
2 Eurofound subsequently launched an accelerated restricted procedure for the award of a public sector contract under number 2007/S 13‑014125, entitled ‘Information and analysis on quality of work and employment, industrial relations and restructuring covering the European level’. The reason given for choosing the accelerated procedure was the break-up of the abovementioned consortium headed by the applicant. The selection procedure provided for a limited number of candidates to be chosen during the first selection round, one of whom would be awarded the contract during the second round.
3 Responding to that call for tenders, published on 19 January 2007 in the Official Journal of the European Union (OJ S 13), on 26 January 2007 the applicant submitted a tender for the first selection round. Having been chosen to participate in the second round, the applicant submitted a tender for that round on 21 February 2007.
4 By letter of 17 April 2007, Eurofound informed the applicant that its tender had not been accepted, on the ground that it did not offer the best price-quality ratio. That letter also informed the applicant that it could, on request, receive additional information about the reasons why its tender had been rejected, and that Eurofound would refrain from signing the contract with the successful tenderer for a period of two weeks starting 18 April 2007.
5 By letter of 26 April 2007, the applicant requested additional information and, in that context, asked Eurofound a number of questions concerning the criteria for the award of the contract.
6 By letter of 15 May 2007, Eurofound responded to the applicant’s request for information.
7 On 18 May 2007, the applicant sent another letter to Eurofound, to which Eurofound replied by letter of 31 May 2007. On 4 June 2007, the applicant sent a final letter to Eurofound, to which Eurofound responded by letter of 13 June 2007.
Procedure and forms of order sought
8 By application lodged at the Registry of the Court of First Instance on 13 June 2007, the applicant brought an action under the fourth paragraph of Article 230 EC in which it seeks the annulment of the abovementioned procurement procedure.
9 By a separate document lodged at the Registry of the Court of First Instance on 18 June 2007, the applicant brought the present action for interim measures under Article 104 of the Rules of Procedure of the Court of First Instance and Articles 242 and 243 EC, in which it claims that the Court of First Instance should:
– principally, suspend operation of the decision of Eurofound relating to the abovementioned accelerated procurement procedure, until the Court of First Instance has given judgment in the main action;
– in the alternative, make an order for the necessary measures to stop operation of the decision at issue in the main action, in particular by prohibiting Eurofound from awarding the contract to the selected tenderer.
10 In its written observations lodged at the Registry of the Court of First Instance on 9 July 2007, Eurofound claims, in essence, that the Court of First Instance should :
– principally, dismiss the application as inadmissible, primarily on the ground that the decision at issue has already been implemented;
– in the alternative, dismiss the application as unfounded;
– order the applicant to pay the costs.
Law
11 In accordance with the provisions of Articles 242 and 243 EC, read in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act before it be suspended or prescribe any necessary interim measures.
12 Article 104(2) of the Rules of Procedure states that an application for the adoption of interim measures shall state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (Order of the President of the Court in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30, and order of the President of the Court of First Instance in T‑125/05 R Umwelt‑ und Ingenieurtechnik Dresden v Commission [2005] ECR II‑1901, paragraph 17).
13 Having regard to the documents in the file, the judge hearing the application for interim measures considers that all the material required to decide on the present application for interim measures is available to him, without it being necessary to first hear the parties’ oral explanations.
Arguments of the parties
14 In the first place, as regards establishing a prima facie case, the applicant alleges that there was a failure to give reasons in the decision rejecting its tender. The applicant submits that it only received excerpts from the evaluation report on its tender. Those excerpts do not provide any adequate explanation as to why the contract was awarded to another tenderer.
15 Furthermore, Eurofound’s letter of 15 May 2007 was vitiated by formal defects in that it referred to an evaluation report annexed to it which had however not been signed by the persons responsible for the evaluation. Moreover, Eurofound failed to address, in that letter, the questions concerning the criteria for the award of the contract which the applicant had raised in its letter of 26 April 2007.
16 Next, the applicant takes issue with the substance of Eurofound’s evaluation of its tender. That evaluation reveals an inherent contradiction, in so far as – during the first round of the selection procedure – Eurofound stated that the applicant’s tender met the selection criteria which proved its ability to provide the services required under the contract, whereas – by the time of the second round – the evaluators expressed doubts as to that same ability in the evaluation report annexed to Eurofound’s letter of 15 May 2007.
17 That same report shows that the selected tenderer’s particular experience ‘in the coordination of international projects’ was the main reason for awarding the contract to it. However, according to the applicant, the contract documents did not list the experience at issue among the criteria for awarding the contract. The applicant stresses its own alleged experience in similar work and claims that, by contrast, the tenderer selected by Eurofound – a former member of the consortium headed by the applicant (see paragraph 1 above) – only has very limited experience in that area and, moreover, was among those responsible for the break-up of the consortium, having been unable to deliver the services required, both in terms of quantity and quality.
18 Finally, the applicant stresses that the price it had proposed was lower than the price offered by the selected tenderer, and that that was why the applicant had requested Eurofound by letter dated 18 May 2007 to reverse its decision and to award the contract in question to the applicant. Eurofound did not respond to that request.
19 Secondly, as regards urgency and the balance of interests, the applicant observes that it has a vital interest in the suspension of Eurofound’s decision, given that it otherwise risks losing the ability to assert its legal position.
20 According to the applicant, its main activities involve research in the areas of industrial relations, working conditions, human resource management and managing change. The applicant submits that if the contract at issue is awarded to a competitor, the applicant will be prevented from pursuing its activities for years to come and will suffer significant financial harm. The applicant submits that it rented premises for the implementation of the project covered by the contract at issue, which it will now have to pay for using its own funds. The applicant submits further that there is a risk that it may no longer be able to keep its employees and that, in the long run, its very existence may come under threat.
21 In its observations, Eurofound contends in the first place that the application at issue is inadmissible. First, Eurofound considers that the applicant has failed to specify the circumstances giving rise to urgency. In response to the arguments submitted by the applicant, summarised in paragraphs 19 and 20 above, Eurofound contends that the applicant had no right to assume that it would be awarded the contract and that, consequently, it should not have acted on the basis of that assumption. The adverse consequences of such a wrong assumption are not the fault of Eurofound. Moreover, the applicant has not shown that its financial viability depends on it being awarded the contract. The tender submitted by the applicant had a value of approximately EUR 70 000 and the applicant has not even attempted to quantify the profit that it would have made from the contract.
22 Even if the applicant suffered some financial harm, it follows from the case-law that such loss cannot be considered serious and irreparable if it can be offset by a subsequent award of damages in the main proceedings.
23 Second, Eurofound contends that the applicant’s action should be dismissed for being out of time. The applicant did not challenge the decision to award the contract to another tenderer during the two weeks Eurofound had indicated it would refrain from signing the contract, and only made the application at issue two months later, following a protracted and pointless exchange of letters.
24 Third, Eurofound observes that the present action is intended to stop it from entering into a contract with the selected tenderer. However, the contract was already signed on 13 June 2007. Therefore, the interim relief sought by the applicant cannot be granted at the present stage and the action at issue has no purpose, given that the harm alleged by the applicant has already arisen.
25 In the second place, and without prejudice to its view on admissibility, Eurofound contends that the applicant has not shown that it has a prima facie case. Eurofound contends that the decision to reject the applicant’s tender and to award the contract to another tenderer is properly reasoned. In addition, Eurofound provided the applicant with additional information, both in its letter of 15 May 2007 and in two subsequent letters which the applicant has not mentioned, dated 31 May and 13 June 2007, respectively. In particular, the second of these two letters described each stage of the tender procedure in detail and gave an appropriate response to each one of the applicant’s allegations, all of which were rejected. In addition, Eurofound explains that the annex to its letter of 15 May 2007 merely contained an excerpt from the evaluation report, and that that explains the absence of signatures which the applicant has criticised.
26 As regards the issue of the evaluation of the applicant’s tender, raised in connection with the substance of the case, Eurofound contends that that evaluation contains no contradiction, since the first stage of the tender procedure sought to assess each tenderer’s ability to provide the services covered by the contract, whereas, during the second stage, tenderers had to submit specific proposals regarding their performance of the contract. It was in relation to that last criterion that – during the second stage – the evaluators expressed doubts in the evaluation report that the team proposed by the applicant would be able to provide the services in question.
27 Furthermore, Eurofound submits that the experience of the selected tenderer in the coordination of international projects was only one factor that was taken into consideration in the context of selection criteria relating to knowledge and experience. Moreover, during the evaluation of the tenders, Eurofound only assessed their content and did not take into consideration other circumstances and, more specifically, the reasons that led to the break-up of the consortium headed by the applicant.
28 Finally, in response to the applicant’s allegations concerning the price, Eurofound explains that the applicant did not raise that question in its letter of 18 May 2007. In any event, the contract was not awarded solely on the basis of the price, but by taking into account the price-quality ratio.
Findings of the judge hearing the application for interim measures
On admissibility
29 As regards the admissibility of the present application for interim measures, which Eurofound disputes, it is important to note, first, that as set out in Article 104(2) of the Rules of Procedure, an application to suspend the operation of a measure must, in particular, state circumstances giving rise to urgency. In the present case, the applicant has fulfilled that requirement by putting forward the arguments summarised under paragraphs 19 and 20 above. The question of whether these arguments suffice to establish the kind of urgency that justifies the granting of the interim measures sought falls within the scope of the examination of the substance of the application. Equally, Eurofound’s counter-arguments have to be considered as part of the examination of the substance of the case (see paragraph 21 above).
30 Second, neither the Rules of Procedure nor any other provision in any way limit the period during which an application for interim measures can be brought. Therefore, an application for interim measures cannot be dismissed as inadmissible, irrespective of the date on which it was made. Any delay in making the application can only be taken into consideration as part of the examination of the substance of the case, notably in order to determine whether the condition of urgency has been fulfilled.
31 Consequently, the present application cannot be dismissed as inadmissible solely on the ground that it was not made before the end of the period during which Eurofound had indicated it would refrain from signing the contract with the selected tenderer (see, to that effect, order of the President of the Court of First Instance in Case T‑447/04 R Capgemini Nederland v Commission [2005] ECR II‑257, paragraph 97).
32 Finally, an application for interim measures seeking to prohibit the defendant from taking an action that has already been taken before the application was made is devoid of purpose from the moment it is lodged and, consequently, inadmissible (see, to that effect, orders of the President of the Court of First Instance in Umwelt- und Ingenieurtechnik Dresden v Commission, paragraph 36, and Case T‑195/05 R Deloitte Business Advisory v Commission [2005] ECR II‑3485, paragraph 81).
33 In the present case, Eurofound contends that, in implementing its decision to reject the tender submitted by the applicant and to award the contract to another tenderer, it signed a contract with that other tenderer on 13 June 2007, in other words, before the present application was made. That assertion is not at variance with documents placed on the file but, to the contrary, is consistent with information which Eurofound provided to the applicant, according to which Eurofound would only refrain from signing the contract for two weeks after 18 April 2007.
34 Therefore, the alternative claim in the present action, in so far as it seeks the prohibition of awarding the contract to the selected tenderer, has been devoid of purpose from the moment the action was brought and is therefore inadmissible.
35 By contrast, the applicant’s main claim is admissible, as are the remaining elements of its alternative claim. In fact, the operation of the decision to reject the applicant’s tender and to award the contract to another tenderer does not end with the signing of the contract at issue, given that performance of that contract also counts as a measure implementing the decision in question. That is why the judge hearing the application for an interim measure may, following an application for interim measures made even after the signing of the award contract, order suspension of operation of that contract (order in Capgemini Nederland v Commission, paragraphs 15 and 97).
36 It follows from the above that the present action is admissible, with the exception of the applicant’s alternative claim, to the extent that it seeks the prohibition of the award of the contract which has already taken place.
On the substance of the case
37 In the context of the overall examination of the conditions for granting the suspension of operation and other interim measures, the judge hearing the application enjoys a wide margin of assessment and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre-established scheme within which the need to order interim measures must be analysed and assessed (order of the President of the Court of Justice in Case C-149/ 95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23).
38 In the present case, it must first be examined whether the condition of urgency has been satisfied.
39 The applicant claims that that is the case, since the fact that it has not been awarded the contract at issue causes it financial harm on a scale that threatens its survival.
40 In that regard, it is noteworthy that the objective of holding a tender procedure in order to award a contract is to allow the relevant authority to choose – from among several competing offers – the offer that it considers responds best to a set of pre-established selection criteria. Moreover, the Community authority that launches a tender procedure has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract (Case T‑145/98 ADT Projekt v Commission [2000 ECR II‑387, paragraph 147; Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraph 95; and joined Cases T‑376/05 and T‑383/05 TEA-CEGOS and Others v Commission [2006] ECR II‑205, paragraph 50).
41 Therefore, a company taking part in a tender procedure never has an absolute guarantee that it will be awarded the contract, but must always keep in mind the possibility that the contract could be awarded to another tenderer. Under those circumstances, the adverse financial consequences which the company in question would suffer as a result of the rejection of its tender cannot, in themselves, give rise to urgency, but rather have to be considered to be part of the normal commercial risk which each company active in the market must face.
42 Moreover, in the present case, the applicant appears to have aggravated the adverse consequences of a possible rejection of its offer since, according to its own assertions, it went ahead and rented premises for the performance of the project that is the subject‑matter of the contract even before the contract had been awarded.
43 It follows that the mere fact that the applicant’s tender for the contract at issue was not selected does not give rise to urgency justifying the granting of interim measures.
44 In any event, the judge hearing an application for interim relief may order suspension of the operation of an act, or other interim measures, only if it is established in particular that such an order is urgent in so far as, in order to avoid serious and irreparable harm to the applicant's interests, it must be made and produce its effects before a decision is reached in the main action (order of the President of the Court of Justice in Case C-110/97 R Netherlands v Council [1997] ECR I‑1795, paragraph 24).
45 Interim measures which would not serve to prevent the serious and irreparable harm feared by the applicant cannot a fortiori be necessary for that purpose. If the applicant does not have any interest in obtaining the interim measures sought, those measures cannot, therefore, satisfy the criterion of urgency (Order of the President of the Court of Justice in Case C-89/97 P(R) Moccia Irme v Commission [1997] ECR I‑2327, paragraph 44).
46 That is precisely the situation in the present case. The applicant claims that the harm it has pleaded results from the fact that it was not awarded the contract at issue. However, suspension of operation of the Eurofound decision awarding the contract, and other possible measures to stop the operation of that decision, would in no way have the effect of awarding the contract at issue to the applicant, not even provisionally. Consequently, even if an order for interim measures were made, the harm which the applicant pleads would not be avoided.
47 Under the circumstances, the condition relating to urgency is not satisfied in the present case and, consequently, the present action has to be dismissed without there being any need to examine whether the other conditions for granting interim measures have been satisfied.
On those grounds,
THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES
hereby orders:
1. The application for interim relief is dismissed.
2. The costs are reserved.
Luxembourg, 14 September 2007