JUDGMENT OF THE GENERAL COURT (Third Chamber)

11 June 2014 (*)

(Public service contracts — Tendering procedure — Provision of language-training services for staff of the institutions, bodies and agencies of the European Union in Brussels — Rejection of tenders submitted by the applicant — Principle of transparency – Non-discrimination — Equal treatment — Article 94 of the Financial Regulation — Selection criteria — Obligation to state reasons — Award criteria — Manifest error of assessment)

In Case T‑4/13,

Communicaid Group Ltd, established in London (United Kingdom), represented by C. Brennan, Solicitor, F. Randolph QC, and M. Gray, Barrister,

applicant,

v

European Commission, represented by S. Delaude and S. Lejeune, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers,

defendant,

APPLICATION for the annulment, in whole or in part, of the decisions by which the Commission refused to rank Communicaid Group Ltd in first place for Lots 1, 2, 4 and 7 to 9 of the Call for Tenders HR/R3/PR/2012/002 relating to framework agreements for the provision of language training for staff of the institutions, bodies and agencies of the European Union in Brussels (Belgium),

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 8 January 2014,

gives the following

Judgment

 Background to the dispute

1        The applicant, Communicaid Group Ltd, is a company incorporated under English law which provided language course services to several institutions, bodies and agencies of the European Union (provision of language trainers and materials) from 2008 onwards on the basis of successive framework contracts, the last of which came to an end in July 2013.

2        By a contract notice published in the Supplement to the Official Journal of the European Union on 6 March 2012 (OJ 2012 S S45), the European Commission launched a call for tenders (HR/R3/PR/2012/002) concerning the conclusion of framework contracts for the provision of language training for staff of the institutions, bodies and agencies of the European Union in Brussels (Belgium). The contract at issue was divided into a number of lots, and each tenderer could submit a tender for one or more lots. Lots 1 to 9 related to the provision of training services for one or more specific languages, whilst Lot 10 concerned the provision of on-line language courses (e-learning). The contract notice provided that, for each lot, a successive multiple framework contract would be entered into with up to three companies or groupings for a maximum term of four years.

3        The contract at issue was subject to the restricted procedure and was to be awarded on the basis of the most economically advantageous tender, assessed according to the criteria stated in the specifications. However, in order to be invited to tender, potential tenderers had to satisfy inter alia the necessary requirements as to proof of economic and financial capacity, in accordance with the contract notice and with Article 136(2) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1) (‘the Implementing Rules’), failing which they would be excluded from the tendering procedure.

4        By letter of 30 May 2012 (‘the decision of 30 May 2012’), the applicant was invited to tender for Lots 1, 2, 4, 5 and 7 to 10.

5        By an application lodged at the Registry of the General Court on 12 July 2012 and registered as T‑318/12, the applicant sought annulment of the decision of 30 May 2012 insofar as the Commission had not authorised it to submit a tender for Lot 3 of the call for tenders at issue. By order of 27 September 2012, the Court dismissed that action.

6        The applicant then submitted separate tenders for each of the lots in respect of which it had been invited to submit a tender, with the exception of Lot 10. On 30 October 2012, the Commission sent to the applicant, by separate letters, six decisions indicating that, as regards Lots 1, 2, 4, 7, 8 and 9, the applicant’s tenders had been ranked in second place (‘the contested decisions’), and a decision indicating that it had been awarded Lot 5.

7        Following receipt of the contested decisions, the applicant requested from the Commission, first, information on the characteristics and relative advantages of the successful tenders and on the assessment of its own tenders and, secondly, a fully detailed breakdown of the successful tenderer’s pricing responses. Further, it informed the Commission that one of the seconded national experts who had been employed by the Commission in its Directorate-General (DG) for human resources (‘Commission unit B.3’) in the months prior to publication of the contract notice at issue and who had sat on a tender evaluation committee in a similar award procedure was now employed by the successful tenderer, and had played a role in the preparation of the latter’s tenders. The applicant also called into question the economic and financial capacity of the successful tenderer to perform the contract at issue. Lastly, having regard to the evaluation methodology and the scoring matrices prepared by the tender evaluation committee (‘the evaluation committee’), the applicant claimed that the contested decisions were vitiated by a number of manifest errors of assessment under each of the criteria which had served as the basis of the quality evaluation of the submitted tenders.

 Procedure

8        By application lodged at the Court Registry on 9 January 2013, the applicant brought the present action.

9        By a separate document, lodged at the Court Registry on 10 January 2013, the applicant brought an application for interim measures, under Article 278 TFEU and Article 104 et seq. of the Rules of Procedure of the General Court, seeking, first, suspension of the operation of the contested decisions until the Court had ruled on the main action, and secondly, that the Commission be prohibited from entering into contracts with the successful tenderer in relation to Lots 1, 2, 4, 7, 8 and 9, or from carrying out those contracts if they had already been entered into. The Commission submitted its written observations on the application for interim measures on 1 February 2013. By order of 11 March 2013, the President of the Court dismissed the application for interim measures.

10      Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber and the present case was therefore also assigned to that Chamber.

 Forms of order sought by the parties

11      The applicant claims that the Court should:

–        annul the contested decisions in their entirety or insofar as the successful tenderer was ranked in first place;

–        order the Commission to pay the costs.

12      The Commission contends that the Court should:

–        declare the action inadmissible insofar as it concerns Lot 3;

–        dismiss the action;

–        order the applicant to pay the costs.

13      At the hearing, the applicant clarified its claims for annulment, extending them to the decision of 30 May 2012.

 Law

1.     Admissibility of the claims relating to Lot 3

14      The Commission, while not formally raising a plea of inadmissibility, submits that the application is manifestly inadmissible insofar as it concerns Lot 3. It asserts that, as regards that lot, the applicant was informed by a letter of 30 May 2012 that it had not been selected for the purpose of submitting a tender. It therefore submits that the application is manifestly inadmissible as it was brought after the two-month period laid down in Article 263 TFEU had expired.

15      The applicant claims that the reference to Lot 3 it is a typographical error and that its application must, in fact, be regarded as being directed against the decision of 30 October 2012 placing its tender in second place as regards Lot 4.

16      It can be seen from pages 1 and 3 of the application that the applicant requests the annulment of the Commission decision of 30 October 2012 relating to Lots 1 to 3 and 7 to 9 of the call for tenders at issue. However, it is expressly stated in paragraphs 7 and 15 of the application that the applicant was not authorised to submit a tender for Lot 3, but that it did submit a tender for Lot 4. Moreover, numerous other paragraphs of the application, such as paragraphs 7, 22, 23, 104 and 105, refer, not to Lot 3, but to Lot 4. Lastly, it was mentioned in paragraph 5 above that the applicant had already brought an action against the decision of 30 May 2012 whereby the Commission had not authorised it to submit a tender for Lot 3 of the call for tenders at issue and that its action was dismissed by an order of the Court of 27 September 2012.

17      It follows from all of the foregoing that the reference, in pages 1 and 3 of the application, to Lot 3 of the contract at issue is a typographical error and that the application must be regarded as concerning the Commission’s decision of 30 October 2012 relating to Lots 1, 2, 4, 7, 8 and 9 of the call for tenders at issue. Lot 3 therefore does not form part of the subject-matter of the present proceedings. It follows that the Commission’s claim that the application is inadmissible insofar as it concerns Lot 3 is unfounded.

2.     Substance

18      In support of its action, the applicant raises, in essence, three pleas in law, alleging, first, infringement of the obligation to state reasons, secondly, infringement of the principles of transparency, non-discrimination and equal treatment and of Article 94 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and, thirdly, manifest errors of assessment during the evaluation of the tenderer’s applications and tenders.

 The first plea in law, alleging infringement of the obligation to state reasons

19      The applicant claims that the letters and documents provided by the Commission after awarding the contract, and in particular the tender evaluation report, did not enable it to understand the reasons why it had been ranked in second place for Lots 1, 2, 4, 7, 8 and 9. Furthermore, the applicant claims that the Commission erred in refusing to provide it with the documents which the successful tenderer had produced in order to establish its economic and financial capacity. The applicant submits that those documents feature amongst those which must be notified to the tenderer who makes a request under Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules. The applicant therefore concludes that the Commission failed to fulfil its obligation to state reasons.

20      The Commission disputes the applicant’s arguments.

21      It must be noted that, in accordance with the obligation to state reasons laid down in Article 296 TFEU, the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (see judgments of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 48 and the case-law cited, and of 9 September 2010 in Case T‑63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 112).

22      Article 100(2) of the Financial Regulation requires the administration to provide additional reasoning to tenderers who have presented an admissible tender and who make an express request in that regard (see, by analogy, Case T‑19/95 Adia interim v Commission [1996] ECR II‑321, paragraph 31, and Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 54). Thus, it is clear from that provision and from Article 149 of the Implementing Rules that the Commission fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received (see judgment of 6 May 2013 in Case T‑288/11 Kieffer Omnitec v Commission, not published in the ECR, paragraph 79 and the case-law cited).

23      Moreover, the requirement to state reasons must be assessed in the light of 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 (Kieffer Omnitec v Commission, paragraph 81).

24      It is also apparent from the case-law that the Commission cannot be required to communicate to an unsuccessful tenderer, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see judgment of 4 October 2012 in Case C‑629/11 P Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 21 and the case-law cited).

25      The applicant’s arguments must be examined in the light of those considerations.

26      In the contested decisions, the Commission informed the applicant that it had been ranked in second place for each of the lots at issue. It also indicated the calculation formula used and, for each lot, the name of the tenderer ranked in first place and the points awarded to each tenderer. Lastly, it informed the applicant that it could request additional information.

27      Consequently, by several letters of 30 October and 5, 6 and 23 November 2012, the applicant requested information from the Commission on the characteristics and relative advantages of the successful tenders, on the assessment of its own tenders and on the technical assessment. By letter of 14 November 2012, the Commission sent the applicant several documents indicating, inter alia, the evaluation method applied by the evaluation committee and explaining the reasons that the applicant’s offer had been ranked in second place as regards the lots at issue. Moreover, by a letter of 6 December 2012, the Commission provided additional information regarding the reasons that the successful tenderer had obtained higher marks than the applicant for each criterion.

28      Consequently, in order to determine whether the Commission satisfied its obligation to state reasons, the Court must examine, in addition to the contested decisions, the letter of 14 November 2012. Furthermore, it must be noted that, according to the case-law, if the institution or agency concerned sends a letter in response to a request for additional explanations concerning a decision, before the initiation of proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 73 and case-law cited). Accordingly, in order to assess the obligation to state reasons, it is also necessary to take into account the Commission’s letter of 6 December 2012.

29      In that respect, the applicant claims that the explanations provided by the Commission did not enable it to understand why its tenders had been ranked in second place as regards the lots at issue.

30      In the present case, it must be noted that the Commission’s letter of 14 November 2012 was accompanied by a document explaining the evaluation method applied by the evaluation committee to evaluate the tenders on the basis of the technical and financial award criteria, a full copy of the evaluation report concerning the applicant’s tenders and those of the successful tenderer in respect of each lot, detailed information on the technical evaluation carried out in respect of each lot and on the applicant’s financial offer and the total price of the other tenders. It must be pointed out that the evaluation report included, for each of the lots at issue, tables indicating the evaluation criteria and sub-criteria, the points obtained by the applicant and by the successful tenderer, the maximum score and the evaluation committee’s comments regarding the tender of each of the two candidates.

31      The applicant claims that the information provided to it was insufficient and asserts, inter alia, that the evaluation committee’s comments were too vague and that the information provided concerning the evaluation of its tender and of the successful tender was insufficient.

32      As regards the first criterion, consisting in the ‘presentation of the three courses which the contractor considers to be the most representative of its current catalogue’, and in the context of the evaluation of the first sub-criterion, relating to the relevance of the courses selected, the applicant claims that the evaluation committee referred to several examples in the comments concerning its tender, whereas it did not provide any explanation for its assessment of the successful tender. In that regard, it must be pointed out that the evaluation committee awarded a score of 4.5 out of 5 to the successful tenderer and considered that the courses selected were very relevant, taken from a very varied catalogue, very rich and innovative. It added that the chapters were very clear and well-structured, the training was varied and the presentation of different education schemes was tailored to the specific environment of the institutions, bodies and agencies of the European Union. That statement of reasons, which indicated numerous positive aspects of the successful tender, without indicating any negative aspects, was sufficient to enable the applicant to understand the difference in the scores awarded to the two tenders, whereas, moreover, the evaluation committee’s comments relating to the applicant’s tender indicated the negative aspects of that tender.

33      As regards the second sub-criterion, relating to the quality of the proposed courses, the applicant claims that the evaluation committee’s comments were not supported by a sufficiently clear statement of reasons. It criticises the evaluation committee for referring to certain negative aspects ‘entre autres’ (inter alia) without indicating what other aspects of its tender were insufficient. However, it must be pointed out that the comments relating to that sub-criterion are particularly extensive and set out in a precise manner the negative aspects of the applicant’s offer. Thus, the evaluation committee pointed out, in particular, that the courses did not did not cover pronunciation practice completely, that there was no systematic reference to the Common European Framework of Reference for Languages (‘the CEFR’) and that the cultural dimension was not evident. The evaluation committee subsequently assessed the other aspects relating to the assessment of that sub-criterion, such as the organisation of classes and of course modules and the teaching materials and resources, specifying, for each aspect, whether the applicant’s tender met the requirements of Annex I to the call for tenders HR/R3/PR/2012/002, entitled ‘Specifications of lots 1 to 10’ (‘the tendering specifications’). The applicant also criticises the evaluation committee for stating that, as regards all of the three courses which the applicant proposed in the context of the first criterion, the applicant’s tender contained ‘little explanation of the techniques used and the teaching methodologies’. The applicant argues that that comment has no explanatory value as regards the courses proposed since each of them has different teaching methodologies and techniques adapted to the context of the course concerned. However, that comment was sufficient to enable the applicant to understand that, in each of the courses proposed, the teaching methodologies underlying the organisation of the courses and the techniques used by the teachers to facilitate learning were not, in the evaluation committee’s view, sufficiently developed.

34      Moreover, the applicant claims that the reasons that the successful tenderer obtained a higher score for Lot 8 than it did for the other lots is not clear from the evaluation committee’s comments. However, as the applicant itself points out, it can be seen from those comments that the committee praised the successful tender as regards Lot 8 specifically for the ‘particular relevance of the Turkish language course for translators’. Thus, the fact that the successful tenderer was awarded an additional half-point is sufficiently justified. In that respect, it must be noted that even if that evaluation relates more to the first rather than the second sub-criterion, it has no effect on the overall score awarded to the successful tenderer for the first criterion. It follows from the foregoing that the reasons stated in the evaluation committee’s comments concerning the second sub-criterion enabled the applicant to understand why its tender had obtained a lower score than that of the successful tenderer.

35      As regards the third sub-criterion, relating to the quality of the teaching materials, the applicant claims, first, that the difference between the scores awarded to its tender for Lot 8 and for Lots 2 and 4 cannot be understood from the evaluation committee’s comments. The applicant therefore takes the view that Lot 8 was downgraded. However, it can be seen from the evaluation committee’s comments that it considered, as regards Lots 2 and 4, that the teaching materials proposed by the applicant were of good formal quality, whereas it found, as regards Lot 8, that the materials in question were only of quite good formal quality. The evaluation committee therefore indicated that the teaching materials for Lot 8 were of slightly lower quality than those for Lots 2 and 4, thus justifying the scores awarded.

36      The applicant claims, secondly, that, as regards Lot 8, the evaluation committee’s criticisms of the successful tender did not give rise to a commensurate reduction of points, with the result that the successful tenderer obtained an additional half-point as regards that lot. It is undisputed that the evaluation committee noted that the successful tenderer’s teaching materials sometimes lacked instructions and explanations. However, the committee also praised the high quality of the successful tenderer’s teaching materials and found that the proposed textbooks were very good. As regards the applicant’s tender in respect of Lot 8, the committee found that the materials in question were only of quite good quality. Therefore, it has not been established that, in awarding an additional half point to the successful tenderer for that lot, the evaluation committee did not justify its scores sufficiently.

37      As regards the second criterion, relating to the courses tailor-made for the institutions, bodies and agencies of the European Union and, more specifically, the first sub-criterion, relating to the quality of the analysis of the request, the applicant claims that it was awarded a lower score that that of the successful tenderer even though the evaluation committee found that its tender performed well in the key area of that criterion, namely taking into account the specific requirements of target groups. It adds that the committee’s comments are vague and do not allow the difference between the scores awarded to the two tenderers to be understood.

38      In that respect, it must be pointed out that it can be seen from those comments that only the taking into account of the specific nature of target groups was carried out in a satisfactory manner by the applicant, whereas the tender specifications emphasised other factors in the evaluation of the first sub-criterion, such as the quality of the analysis of the request, the tenderer’s ability to meet a specific request and the taking into account of the training context. The comments on the successful tender emphasise the fact that it had taken into account in a satisfactory manner all the factors constituting that sub-criterion. Accordingly, contrary to the applicant’s allegations, a comparative reading of the evaluation committee’s comments makes it possible to understand the reasons for which the successful tenderer was awarded a higher mark than the applicant for that sub-criterion.

39      As regards the second sub-criterion, relating to the syllabus of the proposed courses, the applicant claims that the evaluation committee praised the successful tenderer for the realism of its proposals, without providing any example to illustrate that assessment. However, it can be seen from the evaluation committee’s comments that it noted that the section of the successful tender relating to the syllabus of the proposed courses was very realistic and stated, in that respect, that the tender envisaged using two teachers to ensure a more dynamic approach, that it described the means put in place to achieve the set objectives, that it referred systematically to the CEFR and that it covered all the language skills. Accordingly, by that comment, the evaluation committee sufficiently justified the higher score awarded to the successful tenderer for that sub-criterion.

40      As regards, lastly, the final criterion, relating to the proposed quality plan, and, more specifically, the sub-criterion relating to the ‘procedure for handling, resolving and remedying any complaints’, the applicant takes the view that the reasons stated by the evaluation committee are insufficient since they do not make it possible to understand why the same score was awarded to its tender and to the successful tender.

41      It is clear from the comments made regarding the applicant’s tender that the evaluation committee considered that the ‘proposed detailed procedure for handling, resolving and remedying complaints was very good, specific and realistic’. Similarly, the evaluation committee considered that the successful tenderer’s proposed quality plan was ‘very complete, specific and realistic’. Accordingly, that statement of reasons makes it possible to understand why the two tenders were awarded the same score for the sub-criterion referred to in paragraph 40 above. In that respect, the fact that the evaluation committee noted, as regards the successful tender, that ‘the period of five days for a yellow complaint seem[ed] a little too long’ does not mean that the score obtained by the successful tenderer was not supported by a sufficient statement of reasons.

42      It follows from all the foregoing that the applicant was perfectly capable of understanding the reasons for the rejection of its tender and to challenge them in the context of the present proceedings. Accordingly, it must be concluded that, contrary to what is claimed by the applicant, the Commission stated reasons to the requisite legal standard for its ranking of the applicant’s tender in second place as regards the lots at issue, thus fulfilling its obligation to state reasons, as interpreted by the case-law.

43      Moreover, that conclusion is not called into question by the fact that, by the abovementioned letter of 6 December 2012, the Commission refused to provide the applicant with the information proving the successful tenderer’s economic and financial capacity. The Financial Regulation and the Implementing Rules require only that the contracting authority communicate the characteristics and relative advantages of the tender selected, with the aim, inter alia, of allowing the interested parties to know the justifications for the measure taken in order to defend their rights. In the present case, the Court has found in paragraph 42 above that the information provided by the Commission had allowed the applicant to understand the reason for which its tender had been ranked in second position in respect of several lots. Moreover, neither the case-law nor, as has just been indicated, the legislation applicable in the present case requires that a contracting authority communicate the information provided by the successful tenderer in order to prove its economic and financial capacity to an unsuccessful tenderer which makes such a request.

44      Accordingly, the first plea in law is unfounded. It must therefore be rejected, without it being necessary to rule on either the Commission’s assertion that the applicant’s arguments relating to the successful tenderer’s economic and financial capacity are inadmissible since they should have been made against the decision of 30 May 2012 authorising the successful tenderer to submit a tender for the lots at issue (see, to that effect, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 52) or on the applicant’s request, at the hearing, to clarify its claims for annulment.

 The second plea in law, alleging infringement of the principles of transparency, non-discrimination and equal treatment and of Article 94 of the Financial Regulation

45      The applicant states, first, that a seconded national expert who had worked in unit B.3 of the Commission until August 2011 (‘the former seconded national expert’) and who had, while working there, participated in preparatory discussions relating to the tendering procedure at issue had, shortly before his departure from the Commission, contacted the applicant with the objective of being recruited. That former seconded national expert had explained that he also intended to contact another candidate for the contract at issue and that he was in a position to procure that contract for whichever candidate would employ him. The applicant adds that the former seconded national expert was subsequently hired by the successful tenderer. Furthermore, it is apparent from the statements submitted by the applicant that, in 2012, it was again approached by the former seconded national expert, who was seeking employment. On that occasion, he let it be understood that he had enabled the successful tenderer to win the majority of the lots of the contract at issue as a result of the expertise and experience he had acquired during his secondment to unit B.3 of the Commission and in his capacity as a member of a evaluation committee during a previous tendering procedure launched by the Court of Auditors of the European Union concerning very similar language training services for the institutions of the European Union in Luxembourg (Luxembourg). The applicant therefore concludes that, by employing that former seconded national expert and by using, during the preparation of its tender, his knowledge and experience gained within the Commission, the successful tenderer obtained an unfair advantage and that, by deciding, despite that fact, to award the contract to the successful tenderer, the Commission infringed the principles of transparency, non-discrimination and equal treatment and breached Article 94 of the Financial Regulation.

46      The applicant claims, secondly, that, by carrying out an evaluation of the tenders in the light of award criteria which were not laid down in the tendering specifications, the Commission disregarded the principles of transparency and of equal treatment as between tenderers.

47      The Commission disputes those arguments.

48      In the first place, the applicant invokes an infringement of the principles of transparency, of equal treatment and of non-discrimination.

49      In that respect, it must be borne in mind that the principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or tendering specifications (see, to that effect, Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 144 and the case-law cited).

50      It must also be borne in mind that, according to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I‑8301, paragraph 55).

51      In the field of public procurement, the Commission is inter alia required to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers (see, to that effect, Case T‑345/12 Evropaïki Dynamiki v Commission, paragraph 141 and the case-law cited). Similarly, the principle of equal treatment means that tenderers must be on an equal footing both when they prepare their tenders and when those tenders are evaluated by the contracting authority (judgment of 17 February 2011 in Case C‑251/09 Commission v Cyprus, not published in the ECR, paragraph 39).

52      This means, more specifically, that the award criteria must be formulated, in the tender specifications or the contract notice, in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way and that, when the tenders are being evaluated, those criteria are to be applied in an objective and uniform manner to all tenderers (Commission v Cyprus, paragraph 40).

53      Moreover, it must be pointed out that, according to the case-law, the fact that a tenderer, even though he has no intention of doing so, is capable of influencing the conditions of a call for tenders in a manner favourable to himself constitutes a situation of a conflict of interests. In that regard, the conflict of interests constitutes a breach of the equal treatment of candidates and of equal opportunities for tenderers (Joined Cases C‑21/03 and C‑34/03 Fabricom [2005] ECR I‑1559, paragraphs 29 and 30, and Case T‑160/03 AFCon Management Consultants and Others v Commission [2005] ECR II‑981, paragraph 74).

54      First, the applicant claims that, by deciding to award the contract at issue to the successful tenderer even though one of that tenderer’s employees had worked as a seconded national expert at the B.3 unit of the Commission between September 2007 and the end of August 2011 and had been a member of an evaluation committee in a similar procurement procedure, the Commission infringed the principles of transparency, of equal treatment of candidates and of non-discrimination.

55      As regards the alleged infringement of the principle of transparency, it cannot be held that the Commission infringed the principle of transparency on the basis of the successful tenderer’s hiring of the former seconded national expert, since it has not been proved that the Commission was informed of that recruitment. Moreover, although, in its reply and at the hearing, the applicant claimed that the Commission should have been aware of that recruitment, it has not established how the Commission could have been aware of it. In addition, as the Commission points out, it is clear from the circumstances of the present case, as indicated by the applicant itself, that the applicant had been aware of the intentions of the former seconded national expert since June 2011, that is to say, before the preparation and, a fortiori, launch of the call for tenders at issue, with the result that it was in a position to inform the Commission in good time, but it failed to do so.

56      Furthermore, as regards the alleged infringement of the principles of equality of treatment and of non-discrimination, the applicant claims that the former seconded national expert participated in the preparation of the procurement procedure at issue and, more specifically, in drafting the tender specifications. In support of its claims, the applicant adduces statements of its employees. Thus, according to one of those statements, in July 2011, while he was still working at the Commission, the former seconded national expert stated before an employee of the applicant that he had participated in the preparation of the call for tenders at issue. However, another statement indicates that, at a dinner which took place on 13 November 2012, attended by several of the applicant’s employees and the former seconded national expert, the latter denied having participated in the preparation of that call for tenders. Those statements therefore contain contradictory information from which it cannot be concluded that the former seconded national expert participated in the preparation of the call for tenders at issue. Furthermore, it must be noted that although, as the applicant claims, the date at which that preparation of the call for tenders at issue began cannot be ascertained from the copy of the email produced by the Commission, it is nevertheless the case that nothing in the file makes it possible to state with certainty that the preparation of that call for tenders began before the former seconded national expert left the Commission in August 2011, and that he was thus able to take part in it. In that respect, it must be pointed out that the Commission denies that the former seconded national expert participated in the preparation of the call for tenders at issue. In those circumstances, there is no evidence in the file that the latter, before leaving the Commission and being hired by the successful tenderer, had himself drafted the call for tenders at issue or had participated in its drafting, thus giving his new employer an advantage over the applicant that was liable to infringe the principle of equal treatment and, consequently, the equality of opportunity between all the tenderers.

57      The applicant also argues that the successful tenderer enjoyed an unfair advantage because of the former seconded national expert’s participation in a previous call for tenders as a member of the evaluation committee.

58      In that respect, it must be pointed out that, according to the Commission, the applicant has not proved that the former seconded national expert participated in the drafting of the successful tenders for Lots 1 to 9. In order to prove that he did, the applicant has produced statements prepared by three of its employees, describing conversations they had with the former seconded national expert at the dinner on 13 November 2012 referred to in paragraph 56 above. However, it must be noted that those statements do not show conclusively that the former seconded national expert participated in the drafting of the successful tenders for Lots 1 to 9, since the impressions of the applicant’s employees as to whether that was the case have been expressly contradicted by the person concerned himself. In any event, even if those statements did prove such participation by the former seconded national expert, it must be noted that their probative value is weak since they were made by the applicant’s employees, who have a particular interest in the contract being awarded to the applicant.

59      In the present case, even supposing that the former seconded national expert did participate in the drafting of the successful tenders, it must be pointed out that the applicant, by the evidence which it has submitted, has proved neither the participation of the former seconded national expert in the preparation of the call for tenders at issue, nor the unfair advantage that the successful tenderer allegedly enjoyed because its new employee was a member of a tender evaluation committee in a previous, similar procurement procedure. Furthermore, as the Commission rightly points out, the applicant has provided language training services to the EU institutions since 2008 and collaborated with the Commission in the context of the contract previous to the call for tenders at issue, with the result that it had information on the needs and requirements of the European institutions, notwithstanding the fact that the contract previous to the call for tenders at issue, contrary to the present call for tenders, did not include blended learning.

60      It follows from all the foregoing that the applicant has not proved that the fact that one of the successful tenderer’s employees worked at the Commission as a seconded national expert gave it an unfair advantage in the procurement procedure at issue of such a kind as to infringe the principles of non-discrimination and of equal treatment. Nor, moreover, has the applicant proved the infringement of the principle of transparency.

61      Secondly, the applicant claims that the Commission infringed the principles of transparency and equal treatment in basing part of its assessment of the merits of the applicant’s tender on new selection criteria, which did not form part of the criteria listed in the tender specifications.

62      As regards the first criterion, consisting in the tenderers’ presentation of the three courses most representative of their catalogue, the applicant claims that, in the context of the first sub-criterion, relating to the relevance of the courses selected, the evaluation committee carried out an overall assessment of the catalogue, and did not confine its comments to the presentation of the three courses selected.

63      In that respect, it must be noted that the tender specifications indicated that the tenderers were required to attach to the technical tender form a catalogue or an equivalent document. The specifications stated that ‘an equivalent document’ was to be understood as meaning a full list of the language courses available to the general public, or a full print-out, with the date, of the online catalogue, indicating its internet address.

64      It must be pointed out that, since the tender specifications required the production of the tenderers’ catalogues, the evaluation committee cannot be criticised for having consulted them. Moreover, although the applicant claims that the relevance of the courses selected had to be assessed in view of the requirements of the institutions, bodies and agencies of the European Union and not of the tenderers’ catalogues, the tender specifications stated that the relevance would be assessed ‘in particular’ in view of the requirements of the institutions, bodies and agencies of the European Union; that statement was therefore not exhaustive. Furthermore, contrary to what is claimed by the applicant, the tender specifications called on the evaluation committee to ensure that the selected courses were indeed the most representative of the tenderers’ catalogues, since those courses had to ‘reflect what the contractor [undertook] to provide to the institutions, bodies and agencies of the European Union if awarded the contract’. The evaluation committee therefore had to ensure that those courses fulfilled that tender specification, reiterated in the tender evaluation methodology. In addition, such an interpretation of that first criterion is not contradicted by the Commission’s reply to one of the questions put to it by the applicant before submitting its tender, according to which ‘the [institutions, bodies and agencies of the European Union] leave to the discretion of the [t]enderer to consider the courses to be the most representative of its current catalogue’. In those circumstances, the applicant has not proved that by referring to its catalogue in order to assess the relevance of the selected courses, the evaluation committee evaluated its tender in respect of a criterion which was not set out in the tender specifications.

65      As regards the second sub-criterion, relating to the quality of the selected courses, the applicant claims, first of all, that the tender specifications do not require systematic reference to the CEFR. However, it is clear from the footnote section 9.1(1), entitled ‘For lots 1 to 9’, of the specifications that the presentation of what the tenderer considered to be the three courses most representative of its catalogue was required to take into account, inter alia, the CEFR. Moreover, section 2.2.1 of the tender specifications, entitled ‘Taking account of the Common European Framework of Reference for Languages’, indicates that the framework in question ensures a correspondence between the levels of the different languages taught, that it is the main reference and that it must be quoted in respect of all the services to be provided, in particular the course descriptions, the carrying out or adaption of various tests, course content and teaching materials. In that regard, the applicant cannot successfully claim that the tender evaluation criteria were exhaustively listed in section 9 of the tender specifications, since section 8 of the invitation to tender, entitled ‘Award criteria’, indicated that the lots would be awarded on the basis, inter alia, of the quality of the services offered, assessed in the light of the requirements and the details set out in the tender specifications as a whole. Accordingly, the evaluation committee could rely on sections 1 and 2 of those specifications, which highlighted various fundamental aspects of the contract that the tenderers had to take into account in their tenders. In those circumstances, the applicant has not proved that the evaluation committee relied on a criterion which had not been announced in advance in criticising the applicant for failing to refer systematically to the CEFR in the presentation of the three courses selected.

66      The applicant then claims that the tender specifications do not require that the proposed courses cover the core language skills of reading, writing, listening and speaking. However, it is mentioned in part 1 of section 9.1, entitled ‘For lots 1 to 9’, of the tender specifications that the quality of the selected courses would be assessed, inter alia, in view of the objectives pursued, among which language and/or professional skills are expressly mentioned. Accordingly, in ensuring that the courses proposed covered the core language skills of reading, writing, listening and speaking, the evaluation committee did not rely on a new criterion.

67      The applicant also claims that the tender specifications did not require the tenderers to cover pronunciation practice. In that respect, it must be pointed out that it is indicated in paragraph 66 above that the tender specifications referred to language skills, including oral skills, and pronunciation forms part of the latter. The applicant argues that there are numerous language skills and that the Commission could not, without so indicating in the specifications, select some of those skills and penalise the tenderers which had not emphasised the teaching of those skills in their tenders. However, as the Commission rightly points out, pronunciation — like vocabulary, spelling and grammar — is one of the key language skills to be acquired in the study of a foreign language, with the result that the applicant cannot validly claim that the evaluation committee randomly chose certain sub-criteria from the multitude of existing language skills. In those circumstances, it follows from the foregoing that ‘pronunciation practice’ cannot be regarded as a criterion not set out in the tender specifications.

68      In addition, the applicant claims that the criterion relating to the cultural dimension was not among the criteria set out in the tender specifications.

69      It can be seen from the qualitative assessment of the tenders that the evaluation committee used the cultural dimension not as an evaluation criterion in the strict meaning of the term, but rather as a factor used to ensure that the courses proposed met the objectives mentioned in the tender specifications, with the result that the applicant’s argument is irrelevant. Moreover, even supposing that the cultural dimension could be regarded as an evaluation criterion or sub-criterion, it is undisputed that the present call for tenders is addressed to specialists in the area of language training. Such specialists could not be unaware that the cultural dimension is inherent to any sort of language training, with the result that those tenderers who were reasonably well-informed and normally diligent were capable of interpreting the criterion relating to objectives as entailing that requirement. Lastly, and above all, it can be seen from the evaluation committee’s comments concerning the applicant’s tender and those concerning the successful tenderer’s tender that that requirement was taken into account uniformly and objectively in respect of the two tenderers.

70      Lastly, the applicant alleges, as regards the fourth sub-criterion, relating to the quality of the teaching materials, that the evaluation committee praised the fact that the successful tenderer’s teaching materials were its own even though no such factor was set out in the tender specifications. However, it is clear from the evaluation committee’s comments that it merely described the teaching materials proposed by the successful tenderer and, in that connection, noted that its teaching materials were its own. In doing so, the Committee did not introduce a new criterion but merely stated the reasons that the successful tenderer’s teaching materials were, in its view, of good quality.

71      As regards the second criterion, relating to the courses tailor-made for the institutions, bodies and agencies of the European Union, and more specifically the second sub-criterion, relating to the syllabus of the proposed course, the applicant claims that there is an inconsistency between the evaluation criteria set out in the specifications and those adopted in the evaluation methodology. However, it can be seen from the latter document that, first, it reiterates, in an identical manner, the criteria and sub-criteria as set out in the specifications. Secondly, that document provides the evaluation committee with information enabling it to evaluate those criteria more effectively and to ensure that all the tenders are evaluated in the same conditions. Therefore no inconsistency can be found between the tender specifications and the evaluation methodology.

72      The applicant then claims that the systematic reference to the CEFR is not an evaluation criterion in the tender specifications, with the result that the evaluation committee erred in taking it into account in assessing the applicant’s tender. However, as noted in paragraph 65 above, the tender specifications indicated that the tenders had to refer systematically to the CEFR. That argument must therefore be rejected.

73      As regards the third sub-criterion, relating to the proposed methodology, the applicant claims that the evaluation committee erred in praising the successful tenderer for its ‘attempt to recreate face-to-face contact in a virtual environment’ whereas that factor was not one of the evaluation criteria. However, it must be pointed out that, on the contrary, that factor formed part of the evaluation of ‘the balance between theory and practice for face-to-face and distance courses’ referred to in the tender specifications.

74      As regards the fourth sub-criterion, relating to the added value offered, the applicant claims that the evaluation committee evaluated its tender on the basis of a criterion which was not set out in the tender specifications, namely ‘anticipation of future issues’.

75      In that respect, it must be indicated, first, that the evaluation committee’s comment, as it is worded, cannot be regarded as a new criterion, but rather reflects the lack of innovation in the applicant’s tender, a criticism which had already been made as regards the third sub-criterion, relating to the proposed methodology. The need for the tenderers to make innovative proposals, particularly in the context of the second sub-criterion, is clear from the tender specifications and, inter alia, from section 4.5, entitled ‘design, development and adaptation of teaching products’, in which the tenderers were asked to be able ‘to offer or support innovative teaching projects’. Moreover, it must be noted that the evaluation methodology invited the evaluation committee to evaluate the sub-criterion relating to the added value by taking into consideration, inter alia, the candidates’ anticipation of future issues, with the result that that factor was applied in a uniform and objective manner to the two tenderers.

76      The applicant also claims that the successful tenderer was praised for protecting personal data and respecting equal opportunities whereas those factors did not form part of the evaluation criteria announced in advance. However in the context of the sub-criterion relating to the added value, it was for the tenderers to submit all of the information likely to show an added value in their proposals relating to the blended learning courses. Therefore, contrary to what is claimed by the applicant, the evaluation committee did not evaluate the successful tender in the light of a new criterion, but rather referred to information put forward by the successful tenderer to demonstrate the added value of its tender, namely the protection of personal data and respect for equal opportunities.

77      Lastly, as regards the third criterion relating to whiteboards, the applicant submits that the scoring rules set out in the evaluation methodology differ from those in the tender specifications and that, as a result, its tender was evaluated, as regards that criterion, on the basis of a new criterion. However, as the Commission rightly points out, it was already indicated in section 9.1 of the tender specifications that tenders which did not obtain at least 70% of the points for each of the four criteria would be eliminated and therefore would not be taken into account in the subsequent financial analysis. That rule is not contrary to that contained in the tender evaluation methodology according to which 70% of the points for each of the two factors evaluated in the context of that criterion are acquired when the tender meets the baseline requirements set out in the tender specifications, with any development, additional information or improvement in respect of the minimum requirements set out in the tender specifications and the annexes thereto entailing an added value for the institutions, bodies and agencies of the European Union being valued. The rule contained in the tender specifications means that, in order to obtain 70% of the points and not be excluded from the procedure, a tender must meet the minimum requirements set out in those specifications, since otherwise the institutions would retain in the procedure a tenderer whose tender does not meet the minimum requirements. In those circumstances, any tender offering more than that minimum was awarded additional points, with the result that the evaluation committee cannot be criticised in that respect.

78      It follows from the foregoing that, contrary to what is claimed by the applicant, the evaluation committee assessed the merits of its tender in view only of the criteria set out in the tender specifications and, accordingly, did not infringe the principle of transparency or that of equal treatment.

79      In the second place, the applicant invokes the breach of Article 94(a) of the Financial Regulation.

80      According to that article, contracts may not be awarded to candidates or tenderers who, during the procurement procedure, are subject to a conflict of interests. Under Article 52(2) of the Financial Regulation, there is a conflict of interests where the impartial and objective exercise of the functions of a player in the implementation of the budget or an internal auditor is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other shared interest with the beneficiary.

81      The applicant submits that the relationship between the Commission and the successful tenderer because of the nature of the positions successively held by the former seconded national expert suggests that the Commission showed bias or partiality in the evaluation of the tenders or in awarding the contract. It adds that, at the very least, there was a manifest conflict of interests between the former seconded national expert and the successful tenderer, within the meaning of the guidelines of the Organisation for Economic Cooperation and Development (OECD) for managing conflict of interest in the public service.

82      As a preliminary, it must be pointed out that, as the Commission rightly mentioned, it is not bound by the OECD guidelines for managing conflict of interest in the public service. Moreover, the applicant has not adduced any evidence of a shared interest within the meaning of Article 52(2) of the Financial Regulation. In that respect, as was indicated in paragraphs 56 and 58 above, there is no evidence in the file that the former seconded national expert participated in the preparation of the call for tenders at issue and contributed to the drafting of the successful tenders. Accordingly, the mere fact that a former seconded national expert at the Commission was hired by a company which was subsequently awarded several lots following a call for tenders launched by that institution is not sufficient, by itself, to show the existence of a conflict of interests, since none of the conditions laid down in Article 52(2) of the Financial Regulation is met.

83      The foregoing conclusions are not invalidated by the applicant’s other arguments.

84      First, the applicant claims that Article 47 of the Charter of Fundamental Rights of the European Union, which guarantees the right to an effective remedy and the right to a fair trial, was infringed. The Commission contends that, under Article 44 of the Rules of Procedure, that complaint is inadmissible because of its lack of clarity and consistency. In its reply, the applicant states that the reference to Article 47 of that charter must be understood as a reference by analogy and adds that Article 41 of the same text has also been infringed.

85      The reference to Article 47 of the Charter of Fundamental Rights is irrelevant in the present case since that article applies only to judicial proceedings. As regards the alleged infringement of Article 41 of that charter, and assuming that such a complaint can be considered as an amplification of a plea previously made, either expressly or by implication, and that it is closely linked to it (Case T‑345/05 Mote v Parliament [2008] ECR II‑2849, paragraph 85), it must be rejected, since the applicant has not proved that the Commission did not treat its case impartially, fairly and within a reasonable time.

86      Secondly, the applicant submits that the EU institutions must respect the general principles of EU law, which include the principles of non-discrimination and of transparency, codified in the Financial Regulation and in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), which reiterates the general rule that the award of contracts must be carried out on the basis of objective criteria. The applicant argues that the approach adopted by the contracting authority and the exercise of its discretion are compatible with the aforementioned principles only if the contracting authority identifies the tender offering the best value for money on the basis of objective criteria and therefore does not operate on the basis of arbitrary choices.

87      However, the applicant has not proved that the contracting party’s choice regarding the lots at issue was made in an arbitrary manner and not on the basis of objective criteria. Furthermore, as indicated in paragraphs 60 and 78 above, the applicant has not produced any evidence that the principles of equal treatment, of non-discrimination and of transparency were infringed in the present case. That argument must therefore be rejected.

88      Thirdly, the reference in the application to certain decisions of the European Ombudsman is, in any event, irrelevant in the present case as, moreover, the applicant essentially acknowledges in its reply, since those decisions relate to established or apparent conflicts of interests. As indicated in paragraph 82, that was not so in the present case.

89      Fourthly, the applicant invokes, by analogy, section 2(3)(6) of the Practical guide to contract procedures for EU external actions, which provides that any firm or expert involved in preparing a project must, as a rule, be excluded from the award of a contract based on those preparations, unless they can prove to the contracting authority that their initial involvement does not constitute unfair competition.

90      As indicated in paragraph 56 above, the applicant had not established the participation of the former seconded national expert in the preparation of the call for tenders at issue. Accordingly, and in any event, that argument must be rejected.

91      Fifthly, the applicant relies on Article 7(3) of Commission Decision C(2008) 6866 of 12 November 2008 laying down rules on the secondment to the Commission of national experts and national experts in professional training, which provides that, at the end of their secondment, the seconded national experts continue to have a duty of loyalty to the Union. As the Commission rightly points out, it cannot be criticised for the former seconded national expert’s beach of that duty of loyalty. Moreover, although the applicant claims, in the reply, that the Commission should have drawn the inferences from that breach of the duty of loyalty in the context of the evaluation of the tenders, it follows from the foregoing, and from the statements of the parties at the hearing, that it has not been proved that the Commission knew of the hiring, by one of the candidates for the contract at issue, of one of its former seconded national experts and, furthermore, that the Commission’s attitude did not infringe the principle of transparency, the principle of equal treatment, or Article 94 of the Financial Regulation.

92      It follows from all the foregoing considerations that the second plea in law must be rejected in its entirety.

 The third plea in law, alleging manifest errors of assessment in the evaluation of the tenderers’ applications and tenders

93      This plea in law consists, essentially, of two parts, alleging, first, a manifest error committed by the Commission in the examination of the successful tenderer’s economic and financial capacity and, secondly, manifest errors committed by the evaluation committee in the appraisal of each of the four evaluation criteria and each of the sub-criteria.

94      The Commission contests those arguments.

95      As a preliminary, it should be recalled that the Commission has a 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, and that review by the Court must be 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 Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 47 and the case-law cited).

96      The contracting authorities are granted such a broad discretion throughout the tendering procedure, including in relation to the choice and evaluation of the selection criteria (judgment of 24 April 2012 in Case T‑554/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 38).

 The first branch, alleging a manifest error committed by the Commission in the examination of the successful tenderer’s economic and financial capacity

97      The applicant claims that the Commission did not have sufficient evidence to form the view that the successful tenderer satisfied the economic and technical requirements laid down in point III.2.2 of the contract notice. It adds that the Commission was required to seek additional information from the successful tenderer and that, in failing to do so, it committed a manifest error of assessment.

98      In that respect, it should first be noted that Article 136 of the Implementing Rules provides as follows:

‘1. Proof of economic and financial capacity may be furnished by one or more of the following documents:

(a) appropriate statements from banks or evidence of professional risk indemnity insurance;

(b) the presentation of balance sheets or extracts from balance sheets for at least the last two years for which accounts have been closed, where publication of the balance sheet is required under the company law of the country in which the economic operator is established …’

99      Furthermore, section III.2.2 of the contract notice, entitled ‘Economic and financial ability’ provides as follows:

‘Information and formalities necessary for evaluating if the requirements are met: the candidate must provide proof of his economic and financial capacity.

Candidates who fail to provide the documents indicated or who, based on the documents provided, are deemed as not satisfying the criteria mentioned below, may be excluded.

The candidate must provide the following documents …:

–        a copy of official balance sheets or extracts from balance sheets and profit and loss accounts for the past three financial years for which accounts have been closed showing the annual pre-tax profit …

If the balance sheets or other statements show an average loss over the past three financial years for which accounts have been closed, then the candidate must furnish another document as proof of his financial and economic capacity, such as appropriate bank references or proof of professional risk insurance cover …’

100    In the present case, it can be seen from the file that, in order to prove its economic and financial capacity, the successful tenderer provided a copy of the balance sheets for the past three financial years for which accounts had been closed, namely 2008, 2009 and 2010. Since those balance sheets showed an average loss, the successful tenderer, as required by section III.2.2 of the contract notice, provided other documents as proof of its economic and financial capacity, namely two bank references, a reference from its insurer and a letter of support from its founder, the Université catholique de Louvain (UCL) with which it is associated and which controls its board of management. In the letter accompanying those documents, the successful tenderer explained that, for the first time since 1993, the 2009 and 2010 financial years ended in a loss due, inter alia, to the loss of almost all of a contract. The successful tenderer added that, nevertheless, its financial soundness was not altered by those results, since, despite those results, it had at its disposal EUR 1 881 327 of profits brought forward. Lastly, the successful tenderer informed the Commission that estimations for the 2011 financial year, for which accounts were being closed, and the forecast for the 2012 financial year, suggested a balanced result for those financial years.

101    The applicant claims that those documents were not sufficient to prove the successful tenderer’s economic and financial capacity and concludes that by accepting the latter’s application to submit tenders the Commission committed a manifest error of assessment. In support of those arguments, the applicant relies on an analysis which it carried out on the successful tenderer’s accounts for 2006 to 2011 as notified to the Belgian and Luxembourgish authorities. According to the applicant, it can be seen from that analysis that the successful tenderer is faced with serious financial difficulties which will prevent it from honouring its contractual obligations.

102    However, the applicant has not produced any evidence that would allow the Court to verify the origin and validity of the data on which the applicant based its analysis of the successful tenderer’s financial situation. In that regard, although the applicant claims that — contrary to what is indicated in the successful tenderer’s letter mentioned in paragraph 100 above — the successful tenderer’s financial situation was not balanced in 2011, it has not proved it. Moreover, it can be seen from the bank references produced by the successful tenderer that the latter honours its undertakings towards the banks with which it is a customer and that, at the date on which one of the two banks drafted its reference, it had sufficient financial capacity to carry out the contracts and projects which had already been entrusted to it. Furthermore, the reference from its insurer indicates that, if necessary, that insurer would be able to cover the successful tenderer on the basis of ‘products’ insurance or ‘professional liability’ insurance for the full duration of the contract. Lastly, the letter from the rector of UCL mentions that the successful tenderer can count on its support in the context of the European Union call for tenders.

103    Having regard to the foregoing, the applicant has not established that the Commission committed a manifest error of assessment in considering that the successful tenderer had provided sufficient documents, including appropriate bank references, to prove that its economic and financial situation allowed it to present a tender in the call for tenders at issue. For the sake of completeness, it must be noted that, although the applicant suggests that it is possible that the successful tenderer received illegal state aid from UCL, it has not adduced any evidence in support of those allegations, with the result that that complaint must, in any event, be rejected.

104    In addition, since it is clear from the foregoing that the applicant has not proved that the Commission committed a manifest error of assessment in considering that the successful tenderer had, by the references which it produced, sufficiently established its economic and financial capacity, it cannot successfully claim that, given the issues raised in its correspondence with the Commission after the contract had been awarded, the latter was required to seek detailed explanations from the successful tenderer concerning its economic and financial situation.

105    In any event, it must be noted that, as the Commission rightly points out, the applicant has not indicated the legal basis for its claim that the Commission was required to seek detailed explanations from the successful tenderer regarding its economic and financial situation. In that respect, it must be noted that Case C‑599/10 SAG ELV Slovensko and Others [2012] ECR I‑10873, to which the applicant refers in its written pleadings, cannot be applied, even by analogy, in the present case. In that judgment, the Court of Justice relied on Article 55 of Directive 2004/18 in holding that the legislature of the European Union intended to require the contracting authority to examine the details of tenders which are abnormally low by imposing an obligation on it to ask candidates to furnish the necessary explanations to prove that those tenders are genuine. However, in the present case the Commission had no obligation of that nature. Although Article 146(3) of the Implementing Rules provides the evaluation committee with the possibility of asking tenderers to supply additional material or to clarify the supporting documents submitted in connection with the exclusion and selection criteria, it does not create any obligation in that respect. That complaint must therefore be rejected.

 The second part, alleging manifest errors of assessment committed by the evaluation committee in the evaluation of the tenders

–       The criterion consisting in the presentation of the courses most representative of the tenderers’ catalogues

106    As regards the first sub-criterion, relating to the relevance of the selected courses, in the first place, the applicant complains that the evaluation committee criticised it for providing a list whereas the tender specifications offered precisely that possibility.

107    In that respect, as noted in paragraph 63 above, section 9.1 of the tender specifications required, primarily, that the tenderers produce their catalogues and, only if there is none, a full list of the language courses available to the general public. Since it is indicated in paragraph 64 above that the production of that catalogue was intended to allow the evaluation committee to ensure that the courses selected were genuinely the courses most representative of the catalogue, that committee cannot be criticised for awarding a lower score to a tenderer which provided a mere list that failed to describe in sufficient detail the content of the proposed courses.

108    In the second place, the applicant takes the view that the evaluation committee’s comments regarding the first sub-criterion are contradictory and manifestly erroneous since the committee praises the relevance of the courses selected to the needs of the institutions, bodies and agencies of the European Union, yet then states that their relevance is nevertheless affected by the limited nature of the catalogue. However, as indicated in paragraph 64 above, the evaluation committee rightly evaluated the relevance of the selected courses not only in view of the needs of the institutions, bodies and agencies of the European Union, but also in view of the other courses in the catalogue. Since it was not possible, from the list provided by the applicant, to verify whether the courses selected were genuinely the most representative, the evaluation committee could validly consider that that situation prevented it from verifying, in an optimal manner, the relevance of the selected courses in comparison with the rest of the catalogue. The applicant has not established that, in doing so, the committee committed a manifest error of assessment.

109    In the third place, the applicant claims that, as regards Lot 1, the evaluation committee manifestly erred in stating that its standard course was a standard course in intermediate French whereas it was actually a course in German. However, it cannot be seen from the file that this error, however regrettable it may be, is anything more than a typographical error. The references to the other courses selected by the applicant in the context of the first sub-criterion refer to German courses. Moreover, the evaluation committee made the same comments and awarded the same scores, in respect of that sub-criterion, to all of the applicant’s tenders, with the result that the error in question could not have had any influence on the evaluation of Lot 1. Furthermore, although the applicant claims, in its reply, that the evaluation committee might have awarded different scores to each of its tenders for that sub-criterion if it had carried out a correct evaluation, it has not established that the content of its various tenders justified different assessments and, accordingly, different scores.

110    As regards the second sub-criterion, relating to the quality of the courses, it must be noted that it is apparent from the tender evaluation report that the evaluation committee’s comments applied to the three courses as a whole. Thus, in order to determine whether the applicant’s tender was in accordance with the tender specifications, the evaluation committee sought to verify that the three courses proposed, taken as a whole, covered all the language skills and not, as the applicant claims, that each of the courses proposed itself covered all those skills. Accordingly, the applicant cannot seriously maintain that the evaluation committee criticised it for failing to cover pronunciation practice fully in its course entitled ‘Effective writing’.

111    Secondly, the applicant submits that a significant part of its course intended for advanced learners is devoted to pronunciation and that its general courses for beginners and intermediate learners clearly contain numerous modules devoted to oral skills. However, it must be pointed out that the evaluation committee merely noted that the courses proposed by the applicant did not fully cover pronunciation practice and in no way criticised the applicant for failing to deal with that aspect of oral skills. Since the applicant has not established the contrary, it cannot be held that the evaluation committee committed a manifest error of assessment in that respect.

112    Thirdly, the applicant claims that, contrary to the evaluation committee’s criticisms in that respect, the cultural dimension is dealt with in its proposed courses. In that regard, it must be pointed out that the applicant’s tender mentions the multicultural context of the institutions, bodies and agencies of the European Union, but the content of the proposed courses does not expressly reflect the taking into consideration of that aspect of language training. Thus, in criticising the applicant for the fact that the taking into consideration of the cultural dimension is not evident, the evaluation committee did not commit a manifest error of assessment.

113    Fourthly, as regards the comment criticising the applicant for its failure to refer systematically to the CEFR in its tender, the applicant acknowledges that, although it indicated the CEFR level in the title of the three courses which it selected, it did not refer to the CEFR in the presentation of the objectives of two of its courses. Accordingly, the applicant has not established that the evaluation committee committed a manifest error of assessment in making that comment.

114    As regards the third sub-criterion, relating to the quality of the teaching materials accompanying the three proposed courses, the applicant claims that the comments made in relation to its tender contain, as regards Lots 2 and 9, an additional factor in comparison to those made in relation to Lot 4, but that no additional points were awarded to it. Nevertheless, it must be noted that the mere fact that the evaluation committee noted an additional factor, which is not necessarily a positive point, in the applicant’s tender for Lots 2 and 9 does not mean that its tender deserved additional points and that the evaluation committee committed a manifest error of assessment in awarding it the same number of points for each of those lots.

–       The criterion relating to the courses tailor-made for the institutions, bodies and agencies of the European Union in the form of blended learning courses

115    As regards the second sub-criterion, relating to the syllabus of the proposed courses, the applicant submits that the evaluation committee committed a manifest error of assessment in making the following criticism: ‘Little or no reference to the CEFR’. The applicant claims that each of the proposed courses indicated the relevant CEFR level in accordance with the instruction provided, that the summary objectives which it proposed for each course were directly and clearly taken from the CEFR, given that the relevant parts of the CEFR had been modified to meet the needs of the institutions, bodies and agencies of the European Union and, lastly, that the detailed objectives of various course modules referred, for each language skill, to the descriptions of the ‘Can do …’ statements of the CEFR level concerned. In that respect, it must be noted that the applicant referred expressly to the CEFR in the title of the courses proposed. As to the remainder, it must be pointed out that, in the response to that sub-criterion, the applicant did not refer expressly to the CEFR. Thus, if the proposed objectives are taken from the CEFR, there was no reference to that document in its tender in the response to that sub-criterion. It was indicated in paragraph 65 above that the tender specifications required that the CEFR be ‘quoted in respect of all the services required’, which means not only that it must be used to describe the proposed syllabus and objectives, but also that it is necessary to specify the extract of the CEFR referred to by expressly quoting it. In that respect, although the applicant attached to its tender tables containing express references to the CEFR, it is undisputed that those tables are not referred to in the response to the sub-criterion in question. Accordingly, the applicant has not established that the evaluation committee committed a manifest error of assessment in making that criticism.

116    In the second place, the applicant claims that the evaluation committee committed a manifest error of assessment in considering, as regards the applicant’s tenders, that the syllabi could have been more focused on the objectives to be achieved and targeted at the institutions, bodies and agencies of the European Union. Contrary to what is suggested by the applicant, the committee did not state that its tender was neither focused on the objectives to be achieved nor targeted at the institutions, bodies and agencies of the European Union, but merely intended to emphasise that it could have been more so. Moreover, it is clear that, although the syllabi proposed by the applicant concern, inter alia, the professional environment, they are poorly targeted at the institutions, bodies and agencies of the European Union. Furthermore, as regards the objectives to be achieved, it can be seen from the applicant’s tender that, as regards certain courses, in particular for the ‘Course A’ of each of the lots, the applicant merely indicated the objectives to be achieved and the description of the syllabus, without establishing any clear correlation between the two. That correlation is established only further on in its tender, in the form of a table, and it is therefore not expressly indicated in the context of the second sub-criterion.

117    In the third place, the applicant argues that the evaluation committee erred in the assessment of the successful tender, since it praised the latter for having provided for the allocation of two trainers to each course whereas that point is entirely unrelated to the second sub-criterion, which concerns the course syllabus. However, as the Commission rightly points out, it is clear from the tender specifications that the organisation of classes was one of the factors that would be evaluated in the context of that sub-criterion. Accordingly, the applicant has not established that the evaluation committee committed a manifest error of assessment in that respect.

118    As regards the third sub-criterion, relating to the proposed methodology, the applicant claims that the evaluation committee committed a manifest error of assessment in commenting on negotiation in the evaluation of Lots 7 to 9, whereas the negotiation courses concerned only Lots 1, 2 and 4. The applicant concludes that, for the purpose of evaluating Lots 7 to 9, the evaluation committee clearly reproduced the comments relating to Lots 1, 2 and 4, thus failing to undertake an independent and objective evaluation of the merits of the tenders before it and preventing the applicant from understanding the reasons for the scores awarded.

119    In that respect, it must be noted that it can indeed be seen from the evaluation of the tenders that a comment relating to negotiation was added to the comments made relating to the offer made by the applicant for Lots 7 to 9. However, it must also be pointed out that, as the Commission rightly noted, the scores awarded to the applicant for lots 1, 2 and 4 are different from those awarded for Lots 7 to 9 of the same tender. Likewise, the comments are not completely identical as regards the two series of lots. Consequently, it has not been established that the evaluation committee failed to undertake an independent and objective evaluation of the merits of the applicant’s tender for those lots. The applicant has therefore failed to prove that the committee committed a manifest error in the assessment of its tender as regards those lots. For the sake of completeness, it should be noted that the comment relating to negotiation erroneously made in respect of Lots 7 to 9 was positive, since the evaluation committee commended the relevance of the concept of the filmed last class. Accordingly, that error did not, in any event, have any negative effect on the score awarded to the applicant.

120    The applicant then puts forward the argument that, as regards the third sub-criterion, the successful tender obtained a higher score than its own tender even though it can be seen from the evaluation committee’s comments that the applicant’s tender was better.

121    It must be noted that, as regards the third sub-criterion, the factors to be taken into account were, inter alia, according to the tender specifications, the balance between theory and practice for face-to-face and distance courses, distance mentoring and the proposed evaluation method. It must then be noted that the evaluation committee praised the applicant’s tender for its good quality proposal, its realistic methodology which respected the balance between theory and practice and between face-to-face and distance learning on the basis of the level of the course, a good framework and asynchronous mentoring. However the evaluation committee criticised the lack of innovation in the proposal and the failure to adapt the methodology to the difficulty of the language. As regards the successful tenderer’s tender, the evaluation committee also noted a methodology which respected the balance between theory and practice. It also emphasised the very good balance between face-to-face and e-learning and a very comprehensive description of the continuous distance mentoring as well as the highly adaptable nature of the methodology due to the richness and variety of the materials. Accordingly, it cannot be seen from the comparison of those comments that the evaluation committee committed a manifest error in the assessment of the two tenders as regards that sub-criterion. On the contrary, it is apparent that the comments received by the successful tenderer were noticeably more positive than those received by the applicant, justifying its higher score. Lastly, the applicant criticised the evaluation committee for emphasising, in its comments, the ‘highly adaptable nature [of the successful tender] due to the richness and variety of the materials’ whereas that comment was not relevant in the context of that sub-criterion. However, that comment is relevant in the evaluation of that sub-criterion since it is intended to emphasise the successful tenderer’s capacity to adapt its methodology as a result of the richness and variety of its materials. For the sake of completeness, it should be noted that, contrary to what is claimed by the Commission in its written pleadings, it can be seen from the evaluation committee’s comments that it awarded a higher score to the successful tenderer not because of the innovative nature of its tender but because it fulfilled all of the requirements of that sub-criterion. Accordingly, it follows from the foregoing that the applicant has not established that the evaluation committee committed a manifest error of assessment in awarding a higher score to the successful tenderer for that sub-criterion.

122    As regards the fourth sub-criterion, relating to added value, the applicant claims that the evaluation committee committed a manifest error of assessment in finding that the applicant, in the context of that sub-criterion, merely reiterated a number of points made elsewhere in its tender. However, it can be seen from the file that, as the evaluation committee rightly pointed out in its comments, the applicant, in the context of that sub-criterion, merely listed the alleged advantages of its tender (lower cost for the institutions, bodies and agencies of the European Union, efficiency gains for learners, etc.) without showing any genuine added value, with the exception of the recruitment of a specialist in distance foreign language teaching. It is the richness of that added value which was evaluated in that sub-criterion and the successful tenderer emphasised several factors in the context of that sub-criterion, including the appointment of a specific coordinator for blended learning courses, the synchronisation of the platform or the integration of teachers in the educational engineering process. Accordingly, having regard to the content of the successful tender and notwithstanding the absence of a reference, in the evaluation committee’s comments, to the distance language teaching specialist recruited by the applicant, it has not been established that the evaluation committee committed a manifest error of assessment in the evaluation of that sub-criterion.

123    The applicant also emphasises that the successful tenderer was praised for the integration of its trainers in the design of blended learning materials, for the expertise of the pedagogic coordination in that area and for having demonstrated a proven capability in some form of engineering, whereas those elements were also present in the applicant’s tender. However, it must be pointed out that, as the Commission rightly points out, the applicant did not present all of those elements in the part of its tender relating to the added value, with the result that it cannot criticise the evaluation committee for failing to take them into account in the evaluation of the fourth sub-criterion.

124    The applicant adds that, in their replies to the tenderers’ questions sent before the submission of tenders, the institutions, bodies and agencies of the European Union had indicated that, as regards expertise in the design of blended learning, they did not expect additional statements of capabilities and that the evaluation would be based solely on the requested course descriptions. The applicant therefore concludes that the successful tender was wrongly praised for having demonstrated a proven capability in a certain form of engineering. However, it can be seen from the tender specifications that it was for the tenderers to demonstrate the added value of their tender, inter alia by emphasising their capability of distance learning engineering. Moreover, as the Commission noted, although the institutions, bodies and agencies of the European Union did not require additional statements of capabilities, nothing prevented the evaluation committee from praising the successful tenderer’s experience in that area, which could be seen from the description of the courses proposed.

125    Furthermore, although the successful tenderer was praised for having emphasised its respect for equal opportunities whereas the applicant had proposed the implementation of a technical platform accessible to people with visual impairment, it must again be pointed out that the applicant did not put forward that element in the context of the sub-criterion relating to added value. Moreover, as mentioned in paragraph 76 above, in the context of that fourth sub-criterion it was for the tenderers to submit all of the information likely to show an added value in their proposals relating to the blended learning courses. Accordingly, the evaluation committee did not commit a manifest error of assessment in praising the successful tenderer for having taken into account respect for the protection of personal data and equality of opportunity.

126    Lastly, although the applicant claims that its tender also includes, as regards the fourth sub-criterion, factors relating to the sharing of information, whereas only the successful tenderer was praised in that respect, that is not sufficient ground to demonstrate, in view of all the abovementioned factors, that the evaluation committee committed a manifest error of assessment in awarding the successful tenderer a higher score for that sub-criterion.

–       The criterion relating to the maximisation of the use of interactive white boards

127    The applicant claims that the evaluation committee committed a manifest error of assessment in awarding it the minimum number of points for that criterion. Thus, the applicant criticises the committee for considering that it had qualified its tender by making its proposals subject to the prerequisite of the systematic implementation of interactive white boards within the institutions, bodies and agencies of the European Union. The applicant adds that, in setting out its action plan subject to the systematic implementation of whiteboards, it was not seeking to qualify its offer, but rather to demonstrate to the evaluation committee its knowledge of the reality of the constraints under which the contractor has to operate. According to the applicant, the evaluation committee should have awarded it additional points for demonstrating knowledge of the practical considerations at hand.

128    It can be seen from the evaluation committee’s comments regarding the applicant’s tender as regards that third criterion that it awarded the applicant ‘an acceptable score on the basis of its good intentions’ and ‘the content of the chapter’, but it stated that the institutions, bodies and agencies of the European Union would not accept the tenderer’s prerequisite ‘since paragraph 10 of the letter of invitation to tender specified that submission of a tender implies acceptance of the terms and conditions set out in that invitation to tender, in the specifications and in the draft contract, and, where appropriate, waiver of the tenderer’s own general or specific terms and conditions’. Therefore, contrary to what is claimed by the applicant, the evaluation committee commented on the substance of its tender, considering that it indicated only the applicant’s intentions, and did not contain any specific measure intended to maximise the use of interactive whiteboards. In order to establish that its tender was better than that of the successful tenderer in that respect and, accordingly, that the evaluation committee committed a manifest error of assessment in awarding it a lower score, the applicant puts forward a series of arguments in Annex C 3 to its reply. In that regard, it must be recalled that, although the application or the reply may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, the annexes have a purely evidential and instrumental function (see, to that effect, Case T‑84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 34). Accordingly, the annexes cannot serve as a basis for developing a plea set out in summary form in the application or in the reply by putting forward complaints or arguments which are not contained therein. The applicant has demonstrated in neither the application nor the reply that ‘every single element for which [the successful tenderer was] validly praised in the [evaluation committee’s] comments is also featured in [the applicant’s] proposals [as well as additional elements]’ and, therefore, that the evaluation committee committed a manifest error of assessment in awarding a higher score to the successful tender for that criterion. On the contrary, it can be seen from the applicant’s tender that it did not propose any specific activity to maximise the use of interactive whiteboards. Accordingly, the evaluation committee did not commit any manifest error of assessment in that respect.

–       The quality plan criterion

129    In the first place, as regards the sub-criterion relating to the internal manual, the applicant claims that it was penalised for not including an actual copy of its internal manual of administrative procedures, even though neither the tender specifications nor the replies of the institutions, bodies and agencies of the European Union to questions raised before the submission of the tenders required the production of such a manual. However, it cannot be seen from the specifications or from the replies to the questions to which the applicant refers that the production of such a manual was not authorised. In that respect, it must be noted that the applicant’s claim that, in other replies to the questions put to it by the tenderers, the contracting authority had ruled out the inclusion, by means of hyperlinks, of any material which was not included in the tender forms — with the exception of samples of teaching materials provided in support of the presentations of the courses — has no bearing on the outcome of the dispute. Those replies were not made in the context of the criterion relating to the quality plan and could not, therefore, be taken into consideration in awarding scores for that criterion. Moreover, it must be pointed out that it can be seen from the evaluation committee’s comments that it criticised the applicant’s failure to submit the internal manual of administrative procedures and logistics insofar as it prevented the committee from evaluating the quality of that manual. In that respect, although the applicant claims that its manual obtained ISO 9001 certification, it must be noted that it did not explain to the evaluation committee the conditions which it had to fulfil in order to obtain that certification, nor did it emphasise the fact that the certification in question required a high-quality internal procedure manual subject to annual review.

130    In the second place, as regards the sub-criterion relating to the procedure for handling complaints, the applicant takes the view that the evaluation committee erred in awarding the successful tenderer the same number of points as it awarded the applicant’s tender. Thus, the applicant submits, inter alia, that the evaluation committee criticised the successful tenderer for the length of time required to handle a certain category of complaints (‘yellow’ complaints) whereas no criticism was made to the applicant as regards that sub-criterion. However, as explained in paragraph 41 above, the evaluation committee’s comments as regards the two tenders were substantially the same and emphasised the very high quality of both complaint management procedures. In those circumstances, that committee did not commit a manifest error of assessment in awarding an identical score to the two tenderers for that sub-criterion. In that respect, the fact that the evaluation committee noted, regarding the successful tenderer’s tender, that ‘the period of five days for a yellow complaint seem[ed] a little too long’ does not suffice, by itself, to prove the existence of a manifest error of assessment.

131    It follows from all of the foregoing that the third plea in law must be rejected, without it being necessary to adjudicate on the questions referred to in paragraph 44 above.

132    In those circumstances, the action must be dismissed in its entirety.

 Costs

133    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those incurred in the proceedings for interim measures, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Communicaid Group Ltd to pay the costs, including those incurred in the proceedings for interim measures.

Papasavvas Forwood Bieliūnas

Delivered in open court in Luxembourg on 11 June 2014.

[Signatures]

* Language of the case: English.