JUDGMENT OF THE GENERAL COURT (Third Chamber)

15 October 2013 (*)

(Public service contracts – Tender procedure – External service provision for development, studies and support for information systems (ESP DESIS II) – Classification of a tenderer – Award of the contract – Tendering consortium – Admissibility – Obligation to state reasons – Transparency – Equal treatment – Manifest error of assessment – Non-contractual liability)

In Case T‑457/10,

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,

applicant,

v

European Commission, represented initially by S. Delaude and N. Bambara, and subsequently by S. Delaude, acting as Agents, and initially by P. Wytinck, and subsequently by B. Hoorelbeke, lawyers,

defendant,

APPLICATION, first, for annulment of the Commission’s decision of 16 July 2010 to classify the applicant’s tender submitted in the context of the call for tenders DIGIT/R2/PO/2009/045, concerning ‘External service provision for development, studies and support for information systems’ (ESP DESIS II) (OJ 2009/S 198-283663), for Lot 2 ‘Off site development projects’, in third, and not first, place and to award the first and second places to other tenderers, and also of all the related decisions of the Commission’s Directorate General for Informatics, including the decisions to award the respective contracts to the tenderers classified in first and second places; and, second, for damages,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 14 March 2012,

gives the following

Judgment

 Background to the dispute

1        The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law, operating in the field of information technology and communications.

2        By contract notice of 14 October 2009, published in the Supplement to the Official Journal of the European Union (OJ 2009 S 198-283663), the Commission’s Directorate-General (DG) for Informatics (‘DIGIT’) launched call for tenders DIGIT/R2/PO/2009/45 – ESP DESIS II, concerning ‘External service provision for development, studies and support for information systems’ (‘call for tenders ESP DESIS II’). The deadline for the submission of tenders was set at 18 December 2009.

3        Call for tenders ESP DESIS II was held in order to draw up new cascade multiple framework contracts, intended to replace the ESP DESIS contracts, which were about to expire.

4        In the tendering specifications the Commission had stated that, for each lot, multiple framework contracts would be signed with the tenderers who submitted the three best tenders. Those specifications stated that such contracts could be awarded to a maximum of three tenderers per lot. When the specific contracts were awarded, the economic operator whose tender was considered to present the best value for money was contacted first. If that first operator was unable to provide the requested service or was not interested, the second best operator was contacted. If the latter was unable to provide the requested service or was not interested, the third best operator was then contacted.

5        Lot 2 concerned, in particular, the development of information systems, their implementation and maintenance. The requested services were to be executed mainly ‘off-site’, in other words at the contractors’ premises and not at the premises of the European Union (‘EU’) institutions. The development projects could concern all types of information systems and all domains.

6        The contract notice and the tendering specifications stipulated that for each lot, the framework contract would be awarded to the most economically advantageous tender, assessed in accordance with the criteria set out in the tendering specifications.

7        The tendering specifications stated that the assessment would consist of three stages: a first stage, during which exclusion criteria would be applied (section 6.1 of the tendering specifications); a second stage, during which selection criteria would be implemented (section 6.2 of the tendering specifications); and a third stage, during which the award criteria would be evaluated (section 6.3 of the tendering specifications).

8        In respect of the technical evaluation, the tendering specifications set out, at section 6.3.1, five award criteria, as follows:

–        award criterion 1: quality of the tenderer’s proposal for organising the overall management of the services;

–        award criterion 2: quality of the tenderer’s proposal for the ordering of services;

–        award criterion 3: quality of the proposal for the delivery of services;

–        award criterion 4: quality of the technological proposal in the domain of the lot;

–        award criterion 5: quality of the proposal for pricing structure.

9        Together, the award criteria represented a total of 1 000 points. The minimum score per award criterion was set at 50%. The scores given were weighted according to the importance of each of the five award criteria. The minimum weighted score was set at 60%. Each tender was evaluated in order to determine the extent to which it satisfied the stated requirements, the successful tender being that which represented the best value for money. Quality, namely the technical evaluation, counted for 60% and price, namely the financial evaluation, counted for 40% (section 6.4 of the tendering specifications).

10      The tendering specifications also contained a questionnaire for lot 2, including questions on technical and professional capacity and on technical evaluation. The questions regarding technical evaluation were grouped by award criterion.

11      After the launch of the call for tenders and during the period for submission of tenders, potential tenderers sent the Commission seven series of questions in order to obtain further information or clarification.

12      On 18 December 2009, the applicant submitted a tender for Lots 1A, 1B, 1C, 2 and 3. The present action concerns only Lot 2.

13      The opening of the tenders took place on 8 January 2010. After the opening of the tenders relating to Lot 2, DIGIT sent the applicant, on 4 June 2010, a letter requesting clarification, requesting the applicant to provide information on the composition of its prices in order to exclude the possibility that it proposed abnormally low prices.

14      The applicant replied by letter dated 11 June 2010, providing information on the composition of its prices. The applicant had begun its letter with a statement concerning the eligibility of the contractors for that call for tenders.

15      On 5 July 2010, DIGIT wrote to the applicant, explaining that the purpose of the request for clarification was not to supplement or clarify any point in the tendering specification.

16      In its letter of 15 July 2010, the applicant complained of the absence of a clear position on the content of the tendering specifications as regards the eligibility of tenderers from countries not signatories to the Agreement on Government Procurement (OJ 1996 C 256, p. 2) in Annex 4 to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3) or in non-WTO States.

17      By letter of 16 July 2010 (‘the contested decision’), the outcome of the tendering procedure for each lot was sent to the applicant. That letter informed the applicant that, on the basis of the value for money of its tender, it was placed third in the cascade mechanism established for Lot 2.

18      By letter dated the same day, the applicant requested additional information from DIGIT, namely the names of the successful tenderers and those of their subcontractors and the percentage of subcontracting, the scores awarded to each tender for each technical award criterion and an explanation of the relative advantages of the successful tenderers, information on the prices offered by the successful tenderers and the names of the members of the Evaluation Committee.

19      By letter of 30 July 2010, DIGIT sent the applicant the information requested on the tenders submitted by the applicant for the five lots in the call for tenders, the ‘Note for debriefing’, included in the evaluation report, concerning its tender and those ranked higher than it.

20      On 5 August 2010, the applicant complained to the Commission about the generic nature of its ‘Note for debriefing’ and insisted on being provided with a full copy of the evaluation report and detailed explanations justifying such an important decision involving the spending of hundreds of millions of euros.

21      On 10 August 2010, the applicant wrote to the Budgetary Control Committee and the Committee on Employment and Social Affairs of the European Parliament, the European Ombudsman, the Court of Auditors of the European Union, the Secretary-General of the Commission and the Directors-General of DG ‘Employment, Social Affairs and Equal Opportunities’ of the Commission and of DIGIT.

22      By letter of 18 August 2010, the applicant asked the Commission whether it had authorised the member companies of the consortium awarded Lot 2 (‘the winning consortium’) to use in their tender the services of companies established in countries not signatories to the Agreement on Government Procurement.

23      On 20 August 2010, in response to the applicant’s letter of 5 August 2010, DIGIT sent the applicant the results of the technical evaluation for each question corresponding to the various award criteria for the lots for which the applicant had tendered, so that the applicant could understand the strengths and weaknesses of its tenders. In addition, DIGIT informed the applicant that its request for a review of the outcome of the evaluation would be forwarded to the awarding authority.

24      On 25 August 2010, the applicant again wrote to DIGIT, reiterating its views on the call for tenders at issue. On the same day, the applicant also wrote to the European Ombudsman, requesting further information on the issue of the outsourcing of services to companies established in countries not signatories to the Agreement on Government Procurement and on the European Ombudsman’s decision in that regard.

25      On 7 September 2010, DIGIT reiterated its position concerning the applicant’s requests to be provided with all the information requested in its previous letters.

26      On 14 September 2010, DIGIT informed the applicant that the awarding authority had examined its requests and comments and had confirmed its initial award decision. DIGIT attached a note for the file containing, inter alia, an assessment of the arguments raised by the applicant concerning the evaluation of Lot 2. That letter also informed the applicant that the contract in question had been signed, or was in the process of being signed.

27      The contract award notice at issue was published on 30 October 2010 in the Supplement to the Official Journal of the European Union (OJ 2010 S 212‑323724).

 Procedure and forms of order sought

28      By application lodged at the Court Registry on 26 September 2010, the applicant brought the present action.

29      On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, to ask the Commission to produce certain documents. The Commission complied with that request within the prescribed period.

30      The parties presented oral argument and answered the questions put by the Court at the hearing on 14 March 2012.

31      The applicant claims that the Court should:

–        annul the contested decision and all the subsequent decisions of DIGIT relating to the call for tenders in question, including the decision to award the contract to the successful tenderers;

–        order DIGIT to pay the applicant damages in respect of the harm sustained on account of the tendering procedure in question, which it evaluates at EUR 30 000 000 for Lot 2, and the amount of EUR 3 000 000 as compensation for the harm sustained owing to loss of opportunity and damage to its reputation and credibility;

–        order DIGIT to pay the costs even if the action is dismissed.

32      The Commission contends that the Court should:

–        declare the action for annulment unfounded in its entirety;

–        declare the action for damages unfounded;

–        order the applicant to pay the costs.

 Law

1.     Admissibility of the action for annulment

33      It should be observed that the applicant submitted its tender jointly with five other companies (‘the consortium including the applicant’) and that those five companies have not challenged the awarding authority’s decision to select the applicant’s tender as the third, and not the first, contractor and to award first and second places to the successful tenderers, and that, moreover, it is not apparent from the application that the contested decision is being challenged on behalf of the consortium including the applicant.

34      It is therefore appropriate to consider in the present case the applicant’s locus standi to challenge the contested decision.

35      It is apparent from the procedural documents that the consortium including the applicant did not have legal personality and was, rather, an ad hoc structure formed for the purpose of submitting the tender at issue. The applicant concluded ‘Teaming Agreements for the Open Call for Tenders DIGIT/R2/PO/2009/045 – DESIS II’ with five other undertakings. That agreement states, in section 1.1, that:

‘This Agreement constitutes a contractual grouping relationship which shall exist only with respect to the Client for the Project. Accordingly, such grouping is not, and shall in no way be regarded as, a corporation or a partnership or other legal entity.’

36      Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them’.

37      In the present case, although the contested decision is, from a formal aspect, addressed to the tenderer, that is to say, to the consortium including the applicant, the fact none the less remains that that consortium never had legal personality. Accordingly, from the aspect of Article 263 TFEU, as that ad hoc structure was transparent so far as its members are concerned, the six companies concerned must be regarded as the addressees of the contested decision. Therefore, the applicant was entitled, as an addressee of the contested decision, to challenge that decision in accordance with the conditions laid down in Article 263 TFEU.

38      It follows that the applicant’s action for annulment is admissible.

2.     The action for annulment

39      In support of its application for annulment, the applicant raises, in essence, seven pleas in law, alleging:

–        first, breach of the rules relating to the exclusion criteria;

–        second and third, infringement of Articles 106 and 107 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’), breach of the tendering specifications and breach of the principles of transparency and non‑discrimination;

–        fourth, breach of the obligation to state reasons;

–        fifth, breach of the principles of sound administration and equal treatment and also of the rules on conflict of interest;

–        sixth, infringement of Article 97 of the Financial Regulation and Article 138 of Commission Regulation (EU, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1; ‘the Implementing Rules’);

–        seventh, the existence of manifest errors of assessment.

40      At the hearing the applicant withdrew the first part of its first plea, relating to the alleged breach of an earlier contractual obligation by a company belonging to the winning consortium.

 First plea, alleging breach of the rules on the exclusion criteria

41      The applicant claims that a company belonging to the winning consortium has been involved in bribery and corruption and fraud and ought to have been excluded from call for tenders ESP DESIS II pursuant to Articles 93 and 94 of the Financial Regulation and Articles 133a and 134c of the Implementing Rules.

42      In the defence, the Commission stated that the company which the applicant alleges to have been involved in illegal activities and corruption was not the company belonging to the winning consortium but its parent company. In its reply, the applicant acknowledged that its arguments related to the parent company of the company in the winning consortium and maintained that the consortium ought therefore to have been excluded from the call for tenders in question, pursuant to Article 93(1)(b) and (e) of the Financial Regulation and Articles 133 and 134 of the Implementing Rules.

43      It should be observed, as a preliminary point, that the applicant also claims that there has been an infringement of Article 45 of 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). Under Article 105 of the Financial Regulation, from 1 January 2003 – the date on which that regulation entered into force – the directives on the coordination of procedures for the award of public supply, service and works contracts are to be applicable to contracts awarded by the EU institutions, offices and agencies on their own account only in respect of questions relating to the thresholds which determine the publication arrangements, the choice of procedures and the corresponding time-limits. It follows that the applicant’s complaints relating to the award criteria of the contract in question must be examined solely by reference to the provisions of the Financial Regulation and the Implementing Rules.

44      In the first place, it should be borne in mind that Article 93(1)(b) and (e) of the Financial Regulation provides that candidates or tenderers are to be excluded from participation in procurement procedures if they have been convicted of an offence concerning their professional conduct by a judgment which has the force of res judicata or if they have been the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the financial interests of the Union.

45      First, it should be noted that the applicant merely refers to the existence of arrangements between the parent company of a company belonging to the winning consortium and the German and United States authorities, but does not demonstrate the existence of judgments having the force of res judicata, as is required by Article 93(1)(b) and (e) of the Financial Regulation, whereby that parent company has been convicted of corruption or fraud.

46      Second, it is apparent from the file that, in order to determine whether the company belonging to the wining consortium should or should not be excluded from the procedure, the Commission not only checked whether that company was flagged in the early warning system, but also carried out a thorough examination of the allegations of fraud and corruption, in order to rule on the compliance of the company belonging to the winning consortium and its parent company with the exclusion criteria. The Commission asked the latter companies for numerous documents, such as:

–        a recent extract from the judicial record of the company belonging to the winning consortium;

–        a declaration on oath of the financial director of the parent company;

–        a recent extract from the judicial record of the parent company, showing that it complied with the conditions set out in Article 93(1)(a), (b) and (e) of the Financial Regulation;

–        recent certificates issued as evidence that the parent company was not in the situation described in Article 93(1)(d) of the Financial Regulation;

–        additional information in order to assess the exclusion criteria of the company belonging to the winning consortium in the framework of its relationship with its parent company, namely a reliability declaration from the parent company and information relating to court cases.

47      The Commission therefore did not infringe either Article 93(1)(b) and (e) of the Financial Regulation or Article 134(4) of the Implementing Rules by not excluding that company belonging to the winning consortium from the call for tenders at issue.

48      In the second place, in the event that the applicant should also mean to claim infringement of Article 93(1)(c) of the Financial Regulation, it would have to be borne in mind that, according to that article, candidates or tenderers are to be excluded from participation in a procurement procedure if they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify.

49      It follows from paragraph 59 of the judgment of 4 July 2008 in Case T‑333/07 Entrance Services v Parliament, not published in the ECR, that when the adjudicating authority is informed in the course of the procedure of grave professional misconduct committed by a tenderer, it is required to check that information and, if that grave misconduct is established to the requisite legal standard, to exclude the tenderer in question from the procedure.

50      In the present case, it should be borne in mind that the applicant claims that the parent company of a company belonging to the winning consortium has been involved in bribery and corruption and fraud.

51      It should be borne in mind, in that regard, that the ground of exclusion provided for in Article 93(1)(c) of the Financial Regulation, like the other grounds of exclusion provided for in Article 93(1), applies to candidates or tenderers who participate in the procurement procedure at issue. It is clear upon reading Article 93 of the Financial Regulation in its entirety, and in particular Article 93(2)(a), which refers to the situation in which ‘the candidate or tenderer is a legal entity’, that the candidates or tenderers are the legal entities that participate in the procedure.

52      In that context, the applicant maintains that, under Article 93(2)(a) of the Financial Regulation and Article 134(4) of the Implementing Rules, the awarding authority may request information about the ownership or power of representation, decision or control of a legal person participating in the call for tenders, from which the applicant infers that the parent company’s conduct must also be taken into consideration.

53      In that regard, it should be acknowledged that it does indeed follow from that provision that the awarding authority may deem it appropriate to verify the abovementioned information, which includes information relating to control of the legal person participating in the call for tenders, and take it into consideration.

54      Contrary to the applicant’s suggestion, however, it cannot be inferred from that provision that grave professional misconduct on the part of the parent company of a subsidiary participating in a call for tenders must systematically be attributed to that subsidiary.

55      In the first place, it must be stated that Article 93 of the Financial Regulation is not aimed at economic entities, but at legal entities. Nor does such an interpretation call into question the practical effect of Article 93(2)(a) of the Financial Regulation, since, as is clear from its wording, the purpose of a request for information on the ownership or the management, control and power of representation of the legal person participating in the call for tenders is to ensure the proper application of the grounds for exclusion. That information is therefore primarily intended to establish that the legal entity participating in the call for tenders is not in one of the situations defined in Article 93 of the Financial Regulation that would lead to its exclusion.

56      Nor, in the second place, does such an interpretation call into question the practical effect of the ground of exclusion set out in Article 93(1)(c) of the Financial Regulation. The possibility of requesting all the information necessary to ensure the proper application of that provision also means that the awarding authority is able to request all the information necessary to ensure that the participation of a given legal person in the call for tenders does not constitute an abuse of right, as would be the case, for example, of the participation of a legal person that was formed with the sole aim of circumventing one of the grounds of exclusion set out in Article 93(1) of the Financial Regulation.

57      In the present case, the applicant, by letter of 30 July 2010, requested the Commission to modify the outcome of the evaluation and to reject the bids in which the company belonging to the winning consortium was involved. As the parent company of that company belonging to the winning consortium had on a number of occasions been involved in corruption and fraud, the company belonging to the winning consortium therefore ought not, in the applicant’s submission, to have escaped the application of the exclusion criteria of call for tenders ESP DESIS II, or of those referred to in Article 96 of the Financial Regulation and Article 133(1) of the Implementing Rules. Consequently, its bid ought to have been rejected.

58      In those circumstances, the awarding authority was required to check whether the company belonging to the winning consortium ought to be excluded on the ground of grave professional misconduct, pursuant to Article 93(1)(c) of the Financial Regulation. It was therefore required to make a preliminary assessment and, in the event that the arguments were not well founded, to reject them and to inform the person who had made the accusations that they had been rejected, in keeping with the principles of transparency and sound administration and also with the spirit of the Financial Regulation.

59      By letter of 16 August 2010, the Commission replied that, from a procedural point of view, the applicant’s request to modify or correct the outcome of the evaluation could be understood only as a request to the awarding authority to assess the arguments submitted before the contracts were signed and, should those arguments be well founded, to withdraw the award decision and replace it by a new award decision.

60      By letter of 14 September 2010, the Commission informed the applicant that the awarding authority had reviewed the applicant’s requests and comments and had confirmed its initial award decision. The Commission enclosed a note for the file, containing, in section 3.3, an evaluation of the arguments raised by the applicant, namely that the parent company of a company belonging to the winning consortium was involved in acts of bribery, corruption and fraud. It is clear from that letter that a thorough assessment was carried out during the evaluation process. On 8 April 2010, a detailed request for additional information was sent to the company belonging to the winning consortium and to its parent company, to which those companies responded by providing an exhaustive reply on 28 April 2010 (see paragraph 46 above). Apart from the early warning system, relevant reports from external sources, such as Dun & Bradstreet and Coface, were also consulted. Following that assessment, the awarding authority concluded that the company belonging to the winning consortium could not be excluded from the call for tenders.

61      The Commission therefore carried out an assessment of the applicant’s allegations, not confining itself to the matters submitted by the applicant but requesting additional information relating not only to the company belonging to the winning consortium but also to its parent company. It therefore carried out an assessment for the purposes of Article 93(1)(c) of the Financial Regulation.

62      As regards the complaint that, in the light of the information available to it after it had assessed the information submitted by the applicant, the Commission ought to have excluded the winning consortium on the ground of the grave professional misconduct of the parent company of one of the companies belonging to that consortium, it should be borne in mind that, in support of that complaint, the applicant relies on the fact that the Commission had no discretion as to the exclusion of that member company and also that the World Bank had decided to exclude the parent company of that member company and all the subsidiaries and associates of that parent company from its calls for tenders for a period of two years.

63      In the first place, as regards the argument which the applicant bases on a decision of the World Bank ordering that all the companies in question be excluded from its calls for tenders, it should be pointed out that in its letter of 14 September 2010, referred to above, the Commission correctly observed that, unlike the World Bank, it was subject to the relevant provisions of the Financial Regulation and the Implementing Rules.

64      In the second place, as regards the applicant’s argument that the Commission ought to have excluded the company belonging to the winning consortium and had no discretion in that respect, it should be noted, first, that, according to the Commission’s findings, the company belonging to the winning consortium did not satisfy the conditions that would permit the application of a ground of exclusion within the meaning of Article 93(1) of the Financial Regulation and, second, that the applicant has put forward no argument to show that the company belonging to the winning consortium was itself guilty of grave professional misconduct or was involved in the offending conduct of its parent company. Nor is it apparent from the evidence in the file that that company’s participation in the call for tenders constituted an abuse of right, designed to circumvent a ground of exclusion. In such circumstances, the Commission was entitled to take the view that the company belonging to the winning consortium could not be excluded on the ground of grave professional misconduct.

65      Accordingly, the plea alleging infringement of Article 93(1)(c) of the Financial Regulation must be rejected.

66      Consequently, the first plea must be rejected in its entirety as unfounded.

 Second and third pleas, alleging infringement of Articles 106 and 107 of the Financial Regulation, breach of the tendering specifications and breach of the principles of transparency and non-discrimination

67      The applicant maintains, in essence, that the Commission ought to have excluded from participation in the procurement procedure undertakings established in countries which are not signatories to the Agreement on Government Procurement or undertakings which subcontract work to countries which are not signatories to that agreement.

68      In the first part, the applicant claims that a company belonging to the winning consortium and a company belonging to the consortium placed second ought to have been excluded, since they relied on work carried out in a country which is not a signatory to the Agreement on Government Procurement, by means of subcontracting.

69      First, it should be noted that Articles 106 and 107 of the Financial Regulation, to which the applicant refers, merely require that the Commission allow undertakings established in countries which have ratified the Agreement on Government Procurement or in countries which have with the European Union a special agreement in the field of public procurement to participate in calls for tenders. Those articles do not preclude participation by undertakings established in countries which are not signatories to the Agreement on Government Procurement or undertakings which use subcontractors established in those countries in calls for tenders launched by the Commission.

70      Second, it should be pointed out that the Commission informed the applicant, by letter of 14 September 2010, that the winning consortium did not propose to subcontract work outside the Member States of the Union and that, for the consortium classified in second place, an average of 21.62% of the work was to be carried out in countries which are not members of the Union or which have not entered into a bilateral agreement with the Union. That, in the Commission’s submission, cannot be regarded as a de facto circumvention of the rules of the Agreement on Government Procurement.

71      As for the applicant’s assertion that such a low average daily rate per person as that proposed by the winning consortium necessarily meant that the work would be carried on outside the Union, it must be borne in mind that the Commission claims to have sought clarification on that point and that it followed from a detailed survey provided by the winning consortium that the bid was not abnormally low within the meaning of Article 139 of the Implementing Rules. Furthermore, the applicant cannot rely on figures in the winning consortium’s bid, to which it did not have access. That argument is therefore based on mere unsubstantiated allegations.

72      Accordingly, it must be concluded that the complaint relating to the winning consortium is unfounded.

73      In so far as the applicant takes issue with the Commission for having chosen a company belonging to the consortium placed second, relying, in the applicant’s submission, on work carried out in a country which is not a signatory to the Agreement on Government Procurement, by means of subcontracting, that complaint will be examined in the context of the second part of the second plea.

74      In the second part, the applicant claims that the Commission did not clearly explain the rules applicable to the use of companies established in countries which are not signatories to the Agreement on Government Procurement.

75      It should be borne in mind that the Commission’s approach was explained in the document entitled ‘Questions and answers’, in particular in the answers to the Commission’s questions 3.49 and 3.50.

76      The terms of the tendering specifications provided that tenderers were to be established in countries which were parties to the Agreement on Government Procurement. However, as regards subcontractors, it is apparent from the answers to questions 3.49 and 3.50 that the Commission established the principle that, provided that the rules of the Agreement on Government Procurement were not de facto circumvented, companies outside the EU could act as subcontractors. The answers to questions 5.21 and 6.16 confirm and re-state that position. The answer to question 7.14 again clarifies that point. The second part must therefore be rejected as unfounded, including the complaint relating to a company belonging to the consortium placed second which the applicant raised in the context of the first part of this plea.

77      In the third part, the applicant claims that, even on the assumption that the use of such companies had to be tolerated by the Commission, that possibility should have been made available by the tendering specifications to all tenderers, in a fair, transparent and non-discriminatory manner.

78      The principle of transparency, which is the corollary of the principle of equal treatment, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the awarding 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 (Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 109 to 111).

79      The answers set out in the document entitled ‘Questions and answers’ referred to at paragraph 75 above were sent to all tenderers before the deadline for submission of bids. All tenderers therefore had the same information for the purpose of preparing their bids. In those circumstances, the argument alleging breach of the principles of transparency and equal treatment cannot succeed.

80      The argument that the winning consortium breached the provisions of the tendering specifications of the preceding contract, ESP-DESIS, must be rejected, first, because such an argument is not relevant in the present case, as each tendering procedure must be evaluated by reference to its own particular features, and, second, because the applicant has wholly failed to substantiate its allegations.

81      As for the assertion that the person responsible for the winning consortium received especially favourable treatment, it must be held that, here, too, the applicant has adduced no evidence to support that assertion.

82      In the light of all of the foregoing, the second and third pleas must be rejected as unfounded.

 Fourth plea, alleging breach of the obligation to state reasons

83      The applicant submits, in essence, that the Commission did not fulfil its obligations under Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. The applicant maintains that DIGIT failed to notify it of the relative advantages of the winning consortium by not providing a full copy of the evaluation report and of the successful tenderer’s bid, thus failing to fulfil its obligation to state reasons. In addition, the applicant requests the Court to order production of the full evaluation report, including the comments relating to the successful tenderers and a copy of their tenders.

84      As a preliminary point, it should be borne in mind 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. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, that the facts are correct and that there has been no manifest error of assessment or misuse of powers (Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33, and judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

85      It should also be observed that, where the Commission has a broad discretion, respect for the rights guaranteed by the legal order of the Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the Courts of the Union verify whether the factual and legal elements upon which the exercise of the discretion depends were present (Case C‑269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 84 above, paragraph 54; and Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II-1403, paragraph 61).

86      It should also be borne in mind that the requirements to be satisfied by the statement of reasons must be assessed by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

87      Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35; judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47; and VIP Car Solutions v Parliament, paragraph 85 above, paragraph 63).

88      In the case of a decision rejecting the bid submitted by a tenderer in response to a call for tenders, the specific rules which determine the scope of the statement of reasons that it must contain are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

89      It is clear from those provisions, and from this Court’s case-law, 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, subsequently, if expressly requested to do so, it provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the winning tender 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, to that effect, Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 84 above, paragraph 47).

90      It should also be pointed out that, if the institution concerned sends a letter in response to a request from an applicant seeking additional explanations concerning a decision before an action is brought but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate. Compliance with the duty to state reasons must be assessed in the light of the information available to the applicant at the time the action was brought (VIP Car Solutions v Parliament, paragraph 85 above, paragraph 73).

91      Likewise, it is settled case-law that the institution is not permitted to substitute an entirely new statement of reasons for the initial statement of reasons (see, to that effect, and by analogy, Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraphs 57 and 58; Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 84 above, paragraph 59; and VIP Car Solutions v Parliament, paragraph 85 above, paragraph 73). Thus, the fact that a third letter has been sent can be taken into account only where such a letter confirms the initial statement of reasons and is restricted to providing further details of the grounds on which the unsuccessful tenderer’s bid was rejected and the contract awarded to the successful tenderer, and not where the Commission sets out other considerations which go so far as to undermine the statement of reasons provided in the first two letters (see, to that effect, Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 84 above, paragraph 75). It must be pointed out in that regard that an institution’s responses to an unsuccessful tenderer’s requests can be taken into consideration as constituents of the grounds for the contested decision only in so far as they are based on points of fact and of law which existed at the date of that decision.

92      Such an approach satisfies the purpose of the obligation to state reasons laid down in Article 296 TFEU, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its review (Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 84 above, paragraph 48).

93      The applicant’s arguments must be examined in the light of the foregoing considerations.

94      In order to determine whether, in the present case, the obligation to state reasons laid down in Article 296 TFEU, the Financial Regulation and the Implementing Rules has been satisfied, the Court must examine not only the contested decision but also the letter of 30 July sent to the applicant in response to its express request of 16 July 2010 seeking additional information on the rejection of its bid.

95      First, in the contested decision DIGIT informed the applicant that, in the light of the quality/price ratio of its bid, it had been classified in third place for Lot 2. It also stated that the applicant could obtain additional information regarding its tender.

96      Second, in its letter of 30 July 2010, the Commission sent the applicant the names of the successful tenderers, the marks obtained for each technical award criterion for all tenders, in the form of tables, the evaluation committee’s comments for the tenders of the tenderers placed higher than the applicant and also for the applicant’s tender, in the form of a table, a comparison of the applicant’s financial offer with those of the other tenderers placed higher than the applicant, in the form of a table, and also the calculation of the quality/price ratios of the three tenders. That information was presented in the form of a ‘Note for debriefing’ included in the evaluation report.

97      Third, by letter of 20 August 2010, DIGIT sent the applicant, in response to the applicant’s letter dated 5 August 2010, the results of the technical evaluation for each question corresponding to the various award criteria, for the lots for which the applicant had tendered, so that the applicant could understand the strong points and the weak points of its tender.

98      Fourth, by letter of 14 September 2010, DIGIT informed the applicant that the awarding authority had reviewed the applicant’s requests and comments and had confirmed its initial award decision. DIGIT enclosed a note for the file containing, in particular, an evaluation of the arguments raised by the applicant in relation to the evaluation of Lot 2.

99      In case the reasoning set out in the letters of 30 July and 20 August 2010 should be insufficient, it will be necessary to determine whether the letter of 14 September 2010 may also be taken into consideration for the purposes of assessing whether the decision to classify the applicant’s tender in third place contained a sufficient statement of reasons. It is permissible, in the present case, to take into account the comments made in the letter of 14 September 2010, in so far as they do not replace the initial reasons set out in the letters of 30 July and 20 August 2010 (see, to that effect, judgment of 9 September 2010 in Case T‑387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

100    It should be observed that the Commission supplied the applicant with the names of the successful tenderers and the evaluation committee’s comments, for the tenders of the tenderers placed higher than the applicant and for the applicant’s tender, and also the outcome of the financial evaluation, enabling the applicant to know the characteristics and relative advantages of the other successful tenders, as required by Article 100(2) of the Financial Regulation. The technical comments enabled the applicant to compare its score, for each criterion in the tendering specifications, with that of the other tenderers placed higher than the applicant. Furthermore, it is clear from the detailed observations made by the applicant in its letter of 5 August 2010 that it was perfectly aware of the relative advantages of those tenderers. In addition, it must be borne in mind that the decision to select its tender in third place, and not in first place, was taken at the end of the final evaluation, that is to say, after the calculation of the quality/price ratio of each tender. Accordingly, the relative advantages of the bids of the tenderers placed higher than the applicant by comparison with the applicant’s bid did not concern solely the scores obtained in relation to the award criteria, but also related to the price quoted and, in particular, the quality/price ratio of the tender. In those circumstances, by sending the applicant the findings – albeit general – concerning the technical evaluation of the tenders of the tenderers placed higher than the applicant, the price quoted in each tender and the detailed calculation of the quality-price ratio, the Commission sufficiently substantiated the relative advantages of the successful tenderer’s bid, without having to giving further explanations regarding the scores obtained by the successful tenderer in relation to each of the award criteria.

101    As regards the request to disclose the names of the members of the evaluation committee, there is nothing in Article 100(2) of the Financial Regulation to suggest that the Commission is required to do so. Nor does such disclosure form part of the additional information which tenderers may obtain under Article 149(3) of the Implementing Rules.

102    As for the applicant’s request to be provided with the names of the successful tenderers’ subcontractors and the percentage of work that would be subcontracted, it should be recalled that the Commission informed the applicant, by letter of 14 September 2010, that the winning consortium had not proposed to subcontract any work outside the Member States of the Union and that the consortium in second place proposed to subcontract only 21.62% of its work to companies established in countries which were signatories to the Agreement on Government Procurement and in countries with which the Union had entered into a bilateral agreement.

103    It must therefore be held that the Commission’s decision is not vitiated by insufficient reasoning. The fourth plea must therefore be rejected as unfounded.

 Fifth plea, alleging breach of the principles of sound administration and equal treatment and of the rules regarding conflict of interest

104    The applicant maintains, in essence, that the Commission has breached the principles of sound administration and equal treatment, as laid down in Article 89 of the Financial Regulation, and the rules regarding conflict of interest, as set out in Articles 52 and 98 of the Financial Regulation and Article 145 of the Implementing Rules. The applicant refers in that regard to the numerous cases which it has brought before this Court against the institutions of the Union, to the fact that the Director-General of DIGIT has brought an action for defamation against the applicant before the Brussels (Belgium) courts and to the fact that the evaluation of tenders was carried out principally by DIGIT officials. In the applicant’s submission, the Commission ought to have taken specific measures to set up an impartial and objective evaluation committee and to ensure its fairness.

105    In the reply, the applicant claims that the evaluation committee was biased and favoured the winning consortium. The winning consortium revealed an irregular approach in its financial offer and presented the cost of the contract fictitiously in order to show a much lower cost. In the applicant’s submission, the contract awarded was implemented differently from the way in which it was defined in the tendering specifications and the winning consortium ‘poached’ experts from the other tenderers.

106    None the less, it must be stated that the applicant merely makes general assertions, which are not substantiated or corroborated by any probative evidence whatsoever. Nor does the applicant demonstrate how all those alleged shortcomings on the part of the awarding authority led to a subjective evaluation of the tenders. It must therefore be concluded that that argument does not substantiate the present plea.

107    In the absence of probative evidence, the fifth plea must therefore be rejected as unfounded.

 Sixth plea, alleging infringement of Article 97 of the Financial Regulation and Article 138 of the Implementing Rules

108    The applicant claims that the Commission infringed Article 97 of the Financial Regulation and Article 138 of the Implementing Rules by inserting imprecise and irregular award criteria in the tendering specifications. It maintains that the award criteria used decisively impede free and fair competition and do not constitute a suitable means of identifying the most economically advantageous offer.

109    Under Article 97(1) of the Financial Regulation, the contracting authority is required to define the selection criteria and the award criteria in advance and to set them out in the tender documentation. That obligation, which consists in ensuring an appropriate level of publicity for the criteria and the conditions governing each contract, is set out in more detail in Articles 135 to 137 of the Implementing Rules as regards the selection criteria and in Article 138 of the Implementing Rules as regards the award criteria.

110    It must be borne in mind that those provisions are intended to ensure compliance with the principles of equal treatment and transparency, enshrined in Article 89 of the Financial Regulation, at all stages of the procedure for the award of public contracts, in particular the stage of selection of the tenderers and that of selection of tenders for the award of the contract (see, to that effect and by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale‑Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92).

111    The purpose of those provisions is simply to allow all reasonably well informed and normally diligent tenderers to interpret both the selection criteria and the award criteria in the same way (see, to that effect and by analogy, Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 42) and, consequently, to have equality of opportunity in formulating the terms of their applications to participate or of their tenders (see, to that effect, as regards the candidate selection stage, Universale‑Bau and Others, paragraph 110 above, paragraph 93, and, as regards the tender comparison stage, Case C‑87/94 Commission v Belgium [1996] ECR I‑2043, paragraph 54).

112    Furthermore, it should be observed that, while it cannot be precluded that the operation of checking the suitability of contractors to provide the services which are the subject of the public contract to be awarded (selection of tenderers) and that of awarding the contract (selection of tenders) may take place simultaneously, it remains the case that those two operations are governed by different rules (see, by analogy, Beentjes, paragraph 110 above, paragraphs 15 and 16, and Case C‑315/01 GAT [2003] ECR I‑6351, paragraphs 59 and 60).

113    It is necessary to examine, in the light of the foregoing, the allegation that the award criteria defined in the tendering specifications were imprecise and irregular.

114    It should be observed that, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the Implementing Rules, the contract was to be awarded, in the present case, to the tender offering the best value for money (section 6.4 of the tendering specifications, see paragraph 9 above).

115    It should be borne in mind that, in order to ensure compliance with the principles of transparency, equal treatment and non-discrimination at the stage of selection of tenders for the award of a contract, Article 97(1) of the Financial Regulation imposes on the contracting authority, when the contract is to be awarded by the best-value-for-money procedure, the obligation to define and set out in the tendering specifications the award criteria against which the content of the tenders will be evaluated. Those criteria must, in accordance with Article 138(2) of the Implementing Rules, be justified by the subject of the contract. Under Article 138(3) of those rules, the contracting authority is also to specify, in the contract notice or in the specifications, the weighting which it will apply to each of the criteria selected for the purpose of determining best value for money.

116    None the less, those provisions leave to the contracting authority the choice of the award criteria against which the tenders will be evaluated. However, the aim of the award criteria which the contracting authority intends to adopt must, in all cases, be to identify the tender which offers the best value for money (see, to that effect, Case T‑4/01 Renco v Council [2003] ECR II‑171, paragraph 65, and Strabag Benelux v Council, paragraph 91 above, paragraphs 73 and 74).

117    In addition, the criteria adopted by the awarding authority in order to identify the tender which offers the best value for money need not necessarily be quantitative or related solely to prices. Even if award criteria which are not expressed in quantitative terms are included in the tendering specifications, they may be applied objectively and uniformly in order to compare the tenders and are clearly relevant for identifying the most economically advantageous tender (see, to that effect, Renco v Council, paragraph 116 above, paragraphs 67 and 68).

118    In the present case, it must be stated that the Commission mentioned, in section 6.3 of the tendering specifications, the award criteria which it proposed to use for the purpose of awarding the contract to the most economically advantageous tender. The tendering specifications also contained a questionnaire relating to the technical evaluation of the tender for Lot 2, set out in Annex 1. The questions were set out for each award criterion.

119    First, as regards the assertion that the tender documents are characterised by a lack of clarity as to what was required of tenderers, which is contrary to the Financial Regulation, as such lack of precision allowed the evaluation committee to define new criteria during the evaluation process, the applicant relies, by way of example, on question 5.5.1 of the tendering specifications. It should be borne in mind, in that regard, that after the launch of the call for tenders and during the tendering period, potential tenderers sent the Commission seven series of questions in order to obtain additional information or clarification. Those questions were answered by the Commission in the document entitled ‘Questions and answers’.

120    That document shows that question 5.5.1 of the tendering specifications was the subject of a number of requests for clarification.

121    Although the Commission provided an indication of what would be perceived as ‘better’ in one case, answer A 4.33.3, in the applicant’s submission, simply highlighted the fact that, in the absence of guidelines, tenderers are unable to understand what the Commission expects. The evaluation committee’s arguments need to refer to clear and specific requirements set out in the tendering specifications, which, it submits, was not the case.

122    The applicant based its argument solely on answer A 4.33.3, without taking account of the other clarifications supplied by the Commission in answers to questions 4.38 and 7.1 (a non-exhaustive list of the answers relating to question 5.5.1 in the questionnaire).

123    Question 5.5.1 reads as follows:

‘Considering the model for off-site developments described in paragraph 9.5 of the service requirements document, describe your proposal of the composition(s) of the team(s) (including profiles, expertise, qualifications and roles) for each activity and each level of size indicated below.

You must conform to the proposed model.

…’

124    One of the requests for clarification was worded as follows (question 4.33.3):

‘Could you please precisely specify the evaluation criteria to be taken into consideration for assessing the Tenderer’s response in questions …, bearing in mind that there are no specific requirements for each case? For illustrating our position and depicting that there is a lack of information in the TS [tendering specifications] please consider the following examples: …’

125    Answer 4.33.3 was worded as follows:

‘In the first example, the second team is more complete and if all other conditions are equal it will receive a better technical evaluation.

In relation to example 2, you must propose compositions of teams with knowledge and skills corresponding at least to the definition of the profiles. Then, you can give alternatives corresponding to “equivalent” teams in term of prices, but with different expertise, profiles or number of persons. However, if no elements allow quantifying the exact level of expertise, in the example the [two] teams would be equally evaluated.

In … example 3, the different options could be proposed, with a clear description of the role of each person. However, the evaluation will take the definition of the profiles into account.

Note that it is suggested to present alternatives of teams with a different number of persons in conformity with the sizes mentioned in the model for off-site developments (pages 484/996).’

126    The answers to questions 4.38 and 7.1 both relate to ‘Service requirements – 9.5 Model for off-site developments (Lot 2)’.

127    The Commission’s answer to question 4.38 provides a list containing a clear and specific description of all the requisite activities, and the answer to question 7.1 and the sub-questions contained therein (7.1.1 to 7.1.7) provides additional information concerning, for example, the definition of the word ‘persons’, the minimum workload for each level of a team, the training of the team and the description of the composition of the teams. In addition, the answer to question 7.4 is as follows:

‘… question 5.5.1 concerns explicitly the compositions of the teams for the activities with the description of the profiles, expertise, qualifications and roles. Related to this description, the response can list the tasks that will be assigned to each team member.’

128    Consequently, it must be held that the tendering specifications, read with the clarification provided in the document entitled ‘Questions and answers’, were sufficiently precise and relevant on that point. Furthermore, it should be observed that, before submitting their respective tenders, all tenderers had in their possession the relevant information set out in that document.

129    It follows that the applicant has not shown that the awarding authority failed to fulfil its duty to define and specify, in the documentation relating to the call for tenders in question, the award criteria, more specifically award criterion No 5, in the present case, since question 5.5.1 related to that criterion, in compliance with the regulatory framework and the case-law principles set out, in particular, at paragraphs 110 to 112 above. Nor is there any evidence that the evaluation committee used the document entitled ‘Questions and answers’ in order to define new criteria during the evaluation procedure.

130    Second, the applicant submits that the Commission ought to have asked tenderers to follow a precise method when estimating the costs and efforts necessary to perform a given task. It should be observed, in that regard, that the Commission correctly claims that it could not impose a single methodology on tenderers, in view of the diversity of the volume of projects, tasks, activities, technical environments and contexts, since in many cases such a methodology would not work in practice.

131    It may be seen from the tendering specifications that the methodology to be proposed formed the subject of question 5.5.3 in the tendering specifications and that clarification was provided in the answer to question 7.5.

132    Question 5.5.3 reads as follows:

‘Explain the methodology that you will apply to make an estimation of the level and the numbers of days (within a total delay) in response to a request for a given activity.’

133    One of the tenderers made the following observation in that regard:

‘The question assumes the existence of one general methodology that applies to all activities of the Lot. However, such methodologies cover mainly SW [software] development related activities (including Analysis and Design, Development, Testing and Deployment). On the contrary support activities such as training and technical assistance as well as the take-over and handover of a project heavily require prior knowledge of the nature and the size of the application/system of interest. Please consult how Tenderers are expected to provide at this phase a structured approach for the estimation of the size of these activities.’

134    The answer to question 7.5 states the following:

‘Tenderers are invited to describe elements that they will take into account to determine the level and volume (team-days) for these activities.’

135    Third, the applicant refers to the belated communication of the fundamental modifications which, in its submission, were made to the requirements of the tendering specifications, following the questions submitted by certain tenderers, which did not enable it to have the maximum time allowed to prepare the call for tenders in question.

136    First of all, it should be borne in mind that it is apparent on reading together the tendering specifications and the document entitled ‘Questions and answers’ that the requirements of the tendering specifications were not modified, but were merely the subject of clarification. Next, it should be observed, as the Commission has correctly submitted, that the answer to question 5.10 confirmed the applicant’s interpretation. There was, consequently, neither a fundamental modification of the tendering specifications nor an additional workload entailing wasted time for the applicant. Last, the answer to the request for clarification was communicated more than six working days before the deadline for submission of tenders referred to in Article 141(2) of the Implementing Rules. The request was submitted on 26 November 2009 and the answer was sent on 4 December 2009: the answer was therefore communicated within five working days after the question had been submitted. While it is true that the Commission’s answer was communicated only 10 working days before the deadline for the submission of tenders, as the applicant asserts, the applicant bears sole responsibility for that and ought simply to have submitted the request for clarification sooner.

137    In the light of all of the foregoing, the sixth plea must be rejected.

 Seventh plea, alleging the existence of manifest errors of assessment

138    First of all, the applicant maintains that many manifest errors of assessment were made by the Commission during the evaluation of the award criteria in the context of the call for tenders at issue. In that regard, the applicant disputes the evaluation of its tender against all the award criteria, which are listed at paragraph 8 of this judgment. It disputes the evaluation committee’s assessments of the answers, set out in its tender, to the questionnaire in the tendering specifications. The applicant’s comments are based on the limited information disclosed by the evaluation committee. In addition, the applicant claims that the Commission had communicated much less information about Lot 2 than about the other lots.

139    Next, as the questions examined by the evaluation committee are very technical, the applicant proposes that an expert, appointed by the Court, should assist the Court in relation to those questions.

140    Last, the applicant claims that it does indeed have an interest in raising the present plea, in so far as the correction of a portion of the errors identified would enable the applicant to be classified in second place, even if it did not receive the maximum number of points, but obtained only 30 additional points.

141    As a preliminary point, it should be observed that, in the context of the present plea, alleging manifest errors of assessment by the evaluation committee in the assessment of the applicant’s tender, the applicant has relied on a number of occasions on a failure to state reasons, emphasising that the evaluation committee had not answered certain questions raised by the applicant and that the evaluation committee’s comments contained limited information.

142    It should be borne in mind that it follows from the analysis of the fourth plea (see paragraphs 84 to 103 above and, in particular, paragraphs 94 to 102) that the Commission did meet the requirements set out in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules. Consequently, for the reasons stated in those paragraphs, the arguments relating to the insufficiency of the statement of reasons, which, moreover, ought not to be raised in a plea alleging manifest errors of assessment (see paragraph 87 above), can only be rejected.

143    In addition, it should be borne in mind that, according to consistent case-law, 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. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89 and the case-law cited).

144    The assessment of award criterion 1: quality of the tenderer’s proposal for organising the overall management of the services

145    As regards question 5.1.5 (‘Describe your risk analysis related to the contract’), according to the evaluation report and also the note for the file, the applicant’s tender did not include risks associated with the phase-in of the framework contract and the deliverables.

146    The applicant asserts that the Commission made a manifest error of assessment in maintaining that its analysis did not present the risk associated with the phase-in of that contract and the deliverables. It maintains that ‘the final risk identification and assessment [would] be performed exhaustively after the signature of the contract mainly to incorporate the feedback from the [Commission] and service optimally the needs of the beneficiaries.’ In addition, the applicant claims that a number of the risks indicated in the tables supplied with the answer to question 5.1.5 related to the phase-in of the framework contract and the deliverables.

147    In the first place, the Commission observes that what is at issue is the description of the risk analysis related to the contract and not the time when the final risk analysis is established. In the second place, the table of risks provided by the applicant does not mention any specific risk associated with the phase-in of the contract, which is none the less very important for the taking-over of the existing projects. That table does not indicate, in particular, that the risks mentioned at paragraph 57 of the application were associated with the phase-in of the contract. Likewise, the tender does not mention as such the quality of the deliverables in that table, although the implementation of the contract is based on deliverables.

148    It is apparent from the table of risks produced by the applicant that it did not in fact identify the risk that might arise during the phase-in and which were directly linked to the delivery process and the quality of the deliverables. Nor does the annex to the answer to question 5.1.5 present any risk associated with the phase-in of the contract and the deliverables.

149    In the light of the foregoing, the Commission did not make a manifest error in its assessment of the tender as regards award criterion 1.

150    The assessment of award criterion 2: quality of tenderer’s proposal for the ordering of services

–       Question 5.2.1: ‘Describe the elements that you will take into account and the organisation that you will put in place to confirm the data indicated by the Commission or propose a new date in your willingness to make a Fixed Price offer (step 4 of the roadmap for Fixed Price projects in the service requirements)’

151    The evaluation report indicates a number of instances of error or confusion on the applicant’s part in connection with the requests for clarification.

152    According to the note for the file, the applicant’s answer mentioned the fact that technical meetings between DIGIT and the contractor could be organised by DIGIT at its premises in order to discuss or clarify the request or to negotiate the proposal date. That note states that the requests for clarification and meetings were to be submitted by the tenderer and that their purpose was to clarify the specifications of the call for tenders and not the negotiation of the proposed date of the offer.

153    The applicant claims that the Commission did not answer its complaints relating to that evaluation and that it also incorrectly referred to errors or confusion concerning the request for clarification, since the title at the head of ‘roadmap’ for fixed price contracts was ‘Organisation of Technical Meetings (DG and Contractor)’.

154    The Commission asserts that it did answer the comments made by the applicant in its letter of 5 August 2010. In the note for the file attached to the Commission’s letter of 14 September 2010, the Commission commented on the applicant’s comments, giving an example of the errors or confusion in its tender, concerning requests for clarification and the purpose of the meetings with the Commission.

155    It follows from the tendering specifications that the tenderer itself was to decide the date of proposal of its tender and that the meetings could be used to specify the requirements of the fixed-price project, but not to negotiate the date of that proposal. In addition, Step 4, to which question 5.2.1 refers, provides for a flow of actions from the contractor to the Commission.

156    Step 4 reads as follows:

‘The period between the “request date” and the “[yes/no] date” can be used to clarify the requirements, in order to allow the Contractor to decide whether he will be able to make an offer, as well as to decide to confirm the “proposal date” or to propose a new “proposal date”.’

…

If the Contractor has stated YES, he can confirm his final proposal or propose a new date. …’

157    Consequently, the requests for clarification ought to have been sent by the contractor to the Commission and not vice versa.

158    The applicant stated, at section 4.5 of its answer to question 5.2.1, that ‘technical meetings between the awarding [DG] and the contractor [might] be organised by the [DG] at its premises to discuss or clarify the request, or to negotiate the date of the proposal’.

159    It must be concluded that, as the Commission maintains, the applicant’s proposal was therefore confused as regards the content and organisation of the meetings. Accordingly, there has been no manifest error of assessment.

–       Questions 5.2.3 and 5.2.4: ‘Based on the example in annex “Lot 2 – example [fixed price]” (question 5.2.3) / “Lot 2 – example [quoted time and means]” (question 5.2.4) in annex describe the structure and content of the proposals that you will submit to the Commission. A practical proposal based on the example has to be given as illustration’

160    According to the evaluation report, the applicant’s tender contained errors or confusion in relation to on-site visits and activities in fixed price and quoted time and means project examples.

161    According to the note for the file, the examples of fixed price projects and quoted time and means projects did not mention on-site interventions.

162    The applicant submits that the Commission has erred, since section 3.2 of the tendering specifications, on the fixed price project, provided for the possibility to carry out on-site interventions and the examples of fixed price and quoted time and means projects in the tendering specifications required on-site interventions.

163    It follows from section 3.2 of the tendering specifications, on fixed price projects, that fixed price projects should generally be implemented off site. However, technical interventions could be provided on site for specific tasks, in particular installations and configurations.

164    However, it is clear from the example of the fixed price project that ‘[a]ll the tasks [would] be performed at the contractor’s premises’.

165    It also follows from section 3.3 of the tendering specifications, on quoted time and means projects, that tasks were generally to be executed at the contractor’s premises. The quoted time and means project example provided clearly that all corrections of the code were to be made in the contractor’s premises.

166    Consequently, it must be concluded that the applicant’s tender showed a certain failure to understand the functioning of the service, as the Commission found.

–       Question 5.2.5: ‘Describe how you will ensure that the team you propose for a project has sufficient general expertise in the business domain of the project (for example in economy or statistics)’

167    According to the evaluation report, it was not clear from the tender that sufficient business knowledge would be available in all cases.

168    According to the note for the file, the process described by the applicant was correct, but not sufficiently specific with respect to business knowledge. In particular, the tender did not demonstrate that the contractor would be in a position to make available teams with skills in the business domain, for example if the tests and further verifications should fail.

169    The applicant maintains that the process which it described ensured the implementation of sufficient business knowledge and submits as proof the fact that it has never received any complaint about the performance of its contracts with the Commission.

170    First, it should be observed, by way of example, that the Commission has already cancelled contracts with the applicant.

171    Second, the applicant’s answer to the above question does not give any real indication as to the proposal of the necessary competences in the business activity in the event of failure of the tests and further verifications, as the Commission has correctly submitted.

172    In the light of all of the foregoing, the Commission did not make a manifest error of assessment when it assessed the implementation of award criterion 2.

173    The assessment of award criterion 3: quality of the proposal for the delivery of services

174    In connection with question 5.3.5 (‘Describe how you will manage the execution of the sub-tasks of the Quoted Time and Means specific contracts. Use as illustration the example “Lot 2 – example [quoted time and means]”’), the evaluation report reveals a certain confusion in the applicant’s tender between the tasks and sub-tasks of the quoted time and means contracts. The applicant mentions three sub-tasks when they are in fact three tasks. Furthermore, the annex to the quoted time and means contract is neither specific to the example nor adapted to the size of the sub-tasks.

175    According to the note for the file, the tender expressly mentioned three sub-tasks. In the example of the quoted time and means project, the three tasks and their respective sub-tasks were not limited to three sub-tasks in total. In addition, the annex to the applicant’s answer constituted a description of the functionalities of a tool and not an illustration based on the practical example of the quoted time and means project.

176    The applicant asserts that those findings are false, since its tender was wholly consistent with the tendering specifications, which mentioned three sub-tasks, and because the annex in which it proposes the CPMS tool is relevant to the example provided in the tendering specifications.

177    The practical example of the quoted time and means project mentions, in section 2, three tasks:

–        Task No 1: Technical support;

–        Task No 2: Corrective maintenance;

–        Task No 3: Technical training.

178    The execution of the sub-tasks for each of those three tasks is mentioned in section 4 in the practical example. It is not stated that the number of sub-tasks was limited to three. In limiting its answer to three sub-tasks in total, the applicant did indeed disregard the fact that one task generally included a number of sub-tasks. It is equally true that the annex supplied by the applicant did not refer to the practical example, but offered a general description of the CPMS tool, which had not been requested.

179    In conclusion, in respect of award criterion 3, the Commission did not make a manifest error of assessment.

180    The evaluation of award criterion 4: quality of the technological proposal in the domain of the lot

–       Question 5.4.1.2: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the prototyping of an application. Illustrate the response with one example’

181    According to the evaluation report, the prototyping submitted by the applicant was good for methodologies but weak for tools.

182    According to the note for the file, during the tender procedure it was clearly stated that the relevant information concerning each response was to be given in the response itself (first three pages). That was not done in the case of the tools proposed by the applicant, which were not included in those first three pages and referred to the example in the annex, namely the tools used in the DEMO-PR project.

183    The applicant maintains that the Commission contradicts itself and that it modified in the note for the file the argument initially set out in the report. In addition, the applicant claims that the Commission ought to have taken the tools proposed in the annex to the applicant’s response into account, in which case it would not have been able to assert that the applicant’s offer was weak for tools. The applicant adds that the Commission ought to have taken its answer to question 5.4.1.3 into account, as it also contained relevant information.

184    First, as regards the argument that the Commission modified its initial evaluation, it should be borne in mind that the note for the file provided only additional explanations to the initial evaluation concerning the weaknesses found in respect of tools (see paragraphs 8 and 9 above).

185    Second, as regards the approach taken by the applicant, it was not consistent with the tendering specifications or with the clarifications provided in the Commission’s answers to the tenderers’ questions, according to which all the relevant information was to be given in the answer itself and the annex was to contain no element that did not already appear in the answer.

186    Question 5.4.1.2 related not only to the description of methodologies, but also to the description of tools. In addition, it had been made clear that that response must be illustrated by one example. It should be pointed out, in that regard, that the applicant merely mentioned the tools in the annex, which was not in compliance with the tendering specifications.

187    Third, as regards the taking into account of the annex, the annex was supposed to consist of a practical illustration of an example, instead of a description of the tools.

188    Fourth, as regards the answer to question 5.4.1.3, to which the applicant refers, it should be observed that each question was to be evaluated separately and the Commission could not therefore take information provided in the answers to other questions into account when determining whether the answer to question 5.4.1.2 was sufficient.

–       Question 5.4.1.3: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the development of an information system with structured data in an Oracle database and J2EE multi-tiers environment. Illustrate the response with one example’

189    According to the evaluation report, the applicant’s response did not limit itself to the environment specified in the question.

190    According to the note for the file, the applicant’s response mentioned tools like MS-MOSS, Documentum, Business Objects, Arc Gis, which were clearly not part of the question. In addition, the tender contained few details on Oracle, which was part of the subject of the question.

191    The applicant maintains that the Commission’s conclusions are incorrect, since the fact that it supplied information about subjects other than the Oracle database and the J2EE multi-tiers environment was not negative in itself. It submits that, so far as the Oracle database is concerned, its response was sufficiently developed.

192    It must be stated that the applicant does not dispute the fact that its tender contained information on subjects other than the Oracle database. The applicant thus gave a response that was too general and, on the other hand, contained little information on the Oracle database, which was one of the two items to which the question expressly referred.

–       Question 5.4.1.4: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the development of a web content management system (with unstructured data). Illustrate the response with one example’

193    It is apparent from the evaluation report that the applicant’s response was general, that it did not cover the data repository and that some methodological aspects did not directly address the question.

194    The note for the file shows that the applicant’s response described the features of the web content management and mentioned a level of data composed of database servers, namely the architecture, but not the data repository.

195    The applicant claims that the Commission modified its position in the note for the file and maintains that it properly described the data repository.

196    However, it turns on that, in the note for the file, the Commission stated only the reasons why it considered that the applicant’s response did not cover the data repository.

197    It is clear on reading question 5.4.1.4 that that question related to the development of a web content management system. However, the applicant’s response did, admittedly, describe the specific database servers, but it did not describe the underlying system that must supply those servers with specific data, namely the data repository.

–       Question 5.4.1.5: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the development of a statistical information system. Illustrate the response with one example’

198    According to the evaluation report, there is no reference in the applicant’s response to statistical tools like SAS, Fame or Troll.

199    According to the note for the file, the specific statistical tools are not well covered in the applicant’s response. At paragraph 4 of the applicant’s response, in particular, the proposed tools do not focus on the statistical tools.

200    The applicant asserts that the Commission changed its position in the note for the file and did not state what was missing from the description of the specific statistical tools.

201    It should be recalled that the Commission did not alter its position, but clarified the previous evaluation. It stated the reason why the description of the specific statistical tools was not properly covered. The Commission stated that paragraph 4 of the applicant’s response, entitled ‘Tools’, did not mention any statistical tool. The SAS tool is in fact mentioned at paragraph 3, but not at paragraph 4 of the response. In addition, it should be observed that there is a mere reference to that tool, without any explanation. Other statistical tools, such as Fame and Troll, are not mentioned in the applicant’s response.

–       Question 5.4.2: ‘Describe the technical infrastructure (hardware, software, network and telecommunications) that you offer for the execution of the contracts (including the location(s) of this infrastructure)’

202    According to the evaluation report, there is no reference in the applicant’s response to statistical tools like Documentum, SAS and Arc Gis.

203    According to the note for the file, the tools Documentum, SAS and Arc Gis are not mentioned in the applicant’s response, particularly in the ‘Tools’ section.

204    The applicant claims that the Commission modified its evaluation in the note for the file and that, contrary to the Commission’s contention, the applicant did in fact propose the Documentum, SAS and Arc Gis tools in its tender, more specifically in section 4.6.

205    It should again be recalled that the Commission did not alter its position, but clarified the previous evaluation.

206    As regards the reference to section 4.6 of its response, it should be noted that, as the Commission contends, that section relates to a criterion of the technical capacity stage and not a criterion of the evaluation stage. The objective of the technical selection is to see whether the tenderer is in a position to supply the services required, while the objective of the technical evaluation is to evaluate the practical tender corresponding to the contract. The applicant’s response to the above question does not in fact contain tools such as Documentum, SAS and Arc Gis.

207    Accordingly, it must be concluded that the evaluation of the tender with respect to award criterion 4 did not give rise to any manifest error of assessment on the Commission’s part.

 The evaluation of award criterion 5: quality of the proposal for pricing methodology

–       Question 5.5.1: ‘Considering the model for off-site developments described in paragraph 9.5 of the service requirements document, describe your proposal of the composition(s) of the team(s) (including profiles, expertise, qualifications and roles) for each activity and each level of size indicated below’

208    According to the evaluation report, a single person was proposed for the level 1 team and at least two for the other levels. In addition, the teams proposed for prototyping and technical documentation were insufficient.

209    According to the note for the file, the composition of the level 1 team proposed for the prototyping activity corresponded to an effort per basic unit of one person, including project management tasks. The composition of the level 2 team for prototyping corresponded to an effort per basic unit of three persons, including project management tasks. The composition of the level 1 team proposed for technical training and documentation corresponded to an effort per basic unit of one person, including project management tasks. Those teams were considered weak, since the main activity was not 100% covered by a team of the minimum size proposed by the Commission, as the project management tasks also had to be taken into account. The same reasoning applies to the first level 3 team for prototyping and to the levels 2 and 3 teams for technical documentation and training.

210    The applicant maintains that the Commission was wrong to make such an assessment, as the teams which it proposed covered all the operational activities required by the tendering specifications, while the management tasks were carried out by teams proposed for other activities related to prototyping and also to technical documentation and training.

211    The need to take the project management tasks into account for the proposal of teams was clearly set out in the tendering specifications, which expressly states that the management tasks were to be taken into account in the composition of teams. In addition, in the responses to the questions (see response to question 7.1), it was clearly stated that tasks which did not form part of the main activity, such as project management tasks, should normally be added to the operational charge. It was expressly stated that a workload of below 100% of the main activity, that is to say, one person for level 1, three persons for level 2 and six persons for level 3, would be considered insufficient: yet that is precisely what the applicant proposed.

212    As for the applicant’s argument that it included the management tasks for a particular activity in a different activity, the Commission’s argument on that point must be wholly endorsed. The model for Lot 2 defines the activities independently of each other. Consequently, the management task for a particular activity cannot form part of a different activity, as that would oblige the Commission to combine the activities, which was not the objective of the tendering specifications.

–       Question 5.5.3: ‘Explain the methodology that you will apply to make an estimation of the level and the number of days (within a total delay) in response to a request for a given activity’

213    According to the evaluation report, the applicant had proposed a cost estimation methodology without providing an example to illustrate it.

214    According to the note for the file, the applicant gave a theoretical description of well-known existing methodologies, in particular COSMIC-FTP, without providing a practical example.

215    The applicant asserts that the tendering specifications did not contain a requirement to provide an example and that it would have been pointless to do so, as the methodologies proposed were well known to the Commission. In addition, the Commission has not explained how the lack of an example could have affected the evaluation in question.

216    The applicant’s response consists largely in a general description of the methodologies COSMIC-FTP and CCOMO II. That description was unnecessary and provided no added value. That is all the more true because the applicant itself has acknowledged that those methodologies were well known to the Commission. An example of the way in which the applicant would have used those methodologies would, as the Commission correctly submits, have demonstrated that the applicant was indeed familiar with them, thus providing added value. In the absence of a specific example, the Commission could not be sure that that was so.

–       Question 5.5.4: ‘Explain how you will calculate the all-inclusive prices for specific on-site technical interventions for the different profiles’

217    According to the evaluation report, the price model for on-site interventions, including travel and accommodation, was complete. However, it was not detailed by profile.

218    According to the note for the file, the applicant’s response did not contain details of the calculation methodology in relation to the profiles themselves.

219    The applicant maintains that its tender presented a detailed calculation by profile.

220    It must be stated that the price model proposed by the applicant at paragraph 2 of the response to question 5.5.4 gave no indication of the way in which the various factors allowed the profiles to be distinguished. Furthermore, it designated the level of expertise of the various persons as a relevant element for the calculation of prices, instead of referring to the different profiles, although the tendering specifications specified no level of expertise for the technical interventions, but referred only to the need to mention the different profiles.

221    For that reason, the Commission did not make a manifest error of assessment when it assessed award criterion 5.

222    It follows from all of the foregoing considerations that the seventh plea must be rejected as unfounded, without there being any need, in those circumstances, to examine the applicant’s interest in raising it.

 The appointment of an expert

223    The Commission is opposed to the applicant’s request for the appointment of an expert. That would amount to a re-evaluation of the tenders, which falls outside the Court’s jurisdiction. Furthermore, it would lead to a situation in which, at the request of a single tenderer, namely the applicant, the Court, with the assistance of an expert who would give a single opinion, instead of the opinion of the members of the evaluation committee who carried out the initial evaluation, would make a new assessment that could be prejudicial to several other tenderers, who would not have had the opportunity to state their views. In addition, the Commission submits that the request must be rejected, since the applicant has not stated what the specific task of that expert would be.

224    As regards the extent of the Court’s review in such matters, it should be borne in mind that, according to settled case-law, the Commission enjoys 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 compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and the absence of a manifest error of assessment or misuse of powers (Tideland Signal v Commission, paragraph 84 above, paragraph 33; Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 84 above, paragraph 45; and judgment of 3 March 2011 in Case T‑589/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 24).

225    In those circumstances, the applicant’s request for the appointment of an expert must be rejected.

226    Since the applicant has been unsuccessful in all of its pleas relating to the decision to reject its tender, the application for annulment of that decision must be dismissed.

227    As regards the application for annulment of the decisions awarding the contract to the tenderers classified in first and second places, it must be rejected following the dismissal of the application for annulment of the preceding decision, to which it is closely linked (Case T‑406/06 Evropaïki Dynamiki v Commission, paragraph 87 above, paragraph 120).

3.     The claim for damages

228    In the first place, in the event that the Court should consider that the Commission has infringed the Financial Regulation or breached the principles of transparency and equal treatment, the applicant submits a claim for damages in the amount of EUR 30 million for Lot 2, which corresponds to the gross profit, namely 50%, that would have resulted from the award procedure in question if the applicant had been classified in first place. It bases its claim on Articles 268 TFEU and 340 TFEU.

229    In the second place, the applicant claims damages in the amount of EUR 3 million corresponding to loss of opportunity and damage to its reputation and credibility.

230    In accordance with settled case-law, for the Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission ECR [1997] II-1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its entirety, without there being any need to examine the other conditions (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraphs 19 and 81).

231    It is therefore necessary to consider whether those conditions are satisfied.

232    In the present case, all the arguments which the applicant has put forward in order to demonstrate the unlawfulness of the contested decision have been examined and rejected.

233    It is clear from the conclusions reached in relation to the application for annulment that the applicant has failed to prove unlawful conduct on the part of the Commission.

234    It follows that the claim for damages must be rejected.

235    In the light of all of the foregoing, the action must be dismissed in its entirety.

4.     The request for measures of organisation of procedure

236    The applicant requests the Court to adopt measures of organisation of procedure ordering production of the entire evaluation report, including the comments on the successful tenderers, and also a copy of their tenders. However, since those documents would not in any event call into question the examination carried out above, that request must be refused.

5.     Costs

237    The applicant requests that, even if the Court should dismiss the action, the Commission should be ordered to pay the costs, on the basis of the second subparagraph of Article 87(3) of the Rules of Procedure. It submits that the flawed evaluation of its tender, the failure to state the reasons for that evaluation, the failure by DIGIT to respond to the applicant’s administrative requests and the accompanying observations and to inform it of the outcome of the internal evaluations forced the applicant to bring the present action. The Commission should therefore be ordered to pay all the costs of these proceedings.

238    The Commission disputes the applicant’s claim.

239    It should be borne in mind that, under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the first subparagraph of Article 87(3) of those Rules, the Court may, where the circumstances are exceptional, order that the costs be shared.

240    In the present case, it was found that all the pleas must be rejected as unfounded. Furthermore, there is no other reason, in particular those set out in the second subparagraph of Article 87(3) of the Rules of Procedure, why the Court should depart from the abovementioned rule in Article 87(2) of the Rules of Procedure.

241    Consequently, since the applicant has been unsuccessful in all of its claims, it must be ordered to pay the costs, 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 Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

Czúcz Labucka Gratsias

Delivered in open court in Luxembourg on 15 October 2013.

[Signatures]

Table of contents

Background to the dispute

Procedure and forms of order sought

Law

1.  Admissibility of the action for annulment

2.  The action for annulment

First plea, alleging breach of the rules on the exclusion criteria

Second and third pleas, alleging infringement of Articles 106 and 107 of the Financial Regulation, breach of the tendering specifications and breach of the principles of transparency and non-discrimination

Fourth plea, alleging breach of the obligation to state reasons

Fifth plea, alleging breach of the principles of sound administration and equal treatment and of the rules regarding conflict of interest

Sixth plea, alleging infringement of Article 97 of the Financial Regulation and Article 138 of the Implementing Rules

Seventh plea, alleging the existence of manifest errors of assessment

–  Question 5.2.1: ‘Describe the elements that you will take into account and the organisation that you will put in place to confirm the data indicated by the Commission or propose a new date in your willingness to make a Fixed Price offer (step 4 of the roadmap for Fixed Price projects in the service requirements)’

–  Questions 5.2.3 and 5.2.4: ‘Based on the example in annex “Lot 2 – example [fixed price]” (question 5.2.3) / “Lot 2 – example [quoted time and means]” (question 5.2.4) in annex describe the structure and content of the proposals that you will submit to the Commission. A practical proposal based on the example has to be given as illustration’

–  Question 5.2.5: ‘Describe how you will ensure that the team you propose for a project has sufficient general expertise in the business domain of the project (for example in economy or statistics)’

–  Question 5.4.1.2: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the prototyping of an application. Illustrate the response with one example’

–  Question 5.4.1.3: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the development of an information system with structured data in an Oracle database and J2EE multi-tiers environment. Illustrate the response with one example’

–  Question 5.4.1.4: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the development of a web content management system (with unstructured data). Illustrate the response with one example’

–  Question 5.4.1.5: ‘Describe your technical proposal, including methodologies and tools in conformity with the service requirements document, for the development of a statistical information system. Illustrate the response with one example’

–  Question 5.4.2: ‘Describe the technical infrastructure (hardware, software, network and telecommunications) that you offer for the execution of the contracts (including the location(s) of this infrastructure)’

The evaluation of award criterion 5: quality of the proposal for pricing methodology

–  Question 5.5.1: ‘Considering the model for off-site developments described in paragraph 9.5 of the service requirements document, describe your proposal of the composition(s) of the team(s) (including profiles, expertise, qualifications and roles) for each activity and each level of size indicated below’

–  Question 5.5.3: ‘Explain the methodology that you will apply to make an estimation of the level and the number of days (within a total delay) in response to a request for a given activity’

–  Question 5.5.4: ‘Explain how you will calculate the all-inclusive prices for specific on-site technical interventions for the different profiles’

The appointment of an expert

3.  The claim for damages

4.  The request for measures of organisation of procedure

5.  Costs

* Language of the case: English