JUDGMENT OF THE GENERAL COURT (Third Chamber)
10 September 2019 (*)
(Public service contracts – Tender procedure – IT application and infrastructure management services – Rejection of a tenderer’s bid and award of the contract to other tenderers – Obligation to state reasons – Assessment of the existence of abnormally low tenders – Characteristics and relative merits of the tenders accepted – Request for a statement of reasons made by a tenderer who is not in an exclusion situation and whose tender is compliant with the procurement documents)
In Case T‑741/17,
TRASYS International EEIG, established in Brussels (Belgium),
Axianseu – Digital Solutions SA, established in Lisbon (Portugal),
represented by L. Masson and G. Tilman, lawyers,
applicants,
v
European Aviation Safety Agency (EASA), represented by S. Rostren, E. Tellado Vásquez and H. Köppen, acting as Agents, and by V. Ost, M. Vanderstraeten and F. Tulkens, lawyers,
defendant,
APPLICATION based on Article 263 TFEU seeking annulment of EASA’s decision of 28 August 2017 rejecting the tender submitted by the applicants’ consortium in call for tenders EASA.2017.HVP.08 relating to a public service contract concerning IT application and infrastructure management in Cologne (Germany), and awarding the contract in accordance with a cascade system to three other tenderers,
THE GENERAL COURT (Third Chamber),
composed of S. Frimodt Nielsen, President, I.S. Forrester (Rapporteur) and E. Perillo, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 11 April 2019,
gives the following
Judgment
Background to the dispute
1 By a contract notice of 5 April 2017, published in the Supplement to the Official Journal of the European Union of 15 April 2017 (OJ 2017 S 075-144229) under reference EASA.2017.HVP.08 (‘the contract notice’), the European Aviation Safety Agency (EASA) launched a tendering procedure relating to a public services contract concerning IT application and infrastructure management in Cologne (Germany).
2 The contract notice related to the conclusion of one or more framework contracts for IT application and infrastructure management services. The framework contracts established a cascade (ranking) system. Thus, EASA awarded assignments, first, to the operator ranked in first place, then to the operator ranked second and, finally, to the tenderer ranked third.
3 On 31 May 2017, the applicants, TRASYS International EEIG (‘Trasys’), a European Economic Interest Grouping, and Portuguese undertaking Axianseu – Digital Solutions SA (formerly Novabase IMS – Infrastructures & Management Services SA), submitted a joint tender as a consortium led by Trasys. Seven other tenderers submitted bids in response to the contract notice.
4 It was stated in the specifications that the framework contract would be awarded to the most economically advantageous tender according to the best value for money principle, with technical quality weighted against price on a 50/50 basis in the evaluation of the tenders submitted, provided that the successful tenderer(s) met certain minimum requirements in terms of eligibility and non-exclusion, capacity and the compliance of the tender.
5 On 13 July 2017, after assessing the tenders received and on the basis of a comparison of the rates proposed by the various tenderers, EASA sent to four tenderers (Atos, Icarus, e-Kare and UniSystems) requests for justification concerning, in particular, the seemingly abnormally low prices they were proposing. In response to the tenderers’ replies to the requests for justification, EASA sought additional information, on 18 August 2017, from each of the tenderers concerned who had supplemented their responses. The applicants were not informed of that correspondence.
6 By decision of 28 August 2017 (‘the contested decision’), EASA rejected the tender submitted by the applicants’ consortium in call for tenders EASA.2017.HVP.08, and awarded the framework contract, applying the cascade system, to the following three tenderers: Icarus, ranked in first place, Atos, ranked in second place, and UniSystems, ranked in third place.
7 By letter of 28 August 2017, EASA informed Trasys that, according to the evaluation of the tender submitted by the applicants’ consortium, which was ranked in fifth place, that tender was not the most economically advantageous. It was clear from a table included in that letter, comparing the first successful tenderer and the applicants’ consortium, that the first successful tenderer’s ‘technical score’ was 82, while that of the applicants was 91, giving a ‘weighted technical score’ of 41 for the first successful tenderer and of 45.5 for the applicants. The ‘weighted financial score’ was 48.8 for the first successful tenderer and just 29.64 for the applicants, giving a ‘total score’ of 89.80 for the first successful tenderer and of 75.14 for the applicants. EASA invited Trasys to request further information if it so wished.
8 By email of 31 August 2017, Trasys asked EASA to provide it with the detailed evaluation report.
9 On 1 September 2017, EASA provided the applicants with the names and rankings of the successful tenderers and an extract from the evaluation report, which consisted of a table comparing the scores of the first successful tenderer with those of the applicants’ consortium in the technical evaluation.
10 By letter of 6 September 2017, the applicants disputed the outcome of the tendering procedure. In particular, they requested that EASA suspend the signing of the framework contract, allow them access to a reasoned decision on the award of the contract, and provide them, if appropriate, with a copy of the tender evaluation report. According to the applicants, the prices proposed by the successful tenderers must have been abnormally low, particularly in view of the fact that the services were to be provided in Cologne.
11 By letter of 15 September 2017, EASA informed the applicants that it would not suspend the signing of the framework contract, and stated that, during the evaluation procedure, the three successful tenderers had been asked to provide further details on the prices they had proposed, and that those details had been considered to be sufficient by the evaluation committee. EASA enclosed with that letter the technical evaluation tables of the three successful tenderers, with some passages redacted.
12 On the same day, Trasys lodged a complaint with the European Ombudsman, registered under reference 1633/2017/MDC.
13 On 25 September 2017, in another request to suspend the signing of the contract, which was based on the requirements of the obligation to state reasons laid down in the case-law and expressed doubts as to the abnormally low prices of at least one of the two tenderers, the applicants’ consortium asked EASA to produce the documents by which it had requested information from the tenderers, and the responses provided by the latter, as well as the document containing the reasoning which led EASA to accept the justification provided by the tenderers from whom information had been requested.
14 On 17 October 2017, EASA sent the applicants a copy of the contested decision together with the evaluation report and the documents by which it had requested clarification from the tenderers. In the copies provided, long sections containing information the disclosure of which, according to EASA, may have undermined the protection of privacy or harmed the legitimate commercial interests of the tenderers concerned had been redacted. As regards the responses to the requests for justification, EASA explained to the applicants that, if there was any uncertainty as to the potentially confidential nature of the documents in question, it was obliged to seek consent for the disclosure of such documents from the tenderers concerned.
15 On 30 October 2017, the applicants lodged their application with the Registry of the General Court and brought the present action.
16 On 7 November 2017, following exchanges with the four tenderers concerned by the contracting authority’s requests for justification on the question of abnormally low prices, namely Atos, e-Kare, Icarus and UniSystems, who claimed business secrets and personal data, EASA informed the applicants that it would not send them the documents requested.
17 By letter of 4 December 2017, at the request of the Ombudsman, with whom Trasys had lodged its complaint, EASA provided some additional information, stating that, in the course of the evaluation process, doubts had been raised as regards the question of the abnormally low prices proposed by the four tenderers, such as the daily prices for certain specific profiles, which appeared to be substantially lower than current market prices for an equivalent service, and that two further exchanges had taken place in order to clarify that question as regards those tenderers. EASA explained to the Ombudsman that, besides asking some specific questions, it had requested that the tenderers provide evidence that their prices complied with the applicable environmental, social and labour laws and that the services were provided at rates comparable to those stated in the tenders. EASA also stated that all the tenderers had replied, submitting evidence such as, in particular, payment receipts, invoices and contract references for services provided in a similar environment. Moreover, all the tenderers confirmed their compliance with national labour and social security laws for the entire duration of the contract, and provided EASA with calculations as evidence which EASA submitted to the Ombudsman in a confidential annex. EASA explained that the evaluation committee had accepted the prices given in the financial offers, taking into account the declarations made by the tenderers and the documentation and cost calculation formulas submitted in support of those declarations, because there was neither sufficiently strong evidence nor any proof to justify the rejection of the three highest-ranking tenders. EASA also mentioned that it had carefully considered Trasys’ letter of 6 September 2017, but had concluded that that letter was based on assumptions and did not contain sufficient evidence.
18 In its communications with the Ombudsman, EASA stated that it had provided to the applicants all the documentation requested. However, EASA did not inform the Ombudsman that the documents sent to the applicants did not contain the details of the verification process it had carried out in relation to the possibility that the prices proposed were abnormally low, or that those documents had been redacted for reasons of confidentiality.
19 At the same time, EASA sent the Ombudsman confidential documents as evidence in a confidential annex.
20 By letter of 4 February 2018, EASA informed the Ombudsman of the proceedings before the General Court. Nevertheless, the Ombudsman gave a decision, stating that the subject matter of the action before the General Court was not identical to that of the complaint Trasys had lodged with her, since the aim of the complaint was simply to obtain a better response from EASA to the questions about the successful tenders’ compliance with national and EU employment law. In that context, the Ombudsman closed the procedure on 1 June 2018, concluding that the matter was settled, as EASA had improved its initial replies by providing Trasys with a detailed, appropriate and more comprehensive response.
Procedure and forms of order sought
21 By application lodged at the Registry of the General Court on 30 October 2017, the applicants brought the present action.
22 EASA lodged its defence at the Court Registry on 19 March 2018.
23 By order of 22 November 2018, on the basis of Article 103(1) of its Rules of Procedure, the General Court ordered EASA to produce the full confidential version of the evaluation report, the requests for price justification and the letters in reply to the requests for price justification. The Court also stated that those documents would not be disclosed to the other parties at that stage. EASA produced the requested documents within the period allowed.
24 The parties presented oral argument and answered questions put by the Court at the hearing on 11 April 2019, and by way of a measure of organisation of procedure which preceded the hearing.
25 After the hearing, the Court granted the parties a period of time in which to negotiate an agreement and discontinue the proceedings. On 2 May 2019, EASA informed the Court that the parties had not reached an agreement within the time allowed, which meant that the oral part of the procedure was closed.
26 The applicants claim that the Court should:
– annul the contested decision;
– order EASA to pay the costs.
27 EASA contends that the Court should:
– declare the action inadmissible in so far as it is directed against ‘the implied decision not to award the various framework contracts to the applicants’;
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
28 The applicants rely on a single plea in law, alleging failure to state adequate reasons in the contested decision with regard to an essential aspect thereof. Accordingly, they criticise EASA for having failed to identify, to the requisite legal standard, the reasons which led it to the conclusion that the prices proposed by the three successful tenderers were not abnormally low. In that regard, the applicants rely in particular on publicly available statistics and on the comparison between the successful tenderers’ technical scores and their own.
Subject matter of the dispute
29 EASA contends that the action is inadmissible in so far as it refers to ‘the implied decision not to award the various framework contracts to the applicants’. If the Court were to annul the contested decision on the ground that its statement of reasons was inadequate, in so far as that decision awarded the framework contracts to the three successful tenderers, it would be for EASA to take the measures necessary to comply with the Court’s judgment, in accordance with Article 266 TFEU. The Court cannot substitute its own assessment for that of EASA by requiring it to award one of the framework contracts to the applicants.
30 That objection must be rejected. It is clear from the application that the applicants are not asking for the contract to be awarded to them, but only for the contested decision, which awarded that contract to three other tenderers and therefore contains the implicit decision not to award it to the applicants, to be annulled.
31 It is not disputed that the applicants have a genuine interest in obtaining the annulment of the contested decision. It has previously been held that tenderers whose bids had been rejected had an interest in bringing proceedings for annulment of an award decision in order to be restored sufficiently to their original position, in accordance with the obligation laid down in Article 266 TFEU, which can be brought about, where appropriate, by pecuniary compensation for the loss sustained (see, to that effect, judgment of 29 October 2015, Direct Way and Direct Way Worldwide v Parliament, T‑126/13, EU:T:2015:819, paragraph 44).
32 In the circumstances of the present case, the contested decision, which includes, in an annex, the evaluation report, contains both a section relating to the award of the service contract to the three tenderers ranked according to the cascade system and, implicitly but necessarily, a section relating to the rejection of the tender submitted by the applicants’ consortium, which was not ranked in the top three after the evaluation of the tenders, but appears at each stage of that evaluation. Those two sections constitute, in actual fact, a single decision (see, to that effect, judgment of 4 February 2016, PRIMA v Commission, T‑722/14, not published, EU:T:2016:61, paragraph 16 and the case-law cited).
33 It must therefore be concluded that the action seeks annulment of the contested decision in so far as it awarded the contract at issue to three tenderers other than the applicants and, in so doing, rejected the tender submitted by the applicants for that contract. The plea of inadmissibility raised by EASA must therefore be rejected.
Substance
34 As a preliminary point, it should be noted that, by restricting their claim to a single plea in law alleging insufficient reasoning as regards the question whether the prices in the successful tenders were abnormally low, the applicants do not put forward any other arguments concerning, for example, according to EASA, access to documents claimed to be confidential or the existence of a manifest error of assessment on the part of the contracting authority in the public procurement procedure.
Assessment of the existence of abnormally low tenders and the obligation to state reasons
35 It must be noted at the outset that the contracting authority has a broad discretion with regard to the factors to be taken into account when deciding to award a contract following an invitation to tender. It has that broad discretion throughout the procurement procedure, including in the choice and evaluation of the award criteria (see judgment of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 44 and the case-law cited).
36 It should also be noted that, where the institution which adopted the measure has a broad discretion, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the institution which adopted the measure to provide adequate reasons for its decisions. Only in this way can the European Union Courts determine whether the factual and legal elements upon which the exercise of the discretion depends were present (see judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraphs 36 and the case-law cited). Failure to have regard for essential procedural requirements pertaining to a decision must result in the annulment of that decision (see, to that effect, judgment of 30 March 1995, Parliament v Council, C‑65/93, EU:C:1995:91, paragraph 21).
37 Moreover, in order to examine whether EASA has fulfilled its obligation to state reasons as regards the assessment of the existence of abnormally low tenders, it is necessary to identify the elements required in that connection by the case-law.
38 Those elements concern, first, the content of the statement of reasons, secondly, the time limit within which the statement of reasons must be provided to the tenderer concerned and, thirdly, the scope of the statement of reasons required.
39 First, as regards the content of the statement of reasons, it should be recalled that the assessment as to whether tenders submitted are abnormally low is one of the factors that the contracting authority is required to verify, in accordance with Article 151 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), as amended by Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7) (‘the Implementing Regulation’).
40 In that regard, it should be noted that the concept of an ‘abnormally low tender’ is not defined either in Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), as amended most recently by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1) (‘the Financial Regulation’), or in the Implementing Regulation. However, it has been held that the question whether a tender is abnormally low must be assessed by reference to the composition of the tender and the services at issue (judgment of 28 January 2016, Agriconsulting Europe v Commission, T‑570/13, EU:T:2016:40, paragraph 55).
41 Under Article 276(4) of the Implementing Regulation, in the case of abnormally low tenders, the evaluation committee is to request any clarifications concerning the composition of the tender which it considers relevant.
42 The obligation for a contracting authority to check whether a tender is genuine arises where there are doubts beforehand as to its reliability, since the main purpose of Article 276(4) of the Implementing Regulation is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appears abnormally low. Thus, it is only where such doubts exist that the evaluation committee is required to request details of the constituent elements of the tender which it considers relevant before, where appropriate, rejecting it. However, where a tender does not appear to be abnormally low for the purposes of Article 151(1) of the Implementing Regulation, Article 276(4) of that regulation does not apply (see, by analogy, judgment of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 40 and the case-law cited).
43 In particular, such doubts may exist if it does not appear certain whether, first, a tender complies with the legislation of the country in which the services are to be provided regarding the remuneration of staff, contributions to the social security scheme, compliance with occupational safety and health standards and selling at a loss and, secondly, the price proposed includes all the costs generated by the technical aspects of the tender (judgment of 8 October 2015, Secolux v Commission, T‑90/14, not published, EU:T:2015:772, paragraph 62). The same applies where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price (see, to that effect, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 88).
44 It is clear from the foregoing that the assessment by the contracting authority of whether the tenders submitted are abnormally low is made in two stages (judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 87).
45 In the first stage, the contracting authority must determine whether the price or cost proposed in a tender ‘appears’ to be abnormally low (see Article 151(1) of the Implementing Regulation). The use of the verb ‘appear’ in the Implementing Regulation requires the contracting authority to carry out a prima facie assessment as to whether the tender is abnormally low. Therefore, the Implementing Regulation does not require the contracting authority to carry out, on its own initiative, a detailed analysis of the constituent elements of each tender in order to establish that it is not an abnormally low tender. Thus, in the first stage, the contracting authority need only determine whether the tenders submitted contain evidence such as to arouse suspicion that they might be abnormally low (see, by analogy, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 88, which refers to the former wording of Article 151 of the Implementing Regulation, the substance of which has not changed in the version of the Implementing Regulation applicable in this case).
46 If there is evidence which arouses suspicion that a tender might be abnormally low, the contracting authority must, in the second stage, check the constituent elements of the tender in order to satisfy itself that it is not abnormally low. Where it carries out such a check, the contracting authority must give the tenderer which submitted that tender the opportunity to set out the reasons why it considers that its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low and, if that is the case, it must reject the tender (judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 89).
47 In this case, it is established that there were doubts as to the prices proposed by a number of tenderers. First, EASA itself had doubts in that regard, which led the contracting authority to request clarification from the tenderers concerned, including the three successful tenderers, on 13 July and 18 August 2017. Secondly, having been informed of the outcome of the call for tenders, the applicants informed EASA, on 6 and 25 September 2017, of their own doubts and provided evidence as to the existence of abnormally low tenders. On several occasions, as soon as they were able, the applicants also asked EASA to provide an explicit statement of reasons for its assessment of the existence of abnormally low tenders in respect of the evaluation and award of the contract in question.
48 It is clear that, in requesting disclosure of the reasons why the evaluation committee had found that the bids submitted by the successful tenderers were not abnormally low, the applicants were asking the contracting authority to specify the characteristics and advantages of those tenders (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 46 and the case-law cited). It should be noted that the applicants’ consortium was not in an exclusion situation, that its tender was compliant with the procurement documents and that that tender was not successful because it was not considered to be the most economically advantageous. It is also apparent that, when the tenders were assessed from a technical point of view, the tender submitted by the applicants’ consortium was ranked in first place, with 91 points out of 100. However, on completion of the evaluation, and taking into account the outcome of the evaluation of the tenders from a financial point of view, the tender submitted by the applicants’ consortium was ranked in fifth place out of the six ranked tenderers.
49 It should also be noted that, where there is evidence such as to arouse suspicion of the existence of abnormally low tenders, the contracting authority is required to inform the unsuccessful tenderer of the reasons why the tender it accepted does not appear to it to be abnormally low, if the unsuccessful tenderer has made an express request in that regard (see, to that effect, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 93).
50 In other words, in such a situation, the assessment of the existence of abnormally low tenders forms part of the characteristics and relative merits of the successful tenders in respect of which the contracting authority must provide relevant information, in accordance with Article 113(3)(a) of the Financial Regulation, if such information is expressly requested by a tenderer who is not in an exclusion situation and whose tender is compliant with the procurement documents.
51 Secondly, as regards the period within which the statement of reasons must be provided, according to case-law the statement of reasons must, in principle, be disclosed to the person concerned at the same time as the decision adversely affecting him (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149, and of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74).
52 Nevertheless, information provided at a later date may be taken into account to examine whether the statement of reasons is sufficient, in so far as it is limited to providing further details as to the initial statement of reasons and is based on the facts and law as they stood when the decision was adopted (see judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 38 and the case-law cited).
53 However, the question of whether the obligation to state reasons has been fulfilled must be assessed in the light of the information available to the applicant, at the latest, when the action was brought (see judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 37 and the case-law cited). Failure to state the reasons cannot therefore be remedied by the fact that the person concerned becomes aware of the reasons for the decision during the proceedings before the Courts of the European Union (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149, and of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74).
54 Explanations provided for the first time ex post facto before the Court cannot be taken into account, save in exceptional circumstances (see, to that effect, judgment of 20 May 2009, VIP Car Solutions v Parliament, T‑89/07, EU:T:2009:163, paragraph 76 and the case-law cited)
55 In this case, in the absence of exceptional circumstances, the information in the light of which it is possible to examine the statement of reasons for the contested decision as regards the assessment of the existence of abnormally low tenders is, therefore, the information that was disclosed to the applicants by EASA, at the latest, when the action was brought, on 30 October 2017.
56 Thirdly, account must be taken of the criteria established by case-law relating to the scope of the statement of reasons required, particularly as regards the existence of abnormally low tenders.
57 The purpose of the obligation, under Article 296 TFEU, to state the reasons for an individual decision is, in addition to permitting review by the Courts, to disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to provide the persons concerned with sufficient information to make it possible to determine whether the decision is vitiated by an error enabling its validity to be challenged (see judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 147 and 148 and the case-law cited, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 115 and the case-law cited).
58 Moreover, in so far as the statement of reasons must reflect, in particular, the interest which the addressees of the measure may have in obtaining explanations, that interest is made clear by, for example, the arguments relied on before the contracting authority by the parties concerned (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 150 to 161).
59 As indicated by EASA, the requirement to state reasons must also be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116).
60 In general, as regards public contracts concluded by EU institutions, first, Article 113(2) of the Financial Regulation provides that the contracting authority is to notify all tenderers whose tenders are rejected of the reasons why their tenders were unsuccessful. Secondly, under Article 113(3), the contracting authority is to inform each tenderer who is not in an exclusion situation, whose tender is compliant with the procurement documents and who makes a request in writing, of the characteristics and relative merits of the successful tender and the name of the successful tenderer. In that connection, Article 161(2) of the Implementing Regulation specifies that ‘the contracting authority shall communicate the information provided for in Article 113(3) of the Financial Regulation as soon as possible and in any case within 15 days of receipt of a request in writing’.
61 Therefore, with regard to tenderers who satisfy the conditions set out in Article 113(3) of the Financial Regulation, under Article 113(2) and (3) of the Financial Regulation and Article 161(2) of the Implementing Regulation, the statement of reasons may be provided in two stages.
62 More specifically, as regards the assessment of the existence of abnormally low tenders, it should be noted that requiring the contracting authority to state the reasons why an offer is not considered to be abnormally low does not mean that it is obliged to disclose precise information on the technical and financial aspects of that tender, such as the prices offered or the resources that the successful tenderer proposes to use in order to provide the services that it offers. In order to provide a sufficient statement of reasons for that aspect of the successful tender, the contracting authority must set out the reasoning on the basis of which, first, it concluded that, on account primarily of its financial characteristics, that tender complied, inter alia, with the national legislation of the country in which the services were to be provided in respect of the remuneration of staff, contributions to the social security scheme and compliance with occupational safety and health standards and, secondly, it determined that the proposed price included all the costs arising from the technical aspects of the successful tender (see judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 49 and the case-law cited).
63 Similarly, it is not sufficient for the contracting authority merely to state, in a single sentence, that the successful tender is not abnormally low, nor for it merely to maintain that that was considered not to be the case (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraphs 45 and 47 and the case-law cited). A contracting authority cannot explain why a tender is not abnormally low merely by stating that, after the tenderer in question provided clarifications, it was concluded that that tender was not abnormally low (see, to that effect, judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 64).
64 According to case-law, it is not sufficient to produce tables in isolation or figures, and, in the absence of explanatory comments on the tenders, the scores awarded by the contracting authority reflect merely the outcome of the evaluation, and not the evaluation itself or a brief summary of the evaluation carried out by the contracting authority. It is also established case-law that it must be possible to understand how the contracting authority has arrived at the result at issue (see, to that effect, judgment of 18 July 2016, Argus Security Projects v Commission, T‑266/14, not published, EU:T:2016:415, paragraphs 47 to 51).
65 If there are doubts as to the existence of abnormally low tenders, the contracting authority must therefore set out the reasoning on the basis of which it concluded that, first, on account primarily of their financial characteristics, the successful tenders complied in particular with the national legislation of the country in which the services are to be provided in respect of the remuneration of staff, contributions to the social security scheme and compliance with occupational health and safety standards and, secondly, the proposed price included all the costs arising from the technical aspects of the successful tenders (judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 68).
The information provided to the applicants regarding the assessment of the existence of abnormally low offers
66 It is in the light of the considerations set out in paragraphs 35 to 65 above that it is necessary to examine the single plea in law, alleging failure to state adequate reasons concerning the suspicion that the bids submitted by the successful tenderers are abnormally low.
67 During the two months which elapsed between 28 August 2017, the date when the contracting authority informed the applicants that their tender had been unsuccessful at the conclusion of the assessment procedure, and 30 October 2017, the date when the action was brought, the applicants requested, clearly and repeatedly, to be informed of the reasons the contracting authority considered the tenders submitted by the three successful tenderers not to be abnormally low.
68 In the first place, it must be noted that EASA did not reply individually to the applicants’ requests, even though they had put forward concrete reasons for their doubts, referring, inter alia, to the statistics on minimum daily rates published by Payscale (a specialist website providing information on remuneration and salaries) in their letter of 6 September 2017, and to a comparison of their technical scores with those of the successful tenderers in their letter of 25 September 2017. According to the case-law cited in paragraphs 63 to 65 above, the applicants were entitled to receive explanations in the light of the arguments put forward.
69 If EASA considered that the points of comparison used for the applicants’ calculations were invalid, it could have mentioned this (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 51). In any event, EASA was not exempted from its obligation to provide explanations.
70 In the second place, from an examination of the information which EASA actually provided to the applicants, and which EASA sets out in its defence as evidence in support of its claim that it has thereby fulfilled its obligation to state reasons as regards the question of potentially abnormally low prices, it transpires that that information was either irrelevant or incomplete.
71 The information which EASA disclosed to the applicants did not concern the question of abnormally low prices. Accordingly, the replies of 1 September and 15 September 2017 to the applicants’ requests contained the names of the three successful tenderers, an extract from the evaluation report and some additional information relating to the technical evaluation, as well as a general confirmation that no irregularities in the procurement procedure had been found. The details disclosed concerned only technical aspects. Moreover, the contested decision, of which the applicants received a complete copy on 17 October 2017, does not deal with prices. The evaluation report, a copy of which is attached as an annex to the contested decision and which was referred to in that decision, contains a great many redacted passages and does not give any information on prices or the breakdown thereof. That report contains a general remark indicating that the evaluators checked the financial offers for arithmetical errors. The financial scores are also mentioned, but without any explanation, and an Annex E is provided with the text of a ‘model financial offer’. The evaluation report also indicates that the tenderers whose bids required clarification were given the opportunity to answer the requests for clarification. The report refers in that respect to ‘Annex G’ for an overview of the tenderers concerned and a summary of the correspondence exchanged with them.
72 Annex G to the evaluation report as well as several emails, copies of which were sent to the applicants with some of the information redacted, in fact address the issue of abnormally low prices.
73 Accordingly, the applicants received a standard form asking a range of questions, including questions on prices, but the completed forms were not provided. Moreover, Annex G contains remarks to the effect that the three successful tenderers provided the clarifications and proof requested, after an extension of the deadline until 26 July 2017 in the case of Atos and Icarus, while in the case of e-Kare, further requests for clarification were made on that date.
74 However, the copy of the evaluation report sent to the applicants and its annexes remain silent as to the reasons which led the evaluators to consider, in the light of the clarifications requested and received, that the tenders of the four consortia mentioned were not, despite their initial suspicions, abnormally low.
75 EASA also disclosed to the applicants its emails requesting justification of the prices sent to the tenderers in July and August 2017. All specific information was redacted. Those documents reveal the subject matter of the requests for justification, namely the prices for certain profiles, but do not identify the problematic profiles. Moreover, in its emails, when requesting evidence, EASA refers to the admissible categories of evidence and mentions to the tenderers their obligation to demonstrate compliance with social and labour law. In one of its emails to UniSystems, EASA emphasises the obligation for the tenderer to confirm that it will be able to apply the prices offered for the entire duration of the framework contract.
76 Although those documents contain information which is more detailed than a brief statement, the disclosure of that fragmented information is not sufficient to fulfil the obligation to state reasons. First, those documents merely provide some information on the procedure adopted by EASA, without setting out its reasoning as regards the relevant characteristics of the prices. Thus, that information does not disclose the reasoning followed by the institution which adopted the measure in such a way as to enable the Court to exercise its power of review and make the persons concerned aware of the reasons for the measure, thereby enabling them to defend their rights (judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 47).
77 Secondly, it is clear from the case-law cited in paragraph 64 above that, where the contracting authority provides information in the form of figures or tables, it is obliged to provide explanatory comments to show how it reached the conclusion in question and to reflect the evaluation it adopted. The only comment which the applicants received in due time as regards the assessment of the question of potentially abnormally low prices was in the letter of 15 September 2017, according to which the clarifications requested from the various tenderers related to a variety of subjects, and the responses had been assessed and accepted by the evaluation committee. This is not sufficient to satisfy the obligation to state reasons laid down by case-law.
78 EASA claims that the documents disclosed gave the applicants sufficient knowledge of the context. It relies on the judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways (T‑392/15, EU:T:2017:462, paragraph 97), from which it is clear that having knowledge of context enables applicants to challenge the merits of the decision. In the present case, however, the partial information disclosed to applicants, even when viewed as a whole in order to provide an awareness of the context in which the contested decision was adopted, is not sufficient. In the case that gave rise to the abovementioned judgment, the contracting authority took the view that the successful tenders did not contain any circumstantial factors such as to arouse suspicion that they might be abnormally low. In the present case, the initial suspicion of abnormally low prices is not in dispute. The applicants wanted to know why the contracting authority’s initial doubts were dispelled. EASA could have explained, without breaching confidentiality, how the three successful tenderers had convinced it that their tenders were acceptable, as it did later in the procedure before the Ombudsman.
79 Moreover, even with regard to the extracts from certain emails and the evaluation report, in the present case, there was no information in those disclosed documents as regards whether the proposed price included all the costs generated by the technical aspects of the successful tender, even though, in their letter of 25 September 2017, the applicants expressly pointed out that, according to case-law, in order to provide sufficient reasons to the requisite legal standard as regards the question of abnormally low prices, that issue had to be addressed.
80 Thirdly, it should be acknowledged that the information provided by EASA in the procedure before the Ombudsman contains a more detailed line of reasoning, which led the Ombudsman to close the procedure, concluding that the matter was settled. If such an explanation had been provided to the applicants in due time, the current dispute might have been avoided. Nevertheless, the additional information provided by EASA cannot be used to justify the contested decision because it was disclosed on 4 December 2017, whereas the action was brought on 30 October 2017.
81 Fourthly, EASA cannot evade its obligation to state reasons by claiming that documents are confidential.
82 Allowing access to documents is not the only way to disclose the information required to establish that the statement of reasons was adequate. The alleged confidentiality of certain documents does not prevent the contracting authority from rewording, in a more abstract manner, the reasons why it took the decision not to exclude the tenderers concerned from the procurement procedure on account of abnormally low prices.
83 Admittedly, as mentioned by EASA, the obligation to state reasons does not allow the disclosure of confidential information. However, EASA does not argue that it was not possible to provide, if expressly requested, an adequate statement of reasons paraphrasing the confidential details, or a statement of reasons that was more informative and useful than some pages of redacted text. Although certain information cannot be disclosed, it is in principle possible at least to describe the nature of that information or the category to which that information belongs, or even to provide some percentages that would make it possible to compare the prices in question with benchmarks. It has been acknowledged in case-law that a substantial price difference may be explained by the following: the fact that the applicant needed to subcontract 35% of the contract, while the successful tenderer had the staff to perform all the tasks; the fact that the applicant was a new entrant on the market who was not familiar with the services to be provided and had therefore applied a higher margin; the successful tenderer’s focus on prices; and price and quality comparisons with previous similar contracts (see, to that effect, judgment of 8 October 2015, Secolux v Commission, T‑90/14, not published, EU:T:2015:772, paragraphs 64 and 65).
84 Information of that nature would not undermine the confidentiality of trade figures, names of the contracting parties under previous contracts or other sensitive details. Indeed, in the present case, EASA itself disclosed the ‘weighted financial score’ of the first successful tenderer in its letter of 28 August 2017. If, therefore, that score was not part of the data it considered confidential, the question arises as to why the ‘weighted financial score’ of the successful tenderers ranked second and third was not disclosed to the applicants. Both the principle of transparency and the principle of the protection of legitimate business interests of undertakings and fair competition should have been taken into account by EASA. According to case-law, those objectives must be reconciled with each other in order to ensure the consistent application of the Financial Regulation and of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (see, to that effect, judgment of 14 December 2017, Evropaïki Dynamiki v Parliament, T‑136/15, EU:T:2017:915, paragraph 67 and the case-law cited).
85 In the present case, in particular, EASA does not claim that it did not have the opportunity to provide, within a reasonable period, explanations which were at least comparable to those which it ultimately provided, at the request of the Ombudsman, on 4 December 2017, and which it clearly did not consider to be confidential. Until that date, EASA made no effort to provide a statement of reasons which would satisfy the relevant criteria. It focused entirely on the disclosure and confidentiality of the documents, without deeming it necessary to provide any explanations.
86 However, by letter of 4 December 2017, EASA described the evaluation process coherently and in more detail. It explained, inter alia, that its initial doubts concerning certain daily rates had been dispelled by the tenderers’ submission of cost calculation formulas, payment receipts, invoices, contract references for services provided in a similar environment and statements confirming that the applicable laws were complied with. Moreover, in that letter, EASA explained that, in their letter of 6 September 2017, the applicants had not provided sufficiently strong evidence or proof on the basis of which the first three ranked tenders could have been rejected.
87 It follows that, in its response of 4 December 2017, which the Ombudsman regarded as more detailed, better and more comprehensive, EASA provided evidence that it was possible to give a more comprehensive statement of reasons without disclosing protected information or details. The question whether the statement of reasons given on 4 December 2017 would have been sufficient is not the subject of the present proceedings. In order to establish whether there was a procedural error which justifies the annulment of the contested decision, it is sufficient to note that an adequate explanation could have been provided in due time, but was not provided within a reasonable period.
88 In the light of the foregoing, it is necessary to uphold the single plea, alleging a failure to state adequate reasons in the contested decision as regards the reasons which led the contracting authority to conclude that the successful tenders were not abnormally low. Consequently, EASA’s disregard of essential procedural requirements in relation to the contested decision must lead to the annulment of that decision, without it being necessary to consider whether EASA was wrong to conclude that the successful tenders were not abnormally low (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 53 and the case-law cited).
Costs
89 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EASA has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls the decision of the European Aviation Safety Agency (EASA) of 28 August 2017 rejecting the tender submitted by the TRASYS International EEIG and Axianseu – Digital Solutions SA consortium in call for tenders EASA.2017.HVP.08 relating to a public service contract concerning IT application and infrastructure management in Cologne (Germany), and awarding the contract in accordance with a cascade system to three other tenderers;
2. Orders EASA to pay the costs.
Frimodt Nielsen | Forrester | Perillo |
Delivered in open court in Luxembourg on 10 September 2019.
[Signatures]