JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
8 July 2020 (*)
(Public service contracts – Tender procedure – Maintenance of security installations in buildings occupied and/or managed by the Commission in Belgium and Luxembourg – Rejection of a tenderer’s offer – Award of the contract to another tenderer – Selection criteria – Illegality of a clause in the tender specifications – Equal treatment)
In Case T‑661/18,
Securitec, established in Livange (Luxembourg), represented by P. Peuvrel, lawyer,
applicant,
v
European Commission, represented by M. Ilkova, A Katsimerou and J. Estrada de Solà, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking annulment, first, of the decision of the Commission of 7 September 2018 rejecting the tender submitted by the applicant for Lot No 4 of the contract which was the subject of restricted tender procedure HR/R1/PR/2017/059 relating to the ‘maintenance of security installations in buildings occupied and/or managed by the European Commission in Belgium and Luxembourg’, and, secondly, of the Commission’s decision of 17 September 2018 refusing to provide the applicant with the information it had requested concerning that tender procedure on 11 September 2018,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 5 February 2020,
gives the following
Judgment
Background to the dispute
1 By a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2018/S 064-141552), the European Commission launched a restricted tender procedure for the ‘maintenance of security installations in buildings occupied and/or managed by the European Commission in Belgium and Luxembourg’.
2 The contract comprised seven lots. The fourth lot, to which the present case exclusively relates, was entitled as follows: ‘In-house maintenance of video surveillance, access control, unguarded passages, internal shutters, internal turnstiles, secured and other doors in Luxembourg’.
3 As regards the selection of candidates, which was the first phase of the tender procedure, point III.3.2.B of the tender specifications, entitled ‘Professional capacity of the team by candidate’, stated that, in line with the ‘minimum capacity’ requirements, the candidate’s ‘site manager’ technician was required to have ‘a certificate attesting to in-depth training on a Nedap security management software application’ (‘Nedap training’). By way of a supporting document, the candidate was required to submit either such a certificate or ‘a solemn declaration that [that certificate would] be obtained, should the contract be awarded, at the latest five days after the contract has been signed’.
4 As regards the award of the contract, which was the second phase of the tender procedure, the tender specifications provided in point IV.1 that ‘the contract [would] be awarded for each lot to the tenderer submitting the lowest bid that is in order and that satisfies the conditions laid down’.
5 Initially, the deadline for receipt of requests to participate was 30 April 2018. By a corrigendum published on 28 April 2018, that date was postponed to 16 May 2018.
6 On 26 April 2018, the applicant submitted a request to participate in Lot No 4. Five other candidates submitted requests to participate in the same lot.
7 By emails of 13 and 16 June 2018, the Commission asked the applicant for clarification of its application. The applicant provided that clarification by emails of 19 and 28 June 2018.
8 On 6 and 11 July 2018, on the basis of the documents provided, the Commission stated that all the candidates, including the applicant, satisfied the selection criteria and consequently invited them to submit their tenders by 6 August 2018 at the latest.
9 On 4 August 2018, the applicant submitted its tender. Two other undertakings also submitted their tenders.
10 By email of 7 September 2018, the Commission informed the applicant that the contract had been awarded to Omnisecurity SA, which had submitted the least expensive tender, and that the applicant’s bid was 48.55% higher than that of the successful tenderer.
11 By email of 11 September 2018, the applicant requested further information from the Commission regarding the grounds for the rejection of its tender. In particular, the applicant asked, first, whether the successful tenderer had Nedap certification, as required under point III.3.2.B of the tender specifications, asserting that only itself and one other undertaking ‐ which had not submitted a tender ‐ had Nedap certification in Luxembourg. Secondly, it asked whether the successful tenderer used a subcontractor, and if so, what was the name of the subcontractor.
12 On 17 September 2018, the Commission replied to that email by reference to the email of 7 September 2018, which, according to the Commission, contained all the information that must be communicated to the unsuccessful tenderers, in accordance with Article 113 of 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 last amended 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’, as amended).
13 In the email of 17 September 2018, the Commission stated that all the candidates invited to submit tenders satisfied the selection criteria, including the criterion laid down in point III.3.2.B of the tender specifications, and that information on any use of subcontractors by the successful tenderer would be communicated in the award notice.
14 The framework contract for Lot No 4 was signed with the successful tenderer on 19 September 2018. The contract award notice was published in the Official Journal on 30 October 2018 under reference 2018/S 209-476275.
Procedure and forms of order sought
15 By application lodged at the Court Registry on 7 November 2018, the applicant brought the present action.
16 By way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, the Court asked the parties to lodge certain documents and put to them written questions. The parties replied within the prescribed period.
17 The applicant claims, in essence, that the Court should:
– annul the decisions contained in the Commission’s emails of 7 and 17 September 2018;
– make ‘any such further orders as may be necessary’;
– order the Commission to pay the costs.
18 The Commission contends that the Court should:
– declare the action inadmissible in so far as it concerns the alleged decision of 17 September 2018;
– dismiss the action as unfounded in its entirety as to the remainder;
– order the applicant to pay the costs.
Law
Subject matter of the action
19 The applicant’s action for annulment is directed against the decisions contained in the Commission’s two emails, namely, first, the email of 7 September 2018, by which the Commission informed the applicant that its tender had not been successful and, secondly, the email of 17 September 2018, by which the Commission replied to the applicant’s request for information.
20 The Commission considers that the action must be dismissed as inadmissible in so far as it is directed against the decision contained in its email of 17 September 2018 on the ground that that decision is purely confirmatory and therefore cannot be classified as ‘an act’ within the meaning of the fourth paragraph of Article 263 TFEU. Indeed, in that email, the Commission merely referred to the information contained in the email of 7 September 2018 by which it had notified the applicant of the rejection of its offer and the grounds for that rejection, as well as disclosing the identity of the successful tenderer.
21 The applicant leaves it to the discretion of the Court, while asserting that, in its view, the decision contained in the email of 17 September 2018 does constitute ‘an act’ within the meaning of Article 263 TFEU.
22 In that regard, it should be noted that, according to settled case-law, an action for the annulment of a decision merely confirming a previous decision which has not been challenged and has therefore become final is inadmissible. A decision is regarded as a mere confirmation of a previous decision if it contains no new factors as compared with the previous decision and if it was not preceded by any re-examination of the situation of the addressee of that earlier decision (see, to that effect, judgment of 7 February 2001, Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 44 and the case-law cited).
23 Before examining whether the email of 17 September 2018 contains a decision that merely confirms the decision contained in the previous email of 7 September, it is necessary to ascertain whether that previous decision had become final in relation to the applicant at the time the present action was brought (see, to that effect, judgment of 16 September 1998, Waterleiding Maatschappij v Commission, T‑188/95, EU:T:1998:217, paragraph 108).
24 Where the confirmed decision has not become final by the time the action for annulment is brought, the person concerned is entitled to challenge either the confirmed decision, the confirmatory decision, or both (judgments of 11 May 1989, Maurissen and Union syndicale v Court of Auditors, 193/87 and 194/87, not published, EU:C:1989:185, paragraph 26, and of 31 May 2017, DEI v Commission, C‑228/16 P, EU:C:2017:409, paragraph 35).
25 In that regard, it should be noted that, under the sixth paragraph of Article 263 TFEU, an action for annulment is to be instituted within two months of the publication of the measure, or of its notification to the applicant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. That time limit may be extended on account of distance, in accordance with Article 60 of the Rules of Procedure.
26 In the present case, the action for annulment was brought on 7 November 2018, on which date the time limit for bringing proceedings against the decision contained in the email of 7 September 2018 had not yet expired.
27 In accordance with the case-law referred to in paragraph 24 above, the applicant was therefore entitled to direct its action not only against the decision contained in the email of 7 September 2018, but also against that contained in the subsequent email of 17 September.
28 The action is therefore admissible both in so far as it is directed against the decision contained in the email of 17 September 2018 and in so far as it is directed against that contained in the previous email of 7 September (‘the contested decisions’).
Substance
29 In the course of the proceedings, the applicant raised four pleas in law.
30 By the first plea, it submits that the Commission infringed the obligation to state reasons.
31 The second plea concerns point III.3.2.B of the tender specifications.
32 In the third plea, the applicant submits that the contested decisions were adopted in breach of the principles of transparency, equal treatment and non-discrimination.
33 In the fourth plea, it submits that, having been able to examine the tender evaluation report drafted by the Commission in the context of a measure of organisation of procedure, the successful tender was, for the purposes of the rules applicable to public procurement, abnormally low, which, according to the applicant, invalidates the contested decisions.
The first plea, alleging an infringement of the obligation to state reasons
34 The applicant considers that the statements of reasons for the contested decisions are inadequate, since the Commission’s only ground for rejecting its tender is that, being 48.55% more expensive than that submitted by the successful tenderer, the applicant’s tender was not the lowest priced among those received. The Commission did not explain to the applicant which other criteria it had failed to satisfy, and did not indicate which individual items of the successful tender were priced differently from those of its own tender and reflected a 48.55% price difference. The very brief statement of reasons given did not enable the applicant to defend itself.
35 The applicant states, furthermore, that by email of 11 September 2018, and in accordance with point (a) of the first subparagraph of Article 113(3) of the Financial Regulation and Article 161(2) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 (OJ 2012 L 362, p. 1), as last amended by Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7) (‘the Delegated Regulation’, as amended), it requested information on the characteristics and relative advantages of the successful tender, but the Commission’s email of 17 September 2018 did not provide it with that information. In the reply, the applicant argues inter alia that the Commission remained silent on the question whether the Nedap training criterion was fulfilled by the successful tenderer, even though it had asked the Commission about this in its email of 11 September 2018.
36 The Commission disputes the applicant’s arguments.
37 In that regard, according to Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, the administration has an obligation to give reasons for its decisions. That duty to state reasons requires, according to settled case-law, that, in accordance with Article 296, second paragraph, TFEU, the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to inform the persons concerned of the justification for the measure adopted and thus enable them to defend their rights and, on the other, to enable the court to exercise its power of review (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 16 May 2019, Transtec v Commission, T‑228/18, EU:T:2019:336, paragraph 91).
38 Furthermore, the requirement to state reasons must 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 reasoning 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).
39 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 grounds on which the decision was taken. Secondly, under point (a) of the first subparagraph of Article 113(3) of that regulation, the contracting authority is to inform each tenderer which is not in an exclusion situation, meets the selection criteria and makes a request in writing, of the characteristics and relative advantages of the successful tender, as well as the name of the successful tenderer and the price paid or contract value, as appropriate. In that connection, Article 161(2) of the Delegated 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’.
40 Therefore, with regard to unsuccessful tenderers, Article 113(2) and (3) of the Financial Regulation and Article 161(2) of the Delegated Regulation provide that the statement of reasons may be provided in two stages. The contracting authority must first inform all unsuccessful tenderers that their tender has been rejected and notify them of the grounds for that rejection. Next, under the same provisions, if an unsuccessful tenderer which is not in an exclusion situation and meets the selection criteria makes a request in writing, the contracting authority is to communicate as soon as possible, and in any case within 15 days of receipt of that request, the characteristics and relative advantages of the tender accepted, as well as the name of the tenderer and the price or contract value (see, to that effect, judgment of 26 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑752/15, not published, EU:T:2018:233, paragraph 27 and the case-law cited).
41 In the present case, the Commission complied with the requirements of the first of those stages, since, in its email of 7 September 2018, it wrote to the applicant: ‘We regret to inform you that your tender has not been successful because, according to the evaluation, the price of your tender was not the lowest bid received.’
42 As regards the grounds for the rejection of the tender, the above information is sufficient given that, as is clear from point IV.1 of the tender specifications, the only award criterion was price. Therefore, it was not necessary to refer to any criterion other than that one in the grounds for the rejection of the applicant’s tender.
43 As for the information to be communicated during the second stage, namely the characteristics and relative advantages of the successful tender, the name of the tenderer and the price or contract value, it appears that that information was communicated at the same time as that relating to the first stage, in the same email of 7 September 2018. That email also states:
‘Following the evaluation of the tenders, carried out in accordance with point IV.1 of the tender specifications and point II.2.5 of the contract notice, since Omnisecurity SA has submitted the tender which offers the lowest price and is fully compliant with the requirements of the tender specifications, it has been awarded the contract. The price of your tender was 48.55% higher than that of the successful tenderer.’
44 As required under point (a) of the first subparagraph of Article 113(3) of the Financial Regulation, that information includes the name of the successful tenderer: Omnisecurity SA.
45 The Commission did not explicitly state the contract value in the email of 7 September 2018 or in the subsequent email of 17 September, but as the applicant knew the price of its own tender, it could easily deduce the contract value from the price difference indicated in the first of those emails.
46 As regards the characteristics and relative advantages of the successful tender, and taking into account that, as recalled in paragraph 42 above, the only award criterion was price, the advantage of the successful tender could not be anything other than a price difference. As is clear from paragraph 43 above, that 48.55% difference was mentioned in the email of 7 September 2018.
47 Since it included all the elements required under Article 113(2) and (3) of the Financial Regulation, the information provided by the email of 7 September 2018 was sufficient for the purposes of the obligation to state reasons.
48 That finding cannot be called into question by the following arguments put forward by the applicant.
49 In the first place, the applicant complains that the Commission did not indicate in its emails of 7 and 17 September 2018 which items of the successful tender were priced differently from those of its own tender and reflected a 48.55% price difference.
50 In that regard, it should be noted, first of all, that the applicant did not make any such request in its email of 11 September 2018. The contracting authority cannot, therefore, be accused of having failed to respond to it, since the only information which the contracting authority must provide to unsuccessful tenderers is that set out in Article 113(2) and (3) of the Financial Regulation.
51 Secondly, according to settled case-law, the Commission cannot be required to communicate to an unsuccessful tenderer a detailed comparative analysis of its tender and of the successful tender (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited). Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 22 and the case-law cited).
52 Finally, disclosure of the successful tenderer’s unit prices is liable to harm the latter’s commercial interests and distort fair competition between operators (see, to that effect, judgment of 9 April 2014, CITEB and Belgo-Metal v Parliament, T‑488/12, not published, EU:T:2014:195, paragraph 46). Under the final subparagraph of Article 113(3) of the Financial Regulation, the contracting authority may withhold certain information where its disclosure might harm such interests.
53 Therefore, the Commission cannot be criticised for not communicating, in the emails of 7 and 17 September 2018, which individual items of the successful tender were priced at a level reflecting the 48.55% price difference between that tender and the applicant’s tender.
54 In the second place, the applicant complains that the Commission, in its email of 17 September 2018, did not respond to its requests concerning, first ‘the characteristics and relative advantages of the successful tender’, and secondly, the question whether the successful tenderer fulfilled the Nedap training criterion.
55 As regards the complaint concerning the ‘characteristics and relative advantages of the successful tender’, it is important to point out that, contrary to what the applicant asserts, it did not make a request in that regard in its email of 11 September 2018. In addition, it is clear from paragraph 46 above that, since the Commission indicated in its email of 7 September 2018 that ‘the price of the applicant’s tender is 48.55% higher than the price offered by the successful tenderer’, it did provide sufficient information on that point.
56 It cannot therefore be held that the Commission infringed the obligation to state reasons by not responding to the applicant’s request concerning the characteristics and advantages of the successful tender in its email of 17 September 2018.
57 The complaint regarding the Commission’s failure to answer the question on the successful tenderer’s Nedap training, which reply was, in fact, contained in the email of 11 September 2018, is unfounded.
58 Indeed, contrary to what is asserted by the applicant, the Commission stated in its email of 17 September 2018 that the evaluation committee had duly examined whether the candidates satisfied the selection criteria, including that provided for in point III.3.2.B of the tender specifications. It is therefore inaccurate merely to assert that the Commission did not respond to the applicant’s request concerning the successful tenderer’s Nedap training.
59 It cannot therefore be held that the Commission infringed the obligation to state reasons by not responding, in its email of 17 September 2018, to the applicant’s question as to whether the successful tenderer fulfilled the Nedap training criterion.
60 Consequently, the first plea must be rejected as unfounded.
The second plea, relating to point III.3.2.B of the tender specifications
61 In the second plea, the applicant challenges the legality of the contested decisions on grounds relating to point III.3.2.B of the tender specifications.
62 The plea is divided into three parts.
– The first part of the plea, concerning the lawfulness of the declaration provided by the successful tenderer
63 In the first part of the second plea, the applicant submits that the document produced by the successful tenderer to establish that it satisfied the condition laid down in point III.3.2.B of the tender specifications does not comply with that provision.
64 In that regard, it is important to point out, as indicated in paragraph 3 above, that point III.3.2.B of the tender specifications stated that, for Lot No 4, in line with ‘minimum capacity’ requirements, the ‘site manager’ technician was required to have ‘a certificate attesting to in-depth training on a Nedap security management software application’.
65 In order to prove that they satisfied the condition relating to Nedap training, the candidates were required, according to that same provision, to submit either a ‘certificate attesting to training on a Nedap security management software application’ or ‘a solemn declaration that it [would] be obtained, should the contract be awarded, at the latest five days after the contract has been signed’.
66 In the defence, the Commission stated that the successful tenderer had chosen the second option offered in point III.3.2.B of the tender specifications, and that it had submitted the solemn declaration referred to therein.
67 When questioned by the Court on that point in the context of a measure of organisation of procedure, the Commission produced the document which it considered to constitute that declaration. That document states the following in respect of the ‘site manager’ technician responsible for performing the contract:
‘Nedap certificate: no, this application is not used in Luxembourg at present. Should it become necessary in the future, we hereby confirm that Nedap certification will be obtained in due course.’
68 At the hearing, the applicant submitted, for the first time, that that confirmation did not comply with the requirements set out in the tender specifications. First of all, the document provided by the successful tenderer does not include a ‘solemn declaration’. Secondly, it contains no commitment to provide the certificate within five days of the contract being signed, but merely conveys the idea, in very vague terms, that certification would be obtained ‘should it become necessary in the future’ and ‘in due course’.
69 Those arguments are disputed by the Commission, which takes the view that, as ‘requiring the use of specific wording would have been overly formal’, it could reasonably assume, as it did in the decision of 7 September 2018 without requesting clarification from the successful tenderer, that the tender submitted by the latter was ‘entirely compliant with the requirements of the tender specifications’. Moreover, the Commission contends that, since the applicant’s complaint in that regard was raised at the hearing, it was made out of time and therefore cannot be taken into account.
70 In that regard, it should be noted that, according to Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure.
71 Article 84(2) of the Rules of Procedure further provides that, where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings, the main party concerned is to introduce the new pleas in law as soon as those matters come to their knowledge. Furthermore, that provision in no way excludes the possibility that matters of law or fact may have been discovered, as in the present case, in the context of a measure of organisation of procedure (see, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 370, and of 13 December 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑764/14, not published, EU:T:2016:723, paragraph 48).
72 In the present case, the document containing the supposed solemn declaration was produced by the Commission on 9 August 2019 in response to a measure of organisation of procedure adopted by the Court following the exchange of the parties’ pleadings.
73 After that document was produced, on 24 September 2019, the Court requested the applicant to submit its observations ‘on the documents and replies’ thus communicated by the Commission.
74 However, in its observations, and as it acknowledged itself at the hearing, the applicant did not put forward any arguments concerning the form or content of the declaration in that document.
75 It follows that, contrary to what is provided for in Article 84(2) of the Rules of Procedure, the applicant did not lodge the complaint concerned as soon as that document came to its knowledge.
76 Accordingly, the complaint must be rejected as inadmissible.
77 The first part of the second plea must therefore be rejected.
– The second part of the plea, concerning the certification provided by the tenderer
78 In the second part of the second plea, the applicant submits that the certification produced by the successful tenderer after the contract was signed did not comply with the requirements set out in point III.3.2.B of the tender specifications. First, the certificate was not produced within five days of signing the contract. Secondly, that certificate was not issued by Nedap, but by another undertaking which is not authorised to issue such certificates, as is apparent from an exchange of correspondence on that subject between the applicant and some Nedap representatives.
79 The Commission disputes that line of argument.
80 In that regard, it should be noted that the public procurement process comprises several stages.
81 First, tender specifications are drafted, setting out, inter alia, the services which the successful tenderer will be expected to provide, the selection criteria which the candidates or tenderers must satisfy in order to be permitted to submit a tender, and the award criteria on the basis of which the tenders will be evaluated.
82 Secondly, the candidates which have submitted a request to participate are selected on the basis of the selection criteria set out in the tender specifications. The selected candidates are permitted to submit a tender.
83 Thirdly, the tenders received by the contracting authority are assessed on the basis of the award criteria set out in the tender specifications, and one of them is selected as the winning tender, after which the contract is awarded and signed.
84 Finally, the contract is performed by the successful tenderer.
85 As is apparent from the sequence of different stages, the question whether a document produced by a successful tenderer after the contract has been awarded complies with the conditions set out in the tender specifications ‐ assuming that those conditions are valid ‐ does not concern the third stage, relating to the award of the contract, which is at issue in the present action, but the final stage, relating to the performance of the services under the contract, and therefore does not concern the contested decisions.
86 Accordingly, there is no need to examine, in the context of the present action, whether the certification produced by the successful tenderer after the contract was signed complied with the requirements set out in point III.3.2.B of the tender specifications.
87 The second part of the second plea must therefore be rejected.
– The third part of the plea, concerning the illegality of point III.3.2.B of the tender specifications
88 In the third part of the second plea, the applicant raises a plea of illegality against a clause in point III.3.2.B of the tender specifications allowing candidates to provide, at the selection stage, a declaration confirming that, should their tender be successful, they will produce a Nedap training certificate within five days of signing the contract.
89 In the reply, the applicant therefore submitted that the option, provided in the tender specifications, to produce a Nedap training certificate after the contract has been signed is ‘illogical, difficult to understand, and even risky, since it is liable to create uncertainty from a legal and technical standpoint, leaving the door open to more serious risks in the event that a successful tenderer does not comply with that condition after being awarded the contract’.
90 At the hearing, the applicant submitted, furthermore, that that clause was unrealistic, unlawful and unfair, in that it allowed the contracting authority to award the contract to a tenderer when it could not be certain that that tenderer would produce the required certificate or, therefore, that it would have the capacity to perform the contract, while other tenderers which had that certificate were rejected.
91 The Commission considers that the argument is unfounded and that, in any event, it is inadmissible, because it was put forward for the first time in the reply and is formulated in excessively vague terms.
92 As regards admissibility, Article 84(1) of the Rules of Procedure provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact that have come to light in the course of the procedure.
93 In the present case, it is in the defence that the Commission disclosed, in response to the second plea, that the successful tenderer had provided a solemn declaration.
94 Before that point, the applicant could not therefore have known exactly how the successful tenderer had shown that it fulfilled the Nedap training criterion: by a certificate issued to the successful tenderer itself, a certificate issued to a subcontractor, a solemn declaration by the successful tenderer or a solemn declaration by a subcontractor.
95 In those circumstances, the applicant cannot be criticised for raising for the first time in the reply the complaint that point III.3.2.B was unlawful in so far as it allowed the candidates, at the selection stage, to provide a solemn declaration making a commitment, should the contract be awarded to them, to obtain a Nedap training certificate within five days of signing the contract. It was not until the applicant became aware of how the successful tenderer had actually shown that it fulfilled that selection criterion that it was able to put forward its arguments in a precise and targeted manner. In order to be able to plead the illegality of the relevant provision of the tender specifications, it was necessary for the applicant to know that the successful tenderer had actually taken the option of making a solemn declaration.
96 As regards the second argument relating to inadmissibility, it is settled case-law that a summary of the pleas in law and the content thereof, which must be provided in accordance with Article 76(d) of the Rules of Procedure, must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited).
97 In order to guarantee legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, that the essential facts and points of law relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited).
98 That rule concerning the pleas in law relied on in the application also applies to new pleas in law relied on in the reply, provided that they are based on matters of law or fact which have come to light in the course of the procedure.
99 In the present case, the argument at issue, as it appears from the reply, is sufficiently clear to enable the Commission and the Court to understand that the applicant disputes the option afforded candidates to show that they fulfil the training criterion (provided for in point III.3.2.B of the tender specifications) by making a solemn declaration, in so far as it does not enable the contracting authority to ensure that the successful tenderer fulfils that selection criterion before the contract is signed, and gives rise to the risk that the contract may be awarded to a tenderer that lacks the technical capacity to perform it.
100 For those reasons, it must be held that the third part of the present plea is admissible.
101 As to the substance, the Commission contends that the clause in point III.3.2.B of the tender specifications must be regarded as valid in that it allows candidates to make a solemn declaration of their commitment to obtain Nedap training certification, if the contract is awarded to them, within five days of signing the contract.
102 In that regard, it should be noted that funds from the EU budget must be used in such a way as to ensure that the resources allocated to the institutions are optimised.
103 Under Article 102(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to respect the principles of transparency, proportionality, equal treatment and non-discrimination.
104 By that provision, the EU legislature sought to establish a framework for public procurement, under which tenders submitted by duly selected undertakings are to be compared in order to choose which undertaking is best placed to perform the contract.
105 Under those public procurement requirements, the contracting authority has the obligation to verify, at the latest when the contract is awarded, whether the tenderer which submitted the best tender actually satisfies the conditions laid down in the tender specifications.
106 That obligation is not fulfilled where, as in the present case, the tender specifications allow the contract to be awarded on the basis of a declaration provided by a tenderer and containing a commitment to fulfil, after the contract has been signed, a condition relating to technical and professional capacity, where that condition is a ‘minimum’ requirement for the performance of the contract.
107 In defining that condition as a ‘minimum’ requirement in the tender specifications, the contracting authority indicated that, in order for tenderers to be able to perform the contract in question in a satisfactory manner, it was essential for them to have the relevant certificate and, therefore, to have completed the necessary training to obtain that certificate.
108 In that regard, it should be held, as noted by the applicant, that a clause providing for the option not to complete professional training – defined in the tender specifications as a ‘minimum’ requirement – until after the contract is signed cannot be held to comply with the principle of equal treatment, because it could lead to the contract’s being awarded to a tenderer which does not fulfil that requirement, while other participants which have already completed that training at the time of the award are unsuccessful.
109 Moreover, not verifying that the successful tenderer actually has the required professional skills to perform the contract until after the contract has been awarded, could have the result, contrary the principle of legal certainty, that, should that tenderer be unable to provide the certificate concerned, the contract would have to be terminated and another procedure organised, in order to ensure that the project which is the subject matter of the contract at issue could be delivered.
110 In that regard, it should be noted that, during the hearing, doubts were expressed as to, first, whether the document which the successful tenderer submitted to the Commission after the contract was signed complies with the conditions laid down in the tender specifications, and secondly, whether the time limit of 5 days provided for in the tender specifications was complied with, since it took the successful tenderer 15 days to take the necessary steps and 2 months to provide the required certificate.
111 In any event, the obligation to verify, at the award stage, whether the successful tenderer meets the capacity requirements set out in the tender specifications is laid down in the legislation itself.
112 Indeed, according to Article 110(1) of the Financial Regulation, contracts are to be awarded provided that the contracting authority has verified, inter alia, that the candidate or tenderer meets the selection criteria specified in the procurement documents.
113 It is clear from that provision that a contract may not be awarded unless it has been duly verified and established that the tenderer meets the capacity requirements set out in the tender specifications.
114 Consequently, in so far as it allows verification of the Nedap training requirement to take place after the contract has been awarded, the clause contained in point III.3.2.B of the tender specifications is unlawful.
115 The Commission puts forward a number of arguments against that position.
116 In the first place, it contends, as stated in paragraph 3 above, that the tender specifications allowed tenderers to prove that they met the training requirement laid down in the clause either by producing a certificate of training or by way of a solemn declaration that that certificate would be obtained with five days of signing the contract. The Commission asserts that, accordingly, the option to make a declaration was provided for in the tender specifications as a selection criterion. At the end of the procedure, the Commission verified whether the successful tender complied with the requirements in the tender specifications. Since the option to make that declaration was provided for in the tender specifications, it considered that the contract could be awarded to the successful tenderer.
117 In that regard, it should be noted that, in its plea of illegality, the applicant does not call into question the compatibility of the award decision with the tender specifications, but rather the legality of a clause within those tender specifications under which a contract may be awarded on the basis of a declaration provided by a tenderer and containing a commitment, or a promise, to provide, after the contract has been signed, a certificate confirming that it has completed the training to acquire a skill deemed to be a ‘minimum’ requirement for the performance of the contract.
118 First, such a commitment does not provide the reliability needed in order for a contract to be awarded in circumstances that guarantee the legal certainty required to ensure the proper use of EU funds and, secondly, it does not ensure equal treatment of the participants, since a commitment to provide a certificate of training cannot be regarded as equivalent, in the context of an objective comparison, to the skill acquired from that training.
119 In the second place, the Commission contends that the clause at issue was intended to open the contract up to candidates that were not yet in possession of a Nedap training certificate when they submitted their requests to participate. Moreover, since that training has a cost, it was not appropriate to compel candidates whose tenders may not have been successful to incur such an expense.
120 In that regard, it should be pointed out that derogation from the principles of equal treatment and legal certainty in the interests of avoiding costs to the candidates is not justifiable: the contract must be awarded to the undertaking whose tender offers the best value for money and which has proved its technical capacity to perform it. Where the contracting authority wishes to increase the number of participants in a public procurement procedure, it may use the mechanisms at its disposal which are admissible under the applicable rules and principles. In particular, it may provide for broader technical and professional capacity requirements which are likely to be fulfilled by a greater number of undertakings.
121 In the third place, the Commission contended at the hearing that, in the judgment of 25 November 2014, Alfastar Benelux v Council (T‑394/12, not published, EU:T:2014:992), the Court had held that it was permissible for a selection criterion to be verified after the award of the contract.
122 In that regard, as stated by the Commission, the judgment it cited concerned a contract for which the tenderer was required, inter alia, to have security clearance, and that clearance could be replaced by a letter of intent to take the necessary steps to fulfil the security clearance (judgment of 25 November 2014, Alfastar Benelux v Council, T‑394/12, not published, EU:T:2014:992, paragraph 165).
123 In that case, the applicant criticised the Council for having stated that, at the selection stage, the undertakings could simply provide a letter of intent, without being required to show that all the staff concerned were actually already security-cleared at that stage (judgment of 25 November 2014, Alfastar Benelux v Council, T‑394/12, not published, EU:T:2014:992, paragraph 202).
124 In that context, the Court examined whether, at the selection stage, the acceptance of a letter of intent was legitimate in view of the contracting authority’s broad discretion, as recognised in the case-law, to determine and evaluate the criteria to be fulfilled by the participants at that stage in the procedure.
125 The issue arising in the present case is different, since it is not a question of determining whether a solemn declaration should have been accepted at the selection stage, but rather a question of determining whether the contract should have been be awarded, and ultimately signed, purely on the basis of a solemn declaration, and without verifying whether the successful tenderer actually had the technical capacity required by the tender specifications under the selection criteria.
126 On that point, in the judgment of 25 November 2014, Alfastar Benelux v Council (T‑394/12, not published, EU:T:2014:992), cited by the Commission, the Court did not take a position different to that adopted in the present case, as it stated that the Council had ‘found’, at the award stage, that the applicant ‘was already in possession of the clearance required’ (see paragraph 167 of the judgment), which implies that a check was carried out at that stage to verify whether the successful undertaking actually had the capacity required by the tender specifications to perform the contract.
127 In the fourth place, the Commission stated that, when the tender specifications were drafted, the products for which Nedap training was required had not yet been installed in the building concerned, so it was not necessary to have that training at the start of the performance of the contract. Furthermore, it was not certain that the products for which Nedap training was required would be installed during that contract, so the training relating to those products may not have been necessary.
128 In that regard, it is sufficient to note that public contracts must awarded in compliance with the conditions and requirements set out in the tender specifications.
129 The tender specifications at issue in this case stated, as indicated in paragraph 3 above, that, in line with ‘minimum capacity’ requirements, the tenderer’s ‘site manager’ technician was required to have a certificate of in-depth Nedap training.
130 Therefore, as indicated in paragraph 114 above, and in accordance with the provisions mentioned in paragraphs 103 and 112 above, the contracting authority should have verified whether that technical requirement was actually fulfilled by the successful tenderer before the contract was awarded and signed.
131 For those reasons, the arguments put forward by the Commission must be rejected.
132 Consequently, the third part of the second plea must be upheld and the contested decisions must be annulled, without it being necessary to examine the applicant’s other pleas.
133 In its second head of claim, the applicant requests that Court make ‘any such further orders as may be necessary’.
134 That claim, however, is not sufficiently precise, which is contrary to Article 76(d) and (e) of the Rules of Procedure. Furthermore, even if that claim were to be interpreted as an application for a direction to be issued to the Parliament, it must be borne in mind that, in the context of an action based on Article 173 of the Treaty, the Court has no power to issue directions to the institutions (see, to that effect, judgment of 11 July 1996, Bernardi v Parliament, T‑146/95, EU:T:1996:105, paragraph 27).
Costs
135 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.
136 Since the Commission has been largely unsuccessful, it must be ordered to bear its own costs as well as those incurred by applicant, in accordance with the form of order sought by latter.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls the European Commission’s decision of 7 September 2018 rejecting the tender submitted by Securitec for Lot No 4 of the contract which was the subject of restricted tender procedure HR/R1/PR/2017/059 relating to the ‘maintenance of security installations in buildings occupied and/or managed by the European Commission in Belgium and Luxembourg’, and the Commission’s decision of 17 September 2018 refusing to provide Securitec with the information it had requested concerning that tender procedure on 11 September 2018;
2. Dismisses the action as to the remainder;
3. Orders the Commission to pay the costs.
Gervasoni | Nihoul | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 8 July 2020.
[Signatures]