Error! Reference source not found.

Action brought on 16 June 2009 - Evropaïki Dynamiki v Commission

(Case T-247/09)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul the Commission's decision to reject the bid of the applicant, filed in response to the open Call for Tenders AO 10186 for the "Production and dissemination of the Supplement to the Official Journal of the European Union: TED website, OJS DVD-ROM and related Offline and Online media" (OJ 2009/S 2-001445), communicated to the applicant by a letter dated 7 April 2009, and all further decisions of the Commission including the one to award the contract to the successful contractor;

order the Commission to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 1.490.215,58;

order the Commission to pay the applicant's legal costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant's decision to reject its bid submitted in response to a call for an open tender for services of production and dissemination of the Supplement to the Official Journal of the European Union: TED website, OJS DVD-ROM and related Offline and Online media (AO 10186) and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims the applicant puts forward following pleas in law.

First, the applicant claims that the defendant committed various and manifest errors of assessment and that it refused to provide any justification or explanation to the applicant in breach of the financial regulation¹ and its implementing rules as well as in breach of directive 2004/18² and of Article 253 EC. It states that the Commission never informed the applicant on the relative merits of the winning tenderer as it was obliged, despite the applicant's written request. In the applicant's opinion the comments given by the Commission were vague, unsubstantiated and telegraphic and do not constitute reasonable motivation. The applicant further argues that the Commission corrected ex-post the motivation of the contested decision after the evaluation committee reviewed its report and decided to remove a comment regarding the successful tenderer.

Second, the applicant claims that the defendant infringed Articles 106 and 107 of the financial regulation as well as the principles of transparency and of non-discrimination by not excluding tenderers relying on work performed in non WTO/GPA countries; should it allow this participation, the applicant contends that it should proceed on a fair, transparent and non-discriminatory manner, clarifying the selection criteria it would use for excluding certain companies or accepting others.

Third, the applicant claims that the defendant committed manifest errors of assessment in respect of the applicant's bid in comparison with other tenderers and that it failed to state reasons as the negative considerations given by the evaluation committee in respect to the applicant's bid were vague and unsubstantiated.

____________

¹ - Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

² - Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)