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Action brought on 19 February 2009 - Evropaïki Dynamiki v Commission

(Case T-86/09)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and P. Katsimani, 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 Tender MARE/2008/01 for the "Provision of computer and related services, including the maintenance and development of DG MARE information systems"¹ communicated to the applicant by letter dated 12 December 2008 and all further related decisions 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 2 520 000;

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 MARE/2008/01 for the "Provision of computer and related services, including the maintenance and development of DG MARE information systems" and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages on account of the tender procedure.

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

First, it argues that the defendant infringed the principle of equal treatment as it failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation² regarding one member of the winning consortium and it discriminated against the applicant by not offering it access to all the available technical documentation and the source code which was only available to the incumbent contractor. The applicant further considers that the weighting ration for the application of the award criterion of the "most economically advantageous offer" practically neutralised the impact of the effect of the price in breach of the provisions of the financial regulation. Moreover, the applicant claims that the defendant based the evaluation of its offer on different criteria than those presented in the tender specifications, thus infringing the obligation of transparency.

Second, the applicant contends that the defendant failed to provide sufficient motivation of its decision in particular regarding quality criteria 2 and 3 in violation of the principle of transparency.

Third, the applicant raises doubts as to the fact that the members of the evaluation committee acted despite being in conflict of interests and therefore in violation of a procedural requirement.

Fourth, the applicant claims that the defendant committed several manifest errors and misused its power of assessment.

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¹ - OJ 2008/S 115-152936

² - 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 L 248, p. 1)