JUDGMENT OF THE GENERAL COURT (Second Chamber)
20 September 2011(*)
(Public service contracts – Community tendering procedure – Supply of external services for educational programmes – Award of the contract to several tenderers – Tenderer’s ranking – Action for annulment – Obligation to state the reasons on which the decision is based – Grounds for exclusion from the contract award procedure – Article 93(1)(f) of the Financial Regulation – Tender validity period – Non‑contractual liability)
In Case T‑298/09,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by N. Bambara and E. Manhaeve, acting as Agents, assisted by P. Wytinck, lawyer,
defendant,
APPLICATION, first, for annulment of two Commission decisions, communicated in two separate letters of 12 May 2009 ranking the applicant, for its tenders in response to the open call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752), for Lot No 1 (IS (information system) Development and Maintenance) and for Lot No 2 (IS (information system) Studies, Testing, Training and Support), as second contractor for each of those lots and, secondly, for damages,
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood, President, F. Dehousse (Rapporteur) and A. Popescu, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 26 January 2011,
gives the following
Judgment
Facts
1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company incorporated under Greek law and operating in the field of information technology and communications.
2 By a contract notice of 16 August 2008 published in the Supplement to the Official Journal of the European Union (OJ 2008 S 158) under reference 2008/S 158-212752, the Commission launched the call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) comprising two lots, namely Lot No 1 (IS (information system) Development and Maintenance) and Lot No 2 (IS (information system) Studies, Testing, Training and Support).
3 In the tendering specifications the Commission stated that, for each lot, multiple framework contracts would be signed with the tenderers who submitted the three best tenders. Those specifications stated that such contracts could be awarded to a maximum of three tenderers per lot. They further set out the criteria to be used for the technical evaluation of the various tenders, their respective weighting in the evaluation and the minimum and maximum number of points for each award criterion. For Lots Nos 1 and 2 the weighting factor for the technical criteria was 70% and for the price criterion 30%.
4 On 6 October 2008, the applicant submitted tenders for Lots Nos 1 and 2. By letter of 10 March 2009, the Commission asked the applicant for certain clarification, which it provided by letter of 17 March 2009.
5 On 12 May 2009, the Commission informed the applicant, in two separate letters, of its decisions (taken together, the ‘contested decisions’) to rank the applicant as second contractor for Lot No 1 and for Lot No 2. It stated, among other things, that the applicant could request additional information.
6 By letter of 12 May 2009, the applicant asked the Commission to send it certain information, in particular the names of the ‘successful tenderers’ and of their partners or subcontractors, if any, the scores awarded in each award criterion for both the applicant’s and the ‘successful tenderers’’ tenders, a thorough analysis of the strong and weak points of its tenders and of those of the ‘successful tenderers’, a detailed copy of the evaluation report, the names of the members of the evaluation committee in order to check potential conflicts of interest and details as to how the financial offers of the ‘successful tenderers’ compared with the applicant’s.
7 In the absence of any reply by the Commission to its letter of 12 May 2009, the applicant reiterated its request by faxes dated 26 May and 8 June 2009.
8 By letter of 5 June 2009, the Commission notified the applicant, for each lot, of the name of the best-ranked tenderer and the applicant’s and that tenderer’s score sheets, as well as the comments made by the evaluation committee for each award criterion. It also stated that no contract had yet been signed and that the applicant had three working days to submit comments which could justify, if appropriate, suspension of the signature of the contracts.
9 By letter of 9 June 2009, the applicant drew attention to the delay with which the Commission had replied to its request of 12 May 2009, as well as to the irregular dispatch of the framework contracts to ‘the winning tenderers’ before ‘the standstill period’ had elapsed and even before communicating to all tenderers the results of the call for tenders in question. It also mentioned the fact that those tenderers had not fulfilled their obligations under other contracts with the Commission and expressed its doubts, in particular with regard to the application of the exclusion criteria, relating to their participation in new contract-award procedures. The applicant, in addition, noted that the average person-day rate of the best-ranked tenderer for Lot No 1 was equivalent to its own and that that rate of the best-ranked tenderer for Lot No 2 was much higher. Finally, it reserved the right to prove, as soon as the Commission’s Directorate-General for Education and Culture supplied it with detailed information on the evaluation, that the evaluation was based on serious errors of assessment and that its tender should have been ranked first for each of the lots.
10 By letter of 12 June 2009, the Commission assured the applicant that the rules of procedure had been complied with, stated that there were no grounds justifying a further examination of the tenders and that it was therefore going to proceed with the signing of the contracts. By letter of the same day, the applicant replied to the Commission that it regretted that its arguments had been rejected and took note of the Commission’s refusal to provide the information requested.
11 By letters of 16 July 2009, the Commission informed the three best-ranked tenderers for each of Lots Nos 1 and 2, including the applicant, that, owing to delays, it had not signed the contracts within the period of nine months laid down in the call for tenders and asked them to extend by three months the period of their tenders’ validity. By letter of 28 July 2009, the applicant agreed to extend the validity of its tenders for those lots. However, it expressed certain reservations, indicating that it felt forced to acquiesce, whilst reserving all its rights, since a refusal on its part would lead the Commission to eliminate it from the award procedure. The other tenderers concerned agreed to the extension.
Procedure and forms of order sought by the parties
12 By application lodged at the Court Registry on 22 July 2009, the applicant brought the present action.
13 Upon hearing the Report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing on 26 January 2011.
14 The applicant claims that the Court should:
– annul the contested decisions;
– order the Commission to pay compensation for the damage suffered;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– dismiss the application for annulment;
– dismiss the claim for compensation or, in the alternative, limit the amount claimed;
– order the applicant to bear the costs.
Law
The claim for annulment
16 It is appropriate to note, by way of preliminary remark, that the applicant relies on breach of the Court’s procedural rules, on the ground that the Commission omitted certain parts of its case from its defence only to put them forward in the rejoinder. Questioned in that regard by the Court at the hearing, the applicant made clear that it was relying on breach of Article 48 of the Court’s Rules of Procedure, which excludes the introduction of new pleas in law in the course of proceedings, and that, in this instance, the arguments concerned appeared in paragraphs 29 to 31 of the rejoinder, as was formally noted at the hearing.
17 In that regard, it is appropriate to observe that in paragraphs 29 to 31 of the rejoinder the Commission is only responding expressly to certain arguments developed by the applicant in its reply. In fact, the arguments expounded by the Commission in paragraph 29 of the rejoinder respond to those developed by the applicant in paragraph 33 of the reply, by which the applicant alleged that the assessment of one of the award criteria was erroneous. Likewise, in paragraph 30 of the rejoinder, the Commission summarises some of the arguments advanced by the applicant in the reply, to which the Commission then responds in paragraphs 31 to 33 of its rejoinder.
18 In any case, even on the assumption that Article 48(2) first subparagraph of the Rules of Procedure is applicable here, the Commission, in paragraphs 29 to 31 of the rejoinder, did not raise any new plea in law in the sense of that provision.
19 In addition, the applicant raises three pleas in law in support of its claim for annulment. The first plea alleges infringement of the principle of non‑discrimination, infringement of Articles 93(1) and 94 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’) concerning the conditions governing exclusion, as well as alleging infringement of the principle of sound administration. The second plea in law alleges infringement of Article 100(2) of the Financial Regulation concerning the obligation to state reasons. The third plea alleges that the tender validity period was excessive and its extension unlawful.
20 It is appropriate to begin with an examination of the second plea in law, alleging infringement of Article 100(2) of the Financial Regulation concerning the obligation to state reasons.
The second plea in law, alleging infringement of Article 100(2) of the Financial Regulation concerning the obligation to state reasons
– Arguments of the parties
21 The applicant maintains that the Commission failed to fulfil its obligation to state reasons. It argues that the Commission refused to provide it with any valid justification or explanation. The evaluation committee used too vague terms in evaluating the applicant’s tender and did not sufficiently specify its weak points. The applicant maintains also that the information provided by the Commission about the offers of the ‘winning tenderers’ is inadequate in the light of the provisions of Article 100(2) of the Financial Regulation and of Article 149 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p.1; ‘the Implementing Rules’). The applicant submits that it does not have elements available to enable it to compare the relative advantages of its offers with those of such tenderers or to enable the Court to exercise its power of review. It adds, in its reply, that those tenderers recruit massively among its staff and that in many Member States, such as the Hellenic Republic, the United Kingdom of Great Britain and Northern Ireland, and the Republic of Cyprus, the tenders of all tenderers are disclosed on request.
22 The applicant requests, in addition, that the Commission disclose to it the full evaluation report, including the relevant observations concerning the ‘winning tenderers’, and copies of their tenders or at least a statement of reasons concerning the relative merits of those tenderers.
23 In response to the Commission’s arguments as to protection of the intellectual property rights and commercial interests of the best-ranked tenderers, the applicant submits that they are, subject to further clarification by the Commission, without foundation in this case. It also maintains, in the reply, that had the Commission complied with the applicable provisions, it would have ranked the applicant first in the cascade mechanism for each of Lots Nos 1 and 2, and that since it failed to study the tender in sufficient detail it made manifest errors of assessment.
24 The Commission refutes the applicant’s arguments.
– Findings of the Court
25 Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules provide that the contracting authority has to notify every unsuccessful tenderer of the grounds for the rejection of its tender and all unsuccessful tenderers who made an admissible tender and a request in writing, within not more than 15 calendar days from receipt of that request, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. Under the second subparagraph of Article 100(2) of the Financial Regulation, certain details need not, however, be disclosed where disclosure would harm the legitimate business interests of public or private undertakings
26 Article 149(3) of the Implementing Rules provides that the contracting authority is to inform each unsuccessful tenderer, simultaneously and individually, that its tender has not been accepted. Those tenderers may, on written request by mail, fax or email, obtain additional information about the reasons for the rejection, and each tenderer which submitted an admissible tender may, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation, obtain information about the characteristics and relative advantages of the successful tender accepted and the name of the successful tenderer. The contracting authority must reply within not more than fifteen calendar days from the date of receipt of the request.
27 The obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35, and Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II-1403, paragraph 63).
28 In addition, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, 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 (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and France v Commission, paragraph 36).
29 Moreover, the contracting authority fulfils its obligation to state reasons if, in the case of awarding a contract to several tenderers in cascade, it confines itself, first of all, to informing immediately each tenderer other than the best-ranked, of the reasons for that ranking and if it then informs all such tenderers of the characteristics and relative advantages of the tender of the best-ranked tenderer, together with its name, within fifteen calendar days of receiving a written request (see, by analogy, judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47, and Case T‑437/05 Brink’s Security Luxembourg v Commission [2009] ECR II‑3233, paragraph 160).
30 Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 296 TFEU, according to which 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 make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (see, by analogy, Evropaïki Dynamiki v Commission, paragraph 48).
31 Finally, according to the case-law, if the institution or agency concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate (see, by analogy, VIP Car Solutions v Parliament, paragraph 73).
32 In this case the Commission, in the contested decisions, ranked the applicant as second contractor for each of Lots Nos 1 and 2. It also informed the applicant that it could request additional information.
33 Following the applicant’s request for additional information (see paragraph 6 above), reiterated by faxes of 26 May and 8 June 2009, the Commission informed the applicant, by letter of 5 June 2009, for each lot, of the name of the best-ranked tenderer, the applicant’s and that tenderer’s scores and the comments made by the evaluation committee for each award criterion. It also stated that the evaluation report as a whole, the identities of the members of the evaluation committee and the financial offers of the ‘successful tenderers’ were not information to be notified under Article 100(2) of the Financial Regulation.
34 Consequently, in order to determine whether the Commission satisfied its duty to state reasons, the Court must examine, in addition to the contested decisions, the letter of 5 June 2009.
35 The fact that the letter of 5 June 2009 was sent eight days later than the time-limit laid down in Article 149(2) of the Implementing Rules of fifteen calendar days from the date of the request’s receipt, though regrettable, did not however restrict the applicant’s opportunity of asserting its rights before the Court and cannot, by itself, lead to the annulment of the contested decisions (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 52). It is apparent from the contents of the court file that the applicant made use of the information contained in that letter to bring the present action.
36 The applicant submits that the Commission refused to provide it with any valid justification or explanation and it thus relies, first of all, on failure to state reasons.
37 However, it must be held that, in view of the contents of the letter of 5 June 2009 (see paragraph 8 above), that submission is not valid. In fact, the Commission informed the applicant, for each lot, of the name of the best-ranked tenderer, the applicant’s and that tenderer’s scores and the comments made by the evaluation committee for each award criterion. That submission must therefore be rejected.
38 Next, the applicant complains that the statement of reasons is inadequate. It submits, in essence, that the terms used by the evaluation committee were too vague and that the information provided by the Commission about the offers of the best-ranked tenderers was inadequate. It submits that it does not have sufficient information to enable it to compare the relative advantages of its offers with those of such tenderers or to enable the Court to exercise its power of review.
39 In this instance, the Commission’s letter of 5 June 2009 enclosed two annexes each containing an evaluation report extraction concerning Lot No 1 and Lot No 2 respectively.
40 Those evaluation report extractions include, first of all, for each lot, a first section on the technical evaluation, which makes reference to the criteria specified in the call for tenders with their respective weighting and the maximum and minimum number of points, a table containing, for each criterion, the points obtained by the applicant’s and best-ranked tenderer’s offers, as well as the evaluation committee’s comments. A more detailed table concerning the technical evaluation of the offers with a comparison of the applicant’s and that tenderer’s appears also at the foot of each annex.
41 The evaluation report extractions contain next, for each lot, a section on the financial evaluation of the offers with, among other things, the calculation formula used and a table containing the prices offered by the applicant and best-ranked tenderer.
42 Those extractions contain, finally, a table recapitulating the results of the evaluation as regards the applicant’s and best-ranked tenderer’s offers.
43 As regards the evaluation committee’s comments for each award criterion concerning Lot No 1, they state, as regards the first three and the fifth criteria, the reason or reasons for which the best-ranked tenderer’s offer was considered the best for each criterion and, as regards the fourth criterion relating to the ‘quality of the technical offer’ for Lot No 1, the reason or reasons for which that offer and the applicant’s were considered to be of equal quality.
44 Thus, for the first criterion of Lot No 1 relating to the overall management of the service, the best-ranked tenderer’s offer was considered to be of higher quality regarding the management of the ordering process, the management of the running contracts, the monitoring of the service management quality parameters and service performance and the proposal for service reports. For the second criterion of Lot No 1 relating to the ordering of services, that offer was considered to be of higher quality regarding the measuring and monitoring of the ordering process service quality indicators and service performance values. For the third criterion of Lot No 1 relating to the delivery of the services, that offer was considered to be the best because of the follow-up methodology for the execution of a specific contract and the proposed measurement and monitoring of the delivery service quality indicators and service performance values. For the fifth criterion of Lot No 1 relating to the development infrastructure of that lot, although the applicant’s offer was considered to be adequate, the offer at issue was considered to be the best as it was the only offer which took account not only of organisational and physical security aspects but also of security measures for secure software development.
45 In addition, the evaluation committee’s comments were supplemented by the table of the technical evaluation of the offers for Lot No 1, which gives the results obtained by the applicant and the best-ranked tenderer setting out those results for each of the sub-criteria.
46 Therefore, for Lot No 1, although the prices offered by the applicant and the best‑ranked tenderer were roughly equivalent, the reasons for which the latter’s offer was considered to be the best are clear from the Commission’s letter of 5 June 2009 and its annexes.
47 Likewise, as regards the evaluation committee’s comments for each award criterion concerning Lot No 2, they also state the reasons for which another tenderer’s offer was considered to be the best, despite the lower price offered by the applicant as against the price offered by that tenderer.
48 Thus, for three out of four award criteria, the best-ranked tenderer’s offer obtained a higher score than the applicant’s. For the first criterion, regarding the overall management of the service, that offer was judged to be of higher quality as regards the proposal regarding the management of the ordering process, the management of the running contracts and the monitoring of the service management quality parameters and service performance. For the second criterion relating to the ordering of services, that offer was considered to be of higher quality regarding the measuring and monitoring of the ordering process service quality indicators and service performance values; the quality of the risk analysis was also judged to be better than the applicant’s. For the third criterion regarding delivery of the services, that offer was considered to provide higher quality regarding follow-up, quality indicators and service performance values. On the other hand, for the fourth criterion regarding the quality of service and methodological proposal in the domain of Lot No 2, the applicant’s offer was considered to be of higher quality.
49 Those comments of the evaluation committee thus reflect the more detailed results of the table of the technical evaluation of the offers for Lot No 2, which sets out the results obtained by the applicant and by the best-ranked tenderer.
50 In view of all the information supplied to the applicant, as well as the specifications contained in the call for tenders, including the weighting relating to the award criteria for each of the lots, the applicant had sufficient information to enable it, for each lot, to ascertain and understand the results obtained by the best‑ranked tenderer’s offer for each award criterion and to identify the characteristics and relative advantages of that offer.
51 Therefore, the submission that the statements of reasons for the contested decisions were inadequate must be rejected, without the need to rule on the Commission’s submissions concerning protection of the best-ranked tenderers’ intellectual property rights and commercial interests.
52 Moreover, as regards the applicant’s submissions that, first, the ‘winning tenderers’ recruit massively from among its staff and, second, in numerous Member States all tenderers’ offers are disclosed on request, they must be rejected as being irrelevant to the examination of whether the Commission infringed its obligation to state reasons.
53 Finally, the applicant’s complaint that the Commission made manifest errors of assessment and should have ranked the applicant first must also be rejected. In fact, as was confirmed at the hearing, the applicant did not plead, in its application, manifest error of assessment. Therefore, that complaint, raised in the reply, constitutes a new plea in law, within the meaning of Article 48(2) of the Rules of Procedure, and must be rejected as inadmissible.
54 In view of the foregoing, the second plea in law, alleging infringement of the obligation to state reasons, must be dismissed without it being necessary to order the disclosure of a copy of the entire evaluation report or of the best tender for each of the two lots.
The first plea in law, alleging infringement of the principle of non-discrimination, infringement of Articles 93(1) and 94 of the Financial Regulation concerning the conditions governing exclusion, as well as infringement of the principle of sound administration
– Preliminary observation
55 The Commission objects to the admissibility of the first plea in law. It submits that the applicant, which complains that the Commission did not adopt a decision imposing an administrative sanction excluding the best-ranked tenderers, should have brought an action for a declaration of failure to act. It submits, also, that the time-limit for doing so has expired, four months having passed since the applicant’s letter of 9 June 2009.
56 The applicant opposes the Commission’s objection of inadmissibility.
57 It is for the General Court to assess whether in the circumstances of the case the proper administration of justice justifies a ruling on the substance of the action without ruling on the plea of inadmissibility raised by the Commission (see, by analogy, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 52).
58 In the circumstances of the present case, it is necessary, in the interests of procedural economy, to begin by examining the plea in law put forward by the applicant, without first ruling on the Commission’s objection of inadmissibility, since that plea in law is, on the grounds set out below, unfounded in any event.
– Arguments of the parties
59 The applicant maintains, first, that the best-ranked tenderers for Lots Nos 1 and 2 have infringed their contractual obligations under other contracts with the European institutions. It sets out various contractual failures and argues that the Commission should therefore have excluded those tenderers from the tendering procedure in question. It adds that the Commission should have imposed on them the sanctions provided for by Articles 93, 94 and 96 of the Financial Regulation and Articles 133a and 134b of the Implementing Rules and that those tenderers should have been excluded from participation in tendering procedures for a period of two years.
60 In the reply, the applicant criticises the Commission’s approach concerning the application of the procedure for exclusion, which requires there to be a serious breach of contract established after an adversarial procedure and an administrative penalty. The applicant emphasises that there is no clear definition of a ‘serious breach of contract’. In the present case, the best-ranked tenderers for Lots No 1 and 2 have been in serious breach of their contractual obligations on previous occasions.
61 Secondly, the applicant maintains that the context of the call for tenders in question was unfavourable to it. It refers, in that regard, to various matters, such as judgments delivered by the General Court, certain cases pending before that Court and some complaints that it has made to the European Ombudsman, and makes accusations concerning statements by Commission officials about it. It adds that the Commission is using the provisions relating to exclusion selectively and thus in a discriminatory manner and that an appointed contractor which infringes its contractual obligations should be excluded from all calls for tenders. It also claims that the Commission sent the contracts to the ‘winning tenderers’ even before expiry of the requisite ‘standstill period’ and it made clear, at the hearing, that it was alleging, in that regard, discrimination.
62 Thirdly, the applicant submits that the Commission used its early warning system in an irregular and abusive manner and that the names of the ‘winning tenderers’ should have been on it. The applicant also questions the legal basis of the Commission’s early warning system and notes the uncertainty about the data entered into that system.
63 The Commission refutes the applicant’s arguments.
– Findings of the Court
64 First, the applicant submits that the best-ranked tenderers for Lot No 1 and Lot No 2, respectively, have infringed their contractual obligations under other contracts with the European institutions, which justified their being excluded from the call for tenders in question and subjected to sanctions. The applicant submits therefore, in essence, that the Commission was obliged to exclude those tenderers because of their earlier contractual breaches which it alleges.
65 It is appropriate to recall that Article 96 of the Financial Regulation provides:
‘1. The contracting authority may impose administrative or financial penalties on the following:
…
(b) contractors who have been declared to be in serious breach of their obligations under contracts covered by the budget.
In all cases, however, the contracting authority must first give the person concerned an opportunity to present his observations.’
66 In addition, under the terms of Article 93(1)(f) of the Financial Regulation tenderers are to be excluded from participation in procurement procedures if they are currently subject to an administrative penalty referred to in Article 96(1) of that regulation.
67 Under Article 94(c) of the Financial Regulation, a contract is not to be awarded to tenderers who, during the procurement procedure for that contract, find themselves in one of the situations of exclusion referred to in Article 93(1) of that regulation.
68 Consequently, it follows from those combined provisions that it is only if a tenderer has, pursuant to Articles 93(1)(f) and 96(1) of the Financial Regulation, been declared to be in serious breach of its contractual obligations and had an administrative penalty imposed on it for that breach, that the contracting authority must, pursuant to Article 94(c), exclude it from the award of the contract in question.
69 Even if a serious breach of contractual obligations under earlier contracts were demonstrated, exclusion would not be automatic. In that respect, the contracting authority has, under the terms of Article 96(1)(b) of the Financial Regulation, dual discretion concerning both the assessment of the failure to fulfil contractual obligations which could lead to a declaration of serious breach and the penalty to be imposed. Thus, even if a contractor was declared to be in serious breach of contract, the contracting authority is not required to impose on it an administrative or financial penalty, since Article 96 of the Financial Regulation provides that the contracting authority ‘may’, after a procedure during which the persons concerned have had the opportunity to state their position, impose such penalties.
70 Therefore, the applicant’s arguments seeking to demonstrate the existence of contractual breaches under earlier contracts by the best-ranked tenderers for Lots Nos 1 and 2 respectively must be rejected as being irrelevant for the purposes of the present action.
71 Accordingly, the applicant’s complaint alleging infringement of the provisions of the Financial Regulation concerning the conditions governing exclusion is based on an erroneous reading of those applicable provisions and must be rejected.
72 Secondly, the applicant alleges infringement of the principle of non‑discrimination.
73 According to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Joined Cases C‑21/03 and C-34/03 Fabricom [2005] ECR I-1559, paragraph 27, and Case T-195/05 Deloitte Business Advisory v Commission [2007] ECR II-871, paragraph 110). In matters concerning public procurement, that principle, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (see, to that effect, Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 34, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 93).
74 In this case, as regards, first of all, the applicant’s submissions concerning the existence of a ‘discriminatory context’, its allegations of threats by officials have not been substantiated. Moreover, the evidence adduced does not establish any discrimination or unequal treatment in the procedure of the call for tenders in question. In particular, complaints to the Ombudsman, pending actions before the Court and judgments given by the Court in respect of other public procurement procedures which do not support the applicant’s allegations at all, can have no bearing on the contested decisions’ validity.
75 The applicant’s submission that there was a ‘discriminatory context’ must therefore be rejected.
76 Next, the applicant submits that the Commission made discriminatory use of the provisions in respect of exclusion and that a tenderer which breaches its contractual obligations must be excluded from all calls for tenders.
77 However, as has been already been decided (see paragraphs 64 to 71 above), the submissions that the best-ranked tenderers for Lots Nos 1 and 2 respectively should have been excluded from the call for tenders in question in this case cannot be accepted. The submission that the principle of non-discrimination was infringed in that regard, which has not otherwise been substantiated, must therefore also be rejected.
78 Finally, the applicant claims that the Commission dispatched the contracts to the ‘winning tenderers’ before the expiry of the requisite ‘standstill period’ and alleges that there was discrimination.
79 Article 158a(1)(a) of the Implementing Rules, relating to the standstill period before the signature of the contract, provides that the contracting authority must not sign the contract until fourteen calendar days have elapsed, running from the day after the simultaneous dispatch of the award decisions and the decisions to reject.
80 In this case, the Commission dispatched the contested decisions by letters of 12 May 2009 but, as was stated at the hearing, the contracts were not signed by the Commission until September and October 2009. Therefore, the period of fourteen calendar days was observed. It is, anyway, the dispatch of the contracts to the successful tenderers which starts the period of fourteen days running. Moreover, the fact that the Commission dispatched the contracts does not mean that it did not objectively examine the applicant’s remarks of 9 June 2009. In that regard, the third subparagraph of Article 158a(1) of the Implementing Rules provides that the suspension of the signature of the contract for additional examination is a right available to the contracting authority, if it is justified by the requests or comments made by unsuccessful or aggrieved tenderers or by any other relevant information received. The fact that the Commission decided that such was not the case here is not therefore a breach of that provision and the applicant has not established that there was any discrimination in that regard.
81 Therefore, that submission must be rejected and, accordingly, so must the complaint of infringement of the principle of non-discrimination, in its entirety.
82 Thirdly, the applicant puts forward arguments calling into question the Commission’s early warning system.
83 It must be held that the applicant’s submission that the names of the ‘winning tenderers’ should have been flagged on the early warning system reprises, in essence, the argument that those tenderers should have been excluded from the call for tenders in question. Therefore, that submission must be rejected, as has already been decided (see paragraphs 64 to 71 above).
84 Moreover, the arguments by which the applicant calls in question the legality of the early warning system must be rejected as immaterial. Indeed, even assuming they were well-founded, it would follow that the flaggings on that system should be deleted. That could not entail the contested decisions’ annulment, since, as is common ground between the parties, the best-ranked tenderers for Lots Nos 1 and 2, respectively, were not excluded in this case.
85 It follows that the applicant’s arguments concerning the early‑warning system must be rejected.
86 It follows from the foregoing that the first plea in law must be rejected in its entirety.
The third plea in law, alleging infringement of Article 130 of the Financial Regulation and breach of the principles of sound administration, transparency and equal treatment
– Arguments of the parties
87 The applicant submits that the nine-month tender validity period, provided for in the call for tenders, exceeds the validity period generally laid down for tenders in the field of information technology. It submits also that, after six months, the curricula vitae of staff have to be replaced and the hardware, software and technologies offered have to be revised. It cites a Commission call for tenders as an example.
88 In addition, it challenges, in essence, the extension of the tender validity period. It argues that the contracting authority cannot sign a contract where the tender validity period has expired. It submits that without the ‘free consent’ of the tenderers to the extension of their tenders’ validity the tenders lapse. It relies, in this connection, on Article 130(c) of the Implementing Rules and on the principles of sound administration, transparency and equal treatment. It adds that a nine-month tender validity period is the standard which should not be exceeded. It also submits that the extension prevented the Commission from examining its remarks of 9 June 2009 objectively and that since the call for tenders was irregular, its annulment is justified.
89 The Commission refutes the applicant’s arguments.
– Findings of the Court
90 First, as regards the allegation that the nine-month tender validity period laid down by the call for tenders was excessive, it is appropriate to note that the applicant expressed no reservation as to that period when it submitted its tenders. By doing so, the applicant itself undertook, in accordance with Article 130(2)(c) of the Implementing Rules, not to vary its tenders in any respect for that period. It cannot therefore be justified in arguing that, after six months, the curricula vitae of staff have to be replaced and the hardware, software and technologies offered have to be revised. Moreover, it does not show how such a period would be excessive for the contract in question. In that regard, merely citing the example of a call for tenders for which the tender validity period was less than nine months cannot be regarded as sufficient. In addition, the applicant states, in the reply, that a nine-month tender validity period is the standard which should not be exceeded, which contradicts its argument that it would excessive.
91 It follows that the complaint that the length of the tender validity period was excessive must be rejected
92 Secondly, as regards the applicant’s complaint that the extension of the tender validity period was irregular, it is appropriate to point out, first of all, that Article 130(2)(c) of the Implementing Rules provides that the invitation to tender must specify the period during which a tender will remain valid and may not be varied in any respect. However, that provision does not concern extension of the tender validity period and was not infringed in this case, since the length of that period was laid down in the call for tenders.
93 Next, all the tenderers concerned including the applicant, despite the reservations expressed in its letter of 28 July 2009, accepted that their tenders would remain valid for a period of twelve months from 6 October 2008. Therefore, contrary to the applicant’s submission, the tender validity period was extended with all the tenderers’ express consent so that the tenders therefore cannot be held to have lapsed.
94 Also, the Commission’s letters of 16 July 2009 concerning the extension of the tender validity period were sent to all the tenderers concerned, including the applicant, which was put, as were all the other tenderers, in a position of accepting or refusing to extend its tenders. The applicant has, therefore, not established any breach of the principles of sound administration, transparency or non‑discrimination in this case.
95 Finally, it has not been demonstrated that the extension of the tenders’ validity prevented the Commission from examining objectively the applicant’s remarks of 9 June 2009, to which the Commission replied on 12 June 2009 (see paragraph 10 above).
96 The third plea in law must therefore be rejected in its entirety.
97 It follows from all the foregoing that the application for annulment must be dismissed as unfounded.
The claim for damages
Arguments of the parties
98 The applicant maintains that the contested decisions were unlawful, that non‑observance of the provisions concerning the exclusion of the ‘winning tenderers’ and the failure to provide a statement of reasons constitute infringement of fundamental rules and principles. It quantifies its loss in a sum of EUR 9 544 480 corresponding to the estimated gross profit (50% of the value of the contract) which would have accrued to it had it been ‘awarded’ the contract. It adds, in the reply, that the proof of loss of the chance of being ‘awarded’ the contract required by the Commission, is difficult to adduce as all tenderers have a reasonable chance of being selected; and that observance of the fundamental principle of effective judicial protection requires that a tenderer which suffers loss be fully compensated for loss of profit.
99 The Commission refutes the applicant’s arguments.
Findings of the Court
100 According to settled case-law, in order for the Community to incur non‑contractual liability, a number of conditions must be met: the conduct of the institutions in question must be unlawful; there must be real and certain damage; and a direct causal link must exist between the conduct of the institution concerned and the alleged damage (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑231/97 New Europe Consulting and Brown v Commission [1999] ECR II‑2403, paragraph 29).
101 Moreover, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions which give rise to that liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81; Case C-104/97 P Atlanta v European Community [1999] ECR I‑6983, paragraph 65; and Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439, paragraph 91).
102 In this case, it is clear from the Court’s findings on the claim for annulment that the applicant has not proved unlawful conduct on the part of the Commission.
103 It follows, therefore, that the claim for damages must be rejected as unfounded.
104 Accordingly, the action must be dismissed in its entirety.
Costs
105 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
106 Since the applicant has been unsuccessful in all the forms of order it sought, and the Commission has applied for costs, the applicant must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.
Delivered in open court in Luxembourg on 20 September 2011.
[Signatures]