Action brought on 19 June 2013 – BT Limited Belgian Branch v Commission
(Case T-335/13)
Language of the case: English
Parties
Applicant: BT Limited Belgian Branch (Diegem, Belgium) (represented by: T. Leeson, Solicitor, and C. Stockford, Barrister)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
Annul the decision notified to the applicant on 19 April 2013, rejecting the applicant's tender in the framework of the restricted procedure DIGIT/R2/PR/2011/039 and awarding the contract to another tenderer;
Order the defendant to pay the costs;
Alternatively, appoint an independent expert with the mission of assessing the compliance of the offer of another tenderer with the tendering specifications and defer its decision until the appointed expert has submitted his/her report, subsequently, annul the decision of the Directorate-General for Informatics (“DOGIT”) and order the Commission to pay the costs;
In the event DIGIT signs the Trans European Services for Telematics between Administrations – new generation (“TESTA-ng”) contract, order the Commission to compensate the applicant for the damage it has suffered as a result of DIGIT's unlawful decision.
Pleas in law and main arguments
In support of the action, the applicant relies on six pleas in law.
First plea in law, alleging that that DIGIT infringed the principle of transparency and the obligation to state reasons set out in Article 113 of the Financial Regulation1 and Article 296 TFEU. This is because - as a result of the excessive redaction of the contracting authority's evaluation report of another tenderer - BT has not been given the opportunity to verify whether the contracting authority has performed a fair evaluation of the successful tenderer's offer.
The applicant alleges further that DIGIT has, first, not stated sufficient reasons for having redacted massive parts of the evaluation report of the offer of another tender, and second, even where DIGIT has provided reasons, those reasons are inadmissible.
Second plea in law, alleging that that DIGIT's scoring methodology for the evaluation of tenders breaches the general principles – including the principles of transparency and fair and equal treatment – applicable to public tendering procedures. In particular, since (i) DIGIT's scoring grid was not disclosed in advance of the tender and (ii) its unusual structure gave another tenderer an unlawful advantage.
Third plea in law, alleging that that DIGIT's comments in the evaluation report and the corresponding scores awarded to the offer of another tenderer are inconsistent. These contradictions vitiate the decision, since they render the statement of reasons supporting the decision null and void.
Fourth plea in law, alleging that DIGIT has accepted the offer of another tenderer notwithstanding that the abnormally low price proposal should have led to its elimination from the tendering procedure. In this regard, the applicant submits that this claim cannot be undermined by DIGIT's claim that it scrutinized that offer in light of the rules on abnormally low offers. A generic reference to applicable legislation is not a substitute for a proper statement of reasons as to why – in light of its analysis - DIGIT nonetheless decided not to eliminate that offer from the tender procedure.
As a subsidiary part of this plea in law, the applicant alleges that the price proposed by another tenderer in its offer is unrealistic and cannot correspond to an offer that complies with the tender requirements. In this regard, BT requests the General Court to appoint an independent expert to determine whether the offer in question in fact complies with certain tendering specifications.
Fifth plea in law, alleging that that decision is vitiated by the fact that the contract value calculated in that document is not accompanied by a sufficient statement of reasons.
Sixth plea in law, alleging that DIGIT lacks competence to adopt the contested decision on the grounds that it lacks the required delegated power.
____________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)