Action brought on 21 February 2024 – Airbus Defence and Space and Marlink Events v EDA

(Case T-105/24)

Language of the case: French

Parties

Applicants: Airbus Defence and Space SAS (Toulouse, France), Marlink Events SAS (Choisy-le-Roi, France) (represented by: F. Salat-Baroux and M. Lordonnois, lawyers)

Defendant: European Defence Agency

Form of order sought

The applicants claim that the General Court should:

annul the decisions of the European Defence Agency (i) of 12 December 2023, rejecting the tender of the consortium made up of Airbus Defence and Space SAS and Marlink Events SAS submitted in the context of tender procedure 23.ISE.JP.001 relating to the provision of C, KU, (CIV)KA, L and UHF bands satellite communications and (MIL) KA & X and related services, and deciding to award that contract to Telespazio France SAS; (ii) of 23 January 2024, deciding to lift the suspension of the signature of contract 23.ISE.JP.001, decided on 8 January 2024 further to the observations made by Airbus Defence and Space SAS and to confirm the result of tender procedure 23.ISE.JP.001 attributing the contract to Telespazio France SAS and (iii) of 24 January 2024 to sign contract 23.ISE.JP.001 with Telespazio France SAS;

order the European Defence Agency to pay the company Airbus Defence and Space EUR 21 650 734 corresponding to the damage suffered as a result of the contested decisions and to pay Marlink compensation of EUR 2 552 350 corresponding to the damage suffered as a result of the contested decisions, these amounts to be increased by default and compound interest;

order the European Defence Agency to pay all of the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.

First plea in law, alleging insufficient reasoning and an error of law in the grounds for refusing to communicate the breakdown of the financial score obtained by each candidate, although mere information relating to that score, required by Article 170 of Regulation 2018/1046 of 18 July 2018, does not constitute a breach of the confidentiality of each candidate’s tender.

Second plea in law, alleging an error of law and a manifest error of assessment in reviewing compliance of the offer made by the successful tenderer, given that the contracting authority did not fully satisfy itself that the successful tenderer had accurately demonstrated that it fulfilled all the requirements set out in the tender documents, in accordance with Article 56 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC.

Third plea in law, alleging a manifest error of assessment and a clear distortion in the assessment of the two candidates’ respective tenders concerning the optional sub-sub-criterion O-007 of sub-criterion 4 of the ‘Technical Award Criteria’, since the successful tenderer did not demonstrate that it was able to satisfy that sub-sub-criterion, as no UHF capacity was available on the market and the characteristics of the UHF service proposed by the applicants should have led to it being awarded the maximum score.

Fourth plea in law, alleging a manifest error of assessment and a clear distortion in examining the offer made by the successful tenderer with regard to the sub-sub-criterion ‘Scenario C’ of sub-criterion 3 of the ‘Technical Award Criteria’, since the successful tenderer did not prove that it had a contract concluded prior to the tender procedure with one of the satellite operators offering the LEO service requested on the basis of that sub-sub-criterion.

Fifth plea in law, alleging an error of law, a manifest error of assessment and a clear distortion in examining the offer made by the successful tenderer with regard to the optional sub-sub-criteria O-003 and O-004 of sub-criterion 4 of the ‘Technical Award Criteria’, since the successful tenderer did not prove that it had contracts concluded prior to the tender procedure with some of the satellite operators offering the services required on the basis of those two optional sub-sub-criteria.

Sixth plea in law, alleging an error of law, a manifest error of assessment, an infringement of the principle of equal treatment and a clear distortion in examining the applicants’ tender in relation to the sub-sub-criterion ‘equipment’ of sub-criterion 2 of the ‘Technical Award Criteria’, since the applicants did, in fact, supply the warranty extension and the requested certifications for the terminals and that the contracting authority should, in any event, have asked the applicants for clarification given that there were uncertainties concerning the certifications provided.

Seventh plea in law, alleging a manifest error of assessment and a clear distortion in examining the applicants’ tender with regard to the sub-sub-criterion ‘Scenario B’ of sub-criterion 3 of the ‘Technical Award Criteria’, since the answers provided by the applicants came within the scope of the tender specifications.

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