Case T‑403/12

Intrasoft International SA

v

European Commission

(Public service contracts — Tendering procedure — Technical assistance to the Customs Administration of Serbia to support the modernisation of the customs system — Conflict of interests — Rejection of a tenderer’s bid by the Delegation of the European Union to the Republic of Serbia — Implicit rejection of the complaint against the rejection of the bid)

Summary — Judgment of the General Court (Second Chamber), 13 October 2015

1.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Assessment of those effects by reference to the substance of the measure

(Art. 263, first para., TFEU)

2.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Letter from an EU delegation informing a tenderer of its incapacity to participate in the award phase of a contract because of the existence of a conflict of interests — Included

(Art. 263 TFEU)

3.      Actions for annulment — Capacity to be a defendant — Union delegation — Not a body, office or agency of the EU — Measures adopted by the head of an EU delegation in the context of a tendering procedure — Measures attributable to the Commission

(Arts 221 TFEU and 263 TFEU)

4.      Actions for annulment — Natural or legal persons — Locus standi — Tender procedure — Decision of the awarding authority addressed to a tendering consortium without legal personality — Action by a corporate member of that consortium — Admissibility

(Art. 263, fourth para., TFEU)

5.      Actions for annulment — Time-limits — Claim barred by lapse of time — Action brought against a decision of an institution taken in the context of a tendering procedure providing for optional procedures for amiable resolution — Use by the applicant of such a resolution procedure — Irrelevant to the expiry of the time-limit for bringing an annulment action

(Art. 263 TFEU)

6.      Actions for annulment — Interest in bringing proceedings — Need for an actual and current interest — Action capable of securing a benefit for the applicant

(Art. 263 TFEU)

7.      Actions for annulment — Action brought against a decision confirming an earlier decision that has become final — Inadmissibility — Concept of confirmatory decision — No new element in relation to the earlier decision and no re-examination of the situation of the addressee of the decision

(Art. 263 TFEU)

8.      EU public contracts — Tender procedure — Obligation to communicate to unsuccessful tenderers, on written request by them, additional information on the grounds for rejection — Compliance with the obligation not having the effect of replacing the decision to reject the tender

(Council Regulation No 1605/2002; Commission Regulation No 2342/2002, Art. 149(3), fourth para.)

9.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Institution not replying to a complaint brought by an unsuccessful tenderer in the context of a tendering procedure providing for optional procedures for amiable resolution — Not included

(Art. 263 TFEU)

10.    EU public contracts — Tender procedure — Award of contracts — Exclusion of tenderers in a conflict of interest situation — Concept of conflict of interests — Tenderer belonging to a consortium which drafted documents in an earlier tender procedure, those documents having subsequently been used as the basis for the tender procedure at issue — Tenderer not participating in the preparatory work of the earlier tender procedure — No conflict of interests

(Council Regulation No 1605/2002, Art. 94(a))

11.    EU public contracts — Tender procedure — Award of contracts — Exclusion of tenderers in a conflict of interest situation — Conditions — Concrete assessment of the tender and the situation of the tenderer — Need to establish a real and not hypothetical risk

(Council Regulation No 1605/2002, Art. 94)

12.    EU public contracts — Tender procedure — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope

(Council Regulation No 1605/2002, Art. 89(1); Commission Regulation No 2342/2002)

1.      See the text of the decision.

(see paras 28-30)

2.      The binding legal effects of an act must be assessed according to objective criteria such as the content of that act, taking into account, as appropriate, the context in which it was adopted and also the powers of the institution which adopted the act.

Having regard to a letter of an EU Delegation operating in the capacity of the Commission’s subdelegated contracting authority whereby its author adopted a position on the capacity of a tenderer to participate in the award phase of a contract, also noted that the applicant found itself in a situation of a conflict of interests and consequently established that the contract could not be awarded to the consortium of which the applicant was part, that letter, having regard to its content, the legal and factual context in which it was written, and the powers of the authority which wrote it, constitutes a measure adversely affecting the said tenderer capable of being the subject of an action for annulment before the EU judicature.

(see paras 32, 43-45)

3.      See the text of the decision.

(see para. 34)

4.      See the text of the decision.

(see para. 35)

5.      Concerning a letter from an EU delegation informing a tenderer of its decision not to award it a contract, the mentioning in that letter of the possibility of lodging a complaint, in accordance with the provisions of paragraph 2.4.15.3 of the Commission’s Practical Guide to Contract Procedures for EU External Actions, does not prejudice the right of the addressee of the measure to bring an action before the General Court within the time-limit expressly provided by EU law. It follows that such a possibility does not relieve the applicant of the obligation to comply with the time-limits for bringing an action for annulment before the Court. In that regard, the person concerned does not have to wait for a reply to its complaint to bring an action.

(see paras 38, 39, 46)

6.      See the text of the decision.

(see para. 47)

7.      See the text of the decision.

(see paras 48, 50, 52, 54)

8.      Whilst, according to the fourth subparagraph of Article 149(3) of Regulation No 2342/2002 of 23 December 2002, unsuccessful tenderers can request the contracting authority to provide them with ‘additional information about the grounds for the rejection’ in writing, the communication of such additional information does not have the effect of replacing the decision by which the bid of the tenderer in question is rejected, as the obligation to state reasons pertaining to such a decision may be fulfilled in several stages.

(see para. 51)

9.      The silence of an institution when it has been called upon to express its view cannot, in itself and as such, have legal effects, except where that result is expressly provided for by EU law. Where there are no such express provisions laying down a deadline by which an implied decision is deemed to have been taken and prescribing the content of the decision, an institution’s inaction cannot be deemed to be equivalent to a decision without calling into question the system of remedies instituted by the Treaty.

Consequently, the inertia of the contracting authority at the expiry of the time-limit fixed in paragraph 2.4.15.1 of the Practical Guide to Contract Procedures for EU External Actions drawn up by the Commission cannot be classified as an implied decision to reject the complaint of an unsuccessful tenderer. The Practical Guide is a working tool which explains the procedures applying in a particular area and cannot, as such, constitute a basis in law for the introduction of an obligatory prior administrative complaint. Nor can that guide constitute the legal basis for the introduction of a time-limit for the benefit of the authority responsible for answering a complaint.

(see paras 57, 58)

10.    As for the existence of a conflict of interests in the case of a tenderer in a contract procedure, within the meaning of Article 94(a) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (‘the Financial Regulation’), the concept of a conflict of interests is objective in nature and requires the intentions of those concerned to be disregarded, the mere possibility of a conflict of interest being insufficient to exclude a tenderer from the procedure, since the said risk must actually be found to exist in the particular case.

In that regard, it cannot be accepted that the risk of a conflict of interests can be based on the mere fact that the applicant had access, before other tenderers, to the documents specific to another call for tenders because it belonged to the consortium which prepared those documents which, subsequently, were retained to be used as a reference for activities associated with the call for tenders at issue. The risk of a conflict of interests cannot be based on the simple presumption that at the time of the drafting of the documents for the other tendering procedure, the said tenderer was aware of the contracting authority’s intention to publish a new invitation to tender and of its intention to select the documents drafted by the consortium of which it was part as the basis for some of the activities concerned in the public contract referred to in the new call for tenders.

Thus, the risk of a conflict of interests exists for the person responsible for the preparatory work for a public contract who participates in that same contract. Since the expression ‘preparatory work’ refers to work carried out in the context of one and the same call for tenders, the contracting authority is not entitled to treat the preparation of documents drafted in the course of another call for tenders in the same way as preparatory works under the tendering procedure at issue unless to show objectively and specifically, first, that those documents had been prepared in the light of the tendering procedure at issue and, secondly, that they had given the tenderer concerned a real advantage. If this is not demonstrated, the documents prepared in the course of another tendering procedure, and chosen subsequently by the contracting authority as a reference for part of the activities in a different tendering procedure, are not considered preparatory works within the meaning of paragraph 2.3.6 of the Practical Guide, which identifies, inter alia, as preparatory work that relating to the preparation of the project such as the drafting of the tendering specifications.

(see paras 74, 75, 82-85)

11.    Article 94 of the Financial Regulation permits exclusion of a tenderer from a procurement procedure only if the situation of conflict of interest to which it refers is real and not hypothetical. However, that does not mean that a risk of conflict of interest is not sufficient to exclude a tender. In principle, before conclusion of the contract, a conflict of interest can be only potential and Article 94 of the Financial Regulation therefore implies an assessment in terms of risk. In that regard, the reasoning in terms of risk of conflict of interests requires a concrete assessment, first, of the tender and, second, of the situation of the tenderer concerned, and the exclusion of that tenderer is a remedy designed to ensure respect for the principles of transparency and equality of opportunity for tenderers.

In that regard, the awarding authorities are under no absolute obligation to exclude systematically tenderers in a situation of a conflict of interests, such exclusion not being justified in cases in which it is possible to show that that situation had no impact on their conduct in the context of the tender procedure and that it entails no actual risk of practices liable to distort competition between tenderers. On the other hand, the exclusion of a tenderer where there is a conflict of interests is essential where there is no more appropriate remedy to avoid any breach of the principles of equal treatment of tenderers and transparency.

(see paras 74, 76, 79)

12.    See the text of the decision.

(see paras 77, 78)