Case T-50/05

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE

v

European Commission

(Public service contracts – Community tendering procedure – Provision of computer services relating to telematic systems to control the movement of products subject to excise duty – Rejection of a tenderer’s bid – Action for annulment – Consortium of tenderers – Admissibility – Principles of equal treatment of tenderers and transparency – Award criteria – Principles of sound administration and diligence – Obligation to state reasons – Manifest error of assessment)

Summary of the Judgment

1.      Actions for annulment – Natural or legal persons – Locus standi

(Art. 230, fourth para, EC)

2.      European Communities’ public procurement – Tender procedure – Duty to comply with the principle of equal treatment of tenderers

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

3.      European Communities’ public procurement – Tender procedure – Award of contracts – Most economically advantageous tender – Award criteria

(Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138(2) and (3))

4.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision, in the procedure for award of a public contract, not to accept a bid

(Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149)

1.      In the context of an action for annulment against a decision of the awarding authority, addressed to a consortium tenderer which has never had legal personality, not to accept that tenderer’s bid and to award the public contract at issue to another tenderer, the companies concerned, the members of the consortium, must be regarded as the addressees of the decision. In such circumstances, it is therefore lawful for a company which is a member of that consortium, as addressee of the contested decision, to challenge that decision in accordance with the conditions laid down by Article 230 EC.

(see para. 40)

2.      The contracting authority is required to ensure at each stage of a tendering procedure that the principle of equal treatment and, thereby, equality of opportunity for all the tenderers is observed. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must 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.

The principle of equal treatment also implies an obligation of transparency so that it is possible to verify that that principle has been complied with. That principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tendering specifications. The principle of transparency therefore implies that all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public procurement procedure in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner and, secondly, to enable the contracting authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question.

An undermining of equality of opportunity and the principle of transparency constitutes a defect in the pre-litigation procedure adversely affecting the right of the parties concerned to information. However, that procedural defect could lead to the annulment of the decision in question only if it were shown that, but for that defect, the administrative procedure could have had a different outcome if there was even a small chance that the applicant could have brought about a different outcome to the administrative procedure.

(see paras 55-59, 61)

3.      Article 97(1) of Regulation No 1605/2002, on the financial regulation applicable to the general budget of the European Communities, imposes on the contracting authority, where the contract is awarded to the most economically advantageous tender, the obligation to define and set out in the call for tenders the award criteria for evaluating the content of tenders. Those criteria must, in accordance with Article 138(2) of Regulation No 2342/2002, laying down detailed rules for the implementation of the financial regulation, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value for money. Nevertheless, those provisions leave it to the contracting authority to choose the award criteria in the light of which tenders will be assessed. The criteria used do not necessarily have to be quantitative or related solely to the price. Even if award criteria that are not expressed in quantitative terms are included in the tender specifications, they can be applied objectively and uniformly in order to compare tenders and are clearly relevant for identifying the most economically advantageous tender.

(see paras 106-108)

4.      The legislative provisions which determine the content of the obligation to state reasons which a contracting authority has towards unsuccessful tenderers in a public procurement procedure are Article 100(2) of Regulation No 1605/2002, on the financial regulation applicable to the general budget of the European Communities, and Article 149 of Regulation No 2342/2002, laying down detailed rules for the implementation of the financial regulation. It follows from those articles that, in the field of public procurement, a contracting authority fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received. Such a manner of proceeding satisfies the purpose of the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as to enable, on the one hand, the persons concerned to be aware of the reasons for the measure in order to assert their rights, and, on the other, the Court to exercise its review.

(see paras 132-134)