JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
23 November 2011 (*)
(Public service contracts – Tendering procedure of the PO – Daily transport and delivery of the Official Journal, books, other periodicals and publications – Rejection of the tender of a tenderer and decision to award the contract to another tenderer – Award criteria – Obligation to state the reasons on which the decision is based – Manifest error of assessment – Non-contractual liability)
In Case T‑514/09,
bpost NV van publiek recht, formerly De Post NV van publiek recht, established in Brussels (Belgium), represented by R. Martens, B. Schutyser and A. Van Vaerenbergh, lawyers,
applicant,
v
European Commission, represented by E. Manhaeve and N. Bambara, acting as Agents, assisted by P. Wytinck, lawyer,
defendant,
APPLICATION, first, for the annulment of the decision of the Publications Office of the European Union, communicated by letter of 17 December 2009, to reject the tender submitted by the applicant under invitation to tender No 10234 ‘Daily transport and delivery of the Official Journal, books, other periodicals and publications’ (OJ 2009/S 176-253034) and award the contract to the successful tenderer, and, second, for damages,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. Prek, Judges,
Registrar: N. Rosner,
having regard to the written procedure and further to the hearing on 21 June 2011,
gives the following
Judgment
Background to the dispute
1 The applicant, bpost NV van publiek recht, formerly De Post NV van publiek recht, is a public limited company established in Belgium, operating in the national and international postal business. Belgian Post International (‘BPI’) is the international department of the applicant which deals with professional clients and international parcels. BPI has its own sorting centre, European Mail Centre (‘EMC sorting centre’), used solely for international mail and situated close to Brussels airport (Belgium). During the period 2006 to 2010, the applicant undertook, under a public procurement contract, the daily transport and delivery of the Official Journal, books, other periodicals and publications of the European Union (‘the 2006-2010 contract’). That contract was due to expire on 22 March 2010.
2 On 12 September 2009, acting under 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’), and the provisions 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 detailed rules’), the Publications Office of the European Union (‘the PO’) in a Supplement to the Official Journal of the European Union (OJ S 176 2009), published a call for tenders under reference No 10234 for the daily transport and delivery of the Official Journal of the European Union, books, other periodicals and publications (‘the call for tenders’). The contract was due to start on 22 March 2010.
3 On 17 September 2009, the PO, following a request from the applicant, sent the applicant an invitation to submit a tender on the basis of the call for tenders, the tender specifications and the standard contract terms relating thereto.
4 Point 2.5 of the tender specifications states the exclusion criteria applicable to the call for tenders (‘the exclusion criteria’), point 2.6 states the selection criteria (‘the selection criteria’) and points 2.7 and 2.8 state the technical criteria (‘the technical award criteria’).
5 With regard to the technical award criteria, in so far as they relate to technical aspects and not to financial aspects of the tenders, point 2.7 of the tender specifications lays down four criteria, listed and described in the table reproduced below:
Criterion No | Technical award criteria | Weighting (maximum of points possible and minimum required) |
1 | The method applied to ensure delivery within the time-limits and monitoring and guarantee of a quality distribution throughout the world, including for door-to-door deliveries and deliveries to post office boxes (see also point 4.11). | 45 (minimum 22.5) |
2 | Quality of the whole of the arrangements which the tenderers propose to make for providing the service: – medium – equipment – resources – ... (A complete description as from the picking up at the Publications Office to the delivery to the final recipients) | 30 (minimum 15) |
3 | Quality of the procedure established to cope with transport difficulties: (a) transport to the distribution centre (5 points) (b) delivery to final recipients (15 points) | 20 (minimum 10) |
4 | Possibility of tracking the delivery on request and list of countries where that possibility is implemented. | 5 (no minimum) |
Total number of points | 100 | |
6 The table is followed by two paragraphs, the second of which (‘the second paragraph following the table of technical award criteria’) reads:
‘Since assessment of the tenders will focus on the quality of the proposed services, tenders should elaborate on all points addressed by these specifications in order to score as many points as possible. The mere repetition of mandatory requirements set out in these specifications, without going into details or without giving any added value, will only result in a very low score.’
7 Point 2.9 of the technical specifications, concerning the final assessment, provides, first, that only tenders which had passed the previous stages would be taken into account at that final assessment stage, secondly, that the criterion for awarding the public contract in question was the most economically advantageous tender, and, finally, specifies the calculation method used in order to identify the tender meeting that latter criterion.
8 The technical specifications of the call for tenders are detailed, in point 4 of the tender specifications, headed ‘Technical Specifications’ and concern, inter alia, the purpose of the contract, destination zones, the procedures for collecting packages and parcels, validation for invoicing, transport and distribution purposes, time-limits for distribution and the methods for calculating financial indemnities payable to the PO.
9 On 19 October 2009, the applicant submitted a tender under the procedure for awarding the public contract in question.
10 By letter of 10 December 2009, the PO requested the applicant to supply a certain number of additional documents in order to clarify whether it fulfilled the selection and exclusion criteria in the tender specifications. By letter of 11 December 2009, the applicant replied to that request.
11 By letter of 17 December 2009, the PO informed the applicant that, at the outcome of the award procedure, its tender had not been accepted, as it had not obtained the best final mark on the qualitative and financial assessment of the tenders. In the same letter, the Publications Office informed the applicant of the name of the successful tenderer, namely, Entreprise des postes et telecommunications Luxembourg (‘P&T Luxembourg’), its financial tender and the price/quality ratio of its tender. The PO also informed the applicant of its right to obtain further information on the grounds for rejection of its tender and on the characteristics and advantages of the P&T Luxembourg tender.
12 By letter of 23 December 2009, the applicant requested information as to the grounds for the rejection of its tender and the relative characteristics and advantages of the successful tender.
13 By letter of 23 December 2009, the PO sent the applicant an extract of the evaluation report of the Evaluation Committee (‘the evaluation report’) concerning its tender, and a non-confidential version of the evaluation report on the tender of P&T Luxembourg.
14 By letter of 20 January 2010, the Commission proposed to the applicant that the 2006-2010 contract be extended, subject to certain conditions, until 22 September 2010. By letter of 25 January 2010 the applicant accepted that proposal. By letter of 11 February 2010 the Commission notified the applicant that, following the rejection of the application for interim measures against the contested decision which the applicant had brought before the Court, it would proceed with the signature of the contract with P&T Luxembourg. By letter of 2 March 2010 the applicant requested the Commission to reconsider its flawed award decision and confirmed its commitment to continue performing the 2006-2010 contract until 22 September 2010. By letter of 4 March 2010 the Commission informed the applicant that, as indicated in its letter of 11 February 2010, it had signed the new contract with P&T Luxembourg and, as a result, there were no longer grounds for extending the 2006-2010 contract until 22 September 2010. By letter of 4 March 2010 the applicant informed the Commission of its disapproval of the latter’s manner of proceeding.
Procedure
15 By application lodged at the Registry of the General Court on 31 December 2009, the applicant brought the present action, under Article 263 TFEU in relation to the application for annulment of the decision, communicated by letter of 17 December 2009, to reject its tender and award the contract to P&T Luxembourg (‘the contested decision’), and under Article 340 TFEU for damages.
16 By a separate document, lodged at the Court Registry the same day, the applicant made an application for interim measures under Article 104 of the Rules of Procedure of the General Court, and an application for interim measures under Article 105(2) of the Rules of Procedure.
17 By order of 12 January 2010, the judge hearing the application for interim measures ordered the PO to suspend signing the contract, or, if it had already been signed, to suspend its implementation until an order was made on the application for interim measures.
18 By order of 5 February 2010, the judge hearing the application for interim measures dismissed that application and reserved costs to the final judgment.
19 Upon hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure laid down in Article 64 of the Rules of Procedure, requested the parties to produce various documents. The parties complied with those requests within the prescribed period.
Forms of order sought
20 The applicant claims that the Court should:
– annul the contested decision;
– annul the contract in the event that at the time of the delivery of the judgment the PO has already signed the contract pursuant to the call for tenders with P&T Luxembourg;
– award damages as compensation for the loss that the applicant has incurred as a consequence of the contested decision, provisionally estimated in the application at EUR 2 386 444.94 and in the reply at EUR 2 052 679.32, together with default interest as from the date of the filing of the application;
– order the Commission to pay all the costs of the proceedings.
21 The Commission contends that the Court should:
– declare the action for annulment of the contested decision unfounded;
– declare the application for damages unfounded;
– order the applicant to pay the costs, including those of the proceedings for interim measures.
Law
A – The application for annulment of the contested decision
22 In support of its application for annulment, the applicant raises two pleas in law, relating respectively and substantially to, firstly, a breach of the rights of defence, and secondly to: (a) a breach of several provisions of the FEU Treaty and rules of law and, (b) several manifest errors of assessment.
1. The first plea, alleging infringement of rights of the defence
23 The first plea raised by the applicant, alleging infringement of defence rights, is based, in essence, on the fact that the Commission did not send to it, annexed to the letter of 23 December 2009, the confidential version of the assessment report, so that it was not in a position to support all the arguments which it might raise in support of its action.
24 In that respect, it should be borne in mind that Article 100(2) of the financial regulation provides:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
25 In addition, it is apparent from the case-law that, in the context of a review of a decision taken by a contracting authority in relation to a contract award procedure, the adversarial principle does not mean that the parties are entitled to unlimited and absolute access to all of the information relating to the award procedure concerned which has been filed with the body responsible for the review. On the contrary, that right of access must be balanced against the right of other economic operators to the protection of their confidential information and their business secrets. The principle of the protection of confidential information and of business secrets must be observed in such a way as to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute and, in the case of judicial review or a review by another body which is a court or tribunal within the meaning of Article 267 TFEU, in such a way as to ensure that the proceedings as a whole accord with the right to a fair trial (see, by analogy, Case C‑450/06 Varec [2008] ECR I‑581, paragraphs 51 and 52).
26 It follows from the case-law cited in paragraph 25 above that the applicant cannot, as is the case here, without bringing evidence in support of its allegation, plead an infringement of defence rights on the ground that the Commission did not give it access to the confidential version of the assessment report.
27 Accordingly, the first plea must be dismissed as unfounded.
2. The second plea, alleging, first, infringement of various provisions of the TFEU Treaty and rules of law, and, secondly, various manifest errors of assessment
28 The second plea is divided into four parts, alleging, first, a manifest error of assessment in evaluating the tender of the successful bidder, second, infringement of the principles of transparency and non-discrimination, through application of award sub-criteria and weighting rules not provided for in the tender specification, third, infringement of the principles of transparency and non-discrimination in relation to the definition and application of technical award criteria, and, fourth, infringement of the duty to state reasons and various manifest errors in the assessment of the applicant’s tender.
a) The first part of the second plea, alleging a manifest error of assessment in evaluating the tender of the successful bidder
29 As the Commission states in the rejoinder, it must be held that, in the reply, the applicant expressly acknowledged that, contrary to what it had maintained in the application, it is apparent from the extract from the evaluation report, communicated as an annex to the defence, that the Commission did in fact examine compliance by the tenderers with exclusion and selection criteria before applying the technical award criteria. The applicant is now claiming, however, in support of the first part of the second plea, that the evaluation committee made a manifest error of assessment in relation to the tender of P&T Luxembourg, as it was impossible for the latter to provide evidence that it fulfilled the minimum condition referred to in point 2.6.2.1, subparagraph 2, of the tender specifications, under the selection criteria (‘the new line of argument’).
30 In that connection, it must be recalled that, in accordance with Article 48 of the Rules of Procedure, the introduction of new pleas in the course of proceedings is prohibited unless those pleas are based on matters of law or of fact which come to light in the course of the procedure.
31 In this case, primarily, it must be held that the new line of argument developed by the applicant at the reply stage is not based on any legal or factual element drawn to its attention during the present proceedings. That line of argument is based on the mere allegation by the applicant that it was impossible for P&T Luxembourg to provide in its tender evidence that it fulfilled the minimum condition referred to in point 2.6.2.1, subparagraph 2, of the tender specifications, under the selection criteria. Therefore, that new line of argument must be held inadmissible having regard to Article 48(2) of the Rules of Procedure.
32 Moreover, it should be noted at the outset that, in support of its allegation in support of the new line of argument in the first part of the second plea, the applicant merely argues on the basis of its own experience, without producing any evidence capable of supporting the said allegation.
33 Next and in any event, it must be held that it is apparent from a new extract from the non-confidential version of the evaluation report communicated by the Commission as an annex to the rejoinder that, in support of its tender, P&T Luxembourg had referred, in accordance with the conditions set out in point 2.6.2.1, subparagraph 2, of the tender specifications, to more than two contracts for the transport and distribution of mail in an amount of EUR 1 million or above.
34 Consequently, without there being any need to invite the Commission to produce a full confidential version of the evaluation report, the first part of the second plea must be dismissed as inadmissible and, in any event, unfounded.
b) The second part of the second plea, alleging infringement of the principles of transparency and non-discrimination, through application of award sub-criteria and weighting rules not provided for in the tender specification
35 The second part of the second plea, claiming infringement of the principles of transparency and non-discrimination, flowing from the provisions of Article 15 TFEU, Article 89 of the financial regulation and the case-law, is based on two complaints, claiming the application of, first, award sub-criteria, and, second, weighting rules, which did not appear in the tender specifications.
The first complaint, alleging the application of award sub-criteria not provided for in the tender specifications
36 Concerning the first complaint, alleging the application of award sub-criteria which did not appear in the tender specifications, the applicant identifies four such sub-criteria concerning, respectively, ‘distribution to post office boxes’, ‘collection in Luxembourg’, ‘invoicing’ and the ‘form and style of [its] tender’.
37 The applicant’s first argument, concerning the sub-criterion in relation to ‘distribution to post office boxes’, is that it was applied both under the first and the second technical award criteria.
38 Firstly, as regards the alleged application of that sub-criterion under the first technical award criterion, it is apparent from the evaluation of the applicant’s tender that the evaluation committee took as a negative factor the absence of any mention of distribution to post office boxes.
39 In that respect, it should be noted that, according to the very terms of the description used, in the table of technical award criteria of the tender specifications, of the first technical award criterion, the aim of the latter was to assess the methodology proposed in order to ensure timely and quality distribution ‘worldwide, including for door-to-door distributions and distributions to post office boxes’. In the first place, that description appeared in bold on that table. Secondly, contrary to what the applicant claims, such highlighting was obviously intended to insist upon the particular importance, for the purposes of evaluating the tenders, of the mention in the latter of distribution services to post office boxes. The importance thus attached by the Commission to distribution to post office boxes is all the clearer in this case as, in point 4.1 of the tender specifications, to which point 1.3 of those specifications refers as regards the detailed description of the services sought through the call for tenders, it is expressly indicated, again in bold characters, that those services comprise door-to-door distribution and distribution to post office boxes. Consequently, it must be held that the first technical award criterion related in particular, and clearly, to offers of distribution services to post office boxes. Therefore, the applicant is wrong to argue that, in the context of the first technical award criterion, the Commission applied a new sub-criterion, not contained in the tender specifications.
40 Next, as regards the sub-criterion concerning ‘distribution to post office boxes’, as allegedly used in relation to the second technical award criterion, it is apparent from the evaluation of the applicant’s offer that the evaluation committee took into account, as a negative factor in that tender, the fact that distribution to post office boxes was not dealt with.
41 In that respect, it should be noted that the purpose of the second technical award criterion, as is apparent in particular from the table of technical award criteria in the tender specifications, was clearly to evaluate the complete description of the arrangements for carrying out the whole of services sought, and of collection in PO offices and distribution to final addressees. Distribution to post office boxes constituted one of the services sought under the heading of arrangements for distribution to final addressees. Thus, a complete description of the offer of service by tenderers necessarily had to contain a part devoted to distribution to post office boxes. Therefore, the applicant is wrong to claim that, in the context of the second technical award criterion, the Commission applied a new sub-criterion, concerning distributions to post office boxes, not contained in the tender specifications.
42 Secondly, as regards the sub-criterion concerning ‘collection in Luxembourg’, as allegedly adopted in relation to the second technical award criterion, it is apparent from the evaluation of the applicant’s tender that the evaluation committee took as a negative factor of that tender that it gave no detail concerning collection in Luxembourg.
43 In that respect, it should first be noted that it is apparent from the contract notice (point II.1), from the tender specifications (see, in particular, points 1.3, 4.1 and 4.5) and from the model contract attached to the tender specifications (see point 1.1.1) that the collection of mail in the offices of the PO in Luxembourg, first, constituted one of the three main tasks to be carried out under the public contract in question, namely those of collecting, transporting and delivering mail, and, second, was therefore of particular importance.
44 Next, in point 4.7.1 of the tender specifications, it is expressly indicated that mail collection and transport services had to be carried out from the offices of the PO in Luxembourg.
45 Finally, it should be noted that the purpose of the second technical award criterion was to evaluate the complete description of the arrangements for carrying out the whole of services sought, and of collection in PO offices and distribution to final addressees.
46 Collection in offices of the PO clearly constituted a decisive step in the performance of the whole of the services at issue. It is undeniable that, as this was a contract for collecting, transporting and distributing mail, the care taken at the first stage, concerning collection, has a major influence on the optimal realisation, in technical and economic terms, of the two following stages, respectively concerning the transport and distribution of the mail collected.
47 Therefore, the applicant is wrong to claim that, in the context of the second technical award criterion, the Commission applied a new sub-criterion, concerning collection in Luxembourg, that was not contained in the tender specifications.
48 In any event, the applicant cannot accuse the Commission of holding, as a negative factor in relation to the second technical award criterion, that its tender did not contain details of the collection having to be carried out in Luxembourg. At the very most, the applicant’s tender shows (pages 11 and 12) that it had expressly, but solely, subscribed to the general conditions for collection at the offices of the PO. However, its tender does not show that it gave details over and above those general conditions.
49 Thirdly, concerning the sub-criterion in relation to ‘invoicing’, as allegedly used as regards the second technical award criterion, it is apparent from the evaluation of the applicant’s tender that the evaluation committee took as a negative factor in that tender the lack of detail concerning invoicing of the services in question.
50 In that regard, it should first be noted that Articles II.4.2, II.4.3 and II.5 of the model contract annexed to the tender specifications detailed the arrangements for invoicing and payment in terms, in particular, of the periodicity and duration of the mail collection and distribution services. In addition, as the Commission points out, it is clearly indicated in point 4.6 of the tender specifications that, first, for each mail collection the PO would issue a document specifying the formats, weights and quantities of the packages and parcels and the destination countries, and, secondly, that document would be validated by the contractor at the PO and sent daily to the PO as evidence for invoicing purposes.
51 Thus, as is apparent from the tender specifications and the model contract annexed thereto, the arrangements for invoicing the services in question formed an integral part of arrangements for carrying out the whole of the said services, the complete description of those services having been evaluated under the second technical award criterion. Consequently, the applicant is wrong to claim that, in the context of the second technical award criterion, the Commission applied a new sub-criterion, concerning invoicing, that was not contained in the tender specifications.
52 That conclusion cannot be called into question by the applicant’s allegation that, in accordance with point 1.9 of the tender specifications, submission of a tender implies acceptance by the tenderer of all the conditions set out in the model contract. Such an allegation amounts to suggesting that it is sufficient for tenderers to declare that they will comply with the requirements of the tender specifications. However, in the context of the awarding of a public contract to the tender which is economically the most advantageous, it is for the tenderers not only to propose a price in their tender, but also to set out therein, in as detailed a manner as possible, its characteristics, having regard in particular to the technical award criteria used, so as to allow the contracting authority to evaluate the added value which it offers in comparison with the tenders submitted by other tenderers.
53 Fourthly, concerning the sub-criterion relating to the ‘form and style of [its] tender’, it is apparent from the evaluation of the applicant’s tender that, as regards the first technical award criterion, the evaluation committee formulated a general commentary according to which ‘[t]he tender submitted (with photos!) is precise and comprehensible, but not necessarily well structured and organised; [t]he way in which the information is set out does not follow the chronological order of the framework in the tender specifications’. With regard to the second technical award criterion, the evaluation committee renewed the same general commentary with reference to the commentary referred to above concerning the first technical award criterion.
54 Contrary to what the applicant claims, the provisions of the tender specifications, and more particularly the first two subparagraphs of point 2.2 of the tender specifications, headed ‘Form and content of the tender’, do not permit aspects of form and style to be overlooked, for the purposes of evaluating tenders in relation to technical award criteria. Those subparagraphs state:
‘Tenders must be clear, concise and assembled in a coherent manner (for example, bound or stapled). The tenderer is also invited to supply an exhaustive list indicating where the required documents are to be found (see point 5.8). If the tender comprises several files, the tenderer is advised to create a contents table for each of them.
As the tenderer will be judged on the contents of its written tender, the latter must clearly show that it is able to meet the requirements of the tender specifications.’
55 Thus, in the abovementioned provisions of the tender specifications, apart from the purely formal conditions concerning the compilation of the tender documents, the Commission expressly drew the attention of potential tenderers to the importance of a clear and concise presentation of their tenders in order to allow it to assess, in optimum conditions, their content and their capacity to satisfy the requirements of the tender specifications. It is undeniable that the formal and stylistic presentation of a tender necessarily has an impact, either positive or negative, on the level of comprehension, and thus the evaluation of that tender, by the body having the task of examining it.
56 In any event, contrary to what the applicant argues, it is not apparent from the provisions of the tender specifications that, by virtue of the first two subparagraphs of point 2.2 of the tender specifications, there was only one condition of form and style concerning compliance with administrative burdens and that non-compliance could be sanctioned by rejection of the tender in question. In that respect, it should be noted that point 2.2 preceded, in particular, point 2.5, headed ‘Section 2: exclusion criteria’ and point 2.6, headed ‘Section 3: selection criteria’. Thus, point 2.2 fell neither under exclusion criteria nor under selection criteria, but described, first, in a general way the qualitative characteristics as to the form of the tenders submitted, and, second, the impact of those characteristics on the evaluation of the said tenders.
57 Consequently, the applicant is wrong to claim that the Commission applied, in the context of the first and second technical award criteria, a new sub-criterion, concerning the ‘form and style of the tender’, not contained in the tender specifications.
58 It follows from the above considerations that the applicant is wrong to maintain that the four sub-criteria referred to in paragraph 36 above, used for the purposes of evaluating its tender, did not appear in the tender specifications.
The second complaint, alleging the application of weighting rules not contained in the tender specifications
59 Concerning the second complaint, alleging the application of weighting rules not contained in the tender specifications, the applicant argues that, in relation to the first three sub-criteria referred to in paragraph 36 above, it is apparent from the evaluation report that the Commission formulated assessments concerning their respective importance for evaluating its tender. It argues that such weighting of those sub-criteria has no basis in the tender specifications.
60 In that regard, it is sufficient to note that, as held in paragraphs 37 to 43 above, it is apparent from the call for tender that the sub-criteria concerning ‘distribution to post office boxes’ and ‘collection in Luxembourg’ were of particular importance, the first being concerned with the very subject-matter of the contract and the second with the practical arrangements for carrying out the contract in question. Therefore, the applicant is wrong to complain that the evaluation committee stated, in the evaluation report, that the sub-criteria concerning ‘distribution to post office boxes’ and ‘collection in Luxembourg’ were respectively important and very important for the PO.
61 Similarly, since, as noted in paragraphs 49 to 51 above, the sub-criterion concerning ‘invoicing’ fell within the provisions of the tender specifications, the tender specifications clearly laid down the conditions for drawing up invoices in respect of the services carried out daily and the invoicing arrangements conditioned subsequent payment by the PO under the heading of services provided by the co-contractor, the applicant is wrong to maintain that the contractual documents did not enable the importance which the Commission attached to compliance therewith to be determined.
62 It follows from the whole of the above considerations that all the arguments in support of the second part of the second plea must be dismissed as unfounded.
c) The third part of the second plea, alleging infringement of the principles of transparency and non-discrimination in relation to the definition and application of the technical award criteria
63 The third part of the second plea, alleging infringement of the principles of transparency and non-discrimination, as they arise from the provisions of Article 89 of the financial regulation, is based on two complaints, alleging, first, vagueness and imprecision of the technical award criteria and the arbitrary invitation to the tenderers, appearing in the second subparagraph after the table of technical award criteria, to provide additional details concerning their tender, and, secondly, the application of the said criteria in a non-transparent and discriminatory way to the tenderers’ tenders.
64 It should first be noted that in order to ensure that the principles of transparency, equal treatment and non-discrimination are observed at the stage at which tenders are selected with a view to awarding a contract, Article 97(1) of the financial regulation 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 the implementing rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also state, in the contract notice or the tender specifications, the relative weighting which it attributes to each of the criteria chosen for determining the most economically advantageous tender (judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 57).
65 Next, it is settled case-law that, 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 transparency, which is its corollary, 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 notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraphs 110 and 111; Case T‑437/05 Brink’s Security Luxembourg v Commission [2009] ECR II‑3233, paragraphs 114 and 115 and case-law cited).
66 Nevertheless, again according to settled case-law, the provisions of Article 97 of the financial regulation and Article 138 of the implementing rules, referred to in paragraph 64 above, leave the contracting authority a choice of the technical award criteria in the light of which the tenders will be evaluated. However, the award criteria which the contracting authority proposes to use must, in any event, be aimed at identifying the offer which is economically the most advantageous (see, to that effect, Case T‑4/01 Renco v Council [2003] ECR II‑171, paragraph 66, and Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 74).
67 In this case, firstly, it needs to be assessed whether the four technical award criteria, such as described in paragraph 5 above, and the invitation to provide additional details, as appearing in the second paragraph following the table of technical award criteria (see paragraph 6 above), have been clearly, precisely and unequivocally defined in the call for tenders.
68 First, as regards the four technical award criteria (see paragraph 5 above), starting with the first of them, it should be noted that it is apparent from its description that its object was to evaluate the arrangements proposed in the tenderers’ offers, in order to monitor and guarantee the quality of the services offered in respect of the whole of the services sought. It should further be noted that the reference in that description to point 4.11 of the tender specifications indicates the importance attached by the PO not only to compliance with deadlines and frequency of mail collection and distribution operations, but also to measures taken by the tenderer in order to ensure the physical protection of the goods. Contrary to what the applicant claims, that reference is not devoid of any link with the first technical award criterion. Indeed, various amounts of financial compensation were fixed in point 4.11 of the tender specifications in the case of non-compliance by the co-contractor with its contractual obligations.
69 Having regard to the above findings, since the transport and distribution of mail require important methodological qualities in terms in particular of organisation and security, it must be held that the first technical award criterion, the justification of which in relation to the subject-matter of the contract in question is undeniable, was formulated clearly, precisely and unequivocally.
70 Concerning the second technical award criterion, it is apparent from its description that its object was to evaluate the qualitative level of all the means proposed in the tenderers’ offers and directly destined to the provision of the services sought in the call for tenders. As is apparent from the clarification between brackets at the end of that description, tenderers were to describe exhaustively the means proposed for carrying out the contract, from the collection in the offices of the PO until distribution to the final addressee.
71 Moreover, it should be noted that, in point 4 of the tender specifications, all the technical specifications relating to the contract in question were detailed so as to allow potential tenderers to appreciate the characteristics of the method having to be described exhaustively under the second technical award criterion.
72 Thus, contrary to what the applicant maintains, having regard to the respective distinct object of the first and second award criteria, there was no overlap or confusion between the said criteria, rendering the respective descriptions imprecise or equivocal. The first technical award criterion related to the methods proposed by the tenderers in order to monitor and guarantee, throughout the performance of the contract, the quality of all the services in question and aimed to evaluate the quality of those methods. The second technical award criterion related to the description of the whole of the means proposed in order to satisfy the services sought and was designed to allow those means to be evaluated.
73 Consequently, the second technical award criterion, the justification of which in relation to the object of the contract in question is undeniable, was formulated clearly, precisely and unequivocally.
74 Concerning the third technical award criterion, its description expressly indicates that its object was to evaluate the qualitative level of the measures proposed by the tenderer in order to meet difficulties in transport and in the context of two precise stages, namely transport towards the distribution centre and deliveries to final addressees. Thus, such a criterion, the justification of which in relation to the object of the contract in question is undeniable, was formulated clearly, precisely and unequivocally.
75 Finally, concerning the fourth technical award criterion, its description also expressly indicates that its object was to assess the proposals of the tenderers in order to allow the tracking of deliveries to various countries in the world. Thus, such a criterion, the justification of which in relation to the object of the contract in question is undeniable, was formulated clearly, precisely and unequivocally.
76 Secondly, as regards the invitation to provide additional details, as it appears in the second paragraph following the table of technical award criteria, it should be observed at the outset that, in the first sentence of that paragraph, the Commission drew tenderers’ attention to the need, in order to allow them to obtain a maximum number of points for each of the four technical award criteria, to provide in their tender a detailed description of all the aspects touched upon in the tender specifications on the subject of those criteria. Next, in the second sentence, it stated that, if a tenderer were merely to ‘repeat the requirements set out in the tender specifications, without going into details or without giving any added value, [it would] obtain only a very low score’.
77 In that respect, it should be recalled that the procedure for awarding the public contract to the most economically advantageous offer is based, as stated in Article 138(2) of the implementing rules, on the identification of the tender with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.
78 Moreover, having regard to the abovementioned provisions, applicable in this case, it must be held that it follows from the terms used by the Commission in the second paragraph following the table of technical award criteria that it was at pains to remind tenderers that the award of a contract to the economically most advantageous offer requires an assessment in relation to criteria other than price. Thus, such an evaluation of those other criteria presupposes that the tenderers do not merely reproduce in their tenders the requirements set out in the call for tenders, but set out in detail the characteristics of their tender for the purposes of meeting the said requirements.
79 Moreover, concerning the applicant’s complaint that the second paragraph following the table of technical award criteria did not indicate whether or not variants were authorised, it should be pointed out, as the Commission has done, that the applicant appears, wrongly, to be assimilating the concept of a variant with that of a departure.
80 Departures allow tenderers, while complying with the technical specifications laid down in the call for tenders, to enrich their offer with positive elements and, thus give it, in comparison with other tenders, a specific added value in the context of the award of a contract having regard to the criterion of the most economically advantageous offer.
81 Conversely, as the case-law shows, ‘variants’ constitute offers or technical alternatives in relation to the technical specifications laid down in the call for tenders (Case C‑421/01 Traunfellner [2003] ECR I‑11941, paragraph 26; Case C‑423/07 Commission v Spain [2010] ECR I-3429, paragraph 65; order of 31 January 2005 in Case T‑447/04 Capgemini Nederland v Commission [2005] ECR II‑257, paragraph 29).
82 In this case, it was expressly indicated in point II.1.9 of the contract notice that variants were strictly prohibited in the context of the award procedure at issue. Therefore, the present complaint is ineffective in this case.
83 Finally, contrary to what the applicant maintains, such an invitation to provide additional details of the tenders submitted does not in any way confer an arbitrary power on the Commission. Apart from the fact that, as indicated above, that invitation is limited to issuing a reminder of the fundamental requirements in terms of the formulation of tenders submitted in the context of a procedure for awarding a public contract to the economically most advantageous offer, it should be noted that it is not in any way designed to give the Commission a power of examining the said tenders having regard to technical award criteria other than those set out in the call for tenders.
84 Secondly, it needs to be assessed whether, as the applicant maintains, the Commission has applied the technical award criteria in a manner that is not transparent and is discriminatory towards tenderers.
85 In that regard, the applicant identifies, in support of this complaint, four ‘anomalies’ appearing in the evaluation report, which illustrate the incoherent and disordered character of the evaluation procedure.
86 First, concerning the applicant’s allegation that it was not possible to determine the method of calculating the points corresponding to each of the criteria and sub-criteria used, it should first be noted that, as the applicant expressly acknowledges in the reply, the financial regulation does not oblige the Commission to divulge its system of marking or its methodology of evaluation. Similarly, it should be added on this subject that nor can such an obligation be inferred from the provisions of the implementing measures.
87 Nevertheless, the applicant claims that it follows from the general principles of transparency and equal treatment that at least one specific method of evaluation must actually be used and that the points obtained by tenders for a specific criterion must be proportionate to the evaluation carried out in regard to the technical award criterion at issue.
88 Such an argument cannot succeed, since, in accordance with the case-law referred to in paragraph 64 above, it is apparent from the provisions of Article 138(3) of the implementing rules that the contracting authority is required only to state, in the call for tenders, the relative weight which it attaches to each of the criteria chosen in identifying the tender which is economically the most advantageous. In this case, it is undisputed that the tender specifications expressly indicated the maximum marks capable of being obtained for each of the four technical award criteria applicable.
89 As regards that evaluation method of the whole of the tenders received in relation to each of the technical award criteria used, the Commission has stated in its defence that, in accordance with the tender specifications, the evaluation committee examined, initially, the conformity of the tender with the tender specifications for the criterion concerned, and then subsequently sought the existence of added value and concrete proposals and the level of detail in the description of those proposals.
90 Contrary to what the applicant claims, such a method does not amount to examining first the admissibility of tenders and then arbitrarily evaluating their qualities.
91 It is clear from the whole of the provisions of the call for tenders, and in particular from the second paragraph following the table of technical award criteria, that for the purposes of marking the tenders received, the evaluation committee had to examine them having regard to each of the four technical award criteria, and that that separate examination presupposed before anything else that each part of the tenders be formally, but also in substance, devoted to each of the said criteria. As is clear from the second paragraph following the table of technical award criteria, if a tender met that minimum requirement, the evaluation committee would then give it a minimum number of points.
92 By contrast, in order to obtain a maximum number of points, each tender also had, in respect of each of the four technical award criteria, to be sufficiently detailed and concrete for the evaluation committee to be able to appreciate its added value.
93 Such a two-stage examination method, which was clearly apparent from the call for tenders, in so far as it is required as the standard for evaluating a tender having regard to specific criteria forming the subject of weighted marking, cannot as such be described as arbitrary, where, as is the case here, the factors taken into consideration are clearly derived from the call for tenders.
94 Next, contrary to what the applicant claims, it is not apparent from a comparison between the evaluation of its tender and that of P&T Luxembourg that the marks awarded to each of them under the first technical award criterion were arbitrary. Even if, as applicant claims, the evaluation report concerning the tender of P&T Luxembourg did show, in relation to the first technical award criterion, a lack of description of the overall method used, it should be noted that, apart from a second finding, amongst the negative factors, as to non-development of ‘the theoretical approach of the concept’, firstly all the other factors found by the evaluation committee were positive and, secondly, the general commentary as to the content indicated in bold that the tender was ‘otherwise very clear and relevant’.
95 By contrast, concerning the evaluation report in relation to the applicant’s tender, it should be noted that the evaluation committee had, first, indicated in a general comment that, whilst that tender did have qualities in regard to international control measures, it was weakened by failures in relation to the specific measures taken in relation to the PO and, secondly, identified five negative factors some of which, such as the lack of description of the method for ensuring distributions within the time-limits or the lack of explanations concerning distributions to post office boxes, constituted, as pointed out in paragraphs 39 and 68 above, important evaluation factors under the first criterion.
96 Consequently, it must be held that a comparative analysis of the assessments made by the evaluation committee on the subject of the applicant’s tender and that of P&T Luxembourg reveals important differences between those tenders, which justified the awarding of different marks to each of them under the first criterion. The applicant is thus wrong to maintain that the mark awarded to the tenders submitted, under the first technical award criterion, was awarded arbitrarily.
97 Secondly, with regard to the applicant’s complaint concerning the taking into account, on several occasions, under different technical award criteria, of a single negative comment or a single general comment by the evaluation committee, it should be remembered that the four technical award criteria, and in particular the first two (see paragraph 72 above), each had their own particular purpose. Consequently, provided the general comment or negative comment in question did in fact relate to the purpose of each of the technical award criteria concerned, the evaluation committee cannot be blamed for taking them into account a number of times.
98 As regards the absence, referred to in the evaluation report in relation to the applicant’s tender, of any mention of distribution to post office boxes under the first and second criteria in the applicant’s tender, it must be held that that finding is not redundant, but refers, in relation to the first criterion, to a lack of description of measures taken to ensure quality control throughout the performance of the contract, of services concerning distribution to post office boxes and, in relation to the second criterion, to the lack of any complete description of the means, equipment and resources proposed in the applicant’s tender in order to ensure, in particular, distribution to post office boxes.
99 Thirdly, as regards the applicant’s complaint concerning the negative factors identified in the evaluation report on the subject of imprecision with regard to contractual elements already exhaustively dealt with in the contractual documents, even though, in submitting its tender and pursuant to the provisions of point 1.9, second paragraph, of the tender specifications, the applicant had expressly or automatically subscribed to the corresponding stipulations appearing in the call for tenders, it is sufficient to note that such a complaint reveals the applicant’s lack of comprehension of the conditions for evaluating tenders as they were clearly laid down in the call for tenders, especially in the second paragraph following the table of technical award criteria.
100 Indeed, for the purposes of evaluating tenders received under each of the four technical award criteria used, and for the purposes of identifying the offer which was economically most advantageous, it must be held that a mere indirect repetition of the said elements deprives the applicant’s tender of any detailed exposition of its own characteristics in relation to the public contract at issue, on which characteristics the evaluation committee could have based its reasoning in order to discover and evaluate the added value of the said tender in comparison with the other tenders received.
101 Moreover, the applicant is equally wrong to maintain that the general comment made in the evaluation report, under the second criterion, is contradictory in stating that its tender did not state all the arrangements in detail, whilst recognising that it did describe the ‘means, equipment and resources’ for carrying out the contract. Such a formulation, far from being contradictory, clearly indicates that, whilst the description of the arrangements in the applicant’s tender, in terms of means, equipment and resources was regarded as sound, the arrangements thus described did not cover the whole of the characteristic elements referred to in the context of the second technical award criterion, namely, as expressly stated in the list of negative factors, collection in Luxembourg, invoicing and door-to-door and post office box distribution.
102 Fourthly, concerning the applicant’s complaint of an infringement of the equal treatment principle in relation to the evaluation of alternative solutions concerning the requirements of the tender specifications as regards its tender and that of P&T Luxembourg, it should first be recalled that, according to settled case-law, that principle requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such treatment is objectively justified (Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 56; Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23). That was clearly not the case here.
103 In the first place, the applicant is wrong to describe as an ‘alternative solution’ the proposal by P&T Luxembourg to carry out a daily rather than weekly return of undeliverable mailings. That proposal by P&T Luxembourg, which clearly complies with the requirement in the tender specifications (point 4.8.2) for such a return service of undeliverable mailings, clearly constitutes, in substance, having regard to the case-law referred to in paragraph 81 above, a ‘departure’ and not an ‘alternative solution’, and thus a ‘variant’.
104 Secondly, concerning the separate and specific treatment as described in the applicant’s tender under the second criterion, namely separation of mailings by categories of countries and sub-categories of formats, that treatment was, rightly, identified in the evaluation report as a negative factor. Contrary to what the applicant maintains, it is expressly indicated in its tender that, far from being described as a mere proposal, as opposed to a requirement on its part, the said treatment was formally and expressly requested, at pages 7 and 8 of the tender, both for mailings of format P (petit (small)) and G (grand (large)) and for format E (épais (thick)). Moreover, in relation to mailings of formats P and G, it was indicated that that request was made for reasons of efficiency and speed of distribution. Finally, likewise in relation to formats P and G, it was indicated that ‘the specific sorting requested in the following’ and, in relation to mailings of format E, that ‘BPI requests that the office sort mailings in the following manner’.
105 Consequently, whereas, first, point 4.5.4, second paragraph, of the tender specifications provided that the PO would carry out sorting of the packages and parcels by destination country taken individually, separating those packages and parcels according to their format P, G, E and M (bags) and, second, in the first paragraph under the heading ‘Preparation of mailings’, set out under point 2 of the applicant’s tender on the subject of the second criterion, the applicant stated that ‘as indicated in the call for tenders, PO ... will sort the mailings by destination country’, it must be noted that, in the detailed description of the method of preparing mailings which it gave from the following paragraph onwards, it requested the PO to carry out a specific sorting according to detailed rules determined by it alone. In accordance with that description, it requested the PO not only to sort formats by country, but also to group packets by formats and by country in three new categories of destination countries. Thus, it must be held that the applicant has added an additional stage, compared with the requirements appearing in the tender specifications, concerning the process of sorting packages and parcels by the PO. By so doing, the applicant not only absolved itself from the burden of work corresponding to the realisation of that additional task which it could regard as necessary, but above all transferred that burden of work to the PO. Having regard to the above considerations and contrary to what the applicant maintains, the evaluation committee was thus right to identify that specific treatment of mailings requested by the applicant as a negative factor of its tender.
106 That finding cannot be called into question by the fact that the alternative method requested imposed a very relative additional burden on the PO, was advantageous for the parties and was applied for many years, by mutual consent, in the context of the contract in force between the applicant and the PO.
107 First of all, even supposing that that additional burden was already borne by the PO under the previous contract between the applicant and the latter, the Commission, as it itself points out, is, by virtue of the equal treatment principle, not authorised to take account of factors and elements relating to a previous public contract under which one of the tenderers was a contractor.
108 Moreover, it is not possible to exclude the possibility that, following that experience under the said previous public contract, the PO deliberately decided, for reasons which it is not for the General Court to assess, but which might result, for example, from a reduction in the staff employed to sort packages and parcels, not to renew it and, thus, reduce as far as possible the burden represented by that task concerning the sorting of packages and parcels, in the call for tenders.
109 Furthermore, it is not for the General Court to rule on the advantages capable of being derived from an alternative solution proposed by a tenderer in comparison with an arrangement expressly provided for in a call for tender document, especially in this case where, as pointed out in paragraph 82 above, by virtue of the provisions of point II.1.9 of the contract notice, variants were strictly prohibited in the context of the procedure for awarding the contract in question. An alternative solution, such as that proposed by the applicant, since it consisted in requesting the PO to carry out an additional task when sorting packages and parcels, obviously does not constitute a simple ‘departure’ but a ‘variant’ within the meaning of the case-law essentially cited in paragraph 81 above, in relation to the requirements appearing in the tender specifications.
110 Finally, contrary to what the applicant maintains, it must be held that the proposal by P&T Luxembourg to return undistributed mailings on a daily basis, because of its daily nature, represents significant added value, since the PO will be daily, and thus almost immediately, kept informed of the final addressees who have not been able to receive the latest mailings. The PO will thus be able to update its database of addressees almost daily by correcting or removing their details, so that the probability of future mailings being returned to it is reduced. By contrast, a weekly return service implies the need to handle greater quantities of returned packages and parcels, since it is not only the packages and parcels undelivered to various addressees on a given day, but all packages and parcels subsequently undelivered after that day until the co-contractor informs the PO, which will be returned together to the PO. Consequently, such a process involves not only a significant and detailed workload updating the database of final addressees but also a weekly workload of packaging mailings which are clearly devoid of purpose, in as much as all the mailings to a missing addressee will very probably again be returned to the PO.
111 It follows from the whole of the considerations set out above that all the arguments put forward in support of the third part of the second plea must be dismissed.
d) The fourth part of the second plea, alleging infringement of the duty to state reasons and several obvious errors of assessment in evaluating the applicant’s tender
112 Under the fourth part of the second plea the applicant raises, essentially, two complaints. The first alleges infringement of the duty to state reasons because of the summary nature of the reasoning contained in the evaluation report. The second alleges several obvious errors of assessment arising, first, from contradictions in reasoning appearing in the evaluation report, and, second, erroneous statements and assessments of the evaluation committee.
The first complaint, alleging infringement of the duty to state reasons
113 Concerning the first plea, alleging infringement of the duty to state reasons, the applicant argues that, having regard to the summary nature of the reasoning in the evaluation report, the ‘depth’ and the validity of the reasoning set out therein are affected.
114 In that respect, it should be noted that the parties agree on the summary nature of the reasoning contained in the evaluation report. On that subject, they both refer, in support of their respective arguments, to grounds arising from various points in the judgment in Evropaïki Dynamiki v Commission (paragraph 64 above).
115 However, it must be held that in this instance the applicant makes a selective reading of the judgment in Evropaïki Dynamiki v Commission (paragraph 64 above), with the result that it draws erroneous conclusions in comparison with the legal solution actually reached in that case.
116 First, the applicant has confined itself to citing paragraph 134 of that judgment, from which it is however apparent that the General Court, by using the conditional tense, was content to express guidelines which might be followed in the future, without however being required pursuant to the duty to state reasons referred to in Article 296 TFEU in order to take account of the principle of transparency which permeates all public contract award procedures.
117 Secondly, the applicant fails to mention that, at the end of paragraphs 131 to 133 of the same judgment, to which the Commission refers in its pleadings, the General Court concluded that the summary nature of the evaluation report, although regrettable, could not call into question the conclusion that the Commission had satisfied, to the requisite legal standard, the duty to state reasons incumbent upon it.
118 Having regard to the considerations set out in paragraphs 116 and 117 above, the applicant is wrong, in basing its argument on an erroneous reading of the grounds of the judgment in Case T-59/08 concerning the summary nature of the reasoning, to rely on the summary nature of the reasoning contained in the evaluation report, in itself, to support its complaint that the duty to state reasons has been infringed.
119 The first complaint in the fourth part of the second plea must therefore be rejected as unfounded.
The second complaint, alleging six obvious errors in the assessment of the applicant’s tender
120 Concerning the second complaint, the applicant argues that the contested decision is vitiated by six obvious errors of assessment, which it will be convenient to set out and examine consecutively.
121 As a preliminary point, it should be recalled that, according to settled case-law, the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case T‑145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147, and Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraph 95).
– The first manifest error of assessment
122 The first manifest error of assessment by the Commission is alleged to arise from the contradictory nature of the reasoning appearing in the evaluation report under the first and second technical award criteria concerning door-to-door distribution. The applicant argues that it is indicated as a positive factor under the first criterion that its tender describes the door-to-door distribution system, whereas it is mentioned as a negative factor, under the second criterion, that door-to-door distribution is not ‘touched upon in the applicant’s tender’.
123 In that respect, the Court finds, first, that it is not indicated in the evaluation report, under the second criterion, that door-to-door distributions are not ‘touched upon in the applicant’s tender’, but that door-to-door distributions and distributions to post office boxes are not treated. Consequently, contrary to what the applicant would have the Court believe in order to demonstrate the contradictory character of the reasoning concerning the evaluations of its tender under the first and second technical award criteria, the evaluation committee clearly did not find a lack of any proposal for door-to-door distribution ‘in the applicant’s tender’.
124 Next, from a substantive point of view, in so far as each of the four technical award criteria used was designed to evaluate the tenders received having regard to parameters specific to them and as the Court has held in paragraph 72 above, the applicant is wrong to maintain that the first two technical award criteria overlap as to their purpose.
125 Moreover, from a more formal point of view, it should be noted that the tender specifications required tenderers to complete a questionnaire concerning the technical award criteria, which was annexed thereto as Annex 8. It is undisputed that that is the same questionnaire which the applicant annexed to its tender under insert 14. It must be held that that questionnaire was subdivided into four parts that were strictly separate and formally independent. Those four parts referred respectively and exclusively to one of the four technical award criteria. Moreover, tenderers had, at the end of each of those four parts, to enter their name, signature and the date on which the document concerned was established. Such formalism permits the conclusion that, contrary to what the applicant attempts to argue, there was no ambiguity in the call for tenders as to the absence of possible conjunction between the elements of information communicated by the tenderers under each of the four technical award criteria. Therefore, it was impossible that information required under the second technical award criterion, such as that concerning door-to-door distribution, which was referred to not in the part of the tender dealing with that precise criterion, but in that relating to one of the other applicable technical award criteria, could be regarded as having been actually communicated in a sufficient manner as regards the second criterion.
126 It follows from the above considerations that the evaluation by the evaluation committee concerning the absence of indications concerning door-to-door distribution concerned exclusively the content of the applicant’s tender regarding the second criterion and not the content of that tender as a whole. Moreover, the Court finds that, as has not been denied by the applicant and as the evaluation committee rightly pointed out, no information concerning door-to-door distribution was contained in the applicant’s tender concerning the second criterion.
127 Therefore, the applicant is wrong to accuse the Commission of committing the alleged first manifest error of assessment.
– The second manifest error of assessment
128 Concerning the second manifest error of assessment allegedly committed by the Commission, the applicant argues that this arises from the contradictory character of the reasoning appearing in the evaluation report under the first technical award criterion, in that the evaluation committee censures the applicant’s tender, first, for not containing enough detail on ‘the method put in place to ensure delivery within the time-limits’ and, secondly, for containing a description which ‘limits itself too much to the transport delays’.
129 In that respect, the Court points out that the purpose of the first technical award criterion was to evaluate the proposed arrangements in the tenderers’ tenders, in order to monitor and guarantee the quality of the services offered under the heading of all the services sought (see paragraph 68 above), in relation to time-limits for distribution, the frequency of collection operations, the distribution of mail and the physical protection of the mailings during transport operations.
130 Firstly, as regards the first negative factor found by the evaluation committee, namely that the applicant’s tender was not sufficiently detailed as to ‘the method put in place to ensure delivery within the time-limits’, it must be held that, concerning the first technical award criterion, the applicant’s tender, and in particular heading A, entitled ‘For traditional mail’ contains only an overall description of the various international systems for measuring after the event of the distribution times of the mailings entrusted to it. On the other hand, as the evaluation committee pointed out, the applicant has not stated the concrete arrangements which it has taken to ensure compliance ex ante and in situ with distribution times. It is clear in clear, precise and unequivocal terms from the description of the first criterion that tenderers were asked to describe the methodology proposed in order to ensure, in particular, the distribution of packages and parcels within the time-limits set.
131 Secondly, as regards the second negative factor found by the evaluation committee, namely that the description appearing in the applicant’s tender as regards the first criterion was ‘too focused on transport delays, which is only one part of the quality concept’, it must be held that, having regard to the purpose of the first technical award criterion, that evaluation clearly refers to the incomplete character of the description of the methodology proposed by the applicant in order to carry out monitoring and guarantee the quality of the performance of the whole of the services sought.
132 In that respect, it must be held that, contrary to the purpose of the first technical award criterion, as recalled in paragraph 129 above, the applicant’s tender in relation to that criterion, concerning the treatment of traditional mail in particular, dealt preponderantly with delivery times and contained only a little summary information on the other characteristics of methodology proposed as to the whole of the services sought in the context of that first criterion.
133 It follows from the above considerations that the two negative factors formulated by the evaluation committee were not only well founded but also independent of each other, so that no contradiction between them can be found.
134 Consequently, the applicant is wrong to accuse the Commission of committing the second alleged manifest error of assessment.
– The third manifest error of assessment
135 The third manifest error of assessment by the Commission is alleged to result from the erroneous statement by the evaluation committee that, in relation to the first technical award criterion, ‘the concept PT BE for [the PO] is too focused on the context of the UNEX activities’. The applicant argues that its tender describes not only the UNEX system but six other measurement systems. It further argues that the UNEX system constituted the reference system, since it was designated in the tender specifications as a basis and reference for the monitoring of performance by the contractor and for the imposition of liquidated damages.
136 In that respect, the Court finds that, as the applicant observes, it is apparent from the introductory paragraph of point 4.8 of the tender specifications, headed ‘Time-limits’, that compliance with the time-limits imposed was to be monitored by the use of the UNEX measurement system and the instructions relating thereto.
137 However, first, contrary to what the applicant maintains, it is apparent from the same paragraph that the applicable quality norms in terms of time-limits for distribution were taken from the provisions of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14).
138 Secondly, the Court finds that it is apparent from the terms of the negative commentary on this subject by the evaluation committee, in combination with the provisions appearing under point 4.8.1 of the tender specifications, headed ‘Quality control’, and in particular the first two paragraphs, that that description of the UNEX measurement system did not meet the requirements of the tender specifications.
139 Indeed, it is apparent from the first two paragraphs of point 4.8.1 that tenderers were expressly asked to describe their own system of monitoring services so as to ensure a continuity in monitoring in order to detect deficiencies rapidly and immediately adopt corrective measures. In that regard, tenderers were to describe the protocols, procedures and means implemented in order to ensure such monitoring of the distribution of packages and parcels. However, as the evaluation committee rightly pointed out, the applicant did not meet that requirement to describe its own monitoring system, but simply indicated, in a general manner, the various measurement systems it had adhered to and in particular the UNEX measurement system.
140 It follows from the above findings that the evaluation committee did not make a manifest error of assessment by taking the view that the applicant’s tender was ‘too focused on the context of the UNEX activities’.
141 The applicant is therefore wrong to accuse the Commission of committing the third manifest error of assessment.
– The fourth manifest error of assessment
142 The fourth manifest error of assessment by the Commission is alleged to have arisen from the erroneous statement of the evaluation committee in relation to the first technical award criterion that ‘the operating methods of the [applicant] are not described, except BPI Shipper’. In fact, the applicant argues, it submitted an extensive and detailed description of its operating procedures in the part of its tender dealing with the second technical award criterion.
143 In that respect, it is sufficient to note that, as the Court has already held in paragraphs 72 and 125 above, the four parts of the questionnaire concerning the technical award criteria were formally and substantively distinct and independent, so that there was no ambiguity in the call for tenders as to the absence of possible interference between the elements of information communicated by the tenderers under each of the four technical award criteria.
144 Thus, since the applicant does not deny not having described the elements in question in the part of its tender dealing with the first technical award criterion, it is wrong to accuse the Commission of committing the fourth manifest error of assessment.
– The fifth manifest error of assessment
145 The fifth manifest error of assessment by the Commission, at the stage of evaluating the applicant’s tender under the third technical award criterion, is alleged to have arisen from two erroneous statements by the evaluation committee according to which the emergency plan proposed by the applicant, first, limited itself to the management of the vehicle fleet and, secondly, did not concretise the problems which could occur on a daily basis.
146 First, the Court recalls, at the outset, that the purpose of that third criterion was to evaluate the qualitative level of the measures proposed by tenderers in order to meet difficulties in transport and in the context of two precise phases, namely, first, transport towards the distribution centre and, second, deliveries to final addressees (see paragraph 74 above).
147 Second, concerning the first phase, it is apparent from the applicant’s offer that it proposed, in a concrete and detailed manner, an ‘immediate’ solution which would be adapted by reference to the difficulties encountered. More precisely, it indicated that both the vehicle fleet of its sub-contractor, charged with transporting mailings from the offices of the PO in Luxembourg to the EMC sorting centre, and its own vehicle fleet could ‘serve as back-up’. It proposed in particular an ‘immediate’ solution of additional or replacement transport means to enable daily difficulties to be dealt with. In addition, as is apparent from the applicant’s tender, transport from the offices of the PO to the EMC sorting centre was carried out by motor transport. Finally, it should be noted that this detailed explanation formed the subject-matter of a positive comment by the evaluation committee in the evaluation report.
148 Thirdly, concerning the second phase, the Court finds that it appears from the applicant’s tender that the applicant identified four examples of difficulties likely to be encountered after the transport of packages and parcels collected in Luxembourg to the EMC sorting centre, namely closure of the EMC sorting centre, interruption of national or international transport and, finally, interruption of distribution in the destination country.
149 However, it should be noted that, in those four examples, the applicant referred, first, in the case of unavailability of the EMC sorting centre, to its ‘contingency plan’ and, without any further explanation, merely indicated that it would use its own national sorting centres.
150 Next, the Court notes that, in relation to the two following examples, namely a shutdown of international transport and a shutdown of national transport, first, the applicant reproduced almost word for word the parts of its ‘contingency plan’ dealing with the same subjects, and, second, whilst those parts identify several cases of severe disruption, they describe an internal communication process within the undertaking in order to seek or coordinate the search for alternative solutions, without, however, as is the case with the first phase, proposing concrete and detailed alternative solutions.
151 Finally, concerning the fourth example regarding shutdown of distribution in the destination country, the applicant’s tender contains only a description of the communication processes in order to provide the PO with information as to the problem encountered, only ‘in countries with which the [applicant] has relations’. However, there is no description of any concrete and detailed procedure in order to reach a solution to the difficulties encountered.
152 Fourthly, it should be noted, first, that, as regards the finding of the evaluation committee that the applicant’s tender did not identify the problems which may arise on a daily basis, the ‘contingency plan’ which the applicant refers to in its tender concerning some of the four difficulties encountered during the first phase expressly provided that it came into operation only in the event of ‘serious disruption of the activities for more than 24 hours’. Such a plan could therefore clearly not be applied in respect of localised difficulties arising daily.
153 Similarly, contrary to what the applicant argues, the evaluation committee cannot be accused of committing a manifest error of assessment in finding, under the third criterion, an absence of explanations as to the problems which may arise on a daily basis, whereas, under the second technical award criterion, the applicant had described the tasks of the ‘dedicated working group’ and the evaluation committee had considered that description sound.
154 Apart from the fact that the ‘dedicated working group’ is not mentioned at any point, either in the part of the applicant’s tender dealing with the third criterion or in the ‘contingency plan’ which it annexed to its tender, it should, first, be recalled that the technical award criteria were autonomous, so that the contracting authority could not use, under one of those criteria, elements of the tender set out under another criterion, and, secondly, be pointed out that, in any event, the description under the second technical award criterion of the tasks assumed by the said working group does not permit the conclusion that it was entrusted with dealing specifically and in situ either with daily difficulties or serious disruptions, as regards both transport towards the distribution centre and distribution to the final addressee.
155 Secondly, it must be held that the difficulties envisaged by the applicant and capable of arising after delivery of the goods to the EMC distribution centre were envisaged either on the subject of serious disruptions in national or international transport or on the subject of disruptions not clearly identified concerning disruptions in the destination country. It is not at any point indicated that the difficulties envisaged at that stage concern less serious, but daily, disruptions, so that no solution in their respect is envisaged either after the delivery of the goods to the distribution centre.
156 In the fifth place, it is apparent from the measures described by the applicant in its tender concerning difficulties likely to be encountered during the second phase referred to in the third technical award criterion that the said offer was limited to describing in a general and hypothetical manner, first, cases of serious disruption, and second, internal communication procedures in order to seek an alternative solution. Nowhere does the said tender contain any concrete and detailed proposal, in relation to the second phase, for a measure such as that proposed under the first phase in terms of additional or replacement means of motor transport.
157 Consequently, having regard to the above findings, it must be held that, in relation to the measures envisaged and described by the applicant in order to meet the difficulties likely to be encountered during each of the two phases referred to in the third technical award criterion, the evaluation committee was right to find, first, that those measures could essentially be summarised as the management of the vehicle fleet (the solution proposed in respect of the difficulties encountered during the first phase) and, second, that, in substance, concerning the second phase in any event, the applicant’s tender did not identify problems which may occur on a daily basis.
158 In conclusion, the applicant is wrong to accuse the Commission of committing the fifth manifest error of assessment.
– The sixth manifest error of assessment
159 The sixth manifest error of assessment allegedly committed by the Commission concerns the fourth technical award criterion. The latter was designed to evaluate the quality of the system tenderers in order to ensure the monitoring on demand of the delivery of the packages and parcels to their addressee. The applicant argues that that obvious error of interpretation resides in the erroneous assessment by the evaluation committee that its tender ‘provides only for a monitoring function towards [eight] other countries’ and follows from an incorrect reading of the said tender.
160 In that respect, it should first be noted that both the applicant’s tender and the tender by P&T Luxembourg formed the subject-matter of an identical negative observation, in the form of a reminder formulated in the following terms: ‘compliance with binding conditions (applies to the [two] tenderers offering the system)’. Similarly those two offers formed the subject-matter of an identical positive observation according to which ‘[t]he tenderer offers the system envisaged by the tender specifications’.
161 Next, it is true that the part of the applicant’s tender concerning the fourth technical award criterion lacked clarity. It is clear from the wording of the fourth criterion that tenderers were invited to describe a service for monitoring deliveries on demand and to provide a list of countries covered by that service. As the Commission argues, it is apparent from that part of the applicant’s tender that, after having indicated, in the first paragraph, that it had decided to offer a ‘parcels’ service instead of a ‘registered’ service, it then describes, in the fourth paragraph, its proposition for ‘monitored deliveries’, without stating whether that proposal was in fact to be attached to the ‘parcels’ service referred to in the first paragraph.
162 However, the Court finds that, contrary to what the Commission claims, despite that lack of clarity in the terms used by the applicant in that part of its tender, two particular points, which concern the number of countries for which the monitoring of parcels could be carried out by the offer of monitoring proposed by the applicant, are unequivocal. First, it is clear from the wording of the third paragraph of the part of the tender concerning the fourth criterion that the list of eight countries corresponded to the list of countries towards which the ‘registered’ delivery service could be carried out. Secondly, it is expressly indicated in the sixth paragraph that the applicant had annexed to the part of its offer concerning the fourth criterion a detailed list of several dozen countries for which the monitoring service which it proposed in its tender was assured.
163 Therefore, the applicant is right to complain of a manifest error of assessment by the evaluation committee where it held that ‘the PT BE tender provides only for a monitoring function towards eight other countries (fifteen for another tenderer)’.
164 However, as regards the consequences which must be drawn from the finding of that obvious error of assessment by the Commission, having regard to the application for annulment of the contested decision, it must be held that, first, all the other pleas and arguments used by the applicant to demonstrate the unlawfulness of the contested decision have been dismissed and, second, that the difference between the total number of points attributed respectively to the applicant’s tender and to that of P&T Luxembourg is 15 points. In those circumstances, given that the applicant obtained 3 points out of a maximum of 5 in relation to the fourth criterion, it must be held that even if the evaluation committee had not committed the manifest error of assessment referred to in paragraph 163 above and had awarded the applicant’s tender the maximum number of points, namely 5, the total number of points awarded to its tender would have been 77. Such an increase would not have changed the final classification drawn up at the conclusion of the procedure for awarding the contract in question. Consequently, the manifest error of assessment referred to in paragraph 163 above cannot entail the annulment of the contested decision. Therefore, the second complaint of the fourth part of the second plea, and thus the second plea in its entirety, must be dismissed.
165 It follows from the whole of the above considerations that the application for annulment of the contested decision must be dismissed.
B – The application for compensation
166 In the application, the application demands compensation of EUR 2 836 444.94, corresponding to 10% of the estimated total value of the contract. According to the applicant, that amount is based on the loss of the chance to win the contract and on the costs which it has incurred in drawing up and editing its tender. In the reply, the applicant relies on a new head of damage, claiming infringement of its legitimate expectations, to which the Commission had given rise, in its letter of 20 January 2010, as to the prolongation of the 2006-2010 contract until 22 September 2010.
167 In accordance with settled case-law, for the Community to incur liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; see also to that effect Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). Where 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 for non-contractual liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19; Strabag Benelux v Council, cited in paragraph 66 above, paragraph 83).
168 In this case, in the first place, concerning the new head of damage alleged by the applicant at the reply stage, it is sufficient at the outset, for reasons of keeping the pleas considered to a minimum and the sound administration of justice, and without there being any need to examine the Commission’s claim that that head of damage is inadmissible, to hold that, in any event, contrary to what the applicant claims, the Commission’s letter of 20 January 2010 cannot have given rise to any legitimate expectation that the 2006-2010 contract would be prolonged.
169 It is apparent from the four following passages of that letter that that proposal by the Commission could not be legally binding upon it. First, it is indicated that the ‘PO has the intention’, in consequence of the order of 5 February 2010 in Case T‑514/09 R de Post v Commission (not published in the ECR), to provide for the prolongation of the 2006-2010 contract. Secondly, it is stated that that ‘measure will obviously be subject to the agreement of the competent administrative authorities’. Thirdly, it is added: ‘In the event of agreement on your part, the corresponding amendment to the contract will be sent to you when the time comes after conclusion of all the internal administrative procedures’. Fourthly, it is expressly indicated that ‘[o]nly the signature of an amendment to the contract can bind the Commission’.
170 Consequently, no illegality can be found in that respect in the Commission’s conduct.
171 In the second place, concerning the damage alleged by the applicant through losing the opportunity to be awarded the contract in question, it must be held that it is apparent from the conclusions drawn after examining the whole of the arguments set out in support of the two pleas raised for the purposes of obtaining the annulment of the contested decision that the only illegality committed by the Commission arises from a manifest error of assessment, but that the said illegality cannot entail the annulment of the contested decision. Even in the absence of such an error, the applicant would not have been successful at the conclusion of the contract award procedure.
172 Consequently, the applicant is wrong to base its claim for damages on a loss of opportunity to obtain the contract.
173 In the third place, concerning the damage alleged by the applicant in relation to the costs incurred in preparing and drawing up its tender, it should be noted that, according to consistent case-law, it is clear from Article 101 of the financial regulation that the contracting authority is not liable to compensate tenderers whose tenders have not been accepted. It follows that the charges and expenses incurred by a tenderer in connection with his participation in a tendering procedure cannot in principle constitute damage which is capable of being remedied by an award of damages (Case T‑13/96 TEAM v Commission [1998] ECR II‑4073, paragraph 71; Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 97). In this case, first, it is expressly clear from the wording of the fourth paragraph of point 1.9 of the tender specifications that the PO will not reimburse any costs incurred in the preparation and submission of tenders. Secondly, the applicant has provided no evidence that would permit a derogation from that principle.
174 Consequently, the applicant is not entitled to claim reimbursement of the costs relating to the preparation and drawing-up of its tender.
175 The application for damages must therefore be dismissed in its entirety.
176 Finally, it should be noted that, concerning the second head of claim, as the applicant stated at the hearing, its application for annulment of the contract is based on the prior annulment of the contested decision. Since, in paragraph 165 above, the Court has held that the application for annulment should be dismissed under the first head of claim, there is no need to adjudicate on the second head of claim formulated by the applicant.
177 This action is therefore dismissed in its entirety.
Costs
178 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. Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must be ordered to pay the costs, including those relating to the interlocutory proceedings.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders bpost NV van publiek recht to pay the costs, including those relating to the interlocutory proceedings.
Delivered in open court in Luxembourg on 23 November 2011.
[Signatures]
Table of contents
Background to the dispute
Procedure
Forms of order sought
Law
A – The application for annulment of the contested decision
1. The first plea, alleging infringement of rights of the defence
2. The second plea, alleging, first, infringement of various provisions of the TFEU Treaty and rules of law, and, secondly, various manifest errors of assessment
a) The first part of the second plea, alleging a manifest error of assessment in evaluating the tender of the successful bidder
b) The second part of the second plea, alleging infringement of the principles of transparency and non-discrimination, through application of award sub-criteria and weighting rules not provided for in the tender specification
The first complaint, alleging the application of award sub-criteria not provided for in the tender specifications
The second complaint, alleging the application of weighing rules not contained in the tender specifications
c) The third part of the second plea, alleging infringement of the principles of transparency and non-discrimination in relation to the definition and application of the technical award criteria
d) The fourth part of the second plea, alleging infringement of the duty to state reasons several obvious errors of assessment in evaluating the applicant’s tender
The first complaint, alleging infringement of the duty to state reasons
The second complaint, alleging six obvious errors in the assessment of the applicant’s tender
– The first manifest error of assessment
– The second manifest error of assessment
– The third manifest error of assessment
– The fourth manifest error of assessment
– The fifth manifest error of assessment
– The sixth manifest error of assessment
B – The application for compensation
Costs