JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
10 October 2012 (*)
(Public service contracts – Tendering procedure – Supply of services relating to the production and dissemination of the Supplement to the Official Journal of the European Union and related offline and online media – Rejection of the bid of one tenderer and decision to award the contract to another tenderer – Obligation to state reasons – Equal treatment – Manifest error of assessment – Non-contractual liability)
In Case T‑247/09,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by N. Bambara and. E. Manhaeve, acting as Agents, assisted initially by N. Dimopoulos, Solicitor, then by E. Petritsi, lawyer, and lastly by O. Graber-Soudry, Solicitor,
defendant,
APPLICATION for the annulment of the decision of the Office for Official Publications of the European Communities of 7 April 2009 to reject the bid submitted by the applicant filed in response to the call for tenders for the supply of services for the production and dissemination of the Supplement to the Official Journal of the European Union and related Offline and Online media, and all further decisions of the Office for Publications, including the one to award the contract to another tenderer, and a claim for damages,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Kancheva (Rapporteur), Judges,
Registrar: J. Weychert, Administrator,
having regard to the written procedure and further to the hearing on 1 March 2012,
gives the following
Judgment
Background to the dispute
1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law, operating in the field of information technology and computer technology.
2 By a contract notice of 6 January 2009, published in the Supplement to the Official Journal of the European Union (OJ 2009/S 2-001445), the Office for Official Publications of the European Communities launched a call for tenders in relation to the supply of services for the production and dissemination of the Supplement to the Official Journal (‘the public contract at issue’). In essence, the object of the contract consisted in the provision of access to the Tenders Electronic Daily (‘TED’) website and the production of the daily edition of the Supplement to the Official Journal and of the weekly DVD-ROM edition of the Supplement.
3 Section 2.7 of the tender specifications, headed ‘Section four: award criteria – technical bid’, provides that the contract will be awarded to the most economically advantageous bid. In particular, section 2.7.2 established that the award would be made as follows:
‘2.7.2. Technical evaluation
– criterion no 1: System to be developed (20 points);
– criterion No 2: Technical Infrastructure (20 points);
– criterion no 3: Hosting, maintenance, help-desk, operation (IT side) (20 points);
– criterion no 4: Production management (publishing side) (10 points);
– criterion no 5: service level agreement (“SLA”) (15 points);
– criterion no 6: Transitions management (15 points).
The result of the technical evaluation is the sum of the number of points obtained as a result of the evaluation of each criterion. Only those bids which are awarded at least half the points for each criterion and a total score of at least 65 points will be considered for the award of the contract.’
4 On 26 February 2009, the applicant submitted a tender in response to the call for tenders.
5 On 2 April 2009, the Evaluation Committee submitted its report to the Comité des Achats et des Marchés (‘CAM’) which gave a favourable opinion on the decision to award the contract to the successful tenderer, the consortium Diadeis SA & Arhs Developments SA.
6 By letter of 7 April 2009, the Office for Publications informed the applicant that, after the tenderers’ offers had been examined, its own had not been successful on the ground that it was not considered to be the economically most advantageous. In the same letter, the Office for Publications provided the applicant with the name of the successful tenderer and, in a comparative table, with the scores obtained by its own offer and by that of the successful tenderer, the financial offers and the overall score obtained.
7 By letter of the same day, the applicant complained to the Office for Publications about the outcome of the evaluation procedure, claiming, in essence, that the winning tender was the lowest because the services provided by the successful tenderer come from countries which are not signatories to the World Trade Organisation (WTO) Agreement on Government Procurement (OJ 1996 C 256, p. 2), contained in Annex 4 to the Agreement Establishing the WTO (OJ 1994 L 336, p. 3). In the same letter, the applicant requested the names of the sub-contractors and the percentage of the contract awarded to them by the Evaluation Committee, the scores obtained by the applicant’s tender and by that of the winning tenderer for each contract award criterion, as well as an analysis of the strong and weak points of its own tender and of the tender of the successful tenderer, including the advantages of the winning tender compared to the applicant’s tender. The applicant also requested a copy of the full version of the Evaluation Committee’s report and a list of the names of the members of the Evaluation Committee.
8 By letter of 8 April 2009, the Office for Publications provided the applicant, in a comparative table, with the scores obtained, for each criterion, by its own bid and by that of the successful tenderer, and also two extracts from the evaluation report containing the justification for the points awarded to the applicant’s tender and to the winning tender for each of the six criteria. The Office for Publications also informed the applicant that it would not provide it with other information concerning the winning tender in order not to harm the commercial interests of the successful tenderer. Finally, the Office for Publications informed the applicant that it would also not provide it with a list of the names of the members of the Evaluation Committee since that information was of a confidential nature.
9 The points awarded by the Evaluation Committee to the applicant and to the successful tenderer may be summarised as follows:
Technical evaluation | Max. | Min. | EuroDyn | Diadeis/Arhs |
System to be developed | 20 | 10 | 10 | 18 |
Technical infrastructure | 20 | 10 | 15 | 16.5 |
Hosting, maintenance, help-desk, operation (IT side) | 20 | 10 | 15 | 18 |
Production management (publishing side) | 10 | 5 | 5 | 9 |
Service level agreement (‘SLA’) | 15 | 7.5 | 8 | 13 |
Transitions management | 15 | 7.5 | 13 | 14.5 |
Total | 100 | 65 | 66 | 89 |
10 By letter of the same day, the applicant informed the Office for Publications that the Evaluation Committee had committed several errors of assessment. By way of example, it mentioned alleged errors of assessment relating to the second and third award criteria.
11 By letter of 23 April 2009, the Office for Publications provided the applicant inter alia with explanations regarding the comments made by the Evaluation Committee on the second and third award criteria. In that letter, the Office for Publications also stated that a copy of the CAM advice could be found attached to that letter, although that copy was not sent to the applicant. On the same day, the Office for Publications sent that letter to the applicant a second time, without however mentioning that it was sending the CAM advice.
12 By letter of the same day, the applicant asked the Office for Publications to provide the CAM advice which it had not received.
13 On 6 May 2009, the Evaluation Committee reviewed the winning tender without altering the points awarded to it, and then informed the Office for Publications in a Note for File dated the same day.
14 By letter of 7 May 2009, the Office for Publications informed the applicant that the reference to the CAM advice was an error, particularly because that advice did not, as it assumed, include a copy of the complete version of the opinion of the Evaluation Committee, an extract of which the applicant had already received on 8 April 2009. It also informed the applicant that the Evaluation Report had been reviewed but that no alteration was made to the points awarded to the winning tender.
15 By letter of the same day, the applicant complained that it had not received information concerning the content of the CAM advice. In addition, the applicant criticised the procedure followed by the Evaluation Committee for reviewing the winning tender since it carried out a posteriori a review of its own results without having altered the award of points to the successful tenderer. The applicant therefore asked the Office for Publications to suspend the procedure awarding the contract to the successful tenderer and to appoint a new Evaluation Committee in order to evaluate all the tenders from the beginning.
16 By letter of 3 June 2009, the Office for Publications informed the applicant that the contract had been signed with the Diadeis & Arhs Developments consortium on 8 May 2009. The Office for Publications also informed the applicant that it was suspending all correspondence with the applicant regarding the call for tenders at issue.
17 On 16 June 2009, a Contract Award Notice was published in the Supplement to the Official Journal of the European Union (OJ 2009/S 113-162147), announcing that the contract had been awarded to the Diadeis & Arhs Developments consortium.
Procedure and forms of order sought by the parties
18 By application lodged at the Registry of the Court of First Instance on 16 June 2009, the applicant brought the present action.
19 By separate document lodged at the Court Registry on 18 June 2010, the applicant, acting pursuant to Article 64 of the Rules of Procedure, lodged additional observations and annexes relating to events which occurred after it had lodged its reply. On 5 August 2010, the Commission lodged its observations in response.
20 The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 1 March 2012.
21 The applicant claims that the Court should:
– annul the decision to reject its bid and all further related decisions, including the one to award the contract to the successful tenderer;
– order the Commission to pay the applicant damages for the harm suffered as a result of the contract award procedure in question, which the applicant calculates to be EUR 1 490 215.58;
– order the Commission to pay the costs, even if the present action is dismissed.
22 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
23 The applicant brought an action for annulment and also a claim for damages.
The application for annulment
24 The Court finds, as a preliminary point, that, as is apparent from the forms of order sought by the applicant, it is seeking, in its first head of claim, annulment of ‘the decision to reject its bid and all further related decisions, including the one to award the contract to the successful tenderer’.
25 It should be noted in that regard that the applicant stated at the hearing, in response to a question put by the Court, that the reference to all further decisions in its first head of claim included ‘logically the decision to award the contract to the successful tenderer’. It follows from that clear, unequivocal response that the applicant itself considers that its action is not directed against any decisions other than the one to reject its tender and the one to award the public contract at issue to the successful tenderer.
26 Accordingly, the scope of the present application for annulment must be restricted to the lawfulness of the decision to reject the applicant’s tender and the one to award the public contract at issue to the successful tenderer. Moreover, having regard to the close connection between those two decisions and inasmuch as the applicant’s arguments concern the decision to reject its tender, the Court is of the opinion that it is appropriate to examine first the lawfulness of the second of those decisions.
27 The applicant puts forward four pleas in law in support of its application. The first plea alleges infringement of the obligation to state reasons. The second plea alleges infringement of Articles 106 and 107 of 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 infringement of the principles of transparency, equal treatment and sound administration. The third plea alleges the existence of manifest errors of assessment in the determination of the most economically advantageous bid. The fourth plea alleges infringement of Article 89 and of Article 94(a) of the Financial Regulation, and also Article 139(1) 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 Implementing Rules’).
The first plea: failure to state reasons
28 The applicant submits that the Commission did not fulfil its obligation to state reasons regarding inter alia the decision to reject its tender for the public contract at issue. It argues in particular that the Office for Publications never informed it of the reasons why the successful tenderer’s bid was preferred to its own, despite several written requests. It also criticises the Office for Publications for never having given it explanations regarding the content of the CAM advice. Lastly, the applicant argues that the Office for Publications corrected a posteriori the statement of reasons for the decision to reject its bid.
29 The Commission disputes the applicant’s arguments.
30 Regarding the first complaint put forward by the applicant, it should be borne in mind as a preliminary point that, in procedures for the award of public contracts, Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules determine the content of the obligation to state reasons which the contracting authority has towards an unsuccessful tenderer in a given procedure for the award of a public contract.
31 It follows from those provisions and the case-law that the contracting authority complies with its obligation to state reasons if, first, it merely informs any eliminated tenderer immediately of the reasons for rejection of his tender and then provides any tenderer who has made an admissible tender with the characteristics and relative advantages of the tender selected and the name of the successful tenderer, within 15 days of the date on which a written request is received (see, to that effect, Case T‑63/06 Evropaïki Dynamiki v EMCDDA, judgment of 9 September 2010, not published in the ECR, paragraph 111 and the case-law cited, and Case T‑300/07 Evropaïki Dynamiki v Commission [2010] ECR I-0000, paragraph 49 and the case-law cited).
32 Such a manner of proceeding satisfies the purpose of the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (see, to that effect, Evropaïki Dynamiki v EMCDDA, cited above, paragraph 112 and the case-law cited, and Case T‑300/07 Evropaïki Dynamiki v Commission, cited above, paragraph 50 and the case-law cited).
33 Moreover, the observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought (see, to that effect, Case T‑406/06 Evropaïki Dynamiki v Commission, judgment of 12 November 2008, not published in the ECR, paragraph 50 and the case-law cited).
34 It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and case-law cited).
35 It follows that, in order to determine whether the Office for Publications complied with the requirement to state reasons, it is appropriate to begin by examining the letter of 7 April 2009 containing the decision to reject the applicant’s bid and the closely-related letters of 8 and 23 April 2009 and 7 May 2009.
36 Firstly, as regards the letter of 7 April 2009, the Office for Publications stated, first, that the bid had not been successful on the ground that it had not been considered the most economically advantageous bid. Next, the Office for Publications informed the applicant of the name of the successful tenderer, and also, in a comparative table, of the scores obtained by its bid and by that of the successful tenderer, the financial scores of the applicant and those of the successful tenderer and also the overall score obtained by each of them. That table indicates, in particular, that the applicant had obtained a total of 66 points out of 100, whereas the successful tenderer had obtained a total of 89 points out of 100. Lastly, the Office for Publications 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 successful bid.
37 Secondly, as regards the letters of 8 and 23 April 2009 and of 7 May 2009, it should be noted that the Office for Publications replied by providing the information sought by the applicant within the time-limit laid down in Article 149(3) of the Implementing Rules.
38 In the present case, the letter of 8 April 2009 contained a comparative table with the scores obtained by its bid and by the successful tenderer’s bid in relation to each award criterion and also an extract from the evaluation report containing comments on the points given to the applicant’s bid and the successful tenderer’s bid for each of the six award criteria.
39 In particular, a reading of the table shows that the applicant had obtained sufficient scores for each of the six award criteria set out in the tender specifications, namely 10 points out of 20 for the first award criterion ‘System to be developed’, 15 points out of 20 for the second award criterion ‘Technical infrastructure’, 15 points out of 20 for the third award criterion ‘Hosting, maintenance, help-desk, operation (IT side)’, 5 points out of 10 for the fourth award criterion ‘Production management (publishing side)’, 8 points out of 15 for the fifth award criterion ‘Service level agreement (SLA)’, and 13 points out of 15 for the sixth award criterion ‘Transitions management’. Those scores were lower, however, than those obtained by the successful tenderer for each of the six award criteria, namely 18 points out of 20 for the first criterion, 16.5 points out of 20 for the second criterion, 18 points out of 20 for the third criterion, 9 points out of 10 for the fourth criterion, 13 points out of 15 for the fifth criterion and 14.5 points out of 15 for the sixth criterion.
40 That table was also accompanied by two extracts from the evaluation report, one containing specific comments from the Evaluation Committee on the applicant’s bid in relation to each award criterion, whilst the other had specific comments from the Evaluation Committee on the successful tenderer’s bid for each of the six award criteria. Thus, it was apparent from those tables inter alia that the successful tender had certain advantages over the applicant’s bid in terms of developing and improving the quality of the TED website, the technical infrastructure, and as regards production and publication management.
41 In its letter of 23 April 2009, the Office for Publications provided, first, explanations to the applicant about the Evaluation Committee’s comments on the successful tenderer’s bid in relation to the second and third award criteria. Regarding the second award criterion, the Office for Publications stated inter alia that ‘the term “only local storage” refer[red] to “local to server” instead of a SAN, which [did] not mean that all data [was] lost in case of problems’. Regarding the third award criterion, the Office for Publications stated that ‘ITIL look-alike … refer[red] to the processes closely resembling the ITIL reference model…, the “look-alikeness” [being] in fact a sign of process maturity, not a weakness’. Secondly, the Office for Publications informed the applicant that there was no reference in the successful tenderer’s bid to any sub-contractor operating in a country which was not signatory to the WTO Agreement on Government Procurement and that it was reserving the right to accept or refuse the performance of part of the contractual tasks by such a sub-contractor if the need arose.
42 In its letter of 7 May 2009, the Office for Publications in particular provided explanations concerning the successful tenderer’s use of two separate websites for the TED website project and upheld the scores given to the successful tender.
43 In the light of the foregoing, the Court finds that in those letters the Office for Publications did provide a sufficient statement of reasons as to why it rejected the applicant’s tender and about the relative features and advantages of the successful tenderer’s bid.
44 From the tables contained in the letters of 7 and 8 April 2009 and the two extracts from the evaluation report that the Office for Publications had attached to the letter of 8 April 2009, the applicant could readily identify the specific reasons as to why its tender was rejected and compare them with the offers set out by the successful tenderer. Furthermore, the specific comments for each of the six award criteria contained in the two extracts from the evaluation report provided the applicant with inter alia explanations about the aspects of its tender which the Office for Publications considered to be deficient.
45 That statement of reasons therefore enabled the applicant to exercise its rights and the Court to exercise its power of review of the lawfulness of the comparison of the different tenders made by the Office for Publications.
46 The applicant’s first head of claim must therefore be rejected.
47 As to the second complaint put forward by the applicant, it should be noted that the Office for Publications was not required to provide explanations about the content of the CAM advice by way of reasons for the decision to reject the bid. Article 100(2) of the Financial Regulation provides merely that the contracting authority must, upon receipt of a request in writing, state the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded (see, to that effect, Case T‑437/05 Brink’s Security Luxembourg v Commission [2009] ECR II‑3233, paragraph 176). The Office for Publications did, in fact, fulfil its obligations as required under Article 100(2) of the Financial Regulation.
48 Accordingly, the applicant’s second argument must be rejected.
49 In its third complaint, the applicant argues that it was only after the public contract at issue was awarded and that it raised questions about the successful tender’s lacking two separate sites dedicated to the TED website that the Evaluation Committee decided to re-examine the successful tenderer’s bid and change the reasons for the decision to reject its bid accordingly.
50 It should be observed that the fact that the Office for Publications decided to request a second opinion from the Evaluation Committee in order to examine the applicant’s argument that the successful tenderer had not included in its tender two separate sites dedicated to the TED website does not mean that the contested decision is vitiated by irregularity. There is nothing in the tender specifications, the Financial Regulation or the Implementing Rules preventing the contracting authority from requesting a second opinion from the Evaluation Committee, which remains, moreover, an advisory opinion in accordance with the second paragraph of Article 146(1) of the Implementing Rules, the proposals of which do not bind the Office for Publications, which has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (see, to that effect, Case T‑13/96 TEAM v Commission [1998] ECR II‑4073, paragraph 76 and the case-law cited, and Case T‑70/05 Evropaïki Dynamiki v EMSA [2010] ECR II‑313, paragraphs 204 and 205).
51 The Office for Publications was therefore free to request a second opinion from the Evaluation Committee and, on that basis, to uphold the first opinion on which the decision of 7 April 2009 was based.
52 Consequently, the applicant’s third complaint must be rejected.
53 In the light of the foregoing, the first plea must be rejected as unfounded.
Second plea: infringement the principle of sound administration, of Articles 106 and 107 of the Financial Regulation and also of the principles of transparency and equal treatment
54 It should be noted as a preliminary point that this plea is divided into two parts. The first part concerns infringement of the principle of sound administration. The second part concerns infringement of Articles 106 and 107 of the Financial Regulation and also infringement of the principles of equal treatment and transparency.
– First part: infringement of the principle of sound administration
55 The applicant alleges infringement of the principle of sound administration inasmuch as one of the members of the successful tenderer’s consortium enjoyed a privileged relationship with a large number of the Commission’s agents. It argues in that regard that it is apparent from an extract from the website of that consortium member that Commission officials advertise and promote that company, contrary to the Commission’s internal rules and the rules of sound administration.
56 The Commission disputes this argument.
57 It should be noted that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which applies to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure, all applications must indicate the subject-matter of the dispute and contain a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to exercise its power of review. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 96 and the case-law cited).
58 In the present case, the applicant has not explained the nature of the alleged relationship between the Commission officials and the company in the successful consortium and does not develop further any arguments in support of its allegation. It is, moreover, not possible, on a reading of the application and the extracts provided by the applicant, to determine which internal rules it is that the Commission infringed through the relationship between its officials and the company in the successful consortium.
59 Consequently, the first part of the second plea in law must be rejected as inadmissible.
– Second part: infringement of Articles 106 and 107 of the Financial Regulation and also infringement of the principles of equal treatment and transparency
60 The applicant puts forward, in essence, two complaints. The first alleges infringement of Articles 106 and 107 of the Financial Regulation inasmuch as the Office for Publications accepted a tender for which the performance of the contract would take place in a country which is not signatory to the WTO Agreement on Government Procurement. The second alleges infringement of the principles of equal treatment and transparency inasmuch as the Office for Publications considered, in its letter of 23 April 2009, that it could, on a case-by-case basis and in its discretion, accept bids from tenderers in non-member countries, in particular countries which are not signatory to the WTO Agreement on Government Procurement.
61 The Commission disputes those complaints.
62 Regarding the first complaint, it should be noted that, under Article 106 of the Financial Regulation, participation in tendering procedures is to be open on equal terms to all natural and legal persons coming within the scope of the Treaties and to all natural and legal persons in a third country which has with the European Union a special agreement in the field of public procurement under the conditions laid down in that agreement.
63 Under Article 107 of the Financial Regulation, where the Multilateral Agreement on Government Procurement concluded within the WTO applies, the contracts are also open to nationals of those States which have ratified that agreement, under the conditions laid down in that agreement.
64 Those articles provide merely for an obligation for the Commission and, in the present case, the Office for Publications, to authorise undertakings established in countries that have ratified the WTO Agreement on Government Procurement or in countries that have concluded a special agreement with the European Union in the field of public procurement to participate in tendering procedures. Those articles do not prohibit undertakings established in countries that have not signed the WTO Agreement on Government Procurement or undertakings which use sub-contractors established in such countries from participating in tendering procedures initiated by the Commission and, in the present case, the Office for Publications.
65 Accordingly, there has been no infringement of Articles 106 and 107 of the Financial Regulation by the Office for Publications.
66 Regarding the second complaint, it must be borne in mind that, according to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I‑8301, paragraph 55).
67 In the field of public procurement, the Commission is inter alia required to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers (see, to that effect, Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 141 and the case-law cited). Similarly, the principle of equal treatment means that tenderers must be on an equal footing both when they prepare their tenders and when those tenders are evaluated by the contracting authority (Case C‑251/09 Commission v Cyprus [2011] ECR I-0000, paragraph 39).
68 This means, more specifically, that the award criteria must be formulated, in the tender specifications or the contract notice, in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way and that, when the tenders are being evaluated, those criteria are to be applied in an objective and uniform manner to all tenderers (Commission v Cyprus, cited above, paragraph 40).
69 The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or tendering specifications (see, to that effect, Case T‑345/03 Evropaïki Dynamiki v Commission, cited above, paragraph 144 and the case-law cited).
70 In the present case, it should be noted that, in its letter of 23 April 2009, the Office for Publications stated that ‘in accordance [with] Article 106 of [the Financial Regulation] the Publications Office will take a decision to accept or to reject the execution of part of the contractual tasks by [sub-contractors established in countries which are not signatory to the WTO Agreement on Government Procurement]’.
71 It should also be noted that section 3.1.2 of the tender specifications provides expressly for the possibility of using sub-contractors for the performance of the relevant contract.
72 It follows that the possibility of accepting tenderers using sub-contractors established in countries which are not signatory to the WTO Agreement on Government Procurement was brought to the attention of all tenderers in the procedure for the public contract at issue. In those circumstances, the applicant’s arguments to the effect that the Office for Publications infringed the principles of transparency and equal treatment must be rejected.
73 Consequently, the second part must be dismissed as unfounded, as must the second plea in law in its entirety.
Third plea: manifest errors of assessment in the determination of the most economically advantageous bid
– Preliminary observations
74 The applicant argues, in essence, that the Commission, in finding the successful tenderer’s bid to be the most economically advantageous bid, made a manifest error of assessment. In that regard it disputes the general comments made by the Evaluation Committee in its report and considers that its bid was not evaluated correctly when it was compared with that of the successful tenderer.
75 It is clear from settled case-law that 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 European Union Courts is limited to checking compliance with the applicable procedural rules and with 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 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 147; and Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 47).
76 The applicant disputes each comment made by the Evaluation Committee in its assessment of the applicant’s bid in relation to the six award criteria and, in relation to the third, fifth and sixth criteria, it expresses a certain disagreement with the points awarded. In respect of the evaluation made by the Evaluation Committee of the successful tenderer’s bid, the applicant disputes inter alia certain aspects concerning the second and third award criteria.
77 In the light of those preliminary observations, it is appropriate to analyse the Evaluation Committee’s comments about the applicant’s bid, as well as the Evaluation Committee’s comments about the successful tenderer’s bid.
– The evaluation of the first award criterion
78 Regarding the first award criterion, the tender specifications provide as follows:
‘A document of maximum 25 pages of A4 format font-size 12 describing the tenderer’s proposal for the web system TED and the related services (licence holders’ environment; data warehouse; time stamping and viewer tools; etc.). The tenderer is invited to describe and discuss future enhancements and how he thinks that they would benefit the quality of the service.’
79 In order to be considered technically suitable, the tenderer had to obtain at least 10 out of a maximum of 20 points.
80 In the letter of 8 April 2009, the Office for Publications stated the following with regards to the applicant’s response to that criterion in its bid:
‘Award criterion No 1: System to be developed (min 10 – max 20 points)
+ 1.7 Addition of any new language, + description of catalogue data partition, - concerning future possible developments the ideas are too commercial for this site, - many important points (time-stamping, DVD production described vaguely), - cross-border statistics in data warehouse should give access to certain registered users and only on the tendering and contracting countries, - lots of repetition of the specifications, - RUP [rational unified process] since 2 iterations lasting several months, but should take into consideration RUP’s risk and user case driven nature.’
81 The applicant obtained a score of 10 points out of 20 in relation to the first award criterion, whilst the successful tender obtained a score of 18 points out of 20.
82 The applicant disputes, firstly, the Evaluation Committee’s remark that the future development ideas it was proposing for the TED website were ‘too commercial’, maintaining that, on the contrary, those ideas comply with the tender specifications, which do not require that tenderers submit specific tender proposals on the future development of the TED website.
83 It should be noted that section 1.2.9 of the applicant’s bid states that ‘[s]ubject to approval by the Office [for Publications], the tenderer will also make available: (a) all the necessary technology (e.g. banner management engine) and a strategy to allow the Office [for Publications to] generate income through TED in order to finance its mission (e.g. advertisement, promotional actions, advanced search services, hosting of events, etc.)’. However, the applicant’s proposal for future development set out in its bid exceeds the requirements of the tender specifications, which make no mention of any commercial activity through the TED website. Furthermore, information publication by the Office for Publications on the TED website is linked to its obligation to publish calls for tenders for the attention of European citizens; nowhere in the tender specifications is there mention of any commercial activity whatsoever through the TED website.
84 The applicant’s argument must therefore be rejected.
85 The applicant disputes, secondly, the Evaluation Committee’s remark that, in its bid, the applicant described ‘time stamping’ and ‘DVD production’ vaguely. It maintains that it described ‘time stamping’ and ‘DVD production’ in the greatest possible detail in section 1.6, entitled ‘Time stamping tool’, and section 1.8, entitled ‘DVD production’, in the explanations relating to the first award criterion, and also in section 2.2, entitled ‘Time stamping procedure’, and section 2.3.4, entitled ‘Weekly DVD-ROM’, in the explanations relating to the fourth award criterion.
86 It should be observed that a reading of the aforementioned points of the applicant’s bid shows that the Evaluation Committee made no manifest error in finding that the explanations given in those points are vague.
87 Regarding ‘time stamping’, in its bid, the applicant had described a specific tool of the back office whilst specifying that that tool would be the interface with the time-stamping authority. That information did not, however, match what was requested of the tenderer in section 4.2.2, paragraph 10 of the tender specifications, namely an easy-to-use web tool that would allow all trusted time-stamping of the PDP files one by one or in batches.
88 Regarding ‘DVD production’, it should be observed, first, that the applicant’s bid does not comply with section 4.2.8 of the tender specifications, which do not require information on the DVD research system or on the ‘Arborescences’. Next, the applicant’s bid makes no reference to the two types of index that the DVD-ROMs were to have under section 4.2.8 of the tender specifications. Nor is it clear from the applicant’s bid that the notices in the DVD-ROMs were text files in PDF format as was also required under section 4.2.8 of the tender specifications.
89 Moreover, the applicant’s statement to the effect that the Evaluation Committee made a further error in dealing with the ‘time stamping procedure’ and ‘DVD production’ in the light of the first award criterion, the correct criterion being the fourth one, cannot be accepted, as that statement does not call into question the vague nature of the bid with respect to ‘time stamping’ and ‘DVD production’.
90 The applicant’s argument must therefore be rejected.
91 The applicant disputes, thirdly, the Evaluation Committee’s finding that the part of its bid pertaining to ‘cross-border statistics’ does not comply with the tender specifications. However, it does not succeed in proving a manifest error of assessment by the Evaluation Committee in that regard.
92 The description of ‘cross-border statistics’ put forward by the applicant in section 1.4.6 of its bid does not comply with the requirements laid down in the tender specifications. In the present case, the second part of section 4.2.6.6 of the tender specifications provides that ‘[t]he user will be able to view a table of the number of tenders published by the country of the contracting authority against that of the contractor’ and that ‘[v]iewing of the statistics will be up to the user’. However, the part of the applicant’s bid dealing with ‘cross-border statistics’ shows the statistics relating to users that the web analyser tool AWStats will be able to provide a description of that analyser tool. The tender specifications did not state that that kind of information was required of the tenderers, however. On the contrary, they provide that viewing of the statistics will be up to the end-user. Moreover, the part of the applicant’s bid dealing with ‘cross-border statistics’ does not give any explanation as to how users are to be able to view a table of the number of tenders published by the country of the contracting authority against that of the successful tenderer.
93 The applicant’s argument must therefore be rejected.
94 The applicant disputes, fourthly, the Evaluation Committee’s finding that its bid contained ‘a lot of repetitions of the specifications’ and ‘aphorisms’.
95 Suffice it to note in that regard that the applicant has not put forward any specific evidence establishing a manifest error such as to vitiate the Evaluation Committee’s assessment on that point. Its argument must accordingly be rejected.
96 The applicant disputes, fifthly, the Evaluation Committee’s finding that it did not take into account the risk and user case-driven nature of the Rational Unified Procedure (RUP).
97 It should be observed, first, that, as regards the risk-driven nature of the RUP, the applicant merely states, in section 2.1 of its bid, entitled ‘Methodological approach’, that ‘[t]he advantages of the proposed approach for development approach’ are: ‘risks are mitigated earlier…’. As observed by the Evaluation Committee, the mere mention of ‘risks are mitigated earlier’ in the explanation of the methodology to be applied to the development process for the website does not establish that the applicant’s bid showed that the RUP was risk-driven.
98 Second, as regards the user case-driven nature of the RUP, it should be noted that it is only in the first sentence of section 3.2.2 of its bid, entitled ‘Requirements analysis’, and the fifth sentence of section 3.3.1 of its bid, entitled ‘Post-production support and maintenance’, that the applicant made brief references to the end-user. Given the sporadic nature of those references, and also the vague nature of their content, the Evaluation Committee was correct in considering that, in reality, the applicant had not geared the RUP towards the end-user or, at the very least, that the applicant had not provided an adequate explanation of that aspect in its bid.
99 The applicant’s argument must therefore be rejected.
100 Sixthly, the applicant submits that the Evaluation Committee failed to include in its assessment the same positive remarks that it had made in respect of the successful tenderer’s bid.
101 The applicant has failed to adduce sufficient evidence to support its allegation, however. The applicant has not explained why the same remarks which the Evaluation Committee had made in respect of the successful tender ought to have been made in respect of its bid. That argument must therefore be rejected.
102 In the light of all the foregoing, the applicant has not demonstrated that the Evaluation Committee’s incorrect remarks in respect of the first award criterion amount to a manifest error of assessment in the assessment of its bid.
– Assessment of the second award criterion
103 The tender specifications provide as follows in respect of the second award criterion:
‘A document of maximum 15 pages of A4 format font-size 12 describing the tenderer’s proposed technical infrastructure (hosting premises, hardware, software, network, security, …) and in particular the proposed approach to ensure the quality and the availability of the TED website 24 hours a day.’
104 In order to be considered technically suitable, the tenderer had to obtain at least 10 points out of a maximum of 20.
105 In the letter of 8 April 2009, the Office for Publications stated the following about the response to that criterion in the applicant’s bid:
‘Award criterion 2: Technical infrastructure (min 10 – max 20 points)
+ very detailed and exhaustive, + high performance hardware, +main site, redundancy sites and disaster recovery site, +secure data centre, -no FTP on DR site, - general description of software parts, but no interconnection between parts.’
106 The applicant obtained a score of 15 points out of 20 for the second award criterion, whilst the successful tender obtained a score of 16.5 points out of 20.
107 The applicant disputes, first of all, the Evaluation Committee’s remark to the effect that it did not mention the FTP (File Transfer Protocol) on the disaster recovery site in its bid.
108 The Court finds that that remark does not show that there has been an error. First of all, it is apparent from an examination of section 1.2 and section 2.1.2 of the applicant’s bid, concerning the disaster recovery site, that the applicant did not include in its bid an offer for the FTP. Next, nor is the FTP which, in the applicant’s submission, is installed by default with the Solaris system on the disaster recovery site, referred to in the tender specifications (see section 4.5.3 of the tender specifications).
109 The applicant disputes, secondly, the Evaluation Committee’s remark to the effect that in its bid it gave a general description of the software components with no reference to interconnections between them.
110 As correctly observed by the applicant, it is apparent from an examination of section 2.3 of its bid, entitled ‘Software infrastructure’, that it makes a general reference to various software components whilst referring to other sections of its bid for their interconnection.
111 Yet through such references the applicant does not put forward any specific argument liable to show that the Evaluation Committee’s remark is incorrect and, a fortiori, to lead to the conclusion that that remark led the Office for Publications to make a manifestly incorrect assessment of the applicant’s bid, especially since the score given to that bid in respect of the second award criterion, far from being based on that analysis alone, was based also on the other remarks made by the Evaluation Committee.
112 The applicant submits, thirdly, that the Office for Publications made an error of assessment in evaluating the successful tenderer’s bid in endorsing the Evaluation Committee’s findings in respect of the second award criterion. In the present case, the successful tender does not include two separate sites dedicated to the TED website, which shows that the Office for Publications made an error of assessment in respect of the second award criterion by infringing an essential requirement of the tender specifications.
113 The Court finds, however, that the Evaluation Committee made no manifest error in the evaluation of the successful tender in respect of the second award criterion, since that tender did include a second fallback site separated from the principal site in the project for the TED website, in accordance with section 4.5.3 of the tender specifications.
114 In the light of all the foregoing, the applicant has not demonstrated that the Evaluation Committee’s incorrect remarks in respect of the second award criterion amount to a manifest error of assessment in the assessment of its or the successful tenderer’s bid.
– Assessment of the third award criterion
115 The tender specifications provide as follows in respect of the third award criterion:
‘A document of maximum 15 pages of A4 font-size 12 describing the tenderer’s approach to hosting, maintaining, including help-desk operation and escalation and ensuring the smooth and continuous operation of the whole OJS dissemination environment (TED and all related systems).’
116 In order to be considered technically suitable, the tenderer had to obtain at least 10 points out of a maximum of 20.
117 In the letter of 8 April 2009, the Office for Publications stated the following about the response to that criterion in the applicant’s bid:
‘Award criterion 3: Hosting, maintenance, help-desk, operation (IT side) (min 10 – max 20 points)
+ ITIL, + quite well described workflows, - Many features said to meet with requirements but not description of how, - p. 8 - why in the phrase 3, 2nd level HD shall monitor work of 3rd level HD, if the latter was previously not involved [in] the incident, - no info concerning the confidentiality of the notices.’
118 The applicant obtained the score of 15 points out of 20 for the third award criterion, whilst the successful tender obtained a score of 18 points out of 20.
119 The applicant disputes, firstly, the Evaluation Committee’s assessment that ‘many features [are] said to meet with requirements’ although, in its view, it was not possible to know how. According to the applicant, the Evaluation Committee used vague ‘aphorisms’ without specifying which of the requirements in the tender specifications, in its view, were not complied with in the applicant’s bid.
120 The Court finds, however, that such a statement by the applicant tends not to show that the Evaluation Committee made an error, but rather that it gave an inadequate statement of reasons for the rejection decision. Such an argument must accordingly be dismissed as irrelevant in the context of the present plea.
121 The applicant disputes, secondly, the Evaluation Committee’s remark about the reason why the second level help desk was to monitor work of the third level help desk, if the latter was not previously involved in the incident. In its submission, it is clear from section 3.2 of its bid, entitled ‘Incident management’, that the second level help desk is to monitor the third level help desk if an incident reaches the third level.
122 Yet it is clear in that regard that, although a combined reading of the introduction to section 3 of the applicant’s bid, entitled ‘Support and maintenance’, section 3.1 of its bid, entitled ‘Establishment and operation of 2nd level help desk’, and of section 3.1.1 of its bid, entitled ‘Organisation’, shows that the applicant did describe how the second level would monitor the third level, that description was given in a scattered and succinct manner, which could reasonably give rise to the Evaluation Committee’s having doubts. Moreover, as observed by the Commission, section 3.2 of the applicant’s bid, including inter alia the flowchart contained therein, does not show clearly how and in what situation the second level help desk monitoring would be effected.
123 The applicant’s argument must therefore be rejected.
124 Regarding, thirdly, the applicant’s disagreement with the Evaluation Committee’s finding that its bid did not contain any information on the ‘confidentiality of the notices’, a reading of the pages referred to by the applicant shows that the Evaluation Committee made no error in finding that those pages did not contain such information. In the present case, it should be noted that section 2 of its bid, entitled ‘Hosting and operation of the TED website and related systems’, did not contain any explanation about the ‘confidentiality of the notices’. Such a requirement was indeed provided for by section 4.2.1 of the tender specifications, however.
125 Regarding the applicant’s remark that, in any event, it did deal with the ‘confidentiality of the notices’ in the part of its bid relating to the fourth award criterion, as required by the tender specifications, it should be observed that, by its argument, the applicant merely made a general reference to another part of its bid, without putting forward any specific arguments showing an error by the Office for Publications. This argument must accordingly be rejected.
126 Fourthly, regarding the applicant’s argument that the Evaluation Committee did not justify how and why it had given the applicant’s bid 75% of the maximum score for that criterion and had, without objective or rational justification, withheld 25% of the score, it is clear that the applicant is once again merely making general statements which are unsubstantiated by any evidence whatsoever. In the present case, the applicant did not demonstrate why the Evaluation Committee ought to have given it a maximum score, namely 20 points out of 20, given that its bid had a number of weak areas in respect of the third award criterion. Therefore, its argument must be rejected.
127 Fifthly, the applicant argues that the successful tenderer did not comply with the ‘ITIL methodology’ and that the Evaluation Committee therefore ought to have given it a lower score.
128 It should be noted, however, that the successful tenderer indeed complied with the ‘ITIL methodology’, not only by following that methodology for the development of the TED website project, but also by proposing a tailor-made solution for that project.
129 In the light of all the foregoing, the applicant has not demonstrated that the Evaluation Committee’s incorrect remarks in respect of the third award criterion amount to a manifest error of assessment either in the assessment of its or the successful tenderer’s bid.
– Assessment of the fourth award criterion
130 The tender specifications provide as follows in respect of the fourth award criterion:
‘A document of maximum 15 pages of A4 format font-size 12 describing the tenderer’s organisation proposal for the production and publishing activities (reception and validation of notices, time stamping procedure, uploading the data into the dissemination environments, archive and search management, management of classification tables including versioning, etc). The document must include information related to the respect of deadlines, quality and exhaustivity issues.’
131 In order to be considered technically suitable, the tenderer had to obtain at least 5 points out of a maximum of 10.
132 In the letter of 8 April 2009, the Office for Publications stated the following about the response to that criterion in the applicant’s bid:
‘Award criterion 4: production management (min 5 – max 10 points)
Very general – p. 12. The table is very unclear and therefore it is not clear if deadlines will be met. The table states worst-case scenarios of more than 2000 notices… The process of signing should be developed in such a way that up to 3500 notices can be stamped within two hours.’
133 The applicant obtained a score of 5 points out of 10 for the fourth award criterion whilst the successful tender obtained a score of 9 points out of 10.
134 Firstly, the applicant states that its bid is not ‘very general’, as the Evaluation Committee maintains it is in respect of the fourth award criterion, and that it complies with the tender specifications in section 2.1, entitled ‘Reception and validation of the notices’, section 2.2, entitled ‘Time stamping procedure’, section 2.3, entitled ‘Preparation and uploading of the data to the dissemination environments’, section 2.4, entitled ‘Archive and search management’ and section 2.5, entitled ‘Notification management’, and that it described the entire procedure in sufficient detail.
135 The applicant has failed to adduce adequate evidence in support of its allegation, however. The applicant merely copied the tender specifications into certain points of its bid, without actually adding value to its bid, which explains the low score given to the applicant’s bid by the Evaluation Committee. This included in particular sections 2.1, entitled ‘Reception and validation of the notices’, and 2.3.2, entitled ‘Licence holders’ environment’, which produce, verbatim, different parts of the tender specifications.
136 Secondly, the applicant disputes the Evaluation Committee’s finding that its table on page 12 is not clear because it does not show the possibility of time stamping up to 3 500 notices within two hours. On the contrary, its bid presented in detail, in section 3.2, entitled ‘Quality assurance procedure’, a specific timetable for all production phases in the TED website project.
137 It is clear from a reading of that table that there is in fact no guarantee showing that the applicant is capable of providing such a service to the Office for Publications. The applicant’s bid provides, in a worst-case scenario, for publication of over 2 000 notices per day, with nothing stated as to the maximum number of notices liable to be time stamped within two hours. Yet the tender specifications explicitly require that it be possible to time stamp up to 3 500 notices within two hours (section 4.2.2 of the tender specifications). Consequently, the applicant’s argument must be dismissed.
138 In the light of all the foregoing, the applicant has not demonstrated that the Evaluation Committee’s incorrect remarks in respect of the third award criterion amount to a manifest error of assessment in the assessment of its bid.
– Assessment of the fifth award criterion
139 The tender specifications provide as follows in respect of the fifth award criterion:
‘A document of maximum 10 pages of A4 format font-size 12 containing the tenderer’s proposal for SLA [Service Level Agreement].’
140 In order to be considered technically suitable, the tenderer had to obtain at least 7.5 points out of a maximum of 15.
141 In the letter of 8 April 2009, the Office for Publications stated the following about the response to that criterion in the applicant’s bid:
‘Award criterion 5: SLA – Service Level Agreement (min 7.5 – max 15 points)
In spite of the negative remarks below the SLA [service level agreement] described is sufficient and the majority of requested information is covered. – KPI [key performance indicators] not described in detail - no configuration management - no takeover specified - risk management part not developed.’
142 The applicant obtained a score of 8 points out of 15 for the fifth award criterion, whilst the successful tender obtained a score of 13 points out of 15.
143 Firstly, the applicant states that in its bid it made an adequate presentation of the ‘key performance indicators’ in order to ensure a proper implementation of the TED website project.
144 It is clear, however, that although the applicant listed those indicators in section 3.4 of its bid, entitled ‘Key performance indicators’, by showing on the table on page 5 how to measure them, it did not indicate the ‘measurement methodology’ for those indicators. Although the latter aspect is not explicitly stated in the tender specifications, it could be reasonably taken into account for the purpose of assessing whether the explanations given by the applicant in this particular area were adequate. Therefore, the Evaluation Committee’s remark that the key performance indicators were not described in sufficient detail is not incorrect.
145 This argument of the applicant must therefore be rejected.
146 Secondly, the applicant submits that the Evaluation Committee was incorrect in finding that its bid did not contain any indications on ‘configuration management’.
147 Yet a reading of the pages of the applicant’s bid referred to by it, in particular the pages in section 4.3, ‘Operations/service management (IT and publications)’, shows that the Evaluation Committee made no manifest error of assessment in finding inter alia that the pages in that section contained nothing about ‘configuration management’. The Court finds that the applicant merely repeated the indications set out in the tender specifications, namely point 9 of section 4.3 of the tender specifications, without putting forward any specific arguments showing that there was a manifest error liable to vitiate the Evaluation Committee’s findings on this point. This argument from the applicant must therefore be rejected.
148 Thirdly, the applicant argues that the Evaluation Committee was wrong in stating, in the context of the remark to the effect that ‘no take-over was specified’, that the applicant had not indicated ‘hand-over phases’ in its bid.
149 The Commission criticised the fact that applicant’s bid did not cover the levels at which the ‘hand-over’ requirements would be attained in terms of ‘deliverables’ and ‘acceptance’. The applicant alleges, by contrast, that its bid did contain ‘key performance indicators’ intended to measure the performance level of the ‘hand-over’. Yet it is clear from a reading of section 3.4 of the applicant’s bid, entitled ‘Key performance indicators’ and, in particular, from the table on page 5, that it had provided for an indicator, namely the indicator 25 known as ‘KPI 25’, which related to ‘hand-over’ quality and time frames. However, nowhere in that table or more generally in section 3.4 of its bid or in section 5, entitled ‘Emergency, contingency and back-up management’, does the applicant answer the specific question required by the tender specifications, in point 12 of section 4.3, as to whether the levels at which the ‘hand-over’ requirements would be attained were covered in terms inter alia of ‘deliverables’ and ‘acceptance’. The Evaluation Committee accordingly made no manifest error.
150 Fourthly, the applicant argues that the Evaluation Committee was incorrect in finding that ‘the risk management part [was] not developed’ in the applicant’s bid.
151 Paragraph 7 of section 4.3 of the tender specifications provides that tenderers must cover ‘risk assessment’, ‘risk mitigation’ and ‘escalation procedure’ in their bids. Yet it is apparent from a mere reading of section 4.2 of the applicant’s bid, entitled ‘Developments (Phase I and Evolutionary Orders) Management’, that, in its bid, the applicant dealt only briefly, in point form, with the risk management issue and the three related aspects required by the tender specifications. In those circumstances, the Evaluation Committee reasonably considered that that part had not been dealt with adequately in a manner which enabled it to understand in greater detail how the applicant planned to manage risk in phase I.
152 Consequently, the applicant’s argument must be rejected.
153 In the light of all the foregoing, contrary to the applicant’s submissions, the Evaluation Committee did demonstrate the weaknesses in the applicant’s bid, thereby justifying why it gave it 8 points out of 15.
154 In those circumstances, the applicant has not established that the Evaluation Committee’s incorrect remarks in respect of the fifth award criterion amount to a manifest error of assessment of its bid.
– Assessment of the sixth award criterion
155 The tender specifications provide as follows in respect of the sixth award criterion:
‘A document of maximum 15 pages of A4 format font-size 12 describing the tenderer’s approach to take-over, shadowing period, change management and hand-over.’
156 In order to be considered technically suitable, the tenderer had to obtain at least 7.5 points out of a maximum of 15.
157 In the letter of 8 April 2009, the Office for Publications stated the following about the response to that criterion in the applicant’s bid:
‘Award criterion 6: transitions management (min 7.5 – max 15 points)
+ well described and the different points are covered, + take over 40 man-days, + hand-over 30 man days.’
158 The applicant obtained a score of 13 points out of 15 for the sixth award criterion, whilst the successful tender obtained a score of 14.5 points out of 15.
159 The applicant argues that the Evaluation Committee’s assessment which led it to award the applicant 13 points out of 15 is incorrect because no negative comment was made about its bid.
160 It should be observed that the applicant has not put forward any specific argument liable to show that the Evaluation Committee’s remark is incorrect and lead to the conclusion that it was unable to explain why the applicant did not deserve the maximum number of points provided for in respect of the sixth award criterion, that is, 15 points out of 15.
161 It follows from all the foregoing that the applicant has not established that the Office for Publications made a manifest error of assessment in the assessment of its bid in respect of the sixth award criterion.
162 Accordingly, the third plea in law must be rejected as unfounded.
Fourth plea: infringement of Article 89 and of Article 94(a) of the Financial Regulation, and also of Article 139(1) of the Implementing Rules
163 The applicant submits, firstly, that the Evaluation Committee infringed Article 89 and Article 94(a) of the Financial Regulation and also the rules of free and fair competition in disregarding the fact that a member of the successful tenderer was also part of its consortium. Secondly, it submits that the successful tenderer did not present any information to show that the price proposed in its tender complied with Article 139(1) of the Implementing Rules.
164 The Commission rejects those arguments.
165 It follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that the introduction of a new plea in law in the course of proceedings is not allowed unless it is based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, Case T‑345/05 Mote v Parliament [2008] ECR II‑2849, paragraph 85 and the case-law cited).
166 In the present case, the applicant raises for the first time at the reply stage the complaints alleging infringement of Article 89 and Article 94(a) of the Financial Regulation, and also infringement of Article 139(1) of the Implementing Rules.
167 Consequently, the fourth plea must be rejected as being inadmissible.
168 Lastly, regarding the applicant’s observations to the effect that the successful tenderer has not been in a position to handle adequately the TED website project with which it has been entrusted, including the transfer of data from the former TED website interface to the new TED website interface, which should have led to severe financial penalties for the successful tenderer and the termination of the contract concluded with the Office for Publications, suffice it to observe that neither the application of such penalties nor the cancellation of the contract are the subject-matter of the present proceedings and that, therefore, observations put forward by the applicant on this point must be dismissed as ineffective.
169 Since the applicant has been unsuccessful in all of its pleas in law relating to the decision to reject its bid, the application for annulment of that decision must be dismissed in its entirety.
170 The application for annulment of the decision awarding the contract to a third party must be dismissed as a consequence of the dismissal of the application for annulment of the preceding decision with which it is closely connected (Case T‑195/05 Deloitte Business Advisory v Commission [2007] ECR II‑871, paragraph 113, and Case T‑406/06 Evropaïki Dynamiki v Commission, cited above, paragraph 120).
The request for a full copy of the evaluation report
171 The applicant asks, in its application and in its additional observations, that the Commission lodge a full copy of the evaluation report and the successful tender with the Court.
172 It must be pointed out, first, that the Commission was not required to disclose the Evaluation Committee’s report to the Court, as part of the statement of reasons for the decision challenged in the present case. As already pointed out in paragraph 47 above, Article 100(2) of the Financial Regulation provides merely that the contracting authority must, upon receipt of a request in writing, state the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded (see, to that effect, Case T‑406/06 Evropaïki Dynamiki v Commission, cited above, paragraph 123 and the case-law cited).
173 Next, the Commission, through the Office for Publications, sent the applicant, by letter of 8 April 2009, a non-confidential extract from the evaluation report. The Office for Publications also informed the applicant that it could not provide the latter with other information about the successful tender in order not to prejudice the successful tenderer’s commercial interests (see, to that effect, Case T‑406/06 Evropaïki Dynamiki v Commission, cited above, paragraph 125 and the case-law cited).
174 In those circumstances, and in the light of inter alia the fact that there is nothing in the case-file to show that there has been a manifest error of assessment or infringement of the obligation to state reasons, the Court finds that, irrespective of the legal basis relied on by the applicant, there are no grounds to order the Commission to produce the Evaluation Committee’s full report (see, to that effect, Case T‑406/06 Evropaïki Dynamiki v Commission, cited above, paragraph 126 and the case-law cited.
The claim for damages
175 The applicant argues, in essence, that the Court will in all likelihood rule after the contract has been awarded. Relying on Articles 235 EC and 288 EC, it therefore asks that the Commission be ordered to pay it damages in the amount of EUR 1 490 215.58, corresponding to the gross profit of 50% which, in its estimate, it would have earned had the contract been awarded to it.
176 The Commission contends that the claim for damages must be dismissed inasmuch as none of the three conditions for establishing non-contractual liability on the part of the Community pursuant to the second paragraph of Article 288 EC has been satisfied in the present case.
177 According to established case-law, in order for the Community to incur non-contractual liability under the second paragraph of Article 288 EC on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon. Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, Evropaïki Dynamiki v EMCDDA, cited above, paragraph 126 and the case-law cited).
178 In the present case, as evidenced by the discussion relating to the application for annulment set out in paragraphs 28 to 170 above, the examination of the applicant’s pleas and arguments have not established any unlawful conduct by the Office for Publications. It follows that the condition requiring unlawful conduct by the Office for Publications is lacking.
179 It follows that as the first of the three conditions for the Community to incur liability is not fulfilled, the claim for damages must be dismissed as unfounded.
Costs
180 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.
181 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the Commission.
182 The applicant nevertheless requests that the Court order the Commission to pay the applicant’s legal costs even if the Court rejects the application, in accordance with the second paragraph of Article 87(3) of the Rules of Procedure.
183 In accordance with the second paragraph of Article 87(3) of the Rules of Procedure, the Court may order a party, even if successful, to pay to the other party costs which it has caused that party to incur and which the Court considers unreasonable or vexatious.
184 According to the case-law, that provision should be applied where the dispute is in part attributable to the conduct of a European Union institution (Case T‑73/95 Oliveira v Commission [1997] ECR II‑381, paragraphs 51 and 52, and Case T‑81/95 Interhotel v Commission [1997] ECR II‑1265, paragraphs 81 and 82).
185 In the present case, the examination of the conduct of the Office for Publications in respect of the applicant does not justify that the Commission be ordered to pay the costs under the second subparagraph of Article 87(3) of the Rules of Procedure.
186 It should be borne in mind that the examination of the bid done by the Office for Publications has not revealed any manifest errors of assessment of the applicant’s bid. Moreover, the Office for Publications, having provided the applicant with all of the information required under Article 100(2) of the Financial Regulation, did not infringe its obligation to state reasons. Nor did the Office for Publications infringe Articles 106 and 107 of the Financial Regulation, or the principles of equal treatment, transparency and sound administration.
187 In those circumstances, the Court finds that the dispute is not attributable in part to the conduct of the Office for Publications, which complied with European legislation, with the result that the applicant was not forced to bring proceedings before the Court.
188 Consequently, the applicant’s request must be rejected.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action.
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.
Dittrich | Wiszniewska-Białecka | Kancheva |
Delivered in open court in Luxembourg on 10 October 2012.
[Signatures]