JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
29 October 2015 (*)
(Public service contracts — Tendering procedure — Transport for Members of the European Parliament — Decision declaring unsuccessful and closing the tendering procedure and initiating a negotiated procedure — Award of the contract to another tenderer — Equal treatment — Substantial change in the original terms of the contract)
In Case T‑126/13,
Direct Way, established in Machelen (Belgium),
Directway Worldwide, established in Machelen (Belgium),
represented by E. van Nuffel d’Heynsbroeck, lawyer,
applicants,
v
European Parliament, represented by L. Darie and P. Biström, acting as Agents,
defendant,
APPLICATION for annulment of three decisions of the Parliament relating to the award of the contract for services for transport for Members of the European Parliament in Brussels,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 23 April 2015,
gives the following
Judgment
Background to the dispute
1 On 8 May 2012, the European Parliament published a contract notice relating to invitation to tender INLO.AO-2012-008-LUX-UTP-02, entitled ‘Transport for Members of the European Parliament in Brussels’ (JO 2012/S 88-143608), in the context of an open procedure.
2 According to the contract notice, the scope of the contract represented approximately 3 050 vehicle-hours per week for approximately 26 weeks per year, and approximately 675 vehicle-hours per week for approximately seven weeks per year. The total value of the contract (excluding VAT) was estimated at between EUR 10 000 000 and EUR 12 000 000, for a maximum period of four years.
3 Under the contract notice, the contract would be awarded to the most economically advantageous tender, assessed in accordance with the following criteria: price (60 points), relevance of the organisation proposed for management of the contract (20 points), environmental measures proposed (10 points) and management and development of human resources (10 points).
4 Only two tenders were submitted: the one submitted by Direct Way and Directway Worldwide, the applicants, and the one submitted by TMS Limousine.
5 TMS Limousine’s tender was placed first, having received a total of 83.43 points. That tender proposed, in particular, a price of EUR 38.90 per hour. The applicants’ tender was placed second, having received a total of 80.25 points. In particular, the price proposed in their tender was EUR 34.34 per hour, for a total of 123 000 vehicle-hours per year.
6 By letter of 3 September 2012, the Parliament informed the applicants that it had decided to close the open tendering procedure and that it intended to initiate a negotiated procedure, on the ground that the tenders submitted in the context of the former procedure were ‘unacceptable in the light of the award criteria, in particular the prices proposed, which [were] too high in relation to the value stated in the contract notice’. The decision to close the first procedure was the subject of a notice published on 2 October 2012 (OJ 2012/S 189-310052).
7 By letter of 20 September 2012, the Parliament invited the applicants and TMS Limousine to submit a tender in connection with call for tenders INLO.AO-2012-018-LUX-UTP-05, entitled ‘Transport for Members of the European Parliament in Brussels’, in the context of an unpublished negotiated procedure. The characteristics of that call for tenders were essentially the same as those of the previous call for tenders, in particular as regards the estimated value of the contract, the scope and the award criteria, namely the price and the three qualitative criteria referred to in paragraph 3 above.
8 In the negotiated procedure, the two tenderers essentially maintained the tenders which they had initially submitted. However, TMS Limousine proposed a lower price, fixed at EUR 36.15 per hour, whereas the applicants proposed the same price as before, EUR 34.34 per hour.
9 Subsequently, two meetings were held between the Parliament and each of the tenderers, following which the applicants slightly increased the price proposed, to EUR 34.63 per hour, while TMS Limousine reduced the price proposed, to EUR 34.95 per hour.
10 By email of 21 December 2012, and by recorded delivery letter of 3 January 2013, the Parliament informed the applicants that it had decided to reject their tender on the ground that it had not been deemed to be the most economically advantageous tender (‘the rejection decision’). The applicants’ tender was placed second, having received 85.39 points. In addition, the applicants were informed that the Parliament had decided to award the contract to TMS Limousine, which had obtained 87.99 points (‘the award decision’). Last, the Parliament informed the applicants that they could request further information concerning the grounds on which their tender had been rejected, the characteristics and advantages of the successful tender and also the name of the successful tenderer. The applicants requested such further information by email of 26 December 2012.
11 On 8 January 2013, the Parliament published a contract award notice (OJ 2013/S 5-4640).
12 On 10 January 2013, the Parliament sent the applicants, by email and by recorded delivery letter, its reply to their email of 26 December 2012, providing them with details of the assessment for each award criterion of each of the tenders and also stating the price finally proposed by the successful tenderer (that is to say, EUR 34.95 per hour).
Procedure and forms of order sought
13 By application lodged at the Court Registry on 1 March 2013, the applicants brought the present action, claiming, in essence, that the Court should:
– annul the Parliament’s decision of 3 September 2012 to close the contract award procedure in ‘open’ form;
– annul the Parliament’s decision of 20 September 2012 to initiate the contract award procedure in ‘unpublished negotiated’ form;
– annul the award decision.
– declare the contract with the successful tenderer void;
– award the applicants damages;
– order the Parliament to pay the costs.
14 The Parliament contends that the Court should:
– dismiss as inadmissible the action for annulment of the decision of 3 September 2012 to close the open procedure and the decision of 20 September 2012 to initiate the negotiated procedure;
– dismiss the action brought against the award decision as unfounded;
– dismiss the application for a declaration that the contract is void;
– dismiss the claim for damages;
– order the applicants to pay the costs.
15 On a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral stage of the procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court of 2 May 1991, asked the parties to state the date on which the applicants had received the Parliament’s communication of 10 January 2013.
16 In answer to that request, the applicants stated that they had received that communication by email on 10 January 2013, but that they were unable to state the precise date on which they had received it by recorded delivery.
17 The parties presented oral argument and answered the questions put by the Court at the hearing on 23 April 2015. During the hearing, in answer to a written question from the Court, the applicants confirmed that they were not formally seeking annulment of the Parliament’s decision, communicated by email of 21 December 2012 and also by recorded delivery letter of 3 January 2013, to reject their tender.
Law
Admissibility
18 The Parliament raises a plea of inadmissibility in respect of the action against the decisions to close the open procedure and to initiate the negotiated procedure, claiming that the period for bringing an action had expired. As regards the admissibility of the action against the award procedure, the Parliament merely states that it leaves that question to the discretion of the Court.
19 The applicants dispute that plea of inadmissibility. In essence, they claim that the award of a public contract is a complex operation in which the contracting authority may find it necessary to take intermediate decisions in order to prepare the contract for award. In that process, the irregularity of a decision may not be immediately apparent, but may be revealed by the decisions taken subsequently. In the applicants’ submission, only the award decision, and more specifically the communication, on 10 January 2013, of the grounds on which their tender was rejected, revealed the irregularity of the previous decisions. It follows from that communication that the price proposed by the successful tenderer was higher than that initially proposed by the applicants in the procedure that was abandoned. The applicants, which had submitted a higher price than the estimated value stated in the contract notice, maintain that they had no reason to cast doubt on that ground beforehand.
20 As regards the decision to close the open procedure, although it was not addressed to the applicants, it is common ground that the Parliament informed the applicants of that decision by recorded delivery letter of 3 September 2012. In addition, the Parliament published a notice in the Official Journal of 2 October 2012 stating that the open procedure had been abandoned.
21 Given the applicants’ status as participants in the open procedure, the decision to close that procedure was capable of affecting their legal situation and therefore of forming the subject-matter of an action for annulment. It must be pointed out, however, that the decision to close the open procedure contained in the letter of 3 September 2012 was not challenged by the applicants until they brought the present action, on 1 March 2013.
22 Under the sixth paragraph of Article 263 TFEU, annulment proceedings are to be instituted within two months of the publication of the measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. As it was clearly brought out of time, the action for annulment, in so far as it is directed against the decision contained in the letter of 3 September 2012, is manifestly inadmissible.
23 None of the arguments put forward by the applicants is capable of calling that finding into question. In particular, it was for the applicants, within a reasonable time after they were apprised of the existence of that decision, to ask the Parliament to communicate to them the full text of the decision or, failing that, all necessary information, in order to acquire precise knowledge of its content and the grounds on which it was based, in such a way as to be able effectively to exercise their right to bring an action (see, to that effect, judgment of 20 November 2011 in Evropaïki Dynamiki v EIB, T‑461/08, ECR, EU:T:2011:494, paragraph 107).
24 In fact, the applicants did not submit such a request to the Parliament. Consequently, the present action for annulment is out of time in so far as it is directed against the decision to close the open procedure.
25 As regards the decision to initiate the negotiated procedure, which was communicated to the applicants by recorded delivery letter of 20 September 2012, the Court must examine of its own motion whether it is capable of forming the subject-matter of an action for annulment, within the meaning of Article 263 TFEU, even though the Parliament does not dispute the admissibility of the action on that basis, since a finding to the contrary would constitute an absolute bar to proceeding.
26 It has consistently been held that only a measure whose legal effects are binding on the applicants and are capable of affecting their interests by bringing about a distinct change in their legal position is an act or decision which may form the subject-matter of an action for annulment within the meaning of Article 263 TFEU (see judgment of 8 October 2008 in Sogelma v EAR, T‑411/06, ECR, EU:T:2008:419, paragraph 85 and the case-law cited).
27 As a general rule, a decision to organise a tender procedure has no adverse effects, since it does no more than give to interested parties the possibility of taking part in the procedure and submitting a tender (judgment in Sogelma v EAR, cited in paragraph 26 above, EU:T:2008:419, paragraph 86). In the present case, as the applicants participated in the negotiated procedure, the decision to initiate that procedure cannot have adversely affected them.
28 Furthermore, it should be observed that, although the negotiated procedure can be initiated only in specific circumstances, such as where irregular or unacceptable tenders have been submitted in response to an open procedure which has been completed, provided for in Article 127(1)(a) of Commission Regulation (EC, Euratom) No 2432/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1; ‘the Implementing Rules’), the fact none the less remains that it constitutes an autonomous procedure distinct from any other tendering procedure and, in particular, from the open procedure, within the meaning of Article 91 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’) (order of 16 December 2009 in Bull and Others v Commission, T‑333/08, EU:T:2009:514, paragraph 14).
29 In the light of the foregoing, it must be stated that the applicants are not entitled to challenge the decision to initiate the negotiated procedure, which was communicated to them by recorded delivery letter of 20 September 2012.
30 Although the Parliament has not raised a plea of inadmissibility against the action in so far as it is directed against the award decision on the ground that it is also out of time, since a finding to that effect would constitute an absolute bar to proceeding, it is for the Court to examine of its own motion the admissibility of the action, pursuant to Article 113 of the Rules of Procedure of the General Court of 2 May 1991 (see, to that effect, judgments of 15 June 1993 in Matra v Commission, C‑225/91, ECR, EU:C:1993:239, paragraphs 11 to 13, and of 15 September 2011 in CMB and Christof v Commission, T‑407/07, EU:T:2011:477, paragraph 74).
31 It is clear from the wording of the sixth paragraph of Article 263 TFEU that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the period prescribed for initiating proceedings, is subsidiary to the criteria of publication or notification of the measure (judgment of 11 March 2009 in TF1 v Commission, T‑354/05, ECR, EU:T:2009:66, paragraph 33).
32 In that regard, it should be pointed out that the applicants are not addressees of the award decision, although that decision is closely linked to the rejection decision, which is addressed to them. Accordingly, the award decision was not notified to the applicants.
33 Furthermore, it should be noted that the award decision is not an act which, as such, must be published in the Official Journal (see, in particular, Article 90(1) of the Financial Regulation and Article 118 of the Implementing Rules).
34 Nor is such a decision an act which, according to the consistent practice of the institution concerned, is published in the Official Journal. Unlike the situations referred to in the case-law on the obligation to notify (judgment of 19 June 2009 in Qualcomm v Commission, T‑48/04, ECR, EU:T:2009:212, paragraphs 43 to 58) and on the practice of publication (judgments of 15 June 2005 in Olsen v Commission, T‑17/02, ECR, EU:T:2005:218, paragraphs 72 to 87, and in TF1 v Commission, cited in paragraph 31 above, EU:T:2009:66, paragraphs 34 to 36), it should be stated that, in the present case, the award decision was not published in the Official Journal or on the Internet. The Parliament merely published, on 8 January 2013, a contract award notice containing brief information that did not allow the applicants effectively to exercise their right to bring proceedings before the Courts of the European Union. Accordingly, that date cannot constitute the date on which time began to run for the purpose of bringing the action for annulment.
35 In the light of the foregoing, it is appropriate to refer to the date on which the applicants became aware of the contested act. It follows from the account of the facts set out above that the applicants became aware of the existence of the award decision between 21 and 26 December 2012, the latter date being the date on which they asked the Parliament for further information concerning that decision. At that time, the applicants did not have precise knowledge of the content and the grounds of the act in question, in such a way as to be able effectively to exercise their right of action (see, to that effect, judgment in Evropaïki Dynamiki v EIB, cited in paragraph 23 above, EU:T:2011:494, paragraph 107).
36 The applicants were in a position effectively to exercise their right of action only after they had received the Parliament’s communication, sent by email and recorded delivery letter on 10 January 2013.
37 As regards the regularity of the notification of EU acts, it has been made clear in the case-law that a decision was properly notified provided that it was communicated to the person to whom it was addressed and the latter was put in a position to become acquainted with it (order of 2 October 2014 in Page Protective Services v EEAS, C‑501/13 P, EU:C:2014:2259, paragraph 30), which meant that valid notification could be effected by email (order in Page Protective Services v EEAS, EU:C:2014:2259, paragraphs 31 to 33). The same reasoning may be applied to the present case as regards the Parliament’s communication of 10 January 2013 disclosing the content and grounds of the award decision.
38 However, it follows from the case-law that sending an email does not necessarily guarantee that it is actually received by the person to whom it is addressed. An email may not reach him for technical reasons. Furthermore, even where an email actually reaches the person to whom it is addressed, it may not be received on the day on which it was sent (judgment in Sogelma v EAR, cited in paragraph 26 above, EU:T:2008:419, paragraph 77).
39 In this instance, the Parliament sent its communication by email and by recorded delivery letter on 10 January 2013. As stated in paragraph 16 above, the applicants indicated, in answer to a question from the Court, that they were unable to state the precise date on which they had received the document by recorded delivery. However, they confirmed that they had received the email of 10 January 2013 on the same day and supplied a copy of it.
40 It follows from the foregoing that the action against the award decision, which was initiated on 1 March 2013, is admissible, as it was brought before the expiry of the period of two months, plus a standard period for distance of 10 days, provided for in the sixth paragraph of Article 263 TFEU.
41 At the hearing, in view of the fact that the applicants did not formally request annulment of the Parliament’s decision rejecting their tender, the Parliament expressed reservations about the admissibility of the action in so far as it was directed against the award decision, claiming that the applicants might lack an interest in bringing proceedings.
42 As a lack of interest in bringing proceedings is an absolute bar to proceeding which the Courts of the European Union may examine of their own motion, it should be observed that, according to consistent case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. Such an interest presupposes that annulment of the contested measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it (judgment of 23 May 2014 in European Dynamics Luxembourg v ECB, T‑553/11, EU:T:2014:275, paragraph 94).
43 Where a tenderer’s bid is rejected because the contract is awarded to the only other tenderer, following a comparison of the tenders, the interest of the unsuccessful tenderer in bringing an action against the award decision is not conditional on the annulment of the decision rejecting his tender.
44 If the award decision should be annulled, it would be for the Parliament to take the necessary measures to comply with such a judgment (see, to that effect, judgment in Evropaïki Dynamiki v EIB, cited in paragraph 23 above, EU:T:2011:494, paragraph 66). In the present case, the applicants have an interest in bringing proceedings for annulment of the contested award decision in order to be restored sufficiently to their original position by the Parliament, in accordance with the obligation laid down in Article 266 TFEU, which can be brought about, where appropriate, by pecuniary compensation for the loss sustained, as, moreover, they claim in the present case.
45 In those circumstances, the applicants have an interest in bringing an action against the award decision and their application for annulment of that decision is therefore admissible.
Substance
46 In support of their action, the applicants put forward two pleas in law, alleging, first, breach of the principle of equal treatment for tenderers and, second, infringement of Article 127(1)(a) of the Implementing Rules, which prohibits a substantial change in the original terms of the contract.
First plea, alleging breach of the principle of equal treatment
– Arguments of the parties
47 By their first plea, the applicants claim that, on the assumption that the successful tenderer’s price is considered acceptable in the negotiated procedure, the Parliament has breached the principle of equal treatment for tenderers, as the applicants had proposed a slightly lower price which had been deemed unacceptable by the Parliament in the open procedure. Therefore, in the applicants’ submission, the decision to close the contract award procedure in open form, the decision to initiate the contract award procedure in ‘unpublished negotiated’ form and the decision to award the contract must be annulled.
48 The applicants observe that, in its letter of 3 September 2012, the Parliament clearly stated that it was only the prices proposed that had justified the decision to close the open procedure. Furthermore, the negotiations subsequently conducted in the negotiated procedure related solely to the tender price. The Parliament never asked the applicants to improve their technical proposals.
49 The applicants take issue with the Parliament’s conduct, since it eventually accepted the tender of a successful tenderer at a higher price than the price which they had previously proposed, although the qualitative requirements had been reduced. In that regard, they submit that the Parliament reduced the volume of services to be provided, having reduced them from approximately 400 000 vehicle-hours to approximately 300 000 vehicle-hours for the entire contract period.
50 In the light of the foregoing, the applicants maintain that the Parliament breached the principle of equal treatment for tenderers and infringed Article 101 of the Financial Regulation and Article 127(1)(a) of the Implementing Rules.
51 In the reply, the applicants dispute the Parliament’s argument that they had misunderstood the volume of services provided for in the call for tenders. In reality, the tender specifications indicate a volume of services that is appreciably higher than that stated in the contract notice. In case of disparity, the tender specifications prevail over the contract notice. The applicants therefore maintain that they correctly estimated the volume of services.
52 At the hearing, however, in answer to a question from the Court, the applicants acknowledged that they had initially overestimated the volume of services to be provided and as a result had slightly increased the price proposed during the negotiated procedure.
53 The applicants accept that the original technical conditions of the contract were not substantially changed. Accordingly, in their submission, the Parliament was not entitled to award the contract at a higher price than that which it had deemed unacceptable in the context of the open procedure.
54 Last, the applicants further submit, as regards Article 101 of the Financial Regulation, that they do not criticise the Parliament for having failed to state reasons, but for having stated incorrect reasons, as the tender which they had submitted in the open procedure was not unacceptable.
55 The Parliament disputes the applicants’ arguments.
– Findings of the Court
56 It should be stated, by way of preliminary observation, that the applicants’ complaints must be examined solely in so far as they seek to support the action for annulment as directed against the award decision, as the action for annulment has been declared inadmissible in so far as it is directed against the other decisions (see paragraphs 20 to 45 above).
57 According to a consistent line of decisions, the period for bringing an action laid down in the sixth paragraph of Article 263 TFEU is a matter of public interest and the strict application of EU rules on procedural time limits serves the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (orders in Page Protective Services v EEAS, cited in paragraph 37 above, EU:C:2014:2259, paragraphs 21 and 37, and of 5 February 2010 in Pro humanum v Commission, T‑319/09, EU:T:2010:29, paragraph 7).
58 In fact, to accept that an applicant could, in an action for annulment of a decision, rely on irregularities in respect of an earlier act, annulment of which he could have sought, would make it possible indirectly to challenge earlier decisions which were not contested within the period for bringing proceedings prescribed in Article 263 TFEU, thereby circumventing that time limit (see, to that effect, judgment of 29 June 1995 in Spain v Commission, C‑135/93, ECR, EU:C:1995:201, paragraph 17).
59 In the present case, it must be stated that the applicants’ arguments concerning the acceptability as award criteria of the tenders submitted in the context of an open procedure which has previously been closed cannot be taken into account by the Court in its assessment of the action for annulment of the award decision taken at the close of a negotiated procedure constituting an autonomous procedure distinct from any other contract award procedure (order in Bull and Others v Commission, cited in paragraph 28 above, EU:T:2009:514, paragraph 14). As stated above, any other finding would enable the applicants to call into question the decision closing the open procedure which, as it was not challenged within the prescribed period, has become final as against those who could have challenged it (judgment of 15 February 2001 in Nachi Europe, C‑239/99, ECR, EU:C:2001:101, paragraph 37).
60 The same applies to the arguments whereby the applicants seek to challenge the merits of the award decision, in so far as they are based exclusively on the alleged irregularity of the decision closing the open procedure. In that regard, in paragraph 45 of the application, the applicants claim that that procedure could not properly be closed on the ground that the tenders were unacceptable. However, as the fact that the tenders were unacceptable has already been established by the decision to close the open procedure, it can no longer be called into question by means of an action for annulment of the award decision.
61 Consequently, for the purposes of the present action, the question whether the Parliament was correct to rely on the unacceptable nature of the tenders received in order to justify its decision to close the open procedure cannot be examined. Accordingly, without ruling on the merits of the conclusion which the Parliament reached at the close of the open procedure (namely that the tenders received were unacceptable), the Court will confine itself to ascertaining whether that conclusion is capable of having any effect whatsoever in the context of the negotiated procedure.
62 Under Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the EU budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.
63 It has consistently been held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (judgment of 11 June 2014 in Communicaid Group v Commission, T‑4/13, EU:T:2014:437, paragraph 50).
64 In the field of public procurement, the contracting authority is required, in particular, to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers. Likewise, 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 (judgment in Communicaid Group v Commission, cited in paragraph 63 above, EU:T:2014:437, paragraph 51).
65 That 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 (judgment in Communicaid Group v Commission, cited in paragraph 63 above, EU:T:2014:437, paragraph 52).
66 The Court considers that the applicants have not established to the requisite legal standard that those principles were breached by the Parliament.
67 In the first place, it should be borne in mind that, according to the case-law, although the negotiated procedure may be initiated by the contracting authority only in specific situations, such as where irregular or unacceptable offers have been submitted in response to an open procedure which has been completed, provided for in Article 127(1)(a) of the Implementing Rules, the fact none the less remains that it is an autonomous procedure, distinct from any other contract award procedure and, in particular, from the open procedure (order in Bull and Others v Commission, cited in paragraph 28 above, EU:T:2009:514, paragraph 14).
68 The case-law has also established that, following the annulment of a tendering procedure, that procedure was at an end and the contracting authority was entirely at liberty to decide on what subsequent action to take (judgment in Sogelma v EAR, cited in paragraph 26 above, EU:T:2008:419, paragraph 136).
69 The applicants have put forward no argument from which it might be concluded that there was any breach of the principle of equal treatment of tenderers during the negotiated procedure. As the Parliament rightly claims, it is not possible to compare the price proposed by the applicants during the open procedure with the price proposed by the successful tenderers during the negotiated procedure, as the two procedures are distinct.
70 Furthermore, in the context of two distinct procedures, it would be illogical to take the view that the price proposed by the applicants during the first procedure, which led the contracting authority to conclude that the tenders were unacceptable, should be regarded as a maximum threshold that could not be exceeded during a second procedure of a different nature.
71 There might have been discrimination in the present case if, in the context of the same procedure, in point of fact the negotiated procedure, the contracting authority had treated similar tenders submitted by the tenderers in a different fashion. However, the applicants do not make such an assertion.
72 In the second place, on the assumption that the applicants’ situation during the open procedure could be regarded as comparable to the successful tenderer’s situation during the negotiated procedure, quod non, in the context of an award made according to the most economically advantageous tender, price is only one of the four award criteria. Consequently, the contracting authority is at liberty to award the contract to a tenderer proposing a high price, but whose tender is of higher quality, in the light of the other award criteria specified, which was the case here. In fact, it should be observed that the applicants do not deny that the successful tenderer’s offer was of a higher quality than theirs, in the light of the award criteria.
73 Consequently, the complaint alleging breach of the principle of equal treatment must be rejected.
74 None of the other arguments put forward by the applicant is capable of upsetting that finding.
75 The argument that the negotiation related solely to the price of the tenders is unfounded. It is apparent from the minutes of the meetings of 13 and 28 November 2012 that the negotiations also covered, in particular, the characteristics of the vehicles employed (namely hybrid vehicles).
76 The same applies to the argument that the Parliament reduced the qualitative requirements and the volume of services to be supplied, by reducing the number of vehicle-hours from 400 000 to 300 000. That argument is based on a misunderstanding on the applicants’ part, as is apparent, in particular, from the minutes of the negotiation meeting of 28 November 2012 and as the applicants acknowledged at the hearing (see paragraph 52 above). Consequently, there is no need to determine whether, as the applicants claim, in the case of discrepancy, the tender specifications must prevail over the contract notice. In addition, it should be noted that in the reply the applicants accept that the technical conditions (other than the volume of services) were not altered.
77 The Court considers, moreover, that the arguments relating to the alleged infringement of Article 101 of the Financial Regulation and Article 127(1)(a) of the Implementing Rules cannot be accepted.
78 In so far as the applicants take issue with the Parliament for having infringed those provisions by misstating the grounds of the decisions to close the open procedure and to initiate the negotiated procedure, those arguments cannot succeed, for the reasons set out in paragraphs 20 to 29 above. In so far as those arguments are directed against the award decision and in essence closely resemble the arguments examined in paragraphs 63 to 76 above, they must be rejected for the same reasons as those set out in those paragraphs.
79 In the light of the foregoing, the first plea must be rejected as inadmissible in part and unfounded in part.
Second plea, alleging that the original terms of the contract were substantially altered
– Arguments of the parties
80 By their second plea, the applicants claim that, in awarding the contract at a higher price than that which had previously been deemed unacceptable (namely EUR 34.95 per hour offered by the successful tenderer, instead of the EUR 34.45 per hour initially proposed by the applicants), the Parliament substantially altered the original terms of the contract, contrary to Article 127(1)(a) of the Implementing Rules.
81 In the applicants’ submission, according to the case-law, the use of the negotiated procedure cannot provide the opportunity to substantially alter the original terms of the contract.
82 The Parliament maintains that the second plea must be rejected as wholly unfounded.
– Findings of the Court
83 Under Article 127(1)(a) of the Implementing Rules, contracting authorities may use the negotiated procedure after having published a contract notice, whatever the estimated amount, in the event of the submission of tenders which are irregular or unacceptable, by reference in particular to the selection or award criteria, in response to an open or restricted procedure or a competitive dialogue, which has been completed, provided that the original terms of the contract as specified in the documents relating to the invitation to tender referred to in Article 130 of the Implementing Rules are not substantially altered, without prejudice to the application of Article 127(2) of those rules.
84 For the purposes of the present plea, the only alleged substantial change to the terms that needs to be examined is that relating to the price. At the stage of the reply, the applicants withdrew the second part of this plea, relating to the volume of services, and also stated that they did not maintain that the Parliament had altered the technical conditions of the contract. Furthermore, as explained in paragraphs 52 and 76 above, the applicants’ arguments relating to an alleged change in the volume of services is based on a misunderstanding on their part.
85 In the applicants’ submission, the substantial change to the original terms of the contract is the consequence of the fact that the Parliament awarded the contract at a higher price than the price which they had initially proposed and which had been deemed unacceptable.
86 That argument cannot succeed.
87 First, the applicants do not deny that the total estimated value of the contract remained unaltered, at between EUR 10 000 000 and EUR 12 000 000, for a maximum period of four years.
88 Second, neither Article 127(1)(a) of the Implementing Rules, nor Article 130 of the Implementing Rules (to which Article 127(1)(a) refers) suggests that the price proposed by one of the tenderers in the open procedure must be regarded as an original term of the contract that must not be substantially altered. On the contrary, Article 130 of the Implementing Rules permits the view that the original terms of the contract include, in particular, the exclusion and selection criteria, the award criteria and their weighting, and also the technical specifications. However, the applicants do not claim that there was a substantial change of those factors.
89 Third, for the reasons set out in paragraphs 67 to 72 above, it would be illogical to take the view that the price proposed by the applicants in the open procedure must be regarded as a maximum threshold that could not be exceeded in a distinct procedure, in particular where the contract is awarded to the most economically advantageous tender (namely, following an evaluation also relating to quality criteria and therefore not limited to the price proposed).
90 The case-law cited by the applicants does not support their second plea, as it relates to factual and legal circumstances which are not comparable with those of the present case.
91 The judgment of 19 June 2008 in pressetext Nachrichtenagentur (C‑454/06, ECR, EU:C:2008:351) concerned the alteration of a public contract during its currency by national authorities in the light of the provisions of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). According to the case-law, even though the directives concerning the award of public service contracts are not applicable to public contracts concluded by the EU administration, the rules or principles laid down in or derived from those directives can be relied on as against that administration when they themselves simply appear to the specific expression of fundamental rules of the Treaty and of general principles of law which are directly applicable to the EU administration (judgment of 12 December 2012 in Evropaïki Dynamiki v EFSA, T‑457/07, EU:T:2012:671).
92 However, the provisions of Directive 92/50 at issue were not comparable to Article 127(1)(a) of the Implementing Rules. The judgment in pressetext Nachrichtenagentur, cited in paragraph 91 above (EU:C:2008:351), is therefore of no relevance for the purposes of the present dispute. In any event, it must be pointed out that the alterations to the contract during its currency were different in nature from the alteration on which the applicants rely in the present case.
93 The same considerations apply to the judgment of 4 June 2009 in Commission v Greece (C‑250/07, ECR, EU:C:2009:338), which concerns an alleged change in the technical specifications between two procurement procedures and the provisions of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), which, again, are not comparable to Article 127(1)(a) of the Implementing Rules.
94 Accordingly, those judgments do not permit the conclusion that the award of a contract in a negotiated procedure to a successful tenderer proposing a higher price than that proposed by another tenderer in an open procedure inevitably results in a substantial change to the original terms of the contract, contrary to Article 127(1)(a) of the Implementing Rules.
95 In the light of the foregoing, the second plea must be rejected as unfounded.
The request that the contract should be declared void
– Arguments of the parties
96 The applicants ask the Court to declare that the contract concluded with the successful tenderer is void because of the alleged fundamental defects.
97 In support of that request, the applicants rely on the second subparagraph of Article 116(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation No 1605/2002 (OJ 2012 L 298, p. 1), Article 166(2) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1), Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) and the case-law of the Court of Justice.
98 The Parliament maintains that there was no irregularity on its part in the award of the contract and that the request for a declaration that the contract is void is therefore manifestly unfounded.
– Findings of the Court
99 Having regard to the fact that the first and second pleas have been rejected as inadmissible in part and unfounded in part, the request for a declaration that the contract with the successful tenderer is void must also be rejected.
The claim for compensation
– Arguments of the parties
100 As regards the claim for compensation for the damage sustained, the applicants submit that, had what they allege to be the Parliament’s unlawful conduct not taken place, their tender would have been the most economically advantageous. They would therefore have had a serious prospect of obtaining the contract, in spite of the contracting authority’s power to decline to award a contract. In the light of the estimate profit margin (namely EUR 1.9 per hour) and the estimated volume of services (105 000 hours per year), the applicants maintain that the damage sustained amounts to EUR 199 500 per year. At the stage of the reply, the applicants state that their loss of profits amounts to EUR 217 161.7 per year, or EUR 868 646.8 over the entire contract period.
101 The Parliament maintains that the action for compensation must be rejected as unfounded.
– Findings of the Court
102 Under the second paragraph of Article 340 TFEU, ‘in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
103 In accordance with the case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (judgments of 11 July 1997 in Oleifici Italiani v Commission, T‑267/94, ECR, EU:T:1997:113, paragraph 20, and of 9 September 2008 in MyTravel v Commission, T‑212/03, ECR, EU:T:2008:315, paragraph 35). The condition that there be unlawful conduct on the part of the EU institutions requires that there be a sufficiently serious breach of a rule of law intended to confer rights on individuals (judgment in MyTravel v Commission, EU:T:2008:315, paragraph 29).
104 As those conditions are cumulative, in the light of the Court’s finding that the Parliament’s conduct was not unlawful, the claim for compensation must be rejected, without there being any need to examine the other conditions.
105 In the light of the foregoing, the application must be dismissed in its entirety.
Costs
106 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Parliament.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Direct Way and Directway Worldwide to pay the costs.
Frimodt Nielsen | Dehousse | Collins |
Delivered in open court in Luxembourg on 29 October 2015.
[Signatures]