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Action brought on 8 June 2009 - Evropaïki Dynamiki v Commission

(Case T-236/09)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul Commission's decision to reject the bid of the applicant, filed in response to the open Call for Tenders RTD-R4-2007-001 Lot 1 for the "On-site development expertise (intra-muros)" and for Lot 2 "Off-site development projects (extra-muros) (OJ 2007/S 238-288854) communicated to the applicant by two separate letters dated 27 March 2009 and all further decisions of the Commission including the one to award the contract to the successful contractor;

order the Commission to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 69.445.200 (33.271.920 for Lot 1 and 36.173.280 for Lot 2);

order the Commission to pay the applicant's legal costs and expenses incurred in connection with this application, even if current application is rejected.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant's decisions to reject its bid submitted in response to a call for an open tender for external service provision for development, studies and support of information systems (RTD-R4-2007-001-ISS-FP7) both for Lot 1 for the "On-site development expertise (intra-muros)" and for Lot 2 "Off-site development projects (extra-muros) and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims the applicant puts forward following pleas in law.

First, the applicant claims that the defendant committed various and manifest errors of assessment and that it refused to provide any justification or explanation to the applicant in breach of the financial regulation¹ and its implementing rules as well as in breach of directive 2004/18² and of Article 253 EC.

Second, the applicant claims that the defendant infringed the financial regulation by obliging tenderers to extend their tenders against their will. In addition, the applicant argues that even if one assumed that the defendant had right to do so, quod non, it was in violation of the principles of good administration, transparency and equal treatment that it decided to proceed with the completion of the award process even after the expiration of the extension as, in the applicant's opinion, no contract can be signed when one or more tenders are not valid anymore.

Third, the applicant claims that the outcome of the procedure laid down by the call for tenders was distorted by leakage of information associated with an attempt to impede the applicant from exercising its rights.

Further, the applicant puts forward specific arguments in respect of each lot.

In respect of the Lot 1, the applicant claims that the defendant infringed the principles of equal treatment and of good administration as it failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation regarding one of the members of the winning consortium which was in breach of its contractual obligations to the defendant. Furthermore, the applicant submits that the winning tenderer was allowed illegally to use resources from companies based in non WTO/GPA countries and that this practice is illegal.

In respect of the Lot 2, the applicant argues that the defendant should not allow tenderers subcontracting to non WTO/GPA countries to participate in the biding proceedings; should it do so, the applicant contends that it should proceed on a fair, transparent and non discriminatory manner, clarifying the selection criteria it would use for excluding certain companies or accepting others. Therefore, in the applicant's opinion, the defendant applied particularly discriminatory approach failing to describe the selection criteria it used to select tenderers. Furthermore, it submits that the defendant failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation and Articles 133a and 134 of the implementing rules and Article 45 of Directive 2004/18 and intending to exclude from public procurement companies that have either been condemned or that have been involved in illegal activities such as fraud, corruption, briberies and professional misconduct. The applicant submits that in the present case the winning tenderer has acknowledged its involvement to the above activities and has been condemned by the German courts.

Finally, the applicant also claims that the defendant committed several manifest errors of assessment in respect of both lots and regarding the quality of the tenderer's proposal for the overall management of the service, for ordering services and for delivery of services as well as the tenderer's technological proposal in the domain of the lots.

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¹ - 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)

² - Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)