Action brought on 4 December 2013 – Serco Belgium and Others v Commission

(Case T-644/13)

Language of the case: English

Parties

Applicants: Serco Belgium (Brussels, Belgium); SA Bull NV (Auderghem, Belgium); and Unisys Belgium (Brussels) (represented by: V. Ost and M. Vanderstraeten, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the European Commission's decision of 30 October 2013, communicated to applicants by letter dated 31 October 2013, rejecting the OPTIMUS consortium's bid for tender DIGIT/R2/PO/2012/026 – ITIC-SM (IT service management for the integrated and consolidated IT desktop environment of the European Commission) (OJ 2012/S 69-112095) and awarding the contract to the GISIS consortium; and

order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law

The applicants' offer was rejected because of the extremely low marks awarded by the Commission on the award sub-criteria relating to staffing. In short, the Commission considered that the number of staff proposed by applicants is too low and therefore inadequate to assure the requested quality of service.

The applicants' plea alleges that its bid was rejected on the basis of unlawful award criteria. The sub-criteria relating to staffing are not aimed at identifying the tender which is economically the most advantageous since:

as the Commission expressly admits, the answers to these criteria provided by tenderers do not give rise to (contractual) requirements. The applicants contend that it is contrary to EU law to evaluate tenderers on the basis of statements which are not binding;

these sub-criteria are not related to the quality of the tender (the level of service that will be provided) but rather to the tenderer's intrinsic ability to commit a sufficient number of staff in order to meet the performance requirements imposed by the service level agreement (SLA). These sub-criteria are therefore selection criteria;

since no optimal number of staff was mentioned and no precise indication was given on how the Commission would value the indicated number of staff, and since the essence of the Commission's integration and consolidation project, as made clear by the tender specifications, is to achieve the high standard of quality contractually imposed in the most efficient manner, these sub-criteria led to an unpredictable result;

in any event, if the Commission had doubts that the applicants would be able to perform according to the terms offered (because of the perceived insufficient numbers of staff), it should have sought clarifications prior to rejecting an offer that was 47 million euros cheaper than the successful bid.