Action brought on 22 February 2024 – Corporate & Public Management Consulting International v Commission

(Case T-106/24)

Language of the case: English

Parties

Applicant: Corporate & Public Management Consulting International OÜ (Tallinn, Estonia) (represented by: C. Ginter, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

declare the current application admissible and well-founded;

annul Commission decision of 13 February 2024 rejecting the applicant’s tender in procurement procedure NEAR/TBS/2023/EA-RP/0125;

annul every consequent, intended or related measure, including even measures as yet unknown taken by the European Commission in the procurement procedure NEAR/TBS/2023/EA-RP/0125, and, in particular, annul the tender evaluation reports, award decision and any contract entered to with the successful tenderer;

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

First plea in law, alleging that the Commission has made a manifest error of assessment when rejecting the applicant’s tender (‘the tender’) and thus infringed Article 168(6) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council ¹ :

Commission decision of 13 February 2024 (‘the contested decision’) must be annulled as, by rejecting the tender, the Commission, in this case, has infringed Article 168(6) of Regulation 2018/1046 and the tender documents;

Article 168(6) of Regulation 2018/1046 stipulates that tenders that do not comply with all the minimum requirements set out in the procurement documents shall be rejected. The defendant found that the applicant’s tender did not comply with minimum requirements specified in the procurement documents that apply to Key Expert 2 (‘KE2’). This is not true ;

it emerges from the submitted documents, that KE2 has requisite general professional experience that exceeds the minimum requirements;

the Commission thus infringed Article 168(6) of Regulation 2018/1046 and the contested decision must be annulled.

Second plea in law, alleging that the Commission infringes Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), by rejecting the Tender and not asking clarifications beforehand:

the contested decision must be annulled as the Commission, in addition to Article 168(6) of Regulation 2018/1046, has infringed the Charter due to breaching the duty of sound administration;

in this case, the defendant failed to act with the required care by concluding that the tender was inadmissible. The Commission did not carry out the necessary checks and did not, in particular, request additional information from the applicant concerning the tender;

the right to sound administration contains, inter alia, the duty of care, the obligation to state reasons and the right to be heard in administrative procedure. The Commission failed to comply with all these principles towards Applicant;

the contested decision did not specify why KE2 did not correspond to the tender requirements. Only after approaching the Commission did the latter specify that it considers the experience of KE2 not to correspond to the requirement of general professional experience. However, the Commission did not elaborate why it was on the opinion that the bulk of the experience of KE2 is non-compliant with the tender requirements;

the Commission has not inspected the documentation submitted by the applicant in a professional manner;

moreover, the Commission had not carried out the necessary checks and had not, in particular, requested any additional information from the applicant concerning the tender prior to making the contested decision. It is apparent from the case law of the Court that the right not to be deprived of the opportunity to be heard in administrative procedures is also extremely important in the procurement proceedings. The Commission deprived the applicant of this right ;

the applicant notes, taking into consideration the above, that in the present case it is clear that the Commission has breached the principle of sound administration.

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¹ Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).