JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
8 July 2015 (*)
(Public service contracts — Tender procedure — Provision of computing services for the development and maintenance of software, consultancy and assistance for different types of IT applications — Ranking of a tenderer’s bid in the cascade for different lots and ranking of the bids of other tenderers — Obligation to state reasons — Award criterion — Manifest error of assessment — Non-contractual liability)
In Case T‑536/11,
European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),
European Dynamics Belgium SA, established in Brussels (Belgium),
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
represented by N. Korogiannakis, M. Dermitzakis and N. Theologou, lawyers,
applicants,
v
European Commission, represented initially by S. Delaude and V. Savov, and subsequently by S. Delaude, acting as Agents, and by O. Graber-Soudry, Solicitor,
defendant,
ACTION for annulment of the decision of the Publications Office of the European Union of 22 July 2011 to rank the applicants, in respect of the bids they submitted in response to the call for tenders AO 10340, concerning the provision of computing services for the development and maintenance of software, consultancy and assistance for different types of IT applications (OJ 2011/S 66-106099), in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3, as well as the decisions awarding the contracts at issue to other tenderers in as much as they refer to their ranking, and, second, for damages,
THE GENERAL COURT (Ninth Chamber),
composed of O. Czúcz, acting as President, I. Pelikánová and A. Popescu (Rapporteur), Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 25 September 2014,
gives the following
Judgment (1)
Background to the dispute
1 By a contract notice of 5 April 2011, published in the Supplement to the Official Journal of the European Union (OJ 2011/S 66-106099), with a corrigendum published in the Official Journal (JO 2011/S 70-113065), the Publications Office of the European Union (PO) launched call for tenders AO 10340 (‘Computer services for software development and maintenance, consultancy and assistance for different types of information technology applications’).
2 According to the contract notice, the computing services in question were divided into four lots, the following three of which are relevant to this action:
– lot 1, concerning ‘support and specialised administrative applications’;
– lot 3, concerning ‘production and reception chains’;
– lot 4, concerning ‘consultancy and assistance services regarding management of information technology projects’.
3 The purpose of the call for tenders was to conclude new framework service contracts for each lot that would replace the framework contracts due to expire.
4 In the tender specifications, the PO stated that, for each lot, tenderers would be selected according to ‘the cascade mechanism’ (‘the cascade’) and that, for each lot, framework contracts would be signed, for a term of four years, with the tenderers who submitted the three best bids. When the specific contracts were awarded for each lot, the economic operator whose bid was considered to present the best value for money was contacted first. If that first operator was unable to provide the service requested or was not interested, the second best operator was contacted. If the latter was unable to provide the requested service or was not interested, the third best operator was then contacted.
5 Section 2.1 of the tender specifications stated that the assessment would consist of three main stages: a first stage, during which exclusion criteria would be applied (Section 2.5 of the tender specifications); a second stage, during which selection criteria would be implemented (Section 2.6 of the tender specifications); and a third stage, during which a technical and financial assessment of the bid would be carried out in the light of the award criteria (Sections 2.7 and 2.8 of the tender specifications).
6 In respect of the technical evaluation for lots 1 and 3, the tender specifications set out, in Section 2.7.2, five award criteria, as follows:
– criterion 1: ‘Overall quality of the presentation of the tenderer’s response’ (for lot 1, ‘criterion 1.1’ and, for lot 3, ‘criterion 3.1’) (maximum number of points: 5 out of 100);
– criterion 2: ‘Tenderer’s approach to the quality assurance and to project management to be used during the execution of the contract’ (for lot 1, ‘criterion 1.2’ and, for lot 3, ‘criterion 3.2’) (maximum number of points: 40 out of 100);
– criterion 3: ‘Technical merits of the human resources for the execution of the tasks’ (for lot 1, ‘criterion 1.3’ and, for lot 3, ‘criterion 3.3’) (maximum number of points: 25 out of 100);
– criterion 4: ‘Tenderer’s proposal for a take-over and hand-over’ (for lot 1, ‘criterion 1.4’ and, for lot 3, ‘criterion 3.4’) (maximum number of points: 10 out of 100);
– criterion 5: ‘Tenderer’s proposal for a [service level agreement]’ (for lot 1, ‘criterion 1.5’ and, for lot 3, ‘criterion 3.5’) (maximum number of points: 20 out of 100).
7 In respect of the technical evaluation for lot 4, the tender specifications set out, at Section 2.7.2, three award criteria, as follows:
– criterion 1: ‘Overall quality of the presentation of the tenderer’s response’ (‘criterion 4.1’) (maximum number of points: 5 out of 100);
– criterion 2: ‘Tenderer’s approach to the quality assurance and to project management to be used during the execution of the contract’ (‘criterion 4.2’) (maximum number of points: 55 out of 100);
– criterion 3: ‘Technical merits of the human resources for the execution of the tasks’ (‘criterion 4.3’) (maximum number of points: 40 out of 100).
8 For each lot, the award criteria represented a total of 100 points. Only bids obtaining at least half the points for each criterion and a total score of at least 65 points could be considered for the award of the contracts. Each bid was evaluated for the purpose of determining to what extent it satisfied the stated requirements, the successful bid being that which represented the best value for money. Quality, namely the technical evaluation, counted for 50% and price, namely the financial evaluation, counted for 50% (Section 2.9 of the tender specifications).
9 On 17 May 2011, the applicants, European Dynamics Luxembourg SA, European Dynamics Belgium SA, and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, in the form of a consortium, submitted bids for lots 1, 3 and 4.
10 On 1 July 2011, the evaluation report was drawn up for lots 1 and 4, and, on 4 July 2011, for lot 3, in accordance with Article 147(1) of Commission Regulation (EC, Euratom) No 2342/2002 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’).
11 On 13 July 2011, the comité des achats et marchés, the Publication Office’s advisory body in the field of public procurement, delivered a favourable opinion on the award decision for lots 1, 3 and 4, as recommended by the evaluation committees in their reports. On 14 July 2011, the authorising officer by sub-delegation adopted the award decision, in line with that opinion and the recommendations of the evaluation committee.
12 On 18 July 2011, the evaluation committee adopted a correction to its original report of 1 July 2011 concerning the evaluation of lot 1. On 21 July 2011, the comité des achats et marchés of the PO sent a note to the authorising officer by sub-delegation, informing him of the correction to its opinion of 13 July 2011 concerning lot 1. On 22 July 2011, a corrected award decision was adopted by the authorising officer by sub-delegation, on account of a calculation error in the evaluation report for lot 1.
13 By letter of 22 July 2011, the PO notified the applicants of the ranking of their bids for each of the relevant lots, namely third place in the cascade for lot 1, third place in the cascade for lot 4 and second place in the cascade for lot 3, and of the names of the other tenderers whose bids had been successful for lots 1, 3 and 4 (‘the successful tenderers’). It stated that for lot 1, the bids submitted by the Sword-Siveco consortium (‘Sword-Siveco’) and by Logica Luxembourg (‘Logica’) had been ranked in first and second place, respectively, in the cascade; for lot 3, the bid submitted by ARHS Cube had been ranked in first place in the cascade; and for lot 4, the bids submitted by Novitech and Logica had been ranked in first and second place, respectively, in the cascade (‘the other successful tenderers’). The PO also specified the scores awarded in respect of those bids at the technical evaluation stage, the prices proposed in those bids and their price-quality ratio. Lastly, it stated that the applicants were entitled to request additional information on the ranking of their bids in the cascade for each of the relevant lots and on the characteristics and advantages of the bids which were ranked higher than theirs.
14 By letter dated 22 July 2011, the applicants requested the following information from the PO: first, the names of the potential subcontractor (or subcontractors) forming part of the consortia of the other successful tenderers and the percentages of the contract allocated to it (or them); second, the scores awarded, for each of the technical award criteria, to all of their bids and to the bids of the other successful tenderers; third, an analysis of the strengths and weaknesses of both their bids and the bids of the other successful tenderers; fourth, the relative advantages and the additional or better services offered by the other successful tenderers in their bids; fifth, a detailed copy of the evaluation report; and, sixth, the names of the evaluation committee members.
15 On 27 July 2011, the PO informed the applicants, for lots 1, 3 and 4, of the names of the subcontractors forming part of the consortia of the other successful tenderers and the percentages of the contract allocated to them. The PO also sent the applicants an extract of the evaluation reports containing information on their bids and on the bids submitted by the other successful tenderers for those lots. Lastly, it informed the applicants that the names of the evaluation committee members could not be disclosed.
16 By letter of 5 August 2011, the applicants complained about the succinct and limited nature of the information provided by the PO through the extracts of the evaluation committee’s reports. They alleged numerous errors of assessment, which were serious and manifest, affecting the evaluation of their bids.
17 By letter of 29 August 2011, the PO notified the applicants that it maintained the award decisions concerning the contracts in question. It also informed them of its decision to proceed with the signature of the framework contracts with the successful tenderers.
Procedure and forms of order sought
18 By application lodged at the Court Registry on 2 October 2011, the applicants brought the present action.
19 As the composition of the Chambers of the Court changed, the designated Judge-Rapporteur was assigned to the Ninth Chamber, to which the present case was accordingly allocated. As a Member of the Ninth Chamber was unable to sit in the present case, the President of the Court designated another judge to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure of the General Court of 2 May 1991.
20 On a proposal from the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure. At the hearing on 25 September 2014, the parties presented oral argument and answered the questions put to them by the Court.
21 At the hearing, the Commission produced a document entitled ‘Corrigendum to Report of works of the Evaluation Committee evaluating offers submitted in response to the call for tenders No 10340 lot 1’ and the applicants did not object to its being placed on the file.
22 The applicants claim that the Court should:
– annul the decision of the PO of 22 July 2011 to rank their bids in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3;
– annul all related decisions by the PO, in particular those ‘to award the respective contract[s] to the first and second cascade contractors’;
– order the PO, pursuant to Articles 256 TFEU, 268 TFEU and 340 TFEU, to pay the applicants EUR 3 450 000 in respect of damages for the loss suffered on account of the tendering procedure in question;
– order the PO, pursuant to Articles 256 TFEU, 268 TFEU and 340 TFEU, to pay the applicants EUR 345 000 in respect of damages for the loss of opportunity and harm caused to their reputation and credibility;
– order the PO to pay legal and other costs and expenses incurred in connection with the present action.
23 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
24 In their reply, the applicants reduced the amount of their claim for damages for loss suffered on account of the tendering procedure in question and on account of the loss of opportunity and harm caused to their reputation and credibility to EUR 2 800 000 and EUR 280 000, respectively.
25 At the hearing, the applicant declared that it was withdrawing its third head of claim, formal note of which was taken in the minutes of the hearing.
26 Furthermore, the applicants stated at the hearing, in response to a question by the Court, that the reference to decisions ‘to award the respective contract[s] to the first and second cascade contractors’ should be understood as referring to decisions awarding the contracts in question to the other successful tenderers in so far as they relate to their ranking. In addition, they stated that the reference to all related decisions, in their second head of claim, related only to the decisions awarding the contracts at issue to the other successful tenderers in so far as they relate to their ranking.
27 Finally, at the hearing, in response to a question from the Court, the applicants claimed that the Commission, not the PO, should be ordered to pay the costs, note of which was taken in the minutes of the hearing.
Law
28 The applicants have brought an action for annulment and also a claim for damages.
I – The action for annulment
29 The Court finds, as a preliminary point, that it is apparent from the form of order sought by the applicants, as set out at the hearing, that it is appropriate to limit the scope of the present action for annulment to a review of the lawfulness of the ranking of the applicants’ bids in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and second contractor in the cascade for lot 3, and of the decisions awarding the public contracts at issue to the other successful tenderers in so far as they relate to their ranking.
30 Moreover, given the close link between the decisions ranking the applicants’ bid in the cascade for different lots and the decisions to award the contracts at issue to the other successful tenderers in so far as they relate to their ranking and inasmuch as the applicants’ argument relates to the decisions ranking their bids, the Court considers it appropriate first of all to examine the lawfulness of the latter decisions.
31 In support of the action for annulment of the decisions ranking their bid in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3, the applicants rely on three pleas in law. The first plea alleges breach of the obligation to state reasons, due to the failure to disclose the relative merits of the bids submitted by the successful tenderers and non-compliance with the provisions of Article 100(2) 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’). The second plea in law alleges infringement of the tender specifications, due to the application of an award criterion contravening Article 97 of the Financial Regulation and Article 138 of Regulation No 2342/2002. The third plea in law alleges that manifest errors of assessment were made, that vague and unsubstantiated comments were made by the evaluation committee, that the award criteria set out in the call for tenders were amended a posteriori, that criteria were used that had not been notified to the tenderers in good time and that the selection and award criteria were conflated.
32 It should be noted that the three pleas are raised both in support of the action for annulment of the decisions ranking the applicants’ bids in the third place in the cascade for lot 1 and in the third place in the cascade for lot 4, and in support of the action for annulment of the decision ranking the applicants’ bid in the second place in the cascade for lot 3.
33 In that regard, it should be noted that, as mentioned by the applicants and the Commission, the PO has a broad discretion 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 Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no serious or manifest error of assessment or misuse of powers (see, to that effect, judgment of 13 December 2011 in Evropaïki Dynamiki v Commission, T‑377/07, EU:T:2011:731, paragraph 22 and the case-law cited).
A – The first plea in law, alleging breach of the obligation to state reasons due to the failure to disclose the relative merits of the bids submitted by the successful tenderers and non-compliance with the provisions of Article 100(2) of the Financial Regulation
34 The applicants allege that the PO provided inadequate justifications. It is alleged to have disclosed only limited information in its reply of 27 July 2011 and subsequently refused to reply to the applicants’ detailed arguments set out in their letter of 5 August 2011, giving them the reasonable impression that their bids were wrongly ‘rejected’. In that regard, the applicants recall that the Commission’s usual practice when examining the comments of a tenderer on the evaluation committee’s assessment in a call for tenders is to have those comments examined by a different body in order to obtain an impartial result. The PO provided generic, vague, subjective and unfounded comments which did not substantiate the negative assessments of the applicants’ bids. The evaluation committee also failed to provide any explanation in relation to the services that were additionally or better offered by the other successful tenderers for the relevant lots compared to what was offered in the applicants’ bids.
35 The Commission disputes the merits of the applicants’ arguments.
36 It must be recalled that, where, as in the present case, the institutions of the European Union have a broad discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union judicature verify whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and 10 September 2008 Evropaïki Dynamiki v Commission, T‑465/04, EU:T:2008:324, paragraph 54).
37 It should also be recalled that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 22 March 2001 in France v Commission, C‑17/99, ECR, EU:C:2001:178, paragraph 35, and 12 November 2008 Evropaïki Dynamiki v Commission, T‑406/06, EU:T:2008:484, paragraph 47).
38 It follows from Article 100(2) of the Financial Regulation, Article 149 of the implementing rules and from settled 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 an express written request is received (see, to that effect, judgments of 9 September 2010 in Evropaïki Dynamiki v EMCDDA, T‑63/06, EU:T:2010:368, paragraph 111 and the case-law cited, and 12 December 2012 Evropaïki Dynamiki v EFSA, T‑457/07, EU:T:2012:671, paragraph 45).
39 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in the second paragraph of Article 296 TFEU, according to which the reasoning followed by the authority which adopted the measure in question 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 review (see judgments in Evropaïki Dynamiki v EMCDDA, cited in paragraph 38 above, EU:T:2010:368, paragraph 112 and the case-law cited, and Evropaïki Dynamiki v EFSA, cited in paragraph 38 above, EU:T:2012:671, paragraph 46 and the case-law cited).
40 It does not follow either from the first subparagraph of Article 100(2) of the Financial Regulation, from the third subparagraph of Article 149(3) of the implementing rules or from the case-law that, on written request by an unsuccessful tenderer, the contracting authority is bound to supply it with full copies of the evaluation report and the successful tenders (order of 13 January 2012 in Evropaïki Dynamiki v EEA, C‑462/10 P, EU:C:2012:14, paragraph 39).
41 It must also be recalled 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 judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63 and the case-law cited, and Evropaïki Dynamiki v Commission, cited in paragraph 36 above, EU:T:2008:324, paragraph 49).
42 Accordingly, in order to determine whether, in the present case, the PO has satisfied the requirement to state reasons, it is necessary to examine the letter of 22 July 2011, containing the decisions ranking the applicants’ bids in the cascade for each of the relevant lots. It is also appropriate to examine the letter of 27 July 2011, sent to the applicants within the period prescribed by Article 149(3) of the implementing rules, in response to their express request of 22 July 2011 seeking the disclosure of further information on the decisions awarding the contracts at issue concerning the successful tenderers and the ranking of their bids in the cascade for each of the lots.
43 By letter of 22 July 2011, the PO informed the applicants that their bids had been ranked in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3. It also set out, in relation to those lots, the technical scores given to each of the successful tenderers’ bids, their price and their final overall score. Finally, it informed the applicants of their right to obtain additional information on the grounds for the ranking of those bids.
44 As stated in paragraph 15 above, following a request for clarification made by the applicants, the PO, by letter of 27 July 2011, informed the applicants, in relation to lots 1, 3 and 4, of the names of the subcontractors which were part of the consortia of the other successful tenderers and the percentages of the relevant market that had been assigned to them. In that regard, it should be noted that Logica (tenderer) and Herakles (subcontractor) were mentioned for lot 4, and not for lot 3, as indicated, on the basis of what can only be a typing error, which moreover was not raised by the applicants.
45 In the same letter, the PO sent the applicants extracts of the evaluation reports including, for each of the relevant lots, information about their bids as well as about those of the other successful tenderers. Those extracts, amounting to 35 pages in total, contained tables including comments, for each technical award criterion, concerning the strengths and weaknesses of the applicants’ bids and those of the other successful tenderers and the scores awarded in respect of each criterion. Some of the comments were redacted, in part or in full, the PO having told the applicants that some information — whose disclosure would be contrary to the public interest, could affect the legitimate commercial interests of the other successful tenderers (for example, information relating to the technical solution proposed) or could distort fair competition between the undertakings concerned — could not be disclosed to them and had been removed.
46 Finally, in the same letter, the PO informed the applicants that the names of the members of the evaluation committee could not be disclosed.
47 It should be observed that, for each of the relevant lots, the PO supplied the applicants with the names of the other successful tenderers, the evaluation committee’s comments, both in respect of the applicants’ bids and of those ranked higher than theirs, and also the outcome of the financial evaluation, thus enabling the applicants to know the characteristics and relative advantages of the other successful tenders, as required by Article 100(2) of the Financial Regulation. The technical comments enabled the applicants to compare, for those lots, the scores awarded to their bids, in respect of each technical award criterion, and those awarded to the bids ranked higher than theirs.
48 In that respect, although the applicants submit that the Commission must disclose the information concerning the other successful tenderers’ bids that could be considered to be confidential and state how those tenderers could be harmed by that disclosure, they merely make a general request, without indicating, in the part of the pleadings relating to that plea in law, the comments or the parts of the bids to which they refer, whose disclosure is allegedly necessary for effective legal and judicial protection.
49 It should be recalled that, under Article 100(2) of the Financial Regulation, the contracting authority is entitled not to disclose certain details where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.
50 In addition, it is apparent from the case-law that, in the context of an action brought against a decision taken by a contracting authority in relation to a contract award procedure, the adversarial principle does not mean that the parties are entitled to unlimited and absolute access to all of the information relating to the award procedure concerned. On the contrary, that right of access must be balanced against the right of other economic operators to the protection of their confidential information and their business secrets. The principle of the protection of confidential information and of business secrets must be observed in such a way as to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute and, in the case of judicial review, in such a way as to ensure that the proceedings as a whole accord with the right to a fair trial (see, to that effect, judgment of 23 November 2011 in bpost v Commission, T‑514/09, EU:T:2011:689, paragraph 25 and the case-law cited). It is apparent from the applicants’ detailed observations set out in their letter of 5 August 2011 that they had sufficient knowledge of the relative advantages of the other successful tenderers’ bids.
51 Moreover, it should be recalled that the decision to classify the applicants’ bids in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3, was taken after the final evaluation, that is to say, after the calculation of the price-quality ratios of each bid for each of the lots. Accordingly, the relative advantages of the bids placed higher than that of the applicants, by comparison with the applicants’ bid, did not concern solely the scores obtained in relation to the technical award criteria, but also related to the price quoted and, in particular, the price-quality ratio of the bids.
52 In those circumstances, the PO, by providing the applicants, for each of the relevant lots, with the comments relating to the technical evaluation, in respect of each award criterion, for the bids placed higher than theirs as well as the price proposed in each of those bids and the details of the price-quality ratio calculations, adequately set out the relative advantages of the bids of the other successful tenderers, including where those bids contained a price higher than the applicants’ bids for the lot concerned.
53 Contrary to what the applicants seem to think, in the context of the notification of the characteristics and relative merits of the successful tender for each relevant lot, the contracting authority cannot be required to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tenderer (order of 13 October 2011 in Evropaïki Dynamiki v Commission, C‑560/10 P, EU:C:2011:657, paragraph 17, and judgment in Evropaïki Dynamiki v EFSA, cited in paragraph 38 above, EU:T:2012:671, paragraph 51), which is also true, as in the present case, for a tenderer whose bids, such as those of the applicants, were ranked lower than the bids of the other successful tenderers.
54 Moreover, in the present case, contrary to what the applicants allege, the PO is not under an enhanced obligation to state reasons where there are alleged to have been errors during the tendering procedure which led the evaluation committee to adopt a corrected award decision. First, it must be noted that the error which led to the adoption of a corrected award decision did not affect lots 3 and 4 (see paragraph 12 above). Second, with respect to lot 1, to which that error relates, the Commission indicated that there was a calculation error in the formula used to evaluate the tender offering the best price-quality ratio (see paragraph 12 above). At the hearing, in response to a question from the Court, the Commission stated that the scores had in no way been altered, which is confirmed by the document entitled ‘Corrigendum to Report of works of the Evaluation Committee evaluating offers submitted in response to the call for tenders No 10340 lot 1’ which was added to the file (see paragraph 21 above). Therefore, that error did not affect the scoring of the bids during the evaluation in the light of the technical award criteria.
55 Finally, the applicants’ argument, alleging failure to conduct a review of their detailed observations by a body other than the evaluation committee, despite their importance, in order to reach a fair solution, must be rejected. It is not apparent from the applicable regulation that the contracting authority was required to conduct such a review, nor do the applicants rely on any provision to that effect. In any event, that argument is ineffective since it does not demonstrate that the letter of 22 July 2011, containing the decisions ranking the applicants’ bids in the cascade for each of the relevant lots, is inadequately reasoned; that complaint cannot lead to the annulment of that letter and those decisions.
56 In the light of the above, it must be held that the PO, in its letters of 22 and 27 July 2011 and in the extracts of the evaluation reports, annexed to the letter of 27 July 2011, provided a sufficiently detailed statement of the reasons why the bids submitted by the applicants were placed in third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place for lot 3, and it is not necessary, contrary to what the applicants allege, to invite the Commission to submit a table showing, for lots 1, 3 and 4 and for each successful tenderer, the impact of each comment, negative or positive, on the scoring of the bids, in respect of each of the technical award criteria. In that regard, it must be stated that the contracting authority cannot be required to communicate to a tenderer who was unsuccessful in securing the first place in the cascade, in addition to the reasons for the ranking of its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated (see, by analogy, judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraph 21 and the case-law cited).
57 Furthermore, to the extent that the applicants are asking the Court to order the production of all the evaluation reports of the applicants’ bids and of the bids of the other successful tenderers, it should be recalled that an unsuccessful tenderer is not entitled to request the disclosure of the assessment reports in full (see paragraph 40 above), which also holds true, as in the present case, for a tenderer whose bid, such as that of the applicants, was ranked lower in the cascade for a specific lot than that of the bids of the other successful tenderers in the same cascade. Moreover, such disclosure does not appear necessary in this case.
58 Accordingly, there is no need to grant the applicants’ request that the Court order the production of the table referred to by the applicants, mentioned in paragraph 56 above, nor of all the evaluation reports.
59 It must be concluded that the PO provided sufficient grounds for its decisions ranking the applicants’ bids in the cascade for each of the relevant lots and met the requirements prescribed in Article 100(2) of the Financial Regulation and Article 149 of the implementing rules.
60 That conclusion is not invalidated by the applicants’ claims concerning the inadequacy of some of the evaluation committee’s comments relating to the assessment of their bids for lots 1, 3 and 4.
61 To the extent that the applicants seek, by their argument on the evaluation of their bids in the light of criteria 1.1, 1.3 and 3.1, to dispute the merits of the evaluation committee’s assessment, that argument must be necessarily rejected in the context of that plea, alleging breach of the obligation to state reasons.
62 Furthermore, having regard to the case-law cited in paragraph 39 above, the applicants may not rely on a breach of the obligation to state reasons. First, although the applicants cite some of the evaluation committee’s comments, made as part of the evaluation of their bids in the light of criteria 1.5, 3.2, 3.5 and 4.2, it is sufficient to note that they do not cite those comments in their entirety, as they are set out in the extracts of the evaluation reports which the applicants were provided with. It must be stated that those comments are sufficiently accurate to be understood and challenged and to allow for a review of the evaluation committee’s assessment, such as those mentioned, moreover, by the applicants and expressed during the evaluation of their bids in the light of criteria 1.2, 1.4, 3.3, 3.4 and 3.5. Finally, inasmuch as the applicants put forward arguments in order to challenge the merits of some of the comments they refer to, in the part of their pleadings relating to their second plea and in that relating to the third plea, concerning the assessment of their bids, in the light of criteria 1.1, 1.2, 1.4, 1.5, 3.2, 3.4, 3.5 and 4.2, or concerning the assessment of another bid, in respect of which the same comment was made, in the light of criteria 1.3 and 3.3, they may not rely on a breach of the obligation to state reasons. Those arguments demonstrate, moreover, that the applicants were able to understand, in that regard, the PO’s reasoning.
63 Secondly, the PO was not required, contrary to what the applicants submit, to state what was better in the other successful tenderers’ bids or to outline the reasons therefor. The applicants’ arguments relating to the evaluation committee’s comments in the context of the evaluation of their bids and of those of the other successful tenderers, in the light of criteria 3.1, 3.2 and 4.2, amount to a request for a thorough comparative analysis of the bids and should therefore be rejected (see paragraph 53 above). With respect to the applicants’ argument claiming, with respect to the evaluation of the bids in the light of criterion 4.2, that no comments were made in the evaluation report on the delivery management approach proposed by Sword-Siveco, it is sufficient to note that that tenderer was not selected in the cascade for lot 4.
64 In the light of all the foregoing considerations, the present plea must be dismissed.
B – The second plea, alleging a breach of the tender specifications as a result of the application of an award criterion infringing Article 97 of the Financial Regulation and Article 138 of the implementing rules
[omissis]
C – The third plea, alleging manifest errors of assessment, vague and unsubstantiated comments by the evaluation committee, subsequent amendments of the award criteria indicated in the call for tenders, criteria which were not announced in good time to tenderers and the conflation of the selection and award criteria
[omissis]
377 Since the applicants have been unsuccessful in all their pleas in law relating to annulment, this action must be dismissed in so far as it seeks the annulment of the decision to rank the applicants’ bids in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3.
378 With respect to the action for annulment of the decisions awarding the contracts at issue to the other successful tenderers in so far as they relate to their ranking, it must be rejected following the dismissal of the action for annulment of the decisions mentioned in paragraph 377 above, to which they are closely connected (see, by analogy, judgments of 18 April 2007 in Deloitte Business Advisory v Commission, T‑195/05, ECR, EU:T:2007:107, paragraph 113, and 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 170).
[omissis]
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.
Delivered in open court in Luxembourg on 8 July 2015.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
I – The action for annulment
A – The first plea in law, alleging breach of the obligation to state reasons due to the failure to disclose the relative merits of the bids submitted by the successful tenderers and non-compliance with the provisions of Article 100(2) of the Financial Regulation
B – The second plea, alleging a breach of the tender specifications as a result of the application of an award criterion infringing Article 97 of the Financial Regulation and Article 138 of the implementing rules
C – The third plea, alleging manifest errors of assessment, vague and unsubstantiated comments by the evaluation committee, subsequent amendments of the award criteria indicated in the call for tenders, criteria which were not announced in good time to tenderers and the conflation of the selection and award criteria