Case T-8/09

Dredging International NV and

Ondernemingen Jan de Nul NV

v

European Maritime Safety Agency (EMSA)

(Public service contracts – EMSA’s procurement procedures – Operation of stand‑by oil spill recovery vessels – Rejection of a tender – Action for annulment – Tender inconsistent with the subject-matter of the contract – Consequences – Equal treatment – Proportionality – Definition of the subject-matter of the contract – Failure to disclose the characteristics and relative advantages of the successful tender – Statement of reasons – Award of the contract – No right of action – Application for a declaration that the contract concluded with the successful tenderer is null and void – Claim for damages)

Summary of the Judgment

1.      European Union public procurement – Tender procedure – Subject-matter of the contract – Definition in the documents relating to the call for tenders – Compliance of a tender with that definition

(Council Regulation No 1605/2002, Arts 92, 97 and 98(4); Commission Regulation No 2342/2002, Arts 138 and 146(3), first subpara.)

2.      European Union public procurement – Tender procedure – Obligation to provide unsuccessful tenderers with information relating to the successful tender – Scope

(Council Regulation No 1605/2002, Arts 98(4) and 100(2))

3.      Actions for annulment – Interest in bringing proceedings – Natural or legal persons – Action capable of securing a benefit for the applicant – Action brought by a tenderer, eliminated before the award phase, against a contract award decision – Inadmissibility

(Art. 263, fourth para., TFEU)

1.      In the context of a procurement procedure, the circumstances linked to whether a tender is consistent with the desired contractual period and, consequently, with a budget ceiling, as set out in the contract notice and in the other documents relating to the call for tenders, relate to the conditions which a tender must satisfy in order to meet the needs of the contracting authority. Their relevance relates to the definition of the subject of the contract, referred to in Article 92 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, a provision from which it is apparent that that definition is distinct from the selection and award criteria, and the grounds for exclusion. Consequently, those circumstances do not fall within the scope of the award criteria for the purposes of Article 97 of the regulation and Article 138 of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation.

The consistency of a tender with the subject of the contract, as described in those documents, constitutes therefore a sine qua non which all tenders must satisfy in order to be taken into account in the context of a procurement procedure. Failure to meet that condition must lead to the tender being eliminated by the contracting authority, without it being compared with the other tenders submitted, as laid down in the first subparagraph of Article 146(3) of Regulation No 2342/2002.

If a contracting authority were to accept tenders that are inconsistent with the subject of the contract as defined in the documents relating to the call for tenders, that would, firstly, be incompatible with the principles of transparency and equal treatment and, secondly, make it impossible to compare those tenders with the other tenders submitted.

(see paras 57, 62-63, 66-67, 70-72, 79)

2.      In the context of a procurement procedure, where a tender is rejected before the award phase, that rejection does not, by definition, come about as a result of comparison with the successful tender. Consequently, verification as to whether the rejection was well-founded does not depend on being given access to the information concerning the successful tender.

The disclosure obligation under Article 100(2) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities is not intended to enable a tenderer to verify that all the other tenders meet the selection criteria, that they do not fall within the grounds for exclusion and that they are consistent with the subject of the contract. If that had been the intention, that provision would not have provided for disclosure solely of information concerning the successful tender.

(see paras 107-108)

3.      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. In order for such an interest to be present, the annulment of the contested measure must of itself be capable of having legal consequences and the action must be likely, if successful, to procure an advantage for the party who has brought it.

Where a tenderer’s bid is rejected by the contracting authority before the phase preceding the award decision and accordingly was not compared with the other tenders, the interest of the tenderer concerned in bringing proceedings is conditional upon the annulment of the decision rejecting his tender. It is only if the latter decision is annulled that annulment of the award decision could possibly have legal consequences for the tenderer whose tender was rejected before the phase preceding the award decision and procure an advantage for him by removing a decision adopted following a comparison which, wrongly, failed to include his tender.

On the other hand, if the application for annulment of the rejection decision is dismissed, annulment of the award decision cannot have legal consequences for a tenderer whose bid was rejected before the phase preceding the award decision. In that situation, the rejection decision prevents the tenderer concerned from being affected by the later decision awarding the contract to another tenderer.

(see paras 133-135)