JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
3 March 2011 (*)
(Public service contracts – Tender procedure – Provision of IT and user support services relating to the Community emissions trading scheme – Rejection of bid – Award criteria – Obligation to state the reasons on which the decision is based – Manifest error of assessment – Equal treatment – Transparency)
In Case T‑589/08,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, P. Katsimani and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by E. Manhaeve and N. Bambara, acting as Agents, and by P. Wytinck and B. Hoorelbeke, lawyers,
defendant,
APPLICATIONS first, for the annulment of the decisions of the Commission of 13 October 2008 to reject the bids submitted by the applicant for each of the three lots relating to open Invitation to Tender DG ENV.C2/FRA/2008/0017 ‘Framework contract for Emission Trading Scheme – CITL/CR’ (2008/S72‑096229) and to award those contracts to another tenderer and second, a claim for damages,
THE GENERAL COURT (Eighth Chamber),
composed of M.E. Martins Ribeiro, President, A. Dittrich (Rapporteur) and N. Wahl, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 30 June 2010,
gives the following
Judgment
Facts
1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company incorporated under Greek law, operating in the field of information technology and communications. It regularly participates in invitations to tender issued by European Union institutions.
2 On 31 March 2008, the Directorate-General for the Environment of the Commission of the European Communities issued an invitation to tender under the reference DG ENV.C2/FRA/2008/0017 ‘Framework contract for Emission Trading Scheme – CITL/CR’ (‘the invitation to tender at issue’). A contract notice was published in the Supplement of the Official Journal of the European Union on 12 April 2008, (OJ 2008 S 72, p. 96229).
3 The invitation to tender at issue concerned a framework contract for the provision of information technology services and user support in connection with the Community Independent Transaction Log (‘the CITL’) and the Community Registry (‘the CR’). The CITL and the CR are part of the Greenhouse Gas Emissions Trading Scheme. That scheme is the cornerstone of the European Union’s strategy for meeting its targets for the reduction of greenhouse gas emissions in the light of the commitments laid down in the Kyoto Protocol. To that end, Community legislation established, on the one hand, the CITL, which is a software platform which works like a clearing house that records and checks the issue and transfer of emission allowances that take place in the registries, and, on the other hand, the CR, which is a software platform which works like a bank account that records emission allowances and makes it possible to trade them. That system has been in place in the European Union since 2005.
4 The general objective of the contract was, in particular, to provide technical support in the context of the CITL and the CR. The framework contract covered support services for the CITL, and the CR and users. Each area relates to a specific lot in the invitation to tender at issue, which therefore consisted of three lots.
5 On 28 May 2008 the applicant submitted its tender in response to each of the three lots in the invitation to tender at issue.
6 In three letters of 13 October 2008 (one for each lot), DG ‘Environment’ informed the applicant that none of its bids had been selected in the procurement procedure, on the ground that its proposals did not obtain a sufficient number of points to satisfy the award criteria. More particularly, the applicant’s tenders did not obtain the minimum number of total points. The Commission therefore decided to reject the bids submitted by the applicant for each of those three lots and to award the contract for each lot of the invitation to tender at issue to another tenderer (‘the contested decisions’).
7 On 14 October 2008, the applicant sent three letters to the DG ‘Environment’ requesting to be provided, with respect to each lot of the invitation to tender at issue, with the name of the successful tenderer and the name of its partners and subcontractors if any, the scores awarded for each award criterion in the successful tenderer’s technical proposal and a thorough analysis of the strong and weak points of the applicant’s tender for each award criterion compared with all the other offers fulfilling the conditions required, as well as a detailed copy of the evaluation committee’s report and the financial offer of the successful tenderer.
8 DG ‘Environment’ replied to the applicant by three separate letters dated 28 October 2008, each referring to a different lot, informing the applicant that all the lots of the invitation to tender at issue had been awarded to Trasys SA, the company which had developed the initial software for the CITL and the CR. By the same letters DG ‘Environment’ provided the applicant with the scores awarded in each award criterion for its technical offer and that of the successful tenderer and the latter’s financial offer.
9 The points awarded by the evaluation committee can be summarised as follows:
Lot 1 (CTL) | Max. | Min. | EuroDyn | Trasys |
Understanding | 30 | 18 | 18 | 27 |
Methodology | 40 | 24 | 26 | 37 |
Project management and availability | 30 | 18 | 16 | 27 |
Total | 100 | 65 | 60 | 91 |
Lot 2 (CR) | Max. | Min. | EuroDyn | Trasys |
Understanding | 30 | 18 | 21 | 27 |
Methodology | 40 | 24 | 25 | 37 |
Project management and availability | 30 | 18 | 17 | 28 |
Total | 100 | 65 | 63 | 92 |
Lot 3 (User Support) | Max. | Min. | EuroDyn | Trasys |
Understanding | 30 | 18 | 20 | 28 |
Methodology | 40 | 24 | 25 | 35 |
Project management and availability | 30 | 18 | 16 | 28 |
Total | 100 | 65 | 61 | 91 |
10 By letters of 27, 30 and 31 October 2008, the applicant informed DG ‘Environment’ of its intention to bring an action. The applicant also urged it to suspend signature of the contract and to review the evaluation committee’s assessment.
11 In response to the applicant’s letters, DG ‘Environment’ sent the applicant a letter on 17 November 2008 informing it that the Commission stood by its initial decision. It also stated that the contracts had been awarded and that the public procurement procedure would not be annulled. The Commission concluded the contract with Trasys on 29 October 2008.
Procedure and forms of order sought
12 By application lodged at the Registry of the Court of First Instance on 22 December 2008, the applicant brought the present action.
13 Acting on a report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and to put a number of questions to the Commission. The parties presented oral argument and replied to the questions put by the Court at the hearing on 30 June 2010.
14 The applicant claims that the Court should:
– annul the contested decisions;
– order the Commission to pay it EUR 920 000, which may be increased to EUR 1 700 000, depending on the final amount of the CITL project, for the harm suffered on account of the tendering procedure at issue;
– order the Commission to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if it is rejected.
15 The Commission contends that the Court should:
– declare the action for annulment unfounded in its entirety;
– declare the action for damages unfounded or, in the alternative, limit the maximum amount of damages claimed to EUR 230 000, which may be increased up to EUR 450 000, depending on the final amount of the CITL project in the first year;
– order the applicant to pay the costs.
Law
16 The applicant has brought three actions for annulment corresponding to the contested decisions. In addition, it has brought a claim for damages for the harm allegedly suffered.
A – Preliminary remarks
17 First of all, the Commission makes three preliminary comments concerning the legal framework and assessment.
1. Arguments of the parties
18 First, the Commission submits that, although the applicant has referred on several occasions in its application to 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) and Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), it should be noted that those directives are not applicable to procedures for the award of public contracts launched by the Commission.
19 Second, the Commission submits that the applicant’s argument that the General Court should not limit its review to manifest errors of assessment must be rejected.
20 Third, the Commission submits that some of the applicant’s claims are inadmissible on account of the fact that it has no interest in bringing proceedings. Since the contested decisions are all based on the same ground, namely that the applicant’s tender did not obtain the required minimum number of points with respect to the third award criterion, the arguments concerning possible manifest errors of assessment or alleged breaches of the principle of equal treatment or the principle of transparency, as regards the first and second award criteria, are therefore irrelevant.
21 In the reply, the applicant claims that Community institutions and bodies are indeed subject to the public procurement directives and to the general principles set out therein. Furthermore, the applicant takes the view that all its arguments with respect to all the lots, criteria and pleas need to be considered, because independently of whether they lead to the annulment of the decision of the evaluation committee, they contribute to show the ‘irrational’ nature of the evaluation process.
2. Findings of the Court
a) The applicable law
22 First, as regards the law applicable to award procedures for public contracts launched by the Commission, it must be stated that they are subject to the provisions of Title V of Part One 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’) and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (‘the Implementing Rules’).
23 Those provisions are admittedly based on European Union directives, in particular, with respect to supply and works contracts, Directive 89/665 and Directive 2004/18 (see, to that effect, judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 1). Nevertheless, it must be stated that, according to Article 84 of Directive 2004/18 and Article 6 of Directive 89/665, those directives are addressed only to the Member States and that, therefore, they govern only the public procurement procedures for the institutions of the Member States. It follows that, although the interpretation of those directives by the Community Courts may be useful, only the provisions laid down in the Financial Regulation and the Implementing Rules are applicable in this case.
b) The scope of judicial review
24 Second, as regards the scope of judicial review in this area, it is clear from settled case-law that the Commission enjoys a broad margin of assessment 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 is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147; Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47, and Evropaïki Dynamiki v Commission, paragraph 89).
c) The alleged lack of interest in bringing proceedings
25 Third, as regards the alleged lack of interest in bringing proceedings, the Commission stated at the hearing that it was the relevance of the pleas relating to the first and second award criteria that it actually intended to challenge.
26 In that connection, it must be stated that, contrary to the Commission’s assertions, the contested decisions are not based on a single ground, namely that the applicant’s tender did not obtain the minimum number of points required for the third award criterion. The contested decisions are based on two grounds, as the tenders had to reach not only the minimum thresholds for each criterion but also the minimum number of points.
27 As is apparent from the table in paragraph 9, the applicant’s tender reached or exceeded the minimum thresholds for ‘Understanding’ and ‘Methodology’ for each lot, but not for ‘Project management and availability’. It also appears from that table that the total minimum threshold (65 points) is more than the sum of the three individual minimum thresholds (18 + 24 + 18 = 60 points). Reaching the threshold provided for criterion No 3 was therefore a necessary, but not sufficient condition, to avoid the automatic exclusion of the tender. Consequently, in order to evaluate the relevance of the pleas relating to the first and second award criteria, it must be ascertained whether, taking account of the maximum number of points attributable with respect to the third criterion, it was theoretically possible for the applicant to reach the total minimum threshold when the points awarded by the evaluation committee for the other criteria remain unchanged. In that connection, it is clear from the table in paragraph 9 that, with respect to the third criterion, the applicant was awarded 16, 17 and 16 points respectively and that it needed 5, 2 and 4 points respectively to reach the total minimum threshold. Given that the maximum number of points which could be awarded for the third criterion was 30, it is clear that it was theoretically possible for the applicant to reach the total minimum threshold even if the points awarded for the other criteria remained unchanged.
28 It follows that, in the action for annulment, it is not necessary to analyse the arguments relating to criteria Nos 1 and 2. There are only two possibilities: either one or more of the applicant’s pleas relating to the third criteria must be accepted, in which case the contested decision at issue must be annulled because it is conceivable that after a fresh evaluation of that criterion the applicant would have sufficient points not only to reach the threshold fixed for criterion No 3 but also the total minimum threshold. Alternatively, the applicant’s pleas concerning that criterion must be rejected, in which case, the fact that it did not obtain the minimum number of points required for the third award criterion would be sufficient on its own to reject the applicant’s tender, and therefore its annulment action would be unfounded.
29 In the second scenario (rejection of pleas), its claim for damages would also be unfounded. On the other hand, the mere fact that one or more of the applicant’s pleas relating to the third criterion was accepted would not automatically mean that its annulment action was well founded. In that case, as the Commission itself observes, it would also be necessary to analyse the other criteria.
B – The applications for annulment
30 Given that the invitation to tender at issue is divided into three lots, which are the subject of three separate tenders and three rejection decisions, the examination of the applications for annulment should be structured in accordance with those lots.
1. Lot No 1 (CITL)
31 As regards Lot No 1, the applicant puts forward two pleas in law alleging, respectively, manifest errors of assessment and breach of the principles of equal treatment and transparency, which concern the three award criteria.
32 However, having regard to the preliminary remarks concerning the relevance, in the context of the action for annulment, of the arguments relating to the first two award criteria (paragraph 28), it is sufficient to set out, in this part of the present judgment, the parties’ arguments relating to the third criterion. In order to better understand those complaints, it is also appropriate to set out first of all extracts from the evaluation committee’s report.
a) The evaluation committee’s report
33 The evaluation committee’s report, as regards the third award criterion ‘Project management and availability’, states as follows:
‘The suggested number of days to execute the work of the task seems unrealistically low; the suggested number of days is 25% lower compared to the indicative estimate provided in the call for tender [at issue]. This raises serious doubts as to whether the objectives can be delivered appropriately. In its offer the tenderer states that “the [e]nvironmental experts will provide technical expertise in relation to the [emission trading scheme], national registries, registries regulations, CRs and CITL issues, factors that will be taken into consideration during the preparation of offers as well as during the implementation of the specific projects. The role of the [environmental experts] is quite essential for the proper carrying out of the requested services in accordance with the EU regulations concerning the Emission Trading Schemes, the registries regulations, the CITL and CR”. However, the heading “project management” does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specification]’.
b) The first plea: manifest errors of assessment and insufficient reasoning of the decision to reject the tender
34 As regards the third award criterion (‘Project management and availability’), the applicant raises three complaints alleging the existence of manifest errors of assessment. Furthermore, with respect to the third part of the plea, the applicant relies on inadequate reasoning.
Arguments of the parties
35 First, as regards the evaluation committee’s assertion that ‘the suggested number of days to execute the work of the task seems unrealistically low’, the applicant states that the committee based its decision to award marks to the applicant below the minimum threshold because, in its bid, it had proposed 45 person-days for project management, whereas the ‘indicative’ estimate included in the tender specifications was 60 person-days. Thus, the evaluation committee only took account of the number of person-days provided for and ignored the fact that this was a fixed-price bid, by which the applicant undertook to provide specific results. Furthermore, its estimate of the number of person-days required is realistic in the light of its experience. In that regard, it adds in its reply that, contrary to the Commission’s assertions, the experience of its experts was ‘relevant for the assessment’. By pointing out that the CITL is a real-time system, the Commission introduces that term for the first time, modifying a posteriori the content of the tender specifications. Lastly, the evaluation committee is wrong to claim that the applicant offered only 45 person-days, as it would have deployed a team of experts offering their assistance to the whole project team horizontally. Consequently, a considerable number of person-days would be added to the 45 person-days for quality assurance and environmental experts.
36 Second, the evaluation committee wrongly held that the applicant had proposed to involve environmental experts in the contract implementation without including those experts in the project team for the specific task constituted by the invitation to tender at issue (the ‘specific task’). The specific task is a purely technical information technology task, which does not require any involvement of environmental experts. Furthermore, the tender specifications explicitly obliged tenderers to use only the types of profiles proposed therein. The tender specifications did not include Environmental and Quality Assurance experts, and thus it was not possible to present them as such. However, since the invitation to tender at issue concerned the award of a framework-contract, the applicant’s bid provides for the involvement of environmental experts for the whole of that contract. Their approach is horizontal as is the approach of, for example, the quality manager, particularly in the light of Request for Clarification 24. However, the evaluation committee decided arbitrarily and wrongly to evaluate criterion No 3 based on the requirements laid down in the context of criterion 2, thereby introducing a posteriori a new evaluation criterion.
37 Third, the applicant observes that, in its tender, unlike the evaluation of the successful tenderer’s bid, the presence of a quality manager was ignored by the evaluation committee. In so far as the Commission stated in the defence that other elements had been taken into account in the course of the evaluation but they were not set out in the summary of the evaluation report, it admits that the reasoning is inadequate.
38 The Commission disputes those arguments.
Findings of the Court
39 First of all, it should be noted that in the context of the action for annulment only the arguments relating to the third award criterion are relevant. The applicant’s plea is broken down into three parts, referring to the number of days indicated for carrying out the works, the role of the environmental experts and the presence of a quality manager.
– The number of days indicated for the performance of the works
40 In its report, the evaluation committee observed that ‘[t]he suggested number of days to execute the work of the tasks seem[ed] unrealistically low’ and that ‘this raise[d] serious doubts as to whether the objectives [could] be delivered appropriately’.
41 In that connection, it must be recalled that, in its tender, the applicant had suggested 45 person-days for the management of the project, while the estimate in the tender specifications was 60 person-days. As the evaluation committee noted in its report, the number of person-days suggested by the applicant is therefore 25% lower than the indicative estimate provided in the invitation to tender at issue. The Court considers, and the applicant admitted at the hearing, that such a discrepancy requires a convincing explanation.
42 First, in that connection, the applicant relies on the fact that this was a fixed-price bid. Therefore, it seems to indicate that, from a strictly financial point of view, the number of person-days is unimportant to the Commission, because any underestimate would be entirely the applicant’s responsibility. However, in the present context, the indication of the number of person-days provided for is relevant, principally in order to assess the reliability of the applicant’s offer. It is to that aspect that the evaluation committee’s remark refers when it stated that the number of days indicated for the performance of the works was 25% lower than the indicative estimate in the call for tenders at issue. In that regard the Commission harboured ‘serious doubts’. Taking account of the fact that that estimate was based on the Commission’s past experience with respect to the proper implementation of similar tasks, it must be concluded that such an assessment is not manifestly incorrect. Finally, in the context of a fixed-price bid, fewer person-days does not represent an advantage to the Commission.
43 Second, the alleged experience of the applicant’s experts is also unable to explain that discrepancy. In that regard, however, the Court does not share the Commission’s view that the applicant’s experience is irrelevant for the assessment of the award criteria. Although it is true, in general, that that factor is taken into account in order to assess whether the bid is able to satisfy the selection criteria and not in the assessment of the award criteria, it must be observed that the applicant does not rely on its experience as an award criterion in itself, but only in order to justify the reduced number of person-days provided for. In that context, more experience would, in principle, be able to explain such a difference between their estimates.
44 However, the applicant has not established that its team had more experience. In that connection, the Commission states that the experience relied on is unrelated to software similar to those used in the CITL and the CR, namely real-time systems. The applicant has indeed challenged that assertion, but its arguments are not convincing. First of all, its assertion that the Commission introduced the term ‘real-time systems’ for the first time in its defence, amending a posteriori the content of the tender specifications, is unfounded. The Commission merely pointed out that the experience relied on concerned ‘information gathering and dissemination software/websites’, that ‘[n]one of these software [was] similar to a real-time system like the CITL, and none of these [was] subject to Emission Trading Scheme rules and regulations.’ Therefore, it took the view that ‘the alleged experience was not relevant for the assessment of the question whether or not the team could perform the requested services in 45 days’. Since the applicant had mentioned its experience, the Commission evaluated it in order to ascertain whether it could explain the discrepancy found. The fact that the software used were real-time systems was only one point among others. Furthermore, the Commission rightly states that anyone who has experience of the Emissions Trading Scheme, the CR or the CITL is aware that the CITL is a ‘real-time’ system.
45 Moreover, the applicant’s arguments are contradictory, in that it states that it and its experts satisfied the selection criteria and that nothing related to their experience should be raised in the context of the award phase. However, it raised that issue itself. Finally, even assuming that the experience relied upon related to the software concerned, the applicant did not – apart from one reference at the hearing to the 30 years of experience of a university professor who was put forward as project manager – explain why the experience of its experts was not only relevant but so superior as to justify the substantial discrepancy between the Commission’s estimate and the applicant’s proposal. In those circumstances, the Commission was entitled to take the view that the experience relied upon did not enable the team’s capacity to perform the required services in 45 days to be ascertained.
46 Third, as regards the assertion that, in fact, the applicant was proposing more than 45 person-days because it provided for a team of experts offering their assistance to the whole project team horizontally and that, therefore, the 45 person-days were supplemented by a substantial number of additional persons-days provided by quality management and environmental experts, it must be observed that the applicant did not indicate the number of person-days that that would have represented. The fact that the applicant has presented them as being part of the team, without explaining what portion of the work they were going to undertake, is contradictory or even evasive. It was of no assistance to the Commission for the purpose of assessing the amount of work which would be performed by those experts or their precise tasks.
47 In those circumstances, the Commission has not committed a manifest error of assessment in taking the view that the number of days indicated by the applicant for the performance of the works for the project seemed unrealistically low and that that gave rise to serious doubts as to the possibility that it would properly deliver the objectives. That branch of the plea must therefore be rejected.
– The role of the environmental experts
48 In its report, the evaluation committee stated as follows:
‘The role of the [environmental experts] is quite essential for the proper carrying out of the requested services … Yet the project management does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specification].’
49 The applicant does not deny the absence of an environmental expert in the team for the specific task. However, it challenges both the need to use environmental experts and the possibility of including such experts in the team. According to the applicant, the evaluation committee assessed Criterion No 3 on the basis of the constraints formulated in the context of Criterion No 2, thereby introducing a posteriori a new evaluation criterion.
50 As regards the need to provide environmental experts, the Court considers that the Commission has shown that the task at issue was not purely an information technology task and that environmental expertise was therefore necessary. The execution of the specific task required knowledge of the relevant rules and regulations on the presentation of reports on the CITL and the ability to give advice on that subject. Furthermore, the applicant’s assertion is contradictory since environmental experts are in fact provided for in its tender. In that regard, the specific task does not differ qualitatively from the specific services to be provided by the successful tenderer.
51 As regards the possibility of including environmental experts, it must be stated that the tender specification explicitly required the tenderers to employ only the types of profile suggested therein and that it did not provide, at least expressly, for environmental experts. Having regard to the constraints in the tender specifications, the applicant indeed provided for the use of environmental experts in its tender, but it anticipated that they would be used only in the context of the overall framework contract and that their approach would be horizontal. Therefore, it did not include them in the team responsible for the specific task in the tender specifications.
52 The question thus arises whether, notwithstanding the remark on page 8/57 of the tender specifications that ‘the offer from the contractor must conform to the profile description with the requested level of expertise and to the specific requirements indicated in the request form’ and the fact that it did not provide for any environmental experts, it was possible to include those experts in the tender formulated by one or other tenderers. If the tender specification had excluded the possibility of including profiles other than those set out on page 8/57 the assessment of the evaluation committee would be manifestly incorrect.
53 Therefore, the Court put a written question in that regard to the Commission. In its reply and at the hearing, the Commission submitted, first, that the tender specification did not stipulate that it was forbidden to include additional profiles. Second, it submitted that anything which could constitute an improvement of the tender was permitted. Although the Commission did not invite the tenderers to add any extra profiles, it took the view that an additional profile could thus represent an added value. On page 28/57, the tender specifications state that ‘tenders should elaborate on all points addressed in order to score as many points as possible’. Third, it must be held that both the successful tenderer and the applicant itself included additional profiles in their tenders.
54 Therefore, it must be held that the remark quoted in paragraph 52 does not prevent the inclusion of experts not provided for by the heading ‘Definition of profiles’ which precedes that remark.
55 In those circumstances, the Court considers that the Commission is correct in asserting that, in the absence of an accurate description of the manner in which the environmental experts would be employed in the team for the specific task, it would be impossible to evaluate how they would be integrated into the team and therefore whether the proposed project management would be able to achieve the required objectives. That assertion also referred to the third award criterion, so that no new evaluation criterion was introduced a posteriori.
56 Those findings are not called into question by Clarification 24. It should be recalled that the applicant’s question which gave rise to that clarification reads as follows:
‘3. Could you please clarify if the “Project Management and Availability” chapter of the document should refer to the Tenderer’s Project Management methodology for the management of the overall framework contract (e.g. service management, request handling etc.) or its methodology for the management of the ‘sample work request’ of each lot?’
57 The Commission replied as follows: ‘It should refer to the overall Project Management of each lot’.
58 It must be held that neither the applicant’s question nor the Commission’s reply are very clear. The applicant’s question was confusing in so far as it had used the words ‘overall framework contract’ in the first alternative and ‘lot’ in the second. The applicant states that, by ‘framework contract’ it meant ‘lot’, because each lot represents a separate framework contract. However, as the Commission stated at the hearing, the words ‘framework contract’, especially in combination with ‘overall’ may also be understood not only as an individual ‘lot’, but also as all three lots, since the invitation to tender at issue concerned a ‘framework contract’ comprising of three lots. For that reason, the Commission thought that the term ‘lot’ in its reply meant a reply in favour of the second part of the alternative submitted to it. If the Commission thus misunderstood the question, the fact remains that that error is also due to the formulation of the question.
59 In those circumstances, it must be held that both the question and the reply supposed to clarify the initial statement are so ambiguous that neither the applicant’s interpretation nor that put forward by the Commission are convincing. Therefore, the applicant cannot rely on Clarification 24 in order to found this part of the plea, which must, therefore, be rejected.
– The presence of a quality manager
60 It is common ground that the evaluation committee’s report does not mention the team responsible for quality suggested by the applicant. Although the latter (also) mentions that fact in the part of the application entitled ‘Manifest errors of assessment’, it does not put forward any argument in that respect, but points to ‘blatant discrimination’ between the tenderers in the evaluation process concerned. According to the Commission, that omission does not mean that the evaluation committee failed to take account of that element. The applicant replies that such a statement amounts to an admission that the reasoning in the contested decision concerned is inadequate.
61 Therefore, it is appropriate to examine the extent of the Commission’s obligation to state reasons for its decision on this issue. The complaint alleging discrimination will be examined in the context of the second plea (paragraph 74 et seq.).
62 As stated in paragraph 22 et seq., public procurement procedures launched by the Commission are subject to the provisions of the Financial Regulation and of the Implementing Rules and, as regards the obligation to state reasons, the provisions laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.
63 It is apparent from those provisions and the case-law of the Court, that the Commission fulfils its obligation to state reasons if it, first, informs an unsuccessful tenderer immediately of the reasons for the rejection of its tender and then, if expressly requested to do so, provides to tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47 and the case-law cited).
64 In addition, it should be noted 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, 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 Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
65 In the present case, the Commission communicated to the applicant the reasons for the rejection of its tender and provided, at the latter’s request, the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Therefore, it has fulfilled its obligations under the rules applicable. It is true that it did not mention the quality manager provided for in the applicant’s bid. However, given the brevity of the evaluation report, it could not mention all the details of that bid. In the light of the case-law and the applicable provisions, the mere fact that there was no mention in the evaluation report of the presence of a quality manager cannot constitute defective reasoning.
66 Therefore, the third part and, consequently, the first plea in its entirety must be rejected.
c) The second plea, alleging the addition of a new award criterion, breach of the principle of equal treatment and insufficient reasoning of the decision to reject the tender
Arguments of the parties
67 As regards the third award criterion (‘Project management and availability’), the applicant puts forward three complaints, alleging the introduction a posteriori of a new award criterion, breach of the principle of equal treatment and a failure to state adequate reasons.
68 First, the evaluation committee assessed criterion No 3 based on the requirements set out in the context of criterion No 2, thereby introducing a posteriori a new evaluation criterion, contrary to the tender specifications and the guidelines of DG ‘Environment’.
69 Second, the evaluation report mentions, with respect to the successful tenderer, the fact that ‘the presence of a quality engineer was positively evaluated’, while the presence of a quality manager in the structure proposed by the applicant was totally ignored by the evaluation committee, contrary to the principle of equal treatment.
70 Third, the applicant pleads a failure to state adequate reasons in so far as the evaluation committee failed to explain in its report precisely what DG ‘Environment’ required when using the word ‘recommendations’. Moreover, the Commission did not reply adequately to its requests for clarifications.
71 The Commission challenges those arguments.
Findings of the Court
72 The applicant’s plea as regards the third award criterion is divided into three parts.
– The alleged introduction a posteriori of a new award criterion
73 By the first part, the applicant submits that the evaluation of the third criterion carried out by the Commission refers to a requirement requested with respect to the second award criterion. That complaint must be understood as meaning, once again, that the applicant defends its decision not to include the environmental experts in the team responsible for the specific task but to involve them horizontally. Essentially, that part of the second plea corresponds therefore to the second part of the first plea. Therefore, it must be rejected on the same grounds (see paragraph 48 et seq.).
– The alleged breach of the principle of equal treatment
74 In the evaluation report for the successful tenderer, the evaluation committee states that ‘… the offer suggests including in the team a maintenance leader and a quality engineer which is an interesting idea’. Conversely, the presence of a quality engineer in the applicant’s offer was not noted in the evaluation report on the applicant’s tender. The applicant therefore relies on breach of the principle of equal treatment.
75 According to that principle, which is a general principle of law, the Commission may not treat comparable situations differently and different situations may not be treated in the same way unless such treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28).
76 In that connection, the Commission contends that the failure to mention a quality engineer in the evaluation report does not mean that that element was not taken into consideration by the evaluation committee. However, that statement cannot be proved or disproved, since the evaluation report does not contain any evidence in that respect. The fact remains that the presence of such an engineer was positively evaluated in the case of the successful tenderer and not in the applicant’s case.
77 However, there is an objective justification for that difference in treatment. In the applicant’s tender, since that expert was not included in the team responsible for the specific task contained in the tender specifications, and since neither his role or participation in that task were clearly explained, the Commission was unable to take account of the quality engineer for the purpose of evaluating the tender proposed by the applicant. Therefore, his presence could not be positively evaluated.
78 On the other hand, as the evaluation report states and as the Commission observed in its reply to the Court’s written questions, the successful tenderer, Trasys, suggested including a ‘quality’ engineer in the team responsible for the specific task. In addition to the suggestion to include a separate ‘quality’ engineer, the successful tenderer’s team included several members who have both technical experience and proven experience of the Emission Trading System and/or CR, CITL and Member State Registry’s software, which also helped to ensure the maintenance of quality. Several of its members having experience in both fields were involved in the performance of the specific task, as established in the tender specifications. In other words, unlike the applicant, the successful tenderer included the additional profile of the quality engineer in the description of the specific tasks and therefore explained how that person would be involved in the performance of those tasks.
79 Consequently, the plea alleging breach of the principle of equal treatment must be rejected.
– The alleged insufficiency in the reasoning of the decision rejecting the tender
80 As far as concerns the answers to the requests for clarification, it must be stated that, even assuming that the Commission’s answer was insufficient, that fact cannot constitute a breach of the obligation to state reasons. The obligation to state reasons under Article 296 TFEU applies to final decisions and not to such answers. That part of the plea is therefore ineffective. At most, an inadequate answer might constitute a breach of the principles of sound administration or due care. Although it is true that the Commission did not give detailed answers to all the questions, it must be observed that it has no legal obligation to reply to each request for clarification (judgment of 10 September 2008 in Case T-59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 144 to 146). Nonetheless, it answered each of the applicant’s requests promptly.
81 As far as concerns the reasoning of the contested decisions, it is appropriate to refer to paragraphs 61 to 65, in which the Court concluded that the Commission had satisfied its obligations in that regard.
82 Therefore, this part of the plea and therefore the applicant’s second plea must be rejected.
83 It follows from all of the foregoing that the action must be dismissed as regards Lot No 1 and, therefore, the action against the decision to award that contract to the successful tenderer.
2. Lot No 2 (CR)
84 As in the context of Lot No 1, the applicant puts forward two pleas in law, alleging, respectively, manifest errors of assessment and breach of the principles of equal treatment and transparency.
a) The evaluation committee’s report
85 The evaluation committee’s report, as regards the third award criterion ‘Project management and availability’, states as follows:
‘In [its] offer the tenderer states that “… the role of the [environmental experts] is quite essential for the proper carrying out of the requested services …”. However, the section “Project management” does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specifications]. In that offer there is no Tester (or Test manager) proposed for the CR, although this is essential for the proper execution of the task.’
b) The first plea: the existence of manifest errors of assessment
Arguments of the parties
86 As regards the third award criterion (‘Project management and availability’), the applicant puts forward two complaints.
87 First, the applicant argues that the role of the environmental experts is to provide horizontal advice and support to the implementation team. They are not mentioned in the context of each specific task, since they participate in the whole framework contract and the costs occasioned by their involvement are covered by the applicant.
88 Second, it submits that the evaluation committee’s comment that there is no tester (or test manager) in its bid is unfounded. According to the applicant’s tender, the tests were to be performed by the analyst programmer, as set out in the tender specifications and in particular Chapter 7.3 ‘Description of Profiles’. The applicant’s choice is justified, in particular, by the fact that an analyst programmer has more experience than a tester and has a deeper understanding of the specific task. In that regard, Section 7.3.8, which sets out the description of the analyst programmer profile, refers under nature of tasks to: ‘Write, maintain and test programs, ... Assist with the testing of such programs, ... minimum 3 years experience in IT’. Moreover, the estimated effort was too low to justify the presence of a separate test manager.
89 The Commission challenges those arguments.
Findings of the Court
90 The applicant’s plea, as regards the third criterion, consists of two parts concerning the role of the environmental experts and the supposed absence of a tester in its tender.
91 First, as far as concerns the integration of the environmental experts in the applicant’s team, it is appropriate to refer to the reasoning set out in paragraph 48 et seq.
92 As regards the absence of a tester in the applicant’s tender, it suffices to observe that, with respect to Lot No 2, the tender specifications provide for the presence of a tester and that the applicant’s tender does not contain any person with the specific profile of a tester. In those circumstances, the evaluation committee did not commit a manifest error in holding that ‘there is no tester … proposed … for the CR’.
93 Moreover, even assuming that it were possible to replace a tester by an analyst programmer, the Commission rightly states that, in the present case, it was relevant to integrate an independent tester into the team because, first, the specific task consisted essentially in testing a new software application and, second, it was preferable to have an independent tester to carry out tests on the work done by the analyst programmer. It is apparent from the description of the tasks of the analyst programmer set out in the applicant’s tender that he was also to perform other tasks: ‘[An AP] will carry out the actions required for the upgrade. … Also s/he will test the components … Furthermore, s/he shall perform any adaptations to the code …’.
94 It follows that the first plea must be rejected.
c) The second plea: breach of the principles of equal treatment and transparency
Arguments of the parties
95 In the context of the third award criterion (‘Project management and availability’), the applicant observes that, in the evaluation report of the successful tenderer, the presence of a ‘quality’ engineer was positively evaluated, while that presence, in the organigram proposed by the applicant, was ignored.
96 The Commission observed that the applicant’s assertion is incorrect, since the evaluation of the third criterion for the successful tenderer did not mention a quality engineer. In the second plea, the applicant simply replicated by mistake a complaint relating to the evaluation of Lot No 1.
Findings of the Court
97 The single complaint, which concerns the third award criterion raised by the applicant in the context of the second plea, is the alleged mention of a ‘quality’ engineer in the evaluation of the successful tender for Lot No 2. As the Commission rightly observed, it must be held that that evaluation makes no mention of a ‘quality’ engineer.
98 Therefore, this plea must be rejected and, consequently, the action in so far as it concerns Lot No 2 and the action against the decision to award the contract to the successful tenderer.
3. Lot No 3 (User Support)
99 As regards Lot No 3, the applicant puts forward a single plea alleging manifest errors of assessment.
a) Report of the evaluation committee
100 The evaluation committee’s report, as regards the third award criterion ‘Project management and availability’, states as follows:
‘The presented team for this lot has only 3 team members so there is no backup foreseen per profile, which does not give confidence on the reliability of the team to meet contract requirements. In [its] offer the tenderer states that “… [t]he role of the [environmental experts] is quite essential for the proper carrying out of the requested services …”.Yet the project management does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specifications].
The suggested number of days, compared to the indicative estimation necessary to execute the work of the task provided in the call for tender [at issue], is underestimated by 30%. This raises serious doubts as to whether the objectives can be delivered appropriately.’
b) The single plea alleging manifest errors of assessment
Arguments of the parties
101 As regards the third award criterion (‘Project management and availability’), the applicant puts forward three complaints.
102 First, the applicant submits that the Commission was wrong to call into question the ability of the team proposed by the applicant to meet the requirements of the contract.
103 Second, the applicant states that under its tender the environmental experts would be involved in the whole of the framework contract, that they would provide assistance during the preparation of specific contracts within the framework contract and that they would participate in the implementation of specific contracts where the work requires the provision of thematic-environmental expertise. The experts proposed in the context of the specific task have an in-depth understanding of the CITL and CR logic components. Their approach has a horizontal character, as provided for in the tender specifications and the answer to request for clarification 24. In fact, the tender specifications did not even allow tenderers to propose environmental profiles.
104 Third, the evaluation committee’s statement that the number of days suggested in the applicant’s tender for the performance of the works ‘seem[ed] unrealistically low’ and ‘raise[d] serious doubts as to whether the objectives c[ould] be delivered appropriately’ are totally unfounded, since it is a fixed price offer and the applicant presented a complete and detailed work plan under chapter 2.5 and 2.6 of its tender.
105 In its rejoinder, the applicant adds that although in the context of this plea it only raised the existence of manifest errors of assessment, taking account of the complex structure of the application, the references relevant to discrimination, lack of transparency and information must also be examined by the Court.
106 The Commission disputes those arguments.
Findings of the Court
107 As a preliminary point, it must be observed that, as the Commission stated, the arguments concerning discrimination and lack of transparency and information relating to Lot No 3 were not set out in the application. Therefore, those arguments are inadmissible pursuant to Article 48 of the General Court’s Rules of Procedure. In any event, the applicant has not substantiated them in a manner which satisfies the requirements of Article 44(1)(c) of the Rules of Procedure.
108 First, as far as concerns the argument relating to the ability of the applicant’s team to satisfy the requirements of the contract, an argument which is not presented very clearly in the application, it must be emphasised that there were only three members in that team. It is true that in its tender the applicant states that it would appoint highly qualified staff to support roles. The fact remains that none of those persons is mentioned in its tender. Therefore, the Commission was not in a position to determine whether those persons were in fact able to carry out the support work for the tasks required.
109 Second, as regards the integration of the environmental experts into the applicant’s team, it is appropriate to refer to paragraph 48 et seq. Furthermore, the applicant’s assertion that the proposed team had an in-depth understanding of the CITL and the CR is not supported by any of the previous professional experience set out in the team members’ Curriculum Vitaes.
110 Third, as far as concerns the number of days required, it must be stated that the discrepancy between the indicative estimate in the call for tenders at issue and the applicant’s offer (that is 30%) is even greater than that for Lot No 1. In paragraph 41 et seq., the Court held that such a discrepancy required a convincing explanation. As with Lot No 1, the applicant has not provided any explanation. Even assuming that the experience relied on related to the software concerned, the Court is not convinced that the experience of the applicant’s experts is not only relevant, which is contested by the Commission, but also greater to such an extent as to justify the substantial discrepancy between the Commission’s estimate and the applicant’s tender relating to Lot No 3. In those circumstances, the Commission was right to take the view that that discrepancy raised serious doubts as to the applicant’s ability to properly deliver the relevant objectives.
111 Therefore, the action in so far as it concerns Lot No 3 and, therefore, the action against the decision to award the contract to the successful tenderer must be rejected. Consequently, all the applications for annulment must be rejected.
C – The claim for compensation
112 According to settled case-law, for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged, the fact of damage and the existence of a causal link between that conduct and the damage complained of. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (see judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 133 and the case-law cited).
113 It is apparent from paragraph 111 that the applicant has not proved unlawful conduct on the part of the Commission. It follows that the claim for compensation must be rejected.
114 The action must, therefore, be dismissed in its entirety.
Costs
115 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.
Martins Ribeiro | Dittrich | Wahl |
Delivered in open court in Luxembourg on 3 March 2011.
[Signatures]
Table of contents
Facts
Procedure and forms of order sought
Law
A – Preliminary remarks
1. Arguments of the parties
2. Findings of the Court
a) The applicable law
b) The scope of judicial review
c) The alleged lack of interest in bringing proceedings
B – The applications for annulment
1. Lot No 1 (CITL)
a) The evaluation committee’s report
b) The first plea: manifest errors of assessment and insufficient reasoning of the decision to reject the tender
Arguments of the parties
Findings of the Court
– The number of days indicated for the performance of the works
– The role of the environmental experts
– The presence of a quality manager
c) The second plea, alleging the addition of a new award criterion, breach of the principle of equal treatment and insufficient reasoning of the decision to reject the tender
Arguments of the parties
Findings of the Court
– The alleged introduction a posteriori of a new award criterion
– The alleged breach of the principle of equal treatment
– The alleged insufficiency in the reasoning of the decision rejecting the tender
2. Lot No 2 (CR)
a) The evaluation committee’s report
b) The first plea: the existence of manifest errors of assessment
Arguments of the parties
Findings of the Court
c) The second plea: breach of the principles of equal treatment and transparency
Arguments of the parties
Findings of the Court
3. Lot No 3 (User Support)
a) Report of the evaluation committee
b) The single plea alleging manifest errors of assessment
Arguments of the parties
Findings of the Court
C – The claim for compensation
Costs