Action brought on 27 May 2009 - Astrim and Elyo Italia v Commission

(Case T-216/09)

Language of the case: Italian

Parties

Applicants: Astrim SpA (Rome, Italy) and Elyo Italia Srl (Sesto San Giovanni, Italy) (represented by: M. Brugnoletti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Annul the Commission's decision which found to be incomplete the bid submitted by the applicant group in response to call for tenders No 2008 - C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre, ¹ communicated by letter of 27 March 2009 and supplemented by a communication of 3 April 2009, together with all subsequent and related decisions, including the decision to award the tender to other undertakings.

In the alternative, annul point 17 of call for tenders No 2008 - C04 005, in so far as it laid down a general criterion for elimination from the tendering procedure.

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants in this case seek the annulment of the decision by which the Commission eliminated the bid they submitted in response to call for tenders No 2008 - C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre and awarded the contract to other companies.

The applicants put forward three grounds in support of their application:

By the first ground, the applicants submit that the Commission infringed point 17 of the invitation to tender, Articles 92 and 89 of Council Regulation No 1605/2002 ² and the principles of transparency and equal treatment in so far as it decided to exclude the applicants' bid on the basis of the incorrect assessment that it was incomplete since a number of prices were not stated, whereas the applicant group deliberately chose to offer a price of zero.

By their second ground, the applicants maintain that adequate reasons are not given for the elimination provision, in so far as point 17 of the invitation to tender does provide for automatic elimination where one part of the bid has not been completed but simply provides that elimination is possible, leaving the Commission free to decide whether or not to eliminate the tenderer. Since such a decision is discretionary, adequate reasons must be given for it, which was not the case as regards the elimination provision adopted by the Commission.

By the third ground, which is relevant only in the event that the Court does not uphold the first two grounds, the applicants seek the annulment of point 17 of the invitation to tender on the ground that it infringes Articles 92 and 89 of Council Regulation No 1605/2002 in so far as that point lays down a general elimination criterion.

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¹ - OJ 2008/S 2008-274999 of 25 October 2008.

² - Council Regulation No 1605/2002 (EC, Euratom) of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities.