JUDGMENT OF THE GENERAL COURT (Third Chamber)
12 December 2012 (*)
(Public procurement – Tender procedure – Provision of IT consultancy assistance services – Rejection of a tender and decision to award the contract to another tenderer – Admissibility – Obligation to state reasons – Selection criteria – Award criteria – Compliance with award criteria laid down in the tender specifications – Manifest error of assessment)
In Case T‑457/07,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
European Food Safety Authority (EFSA), represented initially by A. Cuvillier, subsequently by S. Gabbi and D. Detken, and finally by D. Detken, acting as Agents, assisted by J. Stuyck and A.-M. Vandromme, lawyers,
defendant,
APPLICATION for annulment of the decision of EFSA of 1 October 2007 rejecting the tender submitted by the applicant in response to Call for Tenders EFSA/IT/2007/14 for IT Consultancy Assistance (OJ 2007/S 97-118626) and awarding the contract to another tenderer,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 11 July 2011,
gives the following
Judgment
Background to the dispute
1 By a contract notice dated 23 May 2007, published in the Supplement to the Official Journal of the European Union (OJ 2007/S 97-118626), the European Food and Safety Authority (EFSA) launched a call for tenders, under reference EFSA/IT/2007/14, relating to ‘IT Consultancy Assistance’.
2 Section 2.9.2 of the tender specifications (‘the specifications’) stated that the successful tender would be the one which offered the best quality/price ratio and that the evaluation procedure consisted of three stages. At the first stage the exclusion and selection criteria were applied, and only those candidates who fulfilled all the relevant criteria passed on to the subsequent stages. At the second stage, the Evaluation Committee (‘the Committee’) examined the remaining tenders against the technical award criteria and tenders obtaining less than 70% of the points were eliminated. At the third stage, the Committee examined the remaining tenders as regards price. At the fourth stage, the most economically advantageous tender was selected from the remaining tenders by adding, in a weighted manner, the score obtained in the technical evaluation and the score obtained in the financial evaluation.
3 It is apparent from Section 3.1.2 of the specifications that the IT consultancy assistance being sought was in four areas (Application Development, Back Office Systems, Network Infrastructure and Helpdesk Services), to be delivered on the basis of two types of requests for services: ‘Times and Means’ and ‘Fixed Cost’. According to Section 3.1.2.3 of the specifications, those services would be provided on the basis of a framework contract to be concluded with the successful tenderer and of specific contracts each time the need arose on the basis of a service level agreement (‘SLA’), forming part of the framework contract, which was to equal or exceed the service level requirements (‘SLR’) laid out in the specifications.
4 The selection criteria were set out in Section 3.5 of the specifications. There were three criteria: economic and financial capacity, technical capacity and professional capacity. Section 3.5.2 of the specifications covered the technical capacity criterion. It was stated in that section that the tenderer had to have the following technical capacity to perform the contract: both extensive experience in the provision of the services described in the specifications and the capacity to provide consultants compliant with the profile descriptions in the specifications. The evidence which had to be submitted to demonstrate technical capacity was, essentially, a list of the principal customers of the tenderer during the previous three years, a brief description of three major projects carried out during the previous three years, a statement indicating the total workforce of the tenderer available for EFSA, which was not to be fewer than 40 (35 persons matching the profiles in the specifications plus 5 people involved in administrative and management tasks), and 2 CVs for each of the 13 profiles detailed in the specifications, with each CV demonstrating whether the qualifications and professional experience of the consultant matched the profile requirements in the specifications for the function concerned, at least as regards the core technologies described in Annex 5 to the specifications, entitled ‘EFSA Technical Environment’ (‘the Technical Annex’).
5 Section 3.6 of the specifications covered the four award criteria, that is to say, the three technical award criteria and the price criterion. The three technical award criteria were:
(1) methodology for ensuring the quality of the workforce, to be evaluated on the basis of a technical questionnaire (‘TQ 1’), which could give rise to a maximum of 400 points (40% of the technical award criteria) (‘TAC 1’);
(2) method proposed to manage the assignment and internal organisation of the service provider, also to be evaluated on the basis of a technical questionnaire (‘TQ 2’), which could result in a maximum of 200 points (20% of the technical award criteria) (‘TAC 2’); and
(3) quality of the SLA, which had to equal or exceed the service levels specified in the SLR and was worth up to 400 points (40% of the technical award criteria) (‘TAC 3’).
6 In addition to the technical questionnaires, the annexes setting out the SLR in detail, a model SLA, and the Technical Annex, the specifications included several other annexes relevant to the present dispute, in particular Annex 3, which comprised a model standard CV, and Annex 6, entitled ‘IT Unit Project Management Methodology’ (‘the Methodology Annex’).
7 On 27 June 2007, the applicant submitted a tender in response to the abovementioned call for tenders.
8 Two tenderers were excluded at the selection stage because they did not comply with the selection criteria. All the other tenderers, including the applicant, were allowed to proceed to the technical evaluation stage.
9 On 1 October 2007, EFSA communicated a decision to the applicant, informing it, first, that, because its tender had obtained less than 70% of the maximum number of points at the technical evaluation stage, it had been eliminated from the subsequent stages of the evaluation process and that its tender had not been accepted and, secondly, that another tenderer had been awarded the contract (the ‘contested decision’). In the contested decision, EFSA also gave the name of the successful tenderer, D, and a comparison of the applicant’s score at the technical evaluation stage with that of the successful tenderer.
10 On 2 October 2007, the applicant sent a letter to EFSA requesting information concerning the name of the tenderers which had passed the technical evaluation and, where appropriate, the names of any partners or subcontractors and the percentage of their involvement, the scores awarded to its own tender and those of all the selected tenderers in respect of each technical evaluation criterion or sub-criterion, and the detailed content of the Committee’s report.
11 EFSA replied in a letter dated 11 October 2007, to which were annexed the minutes of the tender evaluation by the Committee and a grid containing the scores obtained by the applicant and all the other candidates for the technical award criteria and the result of the financial evaluation, with certain information being obscured in those documents. It also sent the applicant the detailed evaluation comments and the scoring of TAC 1 and TAC 2 for its tender.
12 By e-mail of 12 October 2007, the applicant asked EFSA to freeze the contract signature process until its action before the Court had been notified to EFSA and the latter had addressed it. In the same letter the applicant asked EFSA for information as to how the evaluation of its financial offer compared with that of the offer submitted by the successful tenderer.
13 By letter of 25 October 2007, EFSA stated that it did not intend to freeze the process of signing the contract and that its letter dated 11 October 2007 contained all the information that the applicant was entitled to receive.
Procedure and forms of order sought
14 By application lodged at the Registry of the Court on 10 December 2007, the applicant brought the present action.
15 By separate document lodged at the Registry of the Court on 14 March 2008, EFSA raised an objection of inadmissibility under Article 114(1) of the Court’s Rules of Procedure. The applicant lodged its observations on that objection of inadmissibility on 13 May 2008.
16 By order of the Court of 24 November 2008, the decision on the objection of inadmissibility was reserved for the final judgment.
17 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was, consequently, assigned.
18 On hearing the report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, put written questions to the parties and requested they produce certain documents. The parties complied with that request.
19 The parties presented oral arguments and replied to the Court’s oral questions at the hearing on 11 July 2011.
20 The applicant claims that the Court should:
– dismiss the objection of inadmissibility;
– annul the contested decision;
– order EFSA to pay the costs, even if the action is dismissed.
21 EFSA contends that the Court should:
– dismiss the action as inadmissible or unfounded;
– order the applicant to pay the costs.
Admissibility
22 In its objection of inadmissibility, EFSA put forward four grounds on which the action should be dismissed as inadmissible. It claims (i) that Article 230 EC is not applicable to EFSA, (ii) that the legal basis for the application is incorrect, (iii) that the applicant has no legal interest in bringing the proceedings and, (iv) that the applicant does not indicate the grounds for its application.
23 In response to a question put by the Court at the hearing, EFSA stated that, in view of Article 263 TFEU and the case-law on the application of Article 230 EC to agencies, it was withdrawing those pleas of inadmissibility.
24 In that respect, it is indeed appropriate to recall the case-law according to which any act adopted by a body such as EFSA, intended to have legal effects vis-à-vis third parties, must be amenable to review by the Courts, and, therefore, decisions taken by EFSA in public procurement procedures, intended to have legal effects vis-à-vis third parties – which is without any doubt the case where, in such procedures, those bodies adopt decisions rejecting the tender of one tenderer and awarding the contract to another tenderer (see, to that effect and by analogy, Case T‑70/05 Evropaïki Dynamiki v EMSA [2010] ECR II‑313, paragraphs 64 to 67 and the case-law cited). Moreover, as EFSA indicates, that analysis is confirmed by the first paragraph of Article 263 TFEU, which now expressly refers to the acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
25 The others grounds on which EFSA submits that the action should be dismissed concern the legal basis for the application, the applicant’s legal interest in bringing the proceedings, and the formal validity of the application.
26 As regards the legal basis for the application, it follows from the analysis in paragraph 24 above that the applicant was entitled to choose Article 230 EC as the basis for its action, even though Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), in Article 47, provides only that the Court is to have jurisdiction over disputes concerning EFSA’s contractual or non-contractual liability (see, by analogy, Evropaïki Dynamiki v EMSA, paragraph 24 above, paragraphs 62 and 63).
27 As regards the applicant’s legal interest in bringing proceedings, it must be noted that the fact that the framework contract which is the subject of the call for tenders has been signed and implemented does not call into question the applicant’s legal interest in bringing proceedings in the present case. It is settled case-law that, even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer’s being properly restored by the contracting authority to his original position or in prompting that authority to make suitable amendments in the future to the tendering procedure if that procedure is found to be incompatible with certain legal requirements (see, to that effect, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 32, and Joined Cases T‑191/96 and T‑106/97 CAS Succhi di Frutta v Commission [1999] ECR II‑3181, paragraph 63).
28 Finally, as regards the formal validity of the application and, in particular, the issue of whether the applicant has indicated the grounds for its application, pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to the procedure before the General Court under the first paragraph of Article 53 of that Statute, and Article 44(1)(c) of the Rules of Procedure, any application initiating proceedings must state the subject-matter of the dispute and a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and intelligible (see, to that effect, Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraphs 106 and 107; Case T‑210/00 Biret et Cie v Council [2002] ECR II‑47, paragraph 34; and Case T‑209/01 Honeywell v Commission [2005] ECR II‑5527, paragraphs 55 and 56 and the case-law cited).
29 In the present case, the application satisfies the requirements laid down in the Rules of Procedure, as it enables both the defendant and the Court to identify the subject-matter of the action and the essential factual and legal elements on which it is based.
30 It follows from all of the foregoing that the action is admissible.
Substance
31 The applicant relies, in essence, on four pleas in law. The first alleges infringement of the principle of transparency and of the obligation to state reasons. The second alleges confusion between the selection and award criteria. The third plea alleges the use of evaluation criteria not included in the call for tenders. The fourth alleges manifest errors of assessment.
32 Before examining those four pleas in law, it is necessary first to deal with two issues raised by the applicant, namely, the law applicable to the case and the scope of the General Court’s judicial power.
33 First, as regards the law applicable to the case, it must be noted that the award of public service contracts by the institutions of the European Union is governed by 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 by the provisions of Title V of Part One of 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), as amended by Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3) (‘the Implementing Rules’). Furthermore, under Article 74(1) of the Financial Regulation of EFSA, the relevant provisions of the general Financial Regulation and the Implementing Rules are to apply to procurement by EFSA.
34 Those provisions are based on the Community directives on the subject, in particular, in the case of public service contracts, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended. Directive 92/50 was repealed by 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).
35 Moreover, while the applicant relies on the applicability of certain specific provisions of Directive 2004/18 to the present dispute, EFSA contends, however, that that directive is addressed to the Member States and is not applicable to the institutions, even though it acknowledges that the Financial Regulation and the Implementing Rules are based on the directives relating to public procurement.
36 In that respect, it must be pointed out that, according to the case‑law, even though the directives concerning the award of public works contracts, public supply contracts and public service contracts govern only contracts concluded by the bodies or contracting authorities of the Member States and are not directly applicable to public contracts concluded by the Community administration, the rules or principles laid down in or derived from those directives can be relied on against that administration when they themselves simply appear to be the specific expression of fundamental rules of the EC Treaty and of general principles of law which are directly applicable to the Community administration (see, to that effect, Case C-25/02 Rinke [2003] ECR I‑8349, paragraphs 25 to 28). In a community based on the rule of law, the uniform application of the law is a fundamental requirement (Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 104) and any person is required to comply with the principle of respect for legality. Thus, the institutions are required to comply with the rules of the EC Treaty and the general principles of law that are applicable to them, in the same way as any other person (see, to that effect, Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraphs 18 to 21, and Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 55). Moreover, the rules or principles laid down in or derived from those directives may be relied on against the Community administration if, in the exercise of its operational and institutional autonomy and within the limits of the powers conferred on it by the EC Treaty, it has adopted a measure which expressly refers, for the purpose of governing the public contracts which it concludes for its own account, to certain rules or principles laid down in the directives, the effect of which is that those rules and principles are applicable in accordance with the principle patere legem quam ipse fecisti (see, to that effect, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraphs 52, 56 and 57, and Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 113 to 115).
37 In the present case, as regards the applicable rules, the introduction to the specifications contains, besides the statement that EFSA acts in compliance with the Financial Regulations and its Implementing Rules in tender procedures, the following sentence:
‘The applicable regulation, namely [Directive 2004/18], oblige[s] the EFSA to guarantee the widest possible participation on equal terms in tender procedures and contracts.’
38 In those circumstances, the provisions of Directive 2004/18 cannot be excluded from the legal framework applicable to the present case, on condition that they do not contradict the provisions of the Financial Regulation and the Implementing Rules, by which EFSA is bound.
39 Secondly, with regard to scope of the Court’s judicial power, the applicant contends that the jurisdiction of the Court in matters of public procurement does not allow for effective and rapid review of procedures for the award of public contracts – in the light, in particular, of the fact that its review is limited to penalising manifest errors of assessment – given the broad discretion enjoyed by the institutions, and the fact that there is therefore no substantive review of the evaluation of tenders, in contrast to the situation in the Member States. EFSA, on the other hand, contends that the present case-law has struck an appropriate balance between the interests of the contracting authority and those of the rejected tenderer.
40 In that respect, it is settled case-law that the institutions, bodies, offices or agencies of the European Union have 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 the 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 manifest error of assessment or misuse of power (see, to that effect, judgment of 3 March 2011 in Case T‑589/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 24 and the case-law cited). As regards the applicant’s arguments relating to a lack of effective judicial protection in that calls for tenders at a national level are subject to more extensive review, EFSA correctly points out that the judgments of the General Court can be appealed before the Court of Justice, and that, even if judicial protection in that respect was insufficient, that deficiency could be remedied only by the European Union legislature.
The first plea in law, alleging infringement of the principle of transparency and of the obligation to state reasons
41 The applicant claims, first, that EFSA did not disclose to it the relative merits of the successful tender and requests that the Court order EFSA to provide it with the full evaluation report, including the comments in relation to the successful tenderer’s bid and a copy of that tender. Secondly, it claims that the Committee used vague terms which indicate a failure to give a proper statement of reasons for its decision. It provides, in that regard, three examples of vague terminology used in the evaluation of its reply to TQ 2 and one example relating to the evaluation of TAC 3.
42 In that respect, it should be borne in mind that where, as in the present case, the institutions, bodies, offices or agencies of the European Union have a broad power of appraisal, 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 power of appraisal depends were present (see, to that effect, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 54; and Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 61).
43 It must also be emphasised 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 Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
44 Moreover, it should be observed that the specific rules regarding the statement of reasons for decisions rejecting bids submitted by tenderers during a procurement procedure and awarding the contract to another tenderer, which are applicable in the present case, are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules. Furthermore, Article 41 of Directive 2004/18, to which the applicant refers, contains, as it acknowledges, the same principles as the provisions of the Financial Regulation and the Implementing Rules.
45 It is clear from those provisions, and from this Court’s case-law, that the European Union institutions fulfil their obligation to state reasons if they confine themselves first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, provide to all tenderers who have submitted 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 calendar days from the date on which a written request is received (see, to that effect, Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 42 above, paragraph 47).
46 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, 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 (Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 42 above, paragraph 48).
47 In the present case, EFSA, in the contested decision, communicated the name of the successful tenderer and a comparison of the applicant’s score with that of the successful tenderer. The contested decision also specified that the applicant had not been awarded the contract because it had obtained a score of less than 70% or, in other words, of fewer than 700 points. Following a request for further information made by the applicant on 2 October 2007, on 11 October 2007 EFSA sent it the minutes of the tender evaluation, summarising the evaluation of the tenders of the various candidates, including the successful tenderer, against the selection and attribution criteria, and the result of the financial evaluation. With regard to the Technical Evaluation stage, that document contains, in relation to the successful tenderer, short but clear comments concerning the three technical attribution criteria.
48 In an annex to its letter of 11 October 2007, EFSA also sent the applicant a grid, entitled ‘Final Evaluation grid’, containing the scores obtained by the applicant and all the other candidates for the technical attribution criteria, which shows that the applicant’s tender received a technical score of only 618 points and could not therefore progress to the financial evaluation stage, which was limited to the four candidates which had obtained a technical score of at least 700 points. The grid also shows the final score obtained after the addition of the technical score and the financial score of the candidates which had progressed to that stage. It is clear that the successful tenderer had obtained the highest score.
49 Moreover, EFSA sent the applicant the detailed comments of the Committee relating to TAC 1 and TAC 2, also in an annex to its letter of 11 October 2007, including an evaluation of the applicant’s replies to all of the questions of TQ 1 and TQ 2, information which enabled the applicant to have a better understanding of the score which it had received and, therefore, of the reasons why its tender had not reached the threshold of 700 points.
50 It must be concluded that the documents referred to in paragraphs 47 to 49 above allow the applicant to identify the reasons for the rejection of its tender, to compare its results with those of the other tenders and, in particular, with the results obtained by the successful tender and its relative advantages. Accordingly, it is in a position to understand, inter alia, the reasons for which its tender – in contrast to others, including that of the successful tenderer – did not pass the technical evaluation stage.
51 The applicant claims, however, that the findings of the Committee in relation to the successful tender and the details of the scores obtained by that tender for each attribution criterion were not communicated to it and that it requires access to the entire evaluation report and to the successful tender. However, that argument cannot be accepted. It does not follow from the legislative provisions applicable to the present case, or from the case-law, that a contracting authority is required to communicate such documents to an unsuccessful tenderer if requested to do so. In contrast to what the applicant seems to believe, in communicating the characteristics and advantages of the successful tender, the contracting authority is not required to provide a minutely detailed analysis of that tender along with that of the unsuccessful tenderer.
52 As regards the parts of the evaluation of the applicant’s tender which, the applicant claims, lack clarity and prevent it from preparing its defence in that regard, it must be noted that the use of general terms in the evaluation of a tender cannot, in itself, lead to the conclusion that the contested decision is not supported by a statement of reasons of the requisite legal standard.
53 Accordingly, as regards the examples relating to the applicant’s response to the first question of TQ 2, it should be observed that the fact that the Committee mentioned a ‘fairly close’ connection between the description of the ordering process in the applicant’s tender and the process described by EFSA, while adding that ‘a few points’ appeared not to have been understood, cannot amount to a failure to state reasons, because the reference to those ‘few points’ is followed by three specific examples, as EFSA correctly points out. The same finding must be made with regard to the use of the term ‘a bit inflexible’ to describe the approach proposed by the applicant to meet EFSA’s requests for service. Those terms appear in a sentence which serves as a conclusion to a detailed assessment of the applicant’s response, focusing on three weak points. It follows that the Committee found that those three points seemed to imply that the applicant’s approach was somewhat inflexible in view of the fact that EFSA was seeking a suitable partner which would understand and implement EFSA’s processes and methodologies rather than its own. No failure to state reasons can be established in that respect.
54 Moreover, as regards the reference, in the evaluation of the response to the fifth question of TQ 2, to the use of a waterfall approach for the maintenance of applications developed by the applicant, it must be observed that, in contrast to what is claimed by the applicant, that expression is not ‘excessively vague’. Besides the fact that the comment is accompanied by a reference to a specific page of the tender, various other elements are referred to in evaluating the applicant’s response regarding its approach to maintenance, with the result that, so far as concerns the score of 35 points out of 50 which the applicant obtained for its response to that question, the contested decision is not, in any event, vitiated by a failure to state reasons.
55 Furthermore, as regards the comment ‘no processes description’, made by the Committee in the evaluation report for TAC 3 relating to the quality of the SLA, the applicant claims that the Committee failed to specify which of the SLA processes set out in the specifications were not covered by the applicant’s SLA, and failed even to explain the relative importance of those alleged omissions and the impact that they had on the technical evaluation.
56 That argument cannot, however, be accepted. The applicant cannot dispute the fact that the Committee’s observation, though unspecific, must be connected to the requirements of the specifications to which that part of its tender responds. The SLA was intended, inter alia, to specify the level of service and workflows proposed by the tenderer in response to EFSA’s requests for service. It is clear from the SLR that the tenderers could propose levels of service and workflows in excess of the minimum level set out by EFSA. In that context, the comment ‘no processes description’ can refer to criticism of weaknesses in the description of the workflow proposed by the applicant in its SLA. In addition, the applicant isolates that comment from several other comments put forward by the Committee to justify the fact that the applicant was awarded a score of 253 points out of 400 for TAC 3. In those circumstances, and given the fact that a contracting authority cannot be required to send an unsuccessful tenderer a detailed summary of the manner in which each detail of its tender has been taken into consideration in its evaluation, the use of the comment ‘no processes description’ for TAC 3 cannot constitute a failure to state reasons.
57 Next, as regards the vague references, contained in the application, relating to an infringement of the principles of transparency and good administration, it must be noted that the applicant does not develop, in the context of the present plea in law, any argument relating to the infringement of those principles. The related complaints must therefore be declared inadmissible as being in breach of Article 44(1)(c) of the Rules of Procedure, according to which an application must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The same is true for the abstract references to the principles of good administration and equal treatment made in the context of that plea in law, which are not specifically developed in any way.
58 Finally, some of the applicant’s arguments put forward in the context of the present plea in law are not in fact designed to indicate inadequate reasoning in the contested decision, but rather to point to the erroneous nature of that decision. Those arguments will be dealt with in the assessment of the fourth plea in law.
59 It follows from the foregoing that the first plea must be rejected.
The second plea in law, alleging confusion between the selection and award criteria
60 The applicant submits that the selection and attribution stages must be distinct. In its view, a contract may be awarded solely on the basis of award criteria and not on the basis of criteria used or documents submitted for selection purposes.
61 In that respect, it must be stated, as a preliminary point, that, in the same way that EFSA has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a public contract following an invitation to tender, it also has a broad discretion in determining both the content and the application of the rules applicable to the award of a contract, for its own account, following a call for tenders (see, to that effect, Joined Cases T‑376/05 and T‑383/05 TEA-CEGOS and Others v Commission [2006] ECR II‑205, paragraphs 50 and 51).
62 It should be recalled that under Article 97(1) of the Financial Regulation ‘[c]ontracts shall be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 93, 94 and 96(2)(a) [of that regulation] has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders’.
63 It follows that a distinction must be drawn between selection criteria and award criteria. Even though, in theory, the examination of the tenderer’s suitability and the award of the contract may take place simultaneously, those two procedures are nevertheless distinct, and are governed by different rules (see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 15 and 16; Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 26; and Case C‑199/07 Commission v Greece [2009] ECR I‑10669, paragraph 51).
64 The suitability of tenderers is to be checked by the contracting authority in accordance with the criteria of economic, financial, technical, and professional capacity referred to in Articles 136 and 137 of the Implementing Rules (see, by analogy, Beentjes, paragraph 63 above, paragraph 17; Lianakis and Others, paragraph 63 above, paragraph 27; and Commission v Greece, paragraph 63 above, paragraph 52).
65 By contrast, the award of contracts is based on the criteria set out, in Article 97(2) of the Financial Regulation, namely, to the tender quoting the lowest price under the automatic award procedure, or to the tender offering the best value for money, within the meaning of Article 138(2) of the Implementing Rules (see, by analogy, Beentjes, paragraph 63 above, paragraph 18; Lianakis and Others, paragraph 63 above, paragraph 28; and Commission v Greece, paragraph 63 above, paragraph 53). According to the latter provision, the tender offering the best value for money is to be that having the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.
66 In the present case, as is apparent from paragraph 2.9.2 of the specifications, the award of the contract at issue was based on the tender offering the best value for money.
67 Although, as is shown by the use of the expression ‘such as’, Article 138(2) of the Implementing Rules does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities at the award stage and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria designed to identify the tender offering the best value for money (see, by analogy, Beentjes, paragraph 63 above, paragraph 19; Lianakis and Others, paragraph 63 above, paragraph 29; and Commission v Greece, paragraph 63 above, paragraph 54).
68 Therefore, award criteria cannot include criteria that are not designed to identify the tender offering the best value for money, but are instead essentially linked to the evaluation of the tenderers’ technical and professional capacity to perform the contract in question (see, by analogy, Lianakis and Others, paragraph 63 above, paragraph 30, and Commission v Greece, paragraph 63 above, paragraph 55).
69 It is in the light of those considerations that the two branches of the present plea must be examined. Those two branches allege, respectively, the unlawful nature of the use, at the award stage, of CVs also submitted at the selection stage, and the unlawful nature of the use, at the award stage, of information concerning work provided in the past for EFSA in the context of a separate contract.
The first branch, alleging the unlawful use, at the award stage, of CVs presented at the selection stage
70 The applicant claims that CVs also submitted at the selection stage were evaluated at the award stage, something which is, according to the applicant, unlawful. It provides a number of specific examples which relate to TAC 1, in particular the evaluation of some of its responses to TQ 1. Moreover, it disputes EFSA’s argument that training was not considered at the selection stage.
71 In that respect, it must be noted that the submission of CVs corresponding to certain specific profiles in the specifications was a requirement in both the part of the specifications concerning the selection stage and the part relating to the award stage.
72 For the selection criterion relating to the tenderers’ technical capacity, the specifications included the requirement to submit, inter alia, 2 CVs for each of the 13 profiles described there, demonstrating whether the qualifications and professional experience of the proposed consultants corresponded to the profiles described in the specifications for the functions in question. It was also specified that ‘the proposed CVs must match at least the core technologies described in [the Technical Annex] for each of the profiles required’ and that ‘[if] one or more CVs proposed in the offer are not matching with such core technologies of the function proposed, the offer as a whole will be rejected outright’. Therefore, as is clear from the evaluation report, the Committee verified at the selection stage whether the CVs requested corresponded to those profiles and whether the individuals proposed were experienced in the use of the core technologies used by EFSA, and, at the end of that selection stage, some tenderers were rejected because their tender did not meet the minimum standard. However, the applicant’s tender was selected. The use of CVs at the selection stage is therefore not at issue in the present action. Nor does the applicant dispute that, as EFSA claims, the Committee verified, at the selection stage, the tenderers’ capacity to provide a team corresponding to the profiles described in the specifications in accordance with the Financial Regulation and the aforementioned case-law.
73 With regard to the award stage, as mentioned in paragraph 5 above, the evaluation of the tenders against TAC 1 and TAC 2 was carried out on the basis of the responses provided by the tenderers in TQ 1 and TQ 2. TQ 1 referred to the submission of 2 CVs for each of the 13 profiles described in the specifications.
74 It was thus clear from the specifications that the CVs corresponding to the 13 profiles described there were relevant for both the selection stage and the award stage. The applicant cannot therefore claim that the CVs were submitted solely for the purposes of the selection stage.
75 As regards the issue of whether the theoretical distinction between the selection stage and the award stage, referred to in paragraph 63 above, precludes, as the applicant claims, the use of documents – such as the CVs in the present case – in the two stages, it must be pointed out that it cannot be inferred from either the applicable legislation or the case-law cited in paragraphs 63 to 68 above that the use, for the purposes of evaluation, of the same CVs at both the selection and the award stage should, as a rule, be precluded. Nevertheless, the use of the same documents at the award stage after they have been presented at the selection stage is justified only if it serves in the latter stage to identify the tender offering the best value for money and not the tenderers’ ability to perform the contract, which has already been established.
76 In the present case, TAC 1 was intended to evaluate the ‘methodology for ensuring the quality of the workforce’. Given that the call for tenders at issue is of a highly technical nature and concerns the provision, on the basis of a framework contract of complex IT consultancy-assistance services covering, inter alia, services such as the development of applications or the management of infrastructure, the maintenance of a certain skill level of the team proposed can be considered as being justified by the subject of the contract. As a rule, the quality of a service, in contrast to, for example, the quality of supplies, generally depends above all on the skill of the personnel employed (judgment of 12 March 2008 in Case T‑332/03 European Service Network v Commission, not published in the ECR, paragraph 213). In so far as it does not confer an unfettered freedom of choice on the contracting authority, it is expressly mentioned in the specifications, and it respects, inter alia, the fundamental principles of equal treatment, non-discrimination, and transparency, such a criterion does not appear to be incorrect for the purposes of identifying the tender offering the best value for money, a fact which, moreover, the applicant does not dispute. Furthermore, it is not illogical that the evaluation of such a criterion should be based to a certain extent on the analysis of the CVs relating to the specific profiles of the individuals who are proposed by the tenderers to perform the contract, even if, as the applicant claims, those CVs are submitted in the context of a framework contract which does not fully guarantee that the profiles proposed will be actually requested.
77 Next, as regards the specific use of the CVs by the Committee in its evaluation of TAC 1, it must be noted that, as a score was awarded to each of the responses to the questions in TQ 1, those questions actually operated as sub-criteria of TAC 1.
78 First, the applicant contests the evaluation of its response to the second question of TQ 1 relating to a strategy for ensuring the respect of minimum requirements in terms of training and practical experience for the profiles described in the specifications. In that respect, the Committee found that, of the 26 profiles submitted by the applicant, 24 had not received training in 2007, 14 had not received any training at all since 2006, and 6 had not received any training since 2005, even though the applicant stated in its tender that its policy is to provide for an average of 5 days of training per year for its employees. The applicant takes issue with the comment which notes that the submitted CVs do not substantiate its statements relating to its training policy.
79 It must be stated that the applicant does not dispute, as such, the relevance of the question relating to the tenderers’ strategy for guaranteeing a minimum quality level of the team in terms of training and practical experience in the evaluation of TAC 1.
80 Concerning the applicant’s contention that training is an aspect which the Committee had already evaluated at the selection stage, it is clear, admittedly, from the case-law that, when a contract is awarded on the basis of the criterion of the tender offering the best value for money, the quality of the tenders must be assessed on the basis of the tenders themselves and not on that of the selection criteria – such as the tenderers’ technical and professional capacity – which were already checked at the selection stage and which cannot be taken into account again for the purpose of comparing the tenders (Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraph 158; Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 86; and judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 101; see, to that effect, Beentjes, paragraph 63 above, paragraph 15).
81 However, in the present case, as pointed out in paragraph 72 above, the Committee verified, at the selection stage, whether the CVs corresponding to the profiles described in the specifications for the profiles in question had been submitted and whether the individuals proposed were experienced in the use of the core technologies used by EFSA. Thus, even if the Committee referred to the qualifications and professional experience of those persons in its analysis of those CVs at the selection stage, such an analysis is distinct from that carried out at the award stage for TAC 1, as EFSA correctly points out.
82 Accordingly, such an approach, consisting in evaluating the training strategy – in particular as regards ongoing training – of a team proposed for the performance of a contract relating to complex IT services, may, in contrast to what is claimed by the applicant, serve to identify the tender offering the best value for money in so far as it clearly concerns services for which the quality of the tender and that of the team proposed are indisputably linked.
83 In addition, as EFSA notes, the contested finding of the Committee mentioned in paragraph 78 above is part of the evaluation of the applicant’s response to the second question of TQ 1. The Committee pointed out that this part of the tender was fairly well documented. The comment relating to the CVs therefore forms part of the analysis of the strategy proposed by the applicant and has the sole objective of confirming whether the description of the applicant’s training policy is accurate, with the result that it cannot credibly be maintained that this aspect of the evaluation concerned, in the circumstances of the present case, the tenderers’ technical and professional capacity.
84 As regards its response to the second question of TQ 1, the applicant also challenges the Committee’s finding that the statement in its tender according to which all personnel of the project team would be trained to use any new products and new technologies as dictated by the project’s needs was not substantiated by the training listed in the CVs.
85 That challenge must be rejected on grounds similar to those set out in paragraphs 79 to 83 above. The statement in question concerns the training policy relating to the project described by the applicant in the relevant part of its tender relating to TQ 1. It is that part of the tender which the Committee evaluated. By referring to the information presented in the CVs – with regard to which it was indicated clearly in TQ 1 that that information would be taken into consideration – the Committee criticised a lack of consistency in the part in question of that tender, but did not examine the CVs in order to verify whether minimum requirements in terms of training for the profiles specified in the specifications had been respected.
86 It must therefore be found that the evaluation of the applicant’s response to the second question of TQ 1 did not concern the applicant’s capacity to perform the contract but concerned rather the quality of its tender.
87 Secondly, the applicant calls into question the evaluation of its response to the fourth question of TQ 1 relating to the actions foreseen to ensure that the team would be fully trained, and remain knowledgeable, in all aspects related to the core technologies used by EFSA. In that respect, the Committee found that the theory for the training presented by the applicant was good, but that the CVs did not reflect that policy. The applicant, however, criticises, in particular, the finding that, although the applicant had indicated a minimum of 40 hours of annual training in its tender, the CVs submitted did not exhibit compliance with that policy.
88 It must be noted that the question at issue concerns the strategy for ongoing training in core technologies used by EFSA. For reasons similar to those set out in paragraphs 79 to 85 above, it must be found that that evaluation of the applicant’s response to that question did not relate to its capacity to perform the contract, but rather to the quality of its tender. Although the comment in the tender concerning a policy of a minimum of 40 hours of annual training relates to a statement made by the applicant regarding its general company policy which the Committee compared with the specific CVs submitted, it cannot be inferred from this that the Committee thus carried out an analysis of the applicant’s capacity to perform the contract. It is the applicant itself which chose to respond to the question at issue by referring to its general policy. Moreover, EFSA correctly points out that, as noted in paragraphs 81 and 82 above, the team-training aspect was not considered during the selection stage, and that it was a relevant element in evaluating the quality of the tender in relation to its price, in view of the specific nature of the services at issue. Finally, it appears that the Committee sought to confirm the relevance of the applicant’s general statements on the basis of specific information submitted in the context of TQ 1, namely the CVs.
89 Thirdly, as regards the fifth and sixth questions of TQ 1 relating to, respectively, certification and training in areas other than IT, the applicant merely claims in its application that, in the evaluation of its response to those questions, the Committee ‘mixed up’ the selection and award criteria, and wrongly used the CVs produced in the context of the selection stage to make negative findings concerning its tender. Nevertheless, given the context of the second plea in which these arguments are made, they are sufficiently substantiated to be examined. Admittedly, EFSA did not make any specific response in its written replies to the present plea in law.
90 The fifth question of TQ 1 concerned the approach to technical certification, the minimum rate of relevant technical certification for operational staff detailed per profile, and the question of how the execution of these requirements would be notified to EFSA.
91 For reasons similar to those set out in paragraphs 79 to 87 above, it must be found that the evaluation of the applicant’s response to that question did not concern its capacity to perform the contract but rather the quality of its tender. Given the nature of the services sought – namely, development and support services requiring a high level of technical qualification in the area of IT – the tenderers’ approach to technical certification, including the minimum level of technical certification proposed, and their means of notifying developments in that respect to EFSA, may be relevant in evaluating the quality of the tender in relation to its price, since the intrinsic technical quality of the team is closely linked with the quality of the tender.
92 Finally, as regards the applicant’s response that its key personnel possessed certifications from major IT vendors, the Committee correctly pointed out that, among the persons corresponding to the 26 profiles submitted, only 10 possessed certifications and 16 had none. The Committee’s reference to the fact that the key personnel of the applicant possessed certifications from those major IT vendors concerns the applicant’s company in general and not specifically the team proposed. That is due to the manner in which the applicant responded to the question, with, in particular, vague comments relating to the general policy of its company. As is confirmed by the reference made to paragraph 4.3.5 of the part of the tender relating to TAC 1, the Committee did indeed analyse the applicant’s response to that question in the relevant part of the tender in order to award it a score of 20 points out of 50. By referring to the CVs submitted in the context of TQ 1, the Committee thus sought to verify the consistency of the applicant’s response rather than, as the applicant claims, to evaluate a minimum of required certification.
93 The sixth question of TQ 1 concerned measures put in place to train consultants in non-IT areas (customer services, team work, oral or written communication, etc.). In that respect, the Committee found that, although the training measures proposed by the applicant appeared to be ‘quite good’, only five CVs demonstrated training in areas other than IT, and that it was of concern for EFSA that the consultants who would have particularly benefited from such training had not, in general, received it. The applicant obtained a score of 10 points out of 30 for its response.
94 It must be observed that the tenderers’ strategy for training in areas concerning IT support activities is relevant for the purpose of evaluating the quality of their tenders, in view, in particular, of the fact that the call for tenders also concerned support services to EFSA’s technical staff and specialised advice to EFSA’s help desk in relation to IT. Moreover, as EFSA points out and as recalled in paragraph 81 above, training was not taken into account at the selection stage, which, in any case, concerned only the key technologies used by EFSA and not proposals for support or annex services. Finally, the Committee indisputably based its evaluation of the applicant’s response to that question on the relevant part of the applicant’s tender. The references to the data presented in the CVs served to evaluate the consistency and credibility of that part of the tender rather than to set out minimum training requirements that were not respected in those CVs.
95 It has therefore not been established that the evaluation of the responses to the fifth and sixth questions of TQ 1 led the Committee to assess the applicant’s capacity to perform the contract rather than the quality of its tender in relation to its price.
96 It follows that none of the arguments and examples put forward by the applicant shows that, in the evaluation of the applicant’s response to TQ 1 and, therefore, in the context of TAC 1, the Committee did not confine itself to identifying the tender offering the best value for money in accordance with Article 138(2) of the Implementing Rules.
97 Finally, it must be stated that the analysis of the applicant’s arguments relating to the use of the CVs at the award stage from the perspective of Article 53 of Directive 2004/18 and recital 46 of the preamble to that directive would not have led to a different conclusion.
98 The first branch of the second plea must therefore be rejected.
The second branch, alleging that account was taken of a negative experience in the performance of an earlier contract
99 Like TAC 1, TAC 2, relating to the ‘[m]ethod proposed to manage the assignment and internal organisation of the service provider’, concerns the tenderers’ strategy for the performance of the contract. It is a criterion justified by the subject of the contract and which refers to the quality of the project itself and not to the tenderers’ capacity to perform it. Furthermore, the applicant does not call into question the fact that this criterion may be used to identify the tender offering the best value for money in accordance with Article 138(2) of the Implementing Rules.
100 As noted in paragraph 5 above, TAC 2 could ‘result in a maximum of 200 points’. The second question of TQ 2 concerned prior business relations with EFSA and tenderers were asked to provide a brief description of the main contracts concerned.
101 In the present case, the Committee awarded 8 points out of 20 to the applicant in relation to the Web Content Management System project mentioned in its tender, as it found that that project had not been a complete success, due, in particular, to stability and performance problems, lack of important operational features, and difficulties in ensuring maintenance, and that it had ultimately been replaced by a commercial tool.
102 The applicant claims that the Committee could not legitimately use a reference to work carried out in the past in the context of a separate contract as an ‘award criterion’. EFSA contends, first, that that complaint does not concern an award criterion, and, secondly, that the applicant has no legal interest in raising it.
103 As regards EFSA’s claim that the present complaint does not concern an award criterion, it is clear from the application that the applicant challenges the Committee’s taking account of an allegedly unsatisfactory result for EFSA in relation to the applicant’s performance of a previous informatics project. It is that negative assessment which explains the score of 8 points out of 20 obtained by the applicant for the second question of TQ 2. It is clear that the reference at issue was subject to an assessment, which negatively affected the result obtained by the applicant for TAC 2 and that the applicant contests the validity of that assessment.
104 It must be recalled that, according to settled case-law, the quality of the tenders must be assessed on the basis of the tenders themselves and not on that of the experience acquired by the tenderers with the contracting authority in connection with previous contracts or on the basis of the tenderers’ technical or professional capacity, which were already checked at the selection stage and which cannot be taken into account again for the purpose of comparing the tenders (Esedra v Commission, paragraph 80 above, paragraph 158; TQ3 Travel Solutions Belgium v Commission, paragraph 80 above, paragraph 86; see also, to that effect and by analogy, Beentjes, paragraph 63 above, paragraph 15). Furthermore, a criterion based on the tenderers’ experience cannot, as a rule, constitute an award criterion within the meaning of Article 138 of the Implementing Rules (see, by analogy, Lianakis and Others, paragraph 63 above, paragraph 31, and Commission v Greece, paragraph 63 above, paragraph 56).
105 In the present case, however, with regard to the Web Content Management System project, the score of 8 points out of 20 was obtained by the applicant at the conclusion of an assessment conducted on the basis of the applicant’s experience with EFSA in the context of an earlier contract, an assessment which therefore does not relate to the quality of the tender which was submitted in the call for tenders.
106 As a result, the evaluation of the applicant’s response to the second question of TQ 2 is vitiated by illegality since that question led to the taking into consideration of an award criterion contrary to Article 97 of the Financial Regulation and Article 138(2) of the Implementing Rules.
107 Finally, as regards the applicant’s alleged lack of interest in raising this branch of the plea, EFSA refers, in essence, to the small number of points linked to the second question of TQ 2. It must, however, be pointed out that this argument has no bearing on the issue of whether this branch of the plea should be upheld, but concerns rather the issue of whether upholding this branch would have to lead to the annulment of the contested decision. However, irrespective of the issue of whether – in view of the circumstances of the present case and the fact that the second question of TQ 2 has no bearing on the remainder of the evaluation or the applicant’s prospects for securing the contract – it is legitimate to take the view that the finding of unlawfulness in the previous paragraph should not, on its own, lead to the annulment of the contested decision, it is not, in any event, precluded that other aspects of the call for tenders procedure or of the evaluation of the applicant’s tender may also be called into question in the context of the third and fourth pleas in law.
108 It follows from the foregoing that the second branch of the second plea must be upheld, but that the remainder of that plea must be rejected.
The third plea in law, alleging the application of evaluation criteria not set out in the call for tenders
109 The applicant claims that, in taking its decision, the contracting authority must justify its choice by reference to the selection or award criteria announced in advance. In its view, four aspects of the evaluation of its tender run counter to that principle: (i) in the evaluation of TAC 1, taking account of the level obtained by its company according to the ‘Capacity Maturity Model’ (‘CMM’), (ii) also in the evaluation of TAC 1, criticism of the absence of training in certain EFSA core technologies, (iii) in the evaluation of TAC 2, criticism of the absence of estimations of transfer times of knowledge, and (iv) in the evaluation of TAC 3, criticism of the fact that the applicant did not propose a web portal in its tender.
110 EFSA disputes the applicant’s arguments.
111 It follows from Article 147(3)(e) of the Implementing Rules that the choice of the successful tenderer in the contested decision must be justified, inter alia, by reference to the selection or award criteria announced in advance. The applicant therefore correctly points out that a contracting authority can base its analysis of competing tenders only on criteria known to the tenderers.
112 In order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the economically most advantageous offer, and, if possible, of their relative importance, when they prepare their tenders (see, to that effect, and by analogy, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 88; Case C‑470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 98; and Lianakis and Others, paragraph 63 above, paragraph 36).
113 More specifically, the examination of the complaints put forward in the context of this plea should serve to resolve the issue of whether each of the elements the taking into consideration of which is challenged by the applicant is indissociable from the award criterion at issue and was, therefore, known to it so that it does not constitute a new criterion in relation to those contained in the specifications (see, to that effect, judgment of 9 September 2010 in Case T-63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 51 et seq.). Moreover, the award criteria must be formulated, in the specifications or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way (see Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 42). The indissociable nature of the award criterion must therefore be assessed, furthermore, by taking into account the reasonably well-informed and normally diligent tenderer.
114 The applicant’s first complaint – relating to the evaluation of its response to the second question of TQ 1, concerning the measures to maintain the level of the profiles in terms of professional training and practical experience – relates to the Committee’s comment that a ‘larger source of concern’ results from the low CMM level of the organisation proposed in the tender, which indicated that the applicant was working towards level 2, lower than the maturity level achieved by EFSA (on course to achieve level 3 in 2008). The comment relates to the assertion in the applicant’s tender to the effect that its software development department had undertaken an improvement of the processes and were working towards level 2.
115 It must be pointed out, first, that this comment is part of a more general finding of the Committee concerning the applicant’s response to the question at issue.
116 Moreover, it is common ground that CMM is a reference model developed in the United States of America consisting in a structured collection of best practices, intended to apprehend, evaluate, and improve the activities of engineering companies on a maturity scale with five levels.
117 The applicant is correct in pointing out that the specifications do not expressly require that tenderers indicate their organisation’s CMM level, and even less whether they are at level 3 or higher. However, it is also true, as EFSA points out, that the fact that the applicant’s organisation was at level 1 and was on the way to achieving level 2 is information which was freely communicated by the applicant in response to the question asking it to specify, inter alia, how it would maintain the level of the proposed consultants, in particular in terms of technical certification. EFSA could therefore assume that the applicant itself took the view that this information was relevant to the evaluation of TAC 1.
118 In those circumstances, the applicant cannot criticise EFSA for taking account of that information and comparing the level of the applicant’s organisation on the CMM scale with that of EFSA’s internal organisation in order to award it – on the basis of that information, in combination with other elements – a score of 50 points out of 80 for its response to the second question of TQ 1. It in no way follows that the Committee based that part of its evaluation on a criterion other than TAC 1 and the sub-criteria arising from TQ 1, which were indisputably present in the specifications.
119 The second complaint, relating to the evaluation of the applicant’s response to the fourth question of TQ 1, concerning the measures taken to ensure that staff would be fully trained in, and remain knowledgeable of, all aspects related to the core technologies, concerns the Committee’s finding that a certain number of training courses in the core technologies used by EFSA were not present in the tender, whereas a number of training courses of no relevance for EFSA were mentioned.
120 It follows from the part of the tender relating to TAC 1 that the applicant, in response to the question at issue, submitted a list of technical training courses and certifications applicable to the qualifications of the staff directly responsible for the performance of the framework contract.
121 The applicant notes that the specifications did not require that tenderers should provide training courses for any of the technologies and/or core technologies used by EFSA. It claims that the Committee erred in evaluating only an indicative list of existing training courses indicated in the tender and failed to understand that it would be subsequently enhanced.
122 In contrast to what is claimed by the applicant, the Committee’s finding that some of the training courses mentioned by the applicant in the tender were not relevant in view of the core technologies used by EFSA which are described in the Technical Annex, and that certain relevant training courses were not present does not amount to taking account of an award criterion not set out in the specifications. On the contrary, the observations and information to which it relates are indissociably linked to the assessment of the applicant’s strategy for ensuring the level of quality of staff, which is the subject of TAC 1. It is clear that this part of the evaluation of the applicant’s tender is based on the information which the applicant submitted and which is relevant to TAC 1, and on the sub-criteria set out in TQ 1, of which it was aware. The second complaint must therefore also be rejected.
123 As regards the third complaint, relating to the evaluation of its response to the third question of TQ 2 concerning the transfer of knowledge in the event of the replacement of consultants, the part of the applicant’s tender relating to TAC 2 contains a section entitled ‘Transfer of knowledge’, which sets out, inter alia, a procedure of structured knowledge transfer (‘SKT’) and a ‘Specialised Knowledge Transfer Roadmap’, which, it is stated, is designed to raise the competence levels of the tenderer’s operational staff in a short amount of time and to transfer knowledge from its experienced personnel and third-party experts to the members of its team specifically dedicated to the project with EFSA.
124 The Committee found, with regard to that part of the applicant’s tender, that the SKT described appeared to be very good, although somewhat general at the same time, as no estimation of the transfer times of EFSA core and non-core technologies was provided.
125 The applicant claims that its tender sets out in detail its approach to the transfer of knowledge related to the project, covering all the requirements of the tender specifications, but without giving specific transfer times for core and non-core technologies, as this was not requested in the tender specifications. In addition, in its view, it is not reasonable to make reference to those transfer times, since they depend on multiple factors which are not known to the tenderers.
126 In view of the case-law cited in paragraph 113 above, it is necessary to establish whether the transfer time for knowledge of technologies is an element of assessment which is indissociable from TAC 2 relating to the ‘Method proposed to manage the assignment and internal organisation of the service provider’, as further specified in the various questions or sub-criteria of TQ 2.
127 Given the fact that the question at issue specifically concerned the transfer of knowledge in situations where consultants involved in the project had to be replaced, it is logical that the Committee would take account of the information submitted by the tenderers regarding the estimated knowledge transfer time. Moreover, it is apparent from the documents submitted by EFSA that the temporal factor is a relevant aspect of the SKT procedure and that the method provides indicative transfer times for various technical profiles. Furthermore, the applicant does not dispute the fact that SKT is considered to be an example of best practices in the area of knowledge transfer. The knowledge transfer time of technologies is therefore an indissociable element of TAC 2 relating to the method proposed for management of the project, as specified, inter alia, in the question or sub-criterion of TQ 2 regarding the method of knowledge transfer in the event of the replacement of consultants.
128 The applicant claims, however, that, as the specifications do not offer any detail on the work to be assigned to each profile, it was not possible to make such estimations. In that respect, however, the applicant contradicts itself when it claims, in the reply, that ‘an estimated timeframe concerning the maximum accepted time for the replacement of personnel and the knowledge transfer’ was provided. That claim confirms, moreover, that the provision of details concerning the transfer times was not an unknown or new criterion for the applicant. The complaint must therefore be rejected.
129 The applicant’s fourth complaint concerns the criticism ‘[n]o web portal’ mentioned in the Committee’s report in the part concerning the evaluation of TAC 3.
130 The applicant disputes the Committee’s observation that its tender did not make provision for a web portal. In its view, the specifications and, in particular, the SLR did not in any way require the tenderer to develop a web portal. Moreover, it draws attention to the fact that EFSA acknowledged before the Court that the Committee awarded a higher score to those tenderers which proposed a web portal. Finally, it claims that its tender also referred to the use of a web portal as an interaction system and calls on EFSA to explain how the system proposed by the successful tenderer was superior to its own.
131 In the light of the case-law cited in paragraph 113 above, it is necessary to establish whether the offer of a web portal can be considered as being an indissociable element of TAC 3.
132 TAC 3 concerns the quality of the SLA. It is set out in the specifications that the tenderers were to be evaluated on the basis of their SLA proposal, the quality of which had to be equal to or greater than the SLR. It must be noted that the SLR contain a part relating to the tenderers’ interface, in which it is specified that the tenderer was to provide, at the least, an account manager, an administrative contact and a technical account manager, and which specifies the minimum requirements in relation to those functions, while adding that tenderers who wished to provide additional services or activities were free to do so.
133 It must, however, be stated that a web portal feature can be an asset in the management of the relations between the proposed profiles and EFSA and therefore constitutes an element which is indissociably linked to the criterion under examination. In evaluating the propositions of tenderers in the light of that criterion, the Committee could therefore lawfully take into account the proposal of a web portal as a positive element. Moreover, it does not matter that the specifications did not specifically require the provision of such a feature. EFSA cannot reasonably be required to set out in the specifications, in detail, all of the possibilities for adjusting the offer of services, as this would compromise the requirement, referred to, in particular, in Article 98 of the Financial Regulation, to ensure that there is genuine competition between potential tenderers.
134 The fourth complaint must therefore also be rejected, irrespective of the applicant’s arguments as to the soundness of the Committee’s assessment, including the applicant’s claim that it proposed a type of web portal which was not taken into consideration.
135 The third plea in law must therefore be rejected.
The fourth plea in law, alleging manifest errors of assessment
136 The applicant contests, in detail, the validity of all the criticisms made in the Committee’s evaluation in respect of each of the three technical award criteria.
137 EFSA contends that it did not make any manifest errors of assessment in the evaluation of the applicant’s tender in relation to the technical award criteria.
138 In that respect, it must be recalled, as a preliminary, that the Court’s analysis must be carried out in accordance with the settled case-law referred to in paragraph 40 above, according to which the institutions, bodies, offices or agencies of the European Union have 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 the 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 manifest error of assessment or misuse of powers.
Complaints concerning TAC 1, relating to the ‘Methodology for ensuring the quality of the workforce’
139 The applicant’s first complaint with regard to TAC 1 concerns its response to the first question of TQ 1, relating to the approach ‘to ensure that consultant CVs remain accurate and up-to-date in terms of structure and content’.
140 The Committee awarded a score of 25 points out of 40 to the applicant, making the following comment:
‘Based on [the applicant]’s document, a process exists; although the quality checks for information inserted in the CVs could be improved (consultants should insert the data, which should then be checked by the manager rather than the other way round). In addition, there is no description on how Project Manager CVs are updated and checked.
Another issue [is] related to the fields existing in EFSA CVs and missing from [the applicant]’s database of CV (levels of proficiency in tools and technologies, can-work-in-EFSA-environment, contract and profile names that need to be translated). The explanation given [on] page 11 was not satisfactory as the [Human Resources] department is unlikely to assess proficiency in technical tools or ability to work in EFSA technical environment.
This would mean that all [the applicant]’s CVs should be reviewed by personnel capable of assigning meaningful values to these 2 fields which are important for EFSA and a process for updating this information should have been presented.’
141 The applicant claims that the procedure which it has implemented corresponds to the approach set out by EFSA in the specifications. It disputes EFSA’s analysis according to which, in the system proposed by the applicant, the project manager updates the CVs of the consultants and that the information is then verified by the consultant himself. It also disputes the finding that it did not indicate the procedure for the updating of project manger CVs, which it claims is equivalent to the procedure for the other consultants. It claims, furthermore, that its tender provides for the updating of CVs by the Human Resources department in collaboration with the consultants. It submits that its Human Resources staff, as is clear from its tender, is composed of qualified and experienced personnel including IT specialists perfectly capable of ensuring the quality of the CVs proposed to clients. It is of the opinion, therefore, that the score of 25 points out of 40 that it obtained for its response to that question is unfounded.
142 First of all, it must be noted that the applicant’s claim that the procedure which it describes corresponds to the approach set out by EFSA is merely a general assertion, unsupported by any specific evidence.
143 Moreover, an examination of the section entitled ‘Accuracy of consultants’ CVs’ in the part of the applicant’s tender relating to TAC 1 shows that the applicant’s other arguments in that respect are equally unfounded. It is evident from that section that the methodology proposed by the applicant provides that the project managers update the consultants’ CVs, in any event as regards the projects on which they work, and that the latter then verify those updates and may contact the Human Resources department in the event of an error. It can also be inferred that there is no specific procedure envisaged for the updating of project manager CVs. Moreover, it is clear that the methodology proposed provides for the formatting of CVs according to a specific format of the applicant’s which is different from the EFSA standard CV annexed to the call for tenders and that, in particular, the field ‘Can work in EFSA technical environment’ is not provided.
144 However, it is true that, as the applicant explains in detail, its tender describes the methodology according to which the staff of the Human Resources department will, if necessary, convert the information contained in the CVs in its own format into the EFSA format. Nevertheless, it cannot be denied that, for EFSA, this procedure is more complicated and less straightforward than if its standard CV was followed in a strict manner. Finally, it is clear that it is the Human Resources department which is responsible for that conversion even though, contrary to what is claimed by the applicant, it is not specified that the department contains staff members who are IT specialists.
145 It follows that the applicant’s arguments are not supported by its tender. As the applicant has not established that the comments of the Committee, and, therefore, the score of 25 points out of 40 which was awarded to it for its response to the first question of TQ 1, are vitiated by manifest errors of assessment, the complaint must be rejected.
146 The applicant’s second complaint concerns the second question of TQ 1, relating to the ‘strategy to maintain the minimum requirements for each of the 13 profiles described in the [specifications]’.
147 The committee awarded a score of 50 points out of 80 to the applicant, stating the following:
‘This part of the [tenderer’s] response is fairly well documented but not substantiated by the CVs provided: out of the 26 profiles, it appears that 24 did not get any training in 2007, yet 14 did not get any training since 2006 and 6 did not get any training since 2005. This also appears to run against the company policy of providing 5 days of training every year for their employees …
Another slight source of concern is that the Career deployment programme … does not mention SMART [specific, measurable, achievable, realistic and time-based] employee objective setting/appraisal, although the rest of the process is described with a fair amount of details. Absence of objective setting/appraisal is not conducive of sound development policies, including training policies.
…
The observation of the [Personal Software Process/Team Software Process (“PSP/TSP”)] is another source of concern. First, trainings in PSP/TSP are not mentioned in the CVs, whereas Carnegie-Mellon University indicates that PSP requires about [ten] days of class-room training, indicating that self-studies generally do not work. Besides, PSP is more geared towards waterfall type of developments, whereas EFSA is committed to iterative development (in PSP engineers are not allowed to move back and forth between phases, known as the problem of “freezing of process definition”).
Section 3.1.5. [entitled] “Best Practices and Lessons Learned” … is quite [interesting] but there are very few details on the process of acquiring and validating the Best Practices and Lessons Learned.
The Competence Centre … does not demonstrate a good understanding of EFSA needs. EFSA does not need its contractors to manage its technology portfolio: EFSA is already structured as a competence centre and thus defines technical standards (as communicated in the tender annexes) and expects all its contractors to follow them.
Although technical advice is always welcome, EFSA needs to be able to make technological [choices] independently, in a fair and transparent way and in accordance with its short and long term strategy. [The applicant] is a company that promotes and provides its tools, so the potential for a conflict of interest is high.
In this sense, [the paragraph entitled] “Key Benefits”, in the point [entitled] “Insurance against undisciplined application teams by enforcing design and coding standards and compatibility testing” is beside the point: EFSA is the one defining coding and testing standards. The only application teams used by EFSA are those provided by the tenderer; EFSA naturally expects that the tenderer has a way to discipline its own application teams.’
148 First, as regards the Committee’s comment in relation to the number of days of training, the applicant claims that the CVs which it submitted correspond fully with what was required in the specifications, that the Committee failed to take account of the ‘project-related trainings’ established for each of the proposed experts and the ‘on-job-training’ which were provided for in its tender, and that, in evaluating the number of days of training of the applicant’s staff, it erroneously took into account periods during which the individuals at issue did not work for the applicant. Moreover, the applicant submits that the average number of days of training for the submitted CVs is 8.2 days for 2005, 6.7 days for 2006 and 1.5 days for 2007 (the figures for 2007 were not final since they reflected the training received up to the day on which the tender was submitted).
149 The applicant’s claim that the CVs which it submitted correspond fully to what was required in the specifications is merely an abstract assertion, unsupported by concrete evidence. Moreover, the applicant does not dispute EFSA’s calculations concerning the number of days of training indicated by the CVs which were presented in a document submitted by EFSA in the written procedure. That document contains an analysis of the number of days of training indicated on the 26 consultants’ CVs submitted by the applicant. The analysis presented by EFSA confirms the findings of the Committee that the CVs submitted did not substantiate the applicant’s policy, described in the tender, of providing at least five days of training per year to its staff. The applicant submits that the Committee took account of periods when the individuals in question did not work for it, but the analysis presented by EFSA attempts to determine the actual periods during which those individuals were in the applicant’s employment. Furthermore, EFSA correctly points out that the applicant’s calculations concerning an average number of days are not relevant to the evaluation of the policy of a minimum of five days training per year referred to in the tender. Although the applicant is correct to point out that the year 2007 was incomplete because it had submitted its tender at the end of June 2007, that does not preclude the finding that, for that year, only 2 CVs out of 26 indicated training. As for the applicant’s arguments that the Committee did not take account of the fact that its tender provided for project-related training for each participant, or of the ‘on-job-training’, the Committee’s approach to evaluating the training courses described in the CVs of the applicant’s staff was not manifestly incorrect in view of the applicant’s very definite claim regarding its training policy, in order to confirm the credibility of that claim.
150 Secondly, as regards the Committee’s remark that the career development programme described in the applicant’s tender does not mention SMART employee-objective setting and appraisal, the applicant claims that it described the establishment of specific career objectives and their monitoring, in section 3.1.1 of the part of its tender relating to TAC 1, entitled ‘Career Development Programme’, and more specifically in the paragraph ‘How employees make their Career Choice’. Its approach includes, in particular, the fixing of employee objectives according to the SMART methodology. It claims, moreover, that it is not mentioned at any point of the tender specifications that EFSA required any specialised methodology as regards the career development programme. In its view, the Committee should have confined itself to evaluating its tender on the basis of performance, efficiency and effectiveness of the proposed programme.
151 The question of setting objectives and appraising consultants relates to the part of the applicant’s tender entitled ‘Career development programme’. Irrespective of the issue of whether, in referring to the SMART methodology, the Committee referred to a criterion which was not mentioned in the call for tenders or whether it simply referred, as EFSA contends, to a methodology recognised as reflecting the best practices in the area of setting employee objectives, it must be noted that the development programme described by the applicant is fairly general and does not provide for the fixing of objectives for each employee or the verification of the achievement of that objective by a superior, as regards training or in a more general manner. The references made by the applicant in the part of its tender entitled ‘Strategy to maintain minimum requirements for consultants’ do not call into question that assessment, since that part of the applicant’s tender concerns the operation of the applicant’s training centre. Accordingly, even if references to setting employee training objectives may be found in that part of the tender, the Committee’s comment that the career development programme described by the applicant for its employees does not provide for a method of setting objectives and regular verification of their achievement is not manifestly incorrect.
152 Thirdly, as regards the Committee’s comment concerning the absence in the tender of references to training courses in PSP/TSP, the applicant points out that PSP/TSP is applied to many parts of the software development process and not exclusively to training activities. As it claims to have specified clearly in paragraph 3.1.4 of the part of its tender relating to TAC 1, entitled ‘Personal & Team Software Process (PSP & TSP)’, its Software Development department has adopted those methodologies. Moreover, the proposed approach does include internal classroom training sessions apart from the self-studies. It also claims that the ‘PSP/TSP’ model is adaptable and can work well with iterative development. Moreover, the applicant submits that it uses both ‘waterfall’ and ‘iterative’ approaches in the implementation of its projects. Finally, it claims that, as it explained in its tender, although the majority of its work follows the iterative model anyway, it is ready to follow any development approach that its clients may seek and therefore, in EFSA’s case, the iterative approach.
153 In that respect, it must be pointed out that, according to paragraph 3.1.4 of the part of the applicant’s tender relating to TAC 1, its Software Development department adopted PSP/TSP as a methodology for software development.
154 It is, furthermore, clear from the documents submitted by the parties that PSP/TSP can be characterised as an analytical framework for analysing and optimising the performance of individual engineers or teams in the development process of computer software.
155 Furthermore, according to the Methodology Annex, EFSA uses the Rational Unified Process (‘RUP’) as its software development methodology. This is an iterative development methodology, which means that each phase of development of a software program contains one or more iterations. This methodology enables a system to be developed while it is being used, as each iteration can be modified. By contrast, the ‘waterfall’ model of software development is based on the concept that a development phase must be completely finished before continuing to a further development stage. In EFSA’s view, the ‘waterfall’ system is less flexible, since it is not possible to move back and forth between different phases.
156 However, the Committee stresses that the use of RUP requires specific training which is not mentioned in the submitted CVs. The applicant does not dispute the fact that the application of RUP is based on training, but claims that it concerns internal or project-specific training which are not mentioned in the CVs. Those arguments, however, do not show that the Committee made manifest errors in finding that it appeared strange that there was no trace of the training relating to RUP if the applicant’s Software Development department had adopted it, as described in detail in the tender.
157 The Committee found, moreover, that RUP does not work well with iterative software development methods such as those used by EFSA and is geared more towards waterfall methodologies. The applicant’s arguments do not make it possible to refute that analysis. It claims, inter alia, that it is possible to use PSP/TSP in an iterative context, but that still does not mean that it is manifestly incorrect to state that the methodology is geared more towards waterfall processes.
158 Finally, it is clear from the documents submitted to the Court by EFSA that the literature relating to the IT sector refers to a problem known as freezing of process definition, which is mentioned by the Committee in its evaluation. The fact, as the applicant claims, that that observation comes from Malaysian or defence industry journals does not call into question the relevance of the content of those publications as regards the methodologies at issue.
159 In view of those elements, it has not been established that the Committee made a manifest error of assessment in questioning the relevance and value for EFSA of the management methodology used by applicant. The argument must therefore be rejected.
160 Fourthly, with regard to the procedure proposed for acquiring and validating the best practices and lessons learned, the applicant claims that the part of its tender relating to best practices and lessons learned concerns, in essence, the correlation between the training activities provided and the best practices and lessons learned and how those practices are beneficial to trainees. However, that part of its tender does not describe its approach in terms of the acquisition and validation of the best practices and lessons learned. Moreover, it claims that the Committee did not take account of the exact content of that part of its tender and should have understood that the process of identifying and validating the best practices and lessons learned was performed in the context of the competence centre’s operation as specified in the relevant part of its tender.
161 It must be recalled that, as regards the part of the applicant’s tender relating to best practices and lessons learned, the Committee stated that it was interesting but contained few details on the process of acquiring and validating the best practices and lessons learned. The inevitable inference is that this part of the applicant’s tender is in fact fairly limited. It contains little information on the actual approaches and does not go beyond the statement of principles. As regards the applicant’s argument that the part of its tender relating to the competence centre also develops that subject, the Committee did not make a manifest error of assessment in evaluating the specific part of the applicant’s tender entitled ‘Best practices and lessons learned’ in relation to its content without seeking potentially relevant information in other parts of the tender at issue. That argument must therefore be rejected.
162 Fifthly, as regards the competence centre, the applicant claims that it proposed to EFSA that it take on some roles and responsibilities of that competence centre in order to develop and maintain EFSA’s capability and innovative strategy in certain cutting-edge technologies. Moreover, although it agrees entirely with the observation that EFSA must be in a position to make technological choices independently, the applicant claims that the Committee failed to explain how the operation of the applicant’s proposed centre of expertise would obstruct EFSA in that respect, since the paragraph of its tender entitled ‘Key Benefits’ explained that its role is to support EFSA in making those choices.
163 With regard to the Committee’s comment that the part of the applicant’s tender relating to the competence centre does not demonstrate a good understanding of EFSA’s needs, it must be noted that the applicant mentions the management of EFSA’s technology portfolio as one of the objectives of the competence centre which it proposes. The Committee, however, did not make any manifest error of assessment in remarking that EFSA does not require such assistance, that it is EFSA itself which manages its technology portfolio, and that the applicant’s vision of the role of its competence centre could give rise to a conflict of interest since the applicant also develops its own technologies. The fact that the applicant denies that it wishes to intervene in the management of EFSA’s technology portfolio and claims that it seeks to act within the parameters defined by EFSA does not show that the Committee made a manifest error of assessment. The arguments relating to the evaluation of the function of the competence centre proposed by the applicant must therefore be rejected.
164 Sixthly, as regards the establishment of design and coding standards and compatibility testing, the applicant claims that its tender indicated that it would follow EFSA’s procedures, methodologies and standards during the performance of the contract. It also stresses that it is fully capable of ensuring the discipline of its own teams.
165 As regards the Committee’s remark that it is EFSA which defines the design and coding standards, the applicant refers to the part of its tender entitled ‘Key benefits’ in which it mentions, as one of the advantages of the proposed competence centre, that, by establishing design and coding standards, it constitutes a guarantee against ‘undisciplined application teams’.
166 It must be held that the observations of the Committee in that respect are simply a reflection of its surprise at the fact that the applicant evokes the possibility of undisciplined teams when those teams would consist of staff provided to EFSA by the applicant itself. As regards the Committee’s remark that it is EFSA which defines the design and coding standards and that the alleged benefit referred to by the applicant is therefore irrelevant, it is not entirely impossible that, as the applicant claims, it was referring to its own review of standards developed by EFSA. Nevertheless, that part of the tender is not devoid of ambiguity, and the Committee was therefore entitled to find – without making a manifest error of assessment – an intention on the part of the applicant actively to intervene in an aspect which EFSA regarded as being within its sole sphere of competence. That argument must therefore also be rejected.
167 Finally, it must be pointed out that the applicant does not contest, in the context of the present plea, the accuracy of the Committee’s observations relating to its level of organisation on the CMM scale, according to which it is clear from the applicant’s tender that its organisation is working towards level 2, which is lower that the level 3 which EFSA was on the way to achieving in 2008.
168 It follows from the foregoing that it has not been established that the evaluation of the applicant’s response to the second question of TQ 1 and, therefore, the award of a score of 50 points out of 80 on that basis are vitiated by manifest errors of assessment.
169 The applicant’s third complaint concerns the evaluation of its response to the third question of TQ 1, whereby the tenderers were asked to describe ‘how potential consultants [would] be selected and screened to guarantee an adequate level of competence’.
170 The Committee awarded a score of 50 points out of 55 to the applicant, stating the following:
‘[The applicant]’s process is quite similar to EFSA’s.’
171 The applicant submits that the Committee acknowledged that its training approach was quite similar to EFSA’s and should therefore have awarded the applicant a score of 55 points out of 55. In the applicant’s view, the Committee failed to explain why the applicant had not been awarded the maximum number of points. It adds, in response to EFSA’s argument concerning the higher scores awarded to certain tenderers, that the Committee should have evaluated the tenderer’s strategy to maintain the minimum requirements for the proposed consultants, instead of taking account of the number of proposed consultants, which was not requested in the specifications and, furthermore, could have been no more than a selection criterion.
172 It must be noted, first of all, that the score awarded to the applicant for its response to the third question is excellent. As regards the applicant’s argument alleging a failure to state reasons, it must be recalled that, as was found in the context of the first plea in law, EFSA complied with its obligation to state reasons in relation to the rejection of the applicant’s tender. Moreover, as was pointed out in the context of the examination of the first plea in law, a contracting authority cannot be required to communicate to an unsuccessful tenderer, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated.
173 It suffices that the reasoning followed by the authority which adopted the measure be disclosed in a clear and unequivocal fashion (see, to that effect, VIP Car Solutions v Parliament, paragraph 42 above, paragraph 60 and the case-law cited). That is so in the present case. In that respect, it is necessary to take account – in addition to the Committee’s comment referred to in paragraph 170 above – of that fact that, as EFSA points out, the successful tenderer also received a score of 50 points out of 55 for that question. That is confirmed by the document – which compares, inter alia, the tenderers’ scores for each question in the technical questionnaires – that EFSA submitted to the Court and which EFSA, following a written question from the Court, confirmed that it had sent to the applicant before the lodging of the application, a fact which the applicant does not deny. Moreover, the Committee’s report mentions, in relation to the successful tender for TAC 1, that a procedure for the evaluation and selection of consultants was in place, but that the procedure with partner companies was not clear. In addition, the Committee’s report contains comments on the selection processes of other tenderers which obtained the minimum number of points at the selection stage. Therefore, it must be found that this information was sufficient to allow the applicant to understand that it had received a very good score and the reasons for that score.
174 Finally, as regards the applicant’s challenge to the justification of a score of 50 points out of 55 which was awarded to it for its response to the third question of TQ 1, it must be held, first, that the applicant’s argument that the Committee’s comment indicating that the applicant’s approach was quite similar to EFSA’s own approach justified the award of a score of 55 points out of 55 is merely a bald assertion which is not supported by any concrete evidence. The applicant does not put forward any element of its tender to prove the exceptional character of the selection process which it proposes. Nor does it put forward any arguments in support of its claim that the Committee’s comment with regard to the applicant should have led to a higher score than that of the other tenderers. As EFSA points out, having an approach which is similar to EFSA’s own approach for the selection and screening of candidates does not necessarily mean that the approach is perfect.
175 Moreover, in its arguments relating to the details put forward by EFSA before the Court to justify the award of a score of 55 points out of 55 to two other tenderers, the applicant questions, inter alia, the element of assessment arising from the comments in the Committee’s report concerning another tenderer, relating to the presentation of a greater number of consultants than requested, including by undertaking to maintain a pool of 65 available consultants to reassure EFSA as to the level of competence of that pool. The applicant claims that that argument put forward by EFSA proves the use of a criterion not set out in the specifications and of a selective character, the number of consultants proposed being a selection criterion and not an attribution criterion. EFSA contends in that respect that it evaluated, not the number of CVs attached to the tender, but the diversity of the profiles that the tenderers were in a position to propose to it.
176 However, EFSA’s argument is not convincing. The report refers clearly to the number of 65 profiles proposed by one of the tenderers as being a positive element in the assessment of the tender with regard to TAC 1 and EFSA indicates that this was one of the factors which allowed it to award the maximum score for the question at issue. The applicant submits that TAC 1 concerns the strategy for ensuring the quality of the workforce, an assessment at the end of which it was requested that the tenderers submit a total of 26 CVs. Therefore, it is questionable whether the taking into account of the guaranteed availability of a number of profiles in excess of the 26 profiles required to award a maximum score for the question at issue respects the evaluation parameters of the tenders at the award stage set out in the specifications and is reconcilable with the very content of the third question in TQ 1.
177 Nevertheless, even if it is necessary to conclude that such an analysis carried out by EFSA may show a questionable confusion between the selection and award stages of the call for tenders, contrary to the principles referred to in paragraphs 63 to 65 above, the tenderers having proposed a total number of profiles made available to EFSA which is not fewer than 40 and having submitted 26 CVs of profiles respecting certain standard criteria having been judged necessary to perform the contract, it cannot be concluded from those findings that the score of 50 points out of 55 is manifestly incorrect. At most, it might call into question, in part, the maximum score awarded to the tenderer concerned. As mentioned in paragraph 174 above, the applicant did not produce specific arguments which would lead to the conclusion that the very good score of 50 points out of 55 which it obtained was insufficient in view of the intrinsic qualities of its tender.
178 It has not therefore been established that the evaluation of the applicant’s response to the third question of TQ 1 and, thus, the score of 50 points out of 55 awarded on that basis are manifestly incorrect.
179 The applicant’s fourth complaint concerns the fourth question of TQ 1, whereby the tenderers were asked to describe ‘the actions foreseen to ensure that staff is fully trained, and remains knowledgeable, in all aspects related to the core technologies described in [the Technical Annex]’ and to indicate ‘the minimal number of hours of training per year per individual consultant and the minimal average for all consultants employed at EFSA’.
180 The Committee awarded a score of 35 points out of 65 to the applicant, stating the following:
‘The theory of training is good. Although a minimum of 40 hours per year is indicated, the CVs do not exhibit compliance with this policy.
Of concern to EFSA is the fact that the process of setting objectives/appraisal does not appear to be enforced, which makes [it] difficult to understand how an effective development plan, including training plan, can be elaborated and followed up upon.
A number of trainings in EFSA Core technologies is missing … for section 6.2. [of the part of the tender relating to TEC 1]. There are, however, a number of trainings irrelevant for EFSA … .’
181 First, the applicant claims that the Committee admits that its training approach was good and thus compliant with the tender specifications. Furthermore, it submits that, in the course of the assessment of the staff’s training programmes, the Committee did not include the project-related training hours gained by the consultants’ participation in projects or contracts as described in section 3.1.3 of the part of its tender relating to TAC 1, entitled ‘Project Related Training’. In its view, the submitted CVs confirm its training approach, based on the fact that the average training hours were 49.2 hours for 2005, 40.2 hours for 2006 and 9 hours for 2007, the latter average being based on provisional figures and concerning only a part of the year.
182 Secondly, the Committee’s observation that ‘the process of setting objectives/appraisal does not appear to be enforced’ is, according to the applicant, incorrect. The applicant claims that, in section 4.2 of the part of its tender relating to TAC 1, entitled ‘Organisation of the Training Centre’, it set out its methodology and strategy for assigning trainers and for performing an evaluation of the training programme through specific indicators. Moreover, it claims that section 4.4 of that part of its tender, entitled ‘Training Methodology’, describes in detail its overall training strategy. Likewise, section 4.5 of the same part of the tender, entitled ‘Organisation of the Training’ and, in particular, section 4.5.1 of the part in question of its tender, entitled ‘Defining Training Objectives’, contains a detailed description of its approach for defining the training objectives and the appraisals. Section 4.5.2 of the same part of its tender, entitled, ‘Training Plan’ sets out a plan based on the definition of training objectives, appraisals, and clients’ needs and their monitoring, ensuring the proper and effective implementation of the development plan. It adds in the reply that the Committee misconstrued its methods of fixing objectives and appraisals proposed for training personnel by focusing on the processes for fixing objectives and appraisal of its staff.
183 Thirdly, the applicant claims that, in its tender, it presented training courses which were already established and which covered the majority of EFSA’s core technologies. Moreover, it submits that section 6.2 of the part of its tender relating to TAC 1 presents its approach as regards the preparation and establishment of the training sessions through the identification of the business needs of its clients, technical trends, and up‑to‑date methodologies. In the applicant’s view, the Committee should have assessed the applicant’s methodologies in identifying and organising the training courses instead of the existing training sessions which serve the needs of other clients, such as those referred to in that section, which does not exclusively concern the framework contract at issue. It claims, furthermore, that the Committee’s allegation that its tender does not provide for training in some of the core technologies used by EFSA is incorrect and arises from an incomplete examination of the proposed training sessions. It indicates, in addition, that it clearly committed in its tender to involving well-educated and fully trained experts and to providing, following professional methodologies in strict compliance with the tender specifications, all the necessary training required to satisfy the needs of EFSA. Finally, the applicant submits that, by focusing its attention on the existing training, the Committee failed to evaluate its tender on the basis of its capacity to organise and manage training programmes, but rather evaluated it on the basis of training and certification programmes existing prior to the call for tenders, which amounts to applying, to the applicant, not only a new criterion but also a selection criterion.
184 In that respect, it must first be pointed out that the applicant’s assertion that its approach in the area of training, having been found to be good by the Committee, was therefore in compliance with the call for tenders must be rejected. It is clear from the Committee’s comments reproduced in paragraph 180 above that the Committee’s positive remark is accompanied by several points of criticism. Moreover, the first sentence of the first paragraph of that comment confines itself to validating the proposed theoretical approach, implying that there are practical aspects arising from the tender which appear less positive to the Committee. As regards the applicant’s argument relating the minimum number of training hours per year, EFSA cannot claim that the average number of training hours, which the applicant relies on before the Court, is not relevant. The wording of the fourth question of TQ 1 also refers to the minimum average number of training hours for all staff employed at EFSA. Nevertheless, that question also concerns the minimum number of training hours per year per proposed consultant. The elements put forward by the applicant therefore do not justify the conclusion that EFSA made a manifest error of assessment in verifying the credibility of the policy described by the applicant on the basis of the content of the proposed consultants’ CVs.
185 Secondly, as regards the establishment of training objectives and the assessment of their achievement, an examination of section 4 of the part of the applicant’s tender relating to TAC 1 also does not lead to the conclusion that the Committee erred manifestly in its finding that the applicant did not propose a strategy for setting individual objectives for the consultants, in particular in the area of training, and for verification by a hierarchical superior of the attainment of those objectives, a concern which the Committee had already raised in its evaluation of the applicant’s response to the second question of TQ 1. In that respect, EFSA indicates that the section in question does not describe clearly a process of establishing training objectives on the basis of the individual situations of employees and monitoring of their progress. Therefore, EFSA submits that, although the tender may contain general references to such aspects, to which the applicant refers, it cannot be denied that the applicant’s presentation in that section, entitled ‘Ensuring knowledge and training of the consultants’, is focused rather on the processes and practical aspects of the organisation of training courses.
186 Finally, as EFSA points out, the Committee was entitled to find, without making a manifest error of assessment, that a strategy which places greater emphasis on a development and training plan for individuals was not the most effective for maintaining the team’s level of knowledge, in particular as regards the core technologies.
187 Thirdly, as regards the specific training in core technologies, the applicant states that the list included in section 6.2 of the part of its tender relating to TAC 1 refers to training courses which are ‘directly related’ to various technologies and training courses which concern technologies ‘related’ to a particular technology. However, the presence, on that list, of training courses ‘related’ to certain core technologies used by EFSA does not imply that the Committee’s finding that the applicant’s tender did not provide for training courses in certain core technologies is, as such, manifestly wrong. Nor has the applicant put forward arguments to refute the finding that that list features numerous training courses which are irrelevant to EFSA.
188 With regard to the applicant’s argument that, first, the list included in section 6.2 of the part of its tender relating to TAC 1 concerns existing training courses which are, therefore, also relevant to other projects, but that it naturally committed to providing all the necessary training required for the project at issue and, secondly, the Committee should evaluate only the strategy which it proposed and not base its analysis on a portfolio of existing training courses, it is necessary to point out that the section in question, and in particular table 9, ‘Relevant Technical Training and Certifications Programs’, have clearly been drafted in view of the performance of the framework-contract at issue. That is clear from, for example, the introductory sentence, according to which ‘[t]he Tenderer presents a detailed list of the training executed and certifications obtained for the consultants proposed for the delivery of the services required under the … Framework Contract’. Accordingly, as EFSA correctly points out, it is the applicant which characterised the list in question as being specifically relevant for the evaluation of the guaranteed level of service for the performance of the framework contract. Therefore, it cannot criticise the Committee for having interpreted the aforementioned list in that manner, rather than as a list of all the training courses which the members of staff have received in general, from which it should not draw conclusions regarding the applicant’s proposals for the performance of the tendered contract at issue. Finally, the Committee did not commit a manifest error of assessment in examining that specific information and in not merely accepting the applicant’s general assertion that it would provide, in compliance with the specifications, all the necessary training required to meet EFSA’s needs in order to award it a higher score.
189 It follows that the applicant has not established that the evaluation of its response to the fourth question of TQ 1 and the score of 35 out of 65 points which was awarded to it on that basis are vitiated by manifest errors of assessment.
190 The applicant’s fifth complaint concerns the fifth question of TQ 1, where the tenderers were asked to indicate their ‘approach to technical certification’, ‘the minimal rate of relevant technical certification for you[r] operational staff, detailed per profile’ and ‘how the execution of these requirements will be notified to EFSA’.
191 The Committee awarded a score of 20 points out of 50 to the applicant, stating the following:
‘In section 4.3.5 [of the part of the tender relating to TEC 1], the tenderer indicates that “the Tenderer’s key personnel possess certifications from major IT leader vendors” … Alas, there are only 10 profiles with certification, 16 without. There is only [one] with a … Junior Network Engineer certification and [four] with [a Microsoft certification].’
192 The applicant claims that the Committee’s comment is ‘incorrect’. It submits that, in its offer, it referred to its key personnel and not to the specific CVs which were presented in its tender solely in order to comply with the selection criteria. It points out that, in accordance with the specifications, the tenderers were invited, at the award stage, to present their approach as regards a certification programme. Moreover, according to the applicant, the expertise of an expert does not result solely from the fact that he has a certificate, since an expert can acquire the highest possible level of professional experience in any given technology area or product, through professional experience and participation in project-specific training courses, even if he does not hold any specific certification. Consequently, the applicant claims that, by basing its evaluation on the number of certifications obtained by the proposed experts, the Committee committed ‘a serious error’. The applicant adds that, if EFSA wanted experts with specific certifications, it should have been specified so in the specifications.
193 It must be pointed out that the applicant’s arguments concern in part the issue of the distinction of the selection and award stages which has already been examined in the context of the second plea in law, to which reference is made. In the context of the present plea, alleging manifest errors of assessment, it is appropriate to examine solely the arguments relating to the issue of whether, in view of the content of the applicant’s response to the fifth question of TQ 1, and the arguments which it raised before the Court, the Committee’s comments and, consequently, the score awarded to the applicant for its answer to that question are manifestly incorrect.
194 In that respect, it must be noted that, in section 4.3.5 of the part of its tender relating to TAC 1 and, in particular, in section 6 of that part of its tender, entitled ‘Approach to Technical Certification’, the applicant describes its certification policy. There the applicant states very clearly that its key personnel possess certifications from major IT leader vendors, citing several of them. The Committee found that the submitted CVs did not support that claim.
195 As has been pointed out in the context of the examination of the second plea in law, the Committee, in doing so, based its evaluation on the relevant part of the applicant’s tender. The applicant cannot therefore claim that the Committee thus evaluated its tender by taking account of the number of certificates from vendors possessed by the proposed experts. Moreover, it has not been established that the Committee did not take account of the methodology proposed by the applicant. Furthermore, the applicant has not put forward any argument to defend the merits of its methodology. The Committee’s comment emphasises an inconsistency between the applicant’s statements in the relevant part of its tender and the content of the CVs which it submitted, thus calling into question the credibility of the relevant parts of the applicant’s tender. Since the applicant does not refute the substance of the Committee’s findings as to the content of the CVs which it submitted, it has not been established that the Committee’s comment and the score awarded to the applicant are manifestly incorrect.
196 Moreover, as regards the applicant’s argument that an expert’s expertise does not result solely from the fact that he possesses a certification, that argument concerns the issue of whether a question relating to certification is relevant for purposes of evaluating a tenderer’s strategy for ensuring the level of the team in accordance with the objective of TAC 1. Such an argument is therefore ineffective in the context of the present plea.
197 Finally, before the Court, EFSA expanded the reasons given by the Committee, on the one hand, by linking them to a statement in the tender according to which the applicant’s strategy is based on the acquisition of at least one certification per year, and on the other hand, by repeating an argument relating rather to the previous question concerning the training courses and according to which the list of certification programmes in section 6.2 of the part of the applicant’s tender relating to TAC 1 does not mention EFSA’s key suppliers. However, that new and belated statement of reason cannot be taken into consideration for the purpose of assessing whether or not the score awarded to the applicant for that question is manifestly incorrect.
198 Nevertheless, in view of the findings set out in paragraphs 195 and 196 above, it has not been established that the Committee made a manifest error of assessment in awarding the applicant a score of 20 points out of 50 for its answer to the fifth question of TQ 1.
199 The applicant’s sixth complaint concerns the sixth question of TQ 1, by which the tenderers were asked to indicate ‘the training measures put into place to train consultants in non-IT areas such as customer services, team working, oral/written communication, etc.’.
200 The committee awarded the applicant a score of 10 points out of 30, stating the following:
‘The training measures appear quite good, but only [five] CVs exhibit trainings in non-IT areas. Of concern for EFSA is the fact that consultants that would practically benefit from non-IT trainings (technical writers, trainers, helpdesk personnel) have generally never received non-IT trainings, [with] the exception of a technical writer in 2002.’
201 The applicant submits that the Committee admitted that its proposed training measures appear quite good. In its view, its tender fully covers and even exceeds the requirements of EFSA as regards the technical writers, trainers and helpdesk personnel mentioned by the Committee. It claims that the Committee should have evaluated its approach in identifying the non-IT training needs, the organisation of non-IT training sessions, and the provision of those sessions to its personnel, instead of evaluating the submitted CVs, which had already been evaluated at the selection stage. It adds that EFSA’s argument concerning the alleged lack of an employee objective setting/appraisal process is new, as the Committee based its low scores on the CVs submitted. It contests the claim that it did not describe an employee objective setting/appraisal process in its tender, which contains, according to the applicant, a detailed account of its approach, based clearly on such a process, and refers to its arguments concerning the second question of TQ 1.
202 It must be pointed out that the applicant’s arguments concerning the issue of the distinction between the selection and award stages have been rejected in the context of the second plea in law examined above. In the context of the present plea, which alleges manifest errors of assessment, it is necessary to examine only the arguments relating to the issue of whether or not, in view of the content of the applicant’s response to the sixth question of TQ 1 and the arguments that it raised before the Court, the Committee’s comments and, consequently, the score awarded to the applicant for its response to that question are manifestly incorrect.
203 In that respect, it cannot be argued that the Committee did not examine the relevant part of the applicant’s tender, in particular the part of its tender relating to TAC 1, entitled ‘Training in non-IT areas’, in awarding the score at issue. It must be noted, first, that the applicant presented, in that section, its strategy in that area and the training courses which it proposed for its employees in general and in the context of the performance of the framework contract, and, secondly, that the Committee found that strategy to be quite good, as is clear from the first sentence of the comment referred to in paragraph 200 above. Moreover, the applicant’s argument that its tender fully covers and even exceeds EFSA’s requirements for certain profiles amounts to an abstract affirmation which is not supported by any concrete evidence.
204 As regards the Committee’s observations relating to the content of the submitted CVs, it must be observed that the applicant, in its tender, emphasises the importance attached to personal development training within its company, such as communication skills, presentation, teamwork, or customer service. Therefore, in finding that very little training in those areas was indicated in the 26 CVs submitted for the purposes of the evaluation of TAC 1 – in particular for the profiles requiring such training – the Committee stressed a credibility problem with the applicant’s tender. Moreover, the applicant does not contest the substance of the Committee’s findings as to the content of the CVs.
205 However, the applicant is correct in claiming that EFSA has put forward arguments before the Court which do not arise from the Committee’s comments, including its claim that the Committee took account of the lack of an employee objective setting/appraisal process in the assessment of that question, which would not have been conducive to sound development and training policies. Those statements of reason put forward by EFSA are new and belated and must be set aside.
206 Nevertheless, in view of the findings in paragraphs 203 and 204 above, the fact remains that the applicant has not established that the evaluation of its response to the sixth question of TQ 1 and, therefore, the award of a score of 10 points out of 30 in that regard are vitiated by a manifest error of assessment.
207 The applicant’s seventh complaint concerns the seventh question of TQ 1, where the tenderers were asked to ‘list the non-core technologies, tools and methodologies (described in [the Technical Annex]) that [their] consultants are proficient with’ and to ‘describe the actions foreseen to ensure that [their] staff is fully trained in and remains knowledgeable in all aspects related to these non-core technologies’. They were also asked to indicate whether ‘the actions [were] the same as in [the fourth] question [of TQ 1]’.
208 The Committee awarded the applicant a score of 40 points out of 80, stating the following:
‘Most non-core technologies are mentioned in the consultant CVs, [with] the exception of [several technologies].
Of concern to EFSA is the fact that there was a confusion between [the technologies of one company] (a number of consultant[s] [have] indicated experience with [two of those technologies] through the project DIGIFLOW 3, which does not make use of those products, but rather of [other technologies]).
Other confusions were of concern for EFSA, with regards to the tenderer’s understanding of technology landscape …
In addition, the concerns expressed in point 4 also apply here.’
209 As regards the first paragraph of those comments, relating to the fact that most of the non-core technologies used by EFSA are mentioned in the CVs, the applicant claims that the Committee appears to consider negatively the fact that some of the non‑core technologies are not mentioned in those CVs. In its view, that comment is unfounded since the specifications specify that most of the non-core technologies should be mentioned in the CVs. Moreover, it submits that its proposed consultants have extensive experience and expertise in technologies equivalent to all the non-core technologies at issue, as specified in section 8.2 of the part of the applicant’s tender relating to TAC 1.
210 As regards the second paragraph of the Committee’s comments, relating to an alleged confusion in the tender between the products of one company, the applicant claims that the Committee misconstrued its proposal. According to the applicant, the two technologies in question are not mentioned in the field ‘Technologies and methodologies used by the employee in the project’ in the CVs of the consultants who participated in the Digiflow 3 project, but are referenced in the field ‘Project Description’ of those CVs. That, the applicant claims, is due to the fact that those technologies were studied in the first phases of that project and were, at the moment of the submission of the tender, examined to be used in the third phase of that project. The applicant submits that, in that respect, those technologies had not yet been implemented, which is why they were not included under the relevant field of each consultant’s CV. Nevertheless, in the applicant’s view, its proposed consultants demonstrate excellent knowledge and expertise in those technologies. Furthermore, it contests, in detail, EFSA’s arguments concerning the alleged lack of care displayed in table No 11, included in section 8 of the part of its tender relating to TAC 1, and claims that that table complies with the specifications. It also contests the claim that the submitted CVs contained inconsistencies in relation to the technologies at issue, and submits that EFSA acted unlawfully in contacting the vendor of a certain product in order to verify certain statements in its tender, an evaluation which, moreover, ought, in its view, to have taken place at the selection stage.
211 As regards the third paragraph of the Committee’s comments, relating to the alleged confusion with regard to certain other technologies, the applicant claims that the reference to those ‘confusions’ is unfounded, since it describes, in section 8.2 of the part of its tender relating to TAC 1, tools which are equivalent to the scope or feature of the non-core technologies used by EFSA, therefore guaranteeing that the experts in question are capable of offering their services successfully. The applicant submits that it is also precisely for that reason that the CVs of those experts were found to comply with the tender specifications, thereby making the applicant’s selection possible. Moreover, according to the applicant, EFSA – in response to a question posed by the tenderers – stated that knowledge of the non-core technologies in issue was not mandatory but would be considered an asset. The applicant submits that its tender covered, apart from all the core technologies used by EFSA, 25 of the 31 non-core technologies directly and, indirectly, all of the non-core technologies. Furthermore, it refutes EFSA’s arguments concerning inconsistencies allegedly identified in table No 11 included in section 8 of the part of its tender relating to TAC 1.
212 As regards the fourth paragraph of the Committee’s comments, relating to ‘the concerns expressed in point 4’, the applicant claims that it has shown in its arguments concerning the fourth question of TQ 1 that the remarks at issue were incorrect.
213 It must be pointed out that section 8 of the part of the applicant’s tender relating to TAC 1, entitled ‘Tenderer’s proficiency with non-core technologies, tools and methodologies’, contains a table referring to the non-core technologies used by EFSA, as indicated in the Technical Annex, in which the consultants proposed by the applicant are proficient, and also indicating the technologies in which they are proficient which are equivalent to those technologies.
214 In the applicant’s view, the first paragraph of the Committee’s comment is a negative remark. However, it must be pointed out that EFSA’s observation, according to which it is a neutral comment noting a large number of non-core technologies, is entirely plausible. Contrary to what is claimed by the applicant, it in no way follows from that comment that its tender was penalised for having mentioned an insufficient number of non-core technologies in the CVs, which would indeed have been difficult to reconcile with the specifications, which specify that it is sufficient that the consultants are proficient in technologies equivalent to the non-core technologies mentioned therein.
215 As regards the second paragraph of the Committee’s comments, the Committee’s remark that is evident from the applicant’s tender, and in particular from some of the submitted CVs, that there was confusion between the technologies of one company has not been rebutted by the applicant.
216 In the present case, the Committee identified an inconsistency between the parts of the applicant’s tender relating to technical expertise in the CVs in question, mentioning two technologies of one company, and the parts of that tender relating to the projects on which the individuals concerned had worked, which had to mention the same technologies. Nevertheless, the applicant claims that the description of the Digiflow 3 project mentioned those technologies each time, and that the technologies at issue were studied during the first phase of that project. That argument does not, however, demonstrate that the Committee’s comment relating to the identified inconsistency was manifestly incorrect. Moreover, as EFSA properly points out, it is surprising that the study of a technology in a preliminary phase of a project, where that technology was not actually used in the project, could give the individuals in question a level of proficiency of five on a scale of one to five. It must therefore be concluded that the second paragraph of the comment is not manifestly incorrect, without it being necessary to rule on the lawfulness of EFSA’s actions, contested by the applicant, consisting in contacting, at the award stage, the company concerned to confirm information mentioned in the CVs submitted by the applicant regarding the technologies used in the context of the Digiflow 3 project. In any event, the applicant does not specify what rule or what right was thereby infringed, but merely states, in essence, that the Committee was not authorised to make contact with a technology vendor with regard to its tender.
217 The third paragraph of the Committee’s comments, as EFSA submits before the Court, concerns a lack of precision and care in the preparation of table No 11 in section 8 of the part of the applicant’s tender relating to TAC 1, in particular inasmuch as the applicant presents certain technologies in which its consultants are proficient as being equivalent to non-core technologies used by EFSA, but EFSA considers that they are not equivalent.
218 In that respect, it must be noted that EFSA has presented convincing arguments before the Court concerning the examples mentioned by the Committee, which the applicant has not been able to rebut. Accordingly, with regard to one product which was compared to another, cited by the applicant as being equivalent, the applicant’s argument that the second product is also an ‘object’ based database, and the documents submitted in that respect indicating that the company which developed the second product have products reducing the differences between ‘object’ databases and relational databases, do not provide specific evidence that EFSA’s argument – that the second product is not equivalent to the first product – is manifestly incorrect. With regard to the tool for tracking programming, the applicant’s argument that this system allows the export of information to a project management program cannot invalidate EFSA’s claim that it would be difficult and unproductive to use that program for the features provided by the tool in question. Finally, as regards the Enterprise Application Integration system, EFSA’s arguments that the products mentioned by the applicant are Integrated Development Environments, which do not correspond to an ‘Application Bus [such as that at issue]’ are not called into question by the applicant’s argument that a platform covers some of the functionalities of that Enterprise Application Integration system as regards their scope.
219 The applicant’s argument that, in any case, it stated that it would use the tools 100% as requested by EFSA is irrelevant to the Committee’s task, namely to determine whether the tenderers were sufficiently proficient in non‑core tools or the equivalent to optimise efficiency of the performance of the contract.
220 It must therefore be concluded that the Committee did not make a manifest error of assessment in finding that table No 11 in section 8 of the part of the applicant’s tender relating to TAC 1 showed multiple weaknesses, without it being necessary to examine the other examples of inaccuracies put forward by EFSA before the Court. Finally, as regards EFSA’s argument relating to the number of non-core technologies which were not mentioned in the CVs – a calculation carried out by EFSA in its rejoinder in response to the applicant’s arguments in that respect – besides the fact that it conflicts with the specifications which indicated that it was sufficient that the consultants be proficient in technologies equivalent to the non-core technologies, it is not necessary to take it into consideration, since it is a reason which does not follow from the evaluation sent to the applicant before the application was lodged.
221 The fourth paragraph of the Committee’s comments refer to the evaluation of the applicant’s response to the second question of TQ 1, which is not vitiated by manifest errors of assessment (see paragraphs 146 to 168 above). Therefore, those comments are also relevant for the purpose of justifying the score awarded in respect of the seventh question.
222 In view of the foregoing, it has not been established that the evaluation of the applicant’s response to the seventh question of TQ 1 and the score of 40 points out of 80 awarded in that respect are manifestly incorrect.
223 Accordingly, the evaluation of the applicant’s tender in respect of TAC 1 and the score of 230 points out of 400 awarded to the applicant in that regard are not vitiated by manifest errors of assessment.
Complaints concerning TAC 2, relating to the ‘Method proposed to manage the assignment’, and the evaluation of the applicant’s responses to TQ 2
224 As a preliminary, it must be noted that the parties’ arguments relating to the evaluation of the applicant’s response to the second question of TQ 2 will not be examined in the context of the present plea, since the Court concluded in the context of the second plea above that the taking into consideration of the applicant’s prior experience with EFSA in order to award the applicant a low score for that question is vitiated by unlawfulness.
225 Moreover, in the application, the applicant did not develop arguments concerning the evaluation of its response to the third question of TQ 2 in the context of this plea, as it merely claimed that the question had led to the taking into consideration of a criterion which was not set out in the specifications. Consequently, the applicant’s arguments in relation to that question, set out in the reply and in the context of the third plea, calling into question for the first time the evaluation of the applicant’s tender as regards TAC 2 on the merits, must be rejected as inadmissible on the ground of being out of time. Under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, every application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Joined Cases T‑102/07 and T‑120/07 Freistaat Sachsen and Others v Commission [2010] ECR II‑585, paragraph 86 and the case-law cited).
226 Therefore, the applicant’s first complaint concerning TQ 2 examined on the merits in the context of this plea concerns its response to the first question of TQ 2, whereby the tenderers are requested to indicate how their companies are ‘structured to respond to EFSA work orders, in compliance with the Service Level Requirement 3.1 to 3.4, described in Annex A2 – [SLR]’.
227 That question concerns section 2, entitled ‘Tenderer’s Organisation’, of the part of the applicant’s tender relating to TAC 2.
228 The evaluation involves five separate points of criticism which are called into question by the applicant. The applicant also points to the Committee’s rather positive introductory comment, which states that the applicant provided an interesting description of EFSA’s organisation. However, in contrast to what the applicant claims, that positive remark does not prevent the Committee from pointing out weak points, justifying a potentially lower score. The applicant obtained a score of 30 points out of 50 for its response to the first question of TQ 2.
229 The Committee’s first point of criticism is as follows:
‘Only [three] points of contacts. EFSA does not want to deal with more than 3 points of contacts (Account Manager, Administrative Contact and Technical Account manager) ... Although intruding a Quality manager is a positive step, EFSA would strongly prefer to only deal with the three contacts above and have the Quality Manager report to the Account Manager or to the Technical Manager.’
230 The applicant claims that, in accordance with the specifications, it proposed three contact points, namely an Account Manager, an Administrative Contact and a Technical Account Manager. Within the part of its tender relating to supervision, the applicant included a Quality Manager and two teams; a Quality Assurance Team and a Quotation Team, each with clearly defined responsibilities to provide assistance to the three contact points. Thus, the applicant claims that the comment relating to EFSA’s preference for only three contact points is incorrect, as the Quality Manager which it proposed would report to the Account Manager.
231 It follows from the description of the various profiles proposed by the applicant to manage the performance of the framework contract in the part of its tender relating to TAC 2 that it proposed an Account Manager, an Administrative Contact, a Technical Account Manager, a Quality Manager and two teams; a Quality Assurance Team and a Quotation team. EFSA seeks to establish that this structure is different from what was requested in the specifications, and in particular in the SLR, where the interaction between EFSA and the tenderer is clearly to be carried out through three contacts (an Account Manager, an Administrative Contact and a Technical Account Manager).
232 In that respect, EFSA points to the absence of any real difference between the Technical Account Manager profile and the Account Manager profile proposed by the applicant. However, as that element of assessment does not follow from the Committee’s evaluation, it is not necessary to take it into consideration in the context of the present analysis.
233 Next, the applicant correctly points out that section 2.2.5 of the part of its tender relating to TAC 2 expressly states that the Quality Manager, who supervises the Quality Assurance Team, reports to the Account Manager. It appears, therefore, that the second sentence of the Committee’s criticism referred to in paragraph 229 above does not take account of that statement. Nevertheless, that does not call into question EFSA’s analysis according to which section 2 of the part of the applicant’s tender relating to TAC 2 – in particular where the organisation of the services is described – mentions, on several occasions, interaction between that Quality Manager and EFSA. Thus, in section 2.1 of that part of the tender, the Quality Manager is mentioned in a list of individuals illustrating that ‘at each level the Contractor will provide a single person to interface with the EFSA’. Likewise, the description of the role of Quality Manager in section 2.2.5 of that part of the tender refers to the development by the Quality Manager of quality assurance procedures and all quality aspects of the framework contract in collaboration with EFSA. It follows that – even though the Committee’s comment is contradicted by an express statement in the tender concerning the fact that the Quality Manager must report to the Account Manger or to the Technical Account Manager – its finding that the Quality Manager is an additional Contact Point with EFSA in comparison to the requirements of the specifications is nevertheless not a manifestly incorrect assessment of the tender.
234 In those circumstances, and given, in addition, the fact that the contradiction in question is part of a comment which is otherwise not manifestly incorrect and which, moreover, constitutes only one of the five points of criticism that the Committee put forward to justify the rather good score of 30 points out of 50 awarded to the applicant, that contradiction cannot, alone, lead to the conclusion that the evaluation of the applicant’s response to the first question of TQ 2 is affected by a manifest error of assessment. Such a conclusion could, in any case, be arrived at only by taking into consideration the other elements of assessment mentioned by the Committee and examined below.
235 The Committee’s second point of criticism is as follows:
‘For Fix-Cost assignment, EFSA would strongly prefer to only deal with the Tenderer’s Project Manager rather than a Team Leader, as proposed by the Tenderer. It must be noted that EFSA would much prefer that the Project Manager role be kept to its original definition, as indicated in the Tender Specifications, section 3.1.2.4.2, page 10, rather than in the Tenderer’s response section 2.2.7.1, page 9. Also, EFSA wants from external Project Managers that they become intimately familiar with EFSA Project Methodology. For the delivery of Fix Cost assignments, EFSA would much rather deal with the Project Manager than with a Team Leader.’
236 The applicant claims that, in accordance with the specifications, it proposed the allocation of a project manager for every fixed-cost assignment. It submits that the specifications provide that EFSA is allowed to order the provision of fixed price-services for four different types of service, for three of which EFSA did not want a project manager, that profile being required only for application development services and not for ‘back-office’ systems, network infrastructure, and technical support services. However, in order to ensure a high quality of service even where EFSA would not request a project manager, there would always be a Team Leader. Therefore, the applicant claims, it is not a new or different profile, but a functional role given to the highest ranking member of the team in question. Nor, according to the applicant, would the Team Leader be an additional contact point for EFSA. The applicant submits that the comment relating to an alleged decision not to keep the original definition of the project manager profile is unfounded, since section 2.2.7.1, entitled ‘Project Manager’, of the part of its tender relating to TAC 2 presents the key roles and responsibilities of the staff profiles composing the teams, and not their definition.
237 As regards the comment that EFSA also wants external project managers to become intimately familiar with its project methodology, the applicant submits that the purpose and scope of that comment are not clear. In the applicant’s view, that comment cannot reasonably refer to the submitted CVs of project managers, since those CVs were accepted during the selection process. According to the applicant, the Committee does not specify any section of the applicant’s tender which indicates that the proposed project managers would apply a different methodology to that set out in the specifications.
238 In that respect, it must be pointed out that the applicant has not shown that the Committee made manifest errors in formulating its second point of criticism. The applicant does not deny that it introduced a title which is not provided for in the specifications, which provides only for project managers and not team leaders. Irrespective of whether that title corresponds to a real post or is a functional designation, the Committee was entitled to find, without committing a manifest error of assessment, that the applicant was thereby introducing an element which complicated the proposed work methodology. Moreover, a comparison of the project manager’s profile in the specifications with that described by the applicant in section 2.2.7.1 of the part of its tender relating to TAC 2 shows that the two are actually distinct, the latter description referring, surprisingly, to the guidance of consortium partners even though the presentation of a tender in a consortium bears no relation to the call for tenders at issue in the present case. Moreover, as regards the question of experience with EFSA methodologies, the profile in the specifications mentions, as EFSA points out, the production of project documents as indicated in the Methodology Annex as being one of the three main duties of the project manager, a duty which is not, however, mentioned in the description of the profile provided in the tender. As regards the applicant’s argument concerning the Committee’s comment that EFSA requires external project managers to become intimately familiar with its project methodologies, there is nothing to indicate that, as the applicant appears to seek to claim, that comment concerns profiles additional to those relating to the submitted project manager CVs. That comment can just as well be read as a confirmation of the same criticism that this part of the applicant’s tender has not shown, for the Committee, a sufficient understanding of the requirements set out by EFSA in the specifications concerning the process of dealing with fixed-cost assignments.
239 The Committee’s third point of criticism reads as follows:
‘The ordering process description made by the Tenderer in section 2.3, 2.4 and 2.5 [of the part of its tender relating to TAC 2] is fairly close to the process described by EFSA in [the SLR]. However, a few points seem not completely understood: Acknowledgements to EFSA requests are only by email; the time limits for responding to EFSA requests are set and governed by the SLA and not decided for each request, the presentation of the candidate list for [time and means] requests has to absolutely comply with the Standard format of EFSA CV, presented in Annex A3.’
240 The applicant claims, as regards the issue of the acknowledgement of EFSA requests by e‑mail, that the Committee did not take account of section 2.4.1.3 or of section 2.5.1.3 (page 22) of the part of its tender relating to TAC 2, concerning the method proposed to manage the assignment, in which it is clearly indicated that the acknowledgement of the reception of requests for service would be done via fax, mail or phone, and instead based its negative remarks and low technical mark on the insignificant clerical mistake in section 2.5.1.3, where there is a reference to ‘e-mail’ rather than ‘mail’. In the applicant’s view, that clerical mistake was obvious. It claims, moreover, that it is clear from various parts of its tender, such as sections 2.4.1.3 (page 16), 2.4.1.6 (page 18) or 2.5.1.3 (page 22), that the responses timeframe of the overall ordering procedure was to be predefined by the SLA and EFSA. Finally, the applicant submits that it is indicated in section 2.4.1.4 (pages 16 and 17) that the list of candidates is also accompanied by the actual CVs, in accordance with the predefined template in Annex 3 to the specifications, and a commitment concerning the possible start date of the engagement for each person.
241 It is necessary to analyse the Committee’s comments on the basis of a comparison of section 2.3, entitled ‘Ordering process’ of the part of the applicant’s tender relating to TAC 2 with section 3, entitled ‘Ordering Requests for Services’ and section 4, entitled ‘Service Level Agreement Implementation’, of the SLR. It was indicated in the SLR that the latter described the minimum service level expected by EFSA, although tenderers could provide a higher service level.
242 As regards the manner in which the applicant proposes to respond to time and means requests from EFSA, it follows from section 4.1 of the SLR, relating to the acknowledgement of requests, that EFSA considers that this acknowledgement was to be done by e‑mail, and that it would record the send date and time of the acknowledgment e‑mail. The tender, on the other hand, makes reference to the fact that the acknowledgement of receipt of the request would be effected by fax, e‑mail or telephone. EFSA was therefore entitled to find, without committing a manifest error of assessment, that the acknowledgement of requests was an important element which had not been fully understood by the applicant, irrespective of whether, by the word ‘mail’, the applicant meant ‘e‑mail’.
243 As regards the issue of the response time, it is true that the applicant’s tender states on several occasions that the applicant would respect the time periods set out in the SLA. Nevertheless, those undertakings are vague. One illustration of this, pointed out by EFSA, concerns section 2.4.1.4 of the part of the applicant’s tender relating to TAC 2, concerning the presentation of a list of candidates for the performance of the task, where it is mentioned that CVs would be sent within an agreed duration from the request date. However, it is clear from the SLR, and in particular from section 4.2 concerning the response to a request for service, that EFSA attaches great importance to the tenderers’ responsiveness, and imposes strict minimum time-limits; for example, 10 days to send CVs, a time period for response called ‘TimePrep’. Various time periods are thus defined which are not expressly mentioned by the applicant in its tender. In those circumstances, the Committee was entitled to find, without committing a manifest error of assessment, that such general references to the time periods to be respected constituted a negative point.
244 As regards the issue of the compatibility of the proposed profiles with the standard CVs, the Committee’s criticism refers to the same section 2.4.1.4 of the part of the applicant’s tender relating to TAC 2, where the applicant indicates that a typical candidate list would include the following elements: the name of the candidate, the candidate’s availability date, the candidate’s profile, subcontracting (yes/no), permanent/non permanent staff, CVs, and other significant information relevant to the request. That information is not identical to that requested in the standard CVs, although they include the candidate’s availability date, contrary to what is claimed by EFSA. Admittedly, EFSA’s arguments before the Court referred to the analysis of specific CVs, which show that in the proposed profiles the fields ‘available to start on’ and ‘period available to start on’ are not filled in. The Committee’s criticism does not, however, concern the content of the submitted CVs, but rather the typical list presented in section 2.4.1.4, with the result that EFSA’s argument in that respect must be dismissed.
245 Nevertheless, it follows that the Committee was entitled to find, without committing a manifest error of assessment, that the candidate list that the applicant would present in response to the time and means requests might not be in accordance with the precise requirements set out in the specifications, irrespective of the fact that it linked the presentation of the typical candidate list with a general statement that it would simultaneously send the actual CVs in the standard format in accordance with the specifications. It is the applicant itself which created confusion by presenting a typical candidate list.
246 The fourth point of criticism is as follows:
‘Of serious concern to EFSA is the absence of reference to EFSA Project Methodology in the Tenderer’s response. EFSA IT Unit Project Methodology governs all systems developed at EFSA. For instance, the Tenderer’s Quality Assurance Plan (section 2.5.2 [of the part of the applicant’s tender relating to EFSA], page 24) is positive, but is not aligned with EFSA’s Quality Assurance which includes Acceptance Criteria agreed with the Project Steering Committee (which is not mentioned at all in the Tenderer’s document).’
247 The applicant claims that it was requested to indicate how it was organised to respond to work orders, and not to indicate its project management approach as regards the implementation of the work and the applicable methodologies. It submits that, by referring to the Methodology Annex, the Committee evaluated its tender on the basis of incorrect considerations. The applicant also insists that its proposed structure is in compliance with the SLR specified by EFSA. In that respect, according to the applicant, it is clearly stated in its tender that all the services would be delivered in accordance with the SLR and that the proposed structure would follow the SLA as regards orders and the delivery of services. Moreover, with regard to the Quality Assurance Plan, the applicant claims that the Committee misunderstood its offer. It submits that section 2.5.2.1 of the part of its tender relating to TAC 2 specifies that its Quality Assurance Plan was to monitor the proper execution of projects in accordance with the predefined acceptation criteria established through audits, surveys, control boards, indicators and statistics. According to the applicant, that plan also includes additional acceptance criteria, was to be prepared in accordance with a flexible procedure, and was to be revised to reflect the evolution of the project. Finally, it disputes EFSA’s claim that it did not study the Methodology Annex and stresses that EFSA, in the specifications, did not request tenderers to present their approach as regards the development of fixed-cost projects.
248 With regard to the applicant’s claims that the organisation which it proposed is in accordance with the service level requirements specified by EFSA, that it is clearly stated in its tender that all services would be provided in accordance with those service level requirements, and that the structure proposed would follow the SLA as regards orders and the provision of services, it must be observed that these are general statements which the Committee cannot be criticised for not taking into consideration in order to award the applicant a higher score than the rather good score which it received. Furthermore, such claims, even supported by specific examples in the tender which demonstrate that the applicant proposed to follow EFSA’s methodology, are insufficient to prove that the Committee’s evaluation is manifestly incorrect. In contrast to what is claimed by the applicant, the Committee is not required to show on what points the applicant’s tender diverges from the requirements of the specifications or, in particular, from the methodologies set out by EFSA, but rather the applicant itself is required to produce evidence showing that the Committee’s criticisms of its tender are manifestly incorrect and that the score awarded on the basis of TAC 2 is for that reason manifestly unjustified.
249 With regard to the applicant’s claim that the Committee criticises it for not having taken account of specific elements of the Methodology Annex even though that was not required in the specifications, it must be recalled that the method proposed by the tenderers to manage the performance of the contract was evaluated in the context of TAC 2. Although it is true that the first question of TQ 2 refers specifically to how the tenderers’ organisations are structured to respond to specific work orders in compliance with sections 3.1 to 3.4 of the SLR, which do not make reference to the Methodology Annex, but which describe the minimum requirements to be respected in the practical management of EFSA work orders, that does not, however, imply that the Committee’s observation that the applicant’s tender does not refer to the content of the Methodology Annex is irrelevant. The Committee did not act in a manifestly incorrect manner in assessing whether the management method proposed by the applicant properly implemented the characteristics of the methodologies adopted by EFSA. Admittedly, the Methodology Annex, which is an integral part of the specifications, describes, inter alia, EFSA technology development processes and the related methods. However, such projects are indisputably at the heart of the services for which EFSA was seeking assistance in the context of the call for tenders at issue.
250 Therefore, contrary to what is claimed by the applicant, the Committee was entitled to find, within the context of its broad margin of discretion, that, inter alia, the Quality Assurance Plan set out in detail in section 2.5.2.1 of the part of the tender relating to TAC 2, although it contained positive elements, related to an aspect of project management proposed by the applicant which did not correspond to EFSA’s work methods and would not work well with the project management processes described in the Methodology Annex. As the Committee notes, that annex indicated, in particular, that an important role was given to the ‘Project Steering Committee’, in particular as regards the establishment of acceptance criteria, which determine whether a project is successful. Those concepts are not mentioned in section 2.5.2 of that part of the applicant’s tender. The Committee was therefore entitled to find, without committing a manifest error of assessment, that the applicant’s proposal, though not without merit, did not sufficiently integrate the key aspects of the work methodology adopted by EFSA’s IT department, as specified in the Methodology Annex.
251 Finally, it must be stressed that EFSA put forward certain arguments before the Court, relating, inter alia, to the role of the team leader and to the time periods for delivering monthly reports, which are not touched on in the relevant criticism of the Committee. However, even if EFSA’s arguments in that respect are set aside, the applicant has nevertheless failed to show that the Committee’s fourth point of criticism was vitiated by a manifest error of assessment.
252 The Committee’s fifth point of criticism is as follows:
‘Some very important aspects of EFSA Project Management methodology are not mentioned in the [Tender]; for instance the Transition phase to EFSA Helpdesk (who provides first-line support), to EFSA Infrastructure (who maintains the system) and of course to EFSA users. The Project Management Process described in section 2.5.2.2 [of the part of the applicant’s tender relating to TAC 2], page 26, makes no reference to EFSA essential artefacts, which are described in EFSA Project management methodology and are compulsory for all EFSA projects (Project Inception Document, Construction and Deployment Plan). The same remarks [apply] to section 2.6, entitled “Key Principles for Organising Development Teams”, where no mention of EFSA methodology can be found. In particular, no reference to iterations and RUP in general is made, whereas this is really at the heart of EFSA ways of doing things.’
253 The applicant claims that it is clearly indicated in its tender that the client’s standards and methodologies would be followed. It submits that it was proposed that the procedures and methodologies presented would be applied in general terms and that it was perfectly clear (in particular from page 72 of the part of its tender relating to TAC 2) that, upon signature of the contract, the applicant would undertake to adopt its approach to EFSA’s requirements. To illustrate those statements, it also refers to the ‘Executive Summary’ included in the introduction to its tender. Moreover, it claims that the question at issue refers to the tenderer’s proposed structure for handling EFSA work orders in compliance with the SLR, but that the specifications make no reference to the tenderer’s proposed approach as regards the implementation of work orders and the applicable methodologies, in particular at an EFSA internal level. With regard to the Committee’s observations concerning section 2.5.2.2 of that part of the applicant’s tender, entitled ‘Project Management Processes’, there is, in the applicant’s view, no inconsistency between the ‘practical’ and ‘daily’ processes mentioned in that section and EFSA’s methodology. As regards the Committee’s comment that it makes no reference to EFSA essential artefacts in its tender, the applicant claims that it proposed, for each project, the preparation of a Quality Assurance Plan which would be equivalent to the Project Inception Document and Construction and Deployment Plan requested by EFSA. Finally, the Committee’s comment concerning section 2.6 of that part of the applicant’s tender on the key practices and principles for organising development teams is also, in the applicant’s view, unfounded.
254 It must be pointed out that the Committee’s fifth point of criticism is very similar to the fourth. The applicant does not dispute that its tender does not specifically refer to the Methodology Annex, but merely claims, first, that the Committee’s criticism does not concern requirements set out in the specifications, and secondly, that it proposes processes which are equivalent or similar.
255 In that respect, it is necessary to recall what was pointed out in paragraphs 248 and 249 above, concerning, in particular, the non‑decisive nature of the applicant’s general claims relating to compliance by its tender with the specifications and the not manifestly incorrect nature of the reference to the Methodology Annex.
256 That Methodology Annex sets out, in detail, that IT systems development projects are carried out at EFSA in accordance with RUP, an iterative development methodology comprising four phases (Inception, Elaboration, Construction, and Transition), with each phase containing one or more iterations, as noted above.
257 It must be stated that the applicant has not produced any evidence to support the claim that the Committee’s analysis in that respect is manifestly incorrect. The applicant merely refers to general remarks in the tender concerning its intention to respect EFSA’s methodologies and its experience of the technologies in question, either in a specific part of the tender concerning the maintenance services, which is not at issue, or in the ‘Executive Summary’. However, it is precisely the sections of the part of the tender relating to the response to TQ 2 pointed to by the Committee which contain the applicant’s vision of the management processes of EFSA’s work orders, which is the subject of the question at issue.
258 Section 2.5.2.2, entitled ‘Project Management Processes’, of the part of the applicant’s tender relating to TAC 2 describes several separate processes in the context of the applicant’s performance of EFSA’s fixed-cost orders. Section 2.6 of that part of its tender concerns the key practices and principles for organising development teams proposed by EFSA. It is, however, necessary to point out that none of those sections includes a reference to the methodologies, steps, documentation, and so forth, which are described in the Methodology Annex. Moreover, as EFSA stated in response to a written question from the Court, the specifications mention, inter alia, that the project manager must produce all of the types of documents set out in the Methodology Annex and that this annex includes a list of documents or (artefacts) which are produced in the course of the various project phases of the EFSA IT Unit and the role of those documents. The Committee was therefore entitled to point out, without committing a manifest error of assessment, the lack of reference to those documents, considered as essential by EFSA, in the part of the applicant’s tender at issue. Finally, the references noted by the Court in section 2.6 of that part of the applicant’s tender to the ‘Commission’ or the ‘European Commission’ only confirm the Committee’s assessment, apparent in the criticism at issue, that the applicant had not sufficiently mastered the methods at the heart of EFSA activities in the area of IT.
259 In those circumstances, it must be found that it follows from the analysis made in paragraphs 230 to 258 above that the sole apparent inconsistency between the Committee’s evaluation and the applicant’s tender, pointed out in paragraph 233 above, does not constitute, in the light of the Committee’s numerous other evaluation criteria, sufficient proof that the Committee made a manifest error of assessment in awarding the applicant the score of 30 points out of 50 for its response to the first question of TQ 2. The complaint must therefore be rejected.
260 The applicant’s second complaint concerning TQ 2 examined as to the merits in the context of the present plea concerns its response to the fourth question, asking the tenderers to ‘describe the quality assurance organisation and quality audit organisation to be put in place to ensure an entirely satisfactory execution of the services’.
261 The Committee awarded a score of 22 points out of 30 to the applicant, stating the following:
‘[The applicant] is an ISO 9001 company, which guarantees that a [quality management system] is in place. The issue is that the tenderer promotes its own methods and tools rather than proposing ways to adapt to EFSA methodologies and tools (the EFSA IT Unit Methodology is not referred to, nor are the artefacts recommended by this methodology, such as Project Inception Document, Construction and Deployment Plan, External Design Document, etc).
The EFSA IT Unit project methodology, which accounts for Quality Assurance applies to ALL projects, should they be developed intra- or extra- muros. The artefacts required by the methodology must be produced for all projects, again should they be intra- or extra- muros.
The Audit methodology is very detailed.’
262 The applicant claims that its tender has been misunderstood. In its view, it is clear from Figure 28 in section 5.1 of the part of its tender relating to TQ 2 that the EFSA Quality Control procedures, and the EFSA Standards and Project procedures constituted the platform on which the applicant’s processes were proposed to function. It submits that, as regards the part of the tender relating to TQ 2, the Committee also misunderstood section 5.3.2, entitled ‘Project Quality Plan’, section 5.3.3, entitled ‘Quality Assurance Procedures’, and section 5.3.5, entitled ‘Procedures for Ascertaining the Quality of Services and Products (a Client-Centred Approach)’. It also claims that it is clear from the summary included in the introduction to its tender that quality assurance plays a paramount role in its activities, that it is an ISO 9001:2000 certified company, and that a specific quality management system was to be established for the framework contract, based primarily on EFSA’s procedure and its own ISO procedures. Finally, according to the applicant, its proposed Quality Plan was to meet all of EFSA’s requirements.
263 It must be noted that the score of 22 points out of 30 obtained by the applicant is rather good, and that the Committee evaluated in positive terms the second part of section 5 of the part of the applicant’s tender relating to TAC 2, entitled ‘Quality Assurance and Quality Audit Organisation’, in particular the section relating to the audit. The Committee also acknowledged that a quality management system is in place in the applicant’s organisation.
264 However, as regards the consistency between the first part of section 5 of the part of the applicant’s tender relating to TAC 2, concerning the Quality Management System proposed by the applicant, and the Methodology Annex, it must be stated that, in that first part of section 5, the applicant merely describes the methods of quality assurance in place within its organisation, but no reference is there made to the specifics of the procedures described in the Methodology Annex or, in particular, to the specific artefacts mentioned by the Committee, such as the Project Inception Document, the Construction and Deployment Plan, or the External Design Document. Again, the applicant’s references to statements contained in the summary included in the introduction to its tender are irrelevant, since the Committee calls into question the lack of specific elements relating to EFSA in the relevant sections of the applicant’s tender. Likewise, as regards the applicant’s statement that its procedures would be applied on the basis of the platform of EFSA’s methodologies, as is allegedly evident from, inter alia, Figure 28 in section 5.1 of that part of its tender, in must be stated that that diagram contains only a very general reference to the ‘client’ quality control system. As for the role of the project quality plan proposed in section 5.3.2 of that part of its tender, in contrast to what is claimed by the applicant, EFSA was entitled to find, within the context of its broad margin of discretion, that, in view of the fact that this tool clearly did not integrate EFSA’s specific methodologies as set out in the Methodology Annex, it was of reduced value.
265 No manifest error of assessment has therefore been established as regards the Committee’s evaluation of the question at issue and the award of a score of 22 points out of 30 to the applicant on that basis, the references which the Court noted in that part of the tender to the Official Publications Office of the European Communities confirming, moreover, the Committee’s finding that the description of the quality control method proposed by the applicant had not been adapted to meet EFSA’s requirements.
266 The applicant’s third complaint concerning TQ 2 examined on the merits in the context of this plea in law relates to its response to the fifth question asking the tenderers to specify how they would ensure ‘the maintenance of applications that [had] been totally developed by [their] organisation and that [were] in production at EFSA’.
267 The Committee awarded a score of 35 points out of 50 to the applicant, stating the following:
‘The approach for managing the maintenance of applications developed by the Tenderer is very complete, but does not refer at all to EFSA IT Project methodology. Most of the services described account for waterfall approach (e.g. 6.10 Patch Management, page 112).
In addition, little case is made for EFSA existing organisation: First line support of all systems produced by EFSA is provided by EFSA, with a second line support provided by the Tenderer. This is not the approach taken by the Tenderer as explained in section 6.3, entitled “Escalation Levels and Personnel Allocations”, page 84, and in section 6.4, entitled “Handling procedures”, page 86, where no mention of adaptability to EFSA call tracking and call handling processes is made. EFSA is uninclined to change its methodologies and processes to adapt to the tenderer’s.
The approach for managing the maintenance of applications not developed by the Tenderer is fairly complete, except for the knowledge transfer that could take place between the existing entity that manages the application and the Tenderer. The Specialised Knowledge Transfers methodology outlined in section 4.2.4 [of the part of the applicant’s tender relating to TQ 2], page 48, could probably be advantageously adapted for this specific case.’
268 It must be noted that the three points of criticism at issue concern section 6 of the part of the applicant’s tender relating to TQ 2, entitled ‘Maintenance activities’.
269 As regards the Committee’s first point of criticism concerning the lack of references to EFSA methodologies and the use of a waterfall approach, the applicant claims, in essence, that it is clear from section 6 of the part of its tender relating to TAC 2 that it undertakes to apply EFSA’s methodology in the performance of maintenance services. The applicant submits, moreover, that the summary in the introduction to its tender refers expressly to its knowledge of and extensive experience with RUP as an iterative methodology. Furthermore, according to the applicant, the Committee does not specify which of the services proposed by the applicant allegedly consist in a waterfall approach. It also contests the examples put forward by EFSA, taken from section 6.7.2 of that part of its tender, allegedly showing the use of a waterfall approach. The applicant further claims that the comment relating to the applicant’s Patch Management Approach shows that the Committee misunderstood its tender, since, in section 6.10 of that part of its tender, the applicant makes express reference to the performance of tasks in accordance with an incremental, iterative approach.
270 It must be stated that, as in the context of the responses to other questions, the applicant relies on general references in its tender to support its claim that it intended to apply EFSA’s methodologies. It is clear that such general statements, unsupported by concrete evidence, do not constitute sufficient proof that the applicant tried to adapt its tender to meet EFSA’s requirements, or even that the Committee made a manifest error of assessment by examining the more express provisions in the tender.
271 Likewise, a reference, in the part of the tender entitled ‘Executive Summary’, to the applicant’s knowledge and experience of RUP as a methodology is not sufficient proof of its use of iterative technologies in software development or in other phases of the life-cycle of the technologies at issue, such as maintenance, which are primarily in issue.
272 As regards EFSA’s use of iterative methods, rather than the waterfall methods allegedly used by the applicant, the Committee refers to the Methodology Annex. That document, which concerns, in particular, the software development process, also concerns the area of maintenance, as EFSA explained in its reply to a written question addressed to it by the Court, without being contradicted in that respect by the applicant. That annex describes a management methodology based on four phases: Inception, Elaboration, Construction, and Transition, with iterations at each of those phases.
273 Section 6.7 of the part of the applicant’s tender relating to TAC 2 contains a description of the software maintenance process proposed by the applicant, illustrated by diagrams. Various phases are described (Problem Identification, Analysis, Design, Construction, System Test, Acceptance, and Delivery). However, it must be stated that those phases do not correspond to the phases used in the EFSA methodology. Nevertheless, the applicant contests the claim, put forward by the Committee and EFSA, that those phases correspond to a waterfall approach. However, it merely disputes that claim, without adducing any evidence that the phases of the process which it describes, and the related actions, are not part of a waterfall methodology, but could be used in an iterative approach.
274 As regards section 6.10 of the part of its tender relating to TAC 2, entitled ‘Providing Software Patches (Patch management)’, specifically criticised by the Committee as an example of the fact that the applicant proposed a waterfall management method rather that an iterative one, the applicant refers to section 6.10.2 of that part of its tender relating to ‘Testing’, which mentions tasks which, according to the tender, may be carried out in accordance with an incremental iterative approach. It has not, however, put forward arguments capable of refuting EFSA’s analysis that a waterfall approach can include an iterative element at one specific phase, while still being distinct from a real iterative approach with iterations at each phase, but instead merely states that the Committee’s evaluation is incorrect. Such an argument cannot, however, suffice to demonstrate that that analysis is manifestly incorrect.
275 The applicant’s complaints concerning the Committee’s first point of criticism, relating to the lack of references to EFSA’s methodologies and the use of a waterfall approach, must therefore be rejected.
276 As regards the Committee’s second point of criticism, concerning the organisation of first-line and second-line support, the applicant claims that Figures 37 and 38 in its tender show clearly that EFSA is responsible for first-line support, whereas its Technical Support teams are responsible for second- and third-line support. Moreover, it claims that it indicated in section 6.2 of the part of its tender relating to TAC 2 that it would put procedures in place to ensure that requests from specific key personnel among EFSA’s officials would be escalated to its teams, in particular in the areas of management of requests, issues, applications, bugs, etc. According to the applicant, it follows that its Technical Support teams were clearly and obviously identified as being responsible for second-line support to respond to requests from specific EFSA personnel involved in the application of the framework contract. Furthermore, it is specified in section 6.4 of that part of its tender that the following section would contain its propositions regarding the handling of technical support, in particular in Figure 40, and that the procedure described would be adapted to EFSA’s procedures upon signature of the contract. Finally, the applicant contends, Figure 40 sets out the role of the helpdesk and EFSA made a serious error of assessment in indicating that the applicant did not take account of the role of EFSA’s helpdesk.
277 As EFSA points out, the role of its helpdesk is set out in pages 8 and 9 of the specifications. It is clear, in particular, from the description of services sought in the context of the call for tenders that EFSA sought to obtain assistance for its helpdesk and that its helpdesk was to act as a first-line support for users encountering problems with EFSA’s IT infrastructure.
278 Once again, a reading of the relevant parts of the tender, namely section 6.3, entitled ‘Escalation Levels and Personnel Allocation’, and section 6.4, entitled ‘Handling Procedures’, of the part of the tender relating to TAC 2 shows a very general and abstract description of the services proposed by the applicant with regard to the maintenance of software used by EFSA. As regards the interpretation of the various diagrams – in particular Figures 37, 38, and 40 – as EFSA submits, it does not follow from those diagrams that the applicant assigns a role to its helpdesk, but rather that various elements refer to its team as a point of interaction for users. Accordingly, the applicant proposed a management service of all calls received from specific EFSA personnel involved in the performance of the framework contract; according to Figure 38, relating to the Escalation Levels and Personnel Allocation, the final user’s request is sent to the applicant’s ‘helpdesk support team’, serving as ‘1st Level Support’; in Figure 40, relating to incident handling and relevant processes, the roles of recording user requests and approving solutions are carried out by, respectively, the ‘Contractor’s’ technical support team and the Contracting authority; finally, in section 6.4.1, entitled ‘Registration of Problem’, of that part of the tender, reference is made to the registration, by the ‘contractor’ of each service call. It follows from that list of elements that the applicant’s argument that it would only act as second-line support is not credible. Finally, if its tender was misunderstood in that respect, that can be attributable only to a lack of clarity in that part of its tender.
279 As regards the Committee’s third point of criticism, relating to the knowledge transfer procedure, the applicant claims that section 6 of the part of its tender relating to TAC 2 presents in detail the steps and the processes to be deployed for the successful intake and maintenance of applications not developed by the applicant. It submits that its knowledge transfer approach is presented in section 4 of that part of its tender and relates to an on-the-job training programme, which is also applicable to the knowledge transfer that could take place between the existing entity and the applicant. Regarding the criticism that it would have been preferable if that approach was also described in section 6 of that part of its tender, the applicant claims that it explains, in that section, its proposed methodology for managing the interaction with EFSA applications and that it is obvious that the knowledge transfer approach set out in section 4 applies to what is proposed in section 6, since it applies to all aspects of the framework contract.
280 In that respect, it must be stated that the Committee’s criticism at issue is sufficiently balanced inasmuch as it acknowledges, on the one hand, that the applicant’s approach for managing the maintenance of applications which it has not itself developed is relatively complete and, on the other hand, that there is a description of a knowledge transfer process in section 4 of the part of the tender relating to TQ 2, which concerns knowledge transfer.
281 Moreover, the applicant does not contest the fact that section 6 of the part of its tender relating to TAC 2 does not mention knowledge development processes. It claims, however, that the methodology set out in section 4.2.4 of that part of its tender, concerning an accelerated knowledge transfer programme designed to raise the competence levels of a specific team with regard to certain technologies in a short amount of time, should also apply to the scenario in which knowledge transfer between EFSA and the applicant’s staff is necessary in relation to the applications used by EFSA. It must be stated that the Committee does not deny this, but finds that it is regrettable that the applicant did not specifically develop the knowledge transfer aspect in section 6. In the context of the contracting authority’s wide margin of discretion, the Committee was entitled to find, without committing a manifest error of assessment, that a specific description of the knowledge transfer approach would have been appropriate in the context of the response to the question at issue, relating to the organisation of maintenance services by the applicant’s staff of applications that have not been developed by the applicant itself, but are used by EFSA, and that such a description in the context of section 6 would have improved the quality of the tender.
282 It follows from all of the foregoing that the applicant has not established that the evaluation of its responses to TQ 2 and, therefore, the evaluation of its tender as regards TAC 2 and the award of a score of 135 points out of 200 on that basis are vitiated by a manifest error of assessment.
Complaints concerning TAC 3, relating to the ‘Quality of the SLA’
283 The Committee awarded the applicant a score of 253 points out of 400 for the SLA, stating the following:
‘…
– [i]nstead of complying with the 3 interfaces requested, the tenderer proposes, in addition, a quality manager as an interface to EFSA. This is not considered as positive by the [Committee] because EFSA did not request and does not want to have too many interfaces to deal with during the implementation of the contract;
– [t]he tenderer proposed a quality Assurance team to work with the interfaces proposed. This does not have any practical result;
– [n]o processes description. No WEB portal;
– [s]pecific contracts reporting is proposed.’
284 It is necessary first to examine the Committee’s fourth comment, relating to the proposal of specific contracts reporting.
285 The applicant claims that EFSA acknowledged that the applicant’s SLA was clear, complete and consistent as regards the specific contracts reporting. In its view, the comment in question therefore shows that the Committee made incorrect assumptions and acted in bad faith.
286 However, it must be pointed out that, contrary to the applicant’s interpretation, the Committee’s comment does not have a negative connotation, but is rather a neutral or positive observation. Given the fact that this comment was not a relevant factor in lowering the applicant’s score, its examination is irrelevant to the issue of whether or not the Committee committed a manifest error of assessment in not granting a higher score to the applicant for its tender as regards TAC 3.
287 As regards the Committee’s first and second points of criticism, relating to the roles and number of staff proposed as interfaces to EFSA, the applicant claims that EFSA invited the tenderers to propose, in the SLA, additional services to interface with EFSA. Moreover, it submits that it indicated in its tender that the quality manager and the other proposed services, including the Quality Assurance Team and the Quotation Team, would not interface directly with EFSA, as only the three requested experts, namely the Account Manager, Administrative Contact and Technical Account Manager had such a role. It claims, moreover, that, in the evaluation of the SLA of another tenderer, the Committee considered the presence of a Quality Manager and a Quality Monitoring and Improvement team to be a positive point as regards TAC 2. In addition, in its view, a quality assurance team is essential for ensuring the high quality of the services provided. All the services management methodologies demand the establishment of a highly qualified quality assurance team in order to monitor the proper performance of a project.
288 The Committee’s first and second points of criticism are, to a great extent, in line with its analysis concerning the applicant’s response to the first question of TQ 2. However, they relate in particular to section 2 of the SLA proposed by the applicant, entitled ‘Contractor’s Interface’. It follows that, in the part entitled ‘Additional Services for interfacing with EFSA’, the applicant describes the role of a Quotation Team, a Quality Manager and a Quality Assurance Team. The parties disagree mainly over the issue of whether the individuals in those roles would act as an additional interface for EFSA.
289 It must be stated that, although the applicant’s tender does not expressly mention that the Quotation Team, the Quality Manager and the Quality Assurance Team would interface directly with EFSA (as the applicant claims), it also does not exclude that possibility. Moreover, the roles carried out by all of those profiles are described in section 2.1.4 of the SLA proposed by the applicant, entitled ‘Additional Services for Interfacing with EFSA’. Therefore, the Committee did not make a manifestly incorrect interpretation of the applicant’s tender in finding that the individuals carrying out those roles would be additional actors with whom EFSA would have to interface. Furthermore, as is clear from the Committee’s comments, in evaluating other tenders in relation to TAC 3, that element was also considered to be a negative factor in the evaluation of those tenders.
290 The applicant is correct in stating that, for at least one other tenderer, the presence of profiles relating to quality assurance is mentioned as being rather a positive element. However, it is not possible to draw conclusions from that with regard to the present analysis, since those comments of the Committee disregard the ‘interface’ aspect, which is at the heart of the criticism made as regards the applicant’s tender.
291 Regarding the lack of practical added value of the Quality Assurance team proposed by the applicant, it must be observed that the Committee, given its wide margin of discretion, was entitled to find that the presence of a team to work on the quality assurance aspect would not add any practical added value for the performance of the contract. Moreover, the applicant has not put forward any specific evidence relating to its tender to show the opposite, but instead has merely argued the relevance of such a team in other projects and the fact that its usefulness has been affirmed in academic literature.
292 Therefore, it has not been established that the Committee’s first two points of criticism are vitiated by manifest errors of assessment.
293 As for the third comment, relating to the lack of a web portal and of a processes description, the applicant claims that its tender presents a web tool entitled ‘Electronic Ordering and Monitoring’ (EOMS), designed precisely for ordering and monitoring the proper performance of specific agreements made in the context of the framework contract and which constitutes a web portal and much more. It takes issue, in that respect, with EFSA’s claim that the EOMS system is not ‘web-enabled’.
294 As regards the criticism that its tender does not contain any processes description, the applicant presents an indicative list of the parts of its tender in which the relevant processes are described in detail. It claims, moreover, that it presented its approach for the provision of additional services in the requested level of detail, without altering the terms of the SLA as they are presented in the SLR, and calls on EFSA to prove that the other tenderers which obtained a higher score in that respect did the same. In the applicant’s view, the Quality Manager, Quality Assurance Team and Quotation Team are very valuable for the performance of the framework contract. Finally, with regard to EFSA’s claim made before the Court that the applicant’s penalty scheme was the least advantageous for EFSA among all the tenderers, the applicant claims, first, that its system was in compliance with the specifications and, secondly, that EFSA failed to explain in what way the penalty schemes proposed by the other tenderers were more advantageous, or the impact that this would have on the quality of the services to be provided.
295 As regards the criticism concerning the lack of a web portal, the applicant claims, in essence, that the tool which it proposed is a web portal. It refers to the EOMS tool mentioned in the section entitled ‘Service Reporting’ in the context of the quarterly meetings provided for in the SLA. The description of EOMS is limited to one paragraph from which it is clear that it is a tool which automatically prepares all summary reports and alerts the contractor to finalise the reports and send them to EFSA. It must be stated that it in no way follows from that summary description that it is an interactive tool such as a web portal. The Committee was therefore entitled to conclude from the foregoing, without committing a manifest error of assessment, that the tool in question was merely one of the applicant’s own internal management tools.
296 As regards the Committee’s criticism relating to the lack of processes description, it must be stated that it is summary.
297 EFSA claims that the best tenderers provided a detailed description of, inter alia, the manner in which each additional actor included by the tenderer would participate in the contracts management process, including input and output documents and the way in which the web portal would be used by EFSA and the actors of the tenderer in question. However, the applicant, EFSA submits, did not provide any information of that nature. According to EFSA, the applicant listed three additional actors, with their general roles, without specific details as to how those actors would participate, in practical terms, in the EFSA ordering process. Finally, EFSA claims that, while the applicant presented very detailed penalty schemes, those schemes did not correspond to the process details proposed in the specifications and were the least advantageous of all those proposed by the various tenderers.
298 It must be stated that EFSA’s arguments referred to in the previous paragraph do not follow from the Committee’s comments or from other information communicated to the applicant before it brought its action, with the result that they cannot be taken into consideration in the context of the present plea, which is confined to examining whether or not the evaluation of the applicant’s tender and the score awarded are manifestly incorrect in view of the reasons which were communicated to it, namely the lack of processes description.
299 In that respect, the applicant claims that it described certain processes in its proposed SLA, inter alia in sections 2.1.4 and 3.4.1. EFSA, however, contends that the applicant did not provide additional or sufficiently specific information in sections 2.1.4 and 3.2.3 of its SLA, inter alia to explain how the additional individuals proposed by the applicant would participate, in practical terms, in the ordering processes, shortcomings to which the Committee referred. It must nevertheless be stated that the link between the comment ‘no processes description’ and the alleged shortcomings in sections 2.1.4 and 3.2.3 of the applicant’s SLA is not evident.
300 Moreover, according to EFSA, it is necessary to take into consideration the fact that the tenderers were invited to provide their own penalty schemes and corrective actions. EFSA claims that the applicant introduced precisions on the processes by providing very detailed penalty schemes, but that those schemes did not correspond to the process details that should have been offered in sections 2.1.4 and 3.2.3 of the applicant’s tender.
301 In that respect, it must, however, be pointed out that the criticism relating to the lack of processes description cannot be regarded as implying a deficiency in the penalty scheme proposed by the applicant. Furthermore, EFSA appears to contradict itself in claiming that the applicant proposed a detailed penalty scheme which it characterises as a ‘process’, whereas the Committee’s comment states that there was no processes description.
302 In addition, it is necessary to take account of the clarifications provided by EFSA regarding the total score of 253 points out of 400 obtained by the applicant for its tender in respect of TAC 3.
303 According to EFSA, out of that total, 71 points (18%) related to the quality of the additional services provided for each SLA, an aspect for which the applicant obtained only 7 points, in essence, because of the additional contact points proposed and the deficiencies noted in relation to the web portal and the processes. EFSA adds that the remaining 329 points (82%) were attributed on the basis of the time value provided and on the application of the penalty scheme proposed by the tenderer, but that the applicant obtained only 246 points out of 329 in that respect, as its penalty schemes were the least advantageous for EFSA among all the tenderers.
304 It follows from those clarifications that the system of penalties was an important factor in the evaluation of the tenders with regard to TAC 3 and that it is on that aspect that the applicant lost the most points. It is therefore also a key factor in the applicant’s obtaining the worst score of all the tenderers for TAC 3.
305 Besides the fact that it cannot be disputed that the arguments presented by EFSA do not refute the argument that the applicant described certain processes in its SLA, with the result that the comment relating to the lack of processes description manifestly fails to reflect the content of the tender, that comment cannot reasonably be understood as referring to deficiencies in the system of penalties proposed by the applicant.
306 In those circumstances, the evaluation of TAC 3 and, therefore, the score of 253 points out of 400 awarded on that basis are vitiated by a manifest error of assessment and the fourth plea in law is, accordingly, well founded.
307 It follows from all of the foregoing that the contested decision must be annulled.
Costs
308 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.
309 As EFSA has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls the decision of the European Food Safety Authority (EFSA) rejecting the tender submitted by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in response to Call for Tenders EFSA/IT/2007/14 for IT Consultancy Assistance and awarding the contract to another tenderer;
2. Orders EFSA to pay the costs.
Delivered in open court in Luxembourg on 12 December 2012.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Admissibility
Substance
The first plea in law, alleging infringement of the principle of transparency and of the obligation to state reasons
The second plea in law, alleging confusion between the selection and award criteria
The first branch, alleging the unlawful use, at the award stage, of CVs presented at the selection stage
The second branch, alleging that account was taken of a negative experience in the performance of an earlier contract
The third plea in law, alleging the application of evaluation criteria not set out in the call for tenders
The fourth plea in law, alleging manifest errors of assessment
Complaints concerning TAC 1, relating to the ‘Methodology for ensuring the quality of the workforce’
Complaints concerning TAC 2, relating to the ‘Method proposed to manage the assignment’, and the evaluation of the applicant’s responses to TQ 2
Complaints concerning TAC 3, relating to the ‘Quality of the SLA’
Costs