JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
8 July 2010 (*)
(Public service contracts – EEA tendering procedure – Provision of information technology consultancy services – Rejection of the tender – Action for annulment – Jurisdiction of the Court – Award criteria set out in the tender specifications – Sub-criteria – Manifest error of assessment – Obligation to state the reasons on which a decision is based)
In Case T‑331/06,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and N. Keramidas, lawyers,
applicant,
v
European Environment Agency (EEA), represented by M. Hofstötter, acting as Agent, and J. Stuyck, lawyer,
defendant,
ACTION for annulment of the decision of the EEA of 14 September 2006 to reject the tender submitted by the applicant in tendering procedure EEA/IDS/06/002 relating to the provision of information technology consultancy services (OJ 2006 S 118‑125101) and to award the public contract to other tenderers,
THE GENERAL COURT (Fifth Chamber),
composed of M. Vilaras, President, M. Prek (Rapporteur) and V. M. Ciucă, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 8 October 2009,
gives the following
Judgment
Legal context
1 The European Environment Agency (EEA) was established by Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment of the EEA and the European environment information and observation network (OJ 1990 L 120, p. 1), as amended by Council Regulation (EC) No 933/1999 of 29 April 1999 (OJ 1999 L 117, p. 1) and by Regulation (EC) No 1641/2003 of the European Parliament and of the Council of 22 July 2003 (OJ 2003 L 245, p. 1), in force at the relevant time in the present case (‘the Basic Regulation’).
2 Pursuant to Article 7 of the Basic Regulation, the EEA has legal personality.
3 Article 18 of that regulation provides:
‘1. The contractual liability of the [EEA] shall be governed by the law applicable to the contract in question. The Court of Justice of the European Communities shall have jurisdiction to give judgment pursuant to an arbitration clause contained in a contract concluded by the [EEA].
2. In the case of non-contractual liability, the [EEA] shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by the [EEA] or its servants in the performance of their duties.
The Court of Justice shall have jurisdiction in disputes relating to compensation for any such damage.
…’
4 Article 185(1) 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’), in the version applicable at the time of the events, provided:
‘The Commission shall adopt a framework financial regulation for the bodies set up by the Communities and having legal personality which actually receive grants charged to the budget. The financial rules of these bodies may not depart from the framework regulation except where their specific operating needs so require and with the Commission’s prior consent.’
5 Article 74 of Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of the Financial Regulation (OJ 2002 L 357, p. 72), in the version applicable at the time of the events, provided:
‘As regards procurement, the relevant provisions of the … Financial Regulation and the detailed rules for implementing that Regulation shall apply.’
6 The award of Community institutions service contracts is subject to the provisions of Title V of Part One of the Financial Regulation and the provisions 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) (‘the Implementing Rules’). Those provisions are based on the relevant directives, including, in relation to 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 by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997 (JO 1997 L 328, p. 1), and replaced 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).
7 Under Article 97 of the Financial Regulation, in the version applicable at the time of the events:
‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating the content of the tenders shall be defined in advance and set out in the call for tender.
2. Contracts may be awarded by the automatic award procedure or by the best‑value-for-money procedure.’
8 Article 100(2) of the Financial Regulation reads:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
9 According to Article 130(3) of the Implementing Rules, in the version applicable at the time of the events:
‘The specifications shall at least:
(a) specify the exclusion and selection criteria applying to the contract …;
(b) specify the award criteria and their relative weighting or, where appropriate, the decreasing order of importance, if this is not specified in the contract notice;
…’
10 Under Article 138(2) and (3) of the Implementing Rules:
‘2. The tender offering the best value for money shall be the one with 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.
3. The contracting authority shall specify, in the contract notice or in the specification or in the descriptive document, the weighting it will apply to each of the criteria for determining best value for money. That weighting may be expressed as a range with an appropriate maximum spread.
…’
11 Under Article 149 of the Implementing Rules, in the version applicable at the time of the events:
‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure.
2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.
3. In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or email, that their application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been accepted.
…
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request.
…’
Background to the dispute
12 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law, active in the field of information technology and communications.
13 By a contract notice of 12 June 2006 published in the Supplement to the Official Journal of the European Union (OJ 2006 S 118-125101), the EEA launched a call for tenders relating to the provision of information technology (IT) consultancy services. The purpose of that call for tenders was to establish three framework contracts with companies offering a wide spectrum of IT and IT-related services.
14 The tender specifications listed eight areas of expertise, at least six of which had to be covered by the candidates. The eight areas were given as follows in point 2:
– area 1: Web development and content management;
– area 2: multimedia production and graphical design;
– area 3: Linux management;
– area 4: Linux system development;
– area 5: Windows development;
– area 6: Windows management;
– area 7: data and information management;
– area 8: geographic information systems.
15 Point 7(iii) of the tender specifications reads:
‘A contract will be awarded to the company that offers the best value for money and environmentally sound operations in terms of:
– The skills and experience of the junior and senior consultants whose CVs are a part of the tender documentation (45%);
– The company’s experience of carrying out tasks similar to those listed as provisional tasks for each area of expertise (45%);
– General environmental policy of the company (10%).
For each area of expertise the tenders will be scored for the three criteria between 0-45, 0-45 and 0-10 points respectively.
In the first round, companies reaching a minimum score of 25 points for each of the first two criteria for at least six areas of expertise will proceed to the next stage. Companies not reaching the minimum score will be excluded at this point.
The points awarded for the third criterion will then be added to the score of companies reaching stage two, and tenderers will be ranked within each area based on the ratio of scores to the average daily rate for intra and extra muros and senior and junior consultants. The resulting three companies with the highest overall ranking based on their six best areas will be awarded a framework contract.
When signing specific agreements for performing tasks under the framework contracts, the agreement will first be offered to the company offering the most advantageous offer within that particular area of expertise.
Competence in both selection and award criteria must be maintained throughout the contract. Should the contractor fail to remain competitive during the framework contract, another vendor from the tenders may be substituted.’
16 In July 2006, at the applicant’s request, the EEA provided it with various clarifications with regard to the tendering procedure in question.
17 On 31 July 2006, the applicant submitted a tender in response to the call for tenders.
18 By letter of 14 September 2006, the EEA informed the applicant that its tender had been rejected on the grounds that it was not the most economically advantageous of those tenders which were technically compliant, and reminded the applicant of its right to ask for additional information on the grounds for the rejection of its bid, including the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded.
19 On 15 September 2006 the applicant requested clarifications concerning the name of the successful tenderer, the scores obtained by the applicant and the successful tenderer for each award criterion and how its financial bid compared with that of the successful tenderer, particularly with regard to person/day rates. It also asked for a copy of the Evaluation Committee report.
20 By letter of 28 September 2006, the EEA informed the applicant of the names of the three successful tenderers and of the results obtained by the applicant. It also informed the applicant that it was not in a position to provide a copy of the evaluation report owing to its confidential nature. Concerning the person/day rates, the EEA indicated that the rates offered by the applicant were about 8% below the average for all tenderers.
21 On 29 September 2006, the applicant reiterated its request for a copy of the evaluation report and for detailed information on the exact scores obtained by the three successful tenderers under each of the three award criteria, together with any documentation which would enable it to understand how those bids compared with the applicant’s, the daily rates proposed by the three successful tenderers and the scores obtained for the third criterion.
22 By letter of 13 October 2006, the EEA granted the applicant partial access to the evaluation report.
Procedure and forms of order sought
23 By application lodged at the Court Registry on 24 November 2006, the applicant brought the present action.
24 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Fifth Chamber, to which the present case was consequently allocated.
25 Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure.
26 The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 8 October 2009.
27 The applicant claims that the Court should:
– annul the decision of the EEA to evaluate the applicant’s bid as not successful and award the contract to the successful contractors;
– order the EEA to pay the costs, even if the application is dismissed.
28 The EEA contends that the Court should:
– declare the application inadmissible or dismiss it as unfounded;
– order the applicant to pay the costs.
Law
1. Admissibility of the application
29 Without formally raising an objection of inadmissibility, the EEA expresses doubts regarding the admissibility of the application on the basis of Article 18 of the Basic Regulation, which expressly refers to the Court of Justice. It also challenges the applicant’s argument that a combined reading of Articles 225 EC and 230 EC and Article 51 of the Statute of the Court of Justice leads to the conclusion that the General Court has jurisdiction.
30 Since the conditions for the admissibility of an action relate to the question whether there is an absolute bar to proceedings (see order of the Court of Justice in Case 108/86 D.M. v Council and ESC [1987] ECR 3933, paragraph 10, and Joined Cases T‑309/04, T‑317/04, T‑329/04 and T‑336/04 TV 2/Danmark and Others v Commission [2008] ECR II‑2935, paragraph 62 and case-law cited), it is for the Court to decide whether it has jurisdiction to give judgment on an action for the annulment of an act emanating from the EEA.
31 In that regard, although it is correct that Article 18 of the Basic Regulation, cited in paragraph 3 above, provides that the Court of Justice has jurisdiction to give judgment pursuant to an arbitration clause contained in a contract concluded by the EEA and, in cases of non-contractual liability, in disputes relating to compensation for damage, it cannot be inferred from that provision that the European Union judicature does not have jurisdiction to hear an action for the annulment of an act of the EEA having an adverse effect.
32 Even though agencies such as the EEA, established on the basis of secondary legislation, are not among the Community institutions listed in the provisions concerning an action for annulment, that does not preclude review by the General Court of the legality of EEA acts (see, to that effect and by analogy, Case T‑411/06 Sogelma v AER [2008] ECR II‑2771 (‘Sogelma’), paragraphs 33 to 35).
33 As was noted in Sogelma (paragraph 32 above, paragraph 37), the general principle to be elicited from Case 294/83 Les Verts v Parliament [1986] ECR 1339 is that any act of a Community body which is intended to have legal effects vis-à-vis third parties must be amenable to judicial review.
34 Rejection of a tender in a public procurement procedure is an act which, as a general rule, may be the subject of an action for annulment. It is an act which adversely affects the unsuccessful tenderer and brings about a distinct change in his legal position (see, to that effect, Sogelma, paragraph 32 above, paragraph 38).
35 It follows that decisions taken by the EEA in public procurement procedures and intended to produce legal effects vis-à-vis third parties are acts open to challenge before the Community judicature (see, to that effect, Sogelma, paragraph 32 above, paragraph 43).
36 That conclusion is not called into question by the EEA’s argument, put forward at the hearing, that Sogelma, paragraph 32 above, does not directly apply in the present case because, unlike the agency which was the defendant in Sogelma, the EEA does not exercise powers delegated by the European Commission.
37 It should be noted in that regard that paragraphs 39 and 40 of Sogelma, paragraph 32 above, in which the Court stated that, on the basis of Council Regulation (EC) No 2667/2000 of 5 December 2000 on the EAR (OJ 2000 L 306, p. 7), the Commission could delegate certain powers to that agency, in particular in connection with the awarding of contracts, and that in that context decisions which the Commission would have taken could not cease to be acts open to challenge solely as a result of such delegation, otherwise there would be a legal vacuum, merely provide additional support for the Court’s view contained in paragraph 37 of Sogelma.
38 Suffice it to note therefore that, having legal personality and the powers laid down in the Basic Regulation, the EEA is perfectly capable of acts with adverse effects that are subsequently open to challenge in an action for annulment.
39 It thus follows from the first paragraph of Article 230 EC, as interpreted in the light of Les Verts v Parliament, paragraph 33 above (paragraphs 23 to 25), and of Sogelma, paragraph 32 above (paragraphs 36 and 37), that the present action is admissible. Moreover, that solution is confirmed by the first paragraph of Article 263 TFEU.
40 It is clear from all of the foregoing that the General Court has jurisdiction to hear the present case.
2. Substance
41 The applicant puts forward three pleas in law in support of its application for annulment. The first plea alleges infringement of the Financial Regulation, the Implementing Rules and Directive 2004/18. The second and third pleas allege, respectively, manifest errors of assessment and infringement of the obligation to state the reasons on which a decision is based.
First plea: infringement of the Financial Regulation, the Implementing Rules and Directive 2004/18
42 As a preliminary point, in this plea the applicant wrongly alleges breach of certain provisions of Directive 2004/18. Pursuant to Article 105 of the Financial Regulation, that directive applies to contracts awarded by Community institutions and bodies on their own account solely in respect of questions relating to thresholds which determine the publication arrangements, the choice of procedures and the corresponding time‑limits. Consequently, the awarding authority’s compliance with its obligations to define the award criteria and their weighting in advance must be examined in the light of the provisions of the Financial Regulation and the Implementing Rules.
43 In that regard, it should be noted that Article 97(1) of the Financial Regulation imposes on the awarding authority the obligation of defining the selection criteria and the award criteria in advance and setting them out in the call for tenders. Moreover, that obligation, which is to ensure an appropriate level of advertising for the criteria and the conditions governing each contract, is set out in more detail in Articles 135 to 137 of the Implementing Rules as regards the selection criteria, and in Article 138 of the Implementing Rules as regards the award criteria.
44 It is in the light of the above that the present plea should be considered. It divides essentially into three separate complaints: (i) infringement of the obligation to distinguish between the selection and award phases, (ii) application of a weighting to the award sub-criteria that was not disclosed to the tenderers and (iii) incorrect application of the third award criterion concerning general environmental policy.
The complaint that the obligation to distinguish between the selection and award phases was infringed
– Arguments of the parties
45 In the reply, the applicant claims that the EEA did not comply with its obligation to distinguish between the selection and award phases by mixing the selection and award criteria. It thus infringed Article 97 of the Financial Regulation, Articles 135, 137 and 138 of the Implementing Rules, the case-law of the Court of Justice and the Commission’s Guide to the Community rules on public procurement of services. In the tender specifications, certain details in the Selection Criteria section are practically identical to those in the Award Criteria section. The EEA also admitted basing its evaluation on the references of the tenderers to work done in the past for other clients and on the CVs of their experts, factors which, in the applicant’s submission, can be used only in the context of the selection phase. In the context of public procurement, tenderers are selected inter alia on the basis of their experience, but the contract is awarded on the basis of a bid for a particular contract. In the present case, the EEA even referred, during the award phase, to supposed security issues in connection with a project carried out by the applicant.
46 The EEA contends that that complaint is inadmissible since it contravenes Article 48(2) of the Rules of Procedure of the General Court. In any event, in choosing its selection and award criteria it complied with the relevant articles of the Financial Regulation and the Implementing Rules.
– Findings of the Court
47 The first subparagraph of Article 48(2) of the Rules of Procedure provides that ‘[n]o new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure’.
48 In the present case, the alleged mixing of the selection and award criteria is, in the applicant’s view, clear from the evaluation report and the defence. Moreover, it maintains that the issue had already been raised in the context of the EEA’s answers to the applicant’s requests for clarification. It should be observed, however, that the applicant was aware of the content of the evaluation report and the information concerned before the present action was brought but did not raise this complaint in the application.
49 As for the applicant’s assertion at the hearing that it was merely elaborating on a specific point in the application in the light of the information contained in the defence, it is clear that that assertion is unfounded. In the relevant paragraph of the application the applicant points to alleged confusion regarding the factors to be taken into account in the application of the first two criteria, namely ‘Skills’ and ‘Tasks’, and not confusion between the factors to be taken into account in the selection and award phases.
50 Consequently, since this complaint is not based on matters of law or of fact which came to light in the course of the procedure, nor can it be regarded as elaborating directly or by implication on a plea already put forward in the original application, it must be regarded as being ‘new’ within the meaning of the first subparagraph of Article 48(2) of the Rules of Procedure (see, to that effect, Joined Cases T‑189/95, T‑39/96 and T‑123/96 SGA v Commission [1999] ECR II‑3587, paragraph 46).
51 This complaint must therefore be rejected as inadmissible.
The complaint that a weighting was applied to award sub-criteria that was not disclosed to the tenderers
– Arguments of the parties
52 In essence, the applicant complains that, in the context of the first two award criteria, ‘Skills’ and ‘Tasks’, the EEA infringed the Financial Regulation and the Implementing Rules, in particular Article 130 and Article 138(3) of those rules, and the case-law of the Court of Justice concerning the principles of transparency and equal treatment, by attributing a special weighting to the sub-criteria, although this had not been mentioned in the tendering documentation. In addition, the evaluation tables show serious inconsistencies in the scores of the different tenderers.
53 As an example, the ‘usability and focus group testing’ element, which corresponds to only a part of the second sub-criterion of the provisional task-list for Area 1, must, according to the applicant, have been weighted above 50% in respect of the total score for that list in order to explain the applicant’s low score. In any event, it is not possible to lose so many points for a single sub-criterion which is not crucial anyway. The same applies to the skills in Area 1. On the basis of the score and comments it received, the applicant concludes that out of the four sub‑criteria included in that section some must have weighed more in the evaluation, without this having been disclosed to the tenderers.
54 With regard to Area 3, the applicant considers that the weighting applied to the seven ‘Skills’ sub-criteria, which was not disclosed to the tenderers, significantly affected the scores which should have been obtained in this area. As regards the ‘Tasks’ criterion in that area, the EEA similarly attributed a maximum weight to the sub-criterion related to ‘security measures’ without informing the tenderers of this.
55 The outcome of the evaluation proves not only the existence of sub‑criteria, but also a significant difference in their weighting. In that regard, the applicant maintains that not referring to the different skills and tasks as sub-criteria does not alter their nature but does result in an arbitrary and erroneous evaluation which does not reflect the actual qualifications of the tenderers. Moreover, the EEA’s statement that ‘lack of experience in one category cannot be compensated with an above-average knowledge in another area’ shows that the EEA used an evaluation formula unknown to the tenderers, which, by applying an undisclosed algorithm, could even neutralise the experience of a tenderer. Advance knowledge of that algorithm would, in the applicant’s view, have allowed optimum preparation of tenders. In any event, it should have resulted in the successful tenderers receiving lower scores.
56 Thus, the applicant does not accept the EEA’s explanation that if a tenderer fulfilled the contracting authority’s requirements in all but one of the skills or tasks for an area its bid would be rejected as inappropriate. That would be possible only if that skill or task weighed significantly more than the rest or if a neutralisation algorithm had been used. Furthermore, none of the answers to the requests for clarifications, on which the EEA bases its argument, suggests that all the profiles submitted for an area had to cover the entire area of expertise. The requirement of overall experience in an area runs counter to the EEA’s guidelines and to common sense. Conversely, if, as the EEA maintains, the elements for assessing expertise were judged as a whole, a tenderer’s extensive experience in all other ‘skills’ or ‘tasks’ in a specific area should compensate for any alleged lack of expertise in one skill or task. In any event, the experts proposed by the applicant cover all the expertise required by the EEA, even though that requirement was not indicated in the tender specifications.
57 Moreover, the EEA’s statement that only the essential parts of the capacities required for carrying out work in the respective area were included in the tender specifications implies that other requirements considered not to be essential were also used. That would be contrary to Article 130 of the Implementing Rules and the case-law of the Court of Justice and would infringe the principles of transparency and equal treatment of tenderers. The EEA failed, in particular, to mention in the tender specifications certain factors relating to Eionet tools and services.
58 The EEA disputes the applicant’s arguments.
– Findings of the Court
59 Where, as in the present case, the contract is awarded by the best-value-for-money procedure, Article 97(1) of the Financial Regulation requires the contracting authority to define in advance and set out in the call for tender documentation the award criteria for evaluating the content of the tenders. Furthermore, under Article 138(3) of the Implementing Rules, the contracting authority must also specify, in the contract notice, in the specification or in the descriptive document, the weighting it will apply to each of the criteria for determining best value for money.
60 Those provisions are intended to ensure compliance with the principles of equal treatment and transparency, as stated in Article 89 of the Financial Regulation, at all stages of the procedure for the award of public contracts, in particular the stage of selection of the tenderers and that of selection of tenders for the award of the contract (see judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, not published in ECR, paragraph 49 and case-law cited). They are also intended to allow all reasonably well-informed and normally diligent tenderers to interpret both the selection criteria and the award criteria in the same way (see, to that effect and by analogy, Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 42) and consequently to have equality of opportunity in formulating the terms of their applications to take part and their tenders (see, to that effect, Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 93).
61 It is settled case-law that the contracting authority has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and that the Court’s review must be limited to verifying that there has been no serious and manifest error (see Case T‑495/04 Belfass v Council [2008] ECR II‑781, paragraph 63 and case-law cited).
62 In the present case, the EEA set out in point 7(iii) of the tender specifications the award criteria it intended to adopt for awarding the contract, namely, the skills and experience of the junior and senior consultants whose CVs were a part of the tender documentation, the company’s experience of carrying out tasks similar to those listed as provisional tasks for each area of expertise, and the general environmental policy of the company. Also, in points 2.1 to 2.8 of the tender specifications, it defined the various skills and tasks to be offered by tenderers in each area.
63 In that regard, the applicant maintains, first, that the various elements listed in points 2.1 to 2.8 of the tender specifications represent sub‑criteria. Second, it infers from the evaluation report, in particular from the comments on the scores obtained, that a special weighting had been attributed to each of those sub-criteria. In the applicant’s view, the only explanation for obtaining a poor score, in areas 1 and 3 in particular, is that the Evaluation Committee used an undisclosed weighting in the context of which the sub-criteria which the applicant’s tender allegedly failed to meet were very heavily weighted.
64 The applicant relies on Case C‑331/04 ATI EAC e Viaggi di Maio and Others [2005] ECR I‑10109, paragraph 32, in which the Court held that determining at a later date, shortly before the opening of the envelopes, the weighting factors to be applied to the sub-criteria of an award criterion which had been established beforehand was in accordance with Directive 92/50, provided such subsequent determination does not alter the criteria for the award of the contract set out in the tender specifications or the contract notice, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, and was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.
65 In that regard, it should also be recalled that in Case C‑532/06 Lianakis and Others [2008] ECR I‑251 the Court also held that by stipulating, at a later date, after the submission of tenders and the opening of applications expressing interest, both the weighting factors and the sub-criteria to be applied to those award criteria the contracting authority had failed to comply with the requirement laid down in Article 36(2) of Directive 92/50 to publicise such criteria, read in the light of the principle of equal treatment of economic operators and the obligation of transparency.
66 In the present case, it is not apparent from the documents in the case, and in particular the comments contained in the evaluation report, that the contracting authority applied sub-criteria in respect of the award criteria contained in the tender specifications, nor does it appear that any special weighting was applied to them.
67 Rather than sub-criteria, the various factors mentioned as being skills and tasks required in respect of the eight areas (points 2.1 to 2.8 of the tender specifications) constitute clarifications as to the type of skill and experience which the EEA required and which were to be evaluated overall. It is clear that, in the context of its function and its broad discretion, the Evaluation Committee could not provide a detailed account, in respect of every tender and each area, of the various scores making up the final score in relation to each description of the skills and tasks given in the tender specifications. However, it carried out an overall comparison, in respect of each of the eight areas, of the tenders submitted. Thus, in its report for each score given it indicates only the most significant weaknesses of those tenders.
68 Lastly, the applicant’s argument, set out in paragraph 55 above, that it was apparent from the EEA’s statement that it had used an undisclosed evaluation formula, must also be rejected. In this case, since each area of expertise was presented and evaluated separately, any lack of experience in one area naturally could not be compensated at that stage with a higher level of knowledge in another area.
69 In the light of all the foregoing, the Court must conclude that the applicant has not demonstrated to the requisite legal standard that the EEA failed to comply with its obligation to define in advance and set out in the call for tender documentation the award criteria for evaluating the content of the tenders and applied a special weighting to sub-criteria that was not disclosed to tenderers.
70 That complaint must therefore be rejected.
The complaint that the third award criterion concerning general environmental policy was erroneously applied
– Arguments of the parties
71 The applicant maintains that the environmental criterion was applied erroneously, since the EEA based it on proof of a certified system, although the call for tenders referred simply to the ‘general environmental policy of the company’. First, the EEA awarded maximum points to the only company which had submitted a certificate that was regarded as being relevant, without analysing the real contribution of the company to the protection of the environment. Secondly, it wrongly classified as ‘intentions on the subject’ an environmental policy which the applicant actually follows and the real contribution of which to the protection of the environment it explained. The defining factor for awarding scores was therefore not the actual environmental policy but that certificate which was not, however, required in the tender specifications.
72 Moreover, no comparison was made between the applicant’s tender and the tender which obtained the most points in this field. In that regard, the applicant argues that it holds an ISO 9001:2000 certificate and that its policy complies with the Ecodynamic Enterprise Charter of the Brussels Institute for Management of the Environment (‘the Brussels Environment Institute’). It should therefore have obtained the maximum number of points. The applicant also disputes the EEA’s argument that the impact of this criterion on the outcome of the evaluation was immaterial and submits that this has by no means been established.
73 The EEA disputes the applicant’s arguments.
– Findings of the Court
74 It is apparent from the documents in the case that the third award criterion referred to the ‘General environmental policy of the company’, without further specification. It should also be observed that the comments on the scores allocated to the applicant and to the successful tenderers all refer to the possible existence of certification. In that connection the only company which obtained the maximum score of 10 points was the one which, according to the evaluation report, had a ‘certified environmental management scheme’ in place. Moreover, the applicant stated, and was not contradicted by the EEA, that it obtained the highest score out of all the tenderers who did not submit certification.
75 An award criterion worded in such a general way as in this case enables tenderers to present their policy in this field as they wish and to supply the evidence they consider to be appropriate. In that regard, submission of a relevant certificate is one of a number of conventional ways of providing evidence in the preparation of tenders in public procurement procedures. Since the applicant is a company which regularly takes part in this type of procedure, it could not be unaware of this. It stated itself in its tender and in its pleadings that its policy complied with the Brussels Environment Institute’s charter and that it had an ISO 9001:2000 certificate.
76 In the particular circumstances of this case, the applicant has no grounds for asserting, first, that the necessary, or even the only, evidence required for the award of the best score was certification that was not required by the tender specifications or, secondly, that no comparison was made between its tender and the one obtaining the best score. If the submission of an appropriate certificate had been the only possible evidence of a general policy, those tenderers who had not submitted one would not have been awarded any points. Not only was that not the case, those tenderers who did not submit an appropriate certificate did not all obtain the same score. The Evaluation Committee therefore considered that among the bids submitted by such tenderers the applicant’s was the best in that regard. However, on the basis of the descriptions of their respective general environmental policies, the Committee decided that the certificate in question provided the most convincing evidence of one company’s general environmental policy and so it awarded the maximum points to that company. It follows that the Committee did indeed make a comparative assessment of the tenders, evaluating whether the environmental policies submitted by the tenderers were genuine, and that it found that only one of them had already put such a policy in place, whilst the others merely indicated good intentions in that respect.
77 As the EEA confirmed, the existence of an effective environmental policy could be proved in a number of ways. The Evaluation Committee considered that the applicant had not submitted documents that were equivalent to the certification at issue. Of the documents submitted, the ISO 9001:2000 certificate and compliance with the Brussels Environment Institute charter were not regarded by the Committee as providing assurances of an effective environmental policy.
78 Hence, the arguments put forward by the applicant merely enable the Court to conclude that, given its broad discretion, the EEA considered that among all the tenderers’ bids, the maximum points should be given to the one which had submitted evidence, in the form of a certificate, of a genuine general environmental policy, although it did not regard such a certificate as being the only possible evidence in that regard.
79 In those circumstances, that complaint must be rejected and, consequently, the first plea must be rejected in its entirety.
Second plea: manifest errors of assessment
Arguments of the parties
80 The applicant maintains that the evaluation of its file contains a series of grave and manifest errors of assessment as well as oversights. It considers that the broad discretion enjoyed by the contracting authority should not be interpreted as a unilateral right to take unfounded and arbitrary decisions. The series of manifest errors committed by the EEA should be examined as a whole demonstrating that, in this case, that discretion had been exceeded. Moreover, the evaluation report does not reflect the competitive nature of the procedure at issue. According to the case-law of the Court of Justice, the rules that govern public procurement procedures must be explicitly put forward in the tender specifications and need to be respected by the contracting authority throughout the tendering procedure.
81 In support of its arguments, the applicant relies on the various elements of its tender and the conclusions of the evaluation report relating to them. It maintains in particular that the experts proposed and/or the projects mentioned in connection with its experience broadly met the requirements of the call for tenders and that its tender should have obtained a better score.
82 Thus, with regard to Area 1, ‘Web development and content management’, the applicant considers it proposed highly-qualified consultants and/or consultants with extensive experience in the area. The company’s expertise was, moreover, demonstrated by the completion of past projects, namely Circle and Ermione. The applicant maintains that its bid should have been ranked number one.
83 As regards the tasks, the applicant considers that the score it received on the ground that its experience did ‘not meet EEA’s requirement about usability and focus group testing’ is neither explained nor justified. It queries inter alia how a tenderer who allegedly fails to fulfil the requirements of one of the criteria receives 20% fewer points than a tenderer who is considered average in all the criteria. The applicant submits that the EEA did not examine in detail the table enclosed with its bid relating to its experience in carrying out similar tasks. A cross‑reference of all the data provided would demonstrate that the technical points it received were unfair and unfounded. At least 66 of the 110 relevant projects presented by the applicant demonstrate its experience in the area, however, the EEA focuses on only one of them to allege lack of references. The tender specifications are, moreover, imprecise on this point and do not specify the EEA’s exact requirements.
84 With regard to Area 2, ‘Multimedia production and graphical design’, the applicant states that it presented the CVs of 6 consultants with a very high level of expertise and also 63 relevant projects, which demonstrates its experience in the software applications concerned. The formula used by the Evaluation Committee was not transparent and was applied selectively. The applicant fails to understand in what way the successful tenderers’ bids were better than its own.
85 As regards the tasks section, it claims that the 63 previous projects, which were described in its bid, provide adequate proof of its experience in the area. Moreover, the scores awarded are contradictory, since a tenderer regarded as average for just one of the criteria cannot be considered inferior to a tenderer regarded as average for all criteria.
86 With regard to Area 3, ‘Linux management’, first of all, the applicant claims that the EEA’s statement that lack of experience in one category cannot be compensated for by above-average knowledge in another area reflects the arbitrary evaluation it made and proves the lack of clarity in the tendering specifications. The Evaluation Committee established a posteriori which skill or task in each of the areas of expertise was most important for the project.
87 It also claims that the evaluation relating to the CIRCA and Eionet software applications is wrong and unfounded. In particular, the applicant designed and developed CIRCA and it is CIRCA’s main development and support contractor for the Commission and the EEA. It also provided the EEA with the ‘ReportNet’ application which uses Eionet. The applicant received a score which was almost identical to that of its competitors, even though its assessment is better and it has more experience than its competitors in those software applications. This is proved by the fact that it won a previous contract connected with the CIRCA software application against one of its competitors and that, in other projects, that same competitor had either requested the applicant’s support regarding CIRCA or subcontracted all the CIRCA‑related work to the applicant. Consequently, the applicant should have been ranked first in this area. It is clear that the EEA took into account ‘lack of experience in one category’ only in respect of the applicant’s bid.
88 As regards the ‘Tasks’ criterion, the EEA wrongly and without foundation described the applicant’s experience in the area of security measures as ‘poor’. The EEA took into account only its own experience with CIRCA, disregarding all the other references and its bid. Moreover, even if there had been problems with security certification in using CIRCA this would not justify such an assessment, since the applicant provided in its bid all the appropriate solutions to meet the EEA’s requirements. The EEA also failed to take into account security concepts implemented by the applicant in accordance with the specific security requirements of its clients. The applicant presented at least 47 relevant projects for Community institutions and has security clearance from the North Atlantic Treaty Organisation (NATO) and the European Union. It has been successfully providing support services to the EEA and to Eionet and CIRCA installations for four years and none of the users has reported any security-related problem.
89 With regard to Area 4, ‘Linux system development’, the applicant disputes the score obtained in respect of ‘Tasks’. First, it considers that it has extensive experience, as demonstrated by five different projects. Secondly, the expert proposed, whose experience was called into question by the EEA, is a senior IT professional and has extensive knowledge in all skills requested in the tender specifications in this area. The EEA apparently expected to receive CVs of experts with strong expertise in all the technologies of this area, although this was not mentioned in the tender specifications and, in its answers to the applicant’s questions, referred to a ‘division of the requirements’. In any event, the applicant’s proposed experts master all the technologies required by the tender specifications.
90 The EEA further failed to state the reasons why the bids of the three successful tenderers were better than the applicant’s own. The applicant states that it invited the EEA to specify the type of profiles proposed by the successful tenderers.
91 With regard to Area 5, ‘Windows development’, the score given to the applicant was incorrect, since the six consultants proposed are IT professionals with excellent skills in all the tasks and activities requested. The CVs which the applicant provided satisfy the requirements in all areas of expertise, even though that was not required in the tender specifications. Furthermore, the EEA’s comments lack accuracy and draw abstract and ungrounded conclusions which do not reflect the reality of the applicant’s bid. The applicant provided a description of at least 43 projects, including 29 fully completed ones, all of which involved extensive Windows development and included activities identical to those presented in the tender specifications under this area, which also involve other technologies.
92 With regard to Area 6, ‘Windows management’, the applicant maintains that, even through its allegedly limited qualifications did not form part of that area of expertise, the CV of one expert in particular of those proposed showed that he had that experience. The CVs of two other experts show extensive expertise in all the areas indicated in the tender specifications.
93 The EEA’s comments on the CVs of the experts proposed contradict most known evaluation methodologies, by claiming that deficiencies in one field can influence the score awarded in another, given that they may have an impact on the general efficiency of the company. Such logic confers unlimited freedom of judgment on the EEA and authorises it to use dangerous and unfounded approximations. Moreover, the applicant decided not to repeat the descriptions of the projects common to several candidates but to limit itself to their specific projects, so as not to make their CVs very long.
94 In general, the EEA’s explanation is neither clear nor precise nor reasoned. In particular, it equated ‘security management’ with ‘security measures’. As regards the tasks, the applicant states that, according to the award criteria set out in the call for tenders, the tasks were to be evaluated on the basis of the company’s experience and not the CVs, which is not what the Evaluation Committee did.
95 According to the applicant, the Evaluation Committee committed the same error again with regard to the tasks in Area 7, ‘Data and information management’. In any event, the applicant proposed experts who were highly qualified in carrying out those tasks, with in-depth knowledge of the three skills indicated in the tender specifications. The applicant considers that the EEA took as its basis solely the name of the profile of each expert and not on his expertise, without giving any serious reason.
96 With regard to Area 8, ‘Geographic information systems’, the applicant maintains, contrary to the EEA’s comments, that it is clear from the CVs submitted that, of its consultants, one had the necessary expertise in spatial data infrastructure (SDI) development and the others were experienced in geographic information system (GIS) analysis. It adds that the skills requested in the tender specifications make no mention of any particular qualification such as previous experience with the EEA’s tools/technologies and procedures which the applicant does not have. The experience of the applicant’s experts, particularly in the use of products manufactured by its partner, fully satisfies all the criteria mentioned in the tender specifications, as the EEA has also acknowledged. As regards the tasks, the applicant claims that its score runs counter to its experience in the area, which is amply proven by the completion of five previous projects.
97 Lastly, the EEA’s general criticism that the applicant made frequent use in its bid of the exact same terms contained in the tender specifications instead of providing a substantive and substantiated response to the requirements listed in those specifications is wrong and unfounded. First of all, tenderers are obliged to use the text of the terms of reference provided their bid is correctly described by that wording. Secondly, the applicant used the description in the tender specifications to demonstrate its experience in carrying out tasks identical to those presented.
98 The EEA maintains that it has not committed any error of assessment or, a fortiori, any manifest error.
Findings of the Court
99 As pointed out in paragraph 61 above, the institutions and agencies of the European Union have a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and the Court’s review must be limited to verifying that there has been no serious and manifest error.
100 It is necessary, therefore, to determine in this case whether the EEA committed a manifest error of assessment in awarding the contract by selecting bids other than the applicant’s.
101 It is apparent from the evaluation report that, so far as the award phase is concerned, the Evaluation Committee assessed the bids on the basis of the award criteria set out in point 7(iii) of the tender specifications. That assessment thus related to the first two criteria, namely the skills and experience of the junior and senior consultants whose CVs were to be a part of the tender documentation, and the company’s experience of carrying out tasks similar to those listed as provisional tasks for each area of expertise. Tenderers obtaining at least 25 points for each of the first two criteria in six areas of expertise, and thus proceeding to the next stage, were subsequently also assessed on the basis of the third criterion, the company’s general environmental policy. The points awarded for the third criterion were added to the score of tenderers reaching stage two. On that basis, tenderers were ranked within each area on the basis of the scores and the average daily rate for intra and extra muros consultants and senior and junior consultants. The three tenderers thus obtaining the highest overall ranking in their six best areas were awarded a framework contract.
102 The Court must therefore conclude that the Evaluation Committee adhered strictly to the award procedure as defined in the tender specifications. Moreover, it is apparent from the annexes to the evaluation report that the Committee conducted a comparative assessment of all the bids of tenderers taking part in the contract award stage. It was on the basis of the scores allocated for the ‘Skills’ and ‘Tasks’ criteria for each area, to which were added the scores for the third criterion, that the Committee was able to obtain a final score enabling it to identify the three best tenders.
103 In that regard, it should be noted that in this case the contract was awarded to the tender that offered the best value for money in the terms of Article 97(2) of the Financial Regulation.
104 In that context, the applicant’s argument simply that its bid broadly met the requirements of the call for tenders does not in itself demonstrate a manifest error of assessment on the part of the contracting authority. The contract was awarded, on the basis of a comparative assessment of the bids by the Evaluation Committee, solely to the bids offering the best quality/price ratio. It is apparent from the evaluation report that the applicant’s bid was not one of them.
105 More particularly, the applicant claims, in the context of the eight areas of expertise, that it had proposed in its bid experts who were highly qualified and/or it had carried out similar or identical tasks to those required in the call for tenders, and that therefore its bid should have obtained a higher assessment. That argument cannot be accepted. It is apparent from the evaluation report that, in each area and under each criterion, the points were allocated on the basis of a comparative assessment. Thus, the highest points correspond to the best comments. The applicant provides no evidence to show that, by proceeding in that way, the Evaluation Committee committed a manifest error of assessment.
106 That conclusion is not affected by the applicant’s argument that the scores attributed to the various tenderers do not always correspond to the comments relating to them and may even conflict with them. By way of example, the applicant’s bid, which was regarded as poor or average according to one criterion, obtained a score below that of tenderers considered average in respect of all the criteria (Areas 1 and 2). Similarly, in Area 3, it obtained a score that was almost identical to that of the other tenderers, even though its bid had a higher assessment.
107 In that regard, it should be observed that, so far as those comments are concerned, it is apparent from the file that the poor aspects of the applicant’s bid mentioned by the Evaluation Committee concern all the key elements of the areas concerned, specified as such in the tender specifications, which explains the lower score awarded. In those circumstances, the explanation put forward by the applicant, alleging an undisclosed assessment formula, is unconvincing. Moreover, the scores and the comments concerned form a homogeneous whole in this case and do not require any explanation or justification on the part of the Evaluation Committee other than those which it has already provided and which have been noted.
108 So far as Area 3 is concerned, the applicant states that its bid should have obtained a higher assessment in view of its extensive experience in CIRCA and Eionet applications. It is apparent from the evaluation report that the Evaluation Committee agreed that the applicant had a good knowledge of CIRCA, but that it also found that the applicant had little experience as regards Eionet and in the area of security measures. Where extensive experience is required throughout an area, any above‑average knowledge in one category or part of that area cannot compensate for a lack of experience in a particular category. Far from proving any arbitrary assessment by the EEA, that explanation confirms a comparative, overall analysis of the tenderers’ bids. Moreover, since the points concerned formed part of the criteria mentioned in the tender specifications, the applicant cannot claim that the latter was lacking in clarity.
109 With regard to tasks, the applicant maintains it had extensive experience in the area of security measures, which should not therefore have been assessed as being poor. In that regard, it should be noted that, in the context of a comparative assessment, the Evaluation Committee is not only required to assess the number of elements contained in a tenderer’s bid but also their relevance to the area concerned. In any event, the applicant’s bid was ranked in second position as regards both criteria in Area 3, which gives reason to believe that its experience had indeed been taken into account by the Evaluation Committee. The applicant’s arguments concerning this area must therefore be rejected.
110 In connection with the ‘Tasks’ criterion in Area 4, the applicant concludes, on the basis of the EEA’s arguments, that the EEA expected tenderers to propose CVs of experts with strong expertise in all the technologies of this area, although this was not mentioned in the tender specifications. That argument cannot be accepted. It is true that it was not stipulated in the tender specifications that the experts should master all the technologies of that area. However, since the bids are subjected to a relative comparison, a bid offering consultants with a range of expertise will probably score more highly than one offering experts with only certain profiles. In that regard, the applicant maintains that in its line of activity it would be counter‑productive to expect one type of expert to carry out all the tasks. However, it does not provide any evidence to prove that, in considering that one of the tenderers had proposed experts who corresponded more closely to the requirements of the tender specifications, the Evaluation Committee committed a manifest error of assessment in giving that tenderer more points than it had given the applicant.
111 Moreover, the applicant claims that, in connection with Areas 6 and 7, the Evaluation Committee assessed the tasks criterion on the basis of the CVs rather than on the basis of the company’s experience. It should be noted that point 7(iii) of the tender specifications provided in that regard that the contract would be awarded having regard to the company’s experience of carrying out tasks similar to those listed as provisional tasks for each area of expertise (see paragraph 15 above). In a company providing services, human resources represent a significant aspect of its value. In that context, as the EEA also submits, an expert’s experience, attested to by a CV, will also prove the experience of the company itself, since the two aspects cannot be dissociated from each other. Moreover, the applicant does not explain why that would amount to saying that deficiencies in one field can influence the score awarded in another, given that they may have an impact on the efficiency of the company.
112 With regard to Area 7, the applicant does not provide any evidence to support its assertion that the EEA based its assessment solely on the name of the profile of each expert and not on their expertise.
113 As regards the applicant’s argument, in connection with Area 8, that the skills requested in the tender specifications make no mention of any particular qualification, such as previous experience with the EEA’s tools/technologies and procedures, it must be observed that that argument distorts the EEA’s words. The comment on the score obtained and the EEA’s argument both refer to experience in GIS analysis in connection with the activities of the EEA, and not the technologies/tools and procedures of the EEA.
114 Lastly, the applicant’s argument that the series of manifest errors committed by the Evaluation Committee should be examined as a whole, demonstrating that the broad discretion enjoyed by the latter had been exceeded, cannot be accepted either. In the absence of a manifest error of assessment being established by the applicant it is not possible to conclude that there was a serious and manifest error of assessment on the part of the contracting authority resulting from an accumulation of errors.
115 It follows from the above considerations that the applicant has failed to establish that the EEA committed a manifest error in its assessment of the applicant’s bid. The second plea must therefore be rejected as unfounded.
Third plea: infringement of the obligation to state the reasons on which the decision is based
Arguments of the parties
116 The applicant maintains that, contrary to what is required under Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules, the EEA did not explain how the applicant’s bid compared against those of the other tenderers. The applicant had no information as to the relative merits of the successful tenderers to enable it to ascertain how the Evaluation Committee reached those results. The comments made by the Evaluation Committee are vague, containing abstract judgment, and lack the necessary detail. They thus do not enable the persons concerned to be aware of the reasons for the decision, thereby enabling them to defend their rights and the Court to exercise its power of review.
117 First, no explanation was given as to why certain CVs were not suited to the tasks or why the company’s previous experience was insufficient. Secondly, the lack of expertise of the successful tenderers did not affect their scores. Moreover, the comments made contradict the points awarded in a number of cases.
118 The meaning of broad discretion can be evaluated only upon thorough examination of the reasoning provided by the contracting authority in its decision to award the contract and to reject the tenders of the other candidates. However, the EEA failed to indicate the reasons for the rejection of the applicant’s bid.
119 The EEA maintains that it has complied with its obligation to state the reasons for its decision in accordance with the Financial Regulation, the Implementing Rules and settled case-law.
Findings of the Court
120 It is clear from Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules that the contracting authority fulfils its obligation to state reasons if it confines itself 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, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission not published in the ECR, paragraph 47 and case-law cited, and Case T‑437/05 Brink’s Security Luxembourg v Commission [2009] ECR II‑0000, paragraph 160).
121 Such a manner of proceeding satisfies the purpose of the duty 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 to enable, on the one hand, the persons concerned to be aware of the reasons for the measure in order to assert their rights, and, on the other, the Court to exercise its review (Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 120 above, paragraph 48).
122 It should also be noted that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure 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 case-law cited).
123 Moreover, according to the case-law, if the institution or agency concerned sends a letter in response to a request for additional explanations concerning a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑0000, paragraph 73 and case-law cited).
124 Therefore, in order to decide whether the EEA fulfilled its obligation to state reasons under the Financial Regulation and the Implementing Rules, it is necessary to examine the letters of 14 September and 28 September and of 13 October 2006, addressed to the applicant in response to its express request for additional information on the decision awarding the contract at issue and rejecting its bid.
125 By letter of 14 September 2006, the EEA informed the applicant that its tender had been rejected on the grounds that ‘it was not the most economically advantageous of those tenders which were technically compliant’ and reminded the applicant of its right to ask for additional information on the grounds for the rejection of its bid, including the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded.
126 By letter of 28 September 2006, in response to the applicant’s written request of 15 September 2006, the EEA informed the applicant of the names of the three successful tenderers and of the results obtained by the applicant. It also informed the applicant that it was not in a position to provide a copy of the evaluation report, due to its confidential nature.
127 Following the letter of 29 September 2006, in which the applicant reiterated its original written request, the EEA, by letter of 13 October 2006, granted the applicant partial access to the evaluation report. That report clearly explained the procedure which had been followed during the assessment of the bids of the 13 tenderers and the fact that the bids of the three successful tenderers obtained the three best final scores. It also contains the details of the scores allocated to the applicant and to the successful tenderers and the comments for each area of expertise and each criterion.
128 The conclusion must therefore be drawn that, on the basis of all that information, the applicant would have been able immediately to identify the characteristics and relative advantages of the tenders selected. Thus, the EEA fully complied with its obligations under the Financial Regulation and the Implementing Rules.
129 The plea alleging infringement of the obligation to state the reasons on which the decision was based must therefore be rejected.
130 In the light of all the foregoing, the application must be dismissed in its entirety.
Costs
131 The applicant claims that the EEA should be ordered to pay all the costs, under Article 87(3) of the Rules of Procedure, even if the application is dismissed. It states that the EEA did not acknowledge the multiple and serious infringements it had committed and did not rectify the situation in the framework of an appeal procedure. In the absence of the possibility of a review procedure the applicant had no choice but to bring the present action. The applicant relies, in that regard, on Case T‑160/03 AFCon Management Consultants and Others v Commission [2005] ECR II‑981.
132 The EEA disputes that line of argument.
133 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. Under the second subparagraph of Article 87(3) of those rules the Court may order a party, even if successful, to pay to the other party costs which it has unreasonably or vexatiously caused that party to incur.
134 It must be stated, first, that the case-law relied on by the applicant is not applicable in the present case since, in particular, no unlawfulness has been established. Secondly, the applicant has provided no evidence to justify, in application of Article 87(3) of the Rules of Procedure, an order in this case that the EEA pay costs caused unreasonably or vexatiously.
135 Therefore, as the applicant has been unsuccessful it must be ordered to pay the costs as applied for by the EEA.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.
Delivered in open court in Luxembourg on 8 July 2010.
[Signatures]
Table of contents
Legal context
Background to the dispute
Procedure and forms of order sought
Law
1. Admissibility of the application
2. Substance
First plea: infringement of the Financial Regulation, the Implementing Rules and Directive 2004/18
The complaint that the obligation to distinguish between the selection and award phases was infringed
– Arguments of the parties
– Findings of the Court
The complaint that a weighting was applied to award sub-criteria that was not disclosed to the tenderers
– Arguments of the parties
– Findings of the Court
The complaint that the third award criterion concerning general environmental policy was erroneously applied
– Arguments of the parties
– Findings of the Court
Second plea: manifest errors of assessment
Arguments of the parties
Findings of the Court
Third plea: infringement of the obligation to state the reasons on which the decision is based
Arguments of the parties
Findings of the Court
Costs