Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

10 September 2008 (*)

(Public service contracts - Community tendering procedure - Provision of development, maintenance and support services for the financial information systems of the Directorate-General for Agriculture - Selection and award criteria - Rejection of a submitted tender - Obligation to state the reasons on which the decision is based - No manifest error of assessment - Principles of diligence and good administration)

In Case T-59/05,

Evropaïki Dinamiki - Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

applicant,

v

Commission of the European Communities, represented initially by K. Banks and E. Manhaeve, and subsequently by E. Manhaeve and M. Wilderspin, acting as Agents,

defendant,

APPLICATION for annulment of the Commission’s decision of 23 November 2004 rejecting the tender submitted by the applicant in the tendering procedure relating to the provision of development, maintenance and related support services for the financial information systems of the Directorate-General for Agriculture and awarding the contract to the successful tenderer,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 16 May 2007,

gives the following

Judgment

 Legal context

1        The award of Commission service contracts 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 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 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.

2        Article 89(1) of the Financial Regulation provides:

‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination.’

3        Article 97 of the Financial Regulation, in the version applicable at the material time, states:

‘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.’

4        Article 100 of the Financial Regulation provides:

‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.

2. 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.’

5        Article 130(3) of the Implementing Rules, in the version applicable at the material time, states:

‘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, if this is not specified in the contract notice;

…’.

6        Article 135(1) of the Implementing Rules provides:

‘The contracting authorities shall draw up clear and non-discriminatory selection criteria.’

7        Article 138 of the Implementing Rules, in the version applicable at the material time, provides:

‘1. Contracts shall be awarded in one of the following two ways:

(a)       under the automatic award procedure, in which case the contract is awarded to the tender which, while being in order and satisfying the conditions laid down, quotes the lowest price;

(b)       under the best-value-for-money procedure.

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 specifications, the weighting it will apply to each of the criteria for determining best value for money.

…’.

8        Article 148 of the Implementing Rules provides:

‘1. Contact between the contracting authority and tenderers during the contract award procedure may take place, by way of exception, under the conditions set out in paragraphs 2 and 3.

2. Before the closing date for the submission of tenders, in respect of the additional documents and information referred to in Article 141, the contracting authority may:

(a)      at the instance of tenderers, communicate additional information solely for the purpose of clarifying the nature of the contract, such information to be communicated on the same date to all tenderers who have asked for the specifications;

…’.

9        Article 149(2) of the Implementing Rules provides:

‘The contracting authority shall, within not more than 15 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.’

 Background to the dispute

10      The applicant, Evropaïki Dinamiki - Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, is a company incorporated under Greek law, active in the area of information technology and communications.

11      By a contract notice of 24 March 2004, published in the Supplement to the Official Journal of the European Union (OJ 2004, S 59) under reference 2004/S 59-050031, the Commission issued a call for tenders relating to development maintenance and support services for financial information systems of the Directorate-General for Agriculture (DG AGRI). The outcome of that tender process was to be the signing of a framework contract for a period of 36 months, renewable for a period of 12 months.

12      Section 7.4 of the tender specifications of the call for tenders at issue, relating to subcontracting, is worded as follows:

‘The contractor … shall none the less remain bound by his obligations to the Commission under the contract. …

In the case of a tender offer incorporating subcontracting, the information required below under sections 8.2.1 “administrative information”, 8.2.2 “information for assessment of exclusion criteria” and 8.2.3 “information for assessment of selection criteria” must be provided for all proposed subcontractors.’

13      Section 8 of the tender specifications defines the information which the tenderers’ bids must contain:

‘8.1. Presentation of the offer

…

8.2. Technical dossier

8.2.1. Administrative information

…

This information requirement applies to all members of a Consortium, and to any possible subcontractors named in the offer or who might be proposed to be used during the time period of the expected contract.

8.2.2. Information for assessment of exclusion criteria

…

This information requirement applies to all members of a Consortium and to any possible subcontractors named in the offer or who might be proposed to be used during the time period of the expected contract.

8.2.3. Information for assessment of selection criteria

…

This information requirement applies to all members of a Consortium and to any possible subcontractors named in the offer or who might be proposed to be used during the time period of the expected contract.

8.2.3.1. Economic and financial Situation

…

8.2.3.2. Technical Capacities

…

8.2.4. Information for assessment of award criteria

…

8.3. Financial proposal - price schedule

…’.

14      Section 9 of the tender specifications, relating to the evaluation of tenders and award of the contract, is worded as follows:

‘9.      Evaluation of tenders and award of the contract

9.1.      Exclusion of tendering parties

Tendering parties shall be excluded from participation if:

…

Tendering parties shall be excluded from the award of the contract if:

…

In the case of joint tenders (consortium) or subcontractors, these exclusion criteria will be applied to all the individual organisations proposed by the tenderer.

The exclusion decision will be assessed on the basis of the information supplied by the tenderer. All Tenderers (either a single entity, all members of a joint offer or all subcontractors) must therefore supply the information requested in accordance with the requirements of 8.2.2. above, on which the exclusion decision will be assessed.

9.2. Selection of tendering parties - selection criteria

Tendering parties’ capacity will be assessed in the light of the criteria below.

9.2.1. Economic and financial standing

[Selection criterion] Tendering parties must demonstrate that they have been financially sound during the last three years.

The selection decision will be assessed on the basis of the information supplied by the tenderer in accordance with the requirements of 8.2.3.1 above and, where applicable, of other information that the Commission may judge relevant.

9.2.2. Professional and technical capacities

[Selection criterion 1] Tendering parties must possess at least three years’ experience of direct relevance to the activities concerned or to the provision of the services and products covered by this invitation to tender.

[Selection criterion 2] Tendering parties must demonstrate that they have the skills and human resources and the technical and organisational ability needed to provide the services and products required.

[Selection criterion 3] Tendering parties must demonstrate that they have the level of infrastructure adequacy required for the successful provision of the required services.

[Selection criterion 4] If relying on the capacities of other entities, tendering parties must demonstrate that they have at their disposal the resources necessary for the performance of the contract by providing a written undertaking from such entities to place such resources at [their] disposal.

The selection decision will be assessed on the basis of the information supplied by the tenderer in accordance with the requirements of 8.2.3.2 above and, where applicable, of other information that the Commission may judge relevant.

9.3. Evaluation of tenders - award criteria

The Commission will award the contract after comparing the tenders in the light of the following criteria:

9.3.1. Award criteria

-        Quality of the tenderer’s proposal in terms of completeness, clarity and concision, relevance of information and documentation provided, lack of ambiguity (20%);

-        The proposed methodology and the organisation of the services to cover the needs of the Commission/DG AGRI; in particular, the measures proposed to ensure the timely availability of adequate resources for the proposed skills, and an effective and efficient project management and communication with the DG AGRI (40%);

-        The quality control of the delivered services and the guarantees offered to respect the proposal (40%).

The assessment of each individual quality criterion should be at least 50% of the maximum scoring set for that criterion. Those offers which will not receive these minimum scorings shall be rejected.

The overall assessment (sum of points for all criteria) should be at least 65 points out of 100. Those offers which will not receive this minimum overall scoring shall be rejected, even if they received the minimum scoring for each individual criterion.

…

9.3.2. Price criteria

…

9.4. Award of the contract

The contract will be awarded to the tender with the highest Performance/Price ratio (best value-for-money procedure) …’.

15      Moreover, it is clear from section 9.1.2 of the draft framework contract that, in the case of subcontractors, the contractor remains bound by its obligations to the Commission under the contract and has exclusive responsibility for the due performance of the contract.

16      On 25 March 2004 the applicant expressed its interest in taking part in the call for tenders in question and asked to be sent the contract tender documents. Those documents were sent to the applicant on 30 March 2004.

17      By registered post of 14 April 2004 the applicant sent to the Commission an initial request for clarification in respect of some of the specifications in the tender documents.

18      On 16 April 2004 the applicant sent to the Commission a second and third request for additional clarification relating to the selection and award criteria set out in the tender specifications.

19      The Commission replied to those requests by letter of 20 April 2004.

20      On the same day, in the light of the Commission’s response, the applicant requested additional clarification.

21      The Commission replied to that request by letter of 21 April 2004.

22      On the same day, the applicant sent to the Commission a fresh request for clarification.

23      The Commission replied to the applicant’s final request by e-mail on 22 April 2004, stating that it could not answer the questions put to it because they had arrived after the date fixed for that purpose in section 7.6 of the tender specifications, namely six days before the closing date for submission of tenders.

24      On 26 April 2004, the deadline for receipt of tenders, the applicant, in consortium with Software AG Belgium SA (‘Software’), submitted a proposal in the tendering procedure at issue.

25      The 12 tenders received by DG AGRI were examined by an evaluation committee set up for that purpose and comprising 6 officials from four Directorates General of the Commission. The contract was awarded on the criterion of which offer was the best value for money. The evaluation committee checked that the tenders submitted satisfied the exclusion and selection criteria and then declared the 12 tenders to be eligible for the award phase. Of the 12 tenders, only 2, which did not obtain the minimal total score of 65 points required by the tender specifications, were eliminated. The results of the evaluation as regards the applicant’s tender and that of the successful tenderer, showing the points awarded on each quality criterion, and the weighted prices of each of those tenders, can be presented as follows:

26      By letter of 23 November 2004, sent on 30 November 2004, the Commission informed the applicant of the result of the evaluation of its tender and of the fact that it had not been successful in so far as it ‘did not achieve the highest quality/price ratio according to which the [contract] was awarded’.

27      By fax and registered letter of 2 December 2004 the applicant asked the Commission to provide it, within 15 calendar days from receipt of its request, with the following information:

-        the identity of the successful tenderer, and of any partners or subcontractors and, where appropriate, the percentage of the market to be allocated to it or them;

-        the score awarded on each award criterion concerning the applicant’s technical offer and that of the successful tenderer;

-        the content of the evaluation committee report;

-        information as to how the applicant’s offer compared with that of the successful tenderer and, in particular, the scores awarded to the applicant’s financial offer and that of the successful tenderer.

28      By letter in response of 10 December 2004, sent on 13 December 2004, the Commission informed the applicant that the successful tenderer was IBM Belgium SA (‘IBM’), and that ARHS Developments SA was the subcontractor. The Commission annexed an extract from the evaluation committee report relating to the applicant’s offer and that of the successful tenderer, while stating that, in order to protect the legitimate business interests of other tenderers, it was not possible to send to it a complete copy of that report, which contained information relating to other tenders which had been submitted but had been unsuccessful. The annexed extract from the evaluation committee report indicated the points obtained by the applicant and the successful tenderer on each of the quality criteria in the light of which the tenders had been assessed. The annexed extract also contained the general observations of the evaluation committee arising from comparison of the applicant’s tender with that of the successful tenderer, in the following terms :

‘[The applicant’s offer is a] good but rather general offer, more a collection of best practices than tailored to the specific aspects of DG AGRI addressed by the tendering specifications (notably, the guarantees offered to cope with the business aspects of financial systems)’.

29      As regards the successful tender, the evaluation committee considered that it was a ‘very good offer, concise and clear’ and that it covered well ‘both technical and business aspects’. The committee added:

‘The offer conveys the assurance of the ability of the tenderer to cope successfully with the challenges in the field of financial [IT systems] at DG AGRI’.

30      By fax and registered letter of 29 December 2004 the applicant requested from the Commission more precise information as to why its tender had been rejected and the contract awarded to another tenderer. The applicant also set out certain comments and objections on the process of evaluation of its tender and of that of the successful tenderer, in the light of the quality criteria, and taking account of the information given by the Commission in its letter of 10 December 2004.

31      By fax and registered letter of 30 December 2004 the applicant sent to the Commission certain information on the financial standing of ARHS Developments which it had obtained through market research conducted in the interim. The applicant asked the Commission to open an investigation to check and confirm that information and, if appropriate, to take it into consideration in the tendering procedure at issue.

32      By letter of 13 January 2005 the Commission informed the applicant that it acknowledged receipt of its letters of 29 and 30 December 2004, while adding that the questions raised needed to be examined carefully and that a reply would be provided within the following six weeks.

33      By letter dated 26 January 2005, sent on 7 February 2005, the Commission replied to those letters. The applicant acknowledged receipt on 9 February 2005.

 Procedure and forms of order sought by the parties

34      The applicant brought this action by application lodged at the Registry of the Court of First Instance on 2 February 2005.

35      Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, as measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, asked the Commission to provide it with certain information and to produce certain documents, including, in particular, the evaluation Committee report and the bid of the successful tenderer. The Commission acceded to this request in part, stating that it was not able to produce a non-confidential version of the bid of the successful tenderer within the period stipulated.

36      The parties set out their arguments and replied to questions put by the Court at the hearing on 16 May 2007. The Court asked the Commission to produce the non-confidential version of the bid of the successful tenderer and set a new time-limit of 28 May 2007.

37      By letter of 25 May 2007, the Commission requested an extension of that period. The Court upheld that request and granted a further extension until 12 June 2007. A non-confidential version of the bid of the successful tenderer was placed on the case-file by the Commission on 12 June 2007. The applicant submitted its written observations on that document on 2 July 2007. After the Commission had set out in writing its views on the applicant’s observations, the oral procedure was closed on 19 July 2007.

38      The applicant claims that the Court should:

-        annul the Commission’s decision to reject its tender and to award the contract to the successful contractor (‘the contested decision’);

-        order the Commission to pay the costs, even if the application is rejected.

39      The Commission contends that the Court should:

-        dismiss the action;

-        order the applicant to pay the costs.

 Law

40      The applicant relies on four pleas in law in support of its action. The first plea in law alleges an infringement of Article 97(1) of the Financial Regulation and of Article 17(1) of Directive 92/50. The basis of the second plea in law is manifest error of assessment. The third plea in law alleges failure to provide pertinent information and infringement of the obligation to state reasons. The fourth plea in law is based on infringement of the principles of diligence and good administration.

 The first plea in law: infringement of Article 97(1) of the Financial Regulation and Article 17(1) of Directive 92/50

 Arguments of the parties

41      The applicant complains that the Commission infringed Article 97(1) of the Financial Regulation and Article 17(1) of Directive 92/50 by using selection criteria which were not well specified and not clearly stated in the call for tenders at issue.

42      The applicant also takes issue with the vagueness of the three qualitative award criteria set out in section 9.3.1 of the specifications (see paragraph 14 above). The fact that those criteria were unspecific and lacked clarity misled the tenderers and obliged the evaluation committee to take a subjective decision when evaluating the submitted tenders.

43      According to the applicant, several examples of tendering documents sent to tenderers in the course of other tendering procedures initiated by the Commission, in which the technical specifications were set out clearly and comprehensively and the work requested was detailed effectively, demonstrate that the tender specifications in this case are among the least complete and the most vague that the applicant has ever seen.

44      The Commission rejects the applicant’s arguments and contends, first, that the applicant has no interest in challenging the alleged vagueness of the selection criteria, since the applicant was selected for the tender procedure because it satisfied those criteria.

45      Secondly, as regards the award criteria, the Commission first states that the contracting authority is free to choose those criteria. It then contends that the award criteria, in this case, were defined in advance and set out in a sufficiently clear and objective manner in the tender specifications.

 Findings of the Court

46      First, the applicant alleges infringement of Article 17(1) of Directive 92/50. However, under Article 105 of the Financial Regulation, as from 1 January 2003 that directive, relating to the coordination of procedures for the award of public service contracts, applies to public contracts awarded by the institutions of the Communities on their own account only as regards questions relating to the thresholds determining publication arrangements, choice of procedures and corresponding time-limits.

47      It follows that in the present case, which concerns a public services contract awarded by the Commission, the question whether the contracting authority has complied with its obligation to define and set out in advance in the call for tenders the selection criteria for evaluating the capability of tenderers, and the award criteria for evaluating the content of their tenders, must be examined in the light of the provisions of the Financial Regulation and the Implementing Rules.

48      Article 97(1) of the Financial Regulation imposes on the contracting authority the obligation to define and set out in advance in the call for tenders both the selection criteria and the award criteria. Furthermore, that obligation, which involves ensuring that the criteria and conditions governing each contract are sufficiently advertised, is defined further in Articles 135 to 137 of the Implementing Rules, in respect of selection criteria, and in Article 138 of the Implementing Rules, in respect of award criteria.

49      Those provisions are intended to ensure respect for the principles of equal treatment and transparency, enshrined 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, to that effect and by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C-470/99 Universale-Bau and Others[2002] ECR I-11617, paragraphs 90 to 92).

50      The purpose of those provisions is none other than 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 participate or of their tenders (see, to that effect, as regards the stage of selecting candidates, Universale-Bau and Others, cited in paragraph 49 above, paragraph 93, and, as regards the stage of comparing tenders, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 54).

51      Moreover, while it cannot be excluded that the operation of checking the suitability of contractors to provide the services which are the subject of the public contract to be awarded (selection of tenderers) and that of awarding the contract (selection of tenders) may take place simultaneously, it remains the case that those two operations are governed by different rules (see, by analogy, Beentjes, cited in paragraph 49 above, paragraphs 15 and 16, and Case C-315/01 GAT [2003] ECR I-6351, paragraphs 59 and 60).

52      The complaint concerning (i) the alleged vagueness of the specifications on the selection of tenderers, and (ii) the alleged vagueness and subjectivity of the award criteria, must be examined in the light of the foregoing considerations.

-       The vagueness of the specifications contained in the tender documents on the selection of tenderers

53      First, as is clear from the documents before the Court and as has been pointed out by the Commission, without objection from the applicant, the applicant passed the stage of selection of tenderers, since it was permitted to lodge a tender.

54      In those circumstances, even if the complaint as to the vagueness of the specifications relating to the phase of selection of tenderers were well founded, the applicant has not demonstrated any interest in challenging those specifications, as the Commission correctly points out, inasmuch as the applicant passed that stage.

55      Consequently, this complaint must be rejected as inoperative.

-       The vagueness and subjectivity of the award criteria

56      It must be pointed out that, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the Implementing Rules, the contract was awarded, in this case, to the tender offering the best value for money (section 9.4 of the tender specifications, see paragraph 14 above).

57      It must further be borne in mind that, in order to ensure observance of the principles of transparency, equal treatment and non-discrimination at the stage of selection of tenders for the award of a contract, Article 97(1) of the Financial Regulation imposes on the contracting authority, when the contract is to be awarded by the best-value-for-money procedure, the obligation to define and set out in the tender specifications the award criteria for evaluating the content of the tenders. Those criteria must, in accordance with Article 138(2) of the Implementing Rules, be justified by the subject of the contract. Under Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting which it will apply to each of the chosen criteria for determining which tender offers the best value for money.

58      None the less, those provisions leave to the contracting authority the choice of the award criteria on which tenders will be evaluated. However, the aim of the award criteria which the contracting authority intends to adopt must, in all cases, be to identify the tender which offers the best value for money (see, to that effect, Case T-4/01 Renco v Council [2003] ECR II-171, paragraph 65, and Case T-183/00 StrabagBenelux v Council [2003] ECR II-135, paragraphs 73 and 74).

59      Furthermore, the criteria adopted by the contracting authority in order to identify the tender which offers the best value for money need not necessarily be quantitative or related solely to prices. Even if award criteria which are not expressed in quantitative terms are included in the tender specifications, they may be applied objectively and uniformly in order to compare the tenders and are clearly relevant for identifying the most economically advantageous tender (see, to that effect, Renco v Council, cited in paragraph 58 above, paragraphs 67 and 68).

60      In this case, it is clear that the Commission referred in section 9.3 of the tender specifications to the award criteria which it intended to adopt for awarding the contract to the tender which offered the best value for money, namely, on the one hand, three qualitative criteria (section 9.3.1 of the tender specifications, see paragraph 14 above) and the relative weighting which it intended to apply to each of those criteria and, on the other hand, one quantitative criterion which, in essence, involved determining the total cost of the tender by adding together the weightings of several unit prices (section 9.3.2 of the tender specifications, see paragraph 14 above).

61      It is useful to recall, at this point, that the three qualitative criteria challenged by the applicant, and their weighting, were worded as follows:

-        ‘quality of the tenderer’s proposal in terms of completeness, clarity and concision, relevance of information and documentation provided, lack of ambiguity (20%);

-        the proposed methodology and the organisation of the services to cover the needs of the Commission/DG AGRI; in particular, the measures proposed to ensure the timely availability of adequate resources for the proposed skills, and an effective and efficient project management and communication with the DG AGRI (40%);

-        the quality control of the delivered services and the guarantees offered to respect the proposal (40%)’.

62      The applicant does no more than claim that those criteria are vague, questioning how the Commission could objectively evaluate the quality of tenders with regard to each of those criteria. The applicant offers no evidence in support of its allegation from which it can be determined that, when defining those criteria, the Commission disregarded its obligation to observe the principles of transparency, equal treatment and non-discrimination.

63      The Court considers that there is nothing in the documents before it to justify any criticism that the Commission exceeded the limits stemming from the abovementioned legislative provisions, as they have been interpreted in the case-law cited (see paragraphs 58 and 59 above), when it chose and defined the award criteria intended to identify the tender offering the best value for money.

64      It must be pointed out that the qualitative criteria at issue are criteria which are relevant to identifying the tender which offers the best value for money, given that the various factors taken into consideration by the Commission when defining them, such as the organisation and methodology intended for provision of the services, and the timely availability of skills and material and personal resources, may, unquestionably, affect the proper provision of the services covered by the contract to be awarded and, therefore, the value of the tender itself.

65      Furthermore, it is obvious that the principal function of the three qualitative award criteria challenged by the applicant is to check that the tender of each candidate is capable of ensuring, first, a provision of services of the quality required and suited to the needs and organisation of DG AGRI in terms of the timely availability of human and material resources and, secondly, the existence of appropriate mechanisms to monitor the effective provision of those services, including a project management team capable of ensuring communication with the recipient of the service. The Court finds that those award criteria, although they are not quantitative, unlike the criterion relating to the total cost of the tender in section 9.3.2 of the tender specifications, are not vague and subjective inasmuch as they may be applied in an objective, concrete and uniform manner by the contracting authority.

66      In addition, the Commission indicated, in accordance with the applicable provisions, the relative weighting attributed to each of the quality criteria by means of percentages, thereby informing the tenderers of the importance that the Commission intended to attach to each criterion when making the comparative evaluation of the tenders.

67      In the light of the foregoing, it must be concluded that the applicant has not established to the requisite legal standard that the Commission failed to fulfil its obligation to define and set out the award criteria in the tender specifications in accordance with the principles of transparency, equal treatment and non-discrimination.

68      Consequently, the complaint that the award criteria were vague and subjective must be rejected as being unfounded.

69      That conclusion cannot be invalidated by the applicant’s claims relating to the terms in which the Commission has drafted the tendering documents in other public procurement procedures.

70      It must, in that regard, be borne in mind that the Community legislature has conferred on the Commission the discretion to choose freely the criteria for awarding a contract which it intends to adopt, but that that discretion is not absolute. In accordance with the provisions of the Financial Regulation and the Implementing Rules, the award criteria chosen by the Commission must be defined and set out in advance in the tendering documents, have the aim of identifying the tender offering the best value for money, and be justified by the subject-matter of the contract. In addition, when exercising that discretion, the Commission must respect the principles of transparency, equal treatment and non-discrimination.

71      In conferring that discretion to choose freely the criteria for awarding the contract, the aim of the Community legislature was to enable the Commission to take into consideration the nature, subject-matter and specific features of each contract when choosing and formulating the award criteria. Consequently, the terms of the award criteria chosen by the Commission in other procurement procedures cannot be relied on by the applicant for the purpose of demonstrating that the award criteria in this case are vague and subjective. Reference to the tender documents in other procurement procedures is not evidence which is either relevant or sufficient for that purpose.

72      In the light of all of the foregoing, the plea in law which alleges an infringement of Article 97(1) of the Financial Regulation must be rejected in its entirety.

 The second plea in law: manifest error of assessment

 Arguments of the parties

73      The applicant claims that the Commission, by accepting the tender submitted jointly by IBM and ARHS Developments, committed a manifest error of assessment. The applicant challenges the general remarks made by the evaluation committee in its report and considers that its own tender was neither correctly nor objectively evaluated when compared with that of the successful tenderer.

74      First, the applicant makes the observation that the consortium formed by IBM and ARHS Developments, whose tender was successful, did not satisfy the selection criterion linked to economic and financial capacity, because the overall financial position of the latter company, which suffered losses in the tax years 2003 and 2004, was negative. The criterion in section 9.2.1 of the tender specifications requiring financial soundness for the previous three years, which had to be complied with by all members of a consortium and by all possible subcontractors, was, accordingly, not fulfilled.

75      The applicant also criticises the Commission for not, in those circumstances, requesting that IBM provide a guarantee on behalf of ARHS Developments, as the Commission had done in a procurement procedure launched by the Taxation and Customs Union Directorate-General (DG TAXUD) to which ARHS Developments had also submitted a tender in a consortium with IBM. The applicant states in that regard that, unlike the present case, it was not a requirement of the tender specifications in the procedure launched by DG TAXUD that the exclusion criteria and the selection criteria should be satisfied by all of the members of a consortium or by subcontractors.

76      Secondly, the applicant cannot understand the Commission’s choice in accepting the tender of the consortium formed by ARHS Developments and IBM. While the latter has the advantage of international recognition, it has only limited experience in the provision of services to the Commission. The same is true of its partner, ARHS Developments, which has almost no experience in this field, quite apart from the fact that it has a limited number of employees. By contrast, the applicant and Software, with which it submitted a tender as a consortium, are both regular suppliers of IT services to the European institutions. Furthermore, Software has a staff of 3 000 employees.

77      The applicant also claims that the working relations maintained in the past by the founder of ARHS Developments with DG AGRI in the provision of IT services was not a criterion which could have been taken into account by the evaluation committee.

78      Thirdly, the applicant complains that the Commission did not, when evaluating the tenders, follow a methodology which was precise and known to the tenderers. Fourthly, the applicant criticises the Commission for not taking into account the fact that its tender was financially more advantageous than that of the successful tenderer.

79      The Commission rejects the applicant’s arguments, and refers to its broad discretion as to the factors to be taken into consideration when a decision to award a contract following a call for tenders is made.

80      It observes that, contrary to the applicant’s assertion, ARHS Developments is a subcontractor and not a member of a consortium. In the case of subcontracting, it is clear from sections 7.4 and 9.1.2 of the tender specifications that the contractor remains solely and entirely responsible for performance of the contract awarded. For that reason, contrary to what was decided in the DG TAXUD procurement procedure, in which IBM and ARHS Developments were both members of a consortium and, therefore, jointly responsible if the contract was awarded to them, the Commission did not deem it necessary, in the tendering procedure at issue in the present case, that the tendering company, IBM, should provide a guarantee on behalf of the company which was a subcontractor, ARHS Developments.

81      The Commission refers to the wording of section 9.2 of the tender specifications in support of its point that satisfaction of the criterion of financial soundness did not have to be established by each of the members of a consortium or by each of the subcontractors proposed by the tenderer. According to the Commission, it is enough to demonstrate that the members of a consortium or the tenderer and its subcontractor(s) jointly offer an adequate financial capacity. Accordingly, a tender can be rejected because of the financial position of one single member of the consortium or one of the subcontractors only when that position is such as to affect the financial capacity of the other members of the consortium or of the principal partner (in the case of subcontractors) to perform the contract.

 Findings of the Court

82      It is clear from settled case-law that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Community Courts is limited to checking compliance with the applicable procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147, and Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47).

83      What must be determined therefore is whether, in this case, the Commission committed a manifest error of assessment in the award of the contract by selecting a tender other than that of the consortium of which the applicant was a member, regard being had to the broad discretion enjoyed by the Commission when awarding a contract following an invitation to tender.

-       The selection criterion relating to the economic and financial capacity of the successful tenderer

84      It is appropriate to examine the applicant’s argument that the Commission, in taking the view that the consortium formed by IBM and ARHS Developments satisfied the selection criterion relating to economic and financial capacity, even though the overall financial position of ARHS Developments was negative, committed a manifest error of assessment.

85      In essence the question is whether, as is claimed by the applicant, the tender specifications in this case required compliance with the selection criterion relating to economic and financial capacity by all of the parties which submitted a joint tender as members of a consortium or as subcontractors. It must also be determined whether the reply to that question is dependent on the legal nature of the links between the parties which decided to jointly submit their tender, whether those are links characteristic of those between members of a consortium or links characteristic of subcontracting.

86      First of all, it is useful to recall the content of the provisions of the tender specifications relating to the information which must, when a tender is submitted, be supplied to the contracting authority to allow examination of compliance with the exclusion and selection criteria, namely sections 8.2.2 and 8.2.3 of the specifications (see paragraph 13 above). That information must be provided by each of the members of a consortium, where the tender is submitted by a consortium, or by each of the subcontractors proposed at the time of submission of the tender or in the future, in the case where the tenderer envisages making use of subcontractors.

87      In addition, as regards information for the selection criterion relating to economic and financial capacity, section 8.2.3.1 of the specifications states that, where a company has been operating for less than three years, proof must be furnished that its financial standing is adequate.

88      Next, as regards the provisions concerning the assessment of compliance with the exclusion criteria, it is clear that section 9.1 of the specifications states that ‘[i]n the case of joint tenders (consortium) or subcontractors, these exclusion criteria will be applied to all the individual organisations proposed by the tenderer’, and that the decision to exclude a tenderer will be taken on the basis of the information which all the tenderers, either a single entity or all members of a joint offer as members of consortium or as subcontractors, have to supply in accordance with the requirements of section 8.2.2 of the specifications.

89      Lastly, as regards the provisions of the specifications concerning the assessment of compliance with the selection criteria, namely section 9.2.1 on examination of economic and financial standing, and section 9.2.2 corresponding to professional and technical capacity, it is clear that those provisions merely state that the decision relating to selection of tenderers will be taken on the basis of the information supplied by the tenderers in accordance with the requirements of sections 8.2.3.1 and 8.2.3.2 of the specifications and, where applicable, on the basis of other information which the Commission may judge to be relevant. However, it is noteworthy that those provisions do not, unlike the provisions on exclusion criteria, state that, in the case of joint tenders (consortium) or subcontractors, those selection criteria will be applied to all the organisations in the tenderer’s proposal.

90      The applicant’s reliance on the provisions referred to above does not therefore support its claim that, in this case, both IBM and ARHS Developments, which jointly submitted the successful tender, were required individually to demonstrate a sound economic and financial capacity for the previous three years, irrespective, furthermore, of the legal nature of the links between them.

91      That conclusion cannot be invalidated by the fact that, under section 8.2.3 of the specifications, the information relating to economic and financial capacity there referred to must be supplied by all parties submitting the joint tender. There is no provision in the tender specifications which specifies how that information must be used by the contracting authority when assessing compliance with the selection criteria, in particular the criterion concerning the economic and financial capacity of the tenderer.

92      It follows that, in this case, the Commission was at liberty, by reason of its broad discretion as regards the factors to be taken into consideration when a public contract is awarded, to make an overall assessment of the information provided by each of the two companies which jointly submitted the successful tender and to conclude that, taken together and regard being had to the fact that they were in some respects interdependent, those companies jointly possessed the economic and financial capacity necessary to satisfy the relevant selection criterion. Contrary to what is claimed by the applicant, there is no provision of the specifications in this case from which it can be inferred that the Commission was obliged to examine separately the economic and financial capacity of each of the two companies which jointly submitted their tender and to conclude that those two companies individually satisfied the relevant selection criterion.

93      In any event, having regard to the legal nature of the links between IBM and ARHS Developments, the Commission was entitled to refrain from establishing that ARHS Developments had complied with the selection criterion relating to economic and financial capacity. In fact, as is clear from the non-confidential version of the successful candidate’s tender placed on the case-file by the Commission (pages 18, 29 and 35), the legal status of that company is, in the context of the call for tenders at issue, that of a subcontractor, and not that of a member of a consortium as is claimed by the applicant.

94      As is correctly observed by the Commission, the legal links characteristic of a subcontracting relationship differ from those which characterise the relationship of members of a consortium inasmuch as, in the case of subcontracting, the sole party responsible for the proper performance of the contract is the tenderer to which the contract has been awarded, not the subcontractor. In the present case, it was laid down in sections 7.3 and 7.4 of the specifications, and in Article 9.1.2 of the draft framework contract, that, in the case of subcontracting, the contractor was to remain solely responsible for the due performance of the contract. IBM remained, therefore, ultimately solely responsible for the due performance of the contract.

95      Moreover, since ARHS Developments had been operating in the market for less than three years, it was obliged, in accordance with section 8.2.3.1 of the specifications, only to demonstrate that it possessed, at the time of lodging its tender and for the purposes of performance of the contract, adequate financial standing. It is clear from the non-confidential version of the tender of the successful tenderer (pages 57 and 58) that ARHS Developments, operating in the market since 2003, submitted the information required for assessment of the selection criterion relating to economic and financial capacity in a detailed and objective manner, and that information, moreover, has not been directly disputed by the applicant.

96      In those circumstances, the Commission could reasonably form the view, without exceeding the limits set on the exercise of its broad discretion in awarding a contract, that examination of the economic and financial capacity of the two companies which jointly submitted the successful tender justified the conclusion that the selection criterion relating to economic and financial capacity had been satisfied. In addition, taking account of the role in the tender reserved to IBM and its financial soundness, which is moreover undisputed by the applicant, the Commission was also justified in forming the view that the fact that the overall financial situation of ARHS Developments was negative was not such as to place in question the economic and financial capacity required by the tender specifications.

97      In addition, and to the extent to which it is evident that ARHS Developments was a subcontractor of IBM, it is not possible to accept the applicant’s argument which seeks to demonstrate that the Commission treated differently two similar situations and, consequently, infringed the principle of equal treatment and non-discrimination in the exercise of its broad discretion, inasmuch as, in this case, by contrast to what the Commission had done in the DG TAXUD procurement procedure, it did not require the provision of a guarantee covering ARHS Developments.

98      As the applicant rightly acknowledges, in the last-mentioned procurement procedure, IBM and ARHS Developments submitted their tender jointly in the form of a consortium. That is not the position here. In the instant case, it has been established that ARHS Developments was the subcontractor of the tendering company, IBM, which, under the provisions of the specifications and of the draft framework contract, was solely responsible for performance of the contract. In the case of a consortium, as a general rule all its members are bound to the contract and jointly and severally responsible for its due performance, which explains why DG TAXUD requested a guarantee from IBM, given that the overall financial situation of the other tendering member of the consortium, ARHS Developments, was negative. It follows that, contrary to what is claimed by the applicant, since the situations are not similar, the Commission was entitled to treat them differently, and, consequently, the Court cannot hold that there was any infringement of the principle of equal treatment.

99      In the light of all of the foregoing, it must be concluded that the applicant has not established that, in taking the view that the successful tenderer satisfied the selection criterion relating to economic and financial capacity, notwithstanding the fact that the overall financial situation of the company operating as subcontractor, ARHS Developments, was negative, the Commission committed a manifest error of assessment.

-       The evaluation of the applicant’s tender and its comparison with that of the successful tenderer

100    It is also clear that the applicant cannot rely on its greater experience in the field of providing IT services for the European institutions, nor on a larger number of employees, in order to establish that the Commission did not correctly assess its tender when comparing it with the successful tender, and that it thereby committed a manifest error of assessment.

101    In accordance with settled case-law, the quality of tenders must be assessed on the basis of the tenders themselves and not either on the basis of the experience acquired by the tenderers with the contracting authority in connection with previous contracts or on the basis of selection criteria (such as the technical and professional capacity of tenderers) which were already checked at the selection phase 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, and TQ3 Travel Solutions Belgium v Commission, cited in paragraph 82 above, paragraph 86; see also, to that effect, Beentjes, cited in paragraph 49 above, paragraph 15).

102    In this case, it is clear from section 9.3.1 of the specifications that the award criteria are three in number (see paragraph 14 above), and that the past experience of tenderers in the field of providing IT services to the Commission is not among them. The applicant’s experience therefore cannot preclude the successful candidate’s tender from being treated as a tender capable of ensuring a quality of service superior to that of the applicant and adequately satisfying the award criteria concerned.

103    The same is true of the applicant’s assertion concerning the number of its employees. There is nothing to prevent the Commission from judging a lesser number of employees to be sufficient, not to say justified, without impairing the expected quality of the services (see, to that effect, TQ3 Travel Solutions Belgium v Commission, cited in paragraph 82 above, paragraph 89). Moreover, the applicant has in no way demonstrated that the lower number of employees made available by the successful tenderer might affect the quality of the service here being provided.

104    Furthermore, as stated by the Commission, the past acquisition of significant experience in the field of providing IT services to the European institutions and, more specifically, to the Commission, cannot under any circumstances be taken into account by the contracting authority when selecting tenders if the principles of equal treatment and non-discrimination are to be respected.

105    It follows that the conduct of the contracting authority, when in this case it did not take into account the experience acquired by the applicant in the past in providing IT services to the Commission, far from constituting a manifest error of assessment, was consistent with the limits imposed by those general principles of law on the exercise of its broad discretion and was in accordance with the relevant provisions of the specifications.

106    As regards the applicant’s assertion that the Commission took into account the experience acquired in the past by the founder of ARHS Developments with DG AGRI, the Court considers that this argument must be dismissed. First, the applicant offers no evidence in support of its assertion. Secondly, it is clear from the evaluation committee report that the committee relied on the three objective award criteria in relation to quality stated in section 9.3.1 of the specifications, and within the general observations no reference is made to the alleged earlier experience of the founder of ARHS Developments with DG AGRI.

107    Consequently, the Court finds that the Commission conducted the public procurement procedure at issue with the required impartiality and objectivity, that being ensured, moreover, by the fact that the evaluation committee was composed of members of four different services of the Commission. The applicant’s claim intended to establish that the Commission did not assess its tender either correctly or objectively must therefore, in the absence of sufficient evidence, be rejected.

-       The financial evaluation of the applicant’s tender and the methodology used in evaluating the tenders

108    As regards the applicant’s claim that its tender was in financial terms a lower bid than that of the successful candidate, that fact is of no relevance, because in this case the contract had to be awarded, in accordance with the tender specifications, on the basis of the criterion of the best quality/price ratio, and not only on the basis of the criterion of price.

109    In addition, while it is true that the financial tender of the consortium to which the applicant belonged was lower than that of the successful tenderer, it remains the case that, as is clear from the results of the evaluation of tenders to be found in the evaluation committee report (section 5.5), the applicant’s tender was not, in financial terms at any rate, the lowest bid among the tenders submitted, since it was ranked merely in fourth position in relation to price.

110    It follows that the applicant is not entitled to argue that there was a manifest error of assessment by relying on the fact that its tender was, in financial terms, a lower bid than that of the successful tenderer.

111    The same is true of the applicant’s claim concerning the methodology used by the Commission when evaluating the tenders. On this point, leaving aside the fact that that claim is unsupported, the Court observes that, contrary to what is maintained by the applicant, the methodology employed by the Commission when making a final ranking of the tenders was defined in advance and set out in section 9.3 of the specifications (see paragraph 14 above), where, in an adequately detailed manner, the contracting authority set out the criteria in the light of which selection of tenders was to be carried out, as well as the weighting to be attributed to each of those criteria.

-       The discrepancy in award criteria referred to in the evaluation committee report

112    Lastly, as regards the discrepancy, referred to by the applicant at the hearing, between the award criteria set out in section 5.2 of the non-confidential version of the evaluation committee report and those mentioned in section 5.4 of that report, it is clear that that typographical error, acknowledged as such by the Commission, although regrettable, is of no relevance, since, as is clear from the results of the evaluation of the tenders, the evaluation committee applied the three qualitative award criteria which had been defined in advance and set out in the tender specifications in accordance with the requirements of the legislation.

113    Consequently, in the light of all the foregoing, it must be concluded that, since the applicant has not succeeded in establishing to the requisite legal standard that the Commission committed a manifest error of assessment, this plea in law must be rejected as being unfounded.

 The third plea in law: infringement of the obligation to state reasons and failure to provide pertinent information

 Arguments of the parties

114    The applicant claims that the contested decision is vitiated by the failure to provide an adequate statement of reasons.

115    First, the applicant complains that the Commission deprived it of the possibility of assessing the legality of the Commission’s acts by failing both to reply in time to the applicant’s questions and to provide the clarification repeatedly requested in writing.

116    Secondly, the applicant claims that the Commission did not provide it with all the information requested on the grounds for rejection of its tender. In this context the applicant states that, in accordance with Article 253 EC and Article 8 of Directive 92/50, the contracting authority is obliged to give sufficient reasons for its decision to reject the tender of a participant when the latter request the reasons for that rejection, and must do so within 15 days following that request.

117    In this case, the applicant contends, the Commission did not explain clearly the reasons why it rejected the applicant’s tender and failed to make any reference to the characteristics and comparative advantages of the successful tenderer, thereby depriving the applicant of the possibility of commenting meaningfully on the choice made and of challenging it, and also of the possibility of obtaining legal redress.

118    The Commission considers that it has complied in full with the requirements to state reasons which stem from Article 100(2) of the Financial Regulation. The Commission therefore rejects the applicant’s arguments seeking to establish the contrary.

 Findings of the Court

119    As a preliminary point, the complaint put forward by the applicant, criticising the fact that the Commission omitted both to reply within the time-limits to the requests submitted to it by the applicant and to provide the clarification which was sought several times in writing by the applicant, does not fall within the scope of an analysis of the Commission’s obligation to state reasons, but within an analysis of the infringement of the principles of diligence and good administration as alleged by the applicant under its fourth and final plea in law. Consequently, this complaint will be examined only in the context of that plea in law (see paragraphs 142 to 150 below).

120    As regards the infringement, claimed by the applicant, of the obligation to state reasons as such, in that the Commission failed to communicate to it all the information requested on the reasons for rejection of its tender, it must be pointed out that, contrary to what is maintained by the applicant, the obligation on a contracting authority to state reasons for the rejection of a candidate’s tender does not, in this case, come within the scope of Directive 92/50. As stated in paragraphs 47 and 48 above, the relevant provisions which are applicable in this case are the Financial Regulation and the Implementing Rules and, more specifically, Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, which govern the obligation to state reasons incumbent on the competent institution in the context of a public procurement procedure.

121    It is clear from those provisions, and from settled case-law, that the Commission fulfils its obligation to state reasons if it confines itself, first, to informing unsuccessful tenderers immediately of the reasons for the rejection of their 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, to that effect, Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 31, and Strabag Benelux v Council cited in paragraph 58 above, paragraph 54).

122    That manner of proceeding satisfies the purpose of the duty to state reasons enshrined 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 taken and thereby enable them to assert their rights, and, on the other, to enable the Court to exercise its supervisory jurisdiction (see Adia Interim v Commission, cited in paragraph 121 above, paragraph 32 and case-law cited; Strabag Benelux v Council, cited in paragraph 58 above, paragraph 55; and Renco v Council, cited in paragraph 58 above, paragraph 93).

123    Consequently, in order to determine whether, in this case, the Commission fulfilled its obligation to state reasons, the Court considers it necessary to examine the contested decision and also the letter of 10 December 2004, sent to the applicant in reply to its express request of 2 December 2004 seeking to obtain additional information on the decision to award the contract in question and on the rejection of its tender.

-       The statement of reasons contained in the contested decision and in the letter of 10 December 2004

124    In the contested decision, the Commission confined itself, in accordance with Article 100(2) of the Financial Regulation, to disclosing the reasons why the applicant’s tender had been rejected, namely the fact that that tender did not offer the best value for money, the criterion on which the contract had been awarded. The Commission also informed the applicant of the possibility of requesting additional information on the reasons for the rejection of its tender.

125    As regards the letter of 10 December 2004 (see paragraph 28 above), it is necessary to observe, at the outset, that the Commission’s reply to the applicant’s written request of 2 December 2004 complied with the maximum period of 15 calendar days, from the date of receipt of that request, as laid down in Article 149(2) of the Implementing Rules.

126    The letter of 10 December 2004, which provided information on several points in reply to the applicant’s request for detailed explanations, was worded as follows:

‘(1)      The successful tenderer is IBM … with subcontractor Aris Developments …

The tender specifications did not require the percentage of the contract to be allocated to subcontractors.

(2)      [Points allocated on each of the three quality criteria to the successful tender and to that of the applicant:]

(3)      For the reasons mentioned in the introductory letter [protection of the legitimate business interests of the tendering parties], it is not possible to provide a copy of the evaluation report to you. I can, however, give you an extract from the minutes of the Evaluation Committee comparing your offer [the applicant’s tender] to the winning offer:

(4)      As explained in the tender specifications, there is no score awarded to the financial offers. The award has been done using the best quality/price ratio.

.’

127    It is clear that, in that letter, the Commission stated to the requisite legal standard the reasons for the rejection of the applicant’s tender, by specifying the name of the candidate to which the contract had been awarded and that of its subcontractor, and also the advantages of the successful tender by comparison with that of the applicant in the light of the three qualitative award criteria established by the tender specifications. Indeed, the second table enabled the applicant to compare directly, on each qualitative criterion, the points which had been awarded to it with those obtained by the successful tenderer. In addition, the last table showed the result of the quality/price ratio calculation, for both the applicant’s tender and the successful tender, thereby enabling the applicant to identify immediately the reasons why its tender had not been chosen, namely the fact that it offered less value for money than that of the successful tenderer, because the latter offered a better quality/price ratio (see, to that effect, Esedra v Commission, cited in paragraph 101 above, paragraph 192; Strabag Benelux v Council, cited in paragraph 58 above, paragraph 57; cited in and Renco v Council, cited in paragraph 58 above, paragraph 95).

128    Furthermore, the letter of 10 December 2004 also revealed that the applicant’s tender had not been ranked, on any of the three qualitative criteria set out in the tender specifications, ahead of the successful tender. In addition, in the last table, it was indicated that, in the final ranking, the applicant’s tender was placed in fourth position.

129    Moreover, the general observations concerning the comparison of the applicant’s tender with that of the successful tenderer gave details of the factors in its tender which the Commission considered to be unsatisfactory.

130    Having regard to all of that information, it must be concluded that the Commission properly fulfilled its obligation to state reasons, as interpreted by the case-law, inasmuch as its letter of 10 December 2004 satisfied the requirements laid down by Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules.

-       The brevity of the evaluation committee report

131    Furthermore, the applicant’s claim that the evaluation committee report is relatively brief cannot invalidate the finding that the statement of reasons was sufficient.

132    While it is true that the evaluation committee report appears succinct, it remains the case that the information which it contains was sufficient to satisfy the obligation to state reasons in the terms laid down by the Community legislature and the case-law, since that information enabled both the applicant to assert its rights before the Court and the Court to exercise its supervisory jurisdiction. Indeed, the applicant, in its written pleadings, relied on information drawn from the extracts from the evaluation committee report which had been sent to it in the letter of 10 December 2004.

133    It follows that, while regrettable, the fact that the evaluation committee report was succinct, none the less cannot invalidate the conclusion that the Commission satisfactorily fulfilled, to the requisite legal standard, its obligation to state reasons.

134    Nevertheless, it is appropriate to point out that the principle of transparency which informs every public procurement procedure requires that particular care is taken, when a candidate’s tender is rejected, with the statement of reasons, and that is a consequence of the broad discretion enjoyed by the institutions in public procurement. It would be desirable, accordingly, that the contracting authority should ensure that any evaluation committee report issued in a tendering procedure be as substantial as possible, setting out in detail the reasoning which led to the proposal to award the contract to one specific tender and to reject, consequently, the tenders of other candidates. The fact that, as the Commission stated at the hearing, ‘a lot of work is done behind the scenes’ cannot release the contracting authority from the obligation, in conformity with the principle of transparency and the safeguards which limit its broad discretion, to take pains to ensure that all the factors on which it has based its decision are revealed.

135    For the same reasons, the Court considers that that it would be equally desirable that the institution concerned systematically should send to tenderers which have made a written request, within the meaning of Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules, a copy of the evaluation committee report from which, if necessary, confidential information has been removed.

-       The Commission’s letter of 26 January 2005, sent on 7 February 2005

136    Lastly, the sufficiency of the statement of reasons is not brought into question by the fact that in the letter dated 26 January 2005, and posted on 7 February 2005, the Commission provided, at the applicant’s express request, an even more detailed explanation concerning the evaluation of the applicant’s tender and the grounds for its rejection (see, to that effect, Strabag Benelux v Council, cited in paragraph 58 above, paragraph 57). After all, since the Commission had, to the requisite legal standard and in accordance with Article 100(2) of Financial Regulation and Article 149(2) of the Implementing Rules, stated the reasons for its decision to reject the applicant’s tender and to award the contract to the successful tenderer, the Commission was not under any obligation to reply to the applicant’s requests of 29 and 30 December 2004. Since that letter was sent to the applicant after the date on which the present action was brought by the applicant, it cannot be taken into consideration for the examination of this plea in law relating to the infringement of the obligation to state reasons. On the other hand, the Court considers that the letter must be examined under the fourth plea in law, which alleges infringement of the principles of diligence and good administration (see paragraphs 151 to 159 below).

137    Having regard to all of the foregoing, the third plea in law alleging an infringement of the obligation to state reasons must be rejected as being unfounded, since the applicant, on the basis of the information concerning the grounds for the rejection of its tender which were sent to it by the Commission, was in a position to assert its rights before the Court and the Court has been able to exercise its supervisory jurisdiction in respect of the legality of the contested decision.

 The fourth plea in law: infringement of the principles of diligence and good administration

 Arguments of the parties

138    First, the applicant claims that the Commission infringed the principles of good administration and diligence, by acting with significant delay and by failing to provide adequate answers to the applicant’s requests to it for clarification of certain specifications in the tender documents prior to the submission of its tender. The Commission, it argues, thereby prevented it from submitting a more specific tender, on the assumption, which is not accepted, that the tender which the applicant did submit was not specific.

139    Secondly, the applicant repeats its criticism that the Commission failed both to reply to the questions sent to it within the time-limits and to provide the clarification which the applicant had requested several times in writing. It submits that the Commission, although acknowledging receipt on 13 January 2005 of its letter of 30 December 2004, did not reply to it until 7 February 2005, that is to say, after expiry of the period for bringing this action, on 2 February 2005.

140    The Commission rejects the applicant’s arguments and contends that it replied promptly and comprehensively to each of the applicant’s requests for information.

141    As regards the letter sent on 7 February 2005, the Commission considers that that letter was not essential in order for the applicant to be aware of the grounds for the rejection of its tender. The Commission also disputes that that letter was sent after the expiry of the period for bringing this action. On the contrary, the contested decision, dated 23 November 2004, was, it claims, sent by recorded delivery on 1 December 2004. Accordingly, the two-month period for bringing proceedings, extended on account of distance by a period of 10 days, expired on 11 February 2005. The letter posted on 7 February 2005 was received by the applicant before that date, namely 9 February 2005.

 Findings of the Court

142    This plea in law can be divided into two parts. In the first part, the applicant claims that the Commission failed to send to it the information relating to certain specifications contained in the tender documents which it had requested from the Commission before submitting its tender. In the second part, the applicant claims that the Commission replied to its requests of 29 and 30 December 2004, following rejection of its tender, only by letter dated 26 January 2005 and posted on 7 February 2005, and thus after the expiry of the period for bringing this action, thereby depriving the applicant of the possibility of assessing the legality of the Commission’s acts.

-       The first part of the fourth plea in law

143    So far as concerns the requests for information sent by the applicant to the Commission before it submitted its tender, it must be borne in mind that, in accordance with Article 148(1) and (2)(a) of the Implementing Rules, contacts between contracting authorities and tenderers are permitted by way of exception during the contract award procedure. Accordingly, before the closing date for the submission of tenders, the contracting authority may, at the instance of tenderers, provide additional information solely for the purpose of clarifying the nature of the contract, such information to be communicated on the same date to all tenderers which have asked for the tender specifications.

144    It is clear from the actual terms of Article 148(1) and (2)(a) of the Implementing Rules that contacts between the contracting authority and tenderers before the lodging of tenders may take place only by way of exception.

145    Furthermore, it is clear that that provision confers on the contracting authority the option of replying to requests for additional information sent to it by tenderers. Accordingly, contrary to what the applicant appears to maintain, that provision cannot be interpreted as imposing on the contracting authority an obligation to reply to such requests.

146    Consequently, it must be held that the Commission was not obliged to reply to requests for additional information sent by the applicant prior to the lodging of its tender.

147    However, it is clear from the documents before the Court that the Commission provided the information which was requested on several occasions by the applicant and, on each occasion, did so within a reasonable period of time.

148    In that regard it must be observed, first, that the applicant sent to the Commission four successive requests for additional information on 14, 16, 20 and 21 April 2004. All of those requests related to the content of the tender specifications and sought clarification on many different specifications within them. More specifically, those four requests contained a total of 46 questions.

149    Next, it must be noted that the Commission replied promptly to each of those requests. Thus, as regards the applicant’s requests of 14 and 16 April 2004, the Commission replied to some questions in those requests within four working days, namely on 20 April 2004. On 21 April 2004, the Commission replied equally promptly to the applicant’s request of 20 April 2004. The same is true of the request for information dated 21 April 2004, to which the Commission replied by letter on 22 April 2004, while correctly informing the applicant that it was not possible to reply as regards the additional information sought because of the lateness of the applicant’s request. In fact, the applicant’s request of 21 April 2004 was outwith the date laid down for questions in the tender specifications, namely at least six days before the closing date for submission of tenders, which had been set for 26 April 2004.

150    In the light of the foregoing, it must be concluded that the applicant’s claim that the Commission did not reply either promptly or adequately to its requests for additional information has no basis in fact or in law. The Court considers that the Commission, by endeavouring to respond quickly to the applicant’s requests, demonstrated a level of diligence characteristic of good administration, the more so when, as noted above, the Community legislature has placed no obligation on the Commission to reply. Consequently, the infringement of the principles of diligence and good administration claimed by the applicant has not been established.

-       The second part of the fourth plea in law

151    The infringement of the principles of diligence and good administration claimed by the applicant is in actual fact bound up with the claim that the Commission, because it did not reply to the applicant’s requests of 29 and 30 December 2004 within a reasonable time, is partly responsible for the present dispute and has thereby forced the applicant to bring this action.

152    It must be recalled that the need to act within a reasonable time in conducting administrative proceedings is a component of the general Community law principle of good administration which is incumbent on all Community institutions throughout such proceedings (Case T-394/03 Angeletti v Commission [2006] ECR II-000, paragraph 162).

153    The reasonableness of a period must be assessed, furthermore, in relation to the particular circumstances of each case and, in particular, the background of each case, the various procedural stages which the Commission must follow and the complexity of the case (Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 114; see also, as regards examination of a complaint relating to State aid, Case T-395/04 Air One v Commission [2006] ECR II-1343, paragraph 61 and the case-law cited).

154    That is the context in which it is appropriate to assess the reasonableness of the period of approximately five weeks which elapsed between the applicant’s requests of 29 and 30 December 2004 and the posting of the Commission’s reply on 7 February 2005.

155    It is to be noted in this regard that the information sought by the applicant in those requests related, essentially, to the general observations in the evaluation committee report, and to the results of the comparison of its tender with that of the successful tenderer. However, at the time of the applicant’s requests of 29 and 30 December 2004, the phase of evaluation of tenders had already been completed, and the decision to award the contract to a tenderer other than the applicant had also been taken. In those circumstances, it is clear that the Commission was in possession of the information requested by the applicant, relating to the tender evaluation phase, at the moment when those requests were sent to it, if not before, namely on the date on which the Commission notified the applicant, by letter of 10 December 2004, of the reasons for rejecting its tender.

156    That being the case, there was nothing to prevent the Commission conveying that information when it sent its letter on 10 December 2004, or at the very least doing so in a period shorter than five weeks, since no particular steps had to be taken in order to reply to the applicant’s requests. It must, furthermore, be noted that the letter in question, although it bears the date of 26 January 2005, was not posted until 7 February 2005. The Commission therefore allowed another 12 days to elapse before posting it to the applicant, while fully aware that the period for bringing proceedings was very close to expiry. Consequently, it must be concluded that, since the period of almost five weeks which elapsed between those requests and the reply of the Commission by the letter posted on 7 February 2005 was not justified by the circumstances of this case, the Commission failed in its duty of diligence and good administration.

157    However, it does not, in this case, necessarily follow from the establishment of such an infringement either that the contested decision was unlawful or that the decision should be annulled, since the delay in the Commission’s replying to the applicant’s requests did not, contrary to what the applicant claims, affect its rights of defence in relation to the contested decision.

158    As has been established in paragraphs 127 to 130 above, the letter of 10 December 2004 contained all the information required to enable the applicant duly to assert its rights before the Court and to enable the Court to exercise its supervisory jurisdiction on legality. The more detailed explanations provided to the applicant by the letter sent on 7 February 2005 are not such as to affect that assessment.

159    Having regard to all of the foregoing, the Court finds that the fact, regrettable as it may be, that the Commission replied to the applicant’s requests of 29 and 30 December 2004 with a significant delay, but in any event before expiry of the period for bringing proceedings laid down in Article 230 EC, did not restrict the applicant’s ability to assert its rights before the Court in the form of this action and is, consequently, not such as to entail annulment of the contested decision.

 Costs

160    The applicant requests that the Commission should be ordered to pay the whole costs, even if the application is rejected.

161    The applicant claims that the Commission, by failing to provide a timely and sufficient statement of reasons, did not allow it to assess its chances of contesting the decision and therefore forced it to bring this action in order to preserve its rights. The applicant is critical of the fact that the information contained in the letter posted on 7 February 2005, which was extremely important as to the exact reasons why its tender was rejected, reached it only after the expiry of the deadline for the bringing of this action.

162    The Commission takes the view that there is no basis for the applicant’s claims. The letter posted on 7 February 2005 reached the applicant before the final date for the bringing of this action. The Commission does not accept that the information contained in that letter was indispensable to knowledge of the reasons which led to rejection of the applicant’s tender, given that those reasons had been set out previously in the contested decision and in the letter of 10 December 2004.

163    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. The first subparagraph of Article 87(3) of those Rules further provides that the Court may order that the costs be shared or that each party should bear its own costs where each party succeeds on some and fails on other heads, or where the circumstances are exceptional.

164    In this case, the applicant has failed on its claim for annulment. However, the Court’s examination has established that the Commission failed to comply with its duty of diligence and with the principle of good administration by replying with a significant delay to the applicant’s requests of 29 and 30 December 2004 and, consequently, that the Commission may have contributed to the present dispute.

165    In those circumstances, the Court considers that an equitable assessment of the matter is to decide that the Commission, in addition to its own costs, should pay one fifth of the costs of the applicant.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1.      The action is dismissed as being unfounded.

2.      The Commission shall bear its own costs and shall pay one fifth of the costs incurred by Evropaïki Dinamiki - Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE.

3.      Evropaïki Dinamiki shall bear four fifths of its costs.

Delivered in open court in Luxembourg on 10 September 2008.

Table of contents

Legal context

Background to the dispute

Procedure and forms of order sought by the parties

Law

The first plea in law: infringement of Article 97(1) of the Financial Regulation and Article 17(1) of Directive 92/50

Arguments of the parties

Findings of the Court

- The vagueness of the specifications contained in the tender documents on the selection of tenderers

- The vagueness and subjectivity of the award criteria

The second plea in law: manifest error of assessment

Arguments of the parties

Findings of the Court

- The selection criterion relating to the economic and financial capacity of the successful tenderer

- The evaluation of the applicant’s tender and its comparison with that of the successful tenderer

- The financial evaluation of the applicant’s tender and the methodology used in evaluating the tenders

- The discrepancy in award criteria referred to in the evaluation committee report

The third plea in law: infringement of the obligation to state reasons and failure to provide pertinent information

Arguments of the parties

Findings of the Court

- The statement of reasons contained in the contested decision and in the letter of 10 December 2004

- The brevity of the evaluation committee report

- The Commission’s letter of 26 January 2005, sent on 7 February 2005

The fourth plea in law: infringement of the principles of diligence and good administration

Arguments of the parties

Findings of the Court

- The first part of the fourth plea in law

- The second part of the fourth plea in law

Costs

** Language of the case: English.