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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Evropaiki Dynamiki v Commission [2010] EUECJ T-300/07 (09 September 2010)
URL: http://www.bailii.org/eu/cases/EUECJ/2010/T30007.html
Cite as: [2010] EUECJ T-300/07, [2010] EUECJ T-300/7
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
(Public service contracts – Community tendering procedure – Provision of information technology services relating to the management and maintenance of an internet portal – Rejection of the bid submitted by a tenderer – Award criteria – Obligation to state the reasons on which a decision is based – Manifest error of assessment – Equal treatment – Transparency)
In Case T-300/07,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
European Commission, represented by E. Manhaeve, acting as Agent, and by J. Stuyk, lawyer,
defendant,
APPLICATION (i) for annulment of the Commission’s decisions of 21 May 2007 and 13 July 2007 rejecting the tenders submitted by the applicant in tendering procedure ENTR/05/78 for Lot 1 (Editorial Work and Translation) and Lot 2 (Infrastructure Management) for the management and maintenance of the ‘Your Europe’ portal (OJ 2006/S 143-153057) and awarding those contracts to another tenderer and (ii) for damages,
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 27 January 2010,
gives the following
Judgment
Legal context
1. The Financial Regulation and the Implementing Rules
1 The award of service contracts by the European Commission 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. l, ‘the Implementing Rules’).
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, reads:
‘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 provides:
‘The specifications shall at least:
(a) specify the exclusion and selection criteria applying to the contract, save in the restricted procedure, including after a competitive dialogue, and in the negotiated procedures following publication of a notice, referred to in Article 127; in such cases those criteria shall appear solely in the contract notice or the call for expressions of interest;
(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;
…’
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 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 call for tenders or in the specifications, the weighting it will apply to each of the criteria for determining best value for money.
…’
8 Article 149(2) and (3) of the Implementing Rules provides:
‘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.
The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.
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.
…’
2. Contract notice and tender specifications
9 The contract notice and the tender specifications state that the framework contracts are to be awarded for each lot to a single operator whose tender offers the best value for money in terms of the criteria stated in the tender specifications. The contract notice states that the initial duration of the framework contract is two years, which can be extended once, and that the estimated total value of purchases for the entire duration of the framework contract (maximum duration of four years) amounts to EUR 6 500 000.
10 The tender specifications provide for a procedure comprising four stages. During Stage 1 the exclusion criteria are applied (point 3.1 of the tender specifications). During Stage 2 the selection criteria are applied (point 3.2 of the tender specifications) in order to examine the tenderer’s financial and economic, and technical and professional capacity: first, their financial and economic capacity for all lots (based on the audited annual accounts of the tenderers concerned for the last three years and the annual turnover concerning services having a value equal to or greater than EUR 180 000 and, secondly, technical and professional capacity, analysed separately for each of the three lots making up the call for tenders (the conditions being, in particular: to have a sufficient team of qualified professionals, with at least three years’ experience in translation services, web publication and web content creation, and to have provided services in the area concerned in at least three instances and for at least three different customers over the previous five years, one of which must have been a project with an international dimension). During Stage 3 the award criteria (assessment of tenders) are applied (point 3.3 of the tender specifications).
11 In relation to the technical assessment, the tender specifications set out four award criteria for each of the lots. The criteria for Lots 1 and 2 are largely similar and are broken down as follows:
– qualitative award criteria relating to Lot 1, the total number of points being 100:
– criterion No 1: good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks (30 points);
– criterion No 2: quality and completeness of the draft PMQP (project management and quality plan) (‘PMQP’) (10 points);
– criterion No 3: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 1 (30 points);
– criterion No 4: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 2 (30 points);
– qualitative award criteria relating to Lot 2, the total number of points being 100:
– criterion No 1: good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks (30 points);
– criterion No 2: quality and completeness of the draft PMQP (10 points);
– criterion No 3: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 1 (30 points);
– criterion No 4: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 2 (30 points).
12 It is stated in the specifications that tenders scoring less than 70% in the overall points total or less than 50% in the points awarded for a single criterion will be excluded from the rest of the assessment procedure.
13 Next, the tender specifications provide for a financial assessment, which is based on the prices stated in the tenders and conducted on the basis of the form given in point 5.5 of the tender specifications.
14 During Stage 4 the contract is awarded for each lot to the tender which offers the best quality/price ratio, assessed on the basis of the ratio between the total points scored for each lot and the price bid.
Background to the dispute
15 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law, operating in the field of information technology and communications.
16 By a contract notice of 29 July 2006, published in the Supplement to the Official Journal of the European Union (OJ 2006 S 143) under reference OJ 2006/S 143-153057, the Commission launched a call for tenders for the management and maintenance of the ‘Your Europe’ portal as part of the IDABC (Interoperable Delivery of pan-European eGovernment Services to Public Administrations, Businesses and Citizens) programme.
17 The purpose of that call for tenders was to establish three framework contracts concerning three different lots (Editorial Work and Translations (Lot 1), Infrastructure Management (Lot 2) and Promotional Work (Lot 3)) for the management and maintenance of the ‘Your Europe’ portal.
18 Tenderers were allowed to submit bids for one or more lots. The contract notice and the tender specifications stated that framework contracts would be awarded for each lot to a single operator whose tender offered the best value for money in terms of the criteria stated in the tender specifications. The contract notice of 29 July 2006 stated that the initial duration of the framework contract would be two years, which could be extended once, and that the estimated total value of purchases for the entire duration of the framework contract (maximum duration of four years) was EUR 6 500 000. The estimated value per lot was EUR 2 250 000 for Lot 1, EUR 1 650 000 for Lot 2 and EUR 2 600 000 for Lot 3.
1. Concerning Lot 1
19 On 4 August 2006 the applicant asked the Commission’s Directorate-General (DG) for Enterprise and Industry to provide it with the relevant source code for the ‘Your Europe’ portal for the purposes of preparing its bid. DG Enterprise and Industry at first disputed the relevance of that request. Ultimately it did agree to supply the applicant with the source code on 14 August 2006.
20 On 14 September 2006 the applicant requested further clarification on economic and financial issues relating to the call for tenders. DG Enterprise and Industry sent a reply to those questions to all tenderers in a letter of 14 September 2006. The Commission also sent a separate letter to the applicant dated 21 September 2006.
21 On 19 September 2006 the applicant submitted its tender in response to the abovementioned call for tenders relating to Lot 1.
22 On two occasions DG Enterprise and Industry requested the applicant to provide further clarification. The applicant replied to those requests on 23 and 28 November 2006.
23 In January 2007, during the course of the tendering procedure, DG Informatics took over execution of the call for tenders for all lots from DG Enterprise and Industry and continued the correspondence with the applicant.
24 By letter of 21 May 2007, DG Informatics informed the applicant that its tender for Lot 1 had been rejected on the ground that it did not reach the thresholds as stated in point 3.3 of the tender specifications, which sets out the technical evaluation criteria.
25 On 22 May 2007 the applicant requested clarification from the Commission as regards the letter rejecting its tender. That request was for the name of the successful tenderer, the scores obtained by the applicant and by the successful tenderer for each of the technical evaluation criteria and a comparison of the financial bids. The applicant also asked for a copy of the evaluation committee’s report.
26 By letter of 29 May 2007, the Commission informed the applicant of the name of the successful tenderer (ASCII-Sword Technologies), and provided it with two extracts from the evaluation report, which outlined the justification for the score given to the applicant’s tender and provided a comparison of the scores given to the two tenders.
27 In a letter of 29 May 2007, the applicant complained about the way in which the evaluation procedure had taken place. In particular, it complained that the IDABC project ‘Your Europe’ had been transferred from DG Enterprise and Industry to DG Informatics. The applicant also asked DG Informatics not to sign the contract with the successful tenderer until it had been provided with the detailed report.
28 The Commission replied to the applicant by letter of 30 May 2007 that the transfer of the call for tenders from DG Enterprise and Industry to DG Informatics had had no impact on the evaluation procedure and that the information already provided was sufficient to afford an understanding of how its tender had been evaluated.
29 On 31 May 2007 the applicant repeated its request for information and, on 4 June 2007, sent in by way of further supporting documentation an analysis of its comments, covering its arguments one by one.
30 On 13 June 2007, the Commission replied to the applicant’s comments, stating that no information had been overlooked and no error had been made by the evaluation committee.
2. Concerning Lot 2
31 The applicant submitted its tender for Lot 2 on 19 September 2006.
32 The applicant was informed by letter of 13 July 2007 that its tender had been rejected because it did not present the best value for money.
33 In a letter of 13 July 2007 the applicant asked DG Informatics for clarification of the grounds for the rejection of its tender, making the same observations as it had done in respect of Lot 1.
34 In response, the Commission stated in its letter of 16 July 2007 that the contract had been awarded to the ASCII-Sword Technologies consortium and provided the applicant with extracts from the evaluation committee’s report, which contained the explanation for the scores given to the applicant’s tender and a comparison of the scores awarded to the two tenders.
35 On 25 July 2007 the applicant sent a letter to the Commission, asking it not to sign the contract with the successful tenderer until its request for information had been dealt with.
Procedure and forms of order sought
36 By application lodged at the Court Registry on 31 July 2007, the applicant brought the present action against the Commission’s decisions of 21 May 2007 (‘the decision of 21 May 2007’) and 13 July 2007 (‘the decision of 13 July 2007’) rejecting its tenders for Lot 1 and Lot 2, respectively, and awarding the contract to the successful tenderer.
37 The applicant claims that the Court should:
– annul the decisions of 21 May and 13 July 2007 not to accept the tenders it submitted and to award the contracts to the successful tenderer;
– order the Commission to pay the applicant damages for the loss suffered as a result of the contracts being awarded to other tenderers, in the amount of EUR 1 125 000 for Lot 1 and EUR 825 000 for Lot 2;
– order the Commission to pay the costs, even if the present action is dismissed.
38 The Commission contends that the Court should:
– dismiss the application for annulment;
– declare the claim for damages to be inadmissible or, in the alternative, unfounded;
– order the applicant to pay the costs.
39 In its reply, the applicant reduced the amount of its claim for damages to EUR 750 000 for Lot 1 and EUR 400 000 for Lot 2.
40 At the hearing the applicant lodged three new documents: an audited statement of accounts, an e-mail sent to it by the Commission and a document containing another call for tenders. The Commission made observations concerning the admissibility of the first document and the relevance of all the documents to the outcome of the dispute.
Law
1. The claim for annulment
41 In support of its claim for annulment of the decision of 21 May 2007 and the decision of 13 July 2007, the applicant relies in essence on three pleas in law. The first plea alleges infringement of the obligation to state reasons. The second plea alleges that the Commission committed manifest errors of assessment in the evaluation of its bids. The third plea alleges infringement of the principles of equal treatment and transparency.
The plea alleging infringement of the obligation to state reasons
Arguments of the parties
42 The applicant claims that the Commission infringed the obligation to state reasons by failing to give it any information concerning the merits of the successful tenderer’s bid.
43 The Commission considers the reasoning given complies with case-law and with the Financial Regulation. It states that it did provide an extract from the evaluation report both for Lot 1 and for Lot 2, comparing the relative advantages of the applicant’s bid with that of the successful tenderer. It states that it therefore fulfilled its obligation to state reasons and submits that the Court has sufficient information to decide the case.
Findings of the Court
44 It must be noted at the outset that the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see Case T- 211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33, and judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).
45 Moreover, where the Commission has a broad discretion, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 44 above, paragraph 54; and Case T-89/07 VIP Car Solutions v Parliament [2009] ECR II-1403, paragraph 61).
46 It should also be borne in mind 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).
47 Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35; judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47; and VIP Car Solutions v Parliament, paragraph 45 above, paragraph 63).
48 Lastly, it should be observed that the specific rules regarding the statement of reasons for decisions rejecting bids submitted by tenderers during a procurement procedure that are applicable in the present case are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
49 It is clear from those provisions, and from this Court’s 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 respective tenders and then, subsequently, if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received (see, to that effect, Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 44 above, paragraph 47).
50 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its review (Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 44 above, paragraph 48).
51 It is in the light of those considerations that the applicant’s arguments must be examined.
– The reasons given in the decision of 21 May 2007 and in the letter of 29 May 2007 (Lot 1)
52 In order to determine whether, in this case, the obligation to state reasons laid down in the Financial Regulation and the Implementing Rules is satisfied, it is necessary to examine not only the decision of 21 May 2007 but also the letter of 29 May 2007, which was sent to the applicant in reply to its express request of 22 May 2007 for additional information concerning the rejection of its tender.
53 In the letter of 21 May 2007 the Commission stated that the applicant’s tender had not reached the thresholds stated in point 3.3 of the tendering specifications. It also informed the applicant that it could obtain additional information on the grounds for the rejection of its tender.
54 The Commission replied to the applicant’s written request of 22 May 2007 in a letter of 29 May 2007 containing various items of information in response to the applicant’s request for further details. The Commission gave the name of the successful tenderer and stated that the latter had obtained a qualitative score of 72 out of 100 and a final ratio of 1.170.
55 The Commission also attached to the letter of 29 May 2007 two extracts from the evaluation report, one providing the justification of the scores awarded to the applicant’s tender for the four technical evaluation criteria, the other containing the following table:
Criteria |
Description |
European Dynamics |
ASCII Sword Technologies |
Maximum Points |
|
1 |
Good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks |
16 |
26.667 |
30 |
|
2 |
Quality and completeness of the draft PMQP (see section 4.3.8.3) |
7 |
8.333 |
10 |
|
3 |
Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in the scenario (see section 4.4.3.1) |
21.667 |
18 |
30 |
|
4 |
Quality and completeness of the specific approach to the execution of the tasks in the scenario (see section 4.4.3.1) |
14 |
19 |
30 |
|
Total |
58.667 |
72 |
100 |
||
56 The Court observes first of all that the wording of qualitative award criteria Nos 3 and 4 contained in the table attached to the letter of 29 May 2007 does not fully correspond to that given in the tender specifications. However, it is clear from the content of the letter of 29 May 2007 that the Commission was referring to qualitative award criteria Nos 3 and 4 for Lot 1, which has moreover not been disputed by the applicant, and that the error in the wording of those criteria given in the table is simply the result of a manifest drafting error which has no effect on the contested decision.
57 It should also be noted that in this case the decision of 21 May 2007 is not based on a comparison of the services offered by the applicant and by the successful tenderer but on the fact that the applicant’s bid did not obtain the minimum number of points required for the technical evaluation criteria.
58 Under the terms of the call for tenders, only tenders obtaining a minimum of 70% in the overall points total awarded for the technical evaluation criteria and reaching the minimum threshold of 50% in the points awarded for each technical evaluation criterion were considered satisfactory with regard to those criteria and were subsequently examined in order to determine which tender offered the best value for money.
59 Thus, the applicant’s tender was eliminated, not following a comparison with the other tenders and, in particular, with the bid submitted by the successful tenderer, but on the ground that the minimum threshold required for one of the criteria and the minimum score required for all of the criteria had not been reached.
60 The information provided by the Commission was therefore, in this case, sufficient from the point of view of the requirements imposed in that regard (see, to that effect, Case T-406/06 Evropaïki Dynamiki v Commission, paragraph 47 above, paragraphs 106 to 108).
61 Consequently, the Court considers that in the light of those circumstances the obligation to notify the characteristics and relative advantages of the successful tender, laid down in Article 100(2) of the Financial Regulation and in Article 149 of the Implementing Rules, was met in this case.
62 For all of those reasons, with regard to the decision of 21 May 2007, the plea alleging infringement of the obligation to state reasons must be rejected.
– The statement of reasons contained in the decision of 13 July 2007 and in the letter of 16 July 2007 (Lot 2)
63 In order to determine whether the obligation to state reasons laid down in the Financial Regulation and in the Implementing Rules is satisfied in this case, it is necessary to examine the letter of 13 July 2007 and the letter of 16 July 2007 sent to the applicant in response to its express request of 13 July 2007 for further information concerning rejection of its tender.
64 In the decision of 13 July 2007, the Commission stated that the applicant’s tender had not been selected as it did not present the best value for money (quality/price ratio).
65 The Commission replied to the applicant’s written request of 13 July 2007 in a letter of 16 July 2007 containing various items of information in response to the applicant’s request for further details. The Commission gave the name of the successful tenderer and stated that the latter had obtained a qualitative score of 83.33 points out of 100 and a final ratio of 0.5911 whilst the applicant had only obtained a qualitative score of 70.33 points out of 100 and a final ratio of 0.5725.
66 The Commission also attached to the letter of 16 July 2007 two extracts from the evaluation report, one providing the justification of the scores awarded to the applicant’s tender for the four technical evaluation criteria, the other containing the following table:
Criteria |
Description |
European Dynamics |
ASCII Sword Technologies |
Maximum points |
|
1 |
Good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks |
24.67 |
25.67 |
30 |
|
2 |
Quality and completeness of the draft PMQP … |
6.67 |
7.67 |
10 |
|
3 |
Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in … scenario 1 … |
17 |
25 |
30 |
|
4 |
Quality and completeness of the specific approach to the execution of the tasks in scenario 2 … |
22 |
25 |
30 |
|
Total |
70.33 |
83.33 |
100 |
||
67 It should first of all be noted in this case that the score allocated to the applicant’s tender exceeded the minimum number of points required both for the award criteria as a whole and for the single award criteria. Also, in order to determine the tender offering the best value for money, the Commission examined the financial proposals of those tenderers, including the applicant, which had submitted a tender reaching the minimum thresholds of points required. It was therefore following a comparison with the other bids, and in particular the successful tenderer’s bid, that the Commission decided not to accept the applicant’s bid.
68 Taking into account the circumstances and, as stated in paragraph 45 above, taking into account the Commission’s broad discretion in the matter, and the ensuing even more fundamental need to provide an adequate statement of the reasons for its decisions, the Court must thus determine whether the statement of reasons contained in the decision of 13 July 2007 and the letter of 16 July 2007 is sufficient.
69 The letter of 16 July 2007 contains extracts from the evaluation report setting out the comments justifying the score given to the applicant’s tender for the four award criteria. The comparison between the services offered by the applicant and those offered by the successful tenderer consists merely of a table indicating, on the one hand, the scores obtained by the applicant and by the successful tenderer for those award criteria and, on the other hand, the final ratio obtained by applying the formula in point 3.3 of the tender specifications, that is to say, the ratio between the total scores obtained for the four technical evaluation criteria and the price bid for the lot concerned in order to determine the best quality/price ratio. The letter of 16 July 2007 does not therefore contain even a brief comment on the successful tenderer’s bid.
70 In those circumstances, the Court must conclude that the information contained in the decision of 13 July 2007 and in the letter of 16 July 2007 does not appear to be satisfactory. That information is not such as, on the one hand, to make the applicant aware of the characteristics and advantages of the successful tender and thereby enable it to defend its rights or, on the other, to enable the Court to exercise its review of the comparison made by the Commission between the tenders.
71 In addition, it should be noted that the financial bid submitted by the applicant was lower than that of the successful tenderer. In that regard, it must be pointed out that the Commission did not expressly state the total price bid by the successful tenderer, it merely gave the final ratio attributed to the latter’s bid, and disclosed that price for the first time only in a table set out in the defence.
72 Despite the fact that the successful tenderer offered a price that was higher than that offered by the applicant, the Commission considered that the successful tenderer’s bid offered the best quality/price ratio and was thus the best value for money. It therefore appears that the assessment of the quality of the bid as regards the qualitative award criteria was the deciding factor. Thus, in the circumstances of the case, the information concerning the award criteria was all the more necessary as the price offered by the applicant was lower than that offered by the successful tenderer (see, to that effect, VIP Car Solutions v Parliament, paragraph 45 above, paragraph 71).
73 The Court must conclude that the Commission did not correctly fulfil its obligation to state reasons in so far as the content of the decision of 13 July 2007 and of the letter of 16 July 2007 does not in this case meet the requirements laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.
74 It follows from the foregoing that the decision of 13 July 2007 to reject the applicant’s bid and award the contract to the successful tenderer is vitiated by a defective statement of reasons.
75 Accordingly, the decision of 13 July 2007 must be annulled, without its being necessary to rule on the other pleas in law relied on by the applicant in connection with Lot 2 or on the need to request the Commission to produce the report of the evaluation committee.
The plea alleging manifest errors of assessment (Lot 1)
76 Since the application is well-founded in so far as the decision of 13 July 2007 is concerned, the plea alleging manifest errors of assessment need be examined only in so far as it concerns the decision of 21 May 2007.
77 As a preliminary point, it should be recalled that the Commission enjoys a broad margin of discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. Review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (see, to that effect, Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147; Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47; and Case T-437/05 Brink’s Security Luxembourg v Commission [2009] ECR II-0000, paragraph 193).
78 In this case, it is clear from the tender specifications that the contract was awarded on the basis of the tender that offered the best value for money, in accordance with Article 97(2) of the Financial Regulation.
79 Thus, within the limits imposed by the case-law cited above, the Court must examine whether the Commission committed manifest errors of assessment in its evaluation of the tender in the light of the various award criteria.
Qualitative award criterion No 1, ‘Good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks’
80 It should be recalled first of all that the applicant’s tender obtained a score of 16 points out of a maximum of 30 for qualitative award criterion No 1. In the letter of 29 May 2007 the Commission justifies that score by the fact that the methodological approach towards delivering services related to editorial work is generic and the tenderer did not fully understand either the target content or the target audience of the ‘Your Europe’ portal, since it proposed a ‘News Desk’, which did not fit the scope of the project, and referred to a target audience of potential investors with an interest in the sort of innovation promoted and encouraged by the ‘Your Europe’ portal. It states also that the tenderer’s approach to quality assurance and quality control was based on ‘XPR methodology’, which did not fit at all the way the work for Lot 1 was described in the tender specifications. Finally, the Commission noted that it was unclear whether translations would be done through ‘bridging’ (‘pivot’) languages or would be done directly.
81 First of all, the applicant observes that the positive comments contained in the evaluation report are inconsistent with the score of 16 points out of 30 which it obtained for that award criterion. It states that the only negative comment made in the report concerns the reference in the tender to 11 official languages of the European Union, which was an obvious clerical mistake.
82 The applicant further considers that it fully addressed all types of the current portal’s content and all aspects relating to editing and demonstrated an in-depth understanding of the tasks to be performed. It adds that it deliberately referred to content types which were not part of the current version of the portal, ‘flash content’ inter alia, in order to show its overall capacity to handle all types of content in the context of a modern portal and thus adapt to new content during performance of the contract.
83 The applicant criticises the Commission for describing the methodological approach to editorial work as generic, referring in that regard to a document. It states that with respect to quality assurance and quality control its tender was perceived as ‘positive’ and ‘well developed’ and so it fails to understand why the Commission awarded it very low technical marks. The applicant challenges the Commission’s assessment that its approach in proposing the referenced ‘XPR methodology’ did not correspond to the manner in which Lot 1 was described in the tender specifications. In that regard, it explains that it wished to present an overview of the tenderer’s ‘overall quality philosophy’.
84 The applicant challenges the Commission’s assessment that its approach to translation is not clear about whether or not bridging languages would be used for translation. For the applicant, this was not a question that needed to be decided at the time of tendering but in the course of the project, depending on project run'time parameters. It adds that, in any event, the translators are native speakers of the target language and that it stated in its tender that direct translations were ‘preferred’ by the tenderer. It concludes that its references to bridging languages are, therefore, clear.
85 In the first place, the Court finds that the applicant is wrong to consider that the score of 16 points out of 30 attributed to its tender in respect of qualitative award criterion No 1 was the result of a manifest error of assessment. On the one hand, the applicant’s assertion that the Commission penalised it for an obvious clerical mistake, namely the reference to 11 official languages of the European Union, is factually incorrect. It is apparent from the decision of 21 May 2007 that the Commission merely noted that obvious clerical mistake, without attaching to it any negative consequences for the applicant. On the other hand, contrary to the applicant’s assertions, the Commission noted several negative factors in its bid, such as, in particular, a generic methodological approach and incorrect identification of the target content and target audience since it proposed a ‘News Desk’, which did not fit the scope of the ‘Your Europe’ project. All this goes to show that the Commission did not commit a manifest error of assessment in allocating 16 points out of a maximum of 30 to the applicant’s tender in respect of qualitative award criterion No 1.
86 In the second place, the applicant considers it was wrongly criticised for submitting a generic methodological approach and failing to identify correctly the portal’s target content and audience. It claims that it did fully address all the types of the current portal’s content and all related editorial aspects, and refers in that regard to sections 2 to 5 (pp. 634 to 644) and sections 1 to 8 (pp. 818 to 865) of its tender.
87 The Court finds that those arguments cannot be accepted, however. First of all, the applicant merely refers to the abovementioned sections of the tender and does not establish that the Commission’s assessment that the methodological approach taken in its bid is generic is manifestly erroneous. In particular, first, some of those sections of the tender refer to thematic areas of the portal (pp. 634 to 636 of the tender). Secondly, other sections of the tender (pp. 637 and 638 of the tender) concern the usability of the portal, which the Commission moreover regarded as interesting, or describe the current portal, merely reproducing the tender specifications. Thirdly, the final sections of the tender (pp. 822 to 855 of the tender), relied upon by the applicant, describe the methodological approach for delivering ‘Work Package 1.1’ services.
88 Next the Court considers that the Commission did not commit a manifest error of assessment in stating that the content of the portal was not correctly identified in so far as the bid referred to new services. The ‘flash’ content to which the applicant referred in its tender was not suited to the objectives of the portal. As the tender specifications make clear, the portal is intended to provide a permanent database with a low level of information changeability, updated no more than twice a year. Consequently, the ‘flash’ content, which allows for constant updating of the content, is clearly inappropriate and was not, moreover, envisaged in the tender specifications.
89 Likewise, the Commission was right to state that, in view of the reference in the applicant’s tender to a ‘News Desk’, which does not fit the scope of the ‘Your Europe’ project and a ‘specific target audience of potential investors … with an interest in the sort of innovation promoted and encouraged by [the] “Your Europe” Portal’, neither the target content nor the target audience of the portal had been fully understood by the applicant. Nor, in that regard, can the applicant’s argument be accepted that the addition of new content to the portal is a positive aspect of its bid. As the Commission rightly states, without being contradicted by the applicant, the latter did not make clear in its tender that it was proposing to introduce into the portal content that went beyond what was envisaged in the tender specifications.
90 Lastly, there is no contradiction between the statements ‘[t]he overall general understanding of the context [of the bid] is correct’ and ‘the methodological approach ... is generic’, as both mean only that the applicant’s general understanding of the object of the call for tenders was correct but the approach it proposed to take was not specific or detailed enough.
91 In the third place, as regards ‘quality assurance’ and ‘quality control’ and the methodology used, the applicant challenges the Commission’s assessment that its choice of the referenced ‘XPR methodology’, that is to say, a methodology based on a web service development framework, does not fit the way Lot 1 is described in the tender specifications. It refers in that regard to several points of its tender (sections 3.4.2 to 3.4.6, pp. 837 to 842, sections 2 to 4, pp. 1 to 33 (pp. 495 to 526), and Section V, pp. V-1 to V-77 (pp. 534 to 610)), in which it describes the methodology followed for ‘quality assurance’ and ‘quality control’ related to editorial work. It also states that ‘XPR methodology’ is mentioned only in the introductory section of its bid, presenting an overview of the tenderer’s ‘overall quality philosophy’ (p. 836 of the tender).
92 Before the Court, the Commission correctly pointed out that the description of the ‘quality assurance’ principles was generic and that the sections to which the applicant referred did not correspond in a satisfactory way to the requirements of the tender specifications ‘WP 1.1 Task 4’, headed ‘To perform quality assurance and quality control on created, updated and received content before publishing it in the portal’. Indeed, it is clear from just reading the pages of the applicant’s tender to which the applicant refers that the Commission did not commit a manifest error of assessment in stating that the information given on those pages is generic. In that regard, it should be noted that the applicant merely made general reference to the various sections of its tender cited above and did not put forward specific arguments to demonstrate the existence of a manifest error capable of vitiating the Commission’s assessment on that point.
93 Moreover, the applicant’s statement that the Commission failed to understand that the ‘XPR methodology’ was addressed in an introductory section presenting an overview of the tenderer’s ‘overall quality philosophy’ and was not directly related to the editorial aspects of the work of Lot 1, does not affect the generic nature of the bid as regards ‘quality control’. Nor did the applicant show that the Commission had infringed qualitative award criterion No 1 in the tender specifications in that regard. On the contrary, there are grounds for finding that it was legitimate for the Commission to base its assessment on the level of precision of the applicant’s tender, which is an essential element for assessing the quality of that tender.
94 In the fourth place, the applicant challenges the criticism that it had not made clear whether translations would be done through intermediary, so-called ‘bridging’, languages or whether they would be done directly. It submits that the use of a ‘bridging’ language was not a question to be decided at the time of bidding but in the course of the project. It states that in any event the translators are native speakers of the target language and the tender stated that direct translations were ‘preferred’.
95 However, the Court notes that in the letter of 29 May 2007 the Commission found there was ambiguity, or even contradiction, in the applicant’s tender, since the applicant had stated on page 873 of the tender that translators would work in their mother tongue, whilst on page 644 of the same tender it stated that ‘direct translations are preferred although indirect translations will be unavoidable’. The applicant’s submissions before the Court do not affect the Commission’s finding in any way. It was not clearly set out in the applicant’s tender what it meant by translators working in their mother tongue. It was only before the Court that the applicant explained that that reference should be understood to mean that the translators in question translate into their mother tongue, either from the original text or, where necessary, from a translation of the text into a ‘bridging’ language. In view of the ambiguous, or even contradictory, nature of the terms used in the applicant’s tender in that connection the Commission did not commit any manifest error of assessment when it stated that it was not ‘clear whether [bridging languages] will be used in translations or it will be done directly as the idea is not developed in the offer’.
96 In the light of the foregoing, the Commission did not commit a manifest error in its assessment of the tender as regards qualitative award criterion No 1.
Qualitative award criterion No 2, ‘Quality and completeness of the draft PMQP and in particular of the proposed quality assurance and control procedures’
97 It should be noted from the outset that a score of 7 points out of 10 was attributed to the applicant’s tender in respect of qualitative award criterion No 2. That score was justified by the fact that the draft PMQP included in the tender was complete in its structure but the tender was not sufficiently customised, and the hardware and software products to be delivered were not relevant for editorial work (Lot 1).
98 In the first place, the applicant claims that the reference to hardware and software under the PMQP complies with the tender specifications. It observes that in the tender specifications tenderers were invited to present their PMQP, indicating ‘deliverables and documentation (can be products, materials, hardware, software, reports, monitoring tools, etc)’.
99 However, as the Commission noted, the description of the PMQP in the tender specifications is common to three lots. It is reasonable to accept that although the tender specifications list various possible deliverables the appropriateness of those deliverables depends on the lot to which the tender relates.
100 The Commission is therefore right in noting in the letter of 29 May 2007 that ‘more customisation of the PMQP would be expected as it still mentions hardware and software products to be delivered (see, for example, page 933, “Handover file”) which is not at all relevant for Lot 1’.
101 In the second place, the applicant claims that it was criticised wrongly for failing to develop the description of tasks and merely copying them from the tender specifications. It maintains that as far as the draft PMQP was concerned it used a proven methodology and a model followed in its collaboration with the Commission, since the specific conditions for the relevant specific contracts were not known at the time of writing the tender.
102 However, in point 4.3.8.3 of the tender specifications the PMQP is described as being the first deliverable for the project and specific to each project. It does not therefore appear that the Commission committed a manifest error of assessment in stating that the applicant had not developed the description of the tasks.
103 The Court must therefore conclude that the Commission did not commit a manifest error of assessment in evaluating the applicant’s tender with regard to qualitative award criterion No 2 for Lot 1.
Qualitative award criterion No 3, ‘Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 1’
104 It should be noted first of all that the applicant’s tender obtained a score of 21.667 points out of a maximum of 30 in respect of qualitative award criterion No 3. In the letter of 29 May 2007 the Commission observed that the approach to the execution of tasks related to Scenario 1 was not very detailed and that, as regards ‘quality control’ of the content received from Lithuania, the tender did not make clear what kind of quality control would be carried out and according to which editorial guidelines. The letter of 29 May 2007 also states that the period of 6 months for delivery of the final report was correct and hence the reference to 52 days for delivery was probably only a typing mistake.
105 In the first place, the applicant denies that its approach to the execution of tasks related to Scenario 1 was not very detailed. It also regards as unjustified the comment that, as regards the requested quality controls on the content received from Lithuania, the reference to editorial guidelines was not clear and the kind of quality control performed was not stated. It considers that it complied strictly with the tender specifications. In that regard the applicant maintains that those specifications stated that tenderers were requested to submit a general bid describing a solution for ‘Scenario 1’, accompanied by a document of a maximum of four pages’ length suggesting the different tasks envisaged and the approach taken for each task, together with a brief description of that approach. It was specified that particular attention would be given to the final deliverables. It infers from that that the tender specifications did not request ‘very detailed explanations’. Moreover, the applicant considers that it presented its approach for ‘quality assurance management’ and control procedures in various parts of its tender, among others on pages 830 and 831.
106 However, it does not appear from the applicant’s submissions that the Commission committed any manifest error of assessment. The applicant referred to other extracts from the tender, in particular pages 830 and 831, in order to show that it complied with the tender specifications. It did not, however, put forward any specific evidence establishing the existence of a manifest error vitiating the Commission’s assessment.
107 As the Commission points out, it is apparent from the evaluation of the applicant’s tender under qualitative award criterion No 1 that the proposed methodological approach to delivering services related to editorial work was regarded as generic. In those circumstances, it was reasonable for the Commission to consider that the generic nature of the methodological approach proposed for the delivery of services related to editorial work was reflected in the approach to carrying out the tasks in connection with Scenario 1. The Commission did not therefore commit a manifest error of assessment in considering that Scenario 1 was not very detailed as regards qualitative award criterion No 3.
108 In the second place, the applicant submits that although there was a typing error in the information given in its tender to the effect that delivery would be within 52 days, that should not have affected the score awarded in respect of the qualitative award criterion.
109 However, it is clear from the decision of 21 May 2007 that the Commission took note of the fact that the reference to 52 days for the delivery of the report was probably a typing mistake. There is nothing to show that the applicant was penalised for it. Hence, no manifest error of assessment has been demonstrated in that connection.
110 For all the foregoing reasons it is necessary to reject the applicant’s complaint that the Commission committed manifest errors in the assessment of its bid with regard to qualitative assessment criterion No 3.
Qualitative award criterion No 4, ‘Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 2’
111 It should be noted first of all that the applicant’s tender obtained a score of 14 points out of a maximum 30 in respect of qualitative award criterion No 4. It is clear from the contested decision that the applicant’s approach to the subject of the execution of tasks related to the scenario for ‘Work Package 1.2.’ (‘Scenario 2’) was regarded as basic. It is also stated in the contested decision that the tender specifications describe the ‘interrelation’ between the scenario for ‘Work Package 1.1’ (‘Scenario 1’) and Scenario 2, but this concept is not reflected in the bid. It is stated in the contested decision that the applicant operates on the incorrect assumption that all documents will be received at the same time, which is inconsistent with Scenario 1 and does not take into account the time needed for the translations.
112 It should be observed that, according to the tender specifications, Scenario 1 consists of editorial work. The tasks set out for Scenario 1 consist mainly in creating, updating and improving various fact-sheets and sets of links for the European-level content (Task 1) and various fact-sheets and sets of links sent by Member States (Task 2). Scenario 2 corresponds to the work of translating the content described in Scenario 1. Scenario 2 covers specifically the following two tasks: translation of various fact-sheets and sets of links that are described, on the one hand, for the European-level content and, on the other hand, for content sent by Member States.
113 In the first place, the applicant challenges the assessment that the work breakdown structure of the activities (timetable) was generic. It argues that the work breakdown structure only outlined the tasks to be carried out, and that those tasks had already been presented in detail in sections 2 (pp. 1047 and 1048) and 3 (pp. 1049 and 1050) of its tender. It also maintains that those tasks were presented extensively in the relevant section of the methodological approach document (pp. 866-890 of the tender), under award criterion No 1.
114 It does not appear that any manifest error was committed in the assessment of the bid as regards qualitative award criterion No 4. As the Commission states, the tender was assessed in the light of qualitative award criterion No 4. The assessment does not therefore relate to the content of the tasks to be carried out but rather to the planning of those tasks. The applicant did not provide any evidence to challenge the fact that the information contained in the bid concerning the planning of the tasks to be carried out was generic.
115 In the second place, the applicant states that it made no express assumption in its tender that all the documents were to be sent at the same time. It also states that the timetable for submission of documents was not specified in the tender specifications.
116 However, the Court considers that, in the light of what is provided for in the tender specifications (see paragraph 112 above), the applicant cannot seriously dispute the fact that Scenario 1 describes the content to be created or updated and Scenario 2 covers the translation of that content. The link between the two scenarios is clear and follows logically from the requirements of Scenario 2. Considerations relating to the time when the content was received and the time needed for translation of that content must be assessed in the context of the link between Scenario 1 and Scenario 2.
117 The Court must conclude that, as regards the time when the documents are received, the applicant’s tender draws no distinction whatsoever between the two types of content to be translated (that is to say, the content described in Task 1, on the one hand, and that described in Task 2, on the other hand).
118 In that regard, the Commission correctly states that, contrary to what the applicant claims, the differentiation between the two types of content does not result from an unknown evaluation criterion but is rather a requirement laid down in point 4.4.1.2 of the tender specifications.
119 With regard to the time needed for translation of the content, as the Commission states, the delivery time of ‘T0 + 51 working days’ given by the applicant in section 2.3 of its tender (p. 1040), was inconsistent with Scenario 1, where the total number of days allowed by the applicant for translations is 55, that is 30 days for the translation of European-level content (‘WU 4.1’) and 25 days for the translation of content sent by Member States (‘WU 4.2.’) (p. 1032).
120 The Court must therefore conclude that the Commission did not commit a manifest error of assessment in evaluating the tender under qualitative award criterion No 4.
121 It follows from all the above considerations that no manifest error of assessment was committed in the evaluation of the tender under the four award criteria. This plea must therefore be rejected as unfounded.
The plea alleging infringement of the principles of equal treatment and transparency
122 Since the application is well-founded in so far as it relates to the decision of 13 July 2007, the plea alleging infringement of the principles of equal treatment and transparency need be examined only in so far as the decision of 21 May 2007 is concerned.
Arguments of the parties
123 The applicant claims that the principles of equal treatment and transparency were infringed.
124 First of all, the applicant maintains that a full copy of the evaluation committee’s report and a copy of the successful tenderer’s bid should have been sent to it to enable it to understand the decision of 21 May 2007. It points out in that regard that it expressly requested the Commission to send it those documents and that its request was refused. The applicant further states that the Commission failed to examine the applicant’s tender correctly, rejecting it on account of misinterpretation. Moreover, the applicant considers it was not in a position to know all of the evaluation criteria which the Commission applied. Lastly, it maintains that the Commission applied criteria that were not set out in the tender specifications.
125 The Commission challenges the arguments put forward by the applicant and contends that the plea should be rejected.
Findings of the Court
126 The complaints alleging infringement of the principles of transparency and equal treatment must be dismissed.
127 First of all, the applicant wrongly complains that it was not sent the report of the evaluation committee or a copy of the successful tenderer’s bid. In fact, the Commission’s obligation to state reasons did not require it to disclose those documents. Article 100(2) of the Financial Regulation provides merely that the contracting authority, when requested in writing, is to disclose the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded, within 15 days of receipt of a written request (see, to that effect, Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 113, and, by analogy, Case T-19/95 Adia interim v Commission [1996] ECR II-321, paragraph 31).
128 Next, the applicant wrongly claims that the principles of equal treatment and transparency were infringed on the supposed ground that the Commission failed duly to examine the applicant’s bid and rejected it on account of misinterpretation. That line of argument is essentially the same as that which the applicant put forward in the context of its plea alleging manifest errors of assessment on the part of the Commission and is not relevant in the context of the present plea. The applicant does not claim any discrimination against it as such at any stage of the procedure. However, the Commission put forward a number of objective reasons justifying its decision not to award the contract to the applicant.
129 Moreover, the applicant’s argument that it was not in a position to be aware of all the evaluation criteria is put forward in a general and vague manner. Also, it is apparent from the extract from the evaluation report attached to the Commission’s letter of 29 May 2007 that the applicant’s tender was assessed only in the light of the qualitative award criteria given in the tender specifications. That argument must therefore be rejected.
130 Lastly, for the same reason, it is necessary to reject the applicant’s argument that the Commission applied criteria that were not set out in the tender specifications.
131 Since none of the applicant’s pleas is well-founded, this application must be dismissed in so far as it seeks annulment of the decision of 21 May 2007 not to accept the tender submitted by the applicant in respect of Lot 1 and to award the contract to another tenderer.
2. The claim for damages
Arguments of the parties
132 The applicant claims that the Commission should be ordered to pay it damages in the amount of EUR 750 000 in compensation for the loss caused by the decision of 21 May 2007 and EUR 400 000 in compensation for the loss caused by the decision of 13 July 2007. Its claim in that regard is based on Articles 235 EC and 288 EC.
133 The applicant submits, first, that the amounts claimed correspond to the profit it would have earned from the two public procurement procedures had it been awarded those contracts. It submits, second, that it has demonstrated in the context of the application for annulment that the Commission committed a sufficiently serious breach of a superior rule of law for the protection of the individual.
134 The Commission contends, principally, that the claim alleging non'contractual liability should be declared inadmissible, or, in the alternative, that it should be dismissed as manifestly unfounded.
Findings of the Court
135 As a preliminary point, it is necessary to define the scope of the damage claimed by the applicant in its pleadings. The applicant puts forward, first of all, as a head of damages the loss of the framework contracts. It then refers, in paragraph 99 of the application, to considerations set out in Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 102, concerning compensation for loss relating to the costs associated with participation in a tendering procedure. However, it stated unequivocally, in paragraph 52 of the reply, that nowhere was it claiming damages for the expenses of participation in the tendering procedure.
136 Hence, the Court must conclude that the only head of damages relied on by the applicant in respect of which it claims compensation is the loss of the framework contracts.
137 In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see Case T-175/94 International Procurement Services v Commission [1996] ECR II'729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II'1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission ECR [1997] II'1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, Case C-146/91 KYDEP v Council and Commission [1994] ECR I'4199, paragraph 81).
138 It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the Commission have been satisfied.
139 In the first place, as regards the claim for damages for the alleged loss suffered as a result of the decision of 21 May 2007, it is apparent from the Court’s findings with regard to the claim for annulment that the applicant has failed to prove unlawful conduct on the part of the Commission. Indeed, all the arguments the applicant put forward in order to demonstrate the unlawfulness of the decision of 21 May 2007 have been examined and rejected.
140 It is clear from the case-law cited above (see paragraph 137 above) that it is sufficient that only one of the conditions relating to non-contractual liability on the part of the Commission is not satisfied for the conclusion to be drawn that no such liability exists.
141 It follows that the claim for damages for the alleged loss suffered as a result of the decision of 21 May 2007 must be dismissed as unfounded, without it being necessary to give a ruling as to its admissibility.
142 In the second place, it is necessary to examine the claim for damages based on the non-contractual liability of the Commission following the adoption of the decision of 13 July 2007.
143 In that regard, it should be noted that the claim for damages is based on the same pleas as those put forward in support of the claim for annulment of the decision of 13 July 2007. It has already been noted, in the context of examination of that claim, that the decision of 13 July 2007 is vitiated by defective reasoning and must therefore be annulled.
144 However, it must also be pointed out that, even if the Commission did not give adequate reasons for the decision of 13 July 2007, that does not mean that the award of the contract to the successful tenderer constituted wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect, Case T-4/01 Renco v Council [2003] ECR II'171, paragraph 89). Indeed, there is no ground for concluding that the Commission would have awarded the contract in question to the applicant if the decision of 13 July 2007 had been adequately reasoned.
145 It follows that the claim for damages for the alleged loss suffered as a result of the decision of 13 July 2007 must, in so far as it is based on the lack of a statement of reasons for that decision, be dismissed as unfounded, without it being necessary to give a ruling as to its admissibility.
146 In so far as that claim is based on other pleas that were not considered in the context of the claim for annulment, it is premature and must be rejected on that ground (see, to that effect, Case T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, paragraphs 49 and 50, and Case T-300/97 Latino v Commission [1999] ECR-SC I'A'259 and II'1263, paragraphs 95 and 101). Since the decision of 13 July 2007 contains inadequate reasons, the Court is not in a position to examine whether that decision is the result of a manifest error of assessment or infringement of the principles of equal treatment and transparency, as the applicant claims. An application for annulment based on those pleas can only, if necessary, be considered in the light of the grounds of the decision that will replace the decision of 13 July 2007, after its annulment by the Court.
147 It follows that the claim for damages must be rejected in its entirety.
148 There is no need to rule on the objection of inadmissibility raised by the Commission with regard to the audited statement of accounts lodged by the applicant at the hearing, and on the relevance of that document, of an e'mail from the Commission to the applicant and of a document containing another call for tenders, also lodged by the applicant at the hearing, since it follows from the foregoing that those documents are irrelevant for the purposes of determining the dispute. The documents in question have thus not been taken into consideration by the Court for the purposes of this judgment (see, to that effect, Case T-13/96 TEAM v Commission [1998] ECR II-4073, paragraph 79).
Costs
149 Under Article 87(3) of its Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs.
150 As the action has been successful in part, the Court will make an equitable assessment of the circumstances of the case and hold that the applicant should bear 50% of its own costs and pay 50% of the costs incurred by the Commission, and that the Commission should bear 50% of its own costs and pay 50% of those incurred by the applicant.
On those grounds,
hereby:
1. Annuls the Commission’s decision of 13 July 2007 rejecting the tender submitted by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in tendering procedure ENTR/05/78 for Lot 2 (Infrastructure Management) for the management and maintenance of the ‘Your Europe’ portal and awarding that contract to another tenderer;
2. Dismisses the remainder of the claim for annulment;
3. Dismisses the claim for damages;
4. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis to pay 50% of its own costs and 50% of the costs incurred by the European Commission, and the European Commission to pay 50% of its own costs and 50% of those incurred by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.
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Vilaras |
Prek |
Ciucă |
Delivered in open court in Luxembourg on 9 September 2010.
[Signatures]
Legal context
1. The Financial Regulation and the Implementing Rules
2. Contract notice and tender specifications
Background to the dispute
1. Concerning Lot 1
2. Concerning Lot 2
Procedure and forms of order sought
Law
1. The claim for annulment
The plea alleging infringement of the obligation to state reasons
Arguments of the parties
Findings of the Court
– The reasons given in the decision of 21 May 2007 and in the letter of 29 May 2007 (Lot 1)
– The statement of reasons contained in the decision of 13 July 2007 and in the letter of 16 July 2007 (Lot 2)
The plea alleging manifest errors of assessment (Lot 1)
Qualitative award criterion No 1, ‘Good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks’
Qualitative award criterion No 2, ‘Quality and completeness of the draft PMQP and in particular of the proposed quality assurance and control procedures’
Qualitative award criterion No 3, ‘Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 1’
Qualitative award criterion No 4, ‘Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 2’
The plea alleging infringement of the principles of equal treatment and transparency
Arguments of the parties
Findings of the Court
2. The claim for damages
Arguments of the parties
Findings of the Court
Costs
* Language of the case: English.