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URL: http://www.bailii.org/eu/cases/EUECJ/2010/T38708_J.html
Cite as: [2010] EUECJ T-387/08, [2010] EUECJ T-387/8

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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.

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

9 September 2010 (*)

(Public service contracts – Publications Office’s tendering procedure – Provision of computing services – Rejection of a tenderer’s bid – Action for annulment – Award criteria and sub-criteria – Obligation to state the reasons on which the decision is based – Equal treatment – Transparency – Manifest error of assessment – Misuse of powers – Claim for damages)

In Case T-‘387/08,

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and P. Katsimani, lawyers,

applicant,

v

European Commission, represented by E. Manhaeve and N. Bambara, acting as Agents, and by J. Stuyck, lawyer,

defendant,

APPLICATION (i) for annulment of the decision of the Publications Office of the European Union of 20 June 2008 rejecting the tender submitted by the applicant in Call for Tender AO 10185 for computing services – maintenance of the SEI-‘BUD/AMD/CR systems and related services (OJ 2008/S 43-058884) and of the decision to award the contract to another tenderer, and (ii) for damages,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucă, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 18 March 2010,

gives the following

Judgment

 Legal context

 Financial Regulation and implementing rules

1        The award of service contracts by the Commission is subject to the provisions of Title V of Part 1 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’), and to 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’).

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 states as follows:

‘1. Contracts shall be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 93, 94 and 96(2)(a) has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders.

2. Contracts shall 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, as applicable at the material time, provides:

‘The specifications shall at least:

(a) specify the exclusion and selection criteria applying to the contract …;

(b) specify the award criteria and their relative weighting or, where appropriate, the decreasing order of importance, if this is not specified in the contract notice;

…’

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

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

7        Under Article 138 of the Implementing Rules, as applicable at the material time:

‘1. Without prejudice to Article 94 of the Financial Regulation, 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.

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.

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 149(2) and (3) of the Implementing Rules, as applicable at the material time, 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, with a value equal to or more than the thresholds set in Article 158 and which are not excluded from the scope of Directive 2004/18/EC, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, by mail, fax or e-mail, that their application or tender has not been accepted, at either of the following stages:

(a)      shortly after decisions have been taken on the basis of exclusion and selection criteria and before the award decision, in procurement procedures organised in two separate stages,

(b)      as regards the award decisions and decisions to reject offers, as soon as possible after the award decision and within the following week at the latest.

In each case, the contracting authority shall indicate the reasons why the tender or application has not been accepted and the available legal remedies.

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. …’

 Specifications

9        The contract notice and the specifications provide that the framework contract is to be awarded to the most economically advantageous tender assessed on the basis of the criteria laid down in the specifications.

10      The specifications state that the assessment will include three stages: the first stage, during which the exclusion criteria are applied (section 2.5 of the specifications); the second stage, during which the selection criteria are applied (section 2.6 of the specifications); and the third stage, involving the application of the award criteria. Tenders are assessed as follows:

–        technical evaluation: the selected tenderers must score at least half of the points for each of the five award criteria and must score a minimum total of 70 points out of 100 in order to be admitted to the financial evaluation (last paragraph of section 2.7 of the specifications);

–        financial evaluation: the evaluation of the financial requirements is based on the total price for each lot referred to in the bid estimation form (section 2.8 of the specifications);

–        final evaluation: the contract must be awarded to the tenderer whose tender offers the best price-quality ratio, calculated in accordance with the formula set out in section 2.9 of the specifications.

 Background to the dispute

11      By a contract notice of 1 March 2008 published in the Supplement to the Official Journal of the European Union (OJ 2008 S 43) under reference 2008/S 43-‘058884, the Publications Office of the European Union launched Call for Tender AO 10185 (‘Computing services – maintenance of the SEI-‘BUD/AMD/CR systems and related services’) comprising three lots. The deadline for submission of tenders was fixed at 14 April 2008.

12      On 14 April 2008, the applicant submitted its tender.

13      By letter of 20 June 2008 (‘the contested decision’), the Publications Office informed the applicant that its tender for Lot No 1 ‘was not successful in the abovementioned tendering procedure, as it didn’t receive [a] sufficient number of points during the technical award phase’, and stated that its tender had scored 65 points out of 100 (the quality threshold having been fixed at 70 points out of 100 in the specifications). The Publications Office added that the framework contract had been awarded to Software AG Belgium (‘Software’), whose tender had scored 86.25 points out of 100, with a price/quality ratio fixed at 94.72, the price proposed by the successful tenderer being EUR 3 530 500. The Publications Office also stated that it would not be concluding the contract with the successful tenderer until a period of 14 days had elapsed.

14      By letter of the same date, the applicant asked the Publications Office for additional information about the evaluation procedure, namely the marks awarded by reference to each award criterion both for its own technical bid and for that of the successful tenderer, and detailed explanations concerning its financial bid in the light of that of the successful tenderer. The applicant asked for detailed information about the advantages and characteristics of the successful tenderer’s bid. It also requested a detailed copy of the Evaluation Committee’s reports on its own tender and on that of the successful tenderer.

15      By letter of 25 June 2008, the Publications Office sent the applicant a table showing the points awarded by reference to the qualitative award criteria to the applicant’s tender and to that of the successful tenderer, together with comments on the applicant’s tender.

16      By letter of 1 July 2008, the applicant claimed that the Evaluation Committee’s report was vitiated by manifest errors of assessment and was insufficiently reasoned, and that the Publications Office had been biased against it. The applicant asked the Publications Office to suspend the procedure for awarding the contract, to inform it of the names of the members of the Evaluation Committee and to provide it with the Evaluation Committee’s comments on the successful tender.

17      By letter of 24 July 2008, the Publications Office informed the applicant that the criticisms expressed in the letter of 1 July 2008 were unfounded and that it stood by its decision not to award the contract to the applicant. The Publications Office annexed to its letter a document explaining how the Evaluation Committee had come to its conclusions, and an extract from the Evaluation Report concerning the tender submitted by Software, from which it had removed certain information which it regarded as being of a sensitive nature. However, it refused to inform the applicant of the names of the members of the Evaluation Committee and justified that refusal on grounds of confidentiality.

18      By letter of 29 July 2008, the applicant challenged the stance taken by the Publications Office. It maintained that the decision was unfair, that the Evaluation Committee was biased against it, and announced its intention to bring an action.

19      On 6 August 2008, the applicant sent a further letter to the Publications Office in order to submit comments on the document annexed to the letter of 24 July 2008 and to repeat its criticisms of the contested decision.

20      By letters of 8 August and 27 August 2008, the Publications Office replied to the letters of 29 July and 6 August 2008, pointing out that the applicant had not put forward any new arguments and asking it to refrain from any further correspondence.

 Procedure and forms of order sought by the parties

21      By application lodged at the Court Registry on 1 September 2008, the applicant brought the present action.

22      Upon hearing the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure.

23      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 18 March 2010.

24      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the applicant damages for the harm caused by the tendering procedure at issue, assessed at EUR 1 444 930;

–        order the Commission to pay the costs even if the action is dismissed.

25      The Commission contends that the Court should:

–        dismiss the action for annulment;

–        declare the claim for damages inadmissible and, in the alternative, unfounded;

–        order the applicant to pay the costs.

 Law

 The application for annulment

26      In support of its application for annulment, the applicant raises, in essence, four pleas in law. The first is based on breach of the obligation to state reasons. The second alleges infringement of the principle of equal treatment and of the obligation of transparency. The third alleges manifest errors of assessment by the Publications Office in its evaluation of the applicant’s tender. The fourth is based on the allegation that there was a misuse of powers.

 Plea in law alleging breach of the obligation to state reasons

–       Arguments of the parties

27      In the first place, the applicant submits that the Publications Office failed to provide any or provided only an insufficient statement of reasons for the contested decision. It claims that its tender was not awarded the maximum number of points in respect of a number of award criteria and sub-criteria although no negative comment was made or any justification given. It accuses the Publications Office of having justified the evaluation pertaining to the applicant after the fact by putting forward fresh evidence in its letter of 24 July 2008.

28      In the second place, the applicant submits that the Publications Office did not communicate the assessment of the relative merits of the successful tenderer or indeed any information concerning those merits. In its view, the provision of a full copy of the Evaluation Committee’s report and a copy of the successful tenderer’s bid were required in order to understand the contested decision. It further submits that it was not supplied with a copy of the successful tenderer’s bid to support the reasons for the contested decision and requests the Court to order the Commission to send it a full copy of that report.

29      The Commission takes the view that it communicated all the information requested by the applicant, via the Publications Office in its letter of 20 June 2008, following the adoption of the contested decision. It maintains that the letter of 25 June 2008 discloses the points awarded by reference to each criterion, both as regards the applicant’s tender and that of Software, and that it includes excerpts from the Evaluation Committee’s report. Furthermore, the letter of 24 July 2008 provided the applicant with detailed information concerning the evaluation of Software’s tender, including the points awarded to Software by reference to each criterion. The Commission adds that the applicant did not, in fact, request a copy of Software’s tender, but that this cannot in any event be provided, because it contains information that falls within the scope of business secrets. In any event, the Commission relies on case-law which confirms that it is not under any obligation to provide the Evaluation Committee’s report in full.

–       Findings of the Court

30      As a preliminary point, it must be borne in mind 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 is therefore limited to checking compliance with the applicable 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 (Case T-‘211/02 TidelandSignal 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).

31      It must also be emphasised that where the Commission has a broad discretion, respect for the rights guaranteed by the European Union 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 European Union Court verify whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, Case C-‘269/90 Technische Universität München [1991] ECR I-‘5469, paragraph 14; Case T-‘465/04 Evropaïki Dynamiki v Commission, cited in paragraph 30 above, paragraph 54; and Case T-‘89/07 VIP CarSolutions v Parliament [2009] ECR II-‘1403, paragraph 61).

32      It is also important to bear 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 the case-law cited).

33      Finally, 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 CarSolutions v Parliament, cited in paragraph 31 above, paragraph 63).

34      As regards a decision rejecting the bid submitted by a tenderer in response to a call for tenders, the specific rules which determine the scope of the statement of reasons that it must contain are laid down by Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

35      It follows from those provisions and from the case-law of this Court that the Commission fulfils its duty to state reasons if it confines itself, first of all, to notifying immediately all tenderers whose tenders are rejected of the grounds on which the decision was taken, and subsequently informs tenderers whose tenders were admissible and who make an express request of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded, within 15 calendar days of the date on which a written request is received (see, to that effect, Case T-‘465/04 Evropaïki Dynamiki v Commission, cited in paragraph 30 above, paragraph 47).

36      It must also be pointed out that, if the institution concerned sends a letter in response to a request from an applicant seeking additional explanations concerning a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings (VIP Car Solutions v Parliament, cited in paragraph 31 above, paragraph 73).

37      Similarly, it has consistently been held that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see, to that effect and by analogy, Case T-‘183/00 Strabag Benelux v Council [2003] ECR II-‘135, paragraphs 57 and 58; Case T-‘465/04 Evropaïki Dynamiki v Commission, cited in paragraph 30 above, paragraph 59; and VIP Car Solutions v Parliament, cited in paragraph 31 above, paragraph 73). Thus, the possible sending of a third letter can be taken into account only when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the successful tenderer, and not when the Commission sets out other considerations which go so far as to undermine the statement of reasons provided in the first two letters (see, to that effect, Case T-‘465/04 Evropaïki Dynamiki v Commission, cited in paragraph 30 above, paragraph 75). It must be pointed out in that regard that an institution’s responses to an unsuccessful tenderer’s requests can be taken into consideration as constituents of the grounds for the contested decision only in so far as they are based on points of fact and of law which existed at the date of that decision.

38      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 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, cited in paragraph 30 above, paragraph 48).

39      The applicant’s arguments must be examined in the light of those considerations. The applicant raises, in essence, two complaints in support of the plea alleging breach of the obligation to state reasons. First, in the context of the plea alleging misuse of powers, it developed a line of argument according to which the points scored by its tender by reference to a number of award criteria and sub-criteria were belatedly justified in the letter of 24 July 2008. Such reasoning must be interpreted as a complaint that the statement of reasons for the contested decision was insufficient with regard to the various award criteria and sub-criteria, which was confirmed by the applicant at the hearing. Second, the applicant claims that there was a failure to state reasons, in that the characteristics and relative advantages of the successful tenderer’s bid were not communicated to it. Therefore, after first determining which letters may be taken into consideration for the purposes of the statement of reasons for the contested decision, the Court must analyse both aspects of the applicant’s argument.

40      As regards the letters to be taken into account in order to establish whether the Publications Office has satisfied the requirement for a statement of reasons laid down in the Financial Regulation and the Implementing Rules, it must be borne in mind that, as the applicant submitted an admissible tender for the purposes of Article 149(3) of the Implementing Rules, it is necessary to examine not only the contested decision, namely the letter of 20 June 2008, but also the letter of 25 June 2008 sent in reply to the applicant’s express request for additional information about the decision to award the contract in question. On the assumption that the statement of reasons set out in those two letters was insufficient, it will be necessary to determine whether the letter of 24 July 2008 may also be taken into consideration for the purpose of assessing whether the statement of reasons for the contested decision is sufficient.

41      First of all, it is apparent from the contested decision that the Publications Office informed the applicant that its tender had been rejected at the award stage, on the ground that it had scored only 65 points out of 100 at the technical evaluation stage, whereas a minimum of 70 points out of 100 was required. It must be noted in that regard that, as set out in paragraph 10 above, the specifications stated that the selected tenderers had to score at least half of the points available for each of the five award criteria and a minimum of 70 points out of 100 in order to be admitted to the financial evaluation.

42      The Publications Office also reproduced the conclusions of the Evaluation Committee, stating the name of the successful tenderer, the value of the contract which it had proposed and the number of points it had scored by reference to each of the award criteria. It also indicated that it had undertaken not to conclude the contract with the successful tenderer for a period of 14 days.

43      Next, it must be noted that the letter of 25 June 2008 includes a comparative table of the points scored by the applicant and by the successful tenderer by reference to each of the award criteria and sub-criteria. It is also accompanied by a more detailed table concerning the evaluation of the applicant’s tender, which contains the Evaluation Committee’s comments.

44      Lastly, the letter of 24 July 2008 contains more detailed assessments by reference to the award criteria and sub-criteria in question, together with a table of the points scored by the successful tenderer accompanied by a brief commentary on each of the award criteria and sub-criteria. Without prejudice to the question whether some of the reasons put forward in the letter of 24 July 2008 replaced the original statement of reasons, it must be noted that, while the Commission admitted at the hearing that the only excerpt from the Evaluation Committee’s report was the table listing the points scored by the successful tenderer for each criterion and sub-criterion and containing brief comments on each of them, it nevertheless confirmed that the more detailed assessments contained in the letter of 24 July 2008 were based on the information transmitted by the Evaluation Committee.

45      The Court therefore considers that, for the purpose of determining whether the statement of reasons for the contested decision by reference to the award criteria and sub-criteria is sufficient, it may take into account the comments put forward in the letter of 24 July 2008, provided that those comments do not replace the original statement of reasons contained in the contested decision and in the letter of 25 June 2008.

46      It is in the light of those considerations that the Court must determine whether the obligation to state reasons has been complied with.

47      In the first place, it is necessary to examine the complaint that the statement of reasons for the contested decision was insufficient, having regard to the various award criteria and sub-criteria.

48      As regards the statement of reasons relating to award criteria Nos 1 to 5 and to award sub-criteria Nos 2.1 to 2.3, 3.1, 4.1, 5.1 and 5.3 to 5.7, it is clear that the contested decision and the letter of 25 June 2008 contain sufficient information, on the one hand, to make the applicant aware of the reasons for the measure and thereby enable it to defend its rights and, on the other, to enable the Court to exercise its review.

49      It must be noted that the statement of reasons for the rejection of the tender, having regard to the award criteria and sub-criteria referred to above, includes a series of specific points enabling the applicant to understand the marks which the Publications Office had awarded to its tender by reference to those criteria and sub-criteria. Mention is made, in particular, of the fact that the applicant sent unnecessary annexes, provided brief or imprecise descriptions and submitted theoretical elements, made calculation errors, failed to comply with certain requirements of the specifications, such as the date of entry into force of the contract, and failed to provide certain information, particularly in relation to meetings.

50      Moreover, the statement of reasons concerning the majority of the award sub-‘criteria mentioned above is helpfully supplemented by the information contained in the letter of 24 July 2008, without that information replacing the existing statement of reasons. The statement of reasons contained in the letter of 25 June 2008 was already such as to enable the applicant to understand the reasons for its failure to score the maximum number of points by reference to those sub-criteria. The explanations mentioned in the letter of 24 July 2008 therefore merely add detail to the explanations already given by the Publications Office in the letter of 25 June 2008.

51      By contrast, it must be noted that the comments in relation to award sub-criteria Nos 2.4, 2.5, 2.7, 3.2, 4.2 and 5.2 in the contested decision and in the letter of 25 June 2008 are vague and generic and do not explain the marks awarded to the applicant’s tender by reference to each of those sub-criteria. It must also be pointed out that the explanations given in the letter of 24 July 2008 in respect of each of those award sub-criteria appear, in reality, to be new reasons replacing the existing statement of reasons.

52      As regards award sub-criterion No 2.4, entitled ‘Production of documentation procedure’, the Publications Office’s positive comment, ‘+ good to produce documentation inside SEI-BUD’, does not explain why the applicant scored 3 points out of 4. It is only in the letter of 24 July 2008 that the explanation is provided:

‘In the opinion of the Evaluation Committee …, the tenderer’s approach is good, but not very good or excellent, and therefore a higher number of points was not awarded. For example, naming conventions are not mentioned, or the difference in approach with [regard] to technical and end-user documentation. The tenderer also failed to explain how to handle the versioning of documentation.’

53      The abovementioned letter must, therefore, be regarded as putting forward a new statement of reasons in place of the original statement of reasons.

54      As regards sub-criterion No 2.5, entitled ‘Procedure to [ensure] quality in software deliveries’, the simple statement ‘+ well described’ does not in any way explain on what basis 3.5 points were awarded out of 4. The letter of 24 July 2008 confirms that the procedures are well described but states that ‘a description of how to secure the final delivery is missing’. The latter explanation is difficult to reconcile with the statement of reasons in the letter of 25 June 2008. Without that explanation, it was not possible for the applicant to challenge the contracting authority’s evaluation or for the Court to carry out any review of a manifest error of assessment. The contracting authority should, therefore, have mentioned that point in the letter of 25 June 2008. The reasons set out in the letter of 24 July 2008 effectively do more than merely supplement the comment which appears in the letter of 25 June 2008; they replace it.

55      As regards award sub-criterion No 2.7, entitled ‘Conflict resolution approach’, for the application of which the applicant’s tender was awarded 2.5 points out of 3, the comment is limited to ‘+ division into communication management and conflict management’. In the letter of 24 July 2008, the Publications Office confirms that it appreciated the applicant’s idea of making such a distinction, but states for the first time that the bid did not deserve a higher mark because the analysis was not complete. That reason was invoked for the first time in the letter of 24 July 2008 and cannot, therefore, be regarded as merely amplifying the comment which appears in the letter of 25 June 2008.

56      As regards award sub-criteria Nos 3.2 and 4.2, both of which are entitled ‘Adequacy and quality of the foreseen reporting’, the Publications Office awarded 2.5 points out of 3 for each of them and commented ‘+ good’ in each case. Owing to the laconic nature of those comments, it is not possible to understand why the maximum number of points was not awarded. It is only in the letter of 24 July 2008 that the explanation is given that some of the details concerning the reporting procedure had not been described in the tender and that the anticipated content of the report was not sufficiently detailed. Such a statement of reasons clearly does not merely supplement the assessment ‘+ good’ but replaces it.

57      As regards sub-criterion No 5.2, entitled ‘Adequacy, completeness and quality of the foreseen request handling’, by reference to which the applicant’s tender was awarded 4 points out of 5, it was noted that ‘the tenderer propose[d] to send its offer within six working days’. In the letter of 24 July 2008, the Publications Office stated that it had ‘appreciated the willingness of the tenderer to send its offers within six working days’ but went on to make a series of critical remarks about the bid with a view to justifying the marks awarded to the applicant. Those explanations are put forward for the first time in the letter of 24 July 2008 and cannot, therefore, be interpreted as expanding on the remarks made by the Publications Office in the letter of 25 June 2008.

58      In view of the foregoing, it is clear that the contested decision is vitiated by an inadequate statement of reasons with regard to award sub-criteria Nos 2.4, 2.5, 2.7, 3.2, 4.2 and 5.2.

59      However, it must be pointed out that where a number of components of the statement of reasons for a decision on their own provide a sufficient legal basis for that decision, any inadequacy of the other components of the decision has no effect on its operative part (see to that effect and by analogy, Joined Cases C-‘302/99 P and C-‘308/99 P Commission and France v TF1 [2001] ECR I-‘5603, paragraphs 26 to 29; Case T-‘50/00 Dalmine v Commission [2004] ECR II-‘2395, paragraphs 145 and 146; and Case T-‘210/01 General Electric v Commission [2005] ECR II-‘5575, paragraph 42). In such a case, the decision cannot be annulled on account of the inadequacy of the statement of reasons unless it is found not only that the statement of reasons for certain components of the decision is inadequate but also that the other components of that decision which are not vitiated by inadequate reasoning do not provide a sufficient legal basis for justifying that decision (see to that effect and by analogy, General Electric v Commission, paragraph 48).

60      In this case, it is important to emphasise that the statement of reasons in respect of numerous other award criteria and sub-criteria is adequate. Even if the applicant had been awarded the full number of points available for the award sub-criteria in respect of which the statement of reasons was inadequate, it would not, in any event, have scored the minimum total of 70 points that would have enabled it to proceed to the financial stage.

61      However, in so far as the evaluation of the tender by reference to the other award criteria and sub-criteria which are not vitiated by inadequate reasoning is being challenged on the basis of a manifest error of assessment, the Court must examine that plea before reaching any conclusion as to whether the inadequacy of the statement of reasons for the six award sub-criteria referred to above might be such as to result in the annulment of the contested decision.

62      In the second place, it is necessary to examine whether, as the applicant claims, the Publications Office infringed Article 100(2) of the Financial Regulation by failing to notify the applicant of the characteristics and advantages of the successful tenderer’s bid.

63      In the present case, the Court notes that the contested decision is not based on a comparison of the deliverables of the various tenderers, but on the fact that the applicant’s tender did not score the minimum number of points required when the award criteria and sub-criteria were applied.

64      According to the call for tenders, only tenders scoring at least 70 points in respect of the award criteria and sub-criteria were to be further examined in order to determine which tender offered the best value for money.

65      Accordingly, the applicant’s tender was eliminated not as a result of a comparison with the other tenders or, in particular, with the successful tenderer’s bid, but because it failed to attain the minimum threshold of points required.

66      The information concerning the successful tenderer which was communicated by the Publications Office was, therefore, in the present case, sufficient in the light of the relevant requirements (see, to that effect, Case T-‘406/06 Evropaïki Dynamiki v Commission, cited in paragraph 33 above, paragraphs 106 to 108).

67      Therefore, the complaint that the Publications Office failed to fulfil its obligation under Article 100(2) of the Financial Regulation to notify the characteristics and relative advantages of the successful bid must be rejected.

68      In those circumstances, the applicant’s request for the Commission to be ordered to produce a full copy of the evaluation report must be refused.

69      In the light of all the above considerations, the plea in law alleging breach of the obligation to state reasons must be rejected.

 Plea in law alleging infringement of the principle of equal treatment and of the obligation of transparency

–       Arguments of the parties

70      The applicant claims that it is criticised for having exceeded the maximum number of pages permitted for best practice documents, and that the Publications Office thereby confused award and selection criteria. It takes the view that the documents concerned had already been evaluated in the selection procedure. It states that criteria designed to assess a tenderer’s general suitability to perform the contract in question cannot be regarded as award criteria.

71      The Commission challenges the arguments put forward by the applicant.

–       Findings of the Court

72      As a preliminary point, it must be noted that a distinction must be drawn between selection criteria and award criteria. The examination of the tenderers’ suitability and the award of the contract are two distinct procedures and are governed by different rules (see to that effect and by analogy Case 31/87 Beentjes [1988] ECR 4635, paragraphs 15 and 16, and Case C-‘532/06 Lianakis and Others [2008] ECR I-‘251, paragraphs 26 to 32).

73      It must be pointed out that, in essence, the applicant complains that the Publications Office carried out a double review of the best practice criteria by reference to award sub-criterion No 3.2.

74      In the present case, as the Commission pointed out in its written pleadings, the nature of the review undertaken with regard to this award sub-criterion had entirely different functions during the selection stage and during the award stage. The review carried out during the selection stage was, in accordance with the specifications, an assessment of the technical and professional capacity of the various tenderers. By contrast, the review carried out during the award stage covered compliance with the criterion of the number of pages to be included in the tender in relation to that aspect. Therefore, if the tender had satisfied the selection criterion as to the content of the best practice documents, the Publications Office would not in any way have been precluded as a result from taking into account in its examination of the award criteria and sub-criteria the fact that the volume of best practice documents exceeded the maximum number of pages permitted. Consequently, and contrary to what is claimed by the applicant, there was no double review with regard to the best practice documents.

75      It follows from the foregoing that the plea alleging infringement of the principle of equal treatment and of the obligation of transparency must be rejected.

 Plea in law alleging manifest errors of assessment

76      The applicant claims that the Publications Office committed multiple manifest errors of assessment during the selection procedure in the tendering procedure at issue. In that respect, it takes issue with the evaluation of its tender by reference to all the award criteria and sub-criteria.

77      As a preliminary point, it should be borne in mind, as has been pointed out in paragraph 30 above, 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 must be limited to checking compliance with the applicable 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.

78      In the present case, it is apparent from the specifications that the contract was to be awarded on the basis of the best-value-for-money procedure, in accordance with Article 97(2) of the Financial Regulation.

79      Accordingly, within the parameters set by the case-law, it is necessary to consider whether the Publications Office committed several manifest errors of assessment when evaluating the tender by reference to the various award criteria and sub-‘criteria.

a)     Award criterion No 1, entitled ‘Overall quality and relevance of the tenderer’s response’

80      In the first place, the applicant challenges the Publications Office’s assertion that the tender included unnecessary annexes which were not to be taken into account during the evaluation. In the applicant’s view, the Publications Office arbitrarily decided to judge whether the tender submitted was concise, clear and well structured by referring to the annexes which accompanied it. According to the applicant, the Publications Office should have evaluated the tender on the basis of the documents requested under chapter 2 of the specifications and not on the basis of the content of the annexes which were intended merely to document generally the applicant’s reliability, know-how and experience. It maintains that the provision of various documents in the annexes constitutes a standard right and policy of all tenderers and that it was not specified in the specifications that annexes were not to be provided.

81      However, it must be observed that the Publications Office did not commit a manifest error of assessment in taking the view that the tender contained unnecessary annexes. The applicant cannot reasonably contest the fact that all the documents bearing the heading ‘Technical Bid’ form part of the tender which it submitted and that, therefore, it was not possible to take account only of the information and documents submitted from section 4 onwards, entitled ‘Documents relating to the Award Criteria – Technical Bid’, for the purposes of assessing the tender. Similarly, the Publications Office was right to take the view that it would have been impossible for it to evaluate those annexes generally, since the applicant’s reliability, know-how and experience were evaluated on the basis of the documents listed in the specifications for the application of the selection criteria.

82      In addition, the applicant’s assertion that, in the tendering procedures launched by the Publications Office, the latter has always accepted that various documents are provided in the annexes is irrelevant. The requirements of the specifications for the tendering procedure at issue cannot be compared with those imposed in any other past or future tendering procedure.

83      In the second place, the applicant was criticised for having failed to adhere to the maximum number of 10 pages for the provision of best practice documents. Far from challenging that finding, the applicant actually acknowledges that 3 of the 8 documents which it provided exceeded 10 pages. The Publications Office did not, therefore, commit a manifest error of assessment in pointing out that that objective criterion of a maximum number of pages laid down in the specifications had not been complied with. Consequently, it cannot reasonably be blamed for having taken that into account as a negative factor in its assessment. In that regard, the applicant’s assertion that the size of the documents depended on the projects previously undertaken for other clients is irrelevant, since the limit laid down in the specifications applies equally to all tenderers. Likewise, the justification based on the fact that the latter approach had also been accepted in connection with other tendering procedures is irrelevant, since the requirements of the specifications in the present case cannot be compared with those which apply or have applied in another tendering procedure.

84      In the third place, the applicant denies that the information which it supplied was theoretical and that the descriptions presented in its tender were short. It claims that they were expressly limited to 15 pages and addressed the requirements of the specifications in every respect.

85      It must be noted, as the Commission observed, that, in chapter 1.2 of the tender covering the tenderer’s approach to quality assurance, the applicant provided numerous definitions in relation to the approach used regarding project management and service delivery. By contrast, it is apparent from chapter 1.3 of that tender, concerning the project management approach used in real projects presented, that the applicant did not describe how the definitions and methods had been implemented when those projects were carried out. In that regard, the applicant’s argument that it would have exceeded the maximum number of pages permitted if it had added the information required by the Commission to the tender is irrelevant. It was for the applicant to endeavour – in common, moreover, with all tenderers – to adhere to the maximum number of pages laid down in the specifications, compliance with the requirements of the specifications being one of the elements of the assessment of the bid.

86      In the fourth place, as regards the obligation mentioned in the specifications to provide a short description of content and deliverables in relation to the resources dedicated to the latter, together with an estimate of effort in man-days per profile both in the handover phase and the takeover phase, the applicant states that the tables which it provided in that respect each contained an obvious clerical error in the calculation of the total number of man-days required, an error which, according to the applicant, was not such as to affect the evaluation of the tender.

87      Nevertheless, as regards the table concerning the handover phase, it must be observed that it is difficult to identify the origin of the calculation error in question, given that the sum of the sub-totals in the first column corresponds neither to the figure of 87 in question nor to the sum of the sub-totals in each column. As to the table of effort to be allocated in the takeover phase, the same point must be made, since it is difficult to identify the origin of the calculation error which appears in the table, given that the sum of the sub-totals of each column or of each section does not correspond to the grand total of 244 man-days. Furthermore, the applicant admitted at the hearing that the second table contained a second error. It cannot, therefore, reasonably be concluded that the errors in those two tables can be categorised as clerical errors which the Publications Office was not entitled to take into account.

88      In view of the foregoing, it must be held that the Publications Office did not commit a manifest error of assessment in its evaluation of the tender by reference to award criterion No 1.

b)     Award criterion No 2, entitled ‘Quality and relevance of the tenderer’s approach to quality assurance and project management in software development and IT/IS projects’

89      It must be observed at the outset that award criterion No 2 is subdivided into a number of award sub-criteria which were examined independently and for which specific marks were awarded. It must also be noted that the points which the tender scored by reference to that award criterion are merely the sum of the points awarded for each award sub-criterion, and that the comments in respect of that award criterion partly reiterate the remarks made in relation to those award sub-‘criteria.

90      The applicant claims that manifest errors of assessment were committed in the evaluation of the tender both in the light of award criterion No 2 and the award sub-criteria comprising it. For the reasons put forward in the preceding paragraph, the analysis in relation to that award criterion is indissociable from that which relates to the award sub-criteria. Accordingly, it is appropriate to examine together the Commission’s assessments both with regard to award criterion No 2 and the award sub-criteria subdividing it, in respect of which manifest errors of assessment have been alleged.

91      As regards the errors of assessment alleged in relation to award criterion No 2, it is alleged, first of all, that the applicant referred to the PMI and PRINCE 2 standards and defined them without indicating how they would be applied in practice. The applicant states that, admittedly, chapters 1.2 and 1.3 (see paragraph 84 above) describe exhaustively and in detail the way in which it applied the approach regarding project management and service delivery in practice in the context of specific projects. Nevertheless, it must be noted that the information mentioned in those two chapters appears to be highly theoretical. The Commission correctly points out that the information sent to the Publications Office by the applicant did not enable it to determine whether the standards and practices listed had been applied effectively. In that regard, the applicant is wrong to claim, in essence, that the Publications Office should not have relied on the projects undertaken by the applicant, on the ground that that evaluation could have been carried out only in the context of an assessment of the selection criteria. The contested decision does not in any way show that the Publications Office assessed the applicant’s tender on the basis of projects which it had undertaken, but that it assessed the applicant’s tender by reference to that award criterion in the same way as the corresponding information in the bids of other tenderers.

92      Second, it must be borne in mind that the requirements referred to in Annex 6.15 to the specifications provide that the tenderer must provide an overview of the preferred software development approach in general used by the company, must list the different phases which generally make up software development and must mention the methods and tools which it uses for each phase. The Publications Office took the view that the information provided in that regard was too theoretical. The applicant submits that tenderers were requested to provide details of the tools used ‘in general’, and that it described them in chapter 2.3.1 of the tender document entitled ‘Proposal covering the start-up phase of the contract – Takeover’.

93      It must be observed that the document annexed to the applicant’s tender to which it refers does not appear to mention the methods and tools used for each phase of the software development project, as required by the specifications.

94      Third, the applicant has not demonstrated that the Publications Office committed a manifest error of assessment in stating that, according to the tender, if the service level were to fall below target, the applicant would not deal with the cause of the problem until the problem had appeared for a second time. The applicant relies in vain in that regard on chapter 1.1.3 of its tender, which does not in any way show that the applicant would treat any problem relating to a reduction in service level as soon as it appeared.

95      It follows from those considerations that the Publications Office did not commit a manifest error of assessment in its evaluation of the tender by reference to award criterion No 2.

 Award sub-criterion No 2.1, entitled ‘Project management approach: methods, scope, deliverables, reporting, controlling, risk, change, time and cost management’

96      The applicant denies that it provided theoretical information that was not relevant to the call for tenders, including a list of definitions relating to specific management activities with no link to real projects. It submits, first of all, that it has been acknowledged that its tender contained definitions concerning real projects. It goes on to state that the Publications Office should not have based its evaluation on work done in previous projects. In addition, it maintains that it specified in detail which project and service management definitions it had used and for which specific projects. Finally, the applicant states that it does not understand what information was missing from its 15-page document that would give rise to the conclusion that it was impossible to assess the application of the definitions in practice, and takes the view that its tender complies with the specifications.

97      It is clear from chapter 1.2.1 of the applicant’s tender that the applicant listed a series of definitions relating to specific management activities. As the Publications Office pointed out, the applicant’s tender does not include links between the information presented and the approach mentioned in the SEI-BUD project. Similarly, it does not appear from chapter 1.2.1 referred to above, in conjunction with chapter 1.3 of the applicant’s tender, that the applicant specified the links between the proposed definitions and the actual projects mentioned in that tender. The Publications Office did not, therefore, commit any manifest error of assessment in taking the view that the applicant’s tender did not enable the application of the definitions in practice to be assessed.

98      Furthermore, the applicant’s argument that the Publications Office was not entitled to base its evaluation on work done in earlier projects is of no relevance. The applicant does not in any way demonstrate that the Publications Office evaluated those projects and relied on that evaluation for the purposes of assessing the applicant’s tender.

99      Therefore, it must be concluded that the evaluation of the tender by reference to award sub-criterion No 2.1 did not give rise to any manifest error of assessment.

 Award sub-criterion No 2.2, entitled ‘Phases in software development’

100    According to the applicant, the Publications Office erred in finding, first, that the tender had certain shortcomings, such as the failure to mention delivery times for solutions, and, second, that the detailed description of the way in which the functional specifications were drawn up exceeded the scope of the lot covered by the tender.

101    In the first place, the applicant submits that its tender was required to describe its approach as regards software maintenance in general and not in the specific context of the SEI-BUD project. However, it must be noted, as the Commission points out, that Annex 6.15 to the specifications mentions that the tenderer was required to provide a document describing the company’s approach in order to ensure and to maintain a very high level of quality concerning the services related to the subject of the call for tenders in question, in this instance the maintenance of the SEI-BUD software. The Publications Office did not, therefore, commit a manifest error of assessment in taking the view that the description of the approach to software maintenance in general had some shortcomings.

102    In addition, the applicant claims that the phrase ‘the Contractor will have to deliver the resolution … within X hours (to be decided with the client) …’ in its tender refers to the resolution delivered during an emergency maintenance procedure in general and not to the delivery time in the context of a pre-defined project in accordance with Annex 6.15 to the specifications. It therefore takes the view that the Publications Office confused the document containing general information and the documents detailing specific delivery times in its proposed service level agreement. However, it must be noted that, on the one hand, point 4.3.1 of the specifications laid down incident response times and, on the other, as the Commission points out, both general documents – such as the document relating to the tenderer’s approach to quality assurance and project management in software development and IT/IS projects – and those detailing the special delivery requirements – such as the document concerning the service level agreement – were required to comply with the specifications. It must be observed that the applicant did not indicate incident response times in chapter 2.4 of its tender covering the tenderer’s approach to quality assurance and project management in software development and IT/IS projects. It is reasonable to accept, as pointed out by the Publications Office, that since emergency maintenance formed a key part of the support services which the successful tenderer was required to provide, such an indication was clearly warranted. Therefore, the Publications Office did not commit a manifest error of assessment in finding that the response times, albeit required by the specifications, were missing. Consequently, the finding that the document containing general information did not comply with the specifications in that respect cannot reasonably be challenged.

103    In the second place, the applicant denies that its detailed description of the way in which the functional specifications were drawn up exceeds the scope of Lot No 1, which covered the maintenance and software development of the SEI-‘BUD/AMD/CR system. It is apparent from Annex 6.15 to the specifications that the tenderer’s bid was required to be drawn up taking into account its intended purpose, namely the maintenance and software development of the SEI-‘BUD/AMD/CR system. Furthermore, the applicant did not challenge the Publications Office’s finding that the functional specifications presented in the applicant’s tender were relevant to Lot No 3 and not to Lot No 1.

104    It follows from those considerations that the Publications Office did not commit a manifest error when it assessed award sub-criterion No 2.2.

 Sub-criterion No 2.3, entitled ‘Testing methods and tools’

105    According to the applicant, the Publications Office was wrong to complain that the applicant had mentioned in general terms the software used for technical and functional testing tools without referring to the SEI-BUD system and without providing the information required by the specifications on the advantages and possible limitations of using the proposed tools.

106    It is apparent from Annex 6.15 to the specifications that a clear reference to the methods used for technical and functional software testing was required, that the commercial tools and proprietary solutions had to be clearly indicated and that the tenderer was required to explain the advantages and possible limitations of using the proposed tools in the framework of the SEI-BUD/AMD/CR systems. Contrary to what is claimed by the applicant, chapter 2 of the document entitled ‘Tenderer’s approach to quality assurance and project management in software development and IT/IS projects’ and chapter 4 of the document entitled ‘Service Level Agreement’ of the applicant’s tender do not contain any reference to the SEI-BUD system or any information about the advantages and possible limitations of using the proposed tools, contrary to what was expressly required on page 93 of the specifications.

107    For that reason, the Court must also reject the applicant’s argument that the Publications Office confused the award criteria by relying in its evaluation of award sub-criterion No 2.3 on a lack of information, when that ground allegedly ought to have been taken into account in connection with another award sub-‘criterion.

108    On the basis of those aspects alone, the view may reasonably be taken that the applicant has not demonstrated that the Publications Office committed a manifest error of assessment in awarding 7 out of 8 points to its tender by reference to sub-‘criterion No 2.3.

c)     Award criterion No 3, entitled ‘Quality and relevance of the tenderer’s proposal describing the start-up phase’

109    For the same reasons as those set out in paragraphs 89 and 90 above, it is appropriate to examine together the Publications Office’s assessments with regard both to award criterion No 3 and to the sub-criteria into which it is divided, in respect of which manifest errors of assessment have been alleged.

110    As regards award criterion No 3, the applicant relies on the fact that it provided an effort allocation table for the takeover phase, allocating the workload per profile, and takes the view that it satisfied the requirements of the specifications in that respect. However, it is difficult to interpret the data presented in that table because it contains an error which, as observed in paragraph 87 above, cannot be categorised as merely clerical. The errors allegedly committed by the Publications Office do not in any way diminish the calculation errors made by the applicant.

 Award sub-criterion No 3.1, entitled ‘Adequacy and quality of the foreseen takeover plan (dates, activities, deliverables, resources)’

111    In the first place, the applicant claims that the Publications Office was wrong to take the view that the number of man-days proposed in its tender was very high. However, it is clear from the specifications that tenderers were required to provide a list of the tasks to be undertaken, the results to be obtained and the estimated effort per person, per day and per profile. The specifications did not, therefore, include any requirement in terms of a minimum or maximum number. Consequently, the Publications Office had a broad discretion to determine what an adequate workload would be. It must be held that the applicant has failed to demonstrate that, in so doing, the Publications Office committed a manifest error of assessment. The applicant merely claimed that, even if a rational mathematical model were applied to define the optimum handover, it would have to be concluded that its estimates are modest, yet it failed to adduce any actual evidence to demonstrate that there was a manifest error of assessment.

112    Furthermore, as regards the maintenance of a computing programme which the Publications Office was able to test, it must be acknowledged that the Publications Office could validly take that experience into account.

113    In that respect, the Court must reject the applicant’s argument alleging breach of the principle of non-discrimination on the alleged ground that the incumbent contractor, namely Software, had been favoured by the reliance placed on its subjective knowledge of the SEI-BUD system instead of on the specifications. The absence of favouritism towards the incumbent contractor appears to be confirmed by the fact that the price relating to the start-up of the SEI-BUD system’s applications did not appear in the bid estimation form and did not, therefore, have to be taken into account in the final evaluation, so as to avoid giving the current contractor a competitive advantage.

114    In the second place, the applicant claims that the Publications Office wrongly relied on ‘[a lack of information] concerning meetings’ on the ground that it was allegedly not apparent from the tender it had submitted that its staff would be physically present.

115    It must be borne in mind that the specifications mention the need to hold regular meetings throughout the duration of the contract and specifically require that, at the very least, the project manager should be physically present at every meeting. The specifications therefore draw the tenderers’ attention to the particular importance of that aspect. However, it must be noted that the applicant makes no reference anywhere to information about the physical presence of a member of its staff at every meeting. Given the specific nature of the reference in the specifications, the applicant cannot reasonably claim that the physical presence of a project manager was implied when it referred to the holding of meetings in chapters 2.1 and 3.3 of its bid. In that regard, the Commission correctly observes that the proposals put forward by the applicant in its bid, concerning a system whereby communication between the parties would be by video-conference, reinforced the Publications Office’s doubts as to whether the applicant’s representatives would be physically present at the meetings.

116    In the third place, with regard to the comment that the amount of management activity proposed in the tender was very high, the applicant submits that the Publications Office itself conceded that the proposed management effort was appropriate. Nevertheless, it must be pointed out that that assertion is lacking in substance, since the Publications Office did not in any way concede that the applicant’s management effort was appropriate but merely stated that the amount of management activity proposed was very high.

117    In the fourth place, the criticism that its tender indicated that the contract would enter into force on 3 November 2008 is, in the applicant’s view, unjustified. The applicant maintains that, taking into account the statement appearing in the chapter of the specifications entitled ‘Takeover’, it made a working assumption in determining the date on which the contract would enter into force in order to prepare a realistic project plan. However, it must be noted that the date of entry into force of the contract, 28 November 2008, was fixed in point 1.4 of the specifications, which the applicant failed to observe in putting forward its own assumptions.

118    It follows from those considerations that the Publications Office did not commit a manifest error when it assessed award criterion No 3 and award sub-criterion No 3.1.

d)     Award criterion No 4, entitled ‘Quality and relevance of the tenderer’s proposal describing the handover phase’

119    The applicant claims that the figure of 87 man-days which emerges from the table of estimated effort in man-days per profile, submitted in chapter 3.5 of its tender, is due to a computing error, since the sum of the sub-totals in the table should, in reality, result in a workload of 92 man-days. It comments that it allocated the workload per profile clearly and in accordance with the specifications, and takes the view therefore that it has been unfairly penalised for that computing error. It also states that it has already been penalised for that clerical error in the context of the application of award criterion No 1.

120    It must be observed that the Publications Office does indeed note in the comment relating to award criterion No 4 that a mistake was made. However, contrary to the applicant’s claim, the noting of that mistake does not mean that the Publications Office penalised the applicant twice on that ground. The marks awarded in respect of award criterion No 4 in reality represent only the sum of the marks awarded by reference to award sub-criteria Nos 4.1 and 4.2. The comments in relation to those sub-criteria do not refer to the aforementioned error at all.

121    Consequently, the applicant’s arguments in relation to award criterion No 4 are ineffective.

 Award sub-criterion No 4.1, entitled ‘Adequacy and quality of the foreseen handover plan (dates, activities, deliverables, resources)’

122    The applicant claims that the Publications Office erroneously took the view that the anticipated handover workload of 87 man-days proposed in the tender was too high, and that the part of the tender which deals with the handover phase did not include information concerning meetings, in particular those requiring the tenderer’s physical presence.

123    In the first place, it is clear from the specifications that tenderers were required to provide a list of the tasks to be undertaken, the results to be obtained and the estimated effort per person, per day and per profile. The specifications did not, therefore, include any requirement in terms of a minimum or maximum number.

124    The determination of the number of man-days required for the handover phase is by nature a technical evaluation, which falls within the broad discretion of the administration. It is nevertheless for the Court to review whether the administration’s assessment in that respect is manifestly incorrect.

125    The number of man-days proposed by the various tenderers was, respectively, 59 for the successful tenderer, 66 for an unsuccessful tenderer, 87 for the applicant and 170 for another unsuccessful tenderer. In the light of those proposals, the Publications Office was not manifestly unreasonable and did not therefore exceed its broad discretion in taking the view that the figure of 87 man-days was too high.

126    Moreover, the applicant does not put forward any convincing argument in that regard. It merely claimed that its estimates were modest, even if a rational mathematical model were applied to define the optimum handover. No convincing evidence to demonstrate that the Publications Office was obviously mistaken on that point has, however, been put forward to substantiate its proposition.

127    Furthermore, as regards the applicant’s reference to the fact that a higher number of man-days is necessarily synonymous with better quality, suffice it to point out that, without any explanation or reasoning, such an assertion cannot demonstrate that there has been a manifest error of assessment.

128    In addition, as regards the maintenance of a computing programme which is already used by the Publications Office, and of which the latter has been able to acquire knowledge through experience, it is not unreasonable for it to have relied on that knowledge in order to assess an adequate number of man-days for the purposes of the handover phase of the programme.

129    Moreover, it is clear from the specifications that tenderers were required to provide a list of the tasks to be undertaken, the results to be obtained and the estimated effort per person, per day and per profile. The specifications do not, therefore – as has been pointed out in paragraph 111 above – include any requirement in terms of a minimum or maximum number. Consequently, the Commission had a broad discretion to determine what an adequate workload would be. It must be held that the applicant has failed on that point also to demonstrate that a manifest error of assessment has been committed. In this instance also, the applicant merely claimed that, even if a rational mathematical model were applied to define the optimum handover, it had to be concluded that its estimates were modest, but it failed to adduce any actual evidence to demonstrate that there was such an error. Furthermore, the applicant’s reasoning is hard to follow, in so far as its written pleadings indicate, on the one hand, that, according to its own calculations, a figure of 438 man-days was necessary for the period of the handover phase and that, on the other, it proposed to reduce that effort to 87 man-days.

130    In the second place, the applicant wrongly claims that it provided all the information concerning meetings required by the specifications, and states that it even indicated where those meetings would take place, in this instance the premises of the Publications Office.

131    As has been observed in paragraph 115 above, the specifications stated that it was necessary to hold regular meetings throughout the duration of the contract, and specifically required that, at the very least, the project manager should be physically present at every meeting. The specifications therefore drew the tenderers’ attention to the particular importance of that aspect. However, nowhere does the applicant mention information concerning the physical presence of a member of its staff at every meeting. Given the specific nature of the reference in the specifications, the applicant cannot reasonably claim that the physical presence of a project manager was implied when it referred to the holding of meetings in chapters 2.1 and 3.3 of its bid. In that regard, the Commission correctly observes that the proposals put forward by the applicant in its bid, concerning a system whereby communication between the parties would be by video-conference, reinforced the Publications Office’s doubts as to whether the applicant’s representatives would be physically present at the meetings.

132    It follows from those considerations that the Publications Office did not commit a manifest error when it assessed award sub-criterion No 4.1 and award criterion No 4.

e)     Award sub-criterion No 5.1, entitled ‘Adequacy, completeness and quality of the description of the organisation’

133    The applicant takes the view that it was wrongly criticised for having failed to provide information concerning meetings. It claims, first of all, that the word ‘meeting’ refers to a physical encounter and that the Commission cannot give it a different meaning, and goes on to state that its tender complied strictly with the specifications, referring in that regard to several documents in its tender.

134    It is necessary to determine whether the excerpts from the tender listed by the applicant undermine the Publications Office’s finding as to the lack of adequate information concerning meetings.

135    It is apparent from point 2.1.3 of the document entitled ‘Service Level Agreement’ annexed to the applicant’s tender that the applicant was indicating that meetings were going to be organised. However, it must be noted that the tender contains little information concerning the meetings and about how they would be organised.

136    The same applies to section 4.2 of chapter 4 (‘Proposed Procedures And Methods’), where the applicant merely presents a table including a schedule of the meetings it was intending to hold and the representatives who would participate in them. However, it must be observed that, strictly speaking, the tender remains unclear as to how the meetings were to be organised, and the general information concerning meetings contained in the applicant’s tender did not succeed in removing the Publications Office’s doubts on that point.

137    Furthermore, in the light of the imprecise content of the excerpts from the applicant’s tender mentioned above, it must be acknowledged that the Publications Office was entitled to query the nature of the detailed arrangements for the applicant’s participation in the meetings, in particular the question of the applicant’s participation in person at meetings, or whether the applicant would be represented or would take part in those meetings only via a computer conferencing system.

138    It must, therefore, be held that the Publications Office did not commit a manifest error of assessment in its evaluation of award sub-criterion No 5.1.

f)     Award sub-criterion No 5.3, entitled ‘Adequacy, completeness and quality of the methods proposed to fulfil the service level agreement (SLA)’

139    First of all, the applicant takes the view that the Publications Office was wrong to find that its tender did not indicate the methods by which it was intending to fix bugs. It claims that it committed itself to adhering strictly to the Publications Office’s procedures in relation to bug-fixing, and to have provided a clear outline of those procedures. Next, it submits that, contrary to the Commission’s contention, it was entitled to refer to another document if the specific information concerning the fulfilment of the service level agreement had already been described in that document. Lastly, the applicant denies that it provided a number of definitions without giving information as to how they would be applied, and states that, on the contrary, it clearly presented the approach as regards the project and service management procedures that it intended to apply in connection with the SEI-BUD contracts, in accordance with the specifications. The applicant states that it drew up a list of the personnel to be involved in the project, and explained how the proposed methods would be applied in practice.

140    In the first place, it is important to note that a comparison of point 4.3.1 of the specifications and chapter 2.2 of the applicant’s tender (Bug Fixing and Escalation Matrix) allows the conclusion to be drawn that, in the main, the tender reproduced the specifications. As stipulated by the third section, entitled ‘Methods’, of the ‘[p]roposal to fulfil the conditions of the Service Level Agreement’ in Annex 6.15 to the specifications, the tenderer was required to show his ‘specific … commitment’ in terms of the methods and procedures concerning the process of fixing bugs that he intended to apply. Nothing so specific appears in the applicant’s tender. The Publications Office cannot, therefore, be criticised for having taken the view that the applicant’s descriptions in relation to that aspect were insufficient.

141    In the second place, although Annex 6.15 to the specifications stated that it was permitted to refer to the document entitled ‘Tenderer’s approach to quality assurance and project management in software development and IT/IS projects’, any such reference could not be made in general terms. Yet the applicant was content to make such a reference without indicating the specific information that had already been described in that document.

142    It may be concluded from those considerations that the Publications Office did not commit a manifest error of assessment in its evaluation of award sub-criterion No 5.3.

g)     Award sub-criterion No 5.4, entitled ‘Adequacy, completeness and quality of the foreseen key performance indicators’

143    As a preliminary point, it must be noted that key performance indicators are parameters whose values allow the performance of a project to be monitored.

144    In the first place, the applicant denies having described the key performance indicators only in brief terms. However, it is apparent from Annex 6.15 to the specifications that tenderers were requested to indicate the key performance indicators intended to monitor the performance of a project and to describe the effective way in which those indicators would be measured and calculated. It must be noted that the key performance indicators were listed in a table included at point 5.2 of the applicant’s tender, where they are only briefly described. Consequently, there is no manifest error of assessment in that respect.

145    In the second place, as regards the complaint that the applicant did not indicate any reference values except for the two values already mentioned in the specifications, the applicant states that it provided sufficient key performance indicators, specifying the appropriate method for their calculation, in order to ensure the proper execution of the contract.

146    It must be observed that, in the table included at point 5.2 of the tender, the applicant explained what would be measured and how. The applicant nevertheless confined itself to suggesting formulae, without stating what the reference values would be (with the exception of two values). The applicant is wrong to take the view that those two values were sufficient, since the specifications stated unequivocally that reference values had to be stated for each key performance indicator.

147    In the third place, the Publications Office took the view that, in the absence of reference values, it was impossible for it to establish whether the key performance indicators were relevant or not. The applicant relies on the fact that it is wrong to attempt to evaluate the relevance of a key performance indicator on the basis of its reference value.

148    It must, first of all, be observed that the applicant has not put forward any convincing argument to show that, in the present case, the method of relying on a reference value in order to evaluate a key performance indicator is erroneous. The applicant has not, therefore, demonstrated that any manifest error of assessment was committed in that respect. Furthermore, on the assumption that there are other methods of determining whether or not the key performance indicators were appropriate, the Publications Office’s decision to determine the relevance of those indicators on the basis of reference values is within the scope of its broad discretion and cannot be called into question, provided that it has not been demonstrated that the preferred method is incorrect.

149    Consequently, it does not follow from the applicant’s arguments that a manifest error of assessment was committed in the evaluation of award sub-criterion No 5.4.

h)     Award sub-criterion No 5.5, entitled ‘Adequacy, completeness and quality of the foreseen infrastructure’

150    The applicant disputes the allegation that it referred to an earlier version of the software. In its view, it showed during the selection stage that it had sufficient infrastructure to be able to perform the contract, and maintains, in essence, that it was not permissible, therefore, to award more points to other tenderers solely on the ground that they had a more developed computer infrastructure. It claims, moreover, that its tender clearly stated that its technical infrastructure was in conformity with the existing infrastructure used for the SEI-BUD contract, as described in the specifications.

151    It must be noted that the applicant did not call into question the Publications Office’s finding that some of the software referred to in the tender constituted old versions. The applicant confined itself to pointing out that the question of technical infrastructure concerned the applicant’s capacity, that that capacity was evaluated during the selection stage and that it could not, therefore, be examined at the award stage. However, there was nothing to prevent the contracting authority from taking the technical infrastructure and, therefore, the proposed software into account at the award stage in order to evaluate the ‘Adequacy, completeness and quality of the foreseen infrastructure’ criterion. That issue of quality is entirely separate from the issue arising at the selection stage, namely that of the capacity to implement the project which is the subject of the call for tenders. In that regard, and contrary to what is claimed by the applicant, it is not at all apparent from the contested decision that the Publications Office took the view that the applicant’s infrastructure was not compliant. The fact that it awarded the applicant 3 points out of 5 by reference to that award sub-criterion would actually suggest the opposite.

152    Furthermore, the applicant does not adduce any evidence capable of calling into question the finding as to the absence of any reference to the ‘Eclipse’ software in the description of the technical environment, although it is mentioned in the document relating to the takeover phase.

153    Accordingly, it follows from those findings that no manifest error of assessment was committed in the analysis of award sub-criterion No 5.5.

i)     Award sub-criterion No 5.7, entitled ‘Adequacy, completeness and quality of the foreseen knowledge transfer’

154    The Publications Office noted that the applicant had provided for 10 days of training for newcomers during which the person being replaced would continue to perform his or her duties, but pointed out that the tender did not contain any information concerning reporting with regard to the handover of the person or as to whether formal handover files were to be produced and how.

155    In the applicant’s view, its proposal was in accordance with the Commission’s standard policy in all similar contracts and it would monitor staff by means of the key performance indicators, including the ‘quality of service’ indicator mentioned in chapter 5.2, ensuring the proper execution of the contract.

156    As the Commission pointed out, the tender does not contain any information concerning reporting with regard to the handover of the person or the existence of formal handover files. It follows from this that the Publications Office cannot be accused of having committed a manifest error of assessment in reducing by half a point the marks awarded to the applicant’s tender by reference to that award sub-‘criterion.

157    It follows from all the foregoing considerations that no manifest error of assessment was committed in the evaluation of the tender by reference to the award criteria and sub-criteria which are not affected by the inadequate statement of reasons discussed above. That plea must, therefore, be declared unfounded.

 Plea in law alleging misuse of powers

158    The applicant raises a plea alleging that there was a misuse of powers and relies on the alleged manifest errors of assessment committed by the Publications Office during the selection procedure in the tendering procedure at issue.

159    It should be borne in mind that, in accordance with settled case-law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose (Case C-‘331/88 Fedesa and Others [1990] ECR I-‘4023, paragraph 24, and Case C-‘400/99 Italy v Commission [2005] ECR I-‘3657, paragraph 38). Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim (Case 2/54 Italy v High Authority [1954] ECR 37, 54, and Case T-‘87/05 EDP v Commission [2005] ECR II-‘3745, paragraph 87).

160    It must be held that the applicant has not put forward any evidence to show that the Publications Office used its powers in the present case for purposes other than that of determining which tender to accept. At the very most, the applicant referred to the problems which it claims to have encountered with the Commission and the successful tenderer in connection with other public contracts or in the context of other framework contracts. Such arguments are not, however, relevant to the present case, since they are unsubstantiated. At the hearing, the applicant simply reiterated the assertion that the alleged errors or insufficiencies identified in its tender by the Publications Office were merely a pretext for not awarding it the contract, and failed to present any other relevant or objective evidence in that regard.

161    Consequently, the plea alleging misuse of powers must be rejected.

 Conclusions concerning the application for annulment of the contested decision

162    First of all, as has been observed in paragraphs 48 to 50 above, the statement of reasons contained in the tender with regard to award criteria Nos 1 to 5 and sub-‘criteria Nos 2.1 to 2.3, 3.1, 4.1, 5.1 and 5.3 to 5.7 is adequate. It has also been shown in paragraphs 80 to 157 above that no manifest error was committed by the Commission in the assessment of the applicant’s tender by reference to those award criteria and sub-criteria.

163    The fact that, as has been held in paragraphs 51 to 58 above, certain paragraphs of the contested decision are vitiated by an inadequate statement of reasons is not, in this instance, capable of entailing the annulment of the contested decision. That decision is supported to the requisite legal standard by grounds which are vitiated neither by an inadequate statement of reasons nor by a manifest error of assessment (see to that effect and by analogy, CommissionandFrance v TF1, cited in paragraph 59 above, paragraphs 26 to 29; Dalmine v Commission, cited in paragraph 59 above, paragraphs 145 and 146; and General Electric v Commission, cited in paragraph 59 above, paragraph 42).

164    Lastly, it appears that no breach of the principle of equal treatment or of the obligation of transparency has been established, or any misuse of powers demonstrated.

165    Since the applicant has been unsuccessful in all its pleas for annulment, the present action must be dismissed in so far as it seeks annulment of the contested decision.

 The claim for damages

 Arguments of the parties

166    The applicant claims damages in the amount of EUR 1 444 930, which represents the gross profit that would have resulted from the public procurement procedure at issue if it had been awarded the contract in question. Its claim is based on Articles 235 EC and 288 EC.

167    The Commission challenges the admissibility of the claim for damages on the ground that it does not comply with the conditions laid down by Article 44(1)(c) of the Rules of Procedure of the General Court. In any event, it contends that the action for damages should be declared unfounded.

 Findings of the Court

168    According to established case-law, in order for the Community to incur non-‘contractual liability, within the meaning of the second paragraph of Article 288 EC, on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon (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 [1997] ECR II-‘1239, paragraph 20). If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (Case C-‘146/91 KYDEP v Council and Commission [1994] ECR I-‘4199, paragraphs 19 and 81).

169    It is also apparent from the case-law that an action founded on damage resulting from loss of profit must be dismissed because the damage at issue was not real and existing, but future and hypothetical (see, to that effect, Case T-‘13/96 TEAM v Commission [1998] ECR II-‘4073, paragraph 76).

170    The Court must, therefore, consider whether the conditions giving rise to the Commission’s non-contractual liability are fulfilled.

171    In the present case, all the arguments put forward by the applicant to show that the contested decision is unlawful have been considered and rejected. In that regard, as has been mentioned in the analysis of the pleas for annulment of the contested decision, the fact that the statement of reasons for certain award sub-criteria was inadequate nevertheless does not entail the annulment of that decision. It cannot, therefore be held that the inadequacy of the statement of reasons can amount to wrongful conduct of such a kind as to entail the liability of the Commission.

172    It is apparent from the case-law cited in paragraph 168 above that the absence of just one of the conditions giving rise to the Community’s non-contractual liability is sufficient for such liability to be ruled out.

173    It follows from this that the claim for damages must be dismissed.

 Costs

174    According to the applicant, the Commission should be ordered to pay the applicant’s costs of the proceedings pursuant to Article 87(3) of the Rules of Procedure even if the Court were to dismiss the action. It takes the view that the Publications Office’s defective evaluation of its tender and the lack of reasons or information concerning the relative advantages of the successful tender forced it to bring an action before the Court.

175    The Commission contends that, pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure, the applicant has failed to establish that it was vexatiously or unreasonably caused to incur costs so as to justify a decision that the Commission should pay the costs. It contends that the Court should apply the general principles relating to costs contained in Article 87(2) of the Rules of Procedure.

176    It must be borne in mind that, 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. However, under the first subparagraph of Article 87(3) of those Rules, the Court may, where the circumstances are exceptional, order that the costs be shared.

177    The Court may order an institution whose decision has not been annulled to pay the costs on account of the inadequacy of that decision, which may have led an applicant to bring an action (see to that effect and by analogy, Joined Cases T-‘160/89 and T-‘161/89 Kalavros v Court of Justice [1990] ECR II-‘871, paragraphs 79 to 81; Case T-‘1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-‘143, paragraphs 96 to 98; and Case T-‘25/92 Vela Palacios v ESC [1993] ECR II-‘201, paragraphs 53 to 55). It must be acknowledged that, in the present case, the inadequacy of the statement of reasons for a number of award sub-‘criteria, set out in paragraphs 51 to 58 above, may have induced the applicant to bring the present action.

178    Accordingly, the Court considers it fair in the circumstances of the case to order the applicant to bear 90% of its own costs and to pay 90% of the costs incurred by the Commission, and the latter to bear 10% of its own costs and to pay 10% of the costs incurred by the applicant.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear 90% of its own costs and to pay 90% of the costs incurred by the European Commission, and the latter to bear 10% of its own costs and to pay 10% of the costs incurred by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.

Vilaras

Prek

Ciucă

Delivered in open court in Luxembourg on 9 September 2010.

[Signatures]

Table of contents

Legal context

Financial Regulation and implementing rules

Specifications

Background to the dispute

Procedure and forms of order sought by the parties

Law

The application for annulment

Plea in law alleging breach of the obligation to state reasons

– Arguments of the parties

– Findings of the Court

Plea in law alleging infringement of the principle of equal treatment and of the obligation of transparency

– Arguments of the parties

– Findings of the Court

Plea in law alleging manifest errors of assessment

a)  Award criterion No 1, entitled ‘Overall quality and relevance of the tenderer’s response’

b)  Award criterion No 2, entitled ‘Quality and relevance of the tenderer’s approach to quality assurance and project management in software development and IT/IS projects’

Award sub-criterion No 2.1, entitled ‘Project management approach: methods, scope, deliverables, reporting, controlling, risk, change, time and cost management’

Award sub-criterion No 2.2, entitled ‘Phases in software development’

Sub-criterion No 2.3, entitled ‘Testing methods and tools’

c)  Award criterion No 3, entitled ‘Quality and relevance of the tenderer’s proposal describing the start-up phase’

Award sub-criterion No 3.1, entitled ‘Adequacy and quality of the foreseen takeover plan (dates, activities, deliverables, resources)’

d)  Award criterion No 4, entitled ‘Quality and relevance of the tenderer’s proposal describing the handover phase’

Award sub-criterion No 4.1, entitled ‘Adequacy and quality of the foreseen handover plan (dates, activities, deliverables, resources)’

e)  Award sub-criterion No 5.1, entitled ‘Adequacy, completeness and quality of the description of the organisation’

f)  Award sub-criterion No 5.3, entitled ‘Adequacy, completeness and quality of the methods proposed to fulfil the service level agreement (SLA)’

g)  Award sub-criterion No 5.4, entitled ‘Adequacy, completeness and quality of the foreseen key performance indicators’

h)  Award sub-criterion No 5.5, entitled ‘Adequacy, completeness and quality of the foreseen infrastructure’

i)  Award sub-criterion No 5.7, entitled ‘Adequacy, completeness and quality of the foreseen knowledge transfer’

Plea in law alleging misuse of powers

Conclusions concerning the application for annulment of the contested decision

The claim for damages

Arguments of the parties

Findings of the Court

Costs

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* Language of the case: English.