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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

22 April 2015 (*)

(Public procurement - Tendering procedures - Informatics services, hardware and software licences - Rejection of a tenderer’s bids - Obligation to state reasons - Selection and award criteria - Manifest error of assessment - Non-contractual liability)

In Case T-554/10,

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,

applicant,

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), represented by S. Vuorensola and H. Caniard, acting as Agents, and by J. Stuyck and A.-M. Vandromme, lawyers,

defendant,

APPLICATION, first, for annulment of the decisions to reject the applicant’s bids for the call for tenders Frontex/OP/87/2010 relating to a framework contract for ‘ICT Services’ in the field of management technologies and information security (OJ 2010/S 66-098323) and for the call for tenders Frontex/OP/98/2010 concerning the Eurosur big pilot project in the field of information technologies and communications (OJ 2010/S 90-134098), and also of all associated decisions, including the decisions to award the contracts to other tenderers, and, secondly, for damages for the harm allegedly sustained as a result of the contracts being awarded to those tenderers,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 16 July 2014,

gives the following

Judgment

 Legal context

1        The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) was established by Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1). At the material time, that regulation had been amended by Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Regulation No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers (OJ 2007 L 199, p. 30).

2        According to Article 74(1) of the Financial Regulation of Frontex, in the version applicable at the material time, and the Implementing Rules of Frontex, procurement by that agency is subject to the relevant provisions 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 those laid down in Title V 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’).

3        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.’

4        Article 97 of the Financial Regulation provides:

‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating the content of the tenders shall be defined in advance and set out in the call for tender.

2. Contracts may be awarded by the automatic award procedure or by the best-value-for-money procedure.’

5        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.’

6        Article 130(3) of the Implementing Rules 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, if this is not specified in the contract notice …’

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

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

8        According to Article 138 of the Implementing Rules:

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

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

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

2. The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.

3. The contracting authority shall specify, in the contract notice or in the specification or in the descriptive document, the weighting it will apply to each of the criteria for determining best value for money …’

9        Article 149 of the Implementing Rules provides:

‘…

2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.

3. … Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing … and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request.’

 Background to the dispute

10      The applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law, active in the field of information technology and communications, and in particular in IT programs.

 1. Concerning the ICT call for tenders

11      On 3 April 2010, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2010 S 66) under the reference 2010/S 66-098323, Frontex launched an invitation for tenders for the supply of informatics services, hardware and software licences consisting of seven lots (‘the ICT call for tenders’). The object of that call for tenders was to conclude a framework contract with a maximum of five operators for a period of four years. In accordance with Article 97(2) of the Financial Regulation, the contract notice and the tender specifications provided that the framework contract would be awarded to the best-value-for-money bids. The estimated total value of purchases for the entire duration of the framework contract was EUR 40 000 000.

12      The contract notice provided that the informatics services in question were to be divided into seven lots:

-        Lot 1, concerning information systems;

-        Lot 2, concerning audio-videoconferencing systems;

-        Lot 3, concerning cryptographic devices and systems;

-        Lot 4, concerning ICT network devices and infrastructure;

-        Lot 5, concerning IT governance;

-        Lot 6, concerning enterprise content management systems; and

-        Lot 7, concerning ICT program management.

13      According to the tender specifications, each tenderer could submit bids for one or more lots, with the exception of Lot 7. Owing to a possible conflict of interest, a tenderer preparing an offer for Lot 7 was not allowed to participate in the tenders for the first six lots. Tenderers for any contract in each lot were to be selected according to a cascade procedure (‘the cascade’).

14      The tender specifications stated, moreover, that the contract award procedure consisted of three stages, each of them eliminatory: first, examination of the selection conditions designed to determine whether the tenderer had the financial, economic, technical and professional capacity to perform the contract (Section III.4 of the tender specifications); second, the evaluation of the technical bid in respect of the award criteria set out in Section III.5 of the tender specifications; and, third, the evaluation of the financial bid of the tenders which were technically admissible designed to identify the tender offering the best value for money (best ‘quality-price’ ratio) (Section III.5 of the tender specifications). Only tenders reaching the threshold of 70% of the available points during the technical evaluation were eligible for the financial evaluation (Section III.2 of the tender specifications).

15      According to the tender specifications, the technical evaluation stage for Lot 1, entitled ‘Information systems’, was to be carried out in accordance with the following six criteria:

-        ‘Quality of the Project Management Methodology proposed;

-        Reporting Procedure proposed for Monitoring by Frontex;

-        Proposal of Contract Management;

-        Proposal of SLA [Service Level Agreement];

-        Composition of proposed team;

-        Efficiency and Effectiveness of the proposed Hypothetical IT Solution.’

16      As regards Lot 6, entitled ‘Enterprise content management systems (ECM)’, the criteria for the technical evaluation stage of the tenders were as follows:

-        ‘Services

-        Quality of the Project Management Methodology proposed;

-        Reporting Procedure proposed for Monitoring by Frontex;

-        Level of Partnership with the Manufacturer;

-        Maintenance proposal;

-        Proposal of Contract Management;

-        Proposal of SLA [Service Level Agreement];

-        Composition of proposed team;

-        Efficiency and Effectiveness of the proposed Hypothetical IT Solution;

-        Products

-        Quality of offered products on the basis of the Products Evaluation Criteria.’

17      It was also provided, in Section III.5.2 of the tender specifications, that the score awarded for the technical evaluation was reached by adding the points allocated for services and products. It provided that ‘[p]oints summarised for “Products” and for each “Services” criteria must be equal or above 70% of the maximum for having a valid offer for each Lot’ and that ‘[t]he offers, which score less than [a total of] 70% for “Products” and for each “Service” criteria, will be eliminated from further consideration’.

18      It was also stated in the tender specifications that the contract would be awarded to the most economically advantageous tender established, for all lots, by weighing technical quality against the financial offer with a weighting of 60-40.

19      On 14 June 2010, the applicant bid for Lots 1 and 6 in the ICT call for tenders.

20      On 18 October 2010, Frontex adopted the award decision for each of the lots referred to in the ICT call for tenders. By two letters of 20 October 2010, the applicant was informed that its bids for Lots 1 and 6 had been rejected at the technical evaluation stage, as they had not reached the 70% threshold in each ‘Service’ or ‘Service and Product’ category.

21      By letter of 5 November 2010, Frontex supplied the applicant, following a request by it of 22 October 2010, with the names of the successful tenderers and the tenderers placed second for both lots, stating where, and to what extent, it was proposed to make use of subcontractors. That letter contained a table of the scores awarded for each award criterion to the applicant and for the tenderers accepted in the cascade and also the respective comments of the Evaluation Committee. It was accompanied by a non-confidential version of the evaluation report, at the end of which the names of the members of the Evaluation Committee were given.

22      By letter of 10 November 2010, the applicant claimed, in essence, that the Evaluation Committee had made a number of manifest errors of assessment in its evaluation of the applicant’s bids and that its rejection decisions were vitiated by a failure to state reasons. It reiterated its request relating to the financial offers of the successful tenderers. It also claimed that certain of the tenderers accepted in the cascade ought to have been excluded from the call for tenders pursuant to Articles 93 and 94 of the Financial Regulation.

23      On 1 March 2011, Frontex signed multiple framework contracts with the tenderers placed first for Lots 1 and 6. At the time of the lodging of the defence, Frontex was in the process of signing framework contracts with the undertakings ranked second for those two lots, which framework contracts it envisaged being signed by the end of March 2011.

 2. Concerning the call for tenders for the Eurosur big pilot project

24      On 8 May 2010, by a tender notice published in the Supplement to the Official Journal of the European Union (OJ 2010 S S90) under reference 2010/S 90-134098, Frontex launched an invitation to tender for the Eurosur big pilot project. The object of that call for tenders was to enter into a contract for the supply of IT services making it possible to create a persistent connection between Frontex and a number of national coordination centres by means of a fully extensible information sharing system. That contract was composed of four phases, the first of which was firm and the other three optional. The duration envisaged was 18 months with the possibility of two renewals. In accordance with the notice of tender and the tender specifications, the contract was to be awarded to the most economically advantageous tender. The total estimated value of the services for the duration of the contract came to EUR 2 000 000.

25      The tender specifications stated that the contract award procedure consisted of three stages, each of them eliminatory: first, examination of the exclusion conditions designed to determine whether the tenderer was eligible to participate in the procedure (Section III.3 of the tender specifications); second, application of the selection criteria, with the aim of determining whether the tenderer had the financial, economic, technical and professional capacity to perform the contract (Section III.4 of the tender specifications); and, third, application of the award criteria designed to identify the most economically advantageous bid (Section III.5 of the tender specifications). That last stage consisted of a technical evaluation and, for eligible tenders (reaching the threshold of 70 points during that technical evaluation), a financial evaluation.

26      According to the tender specifications, the technical evaluation was to be undertaken according to the four criteria set out in the evaluation grid which was annexed thereto, namely:

-        understanding of the requirements of the project;

-        implementation methodology;

-        staff capability;

-        project management plan.

27      It was provided, in Section III.5.1 of the tender specifications, that only offers which had received at least 70 points out of 100 during the technical evaluation stage would be admitted to the final evaluation phase.

28      The tender specifications also stated that the contract would be awarded to the most economically advantageous tender established by a percentage calculated according to a weighting between the points obtained in the technical phase and the proposed price multiplied by 100.

29      On 22 June 2010, the applicant bid for the Eurosur project.

30      On 16 September 2010, Frontex adopted the award decision concerning that call for tenders. By letter of the same date, the applicant was informed that its bid had been rejected because it was below the threshold of 70 points owing to ‘limited understanding of the experimental purpose of the project, limited information on the understanding of user’s requirements, and limited information on managing huge amounts of data’.

31      By letter of 27 September 2010, Frontex informed the applicant, following a request by it of 21 September 2010, of the name of the undertaking to which the contract had been awarded and the comments of the Evaluation Committee on that bid and the applicant’s bid. That letter contained a table of the scores awarded for each technical evaluation criterion for those two bids. It was accompanied by a non-confidential version of the evaluation report on which the names of the members of the Evaluation Committee were set out.

32      By letter of 28 September 2010, the applicant claimed, in essence, that the Evaluation Committee had made a number of manifest errors of assessment in the evaluation of its tender and that the rejection decision was vitiated by a failure to state reasons. The applicant reiterated its request relating to the financial offer of the successful tenderer and also its request to obtain a detailed copy of the evaluation report.

33      By letter of 4 October 2010, Frontex stated that the price of the successful bid would be made public by the publication of the award notice on Tenders Electronic Daily only after the contract had been signed. Relying on the fact that its letters of 16 and 24 September 2010 had already provided the applicant with adequate reasons, Frontex stated that it could not suspend the contract signature.

34      By a communication of the same date, the applicant essentially reiterated the requests set out in its letter of 28 September 2010, claiming, in particular, that the publication of the price of the successful bid would be too late for the applicant to rely on its rights before the General Court.

 Procedure and forms of order sought

35      By application lodged at the Court Registry on 26 November 2010, the applicant brought the present action.

36      Upon hearing the Report of the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, asked Frontex to produce certain documents and put written questions to both parties. The parties replied within the prescribed time-limits.

37      The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 16 July 2014.

38      The applicant claims that the Court should:

-        annul the decisions of Frontex to reject, first, its bids for Lots 1 and 6 of the ICT call for tenders and, second, its bid for the call for tenders for the Eurosur big pilot project (together, ‘the contested decisions’), and all associated decisions, including the decisions to award those contracts to the tenderers retained in the cascade;

-        order Frontex to pay it the sum of EUR 9 358 915 by way of compensation for the damage sustained on account of the tendering procedures in question;

-        order Frontex to pay the applicant damages of EUR 935 891 on account of the loss of opportunity and damage to its reputation;

-        order Frontex to pay the costs, even if the action is dismissed.

39      Frontex contends that the Court should:

-        declare the action for annulment unfounded;

-        declare the application for damages inadmissible or at least unfounded;

-        order the applicant to pay the costs.

 Law

 1. The application for annulment of the contested decisions

40      The Court notes, as a preliminary point, that, by its first head of claim, the applicant requests that the Court annul ‘FRONTEX[‘s] decision to reject the bid of the [a]pplicant, filed in response to the [call for tenders for the Eurosur big pilot project], communicated to the [a]pplicant by a letter dated 16 September 2010 and all further related decisions of FRONTEX including the one to award the respective contract to the successful contractor’. Similarly, by its second head of claim, the applicant requests that the Court annul ‘FRONTEX’[s] decision to reject the bid of the [a]pplicant, filed in response to Lot 1 and Lot 6 of the [ICT call for tenders], communicated to the [a]pplicant by two separate letters dated 20 October 2010 and all further related decisions of FRONTEX including the one to award the respective contracts to the successful contractors’.

41      The applicant specified at the hearing, in reply to a question put by the Court, that it was withdrawing its application for annulment of all further related decisions contained in the first and second heads of claim. It follows that this action relates only to the contested decisions. Accordingly, the scope of the present application for annulment must be restricted to an examination of the lawfulness of those decisions.

42      During the hearing, the applicant withdrew the plea entitled ‘Discriminatory treatment of tenderers. Non[-]compliance with exclusion criteria of the win[n]ing tenderers. Infringement of [Articles] 93(1)(f) and 94 of the [Financial Regulation] and the Principle of Good Administration’, in its entirety. It also stated that its observations, set out in paragraphs 20 to 22 of the application, on the principle of effective judicial protection in the field of tendering procedures for the award of public contracts constituted only the context of its action.

43      Having withdrawn the plea mentioned in paragraph 42 above, the applicant relies, first of all, on a plea alleging ‘Non[-]compliance of FRONTEX with the provisions of Article 100(2) of the Financial Regulation in the context of both [calls for tenders]’. Next, by a line of argument entitled ‘Manifest errors of assessment, failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee]), mix of selection and award criteria’, the applicant submits, in essence, that Frontex made manifest errors of assessment in evaluating its bid for each lot of the ICT call for tenders. By a line of argument entitled ‘Manifest errors of assessment, failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee])’, the applicant essentially submits that Frontex also made manifest errors of assessment in the evaluation of its bid for the call for tenders for the Eurosur big pilot project, and in respect of each of the evaluation criteria. That line of argument includes a complaint alleging inadequate reasoning in all the contested decisions for each of the various evaluation criteria.

44      Notwithstanding the overlaps between the first plea, which is common to both contracts at issue, and the arguments relating to alleged inadequate reasoning in the context of each of those contracts, the Court considers it appropriate, in the present case, to examine the line of argument presented by the parties, contract by contract and, in the context of the ICT call for tenders, lot by lot.

 (a) The pleas relating to the ICT call for tenders

 Lot 1

45      The applicant essentially raises two pleas in support of its action, the first alleging infringement of the obligation to state reasons, and the second alleging the existence of manifest errors of assessment.

46      By the first plea, the applicant complains that Frontex infringed the obligation to state reasons as provided for in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. It submits, in essence, that Frontex provided neither an adequate statement of reasons for rejecting its tender for Lot 1 nor adequate information with regard to the relative advantages of the tenders selected.

47      It must be noted at the outset that Frontex, like other EU bodies, has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 3 March 2011 in Evropaïki Dynamiki v Commission, T-589/08, EU:T:2011:73, paragraph 24 and the case-law cited).

48      Moreover, where an institution has a broad discretion, respect for the rights guaranteed by the 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 Courts verify whether the factual and legal elements upon which the exercise of the discretion depends were present (judgments of 21 November 1991 in Technische Universität München, C-269/90, ECR, EU:C:1991:438, paragraph 14, and 9 September 2010 in Evropaïki Dynamiki v Commission, T-387/08, EU:T:2010:377, paragraph 31).

49      As regards a decision rejecting the bid submitted by a tenderer in response to a public services contract, the obligation to state reasons is given concrete expression in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, from which it is apparent that a contracting authority meets its obligation to state reasons if it confines itself, first of all, to informing the unsuccessful tenderers immediately of the grounds for the rejection of their tender and, subsequently, notifies tenderers who expressly so request of the characteristics and relative advantages of the successful tender and of the name of the tenderer to whom the contract is awarded, within 15 days from receipt of a written request.

50      This manner of proceeding satisfies the purpose of the obligation to state reasons, laid down in Article 296 TFEU, whereby 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 enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgments of 14 July 1995 in Koyo Seiko v Council, T-166/94, ECR, EU:T:1995:140, paragraph 103, and Evropaïki Dynamiki v Commission, paragraph 48 above, EU:T:2010:377, paragraph 38).

51      Moreover, it should be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C-367/95 P, ECR, EU:C:1998:154, paragraph 63 and the case-law cited; judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, T-465/04, EU:T:2008:324, paragraph 49).

52      It should be added that compliance with the obligation to state reasons must be assessed on the basis of the information available to the applicant at the time the application was brought (judgment of 12 November 2008 in Evropaïki Dynamiki v Commission, T-406/06, EU:T:2008:484, paragraph 50; see also, to that effect, judgments of 25 February 2003 in Strabag Benelux v Council, T-183/00, ECR, EU:T:2003:36, paragraph 58; and Renco v Council, T-4/01, ECR, EU:T:2003:37, paragraph 96).

53      It is in the light of the abovementioned principles that the Court must examine whether Frontex infringed its obligation to state reasons. In order to determine whether, in this instance, the requirements of the obligation to state reasons that is laid down by the Financial Regulation and the Implementing Regulation have been complied with, it is necessary to examine the letters of Frontex of 20 October and 5 November 2010, which were sent to the applicant following the request for additional information about the evaluation of its tender and those of the other tenderers for Lot 1. In accordance with the case-law cited in paragraph 52 above, certain explanations, in particular on the presentation of the applicant’s tender, made by Frontex in the defence and which do not appear in those letters may not be taken into consideration by the Court at this stage of the proceedings.

54      In the present case, Frontex informed the applicant, by its letter of 20 October 2010, that it had rejected its bid for Lot 1. First of all, Frontex confined itself, in that letter, to stating that that bid had been rejected at the technical evaluation stage, on the ground that it had not reached the threshold of 70% for each criterion relating to the ‘service’ covered. In that letter, it stated the marks obtained during the technical evaluation of the applicant’s tender for each award criterion, namely 14 points out of 15 for criterion 1, entitled ‘Quality of the Project Management Methodology proposed’, 5 points out of 5 for criterion 2, entitled ‘Reporting Procedure proposed for Monitoring by Frontex’, 5 points out of 5 for criterion 3, entitled ‘Proposal of Contract Management’, 3.5 points out of 5 for criterion 4, entitled ‘Proposal of SLA’, 18 points out of 20 for criterion 5, entitled ‘Composition of proposed team’, and 11.2 points out of 20 for criterion 6, entitled ‘Efficiency and Effectiveness of the proposed Hypothetical IT Solution’. Next, it informed the applicant of the possibility of requesting additional information on the grounds for the rejection of its tender, in particular the characteristics and relative advantages of the successful tenders and the names of the tenderers to whom the contracts had been awarded. Lastly, it stated that certain details of the successful tenders would not be disclosed if 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.

55      Following the applicant’s request of 22 October 2010 for additional information concerning the contested decision, Frontex sent it a second letter, on 5 November 2010. It should be noted that Frontex replied to that request within the maximum period of 15 calendar days from receipt of that request, as provided for in Article 149(2) of the Implementing Rules.

56      The Court would point out that Frontex gave the names of the undertakings and consortia ranked top of the cascade for Lots 1 and 6, as provided for in Article 100(2) of the Financial Regulation. The letter of 5 November 2010 contained, for each lot, in the form of a table, the points awarded to the applicant’s tender and the points awarded to the two best-ranked tenderers in the cascade as well as the maximum number of points achievable per qualitative criterion. In addition, that letter contained brief comments on the characteristics and advantages of each of those three tenders for each qualitative criterion in respect of the two lots, which indicated the reasons why Frontex had considered the successful tenderers’ bids to be the best.

57      It is therefore necessary to examine whether the description of the characteristics and advantages of the tenders accepted which was contained in the letter of 5 November 2010 satisfies the requirements of Article 100(2) of the Financial Regulation.

58      It is true that the table relating to the scores awarded for Lot 1 enabled the applicant to compare directly, for each criterion, the marks awarded by Frontex to its tender and to those of the successful tenderers. Thus, a reading of that table indicates that the applicant’s tender obtained the same marks as that ranked first in the cascade for criteria 1 to 3 and 5, a slightly lower mark for criterion 4 (a 0.5 point difference) and a very low mark for criterion 6 (11.2 points as opposed to 18 points out of 20). On the other hand, the applicant’s tender obtained higher marks than the tender ranked second in the cascade for criteria 1 to 3 (a 1 point or a 0.5 point difference), an identical mark for criterion 5 and a considerably lower mark for criterion 6 (11.2 points as opposed to 14.45 points out of 20). None the less, it must be stated that those marks did not in themselves enable the applicant to genuinely ascertain the reasons why those marks were awarded to its tender or to the successful tenderers’ bids.

59      As has been explained above, the corollary of the discretion enjoyed by Frontex in the area of public procurement is a statement of reasons that sets out the matters of fact and law upon which it based its assessment. It is only in the light of those matters that the applicant is genuinely in a position to understand the reasons why those scores were awarded. Only such a statement of reasons therefore enables it to assert its rights and the Court to exercise its power of review (see, to that effect, judgment of 20 October 2011 in Alfastar Benelux v Council, T-57/09, EU:T:2011:609, paragraphs 38 and 39).

60      Consequently, it is necessary to examine whether the applicant could understand the reasons for the scores awarded by reference to the comments of Frontex on the tenders accepted and on the applicant’s tender, and to the non-confidential version of the evaluation report annexed to the letter of 5 November 2010.

61      Contrary to the applicant’s submission, Article 100(2) of the Financial Regulation does not necessarily require the contracting authority to make the evaluation report available to the unsuccessful tenderer or to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tender (see, to that effect, order of 20 September 2011 in Evropaïki Dynamiki v Commission, C-561/10 P, EU:C:2011:598, paragraphs 25 and 27). That provision does not preclude as a matter of principle a contracting authority from performing its obligation to state reasons by means of succinct comments on the successful and the rejected tender.

62      In that regard, it should be noted that the decision to reject the applicant’s tender for Lot 1 is not based on a comparison of its services and those of the tenderers accepted in the cascade, but on the fact that the applicant’s tender did not obtain the minimum number of points required (70% according to Section III.5.2 of the tender specifications) for technical evaluation criterion 6, in respect of which it obtained only 56% of the points achievable. None the less, it is apparent from the information in the letter of 5 November 2010 that the tender submitted by the applicant often obtained points and comments similar to the two bids of the tenderers accepted in respect of certain criteria of Lot 1. For example, the three tenders all obtained 18 points out of 20 for criterion 5 relating to the composition of the proposed team and the comments relating to that criterion are highly similar. By contrast, as regards the criteria in respect of which the applicant’s tender obtained a significantly lower number of points than the tenders accepted, the ‘negative’ comments indicate the shortcomings of that tender.

63      Thus, contrary to what the applicant claims, Frontex did not merely communicate to it ‘simple negative comments’ on its tenders. Those comments are admittedly succinct, but they cannot be considered ‘vague [and] of a telegraphic nature’. Indeed, for each lot, the applicant was able to compare directly its tender with those accepted and to understand that, even though all the tenders proposed best practices, those accepted were not affected by the disadvantages of its tender. In view of the fact that its tender was eliminated not following a comparison with the other tenders - and, in particular, with the two tenders accepted - but on the ground that the minimum threshold required for one of the criteria had not been reached, the applicant is therefore wrong to claim that Frontex was under an obligation to provide it with the Evaluation Committee’s report in full and copies of the tenders accepted in the present case (see, to that effect, order in Evropaïki Dynamiki v Commission, paragraph 61 above, EU:C:2011:598, paragraph 25).

64      As regards the applicant’s argument that the fact that Frontex did not communicate to it a full copy of the Evaluation Committee’s report and a copy of the tenders accepted infringes the principles of transparency and equal treatment, it overlaps in essence with the complaint based on Frontex’s alleged infringement of its obligation to disclose the relative advantages of the tenderers accepted in the cascade. In addition, the applicant does not allege any actual discrimination against it at any stage of the procedure. This complaint must therefore be rejected.

65      The same is true of the applicant’s argument that Frontex infringed Article 100(2) of the Financial Regulation by failing to provide it with the prices offered by the tenderers accepted in the cascade. The applicant is wrong to rely on judgments which are based on facts that differ from those of the present case, namely cases of contracts where the tender at issue had been compared with other admissible tenders and where the contracting authority had merely stated that the tender at issue did not offer the best quality-price ratio, in order to claim that the price of the tenders accepted formed part of the characteristics and advantages of those tenders. In the present case, the rejection decision is not based on a comparison of the services of the various tenderers, or on the quality-price ratio of the applicant’s tender for Lot 1, but on the fact that that tender did not obtain the minimum number of points required when the technical evaluation criteria were applied. Thus, it is apparent from the evaluation report that four tenderers - including the applicant - had made admissible tenders for the technical evaluation, but that only two of them exceeded the minimum threshold for admission to the next stage. According to the call for tenders, only tenders scoring at least 70% of the points in respect of each technical evaluation criterion were to be further examined in order to determine which tender offered the best value for money. Accordingly, Frontex cannot be criticised for having refused to communicate the prices of the tenders accepted to the applicant.

66      As regards, next, the applicant’s argument that Frontex did not examine its tenders for Lots 1 and 6, rejecting them on the basis of a misinterpretation, thus committing an error and displaying a lack of diligence, it must be stated that the applicant confuses the plea alleging infringement of the obligation to state reasons with the plea alleging manifest errors of assessment in the context of each lot.

67      At the hearing, in reply to a question put by the Court, the applicant, whilst maintaining all its arguments alleging inadequate reasoning (relating to evaluation criteria 1, 2, 4 and 5) and manifest errors of assessment (in respect of evaluation criterion 4) for Lot 1, recognised that only its line of argument relating to criterion 6 was relevant in the present case. Indeed, the applicant’s tender obtained sufficient marks, or even very good marks, for each of the other criteria, and for its total score, and it was because of the mark awarded for criterion 6, entitled ‘Efficiency and Effectiveness of the proposed Hypothetical IT Solution’, that its tender was rejected at the technical evaluation stage. Moreover, at the hearing, the applicant concentrated its submissions relating to Lot 1 on that criterion. In that regard, it should be recalled that the applicant obtained, for all the other technical evaluation criteria, either the maximum score or the same score as the tender ranked first according to the cascade, with the exception of the score awarded for criterion 4 which was slightly lower than that awarded to the tender ranked first (see paragraphs 54 and 58 above). It is therefore necessary, in accordance with the case-law cited in paragraph 59 above, to examine whether the applicant is genuinely in a position to understand the reasons why the score of 11.2 points out of 20 was awarded to it for criterion 6.

68      In the letter of 5 November 2010, Frontex stated the following about the response to that criterion in the applicant’s bid:

‘Efficiency: Best Practices are applied; much interaction and some overlapping with other lots services are not reflected in the proposed project delivery plan; no management is proposed to harmonise with other lots that are involved; the proposed solution takes for granted that contracts are active in other lots in order to deploy the solution; the solution … is based on a hardware/software architecture based on sTESTA, mainly for public administration and EU institutions. sTESTA is used but not quoted in the financial offer.

Effectiveness: There is a misunderstanding of the Lot 7 Services that [leads] to some erroneous interpretations with respect to the interaction with other lots involved in the proposal; nevertheless, the user ratio (administrative versus operational) has not been taken into consideration sufficiently.’

69      It is apparent from this that the Evaluation Committee made only one positive comment on the applicant’s tender for criterion 6, namely that best practices are applied. According to Section III.5.1 of the tender specifications, the highest marks for that criterion would be awarded to the highest value, calculated by multiplying the score awarded for effectiveness (the best use of resources for attaining the objectives) by the score allocated for efficiency (the best coverage of intended objectives) of the proposed solution. The applicant could not expect a high score, since its tender had received four negative comments and only one positive comment for the ‘efficiency’ element, and two negative comments for the ‘effectiveness’ element.

70      As regards the ‘efficiency’ element, it is apparent from the first three negative comments of the Evaluation Committee that that committee criticises the applicant for not having proposed a solid programme management structure, whereas the proposed solution presupposed either collaboration between several lots, or that it be integrated into the solutions provided for those other lots. Next, the Evaluation Committee criticises the tender in respect of criterion 6, inasmuch as it proposed sTESTA, as inappropriate in the present case, and states that sTESTA had not been mentioned in the financial bid.

71      It is clear, contrary to what Frontex seems to contend, that the applicant’s financial bid was referred to in the letter of 5 November 2010 as justification for the score awarded to its tender for criterion 6. However, the financial bid of the tenderers is not one of the criteria for the technical evaluation of the Lot 1 tenders, as those criteria are set out in Section III.5 of the tender specifications. Moreover, it is clearly apparent from the extract of the evaluation report that the applicant’s tender was eliminated at the technical evaluation stage and that its name is not among the tenderers whose financial bids and price lists were evaluated.

72      In addition, Frontex’s written pleadings and oral submissions reveal serious and manifest inconsistencies in relation to that comment.

73      In paragraph 117 of the defence, Frontex states that ‘[t]he fact that sTESTA has been mentioned in the [a]pplicant’s tender but was not quoted in the financial offer of its tender has been mentioned by the [Evaluation Committee] only as additional information, and in no case has this had any positive or negative impact on the evaluation of the Committee. By all means, this omission was strange and the Committee could not help but notice it’. In paragraph 52 of the rejoinder, replying to the applicant’s argument that Frontex had considered financial information during the technical evaluation stage, Frontex states that ‘this only concerned additional information which was included after the financial evaluation to highlight the inconsistency of the [a]pplicant’s tender’ and that ‘Frontex didn’t take into account sTESTA costs during the Award Criteria assessment given that no criteria and tools for considering or calculating them exist in the Frontex tender specifications’.

74      It should be observed that the two aforementioned paragraphs of the defence and rejoinder concern Lot 1, even though they were raised, at the hearing, in connection with a similar comment relating to Lot 6. In its reply to a written question put by the Court, Frontex stated that ‘paragraph 117 of the [d]efence concerns both Lots 6 and 1’.

75      At the hearing, Frontex acknowledged, in reply to a question of the Court, that those two paragraphs of its pleadings seemed to be inconsistent with, or even contradicted, the tender specifications. Frontex contended, for the first time, that they were the result of a typographical error. Thus, according to Frontex, the sentence in question should read: ‘sTESTA is used but not quoted in the technical offer’. However, not only had that explanation never been given previously, but in addition it does not help to enlighten the Court on the reasons which led Frontex to penalise the applicant’s tender for that crucial criterion, the score for which resulted in its being excluded from the following evaluation stage. It must be held that Frontex, which, as contracting authority, made the decision to reject the applicant’s tender for Lot 1, referred, in its letter of 5 November 2010, to the content of the applicant’s financial bid.

76      In any event, it is not possible to understand why, at that stage of the procedure, Frontex referred to that financial bid, although it should not have been opened or examined at the technical evaluation stage. That reference seems indeed to be contradicted by the course of events presented in the extract of the evaluation report. That report contains no indication that the applicant’s financial bid was opened by the Evaluation Committee, whereas it is apparent from that report that, for tenders admissible for the next stage of the evaluation, their financial bids were verified by the evaluators. Accordingly, the Court finds itself unable to establish whether the applicant’s financial bid was opened by the Evaluation Committee.

77      In view of the foregoing considerations, the Court finds that the statement of reasons for the contested decision in the context of Lot 1, as that statement emerges when the letters of 20 October and 5 November 2010 are read in conjunction, prevented both the applicant and the Court from ascertaining with sufficient certainty the evaluation criteria applied and therefore the reasons why its tender obtained only 11.2 out of 20 points for criterion 6.

78      Consequently, it must be concluded that Frontex’s comments in its letter of 5 November 2010 did not constitute an adequate statement of reasons, even when read in conjunction with the scores set out in the table.

79      It is apparent from the foregoing that the contested decision in the context of Lot 1 is vitiated by inadequate reasoning. The duty to state reasons for a contested decision is an essential procedural requirement, intended inter alia to ensure that the person adversely affected by the measure in question has the right to an effective remedy (see, to that effect, judgments of 28 October 1975 in Rutili, 36/75, ECR, EU:C:1975:137, paragraphs 37 to 39, and of 15 October 1987 in Heylens and Others, 222/86, ECR, EU:C:1987:442, paragraphs 15 and 16).

80      According to the case-law of the Court of Justice, where intended to ensure that the measures concerned are formulated with all due care and prudence, procedural requirements may be regarded as essential (judgment of 21 March 1955 in Netherlands v High Authority, 6/54, ECR, EU:C:1955:5, 103). In public procurement procedures, the right of an unsuccessful tenderer to an effective remedy against the decision awarding the public contract to another tenderer and the corresponding obligation on the contracting authority to communicate to the unsuccessful tenderer, upon request, the grounds of the decision must be regarded as essential procedural requirements within the meaning of the case-law cited above, in so far as those requirements dictate that safeguards be attached to the award decision so as to enable the impartiality of the tendering procedure which resulted in the decision to be effectively reviewed (judgment of 20 September 2011 in Evropaïki Dynamiki v EIB, T-461/08, ECR, EU:T:2011:494, paragraph 130).

81      In accordance with the case-law concerning infringement of essential procedural requirements, it must be found that Frontex’s failure to have regard for the essential procedural requirements pertaining to the contested decision must lead to the annulment of that decision (see, to that effect, judgment of 30 March 1995 in Parliament v Council, C-65/93, ECR, EU:C:1995:91, paragraph 21), without its being necessary to rule on the other pleas put forward by the applicant in the context of Lot 1.

 Lot 6

82      The applicant essentially raises two pleas in support of its action, the first alleging infringement of the obligation to state reasons, and the second alleging the existence of manifest errors of assessment. As regards the application of criterion 7, the applicant puts forward a complaint alleging confusion of the award and selection criteria both in the context of the second plea and under a separate heading.

83      By the first plea, which largely overlaps with the arguments put forward in connection with Lot 1, the applicant complains that Frontex infringed the obligation to state reasons as provided for in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. It submits, in essence, that Frontex provided neither an adequate statement of reasons for rejecting its tender for Lot 6 nor adequate information with regard to the relative advantages of the tenders selected.

84      In the light of the principles mentioned in paragraphs 47 to 52 above, it is necessary to examine whether, in the context of Lot 6, the requirements of the obligation to state reasons that are laid down by the Financial Regulation and the Implementing Regulation have been complied with. It is necessary, in the present case, to examine the letters of Frontex of 20 October and 5 November 2010, which were sent to the applicant following its request for additional information about the evaluation of its tender and those of the other tenderers for Lot 6. In accordance with the case-law cited in paragraph 52 above, certain explanations, in particular on the presentation of the applicant’s tender, made by Frontex in the defence and which do not appear in those letters may not be taken into consideration by the Court at this stage of the proceedings.

85      In the present case, Frontex informed the applicant, by its letter of 20 October 2010, that it had rejected its bid for Lot 6. Frontex confined itself, in that letter, to stating that that bid had been rejected at the technical evaluation stage, on the ground that it had not reached the threshold of 70% for each criterion relating to the ‘Service and Product’ covered. In that letter, it stated the marks obtained during the technical evaluation for each award criterion, namely 12 points out of 15 for criterion 1, entitled ‘Quality of the Project Management Methodology proposed’, 15 points out of 15 for criterion 2, entitled ‘Reporting Procedure proposed for Monitoring by Frontex’, 22 points out of 30 for criterion 3, entitled ‘Level of Partnership with the Manufacturer’, 16 points out of 20 for criterion 4, entitled ‘Maintenance proposal’, 12 points out of 15 for criterion 5, entitled ‘Proposal of Contract Management’, 14 points out of 20 for criterion 6, entitled ‘Proposal of SLA [Service Level Agreement]’, 18 points out of 25 for criterion 7, entitled ‘Composition of proposed team’, 14.7 points out of 30 for criterion 8, entitled ‘Efficiency and Effectiveness of the proposed Hypothetical IT Solution’, and 33.2 points out of 40 for criterion 9, entitled ‘Quality of offered products on the basis of the Products Evaluation Criteria’. As in respect of Lot 1 (see paragraph 54 above), Frontex informed the applicant of the possibility of requesting additional information on the grounds for the rejection of its tender and on the non-disclosure of certain details of the tenders accepted.

86      Following the applicant’s request of 22 October 2010 for additional information concerning the contested decision, Frontex sent it a second letter, on 5 November 2010. Frontex replied to that written request within the maximum period of 15 calendar days provided for in Article 149(2) of the Implementing Rules. As was stated in paragraph 56 above, Frontex gave the names of the undertakings and consortia ranked top of the cascade, as provided for in Article 100(2) of the Financial Regulation. It should be noted that that letter contained, for Lots 1 and 6, in the form of a table, the points awarded to the applicant’s tender and the points awarded to the two best-ranked tenderers in the cascade as well as the maximum number of points achievable per qualitative criterion (see paragraph 56 above). In addition, that letter contained brief comments on the characteristics and advantages of each of those three tenders for each qualitative criterion in respect of the two lots, thus indicating the reasons why Frontex had considered the successful tenderers’ bids to be the best.

87      It is therefore necessary to examine whether the description of the characteristics and advantages of the tenders accepted which was contained in the letter of 5 November 2010 satisfies the requirements of Article 100(2) of the Financial Regulation as regards Lot 6.

88      First of all, the Court observes that the table relating to the scores awarded for Lot 6 enabled the applicant to compare directly, for each criterion, the marks awarded by Frontex to its tender and to those of the successful tenderers. Thus, it is apparent from that table that the applicant’s tender obtained either the same marks (for criteria 2 and 9) as, or (for all the other criteria) marks lower than, those awarded to the tender ranked first in the cascade. Next, a reading of the table shows that the applicant’s tender obtained either the same marks (for criteria 5 and 9) as, or (for all the other criteria) marks lower than, those awarded to the tender ranked second in the cascade. Lastly, it is apparent from that table that the applicant’s tender received a much lower mark for criterion 8 (14.7 points out of 30) than the marks of the tenders accepted in the cascade (24.0 points each). None the less, in accordance with the principles set out in paragraphs 59 and 61 above, the Court considers that the marks set out in the table did not in themselves enable the applicant to genuinely understand the reasons why those marks were awarded to its tender or to the successful tenderers’ bids.

89      It is therefore necessary to examine whether the applicant could understand the reasons for the scores awarded by reference to the comments of Frontex on its tender and on the tenders accepted, and to the non-confidential version of the evaluation report annexed to the letter of 5 November 2010.

90      It is apparent from those two documents that the decision to reject the applicant’s tender for Lot 6 is not based on a comparison between its services and those of the tenderers accepted in the cascade. The applicant’s tender was eliminated following the technical evaluation because it had not obtained the minimum number of points required (70% according to Section III.5.2 of the tender specifications) for criterion 8, in respect of which it obtained only 49% of the points achievable. None the less, it is apparent from the information set out in the letter of 5 November 2010 that the tender submitted by the applicant received points and comments identical to the two bids of the tenderers accepted in respect of criteria 2 and 9. By contrast, for all the other criteria, in respect of which the applicant’s tender received a lower number of points than the tenders accepted, the ‘negative’ comments indicate the shortcomings of that tender, while the ‘positive’ comments, relating in particular to the level of detail and the[ir] structure, indicate the advantages of the tenders retained.

91      Those comments are admittedly succinct, but the applicant was able to compare directly its tender with those accepted and to understand that, even though all the tenders proposed best practices, those accepted did not display the shortcomings of its tender. In view of the fact that its tender was eliminated not following a comparison with the other tenders, but on the ground that the minimum threshold required for one of the criteria had not been reached, the applicant is wrong to claim that Frontex was under an obligation to provide it with the Evaluation Committee’s report in full, copies of the tenders accepted and the prices proposed in those tenders (see paragraphs 63 to 66 above).

92      At the hearing, in reply to a question put by the Court, the applicant, whilst maintaining all its arguments alleging inadequate reasoning (relating to evaluation criteria 2, 4 to 6 and 8) and manifest errors of assessment (in respect of evaluation criteria 1, 4, 7 and 8) for Lot 6, recognised that only its line of argument relating to criterion 8 was relevant in the present case. The applicant’s tender obtained sufficient marks for each of the other criteria, and for its total score. It was because of the mark awarded for criterion 8 that its tender was rejected at the technical evaluation stage. Thus, at the hearing, the applicant concentrated its submissions relating to Lot 6 on that criterion. It is therefore necessary, in accordance with the case-law cited in paragraph 59 above, to examine whether the applicant is genuinely in a position to understand the reasons why the mark of 14.7 points out of 30 was awarded to it for criterion 8.

93      In the letter of 5 November 2010, Frontex stated the following about the response to that criterion in the applicant’s bid:

‘Efficiency: Best practices are applied; much interaction and some overlapping with other lots services are not reflected in the proposed project delivery plan; no management is proposed to harmonise with other lots that are involved; the proposed solution takes for granted that contracts are active in other lots in order to deploy the solution; the solution is based on hardware/software architecture based on sTESTA, mainly for public administration and EU institutions.

Effectiveness: There is a misunderstanding of the Lot 7 Services that [leads] to some erroneous interpretations with respect to the interaction with other lots involved in the proposal; nevertheless the user ratio (administrative versus operational) has not been taken into consideration sufficiently; sTESTA and Windows 2003 Server are used but not quoted in the financial offer.’

94      Frontex’s comments for Lot 6 are virtually identical to those relating to the same criterion of Lot 1 (see paragraph 68 above). In line with what is stated in paragraphs 69 and 70 above, the applicant could not expect a very high score, since its tender had received only one positive comment out of eight for that criterion. By contrast with Lot 1, the applicant’s financial bid was referred to in relation to the ‘effectiveness’ element, but that bid clearly forms part of the statement of reasons for the mark awarded to it, contrary to the requirements of the tender specifications (see paragraph 71 above).

95      Frontex’s written pleadings and oral submissions once again reveal serious and manifest inconsistencies in relation to the comment that ‘sTESTA and Windows 2003 Server are used but not quoted in the financial offer’.

96      In paragraph 133 of the defence, Frontex merely referred to the arguments relating to the same criterion of Lot 1, including paragraph 117 of that defence (which is set out in detail in paragraph 73 above). In the rejoinder, Frontex does not put forward any specific argument relating to that criterion for Lot 6. However, in its reply to a written question put by the Court, Frontex cited paragraph 117 of the defence and stated that that comment also constituted additional information for Lot 6, but that it had not had any impact on the evaluation of the applicant’s tender.

97      At the hearing, Frontex contended, for the first time, that the reference to the applicant’s financial bid was the result of a typographical error and that the comment at issue ought to have read ‘sTESTA and Windows 2003 Server are used but not quoted in its technical offer’. According to Frontex, the applicant had not provided a description of the proposed products and solutions as required by the tender specifications. Notwithstanding some confusion in the oral submissions, Frontex stressed that the envelope containing the applicant’s financial bid for Lot 6 had not been opened and that there had been no financial evaluation of that bid.

98      In line with the analysis set out in paragraph 75 above, that explanation had never been stated previously, either in the two rounds of written pleadings or in the replies to the written questions put by the Court. Because of that inconsistency, the Court cannot establish whether the applicant’s financial bid was examined in the context of the technical evaluation, which the comment at issue seems to indicate even though the course of events presented in the extract of the evaluation report appears to indicate the contrary. In any event, the applicant is not in a position to ascertain the reasons why its tender obtained a very low mark for criterion 8, which resulted in its exclusion from the following evaluation stage.

99      Consequently, it must be concluded that Frontex’s comments in its letter of 5 November 2010 relating to Lot 6 do not constitute an adequate statement of reasons, even when read in conjunction with the scores set out in the table. That failure to have regard to essential procedural requirements pertaining to the contested decision must lead to the annulment of that decision, without its being necessary to rule on the other pleas and complaints put forward by the applicant in respect of Lot 6.

100    In view of the foregoing considerations, the first plea of the action which supports the application for annulment in the context of the ICT call for tenders must be upheld. Accordingly, that application must be upheld, and the contested decisions which reject the applicant’s tenders for Lots 1 and 6 respectively must be annulled.

 b) The pleas relating to the call for tenders for the Eurosur big pilot project

101    As regards the first plea, alleging infringement of the obligation to state reasons, the applicant refers to the arguments - which are common to both contracts at issue - mentioned in paragraph 43 above. It then raises a separate line of argument, entitled ‘Considerations related to the [call for tenders for the Eurosur big pilot project]. Manifest errors of assessment, failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee])’, which includes, inter alia, a complaint alleging an inadequate statement of reasons for all the marks awarded to its tender for that contract and therefore conflates the first and second pleas. The whole of that line of argument as it appears in the pleadings is presented below.

 Arguments of the parties

102    By its first plea, the applicant claims, first, that the explanations provided in the Evaluation Committee’s report were ‘telegraphic’ and imprecise in nature and were limited to mere negative comments. They therefore do not satisfy the obligations arising under Article 100(2) of the Financial Regulation, Article 149 of the Implementing Rules and the relevant case-law. Second, it maintains that it is essential that the full reports and also the tenders of the successful tenderers be sent to it so that it can understand the reasons why its tender was rejected by Frontex. In failing to communicate those documents, Frontex breached the principles of transparency and equal treatment. Third, the applicant claims that, as it submitted an admissible tender, Frontex was required to inform it of the price offered by the successful tenderers for the contracts at issue in so far as the price is one of the characteristics and one of the relative advantages by reference to their tenders.

103    By its second plea, the applicant disputes, in the first place, the Evaluation Committee’s assessment in relation to criterion 1, entitled ‘Understanding of the requirements of the project’, for which it obtained a score of 21 out of 30. It disputes the comment that its tender ‘shows a limited understanding of the experimental purpose of the project’, which is incorrect and entails a failure to state reasons. First of all, its tender was fully compliant with the tender specifications and with the requirements of that criterion. Next, it takes issue with the Committee for not having stated what the successful tenderer had proposed that was additional to or better than what it had proposed. Lastly, it refers to Sections 3.4.2.1, 2.2, 2.3.2, 2.3.3 and 3.4, and also to Figures 13, 19, 22 and 24 in its tender, which demonstrate that it considered the experimental nature of the project. Frontex thus made manifest errors of assessment.

104    In the reply, the applicant further contends that, contrary to Frontex’s assertion, there is no Article 10.6 in the tender specifications. Moreover, even on the assumption that Frontex intended the reference to be to Article 10.6 of the terms of reference, it introduced an a posteriori criterion by requiring that tenderers ought to have submitted ‘research and development activities, related to the core network communication, security, information presentation, etc.’.

105    In the second place, the applicant disputes, in essence, the Evaluation Committee’s assessment in relation to criterion 2, entitled ‘Methodology of the implementation’, for which it received a score of 15 out of 30.

106    First of all, the applicant claims that the Evaluation Committee does not substantiate the assertion that its tender ‘[falls] short on some of the topics’ or state what the successful tenderer had proposed that was additional to or better than what it had proposed. It therefore vitiated its assessment by a failure to state reasons. Next, the only example which the Evaluation Committee gives, relating to the management of a huge amount of data, is incorrect, in that the document entitled ‘Response to Award Criterion 2 - Implementation method’, in particular Sections 2 and 2.2 and page 40, fully satisfies that requirement. The Evaluation Committee thus made a manifest error of assessment. Lastly, in the reply, the applicant further submits that the processing of a huge amount of data is related to system implementation, which is clearly described in its tender.

107    In the third place, the applicant disputes, in essence, the Evaluation Committee’s assessment in relation to criterion 3, entitled ‘Staff capability’, for which it received a score of 16 out of 20. It disputes the comment that ‘insufficient information is provided on where the staff will be allocated’. First, that information is not required by the tender specifications in the context of this criterion; and, secondly, the document ‘Response to Award Criterion 4 - Project management plan’, and also Sections 3.2 and 6.2.1 of the applicant’s tender, state where the members of the proposed team will be located. The Evaluation Committee thus made a manifest error of assessment.

108    In the fourth and last place, the applicant disputes, in essence, the Evaluation Committee’s assessment in relation to criterion 4, entitled ‘Project management plan’, for which it obtained a score of 13 out of 20. It disputes the comment that ‘[the applicant’s tender] contains also potentially inconsistent conclusions for budget management’.

109    On the one hand, the applicant claims that the Evaluation Committee deducted seven points from its tender on the basis of arbitrary and unsubstantiated considerations. It did not identify any shortcoming or state what the other tenderers had offered that was additional to or better than its tender. Furthermore, the alleged inconsistencies in the tender exist only ‘potentially’.

110    On the other hand, the applicant’s tender clearly presented the methodology to be used for budget management that strictly complied with the tender specifications in the document ‘Response to Award Criterion 4 - Project management plan’, including Section 6.2 and the detailed budget control models.

111    In the reply, the applicant rejects Frontex’s assertion that its tender stated that part of the estimated scope of the work might be limited owing to a lack of funding. It submits that the proposed budget in the tender is a part of its methodological approach to ensure the monitoring and control of the project costs and does not indicate that the applicant intends to cut off part of the scope of work owing to insufficient funding.

112    Frontex rejects the applicant’s arguments relating to the statement of reasons for the contested decision; it observes that it has a broad discretion in assessing the factors to be taken into consideration for the purpose of deciding to award a contract following an invitation to tender. First, it maintains that it fully complied with its obligation to state reasons in the present case. Second, it defends all the Evaluation Committee’s assessments in relation to the applicant’s tender for the Eurosur big pilot project contract and asserts that it complied with the terms of the tender specifications.

 Findings of the Court

113    The applicant essentially bases its application for annulment on a plea alleging infringement of the obligation to state reasons and on a plea alleging the existence of manifest errors of assessment.

114    It is appropriate, in the first place, to examine the applicant’s arguments relating to the decision’s statement of reasons to reject its tender for that contract.

115    It must be noted at the outset that, by its first complaint, the applicant seeks to criticise Frontex’s refusal to debate with it the merits of its tender by comparison with those of the successful tender. In that regard, it is sufficient to recall that no contracting authority is obliged, on the basis of its duty to state reasons for a decision rejecting a tender, to enter into such a debate (see, to that effect, judgment of 1 July 2008 in AWWW v FEACVT, T-211/07, EU:T:2008:240, paragraph 43). Moreover, that fact cannot call in question, of itself, the legality of the decision (judgment of 12 July 2007 in Evropaïki Dynamiki v Commission, T-250/05, EU:T:2007:225, paragraph 78). Accordingly, the applicant cannot criticise Frontex for failing in its duty to state reasons because it refused to answer the questions and requests for clarification which the applicant had put to it after having received the letter of 27 September 2010 (see paragraph 31 above).

116    In order to determine whether Frontex complied with its obligation to state reasons, it is necessary to examine, in the light of the principles set out in paragraphs 47 to 52 above, the letter of 16 September 2010 (see paragraph 30 above) as well as the letter of 27 September 2010 and the evaluation report annexed thereto which Frontex sent to the applicant in response to its express request for additional information on the evaluation of its tender and the bid of the tenderer to whom the contract was awarded.

117    In the present case, it should be noted that the method applied by Frontex for the technical evaluation of the tenders was set out clearly in the tender specifications relating to the call for tenders at issue. In particular, according to Section III.5.1 of the tender specifications, tenders which received less than 70 points for that evaluation would be eliminated from further consideration. Thus, it specified, in a technical evaluation grid, the four award criteria and their respective weighting in the evaluation, that is to say, in the calculation of the total score.

118    First, as regards the letter of 16 September 2010, Frontex stated therein that the applicant’s tender had been rejected on the ground that it had not reached the threshold of 70% due to limited understanding of the experimental purpose of the project, limited information on the understanding of user’s requirements, and limited information on managing huge amounts of data. Next, it informed the applicant of the possibility of requesting additional information on the grounds for the rejection of its tender, in particular the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded. Lastly, it stated that certain details would not be disclosed if 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.

119    Second, further to the applicant’s letter of 21 September 2010, which contained a request for additional information on, in particular, the characteristics and relative advantages of the bid of the tenderer to whom the contract had been awarded, Frontex replied by letter of 27 September 2010. In that letter, Frontex provided the additional information requested and the non-confidential version of the evaluation report, doing so within the fifteen-day period prescribed by Article 149(2) of the Implementing Rules, namely on 27 September 2010.

120    It must be stated that Frontex indicated the name of the successful undertaking, as provided for in Article 100(2) of the Financial Regulation. Moreover, its letter contained brief comments on the characteristics and advantages of the applicant’s tender and of the successful tender. It also contained a table setting out the maximum scores achievable for each award criterion as well as the scores obtained for each of those criteria by the applicant’s tender and by that of the tenderer to whom the contract was awarded and their final scores.

121    The table set out in that letter shows that the scores obtained by the applicant were not higher in respect of any of those four criteria than those of the tenderer to whom the contract was awarded. The applicant’s tender obtained 21 points out of 30 for criterion 1, entitled ‘Understanding of the requirements of the project’, 15 points out of 30 for criterion 2, entitled ‘Implementation methodology’, 16 points out of 20 for criterion 3, entitled ‘Staff capability’, and 13 points out of 20 for criterion 4, entitled ‘Project management plan’. By contrast, the successful tender obtained almost the maximum points achievable for each criterion, namely 28 points out of 30 for criterion 1, 26 points out of 30 for criterion 2, 18 points out of 20 for criterion 3 and 18 points out of 20 for criterion 4. The applicant’s tender did not therefore obtain the minimum points required by Section III.5.1 of the tender specifications for admission to the next stage, namely the financial evaluation. The applicant only obtained a total of 65 points out of 100, whereas the tenderer to whom the contract was awarded obtained a total of 90 points out of 100.

122    The letter of 27 September 2010 also contained the specific comments from the Evaluation Committee on the applicant’s tender and that of the successful tenderer for each of the four award criteria. Thus, it is apparent inter alia from those comments, read in conjunction with the table mentioned in paragraph 121 above, that the successful tender had certain advantages over the applicant’s tender In particular, the Committee systematically identified shortcomings in the applicant’s tender, relating either to its understanding of the requirements of the project or to the implementation of the project. By contrast, the bid of the tenderer to whom the contract was awarded was considered to be ‘excellent’ for all those criteria.

123    Moreover, it is apparent from the non-confidential version of the evaluation report, annexed to the letter of 27 September 2010, that, of the fourteen tenderers whose technical bid was evaluated, nine did not reach the threshold of 70 points, including the applicant. Of the nine bids rejected, the points obtained by the applicant’s bid (65) were neither the lowest (55) nor the highest (68). In particular, it should be noted that, for the tender which obtained 55 points, the Evaluation Committee inter alia made comments essentially similar to those relating to the applicant’s bid inasmuch as they displayed the same shortcomings. It should also be observed that that committee’s comment, relating to a limited understanding of the experimental purpose of the project, was made in respect of seven of the nine bids rejected, including the applicant’s, but not in respect of any of the five bids which obtained scores exceeding the minimum threshold provided for by the tender specifications.

124    In the light of the foregoing, the Court finds that in those letters Frontex provided a sufficient statement of reasons as to why it did not select the applicant’s tender and set out the characteristics and relative advantages of the successful tenderer’s bid (see, to that effect, judgment of 5 October 2012 in Evropaïki Dynamiki v Commission, T-591/08, EU:T:2012:522, paragraph 86 and the case-law cited). Notwithstanding the brevity of the comments, the applicant could readily identify, on reading the letter of 27 September 2010, the reasons for which its tender had been rejected and compare them with the proposals of the successful tenderer. The specific comments made in respect of each of the four award criteria provided explanations about the aspects which Frontex considered to be imperfect. Accordingly, the complaint alleging that the statement of reasons is vague and imprecise cannot be upheld.

125    It follows that, as regards the evaluation of the applicant’s tender for the call for tenders for the Eurosur big pilot project, Frontex satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.

126    That finding cannot be invalidated by the applicant’s assertion that the Evaluation Committee did not specify clearly what was not included in its tender or what was not set out in sufficient detail in that tender, or how many points the Committee deducted from the tender on that ground and for what reason. As is apparent from paragraph 124 above, the statement of reasons in the present case was sufficient to satisfy the obligation to state reasons in the terms laid down by the legislature and the case-law, since that statement enabled the applicant to assert its rights before the Court.

127    As regards the second and third complaints of the first plea, the Court observes that the applicant’s tender was eliminated not following a comparison with the other tenders, but on the ground that the minimum threshold required for admission to the following evaluation had not been reached. In the light of the considerations set out in paragraphs 63 to 66 above, the applicant is wrong to claim that Frontex was under an obligation to provide it with the Evaluation Committee’s report in full, a copy of the successful tender and the price proposed in that tender.

128    It must be concluded that the statement of reasons put forward by Frontex enabled both the applicant to assert its rights before the Court and the Court to exercise its power of review. Accordingly, this plea must be rejected as unfounded.

129    In the second place, it is necessary to examine the plea alleging the existence of manifest errors of assessment. In this plea, the applicant essentially contests the validity of the assessments by the Evaluation Committee in respect of each of the technical evaluation criteria.

130    In that regard, it must be noted that the institutions have 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 and that the Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see paragraph 47 above).

131    It must also be noted that all the applicant’s complaints regarding the vague and laconic nature of some of the Evaluation Committee’s comments and the failure to communicate the characteristics and relative advantages of the successful tender were examined in the context of the first plea for annulment. The obligation to state reasons must be distinguished from the question whether the reasons given are sound, which goes to the substantive legality of the contested measure (see judgment in Evropaïki Dynamiki v Commission, paragraph 124 above, EU:T:2012:522, paragraph 157 and the case-law cited).

132    As regards evaluation criterion 1, the tender specifications require that each tenderer state, on the one hand, why it considers that it is best placed to conduct the ‘pilot’ project and, on the other, what approach it would take. The applicant obtained 21 points out of 30 for that criterion. In the letter of 27 September 2010, Frontex stated the following about the response to that criterion in the applicant’s tender:

‘Your proposal demonstrates a good understanding of the requirements of Frontex in terms of services and equipment; however it also shows a limited understanding of the experimental purpose of the project.’

133    The applicant contests the latter comment.

134    First, it is necessary to reject the applicant’s argument that the requirement to take into consideration the experimental nature of the project is arbitrary and that Frontex thus introduced ‘new imaginary requirements’ for the call for tenders for the Eurosur big pilot project. It is clear that that experimental nature was apparent even from the title of that call for tenders relating to a ‘pilot’ project and the contract notice stated that only the first stage of the contract was ‘firm’. In addition, the terms of reference of the project annexed to the tender specifications demonstrate that the project would be conducted incrementally. For example, the description of the background, set out right at the beginning of the terms of reference, states that the technical framework would be established gradually, according to the needs identified after trials and the uncertainty in that regard. As Frontex rightly observes, the experimental nature of the project is apparent from Section 10.6 of the terms of reference, which, by stating ‘the specific “bottom-up” approach chosen to implement the core EUROSUR information sharing network and the experimental, Research and Development, character of the entire project’, reproduces, to a large extent, the description of the background of the project. It follows that Frontex was entitled to expect that the tenderers’ bids mention that purpose in their documentation and that they address that purpose in the research and development activities related to communication, security, and presentation of information on the core network. The complaint alleging that requirements were introduced a posteriori cannot therefore succeed.

135    Second, the applicant relies on five sections (and their four figures) of its tender in support of its complaint that Frontex mistakenly found that it had not taken account of the experimental nature of the project.

136    In the first place, Section 3.4.2.1, entitled ‘3.4.2.l-EUROSUR Technical Office’, concerns the establishment and operation of a technical office at Frontex in order to manage the project. It must be stated that that section contains only one obvious reference in relation to experimentation, namely when it provides for ‘ad hoc interaction with Frontex staff on experimenting and extending the system’. The applicant is therefore wrong to claim that that document, which is less than two pages long, refers ‘extensively to research and development activities associated with the project’s execution’.

137    In the second place, Section 2.2 of the applicant’s tender, entitled ‘The EUROSUR Concept’, consists to a large extent of the description of the project. It is true that that section states that the implementation of the project consists of three stages the second of which targets ‘research and development in order to improve the performance of surveillance tools and sensors (e.g. satellites, unmanned aerial vehicles/UAVs, etc.), and developing a common application of surveillance tools’. However, contrary to what the applicant claims, that statement does not indicate in itself that the surveillance system will be improved by lessons learnt by practice and does not cater particularly to the innovative nature of the project.

138    In third place, Section 2.3.2, entitled ‘Stage II - Common Tools’, mentions the possibilities for improving the performance of the surveillance tools, but does not describe research activities and the processing of the experimental results in that regard. In that section, the applicant proposes to ‘facilitate’ interactions with potential suppliers of new tools for exchanging intelligence obtained by surveillance and mentions the possibility of gathering intelligence from other sources. However, it does not identify how those ‘common tools’ could specifically come about.

139    In the fourth place, Section 2.3.3, entitled ‘Stage III - Network’, specifies that the hypothetical information-sharing network mentioned therein relates only to the maritime field. It does, admittedly, contain certain references to the pilot nature of that project. However, and contrary to what the applicant claims, it does not provide any information on the manner in which the experimental results will be used to extend the functionality of the tool in the maritime field; it refers rather to the potential applications of the proposed tool.

140    In the fifth place, Section 3.4, entitled ‘Project Phases’, contains the four figures relied on by the applicant in order to depict ‘how the experimental results of each phase will be used as input for the next phase’. That section describes an iterative process driven by the information acquired for each phase of the project, but the experimental nature of that project is not highlighted.

141    It must be concluded from the foregoing that the sections and figures relied on by the applicant do admittedly include elements related to the fact that the Eurosur project is a pilot project, but that the applicant has failed to demonstrate the incorrectness of the Evaluation Committee’s comment in respect of the first award criterion, according to which the applicant’s tender showed a limited understanding of the experimental purpose of that project. In view of the broad discretion which Frontex has with regard to the factors to be taken into account for the purpose of awarding a contract following an invitation to tender (see paragraph 130 above), the first part of this plea must be rejected.

142    With respect to evaluation criterion 2, the tender specifications state that tenders will be examined in the light of the quality of the implementation proposed and of their methodological consistency in relation to the six sub-criteria listed in that criterion, including the management of huge amounts of data. The applicant obtained 15 points out of 30 for that criterion. In the letter of 27 September 2010, Frontex stated the following about the response to that criterion in the applicant’s bid:

‘Your proposal shows a satisfactory implementation quality and methodological consistency in the areas identified as relevant to the project execution, even though it falls short on some of the topics, e.g. on the information provided on managing huge amounts of data.’

143    The applicant disputes that assessment.

144    First of all, it is necessary to uphold Frontex’s argument that it was clearly specified in the terms of reference that tenderers were required to provide a detailed explanation of the approach taken to address each of the points set out in the evaluation grid for that criterion, including sub-criterion (e), relating to the processing of huge amounts of data.

145    Next, it is necessary to examine whether, as the applicant claims, it provided such an explanation in its tender. It relies on Section 2 of its tender in that regard without specifying where that document is to be found in the voluminous annexes to the application. It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function, or to speculate about the reasoning and precise observations, both in fact and law, that lie behind its action (see, to that effect, judgment of 9 September 2010 in Evropaïki Dynamiki v EMCDDA, T-63/06, EU:T:2010:368, paragraph 80).

146    On the assumption that the applicant seeks to rely on the section of nearly thirty pages, set out in pages 558 to 584 of Annex A.5 to its tender, it must be observed that, although that section sets out in detail the methodologies proposed for information-sharing and access to data for users, it does not mention the quantity of that data, as the tender specifications require. Neither Section 2.2 nor page 40 which are mentioned in the application cover large amounts of data. Page 40 merely indicates the ability of the system to handle the ‘expected volumes of data’. Moreover, as Frontex observes, the applicant’s tender does not indicate the proposed process to manage those large amounts of data.

147    Lastly, it must be stated that, by its argument in paragraph 47 of the reply, according to which the processing of a huge amount of data is related to system implementation, the applicant seeks to reinterpret the scope of sub-criterion (e) of the terms of reference. However, the scope of that criterion, as is clear from paragraph 142 above, is clear and unequivocal.

148    Accordingly, the second part of this plea must be rejected.

149    With respect to evaluation criterion 3, the tender specifications require that tenderers describe the composition of the proposed team and their role within the project. The applicant obtained 16 points out of 20 for that criterion. In the letter of 27 September 2010, Frontex stated the following about the response to that criterion in the applicant’s bid:

‘Additionally, your proposed team shows good evidence of having the training and experience to cope sufficiently with the project; although insufficient information is provided on where the staff will be allocated.’

150    The applicant disputes that latter assessment.

151    First of all, it is necessary to reject the applicant’s argument that such information was not required by the tender specifications. It is apparent from Section II.2.1 of those specifications that the technical evaluation would be carried out in accordance with Annex II, namely with the terms of reference. It follows from Section 10.4 of the terms of reference relating to the Eurosur technical office, which requires the presence of specific members of the team for certain phases of the project, that tenderers were required to indicate where the staff proposed would be allocated to work.

152    Next, it must be observed that the applicant relies on its reply to criterion 4 and not on the reply to criterion 3 (the relevant criterion in this instance), in order to demonstrate that its tender indicated where the members of the proposed team would be allocated. In any event, the parts relied on in that document contain very few details on the geographical allocation of the members of the team. In fact, in the large majority of cases, the applicant specifies the place of supply of a particular service and not the allocation of the staff concerned. Even in the section entitled ‘Geographical Coverage’, the applicant states merely that ‘[t]he Contractor will deliver the required contract services both offsite … and onsite [at Frontex]’ and that ‘the implemented system will be deployed on the participant NCCs [National Coordination Centres]’. Accordingly, it is also necessary to uphold Frontex’s argument that, in the applicant’s tender, the allocation of staff is presented solely according to the activity and by profile and without any indication of the place where the staff would be allocated for the entire duration of the contract.

153    Lastly, it should be noted that Frontex does not allege that the applicant provided no information on the place where staff would be allocated, but insufficient information in this regard. Such an assessment falls within the broad discretion afforded to the authority awarding the contract in respect of which the applicant has not established any manifest error of assessment.

154    As regards evaluation criterion 4, the tender specifications require that the management methodology proposed describe the measures envisaged to achieve the required results in all areas of the project, namely gathering of information, interaction with end-users, Frontex and its representatives, and schedule and deliveries of each project phase. The applicant obtained 13 points out of 20 for that criterion. In the letter of 27 September 2010, Frontex stated the following about the response to that criterion in the applicant’s bid:

‘Your proposal described a satisfactory management methodology for project coordination; however it contains also potentially inconsistent conclusions for budget management.’

155    It should be noted that all the applicant’s arguments relating to that criterion seek to challenge, in essence, the merits of the Evaluation Committee’s finding that its tender presented inconsistencies for the budget management of the project.

156    The applicant’s argument that its tender presented a methodology to be used for budget management that strictly complied with the tender specifications is irrelevant. Compliance with the requirements of those specifications is the minimum required for tenderers and does not preclude inconsistencies being found in the proposal.

157    As Frontex observes, in its response to criterion 4, the applicant’s bid stated as follows:

‘If the total available funds are less than the estimated total cost, then:

-      Re-cost the project;

-      Eliminate unneeded or excessive requirements until the remaining estimated cost is within the bounds of the remaining funds; or

-      Advise executive management that current estimated scope of work for the project is greater than initially estimated.’

158    It should be observed that the project budget, together with Frontex’s needs, were specified, first, in the contract notice and, second, in the tender specifications as supplemented by the terms of reference annexed to those specifications. Frontex did not therefore err in claiming that the tenderer for the contract for the Eurosur big pilot project has no possibility to reduce the budget during the implementation of the contract by eliminating those requirements, since the deliverables and the project budget were clearly specified in the call for tenders documentation. The applicant did not reply to those arguments, but merely referred to the ‘potential’ nature of the problems identified.

159    In the light of the foregoing, the Court finds that the applicant has not demonstrated the existence of comments by the Evaluation Committee which are incorrect by reference to evaluation criterion 4 and, therefore, liable to constitute a manifest error of assessment in the evaluation of its tender.

160    In the light of the foregoing considerations, the plea alleging manifest errors of assessment must be rejected as unfounded.

161    Since the applicant has been unsuccessful in all its pleas for annulment as regards the call for tenders for the Eurosur big pilot project, this action must be dismissed inasmuch as it seeks annulment of the decision to reject the applicant’s tender for that contract.

 2. The application for damages

162    On the basis of Articles 268 TFEU and 340 TFEU, the applicant claims, in essence, that, if the Court should find that Frontex acted unlawfully in rejecting its tenders, it should be awarded damages of EUR 9 358 915 corresponding to the gross profit that it would have been able to make from the contracts for Lot 1 (EUR 6 000 000) and Lot 6 (EUR 3 000 000) of the ICT call for tenders, and also from the contract for the Eurosur call for tenders (EUR 358 915). It also claims the sum of EUR 935 891 for the loss of opportunity and the damage to its reputation and credibility.

163    The applicant claims, next, that the Evaluation Committee’s evaluation is based on multiple manifest errors of assessment and that the fundamental principles and rules governing public procurement were infringed by the awarding authority. The application for damages is therefore well founded.

164    In accordance with settled case-law, for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct alleged against an institution, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgments of 11 July 1996 in International Procurement Services v Commission, T-175/94, ECR, EU:T:1996:102, paragraph 44; 16 October 1996 in Efisol v Commission, T-336/94, ECR, EU:T:1996:148, paragraph 30; and 11 July 1997 in Oleifici Italiani v Commission, T-267/94, ECR, EU:T:1997:113, paragraph 20).

165    Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, judgment of 15 September 1994 in KYDEP v Council and Commission, C-146/91, ECR, EU:C:1994:329, paragraphs 19 and 81).

166    It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the European Union have been satisfied.

167    It is also to be observed that the application for damages is based on the same unlawfulness as that put forward in support of the application for annulment of the contested decisions.

168    As regards the ICT call for tenders, it is true that the contested decisions relating to Lots 1 and 6 are vitiated by an inadequate statement of reasons and must be annulled for that reason. However, the inadequacy of the statement of reasons does not mean that the award of the contracts to the tenderers accepted constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect, judgment in Renco v Council, paragraph 52 above, EU:T:2003:37, paragraph 89). Indeed, there is no ground for concluding that Frontex would have awarded the contracts in question to the applicant if the contested decisions had been adequately reasoned. It follows that the application for damages in respect of the alleged harm suffered as a result of the contested decisions in the context of the ICT call for tenders must be dismissed as unfounded in so far as it is based on the inadequate statement of reasons for those decisions.

169    As regards the Eurosur call for tenders, the applicant has neither demonstrated, nor adduced evidence capable of enabling the Court to find with certainty, that its tender ought to have been admitted to the financial evaluation stage of the tenders. Since all the arguments on which the applicant has relied to demonstrate the unlawfulness of the decision rejecting its tender for the Eurosur big pilot project have been examined and rejected, the application for damages as regards the call for tenders for the Eurosur big pilot project must, in accordance with the case-law cited in paragraph 165 above, be rejected as unfounded.

170    It follows that the application for damages must be dismissed in its entirety.

 Costs

171    The applicant maintains that Frontex should be ordered to pay the costs, irrespective of whether the Court allows its action or dismisses it. It claims that it was forced to bring an action as a result of the incorrect evaluation carried out by Frontex, the failure to state reasons and its refusal to respond to the applicant’s requests for reasons and its observations.

172    Frontex contends that it has not unreasonably or vexatiously caused the applicant to incur costs and that that request should therefore be dismissed. Frontex claims that the applicant should be ordered to pay all or part of the costs incurred in preparing the defence, in so far as the application was excessively and unnecessarily complex.

173    Under the first subparagraph of Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the General Court may order that the costs be shared or that each party bear its own costs.

174    As the action has been successful in part, the Court will make an equitable assessment of the circumstances of the case and hold that the applicant should bear 50% of its own costs and pay 50% of the costs incurred by Frontex, and that Frontex should bear 50% of its own costs and pay 50% of those incurred by the applicant.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Annuls the decision of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) of 18 October 2010 to reject the bid of Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, filed in response to call for tenders 2010/S 66-098323, for Lot 1 (Information systems), for the supply of informatics services, hardware and software licences;

2.      Annuls the decision of Frontex of 18 October 2010 to reject the bid of Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, filed in response to call for tenders 2010/S 66-098323, for Lot 6 (Enterprise content management systems), for the supply of informatics services, hardware and software licences;

3.      Dismisses the action as to the remainder.

4.      Orders Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear 50% of its own costs and pay 50% of the costs incurred by Frontex, and Frontex to bear 50% of its own costs and pay 50% of those incurred by Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.

Delivered in open court in Luxembourg on 22 April 2015.

[Signatures]

Table of contents

Legal context

Background to the dispute

1. Concerning the ICT call for tenders

2. Concerning the call for tenders for the Eurosur big pilot project

Procedure and forms of order sought

Law

1. The application for annulment of the contested decisions

(a) The pleas relating to the ICT call for tenders

Lot 1

Lot 6

b) The pleas relating to the call for tenders for the Eurosur big pilot project

Arguments of the parties

Findings of the Court

2. The application for damages

Costs

* Language of the case: English.

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