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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

15 September 2016 (*)

(Public service contracts — Tender procedure — Supply of services for the development of a knowledge and information management platform — Software development services and maintenance of availability and efficiency of computer services — Refusal to rank the applicants in first place — Selection criteria — Award criteria — Obligation to state reasons — Manifest errors of assessment — Access to documents — Non-contractual liability)

In Case T‑481/14,

European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),

Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),

represented initially by E. Siouti and M. Sfyri, and subsequently by M. Sfyri and A. Lymperopoulou, lawyers,

applicants,

v

European Institute of Innovation and Technology (EIT), represented initially by M. Kern, B. Győri-Hartwig and P. Juanes Burgos, and subsequently by B. Győri-Hartwig and P. Juanes Burgos, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers,

defendant,

APPLICATION, firstly, on the basis of Article 263 TFEU for annulment of the EIT’s decision of 14 April 2014 ranking the tender submitted by the applicants in the context of an invitation to tender relating to computer and related services in second place, and for annulment of the EIT’s letter of 25 April 2014 by which it refused to communicate the names of the members of the evaluation committee and, secondly, on the basis of Article 168 TFEU, for damages,

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,

Registrar: M. Junius, Administrator,

having regard to the written part of the procedure and further to the hearing on 17 March 2016,

gives the following

Judgment

 Background to the dispute and contested decisions

1        By a notice dated 9 August 2013, published in the Supplement of the Official Journal of the European Union (OJ 2013, S 154-267516), under reference No 38/2013/OP/EITPROC, the European Institute of Innovation and Technology (‘the EIT’), which was established by Regulation (EC) No 294/2008 of the European Parliament and of the Council of 11 March 2008 establishing the EIT (OJ 2008 L 97, p. 1), launched an invitation to tender relating to computer and related services.

2        The invitation to tender covered four lots, the second of which related to the supply of development and services. It had two objectives: first, to support the EIT by developing high-quality software; and, second, to maintain a high level of availability and efficiency of the computer services.

3        The requirements of the invitation to tender were set out in the tender specifications, point 6.1 of which concerned exclusion criteria, point 6.2 selection criteria and point 6.3 award criteria.

4        The technical evaluation of tenders was based on four qualitative award criteria, a score of 100 points being achievable for those criteria.

5        The sub-criteria for those four award criteria and the weighting applied to them for lot 2 were set out in a standard submission form in Annex 3 of the tender specifications (‘the standard submission form’).

6        On 30 September 2013, the applicants, European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, submitted a tender relating to lot 2 of the invitation to tender (‘the applicants’ tender’).

7        On 10 December 2013, the EIT sent the applicants a request for clarification concerning the information which they had supplied in relation to the selection criteria, to which the applicants replied on 18 December 2013.

8        By letter of 11 April 2014 (‘the decision of 11 April 2014’), the EIT informed the applicants that their tender had been ranked second. In that letter, the EIT sent the applicants extracts from the evaluation report concerning the evaluation of their tender by reference to the technical award criteria and sub-criteria, the score which their tender had obtained for those criteria, the score obtained for the financial criterion, the total score obtained in application of the award formula and information about the procedure for requesting further information and the procedure for lodging a complaint against its decision.

9        On the same day, European Dynamics Luxembourg wrote to the EIT requesting further information. It asked to be informed, in particular, of the identity of the successful tenderer and the composition of its consortium, including sub-contractors, the financial score obtained by that tenderer, the scores awarded to that tenderer for each criterion and an analysis of the strengths and weaknesses of their tender for each award criterion by comparison with the successful tender, a copy of the evaluation report relating to their tender and that of the successful tender, and the names of the members of the evaluation committee.

10      By letter of 25 April 2014 (‘the letter of 25 April 2014’), the EIT informed the applicants of the name of the successful tenderer and the composition of the consortium, provided explanations concerning each technical award criterion and sub-criterion (including the scores awarded) and the financial score awarded to the successful tenderer, extracts from the evaluation report, relating in particular to the results of the evaluation of the exclusion, selection and award criteria received by the applicants and by the successful tenderer. In that letter, the EIT also refused to communicate the names of the members of the evaluation committee.

11      On 12 May 2014, the applicants again wrote to the EIT, asking it, in particular, to clarify the score awarded to their tender for the technical award criteria, criticising the evaluation methodology which the EIT had used, suggesting that it had made numerous manifest errors of assessment and again asking to be informed of the names of the members of the evaluation committee.

12      By letter of 26 May 2014 (‘the letter of 26 May 2014’), the EIT replied to the applicants’ letter of 12 May 2014. In its reply, it provided them with, in particular, further information about the score awarded to them for the technical award criteria, and again refused to communicate the names of the members of the evaluation committee.

 Procedure before the General Court and forms of order sought

13      By application lodged at the Court Registry on 20 June 2014, the applicants brought the present action.

14      By a decision of the President of the Ninth Chamber of 24 November 2015, taken pursuant to Article 89 of the Rules of Procedure of the General Court, the parties were asked to answer questions and the EIT was asked to submit a document. The parties answered those questions in writing within the prescribed period. The EIT submitted the document in question, whilst asking for it to be treated as confidential vis-à-vis the applicants. The EIT stated in that regard that it was requesting the adoption of measures of inquiry ordering the production of a document under Article 91(b) of the Rules of Procedure and for that document to be treated as confidential vis-à-vis the applicants under Article 103 of the Rules of Procedure but that, if such measure of inquiry were not to be adopted, it would not object to its being communicated to the applicants. On 19 February 2016, the document submitted by the EIT was communicated to the applicants, who were asked to submit their observations on it. On 1 March 2016, they submitted their observations and requested the General Court to adopt measures of inquiry pursuant to Article 91 of the Rules of Procedure.

15      The parties presented oral argument and their replies to the Court’s oral questions at the hearing on 17 March 2016.

16      The applicants claim that the Court should:

–        annul the decision of 11 April 2014, and all of its other decisions relating to that invitation to tender, including the decision to award the contract to the tenderer whose tender was ranked first;

–        annul the decision refusing to disclose the composition of the evaluation committee, contained in the EIT’s letter of 25 April 2014;

–        order the EIT to make reparation for the damage sustained by the applicants, amounting to EUR 158 430.40, owing to the loss of an opportunity to be awarded a contract in the context of the call for tenders;

–        order the EIT to pay the costs.

17      The EIT contends that the Court should:

–        declare the action for annulment of the decision of 11 April 2014 inadmissible or, at the very least, unfounded;

–        declare the action for annulment of the letter of 25 April 2014 inadmissible or, at the very least, unfounded;

–        declare the claim for damages unfounded;

–        order the applicants to pay the costs of the present proceedings.

 Law

18      It is appropriate to examine: (i) the actions for annulment; (ii) the application for damages; and (iii) the applications for the adoption of measures of inquiry.

I –  The actions for annulment

19      The applicants are applying for annulment of: (i) the decision of 11 April 2014, including the decision to award the contract to the tenderer ranked first; (ii) the EIT’s letter of 25 April 2014; and (iii) the decisions related to the EIT’s decision of 11 April 2014.

A –  The action for annulment of the decision of 11 April 2014, including the decision to award the contract

20      The applicants put forward four pleas in law in support of their actions for annulment.

21      In the first place, they maintain that the EIT infringed Article 110 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the Financial Regulation’) and Article 149 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1) (‘the Implementing Rules’). They also allege that the EIT infringed its obligation to state reasons.

22      In the second place, they state that the evaluation method used by the EIT does not comply with Articles 105, 110 and 113 of the Financial Regulation and Article 138 of the Implementing Rules.

23      In the third place, they state that, in the evaluation of their tender and the tender ranked first with respect to the technical award criteria, the EIT made manifest errors of assessment.

24      In the fourth place, they submit that the EIT infringed the rules on conflict of interest for the members of the evaluation committee and the provisions of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

25      Regarding the applicability of the provisions relied on as against the EIT, first of all, it must be borne in mind that under Article 21(1) of Regulation No 294/2008, the EIT is to adopt its financial rules in accordance with the Financial Regulation.

26      Under Article 74 of the decision of the Governing Board of the EIT of 20 April 2009 adopting the Financial Rules of the EIT, as amended by the decision of the Governing Board of the EIT of 20 December 2011, the procedures for the award of public contracts launched by the EIT were governed by 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), and Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of the Financial Regulation (OJ 2002 L 357, p. 1). However, in the light of Article 212 of the Financial Regulation and Article 289 of the Implementing Rules, that article of the decision of the Governing Board of the EIT of 20 April 2009 should be construed as referring, as from 1 January 2013, to the provisions of the Financial Regulation and the Implementing Rules.

27      According to Article 85 of the decision of the Governing Board of the EIT of 27 December 2013 adopting the Financial Rules of the EIT, which is applicable as from 1 January 2014, Titles V of the Financial Regulation and the Implementing Rules, which include Articles 105, 110 and 113 of the Financial Regulation and Articles 138 and 149 of the Implementing Rules, apply in respect of the award of public contracts.

28      Secondly, it must be borne in mind that, under Article 13(6) of Regulation No 294/2008 read in conjunction with the decision of the Governing Board of the EIT of 17 October 2008 concerning transparency and access to documents of the EIT, the provisions of Regulation No 1049/2001 are applicable to requests for access to documents submitted to the EIT.

29      The Court considers it appropriate to begin by examining the second plea in law, concerning the evaluation method used by the EIT and to examine, secondly, the first and third pleas. The arguments put forward under the first plea are directed at the evaluation committee’s observations concerning point 5.3.3 of the standard submission form, whilst the arguments put forward under the third plea also relate to inter alia the evaluation committee’s observations on the same point. Thirdly, the fourth plea in law will be examined.

1.     The second plea in law: the evaluation method used by the evaluation committee

30      This plea is directed at the evaluation method used by the evaluation committee, according to which the tenderers’ tenders were assessed in relation to each technical award sub-criterion in the light of three elements: (i) their focus in the light of the context of the question formed a part (a weighting of 20%); (ii) their specificity in the light of the context of which the tender formed a part (a weighting of 30%); and (iii) their overall value (a weighting of 50%). For each of those elements, the scores were to be determined with the use of a range consisting of the scores ‘excellent’ (100%), ‘good’ (80%), ‘fair’ (60%), ‘poor’ (30%) and ‘very poor’ (0%).

31      The applicants argue that, by using those elements and weighting them and by using a non-linear scoring system, the EIT infringed Articles 105, 110 and 113 of the Financial Regulation and Article 138 of the Implementing Rules, adding that the EIT attempted to conceal its use of this evaluation method.

a)     First part: the use of coefficients relating to focus, specificity and overall value and a harmonised scoring system

32      The applicants submit that the evaluation committee infringed Articles 105 and 113 of the Financial Regulation and Article 138(3) of the Implementing Rules by using elements of focus, specificity and overall value and a harmonised scoring system, although they were not set out in the tender specifications. They learned of those new evaluation criteria and the scoring system only when they received the EIT’s letter of 11 April 2014. The scoring system described in the tender specifications was changed considerably by the application of those criteria and that scale. Had they been aware, they would have requested further information about the criteria and the scale and would have taken them into account in their tender. In view of the limit placed on the length of tenderers’ answers and the slight difference between the final score awarded to the successful tender and the applicants’ tender, knowledge of those elements and the scoring system was decisive for the final result of the award.

33      The EIT disputes those arguments.

34      It must be borne in mind as a preliminary point that, under Article 102(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget must respect the principles of transparency, proportionality, equal treatment and non-discrimination.

35      Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions. The principle of transparency, which is its corollary, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraphs 110 and 111, and of 23 November 2011, bpost v Commission, T‑514/09, not published, EU:T:2011:689, paragraph 65).

36      Article 105 of the Financial Regulation provides that tender documents are to give a full, clear and precise description of the subject of the contract and specify the exclusion, selection and award criteria applicable to the contract.

37      Under Article 113(1) of the Financial Regulation, the authorising officer is to 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.

38      Under Article 138(3)(b) of the Implementing Rules, the tender specifications must specify at least the award criteria and their relative weighting or, where appropriate, the decreasing order of importance, if this is not specified in the contract notice.

39      The first paragraph of Article 149(3) of the Implementing Rules provides:

‘The contracting authority shall specify, in the contract notice or in the specification or in the descriptive document, the weighting it will apply to each of the criteria for determining best value for money. That weighting may be expressed as a range with an appropriate maximum spread.’

40      According to the case-law, the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure and, a fortiori, not to amend them in any way during the tender procedure (judgments of 18 October 2001, SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 43, and of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraphs 92 and 93).

41      However, it is also clear from the case-law that the Court has not established a total or absolute ban on contracting authorities’ specifying in more detail a criterion previously brought to the tenderers’ attention and giving it weighting Accordingly, it is possible for a contracting authority to determine, after expiry of the time limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions apply, namely, that that subsequent determination, firstly, does not alter the criteria for the award of the contract set out in the tender specifications or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (judgment of 21 July 2011, Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraphs 32 and 33).

42      Therefore, where an evaluation method satisfies those requirements, neither the Financial Regulation nor the Implementing Rules oblige the Commission to divulge it beforehand (see, to that effect, judgment of 23 November 2011, bpost v Commission, T‑514/09, not published, EU:T:2011:689, paragraph 86).

43      It is in the light of those considerations that it must be determined whether in the present case the EIT infringed Articles 105 and 113 of the Financial Regulation and Article 138 of the Implementing Rules by taking account, in the evaluation of the tenderers’ tenders in relation to the various award sub-criteria, of the elements of focus, specificity and overall value of the tenderers’ indications and by giving them a weighting of 20%, 30% and 50% respectively.

44      In that regard, first of all, it should be noted that point 6.3 of the tender specifications sets out the technical award criteria and their relative weighting, point 5 of the standard submission form gives the technical sub-criteria and their relative weighting, point 6.3.2 of the tender specifications gives the financial award criteria and point 6.4 gives the final award formula, including the weighting of the tender’s quality and price. The EIT thus gave the award criteria and their relative weighting in the tender, as required by Articles 105 and 113 of the Financial Regulation and Article 138(3) of the Implementing Rules.

45      Secondly, it should be observed that the elements of focus, specificity and overall value of the tenderers’ indications and the scoring system to be applied to them are not set out explicitly in the tender specifications.

46      However, as stated in paragraph 41 above, the use of such an evaluation method does comply with Articles 105 and 113 of the Financial Regulation and Article 138 of the Implementing Rules, inasmuch as, first, it does not amend the award criteria defined in the tender specifications or the contract notice; second, it does not contain elements which, had they been known at the time the tenders were being drawn up, would have influenced how that was done; and, third, it was not adopted taking into account elements which were liable to have a discriminatory effect on any of the tenderers.

47      Regarding the last condition, it should be noted that the applicants have not put forward any argument showing that the method used by the evaluation committee could have a discriminatory effect.

48      Next, the applicants submit that, had they been aware of that method, they would have asked the EIT to provide them with further explanations regarding each of those elements and would have taken account of them in their tender, emphasising the aspects of their tender that would have been decisive with that method being used.

49      In that regard, it should be noted as a preliminary point that neither the condition relating to non-amendment of the award criteria nor the one relating to non-influence on how tenders are drawn up as interpreted in the case-law referred to in paragraph 41 above is aimed at ruling out the use of a method that has not been communicated beforehand, under which elements originating in tendering documents or generally accepted evaluation criteria are applied and a scoring system is established for that purpose. The purpose of such a method is to harmonise the manner in which the various tenders are evaluated in order to guarantee equal treatment. Tenderers must therefore expect such a method to be used.

50      In the present case, the elements used by the evaluation committee were sufficiently clear from the tender specifications or at least formed part of generally accepted evaluation criteria.

51      As regards the element of the specificity of the tenderers’ indications in the light of the context of which the tender forms a part, it is apparent from point 3.1 of the tender specifications that the EIT was seeking a proposal specifically adapted to its needs, the author of which demonstrated that it could support it in the achievement of its strategic objectives, that it included its context and expectations and its medium-term strategy and the technical solutions liable to assist it. Contrary to the applicants’ submissions, the tenderers therefore had to expect account to be taken of the importance given to the specificity of their information in the light of the EIT’s requirements.

52      As regards the element of the focus of the tenderers’ indications in the light of the context of which the question forms a part, the limitation on the length of the indications as set out in the tender specifications (one to two pages per sub-criterion) encouraged tenderers to answer as concisely as possible; this was, in any event, a generally accepted evaluation criterion.

53      The overall value of the tenderers’ answers is also a generally accepted criterion, as good overall quality of the services offered is required under any tendering procedure for services.

54      In the light of those considerations, the conclusion is that, in the present case, the method used satisfied the conditions arising from the case-law referred to in paragraph 41 above.

55      It follows that, contrary to the applicants’ submissions, Articles 105 and 113 of the Financial Regulation and Article 138(3) of the Implementing Rules did not preclude the evaluation committee from using the elements of focus, specificity and overall value and a harmonised scoring system in order to evaluate the tenders in relation to the various quality-related sub-criteria.

56      The first part of the second plea must therefore be rejected.

b)     Second part: the use of a non-linear scoring system

57      This part of the plea is directed at the scoring system applied by the evaluation committee, under which, for the elements relating to the focus, the specificity and the overall value of the tenderers’ answers, a scale of five scores was to be applied, consisting of the scores ‘excellent’ (100%), ‘good’ (80%), ‘fair’ (60%), ‘poor’ (30%) and ‘very poor’ (0%).

58      The applicants state that the use of such a scale does not comply with Article 102 and Article 110(2) of the Financial Regulation on the ground that the evaluations were limited to five possible scores for each coefficient and it was not possible to award scores in between the scores allowed for on the scale. Such an approach distorts the actual advantages of each tender. Consequently, it does not comply with the principles of transparency, proportionality and equal treatment and results in the contract’s not being awarded to the tender offering the best value for money. Given the minimal gap between the final scores awarded to the tender ranked first and their tender, that aspect was decisive for the final award result.

59      The EIT disputes those arguments.

60      It should be observed in that regard that neither the Financial Regulation nor the Implementing Rules contain a provision obliging a contracting authority to use a scoring system providing for a linear scale going from 0 to 100% (‘linear scale’).

61      On the contrary, according to the case-law, the awarding authorities have a broad discretion with respect to the factors to be taken into account for the purpose of adopting a decision to award a contract following an invitation to tender. The contracting authority has that broad discretion throughout the procurement procedure, including in the choice and evaluation of the award criteria (see judgment of 19 November 2014, European Dynamics Luxembourg and Evropaïki Dynamiki v Europol, T‑40/12 and T‑183/12, not published, EU:T:2014:972, paragraph 46 and the case-law cited).

62      That power allows a contracting authority to select the scoring system it uses, which may be a system providing for a more limited scoring system than a linear scale. A limited scale may in fact simplify the evaluation process.

63      The contracting authority’s discretion is limited by the relevant provisions and therefore inter alia by Article 110(2) of the Financial Regulation, according to which the contract must be awarded to the tender offering the best value for money, and by Article 102 of that regulation, which provides that the principle of equal treatment must be observed.

64      However, the arguments put forward by the applicants do not establish that the scale used by the evaluation committee did not take sufficient account of those principles. The points for the four technical award criteria were awarded taking into account the points awarded for various sub-criteria. For each of those sub-criteria, the evaluation committee had to assess, on the basis of the scale of five scores described in paragraph 57 above, the focus of the tenderers’ indications in the light of the context of which the question formed a part, their specificity in the light of the context of which the tender formed a part and the overall quality of their tender. In those circumstances, any rounding errors resulting from the use of the scale of five scores cannot be regarded as excessive with regards to the degree of detail of the evaluation and the simplification of the evaluation process achieved with such a scale.

65      In the light of those considerations, the conclusion is that, by using a scale of five scores to evaluate the elements of focus, specificity and overall quality for each of the technical sub-criteria, the EIT did not infringe Article 102 of the Financial Regulation or Article 110(2) thereof.

66      This conclusion is not called into question by the applicants’ argument to the effect that, in other tendering procedures, EU institutions and agencies applied a linear scale. It should be noted in that regard that examples submitted by the EIT show that such a method is not applied systematically by those institutions and agencies. In any event, the mere fact that, in certain cases, a percentage-based approach was adopted by EU institutions and agencies does not prove that the EIT exceeded the limits on its discretion in that regard.

67      Therefore, the second part of the second plea in law must be rejected.

c)     The third part: concealment and lack of clarity in the evaluation method

68      The applicants maintain that the EIT attempted to conceal the evaluation method used by the evaluation committee, that it did not explain how the evaluators understood and applied the various terms, that the evaluation terms were not sufficiently clear and that they seemed to overlap.

69      In the first place, if the applicants are relying on those arguments in order to demonstrate that, had they been informed of the terms relating to focus, specificity and overall quality and of the scoring system before submitting its tender, they could have adapted it, that line of argument must be rejected: reference is made to the findings made in paragraphs 48 to 55 above.

70      In the second place, even if the applicants are seeking, by their argument that the EIT attempted to conceal the evaluation method even in the letter of 26 May 2014, to allege infringement of the obligation to state reasons, it too must be rejected.

71      It must be borne in mind in that context that the obligation to state reasons, laid down in Article 296(2) TFEU and provided for specifically with respect to public procurement by Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules, requires that the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights; and, on the other, to enable the Court to exercise its supervisory jurisdiction (see judgment of 10 September 2008, Evropaïki Dynamiki v Commission, T‑465/04, not published, EU:T:2008:324, paragraphs 45 to 48 and the case-law cited).

72      It is apparent from the applicants’ letter of 12 May 2014 that they were able to infer the method used by the EIT from the indications in its letters of 11 and 25 April 2014. Moreover, on the basis of their arguments the Court is able to exercise its power of judicial review of the lawfulness of the decision of 11 April 2014.

73      Consequently, this argument must also be rejected.

74      Therefore, the third part of the second plea must be rejected, as must the second plea in its entirety.

2.     First and third pleas: manifest errors of assessment, infringement of Article 110 of the Financial Regulation and Article 149 of the Implementing Rules and infringement of the obligation to state reasons

75      Under the third plea, the applicants submit that the EIT’s evaluation of their tender and the tender ranked first in terms of the technical award criteria is vitiated by manifest errors of assessment and that it failed to provide a sufficient statement of reasons for its decision. That plea is broken down into four parts, directed at the evaluation of the technical award criteria set out in points 5.1 to 5.4 of the standard submission form.

76      Under the first plea, the applicants submit that the EIT infringed Article 110 of the Financial Regulation and Article 149 of the Implementing Rules, as well as the obligation to state reasons. Those arguments, directed at the evaluation committee’s observations relating to point 5.3.3 of the standard submission form will be examined under the second complaint of the third part of the third plea, directed at the technical award criterion set out in 5.3.3 of the standard submission form.

77      Before examining the four parts put forward by the applicants, it can be helpful to recall the relevant provisions and case-law, highlight the principal requirements set out in the tender specifications and identify which letters from the EIT are to be taken into account.

a)     Preliminary observations

 Relevant provisions and case-law

78      Under Article 110(1) of the Financial Regulation, contracts are to be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders.

79      Under Article 149(2) of the Implementing Rules, to determine which tender offers the best value for money the contracting authority is to take into account the price quoted and other quality criteria justified by the subject of the contract, such as technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.

80      Thus, as the Commission enjoys broad discretion in the evaluation of the award criteria (see paragraph 61 above), review by the EU judicature must be confined to verifying whether the rules on procedure and the requirement to state reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers.

81      As for a contracting authority’s obligation to state reasons, beyond the principle referred to in paragraph 71 above, it must be remembered that it is apparent from Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules that a contracting authority fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008, Evropaïki Dynamiki v Commission, T‑465/04, not published, EU:T:2008:324, paragraph 47 and the case-law cited).

82      It also follows from the case-law that, although it is apparent from the provisions referred to in paragraph 81 above that an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract, the content of a third letter may also be taken into account when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the successful tenderer. However, the grounds set out in such a letter must not undermine the statement of reasons provided in the first two letters (see judgment of 10 September 2008, Evropaïki Dynamiki v Commission, T‑465/04, not published, EU:T:2008:324, paragraphs 59 and 75 and the case-law cited).

83      It is also important to bear in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations (see judgment of 10 September 2008, Evropaïki Dynamiki v Commission, T‑465/04, not published, EU:T:2008:324, paragraph 49 and the case-law cited).

 The principal requirements provided for in the tender specifications

84      As evidenced by point 3.1 of the tender specifications, the EIT was seeking a proposal specifically adapted to its needs, which would support it in the achievement of its strategic objectives as set out in its Triennial Work Programme (TWP), given its context and expectations and its medium-term strategy and the technical solutions liable to assist it. In point 3.2 of the tender specifications, explicit reference was made to the knowledge and innovation communities (KICs).

 Which letters from the EIT may be taken into account

85      In the present case, the EIT sent letters to the applicants on 11 and 25 April and 26 May 2014. Given the case-law referred to in paragraphs 81 to 83 above, account should be taken of the EIT’s observations set out in the letters of 11 and 25 April 2014 and in its letter of 26 May 2014, inasmuch as they are restricted to providing further detail as to the reasons contained in the earlier letters.

b)     The first part: the criterion set out in point 5.1 of the standard submission form

86      The technical award criterion set out in point 5.1 of the standard submission form concerns the quality of the tenderer’s tender in terms of the overall management of the services. Tenderers were asked to submit their proposals in respect of the four sub-criteria set out in points 5.1.1 to 5.1.4 of that form.

87      The applicants submit that the evaluation committee’s observations concerning their answers in respect of the sub-criteria set out in points 5.1.1, 5.1.2 and 5.1.3 of the standard submission form are vitiated by manifest errors of assessment.

88      The EIT disputes those arguments.

 The complaint directed at the sub-criterion set out in point 5.1.1 of the standard submission form

89      Point 5.1.1 of the standard submission form required tenderers to answer the following question:

‘How do you propose to manage the phase-in of the contract (e.g. during the first months) in order to be in a position to provide the best service to EIT [in] the shortest possible time? Please describe the necessary steps needed to take over the development of the applications and the systems administration and how to set up the systems and the organisation to be operationally ready.’

90      The applicants answered that question in part Q.5.1.1 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.1’.

91      The EIT’s letter of 11 April 2014 indicates that, in that reply, the evaluation committee observed:

‘The focus of the answer in the context of the question is excellent, specificity to the context of the tender is poor and the overall value of the answer is good.

A detailed timeline has not been provided, but concrete steps are given.

No reference to EIT and KIC [knowledge innovation communities] activities are provided.

Overall a comprehensive but not a substantial approach that could potentially result to high costs, is described.

The proposal is targeted at larger-sized institutions.’

92      In its letter of 26 May 2014, the EIT observed, in essence, that in order to avoid ineffective and general solutions, explanations were required from the tenderers as to their approach in adapting their tender to the EIT.

93      The evaluation committee gave the applicants’ tender a score of 2.76/4 for this sub-criterion.

94      The applicants argue that the evaluation committee’s comment that their tender was allegedly targeted at larger-sized institutions is vitiated by a manifest error of assessment.

95      In the first place, they submit that their tender corresponded to the nature of the call for tenders, which concerned a framework contract. It was global so as to cover all possible tasks and specific contracts that could be requested in the context of the framework contract.

96      It should be observed in that regard that, in their reply, the applicants mentioned the EIT several times. However, the evaluation committee did not make a manifest error in finding that their reply merely described a general approach for the start-up phase of the contract, without taking account of the EIT’s specific situation. As correctly observed by the evaluation committee, the applicants’ tender did not refer specifically to activities of the EIT or the KICs. Nor did it take account of the fact that the EIT was a small-size agency.

97      Contrary to the applicants’ assertions, that finding is not called into question by the fact that the call for tenders concerned a framework contract. That in no way precluded the applicants from taking account of the activities of the EIT or the KICs in their tender.

98      In the second place, the applicants submit that the allegedly high number of phases, for example in the take-over, is defined not in relation to the size of the client, but in relation to the expected degree of quality. Those steps are imposed by all professional methodologies and best practices and must be observed, irrespective of the size of the project or the client. Any different approach would favour tenders with serious lacunae in terms of quality.

99      In that context, firstly, it should be observed that, as regards the element of the focus of the answer, the evaluation committee endorsed the level of detail of the indications as a positive point, as is apparent from its observation about the indication of concrete steps and the comprehensiveness of the approach and the score given for the focus of the tenderers’ answer.

100    Secondly, given the limited importance of the EIT’s size, limited means and costs that may result from as comprehensive approach as the one described by the applicants, it is clear that the evaluation committee did not make a manifest error in finding that a more simplified, specific and targeted approach would have been better suited to its needs as a small-scale agency. In that context, it should also be observed that, as rightly pointed out by the evaluation committee, in their tender the applicants had not provided a detailed timeline that might have enabled the EIT to have a more specific clearer idea of the implementation of the start-up phase and its concrete steps.

101    Therefore, contrary to the applicants’ assertions, the evaluation committee’s observation about the high number of various phases or steps planned by them for the start-up phase of the contract is not manifestly incorrect.

102    In the third place, the applicants submit that they use the same solid, complete and high-quality methodology for all contracts of this nature with other EU institutions and bodies, including clients the same size as the EIT, yet they do not give any specific example in which they applied that approach with a similar-sized agency. Consequently, this argument must also be rejected.

103    In the fourth place, the applicants submit that the evaluation committee did explain sufficiently the shortcomings in their tender and did not justify the lower score given in accordance with the technical specifications.

104    In that regard, the reasons set out in paragraph 91 above explain sufficiently the reasons why the applicants’ tender received a score of only 2.76/4 for the sub-criterion in question, namely the lack of a detailed timeline, the failure to take into account the EIT’s and the KICs’ situation and the risk that the detailed approach proposed by the applicants would entail high costs. In that context, it should also be remembered that it is clear from the case-law that a contracting authority cannot be required to send tenderers a detailed summary of how each detail of its tender was taken into account when the tender was evaluated (judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21).

105    As all of the arguments directed at the evaluation committee’s observations about the sub-criterion in point 5.1.1 of the standard submission form must be rejected, this complaint must be rejected.

 The complaint directed the sub-criterion set out in point 5.1.2 of the standard submission form

106    Point 5.1.2 of the standard submission form asked tenderers to answer the following question:

‘How do you grant that third parties can work actively on the future development of the solution provided?’

107    The applicants answered that question in part Q.5.1.2 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.1’.

108    It is apparent from the EIT’s letter of 11 April 2014 that the evaluation committee observed the following with respect to that answer:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is poor and the overall value of the answer is fair.

Documentation is not mentioned.

No architecture is mentioned.

“Source code transferred” is included.

No mention of ownership.

The answer is generic, with no reference to EIT’s stakeholders.’

109    In its letter of 26 May 2014, the EIT stated that the applicants’ answers in its tender were generic and had not explained who the stakeholders were, how and why they should have been considered in that context, why the actions were important, what the architecture was and who owned the intellectual property.

110    The evaluation committee gave the applicants’ tender a score of 2.2/4 for this sub-criterion.

111    The applicants submit that some of those observations are manifestly incorrect.

112    In the first place, they submit that the evaluation committee’s observations that ‘documentation is not mentioned’ and that ‘no architecture is mentioned’ in their tender are manifestly incorrect, as documentation and architecture were expressly referred to in the tender.

113    Firstly, the applicants are correct in pointing out that in their answer to the question in point 5.1.2 of the standard submission form, the term ‘documentation’ is stated.

114    In their answer, the applicants stated that their approach comprised the following phases:

‘–      Preparation: Identification, collection and storing of all project artefacts, including tools, documentation, preparation of the training sessions, etc.;

–       Implementation: Transfer of project artefacts, deliverables as well as project knowledge (via training and ad hoc technical meetings);

–       Transfer of IT [information technology] applications: This phase involves the transfer of the IT applications to a third party, including source code, reports and documentation.’

115    They further stated with respect to training of technical staff:

‘Delivery of the entire set of the documentation (systems specifications, test plans, user manuals, code and patches, etc.).’

116    The applicants further indicated that the phase of transfer of IT applications involved the transfer of documentation.

117    Secondly, the applicants stated the following in their answer to the question in point 5.1.2 of the standard submission form,:

‘The tenderer will present all aspects of its methodology, the activities that should be undertaken, architecture and strategy, possible risks, etc.’

118    However, contrary to the applicants’ assertions, that wording in their answer does not demonstrate that those observations by the evaluation committee are manifestly incorrect.

119    Those observations should be read in the light of, firstly, the question in point 5.1.2 of the standard submission form, which is aimed at identifying tenders allowing third parties to work actively on future developments; secondly, the evaluation committee’s final comments to the effect that the applicants’ answer was generic, without any adaptation being made for the EIT’s stakeholders; and, thirdly, the EIT’s explanation in its letter of 26 May 2014, to the effect that the indications in the applicants’ tender were generic and did not explain who the stakeholders were or why that could be taken into account in that context. Read in the light of those elements, the observations about documentation and architecture must be construed as referring to the fact that the applicants referred to documentation and architecture only in an abstract manner, without offering specific indications which might have enabled the committee to assess whether the documentation and architecture envisaged by them allowed third parties to work actively on future developments in the solution provided.

120    Yet the arguments put forward by the applicants do not establish that those observations are vitiated by a manifest error of assessment.

121    It is clear that the applicants’ indications on this point were still very limited. Inter alia, they did not give any indications about the specific nature of the documentation or architecture; nor did they elaborate on how they could be a tool to assist in developments to be carried out by third parties.

122    Therefore, the applicants’ arguments alleging that the evaluation committee disregarded the fact that documentation and architecture had been mentioned must be rejected.

123    In the second place, the applicants submit that the evaluation committee’s comment that ownership was not mentioned is manifestly incorrect. The evaluation committee did not take account of the fact that, in Article II.10 of the draft services contract, provision was made for the ownership of the results to be fully and irrevocably acquired by the Union under the framework contract, including any rights in any of the results referred to in the framework contract, order forms or specific contracts. As this question was already settled in the call for tenders, they should not have been penalised for having failed to give indications on this point.

124    On this point it should be noted, firstly, that in its letter of 26 May 2014 the EIT explained the evaluation committee’s comments, observing that the indications in the applicants’ tender were generic and that it had not indicated who would be the owner of the intellectual property.

125    Secondly, although Article II.10 of the draft services contract provides that the ownership of the results must be fully and irrevocably acquired by the Union, as the EIT points out correctly, as regards services such as the development of IT services, an essential aspect is to what extent and in what manner the tenderer makes available to the contracting authority instruments enabling that authority or third parties, such as other tenderers, to pursue the development of those results. As stated by the EIT in response to a question from the Court, it is probable that tenderers use third parties’ software to develop the services required and that, in order to continue developing them, the use of third parties’ applications will be necessary. Yet, as is apparent from Article II.10 of the draft services contract, the Union does not become the owner of pre-existing rights belonging to third parties. Given that fact, the evaluation committee did not make a manifest error in finding that tenderers’ indications about the manner in which the contracting authority may continue to develop the expected results without infringing pre-existing rights were relevant.

126    Thirdly, the applicants submit that, in assessing their tender in relation to sub-criterion 5.1.3 of the standard submission form, the evaluation committee observed that questions of ownership had been raised.

127    It should be noted in that regard that that observation concerns a different sub-criterion, namely the one relating to the analysis of the risks associated with implementation of the contract.

128    Moreover, even if conclusions may be drawn from the applicants’ indications concerning the analysis of the risks associated with implementation of the contract for the assessment of the sub-criterion in point 5.1.2 of the standard submission form, relating to the involvement of third parties in future developments, the evaluation committee did not make a manifest error in taking account solely of the applicants’ indications about point 5.1.2 of the standard submission form. This type of approach is justified inter alia by the concern of taking account of the specific limited number of pages imposed on tenderers, preventing that limit from being circumvented and treating all tenderers equally.

129    Consequently, this argument must also be rejected.

130    Fourthly and in any event, it cannot be considered manifestly incorrect to take account of a tenderer’s indications about intellectual property or the lack thereof in order to assess whether it included the ownership rule contained in the draft services contract and whether it undertook to comply therewith.

131    Accordingly, the arguments put forward by the applicants do not establish that the EIT’s observation about intellectual property is vitiated by a manifest error of assessment.

132    In the third place, in the reply the applicants argue that the arguments put forward by the EIT in the course of the proceedings before the Court were not apparent from the letters it had sent in the course of the administrative proceedings and were therefore new arguments which could not be used to justify its decision.

133    That argument must be rejected.

134    First of all, it is clear that the evaluation committee’s comments about documentation and architecture had already been set out in the EIT’s letter of 11 April 2014. Given the context of the tendering procedure, inter alia the requirements set out in point 5.1.2 of the standard submission form, and the explanations in its letter of 26 May 2014, those observations must be held to be sufficiently clear.

135    Furthermore, as regards intellectual property, it should be noted that, in its letter of 11 April 2014, the EIT already informed the applicants that their tender made no mention of ownership, and reiterated the point in its letter of 26 May 2014, in which it stated that the indications in the applicants’ tender were generic and did not indicate who was the holder of the intellectual property.

136    As all of the arguments directed at the evaluation committee’s observations about the sub-criterion in point 5.1.2 of the standard submission form must be rejected, this complaint must be rejected.

 The complaint directed at the sub-criterion set out in point 5.1.3 of the standard submission form

137    Point 5.1.3 of the standard submission form requires tenderers to answer the following question:

‘Describe your risk analysis related to the contract execution.’

138    The applicants answered that question in part Q.5.1.3 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.1’.

139    It is apparent from the EIT’s letter of 11 April 2014 that the evaluation committee observed the following with respect to that reply:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is poor and the overall value of the answer is good.

No decision-making is identified.

There is no explicit mention of planning and coordination, although the question was well understood.

Ownership issues are raised.

There is no evidence of methodology for risk management.

The analysis is neither focused on EIT nor on the project.’

140    In its letter of 26 May 2014, the EIT stated that it had considered that the general approach proposed by the applicants was good, but their answer consisted of generic indications. The need for a methodology comprising a risk analysis was not explained, and nor was any explanation given about the specific risks for the EIT.

141    The evaluation committee gave the applicants’ tender a score of 2.6/4 for this sub-criterion.

142    The applicants submit that some of those observations are vitiated by manifest errors of assessment.

143    In the first place, they argue that the observation that the analysis did not focus on the EIT or the project is manifestly incorrect. The call for tenders concerned a general framework contract and the question asked under that criterion does not refer to any specific project.

144    None of the arguments put forward by the applicants call into question the merits of the evaluation committee’s comment on this point.

145    Regarding the list of risks indicated by the applicants, their tender contained no explanation as to the specific risks for the EIT, but only about the general risks, as rightly noted by the EIT in its letter of 26 May 2014. On the contrary, the applicants’ indication in their tender to the effect that risk identification and evaluation would be carried out after signature of the contract for the tender in question confirms the EIT’s observation that, in their tender, the applicants did not conduct an analysis that was focused on it or on the services to be provided.

146    Moreover, with regard to the arguments alleging that the call for tenders concerned a general framework contract and that the question asked in connection with that criterion does not refer to any specific project, it must be borne in mind that that did not preclude the applicants from taking account of the EIT’s specific needs and of the nature of the services to be provided under the contract, including the development of knowledge management software aimed at improving the submission and evaluation of the KICs’ business plans and supporting the EIT’s circulation activities.

147    The applicants’ arguments must therefore be rejected.

148    In the second place, it is appropriate to examine the complaint aimed at demonstrating that the evaluation committee’s observations to the effect that the planning and coordination were not expressly referred to and that no evidence showing that risk management methodology was adduced are manifestly incorrect.

149    It should be noted in that context that the applicants stated the following in their answer to the question set out in point 5.1.3 of the standard submission form:

‘The tenderer’s methodology for risk analysis and management is based on a three-phase process model: Risk management: determination of the threats to the contract, with a particular emphasis on explicitly foreseen major project breakers long before they materialise as manifest problems. Risk management and mitigation planning: planning of the risk management activities and establishment of a strategy and a plan for the mitigation of known, assessed risks that derive from the previous phase. Risk monitoring and control: execution of the management and mitigation plan in order to control risks and respond to risks over the course of the contract/project.’

150    In their tender, the applicants therefore described in the abstract the risk management procedure they would follow.

151    Contrary to their submissions, however, that does not call into question the merits of the evaluation committee’s comments.

152    The evaluation committee’s comments, to the effect that planning and coordination were not specifically mentioned and the applicants had not adduced any evidence establishing that there was a risk management methodology, must be read in context. That would include, firstly, the evaluation committee’s final comment, to the effect that the analysis did not focus on the EIT or the project; secondly, its general comment about the applicants’ answers for the criterion set out in point 5.1 of the tender specifications, to the effect that even if the applicants clearly had an established system, their tender gave only a generic overview, was not sufficiently detailed and lacked precision; thirdly, the EIT’s letter of 26 May 2014, in which it stated that it had considered that the general approach proposed by the applicants was good but the answer consisted of generic indications; and, fourthly, the ‘good’ scores given for the tender’s focus and overall value and the ‘poor’ score concern specificity.

153    In the light of that context, the evaluation committee’s observations must be construed as referring to the lack of indications which are concrete and specific to the EIT’s situation, the services to be provided in terms of planning and coordination with respect to the risks associated with the implementation of the contract and the risk management methodology to be used.

154    Given those considerations, the applicants’ argument must be rejected. The methodology described by the applicants remained very abstract and generic and did not indicate either the exact methodology to be used, such as a methodology provided for by an industrial standard, or the detailed method of performance. The award of a score of ‘poor’ for the specificity of the answer is therefore not manifestly incorrect.

155    Therefore, the arguments directed at the evaluation committee’s observations about the existence of a risk management methodology and planning and coordination must also be rejected, as must the complaint directed at sub-criterion 5.1.3 of the tender specifications in its entirety.

156    As all of the arguments directed at the evaluation committee’s observations concerning the sub-criterion set out in point 5.1.3 of the standard submission form must be rejected, this complaint must be rejected, as must this part in its entirety.

c)     The second part: the criterion set out in point 5.2 of the standard submission form

157    The technical award criterion set out in point 5.2 of the standard submission form is directed at the quality of the tenderer’s bid in terms of the ordering of services. Tenderers were asked to submit their proposals in respect of the two sub-criteria set out in points 5.2.1 to 5.2.2 of the form.

158    The applicants submit that the evaluation committee’s comments about their tender in relation to the sub-criteria as set out in points 5.2.1 and 5.2.2 of the standard submission form, as well as its general comment on the criterion set out in point 5.2 of that form, are vitiated by manifest errors of assessment. They submit inter alia that that technical award criterion concerned solely the candidates as individuals, not the projects or teams proposed for the projects.

159    The EIT disputes those arguments.

 The complaint directed at the sub-criterion set out in point 5.2.1 of the standard submission form

160    Point 5.2.1 of the standard submission form required tenderers to provide the following indications:

‘Describe how you verify that the candidates you propose match the requirements mentioned in the requests (particularly concerning the [conformity] with the profiles, the technical and language skills)?’

161    The applicants’ indications about this point are to be found in part Q.5.2.1 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.2’.

162    It is apparent from the EIT’s letter of 11 April 2014 that the evaluation committee observed the following with respect to that part of the applicants’ tender:

‘The focus of the answer in the context of the question is excellent, specificity to the context of the tender is poor and the overall value of the answer is good.

The answer is not specific but it demonstrates a systemic approach, proper follow-up and a potentiality of development.’

163    The evaluation committee gave the applicants’ tender a score of 2.76/4 for this sub-criterion.

164    The applicants consider that those observations by the evaluation committee are incorrect.

165    In the first place, they submit that that comment by the evaluation committee is generic and unsubstantiated. It does not indicate what was lacking in the answer or what was incorrect in relation to the tender specifications. As Lot No 2 concerned a framework contract, their answer ought to have focused on the methodology used in order to demonstrate that all of the EIT’s needs could be covered. At that stage, there was no need to take account of a specific skill or language.

166    Although, according to the indication in point 5.2.1 of the standard submission form, tenderers had to describe ‘how’ they would verify that the candidates proposed would match the ‘requirements mentioned in the requests’, particularly concerning the conformity with the profiles, the technical and language skills, the applicants are correct in pointing out that the requirements for candidates could still be specified in applications for specific projects and that those requirements could be specified at a stage subsequent to the call for tenders.

167    It should be noted, however, that the tender specifications already set out a certain numbers of skills candidates were required to have. Thus, Lot No 2 was not aimed solely at obtaining staff, but also at developing software and maintaining IT support services at a high level of availability and efficiency. Candidates accordingly had to have adequate skills to accomplish those tasks. In that context, it should be noted that the technical specifications for Lot No 2, in pages 6 and 8 to 12 of the tender specifications, contained indications as to the requirements that the candidates proposed. Furthermore, under Article 3 of the tender specifications, tenderers were asked to adapt their tenders to the EIT’s specific needs.

168    Therefore, at the stage the framework contract was awarded, tenderers had elements in their possession enabling them to present methodology taking account of the EIT’s situation and its specific needs.

169    In the light of those circumstances, the conclusion is that the evaluation committee did not make a manifest error of assessment in finding that the applicants’ answer lacked specificity.

170    In the second place, the applicants submit that, in the light of the wording of the question set out in point 5.2.1 of the standard submission form and its position in the tender specifications, that question cannot be construed as encompassing the replacement of a candidate in the course of a project implementation.

171    That argument must be rejected as unfounded. In its evaluation of the applicants’ tender concerning the sub-criterion set out in point 5.2.1 of the standard submission form, the evaluation committee did not take account of the aspect of possible replacements in the course of the project implementation.

172    In the third place, in the reply, the applicants allege a failure to state reasons.

173    It should be noted that the considerations on which the EIT based its decision were already made known to the applicants in the course of the administrative proceedings, as the EIT’s comment that the applicants’ tender was not specific was already in the EIT’s letter of 11 April 2014.

174    Similarly, it is appropriate to reject the applicants’ argument that the evaluation committee’s observations do not indicate what is lacking in their answer or what was not correct in relation to the tender specifications. In that context, firstly, it should be noted that, as positive points, the EIT found that the applicants had demonstrated the existence of a systemic approach, an appropriate follow-up and potential for development. Also, as regards the focus of their answer, the applicants obtained the maximum score. Secondly, the comment that the applicants’ tender was not specific is a sufficient indication of its shortcomings. A contracting authority cannot be required to provide tenderers with a detailed summary of how each detail of their tender was taken into account for the purposes of the evaluation (see paragraph 104 above).

175    Therefore, the argument alleging a failure to state reasons cannot be upheld and, accordingly, the complaint directed at the evaluation of sub-criterion 5.2.1 of the standard submission form must be rejected in its entirety.

 The complaint directed at the sub-criterion set out in point 5.2.2 of the standard submission form

176    Point 5.2.2 of the standard submission form required tenderers to answer the following question:

‘How will you try to assure the availability of the proposed candidates at the start and during the implementation of the contract?

Explain in detail what you will do in case of non-availability at the different steps of the ordering procedure.’

177    The applicants answered that question in part Q.5.2.2 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.2’.

178    It is apparent from the EIT’s letter of 11 April 2014 that the evaluation committee observed the following with respect to that reply:

‘The focus of the answer in the context of the question is poor, specificity to the context of the tender is very poor and the overall value of the answer is poor.

Tender proposed a body rental approach, which is out of scope and scale of the EIT project.

They have proposed a financial offer on individual consultants and not a project team to resolve or develop a specific business project.’

179    The evaluation committee gave the applicants’ tender a score of 0.42/2 for this sub-criterion.

180    The applicants also maintain that some of those comments are vitiated by errors.

181    In the first place, they submit that the evaluation committee’s comments that their tender proposes a ‘body rental approach’ and is not based on a project team charged with the task of performing or developing a specific business project are manifestly incorrect. Their tender ensured continuity of operations by avoiding a situation of non-availability of the consultants proposed and met exactly the requirements of the tender specifications. Sub-criterion 5.2.2 of the standard submission form required only an answer to questions about the availability of the candidates proposed; it did not concern the teams for the projects or any other question. The indication expressed on this point was copied from tender specifications taken from tendering procedures launched by a number of other EU contracting authorities or institutions. In all cases, the indication in question referred only to individual consultants.

182    It should be noted in that regard that, under point 3.4.2 of the tender specifications, the objectives of Lot No 2 were the development of high-quality software and the maintenance of IT services at a high level of availability and efficiency which, at the EIT’s request, were to be provided by a team put together by the contractor. Therefore, point 5.2.2 of the standard submission form cannot be construed as referring solely to the availability of individual candidates.

183    None of the arguments put forward by the applicants casts doubt on that conclusion.

184    Firstly, the argument alleging that point 5.2.2 of the standard submission form was copied from tender specifications taken from tendering procedures launched by a number of other EU contracting authorities or institutions must be rejected as irrelevant. Suffice it to note that the applicants’ tender must be assessed in the light of the criteria set out in the tender specifications of the public contract in question and that, in the light of the factors referred to in paragraph 182 above, there is nothing precluding the evaluation committee from assessing the applicants’ answer in the light of the fact that a project team was to be proposed.

185    Secondly, contrary to the applicants’ assertions, the wording of the question in point 5.2 of the standard submission form, which asked tenderers to indicate how they would ensure availability of the candidates proposed at the start of and during the implementation of the contract, does not preclude the evaluation committee from taking account of the availability of the candidates necessary for putting together a team for a specific project.

186    Thirdly, the applicants submit that the sub-criterion set out in point 5.2.2 of the standard submission form is part of the criterion set out in point 5.2 of that form, that that criterion is aimed solely at assessing the quality of the tenderer’s bid in relation to the ordering of services and that that sub-criterion therefore concerns only the availability of the candidates proposed.

187    It should be noted in that regard that point 5.2 of the standard submission form concerns the quality of the tenderer’s bid in relation to the ordering of services. In that context, the tender specifications state that, during the implementation of the contract, the EIT was to order services from the successful tenderer. The tender specifications also indicate that the ordering procedure was to consist, inter alia, in the sending of the request form to the successful tenderer, the submission of its tender, the evaluation of the tender by the EIT and the signature of the specific contract.

188    Meanwhile, point 5.2.2 of the standard submission form concerns the measures aimed at ensuring availability of the candidates proposed at the start of and during the implementation of the contract. On that point, it must be remembered that an order of services by the EIT could take place at any time during the implementation of the contract.

189    In the light of the foregoing, it is not manifestly incorrect to take account, in the assessment of the sub-criterion set out in point 5.2.2 of the standard submission form, of the measures proposed by the tenderers aimed at ensuring that, throughout the implementation of the framework contract, candidates needed to make up suitable teams for providing the services requested by the EIT are available. As rightly observed by the EIT, any unavailability of one or more of the candidates needed is liable to delay not only the procedure for ordering services, but also the supply of the services ordered.

190    Therefore, contrary to the applicants’ assertions, the evaluation committee was correct to take into account elements in the tenderers’ bids aimed at ensuring availability of the candidates needed to make up suitable teams for providing the services requested by the EIT.

191    In the light of those considerations, the conclusion is that none of the arguments put forward by the applicants establishes that the evaluation committee’s observations that their tender adopted a ‘body rental approach’ and was not based on a project team charged with the task of developing a specific business project are manifestly incorrect.

192    In the second place, the applicants submit that, in evaluating the tender ranked first, the evaluation committee took account of elements that were outside the scope of the question. The answers based on an interpretation taking account of replacements are out of context and should be penalised rather than rewarded. The sub-criterion set out in point 5.2.2 of the standard submission form cannot be construed as encompassing replacements in the course of project implementation.

193    On its wording, that question clearly concerns measures aimed at ensuring availability in order to avoid replacements, but only as regards the ordering procedure. It will thus be impossible to address questions of ‘taking over’ or ‘continuity’ in the course of the ordering procedure, as there will not yet be a project under way. In the course of the ordering phase, the team will be completely unaware of the project.

194    Moreover, the position of that sub-criterion in the tender specifications precludes such an interpretation. The indication set out in point 5.2.2 of the standard submission form is an element of criterion 5.2 of that form which, according to the tender specifications, concerns the quality of the tenderer’s proposal for ordering the services. By contrast, the elements concerning the projects and the supply of the services are taken into account under other parts, such as point 5.1 of the form concerning the supply of services and point 5.3 concerning the management of that supply.

195    Those arguments must also be rejected.

196    The fact that other sub-criteria, such as the sub-criterion set out in point 5.1.4 of the standard submission form, are directed at questions of replacement of candidates in the course of the implementation of a specific contract does not, for the reasons set out in paragraphs 186 to 191 above in connection with the sub-criterion set out in point 5.2.2 of the standard submission form concerning the availability of the candidates proposed at the start of and during the implementation of the contract, preclude the evaluation committee from taking account of how tenderers were to ensure that, in the course of the ordering of the services, candidates needed to make up suitable teams for the supply of the services requested by the EIT would be available.

197    In the third place, the applicants submit that the evaluation committee erred in its assessment of the tender ranked first by taking account of architectural elements, as they were irrelevant for the sub-criterion set out in point 5.2.2 of the standard submission form.

198    In that regard, it is apparent from the EIT’s letter of 25 April 2014 that the evaluation committee observed with regards to the tender ranked first that the ‘[a]rchitectural elements [were] moderate’.

199    Account should also be taken of the EIT’s explanations, according to which, firstly, the architectural elements listed were programming languages, middleware, operating systems, databases and programming libraries; secondly, in the event of development of an application, it is possible to make a selection from among a very broad range of those elements; and, thirdly, candidates’ know-how about those elements may vary.

200    In the light of those circumstances, it is not manifestly incorrect to take account of architectural elements in the tenderers’ bids aimed at guaranteeing that, following an ordering of services by the EIT, candidates with the necessary knowledge are available.

201    Therefore, the applicants’ argument directed at the observation about architectural elements must also be rejected.

202    In the fourth place, the applicants submit that the evaluation committee evaluated their tender in comparison with the tender ranked first.

203    The applicants have not adduced any evidence to substantiate the point that the evaluation committee evaluated their tender in comparison with the tender ranked first rather than in relation to the requirements set out in the tender specifications. It is clear that the reference in the EIT’s letters of 25 April and 26 May 2014 to an element contained in the tender ranked first was a direct consequence of the applicants’ request to be informed of the characteristics and relative advantages of that tender.

204    Accordingly, the complaint directed at the evaluation of the applicants’ answer concerning the sub-criterion set out in point 5.2.2 of the standard submission form must be rejected.

 The complaint directed at the general comment concerning the evaluation of the criterion set out in point 5.2 of the standard submission form

205    The evaluation committee stated the following as a general observation concerning the evaluation of the applicants’ tender in relation to the criterion set out in point 5.2 of the standard submission form:

‘Though supported by a system and a follow-up on development, the answers were out of scope, as the purpose of this tender is not to obtain just manpower, but to develop and implement projects.’

206    The evaluation committee gave the applicants’ tender a score of 3.18/6 for this criterion, which was made up of the scores given for all of the sub-criteria.

207    The applicants submit that that observation is vitiated by a manifest error of assessment. In that connection, they reiterate, in essence, the arguments put forward previously in support of the previous complaint, inter alia the argument alleging that point 5.2 of the tender specifications was directed at the consultants proposed for the projects and not the teams, and that the elements concerning the projects had been examined as part of the evaluation of the tenders in relation to other award criteria, inter alia criterion 5.3 concerning the supply of the services and criterion 5.1 concerning the management of that supply.

208    As those arguments have already been rejected in paragraphs 182 to 191 above, this complaint must also be rejected, as must the part directed at point 5.2 of the standard submission form in its entirety.

209    In any event, the score given by the evaluation committee to the applicants’ tender for criterion 5.2 of the standard submission form is already justified in the light of the scores obtained for the sub-criteria set out in points 5.2.1 and 5.2.2 of the form. The score of 3.18 points corresponds to the total of the scores obtained for those sub-criteria.

d)     The third part: the criterion set out in point 5.3 of the standard submission form

210    The technical award criterion set out in point 5.3 of the standard submission form is directed at the quality of the tenderer’s bid in terms of the supply of services. Tenderers were asked to submit their proposals in respect of the six sub-criteria set out in points 5.3.1 to 5.3.6 of the form.

211    The applicants submit that the evaluation committee’s assessments of their tender in relation to the sub-criteria set out in points 5.3.1 and 5.3.3 to 5.3.6 of the standard submission form and its general comment on the criterion set out in point 5.3 of that form are vitiated by manifest errors of assessment.

212    The EIT disputes those arguments.

 The complaint directed at the sub-criterion set out in point 5.3.1 of the standard submission form

213    Point 5.3.1 of the standard submission form asked tenderers to answer the following question:

‘Describe the support services that you propose to offer your staff during the execution of a contract in the premises of EIT.’

214    The applicants answered that question in part Q.5.3.1 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.3’.

215    It is apparent from the EIT’s letter of 11 April 2014 that the evaluation committee observed the following with respect to that reply:

‘The focus of the answer in the context of the question is poor, specificity to the context of the tender is fair and the overall value of the answer is poor.

There is no demonstration of use of a direct and remote, expert back-end team and a structured project approach.

Managerial support is not explicit.

An EIT-specific knowledge base is proposed.

Consultancy-focused, no references of own staff.

No senior consultancy is mentioned.

The scope of the question was understood as focusing on financial incentives. However, there is no clear understanding of the EIT’s scope from the approach given.’

216    The evaluation committee gave the applicants’ tender a score of 1.56/4 for this sub-criterion.

217    The applicants consider that some of those comments are vitiated by errors.

218    In the first place, they submit that the question of the tender specifications did not concern ‘technical support’, but rather ‘support’ in general. The applicants thus referred succinctly and correctly to all relevant elements of the ‘support’, whilst ensuring that their answer was complete and complied with the tender specifications and clearly focusing most on the technical aspect.

219    Suffice it to observe in that regard that, in the light of the wording of the question set out in point 5.3.1 of the standard submission form and the context of which it forms a part, it is sufficiently clear that it referred primarily to the aspect of technical support for candidates in the EIT’s premises in connection with the implementation of the contract, and not human resources support, which concerns more the relationship between the applicants and the candidates proposed. Therefore, the evaluation committee did not make a manifest error of assessment in focusing on the technical support elements.

220    In the second place, the applicants submit that the evaluation committee failed to take account of the fact that in their tender they proposed a centre of expertise providing all the necessary services. The specific services were not mentioned in detail due to the one-page limit for the document, but the concept and services provided by a centre of expertise or a centre of excellence are standard in the IT sector.

221    In that regard, firstly, it should be noted that, in their tender, the applicants merely referred to the centre of expertise as an additional knowledge support tool in the form of a ‘group of technical domains and technologies’ which was to be updated every six months. Yet it is clear that the evaluation committee could not infer from that description that the centre would provide managerial support or the services of experienced consultants.

222    Secondly, the applicants’ argument alleging that they did not provide further indications because the services provided by a centre of expertise or a centre of excellence are standard in the IT sector must be rejected. It should be noted that the elements indicated by the applicants in that regard in their tender and on which the EIT was to base its evaluation do not indicate that there was to be direct and remote support or managerial support.

223    Thirdly, in so far as the applicants rely on the limit on the length of their answer, it must be observed that in their answer they gave indications about ‘support’ in general, whereas it was sufficiently clear from the question set out in point 5.3.1 of the standard submission form that it referred first and foremost to the aspect of technical support for candidates in the EIT’s premises in connection with the implementation of the contract.

224    Fourthly, it should be noted that, in its observations, the evaluation committee took account of the fact that the applicants had proposed a database of knowledge specific to the EIT. 

225    Therefore, the argument alleging that the evaluation committee did not take sufficient account of the centre of expertise referred to by the applicants must be rejected.

226    In the third place, the applicants submit that the comment to the effect that they focused ‘on financial incentives’ is manifestly incorrect. In their tender, the financial incentives were indicated among other incentives granted to their consultants as part of the overall human resources support, as support with practical issues and performance management. Moreover, the fact that the scope of the question was construed as focusing on financial incentives is manifestly incorrect. The entire text of the tender contains only a single reference to financial incentives, two lines before the end of the document. The evaluators disregarded the fact that most of the tender focused on technical support.

227    In that regard, firstly, it should be noted that the evaluation committee did take account of other elements in the applicants’ tender, such as the proposal of a database of knowledge specific to the EIT and consultation elements. It therefore did not observe that the applicants had restricted their indications to financial incentives.

228    Secondly, part of the applicants’ answer focused on overall support for the candidates proposed by the applicants’ human resources department. Although in that part the financial incentives in the strict sense of the term are referred to only briefly, it is clear that, in addition to financial incentives strictly speaking, that part provided for other incentives touching on financial aspects or involving financial advantages, such as ‘a clear career path’ and ‘a career development plan’ or aspects relating to the social security system and taxation.

229    Therefore, the evaluation committee did not make a manifest error of assessment in finding that a non-negligible part of the elements set out in the applicants’ answer was directed at the candidates’ financial interest, elements having a financial impact for them and other elements that were not relevant for the quality sub-criterion in question, which concerned the relevant support services for the implementation of the contract.

230    In the fourth place, in the reply, the applicants submit that the EIT is attempting to amend its statement of reasons for the decision of 11 April 2014 in the course of the proceedings before the Court.

231    Suffice it to observe in that regard that the considerations set out above are all based on the evaluation committee’s comments found in the letter of 11 April 2014.

232    Therefore, all of the arguments put forward in support of the complaint directed at the evaluation of the applicants’ answer relating to the sub-criterion set out in point 5.3.1 of the standard submission form must be rejected.

 The complaint directed at the sub-criterion set out in point 5.3.3 of the standard submission form

233    Point 5.3.3 of the standard submission form asked tenderers to answer the following question:

‘Describe how and according to what conditions you would like to manage the L1, L2 service support and the best level of service you can offer to the EIT in terms of acknowledgement of the incidents, engagement of the support specialists and resolution of the issues.’

234    The applicants answered that question in part Q.5.3.3 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.3’.

235    It is apparent from the EIT’s letter of 11 April 2014 that the evaluation committee observed the following with respect to that reply:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is poor and the overall value of the answer is good.

ITIL explicitly mentioned.

They have a process on back-office site.

Presence of tools for support in relationship is indicated.

Auto-reporting and service performance collection is described.

The service suggested is 24/7.

The escalation process is clearly defined with explicit SLA.

No problem-solving approach is mentioned.

In the project there is no clear experience of full support.’

236    The evaluation committee gave the applicants’ tender a score of 5.2/8 for this sub-criterion.

237    The applicants take the view that some of the evaluation committee’s observations are manifestly incorrect. In the first place, the observation to the effect that no problem-solving approach is mentioned is incorrect. In the second place, the comment that in the project there is no clear experience of full support does not comply with Article 110 of the Financial Regulation or Article 149 of the Implementing Rules. In the third place, that comment is manifestly incorrect, as full support was provided for in their tender. In the fourth place, the reasons given in the evaluation report do not provide sufficient grounds for the difference between the scores awarded to their tender and the scores given to the tender ranked first.

–       The arguments directed at the observation about there being no mention of a problem-solving approach

238    In the first place, the applicants submit that the evaluation committee’s observation that no mention was made of a problem-solving approach in their tender is incorrect, as their tender stated clearly the approach adopted for problem-solving and the tool used for the problem-management procedure.

239    Firstly, they stated the following in their tender:

‘A diagnosis of reported problems is done first. It can either be determined that the problem is a known error, so it can be resolved using documented procedures or it is a new problem. In the latter case a resolution of the problem is developed which may result in a change.’

240    Secondly, it is stated in their tender:

‘A generic look at this process will be adopted to ensure an efficient response to service requirements:

–        Ensure that all incidents/problems are reported and recorded;

–        Ensure that appropriate severity of the incidents/problems are set;

–        Ensure that all outstanding incidents/problems are managed until resolution;

–        Minimise the impact of incidents/problems;

–        Minimise the duration of any incident/problem resolution;

–        Assure performance of root cause analysis;

–        Ensure that trend analysis prevents repetition of the same problem;

–        Reduce failures to an acceptable risk and cost;

–        Monitor and measure the service;

–        Escalation to management when problems are not resolved within a set time.’

241    Thirdly, the tool used for the problem-management procedure was also clearly referred to in the tender. It also indicated that they would use the OTRS::ITSM platform, based on Information Technology Infrastructure Library (‘ITIL’) best practices, which provides tools for ensuring request and incident management, problem management, change management, release management, request fulfilment management, service asset and configuration management, knowledge management, service catalogue management, event management and service level management.

242    It should be observed, first of all, that the evaluation committee recognised that the focus of the applicants’ answer was good. It therefore took account of the procedure as described by them.

243    Next, the evaluation committee’s observation that the applicants had not mentioned a specific problem-solving approach shows, in essence, that there was no information as to how the various stages of the procedure were to be carried out. The fact of taking into account indications or the lack of indications as to the details of the implementation of the procedure proposed and the reasons underlying the choice of a specific problem-solving approach is not per se manifestly incorrect. It is merely relevant information for the evaluation of the quality of the tender in terms of the sub-criterion relating to the analysis of the risks associated with implementation of the contract.

244    The applicants do not question that specific problem-solving methods must contain indications about the details of the implementation of the procedure proposed. They state, however, that in their tender they referred to the ITIL standard.

245    It should be noted in that regard that the evaluation committee explicitly took account of the reference to the ITIL standard in the applicants’ tender. However, contrary to their assertions, a reference to that standard cannot be equated with a reference to a specific problem-solving approach. As the EIT stated, a number of problem-solving methods are referred to in that standard. Therefore, the evaluation committee could not infer from that reference which specific method would be applied by the applicants. This is confirmed by the applicants’ observations at the hearing, to the effect that the specific methodology had to be determined on a case-by-case basis.

246    It follows that the evaluation committee’s observation that the specific problem-solving and incident management method proposed is not evident from the applicants’ tender is not vitiated by a manifest error of assessment.

247    In the second place, the applicants argue in that regard that the EIT failed to provide a sufficient statement of reasons in the decision of 11 April 2014. However, the comment that the specific problem-solving method had not been specified in the applicants’ tender was already communicated to the applicants in the letter of 25 April 2014.

248    Therefore, the arguments directed at the evaluation committee’s comment about a failure to mention a problem-solving approach must be rejected.

–       The arguments directed at the comment about full service support

249    The applicants submit that the evaluation committee’s comment that the project does not show clearly experience with full service support is vitiated by errors.

250    In the first place, that comment does not comply with either Article 110 of the Financial Regulation or Article 149 of the Implementing Rules. In the applicants’ submission, the evaluation committee confused the selection criteria with the award criteria. It relates to the references about earlier projects given in their tender and therefore their experience with full service support. As the award criteria made no reference to tenderers’ experience, that aspect falls outside the scope of the evaluation of the award criteria and is unrelated to the content of the applicants’ technical tender. In any event, during the selection phase, they demonstrated that, in the past, they had provided full service support to numerous clients.

251    It should be recalled that under Article 110(1) of the Financial Regulation ‘contracts shall be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 106, 107 and 109(2)(a) [of that regulation] has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders’.

252    It follows that a distinction must be drawn between selection criteria and award criteria. Indeed, the examination of the tenderers’ capacity to perform the contract and the award of the contract are two distinct procedures and are governed by different rules (see, by analogy, judgments of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 26, and of 8 December 2011, Evropaïki Dynamiki v Commission, T‑39/08, not published, EU:T:2011:721, paragraph 18).

253    In the context of the selection phase, the tenderers’ suitability is verified by contracting authorities in accordance with Article 148 of the Implementing Rules, paragraph 1 of which provides that, inter alia in procurement procedures for services, technical and professional capacity of economic operators is to be assessed with regard in particular to their know-how, efficiency, experience and reliability.

254    By contrast, the detailed rules and the award criteria are governed by Article 149 of the Implementing Rules, paragraph 2 of which provides that, in order to determine which tender offers the best value for money the contracting authority is to take into account the price quoted and other quality criteria justified by the subject of the contract such as technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.

255    It follows that the contracting authority’s examination in the context of the award phase must relate to the quality of the tenders themselves and not to the selection criteria, such as the tenderers’ technical capacity, which have already been checked at the stage of selecting tenderers and which cannot be taken into account again for the purpose of comparing the tenders (judgments of 26 February 2002, Esedra v Commission, T‑169/00, EU:T:2002:40, paragraph 158, and of 6 July 2005, TQ3 Travel Solutions Belgium v Commission, T‑148/04, EU:T:2005:274, paragraph 86).

256    Therefore, award criteria do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question (see, by analogy, judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 30).

257    It is in the light of those provisions and the case-law that the determination must be made as to whether it can be inferred from the evaluation committee’s observation in question that the EIT did take a selection criterion into account in the evaluation of an award criterion.

258    In that context, it must be remembered that the sub-criterion set out in point 5.3.3 of the standard submission form is a technical quality criterion and therefore an award criterion.

259    It should also be noted that, according to the evaluation committee’s observation, ‘[i]n the project there [was] no clear experience of full service support’.

260    In the applicants’ submission, that observation shows that, in the award phase, the evaluation committee took account of their experience of full service support, whereas it had already been examined as part of the selection procedure.

261    On that point, firstly, it is apparent from the initial wording in the comment, namely the expression ‘in the project’, that it referred solely to the applicants’ tender and not their capacities in general.

262    Secondly, the applicants’ argument, to the effect that it is apparent from the EIT’s letter of 10 December 2013 that, in that comment, the committee took account of a selection criterion as part of the award procedure, must be rejected.

263    In that context, it should be noted that the letter of 10 December 2013 concerns a criterion that was examined as part of the selection procedure, namely the applicants’ experience in service outsourcing in an organisation of over 50 people.

264    First of all, it is clear that the criterion referred to in that letter and the evaluation committee’s observation do not concern the same subject matter. In that letter, reference is made to service outsourcing in an organisation of over 50 people whereas the observation in question refers to full service support.

265    Moreover, the applicants’ reading of that observation is not convincing. If that reading had been followed and it had therefore been envisaged that the evaluation committee should once again take account of the selection criterion referred to in the letter of 10 December 2013 in the award procedure, it would have reached diametrically opposite conclusions in the selection and award procedures. Had it done so in the selection procedure, it would have found that the applicants had met the technical and professional selection criteria for lot No 2, including the tenderer’s experience in the field, with references to similar projects. By contrast, in the award procedure for the technical award sub-criterion set out in point 5.3.3 of the standard submission form, it would have reached the opposite conclusion.

266    In the light of those considerations, it must be held that, despite misguided use of the term ‘experience’ in the evaluation committee’s comment, a reasonably informed tenderer exercising ordinary care ought to have understood that that comment referred to the quality of its project and therefore an award criterion.

267    Therefore, the argument alleging infringement of Article 110 of the Financial Regulation and Article 149 of the Implementing Rules must be rejected.

268    In the second place, in the reply, the applicants argue that the EIT attempted to rely on new grounds in the course of the proceedings before the Court.

269    In that regard, firstly, it should be noted that all of the elements taken into account in the analysis set out in paragraphs 257 to 266 above were communicated to the applicants in the EIT’s letter of 11 April 2014.

270    The EIT’s arguments in respect of those elements put forward in the course of the proceedings before the Court were therefore restricted to clarifying the meaning of the evaluation committee’s observation, using elements which had already been communicated to the applicants during the administrative procedure. Therefore, they cannot be considered as new grounds communicated to them for the first time before the Court.

271    Secondly, it must be remembered that, in the circumstances of the present case, the misguided use of the term ‘experience’ does not give rise to an infringement of the obligation to state reasons, given that a reasonably informed tenderer exercising ordinary care in the place of the applicants would have been in a position to ascertain the real reasons for the decision of 11 April 2014 (see, to that effect, judgments of 24 January 1995, Tremblay and Others v Commission, T‑5/93, EU:T:1995:12, paragraph 42, and of 12 September 2013, Germany v Commission, T‑347/09, not published, EU:T:2013:418, paragraph 101 and the case-law cited).

272    Therefore, the argument alleging infringement of the obligation to state reasons must also be rejected.

273    In the third place, the applicants argue that the evaluation committee’s observation to the effect that the project does not show clearly experience with full service support is vitiated by a manifest error of assessment. The methodology based on the ITIL proposed in their tender provides full service support throughout the life cycle of the projects, programmes and IT ecosystems, in keeping with what was requested in the tender specifications.

274    In that regard, it should be noted as a preliminary point that, according to the evaluation committee’s assessment, the focus of the applicants’ answer and its overall value were good. Its comment was thus intended as an explanation for why the quality of the applicants’ tender had not been found to be excellent in respect of those elements.

275    Next, in the assessment of the tenders in relation to the sub-criterion set out in point 5.3.3 of the standard submission form, concerning service support and level of service, it was not manifestly incorrect to take account of the reference or the lack of reference to full service support. As the EIT stated, in essence, full service support concerns the supply of auxiliary services based on the infrastructure the tenderer has at its disposal, including available software and equipment. It is not manifestly incorrect to consider that the possibility of providing such auxiliary services is liable to increase the level of service support.

276    In that context, the applicants’ argument alleging that lot No 2 covered only the supply of services and not the supply of equipment must be rejected. In that regard, suffice it to note that the full service support taken into account in the evaluation committee’s observation cannot be equated with the supply of equipment to the EIT. 

277    Moreover, the applicants maintain that, in their tender, they referred to the ITIL standard, which, in the supply of services, is the best answer that a tenderer could give and that it is already self-evident from its name ‘Information Technology Infrastructure Library’, that it covers the infrastructure. In that regard, it must be first of all be borne in mind that, in its observations, the evaluation committee bore in mind the fact that the applicants had referred to that standard. Second, it is clear that the applicants do not state from which elements of that standard it could be inferred that they were proposing full service support and which auxiliary services it comprised. Therefore, the argument alleging that the evaluation committee did not take sufficient account of the reference to the ITIL standard must also be rejected.

278    In the fourth place, the argument alleging infringement of the obligation to state reasons and alleging that the EIT’s remark about the ITIL constitutes a new justification, put forward in the course of the proceedings before the Court, must be rejected. Suffice it to note in that regard that the evaluation committee’s comment about the lack of indications about full service support had already been communicated to the applicants in the letter of 25 April 2014.

279    Therefore, all of the arguments directed at the evaluation committee’s comment about full service support must be rejected.

–       The differences between the applicants’ tender and the tender ranked first

280    The applicants argue that, apart from the two observations referred to above, the comments about their tender and the tender ranked first were equivalent. Therefore, the reasons given in the evaluation report do not substantiate adequately the difference between the scores given.

281    In that regard, in the first place, this complaint alleges an infringement of the obligation to state reasons. The evaluation committee observed that, unlike the applicants’ tender, the tender ranked first set out a specific problem-solving approach, whereas the applicants’ tender did not offer clear statements about full service support. It should further be noted in respect of the tender ranked first that the evaluation committee found that the focus of the answer in the light of the context of which the question formed a part was good, that its specificity in the light of the context of which the tender formed a part was fair and that the overall value of the answer was excellent.

282    In the second place, as is apparent from the findings made in paragraphs 238 to 279 above, the evaluation committee’s observations on this point are not vitiated by manifest errors of assessment.

283    In the third place, given the differences found by the evaluation committee to exist between the two tenders in terms of specific observations and more general comments about focus, specificity and overall value, it was not manifestly incorrect to give a score of 6.72/8 points to the tender ranked first and 5.2/8 points to the applicants’ tender for the sub-criterion set out in point 5.3.3 of the standard submission form.

284    Therefore, this argument must be rejected as well.

285    Accordingly, the second complaint of the third part of the third plea, directed at the EIT’s observations about the sub-criterion set out in point 5.3.3 of the standard submission form and the first plea (see paragraph 29 above), must be rejected.

 The complaint directed at the sub-criterion set out in point 5.3.4 of the standard submission form

286    Point 5.3.4 of the standard submission form asked tenderers to provide the following information:

‘Describe the modalities you aim to manage request for changes and new development and the risk related.’

287    The applicants answered that question in part Q.5.3.4 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.3’.

288    The evaluation committee made the following observations with respect to that reply in the evaluation report:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is fair and the overall value of the answer is good.

The approach is clearly described.

Process clearly explained.

Consideration of risk to the requirements collection has been identified.

Non EU-specific answer.’

289    In its letter of 26 May 2014, the EIT stated:

‘Under this criterion, European Dynamics had been awarded a good score since the answer was quite comprehensive, however, it was not adequately motivated. In chapter 3 of the tender specifications the EIT makes reference to such requirements.’

290    The evaluation committee gave the applicants’ tender a score of 4.46/6 for this sub-criterion.

291    In the first place, the applicants submit that the evaluation committee’s comment about the ‘non-EU specific answer’ is incorrect. They proposed applying the methodology used in the implementation of numerous similar contracts concluded with EU institutions and agencies. The strict approval and review processes proposed (for the ‘change approval’ and ‘change review’ stages) suit the procedures of EU institutions but would not necessarily suit the procedures of a private undertaking.

292    That observation by the evaluation committee included a reference to a failure to tailor the tender to EU-specific needs.

293    However, as evidenced quite clearly by the tender specifications, the relevant criterion was not tailoring specifically to EU requirements, but rather to the EIT’s needs. Moreover, in its letter of 26 May 2014, the EIT stated that the applicants’ tender was not adapted to the requirements set out in chapter 3 of the tender specifications, which states that tenderers had to demonstrate that they understood the context and expectations of the EIT and the manner in which they could assist the EIT in achieving its medium-term strategic objectives.

294    Given the context of which the observation forms a part, a reasonably informed tenderer exercising ordinary care ought to have realised that that comment referred to a failure to tailor the tender to the EIT and that the score given was therefore based on a failure to tailor the tender to the EIT’s needs.

295    In the second place, the applicants’ argument, to the effect that their tender complied fully with the requirements set out in the tender specifications, must be rejected. Suffice it to note in that regard that the applicants’ answer refers to highly standardised processes but contains nothing adapted to the EIT’s specific needs, which were explained and set out in the tender specifications.

296    In the third place, in the reply, the applicants allege an infringement of the obligation to state reasons. The ground alleging failure to tailor to the EIT’s requirements is a new ground, put forward in the course of the proceedings before the Court.

297    In that regard, suffice it to note that, as set out in paragraphs 291 to 294 above, it is sufficiently clear from that observation, inter alia from the EIT’s statements contained in the EIT’s letter of 26 May 2014 that, in fact, that observation referred to the failure to tailor the tender to the EIT. In that context, it must be remembered that an irregularity affecting the statement of reasons of an act does not give rise to an infringement of the obligation to state reasons where the addressee of the act was nevertheless in a position to ascertain the real reasons for the decision (see paragraph 271 above). In the present case, the applicants were in a position to understand that the evaluation committee in fact meant that their tender had not been tailored to the EIT.

298    Therefore, this argument must be rejected as well.

299    Therefore, the complaint directed at the evaluation of the applicants’ tender in respect of the sub-criterion set out in point 5.3.4 of the standard submission form must be rejected in its entirety.

 The complaint directed at the sub-criterion set out in point 5.3.5 of the standard submission form

300    Point 5.3.5 of the standard submission form asked tenderers to provide the following indications:

‘Describe the development methods of new applications covered by this tender and the risks related and the quality assurance procedure to deliver quality solutions.’

301    The applicants answered that question in part Q.5.3.5 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.3’.

302    The evaluation committee set out the following argument with respect to that reply in the evaluation report:

‘The focus of the answer in the context of the question is fair, specificity to the context of the tender is poor and the overall value of the answer is good.

A procedural approach has been clearly explained by taking standards into consideration.

However, a special focus on the tenderer’s specificities and on the EIT’s context has not been provided.

Presence of QA procedures are included.

KPI accompanied with a quality plan are provided.

Concrete tools to support the suggested approach have not been provided.’

303    The evaluation committee gave the applicants’ tender a score of 4.27/7 for this sub-criterion.

304    The applicants take the view that those observations and that evaluation are vitiated by manifest errors.

305    In the first place, they submit that that sub-criterion requested a description of the methods applied, not the tools. In the second place, they argue that the evaluation committee’s comment that the focus of their answer was only ‘fair’ is manifestly incorrect. Their answer gave all the relevant information and stated exactly what had been requested in the tender specifications, whilst complying with the one-page answer limit imposed by the tender specifications.

306    In that regard, firstly, it is not manifestly incorrect for a contracting authority to take account of the tools that the tenderer intends to use as part of the qualitative evaluation of a proposed methodology. Therefore, the evaluation committee did not make a manifest error in taking into account the fact that, in their tender, the applicants had not provided specific indications about the tools to be used in support of the proposed approach.

307    Secondly, it must be remembered that, in the tender specifications, the EIT required the solution offered to state specifically which applications were covered by the tender and its requirements and that the approach proposed in the applicants’ answer did not take its specific needs into account.

308    Accordingly, those arguments must be rejected.

309    In the third place, the applicants submit that the evaluation of the tender ranked first is incorrect and that their tender was penalised as compared to it.

310    Firstly, they argue that, with regard to the tender ranked first, the evaluation committee took account of elements entirely unrelated to the purpose of the relevant sub-criterion, being the development method. In that regard, they contest the following observation by the evaluation committee:

‘Third parties engagement, particularly towards the KICs. Explicit mention of EIT and KIC stakeholder engagement, level of IT knowledge, and time constraints.’

311    In that context, it must be remembered that, under point 3 of the tender specifications, tenderers were asked to propose a solution aimed specifically at the applications covered by the tender and the EIT’s requirements. It is also clear from the tender specifications that tenderers were to take account of the EIT’s requirements and situation, particularly the KICs. In the light of those considerations, it is not out of context to take into account the reference to the EIT, third parties’ engagement, in particular for those communities, and the engagement of the stakeholders in those communities. This also holds true for the comment about the level of IT knowledge and time constraints.

312    In the light of those considerations, that argument must be rejected.

313    Secondly, the applicants submit that they were penalised because they did not describe the tools they would use, whereas the successful tenderer achieved a score of 100%, even though the evaluation committee’s comment was identical for its tender.

314    In that regard, it should be noted firstly that the tender ranked first was given a score of ‘excellent’ for its specificity and a score of only ‘good’ for its focus. Therefore, contrary to the applicants’ assertions, the evaluation committee did take account of the lack of clarifications in that tender concerning tools for ongoing development.

315    Moreover, regarding the difference between the scores given for focus, it should be noted that, for the applicants’ tender, the evaluation committee found that there was not a sufficient general description of the tools, whilst the corresponding observation for the tender ranked first referred only to tools for continuous deployment. In the light of that difference between the two tenders, it is not manifestly incorrect that, for the focus criterion, the tender ranked first was given a score of ‘good’, whilst the applicants’ tender was given a score of ‘fair’.

316    This plea must therefore also be rejected.

317    Thirdly, so too must the applicants’ argument, alleging that because of the established lack of focus about the tools used for continuous deployment, the overall value of the tender ranked first could not be found to be excellent, be rejected. Even if there is a certain overlap between the elements focus, specificity and the overall value, that does not preclude the EIT from finding the specificity and the overall value of the tender to be excellent, even though the focus is merely good. In that context, it must also be remembered that, in awarding the score for that sub-criterion to the tender ranked first, the evaluation committee took account of the fact that the tender was not perfect on all points. The absence of clarifications about tools for continuous deployment is reflected in the final score, which overall is quite good: 6.72 points out of 7.

318    Fourthly, the applicants’ arguments that the non-linear and non-proportional approach applied for the evaluation of tenders also affected the evaluation of the tender ranked first must be rejected: see paragraphs 60 to 67 above.

319    Accordingly, all of the arguments directed at the evaluation of the tender ranked first must be rejected.

320    In the fourth place, the applicants submit that the EIT acknowledged that the evaluation committee had compared their answer to the tender ranked first.

321    In that regard, although in its letter of 26 May 2104 the EIT did compare the two tenders, in so doing it merely responded to an allegation made by the applicants. Incidentally, the applicants have not put forward any further argument or evidence liable to demonstrate that their allegation is well founded.

322    In the fifth place, the applicants’ arguments alleging an infringement of the obligation to state reasons must be rejected.

323    Firstly, the argument alleging that the EIT based itself on new grounds that it put forward for the first time in the proceedings before the Court must be rejected. In fact, it is clear that the statement of reasons that was the subject of a substantive examination above was to be found in the letters sent by the EIT to the applicants.

324    Secondly, the applicants argue that the EIT did not give a sufficient statement of reasons as to why the focus of their tender was merely fair. In response, suffice it to note that the grounds set out in 306 and 307 above highlight clearly and unequivocally the considerations on which the EIT based itself, thus enabling the applicants to ascertain the reasons for that assessment and the Court to exercise its power of review.

325    Accordingly, all of the arguments directed at the evaluation of the applicants’ answer relating to the sub-criterion laid down in point 5.3.5 of the standard submission form must be rejected, as must the complaint about that point in its entirety.

 The complaint directed at the sub-criterion laid down in point 5.3.6 of the standard submission form

326    Point 5.3.6 of the standard submission form required tenderers to answer the following question:

‘Describe the reporting modalities to EIT of the [progress] of the project.’

327    The applicants answered that question in part Q.5.3.6 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.3’.

328    The evaluation committee made the following observations with respect to that reply in the evaluation report:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is fair and the overall value of the answer is fair.

No reference on an incident management report.

High volume of reporting is suggested and a concrete method is described.’

329    The evaluation committee gave the applicants’ tender a score of 3.2/5 for this sub-criterion.

330    The applicants submit that the evaluation committee’s comments on this point are vitiated by manifest errors of assessment.

331    In the first place, they state that, contrary to the evaluation committee’s findings, incident management is clearly included in the reports proposed in the tender. The monthly reports concern only the progress of the framework contract as a whole. All other types of incident reporting can take place only at the level of the specific contract. Their tender stated that they would cover all incidents in the same manner, as provided for in each specific contract.

332    Firstly, in that regard, it should be noted that the applicants’ tender provides for incidents to be monitored in the monthly progress report. However, it does not provide for a specific incident report to be drawn up outside the monthly calendar. Therefore, it is clear that the evaluation committee’s comment that no reference is made to an incident management report in that part of the tender concerning the sub-criterion set out in point 5.3.6 of the standard submission form reflects the content of the applicants’ tender.

333    Secondly, the applicants’ argue that provision is made for incident management reports at the level of specific contracts. However, there was nothing precluding their tender from addressing proactively the manner in which contract-related incident management reports would be drawn up.

334    Therefore, the arguments put forward by the applicants do not make out proof of a manifest error affecting the evaluation committee’s comment about incident management reports.

335    In the second place, the applicants submit that, in its comment about their answer to the question set out in point 5.3.3 of the standard submission form, the evaluation committee acknowledged that their approach would include ‘auto-reporting’ on service support. Consequently, the positive comments given to the tender ranked first for the proposal of ‘low burden’ proactive reports ought to have applied to their tender as well.

336    In that regard, the applicants take the view that the evaluation committee ought to have taken account of elements set out in the indications they gave in relation to another point of the standard submission form, point 5.3.3. It is clear, however, that the evaluation committee did not make a manifest error of assessment in evaluating the tenders only in relation to award sub-criterion 5.3.6 of that form and in taking account solely of indications given in relation to that specific award sub-criterion. Such an approach is justified inter alia by the concern to abide by the specific page-number limitation imposed on tenderers, to prevent that limitation from being circumvented and to treat all tenderers in the same manner (see paragraph 128 above).

337    Consequently, this argument must also be rejected.

338    In the third place, the applicants state that it was incorrect of the EIT to accuse their tender of causing high costs. That criterion is out of place in the award phase, when only the technical merits of the tender should be assessed. In any event, the reports are not billed to the EIT. Rather, they are included in the ‘person day’ rates indicated in the tender and are lower than those of the tender ranked first.

339    In that regard, suffice it to note that the EIT made no comments to that effect. It merely stated that the tender ranked first offered a solution with a ‘low burden’, which does not imply that the applicants had high rates.

340    Therefore, this argument must also be rejected, as must the complaint directed at the evaluation of the applicants’ tender in relation to the sub-criterion set out in point 5.3.6 of the submission form in its entirety.

 The complaint directed at the general comment about the evaluation of the criterion set out in point 5.3 of the standard submission form

341    The evaluation committee stated the following by way of a general observation about the applicants’ tender in relation to the criterion set out in point 5.3 of the standard submission form:

‘There is a lack of leadership, or managerial support throughout this section. However, they rely on a system for remote support. They have demonstrated a clear, well-structured approach for their services by using standards and methods.’

342    The evaluation committee gave the applicants’ tender a score of 21.63/34 for this sub-criterion.

343    In the first place, the applicants state that the comment about a clear lack of leadership and managerial support in their tender is vitiated by a manifest error of assessment. They defined the managers’ roles in accordance with the provisions of the tender specifications. Their tender provided for distinct procedures and functions for dealing with requests originating from the EIT, which were to be forwarded to specific people charged with specifically-defined tasks. The indications in their tender in relation to the sub-criterion set out in point 5.3.2 of the standard submission form refers expressly to the Human Resources Manager, the Competence Manager and the Service Supervisor. The outline provided in that section also indicates the managerial roles for each activity. The role of the project manager in the reporting procedure is referred to in the answer to the question set out in point 5.3.6 of the standard submission form. The page limit did not allow for repetitions.

344    In that regard, firstly, in their answers to the questions in points 5.3.1, 5.3.3, 5.3.4 and 5.3.5 of the standard submission form, relating to service support, change requests and new development, methods for developing new applications and the quality assurance procedure put in place to deliver quality solutions, the applicants failed to state how managerial support or human resources management would be involved.

345    Secondly, it should be noted that, in the answer to the question set out in point 5.3.2 of the standard submission form, the Competence Manager and the Service Supervisor are referred to only briefly in relation to training, whilst the project manager’s mission is referred to briefly in the answer to the question set out in point 5.3.6 of that form concerning reporting.

346    In the light of those circumstances, the evaluation committee’s comment about the lack of leadership or managerial support in the answers concerning criterion 5.3 of the standard submission form is not vitiated by manifest errors of assessment. It is clear inter alia that the managers’ missions were not clearly defined and that the manner in which the managers were to assist staff working in direct contact with the EIT was not explained.

347    In the second place, the applicants submit that the EIT amended the evaluation committee’s comments in the course of the proceedings before the Court. However, all of the comments examined above were communicated previously to the applicants in the letter of 25 April 2014.

348    In the third place and in any event, the score given by the evaluation committee to the applicants’ tender for criterion 5.3 of the standard submission form is already justified in the scores given for the sub-criteria set out in points 5.3.1 to 5.3.6 of that form. The score of 21.63 points corresponds to the total of the scores given for the different sub-criteria.

349    Consequently, the complaint directed at the general comment concerning criterion 5.3 of the standard submission form must be rejected, as must the part directed at criterion 5.3 in its entirety.

e)     The fourth part: the criterion set out in point 5.4 of the standard submission form

350    The technical award criterion set out in point 5.4 of the standard submission form is directed at the quality of the tenderer’s technical proposal in the field of tendering procedures. Tenderers were asked to submit their proposals in respect of the seven sub-criteria set out in points 5.4.1.1 to 5.4.1.6 and 5.4.2 of the form.

351    The applicants submit that the EIT’s comments about the sub-criteria laid down in points 5.4.1.1 to 5.4.1.3, 5.4.1.5, 5.4.1.6 and 5.4.2 of the standard submission form and its general comment about the criterion laid down in point 5.4 are vitiated by errors.

352    The EIT disputes those arguments.

 The complaint directed at the sub-criterion set out in point 5.4.1.1 of the standard submission form

353    Point 5.4.1.1 of the standard submission form asked tenderers to provide an overall analysis of the most important points to be taken into consideration for delivering the project on schedule according to the Business Milestones, in the light of the market description and profiles referred to in the technical requirements.

354    The applicants’ indications are to be found in part Q.5.4.1.1 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.4’.

355    The evaluation committee made the following observations with respect to those indications in the evaluation report:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is poor and the overall value of the answer is good.

This is focused on delays caused to guidance or project definition by EIT, not a proactive method to provide ideas.

Rather focused on the organisational part and not on the software development life cycle.

Very few IT technical items are described.

Good introduction of KPIs SLA.’

356    The evaluation committee gave the applicants’ tender a score of 3.9/6 for this sub-criterion.

357    The applicants maintain that some of those comments are incorrect.

358    In the first place, they state that the evaluation committee’s comment that the emphasis in their tender focused more on organisation and not on the software development life cycle is incorrect. The evaluation committee disregarded the fact that their tender addressed the technical questions as required by the tender specifications and did not take account of elements in their answer that were relevant for software development. Their tender included an indication about early submission of deliverables related to the products, such as table of contents, prototypes, designs and early releases, in order to obtain feedback on what the client wanted to see improved.

359    In that regard, suffice it to note that those arguments do not prove that the evaluation committee’s observation that the emphasis focused more on organisation is vitiated by a manifest error of assessment.

360    It cannot be inferred from that comment that the evaluation committee considered that the applicants’ tender did not contain any useful indication about the software development life cycle and that it did not take account of those aspects.

361    On the contrary, it is clear that, although the evaluation committee observed that the tender contained very little in the way of IT information, it gave a score of ‘good’ for the focus of the applicants’ tender for the sub-criterion set out in point 5.4.1.1 of the standard submission form.

362    This argument must therefore be rejected.

363    In the second place, the applicants’ argument directed at the evaluation committee’s use of the words ‘it seems’ and ‘rather’ in its comment must be rejected. Although such a choice of words may not be recommendable for justifying scores, it is clear that the considerations on which the EIT based its evaluation are sufficiently clear from those comments.

364    In the light of the foregoing considerations, the complaint directed at the evaluation of the applicants’ indications for the sub-criterion set out in point 5.4.1.1 of the standard submission form must be rejected.

 The complaint directed at the sub-criterion set out in point 5.4.1.3 of the standard submission form

365    Point 5.4.1.3 of the standard submission form asked tenderers to provide an overall analysis of the technologies and tools used in the tender ‘(i.e. MS SQL Server RDBMS, .Net, XML, MS SQL Server BI)’, taking into account the description of the contract and the profiles listed in the technical requirements.

366    The applicants’ indications about that sub-criterion are to be found in part Q.5.4.1.3 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.4’.

367    The evaluation committee made the following comments with respect to those indications in the evaluation report:

‘The focus of the answer in the context of the question is poor, specificity to the context of the tender is very poor and the overall value of the answer is poor.

The answer provided is an out-of-the-box sales area.

Identical list of technologies as in the question.

Does not evaluate the offered technologies.’

368    The evaluation committee gave the applicants’ tender a score of 0.84/4 for this sub-criterion.

369    The applicants take the view that some of those comments are manifestly incorrect.

370    In the first place, they state that the evaluation committee’s comment about an ‘out-of-the-box sales area’ approach is unfounded. They integrated into their tender an evaluation of the technologies and their capacities, adapted to the call for tenders and the EIT’s requirements. Their answer shows that they were aware of the capacities of the technologies requested and that they knew how to use them in the best way possible for the EIT.

371    In that regard, suffice it to note that the indications made by the applicants about the aforementioned technologies are very general, take no account of the EIT’s requirements and the particularities of the market; nor do they specify how those technologies could be used for the benefit of the EIT. Therefore, contrary to their assertions, the EIT did not make a manifest error of assessment in observing that they had not provided any indications about how they would use those technologies for the EIT’s benefit given the market’s requirements, but simply provided general indications.

372    This argument must therefore be rejected.

373    In the second place, the applicants state that their answer indeed addressed the question put in accordance with what was requested in point 5.4.1.3 of the standard submission form, under which exactly and solely the technologies referred to in the tender specifications were to be discussed. This is clear from the use of the abbreviation ‘i.e.’ before the technologies listed. As the variants and options were not authorised, any departure would have been an infringement of the tender specifications which would have led to the exclusion of the tenderer.

374    In that regard, firstly, it must be borne in mind that the evaluation committee merely observed that, in their tender, the applicants had mentioned the same list of technologies as that referred to in point 5.4.1.3 of the standard submission form. Yet, contrary to what the applicants suggest, it is not apparent from that comment that that was taken into account to their detriment. This argument must therefore be rejected.

375    In any event, despite the fact that the abbreviation ‘i.e.’ means ‘that is to say’ and that, according to the call for tenders documents, variants, meaning offers or technical alternatives in relation to the technical specifications laid down in the call for tenders, were not permitted, the EIT could take account of references to complementary technologies or tools in so far as they were not variants but departures, meaning elements giving a specific added value to the tender whilst complying with the technical specifications laid down in those documents (judgment of 23 November 2011, bpost v Commission, T‑514/09, not published, EU:T:2011:689, paragraphs 79 to 82).

376    Therefore, the complaint directed at the evaluation of the sub-criterion set out in point 5.4.1.3 of the standard submission form must be rejected.

 The complaint directed at the sub-criterion set out in point 5.4.1.5 of the standard submission form

377    Point 5.4.1.5 of the standard submission form requested tenderers to indicate the scale-up of the EIT’s infrastructure to support high availability and scalability, taking account of the market description and the profiles listed in the technical requirements.

378    The applicants answered that question in part Q.5.4.1.5 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.4’.

379    The evaluation committee made the following comments with respect to that reply in the evaluation report:

‘The focus of the answer in the context of the question is fair, specificity to the context of the tender is poor and the overall value of the answer is good.

They have clear procedures in place, demonstrating capability to perform duties in a formalised process.

The answer does not make reference to EIT or TWP.

No innovative ideas are provided.’

380    The evaluation committee gave the applicants’ tender a score of 3.66/6 for this sub-criterion.

381    The applicants take the view that some of those comments are manifestly incorrect.

382    In the first place, they submit that the evaluation committee’s comment that their answer made no reference to the Triennial Work Programme is vitiated by manifest errors of assessment.

383    Firstly, the absence of any reference to the Triennial Work Programme is not a factor entailing a reduction in the score given to their tender.

384    In that context, the applicants argue first of all that the Triennial Work Programme does not give any specific information differing from that already included in the tender specifications. On the contrary, the requirements of the tender specifications go beyond the content of that programme in transforming its operational objectives into requirements for services specifically for the framework contract of the call for tenders at issue here. Therefore, in their tender, given the requirements as defined in the tender specifications, they also covered those arising from the Triennial Work Programme.

385    In that regard, it must be concluded that, contrary to the applicants’ assertions, tenderers could not expect the tender specifications to integrate all of the relevant information about the Triennial Work Programme.

386    It is of course apparent from Article 3.1 of the tender specifications that the requirements of those tender specifications are designed so as to guarantee that the EIT is able to identify and procure the necessary services to have the required support in the form of IT operations in order to carry out its mission of achieving its strategic objectives as set out in the Triennial Work Programme.

387    However, contrary to the applicants’ assertions, that does not mean that tenderers could opt to take account solely of the information in the tender specifications, without considering the EIT’s Triennial Work Programme. On the contrary, in Article 3.2 of the tender specifications reference is made to a website where information on the Triennial Work Programme may be consulted, which shows that the specifications were not intended to contain all the relevant information about the Triennial Work Programme.

388    Secondly, the applicants argue that the Triennial Work Programme contains only limited specific information about timetables and IT plans and that the sub-criteria laid down in points 5.4.1.4 and 5.4.1.5 of the standard submission form already covered all relevant points contained in the Work Programme.

389    Those arguments must also be rejected.

390    It is in fact clear that the Triennial Work Programme contains information going beyond the indications laid down in point 5.4.1.5 of the tender specifications and that were relevant for preparing the tenders.

391    Thus, it contains an explicit reference to the need for preparing IT systems with a view to providing the KICs with a results-oriented monitoring tool. Furthermore, the KICs are the principal players in the EIT’s model as described in the Triennial Work Programme.

392    The Triennial Work Programme also contains indications about the most important processes, including preparation, submission and evaluation of business plans and performance- and result-oriented monitoring.

393    Moreover, the objective referred to in the Work Programme aimed at improving processes on the basis of earlier experiences and preparing for the extension of IT systems and processes in order to implement results-oriented monitoring for the next wave of KICs had to be considered relevant for the evaluation of the applicants’ answer for the sub-criterion set out in point 5.4.1.5 of the standard submission form, which concerns specifically the scale-up of the IT infrastructure in the light of the planned increase in the number of KICs and the EIT’s budget.

394    Thirdly, there are no grounds for upholding the applicants’ argument alleging that, in its letter of 26 May 2014, the EIT acknowledged that the Triennial Work Programme was not relevant for the preparation of the tender. Contrary to the applicants’ assertions, it cannot be inferred from the fact that the EIT referred to point 3.1 of the tender specifications in that letter that it did not consider the Work Programme to be relevant.

395    Therefore, all the applicants’ arguments alleging that the Triennial Work Programme does not give any specific information differing from that already included in the tender specifications and does not provide any additional indication about the workload and fluctuations therein as compared with those referred to in the tender specifications must be rejected.

396    Fourthly, the applicants submit that, in any event, given that most of the questions imposed a one-page limit for the answer, the mere reference to the expression ‘Triennial Work Programme’ did not add any real value, since the tender specifications contained considerably more and more detailed information on what was requested. The evaluation committee was incorrect in requiring an explicit reference to the ‘Triennial Work Programme’ in an answer as a crucial evaluation criterion.

397    In that regard, it must be remembered that, in their answer, the applicants made no reference to the Triennial Work Programme; nor did their answer take account of the need to prepare IT systems with a view to providing the KICs with a results-oriented monitoring tool or make any reference to the role of the KICs and the need to adapt the EIT’s IT infrastructure.

398    Moreover, as regards the applicants’ submission that the mere reference to the expression ‘Triennial Work Programme’ added no real value to their tender, suffice it to note that it cannot be inferred from the EIT’s observation that a mere reference to the Work Programme, with no account being taken of its content, was sufficient to be rewarded.

399    It follows that none of the arguments put forward by the applicants establishes that the evaluation committee’s comment that they did not take account in their tender of the objectives set out in the Triennial Work Programme is vitiated by a manifest error of assessment.

400    In the second place, the applicants state that the evaluation committee’s comment about the lack of reference to the EIT is manifestly incorrect, as the evaluation committee disregarded the fact that their tender contained numerous references to the EIT and its specific technologies.

401    In that regard, firstly, it should be noted that, in its letter of 25 April 2014, the EIT had informed the applicants of the evaluation committee’s comment that their answer contained no reference to the EIT. However, in its letter of 26 May 2014, the EIT had stated in that regard that it was not sufficient to refer to it as any company, without adapting the solutions proposed to its specific needs. A reasonably informed tenderer in the applicants’ position exercising ordinary care and applying that focus ought to have realised that that comment in fact referred to a failure to adapt the tender to the EIT and that a mere insertion of its name without any substantive effort to adapt the solutions proposed to its specific needs could not be considered to be adequate adaptation.

402    Secondly, that comment is not manifestly incorrect. Although the EIT was referred to several times in the applicants’ tender, it is clear that the applicants merely applied a generic approach and simply inserted the EIT’s name a number of times, without making any substantive adaptations of the solutions proposed to its specific needs.

403    Thirdly, the applicants’ argument that that consideration was raised in the course of the administrative proceedings only at the stage of proceedings before the Court cannot be upheld. Suffice it to note in that regard that that comment was in the EIT’s letter of 25 April 2014 and was clarified in the letter of 26 May 2014.

404    Therefore, the applicants’ argument directed at the evaluation committee’s comment about the lack of references to the EIT must also be rejected.

405    In the third place, the applicants state that the comment about the alleged lack of innovative ideas is manifestly incorrect. They proposed a mix of innovative ideas and tried-and-tested methods in the supply of services and integrated ‘light’ approaches into the services tender, including a service-oriented architecture allowing for the re-use of elements.

406    It should be noted that the only argument put forward by the applicants in that regard is where they proposed to use a service-oriented architecture allowing for the re-use of elements. However, as the applicants do not indicate where in their tender they referred to such architecture, this argument must be rejected as inadmissible under Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991.

407    In the fourth place, the applicants state that the EIT made a manifest error of assessment in awarding 30% of the points for each question on the basis of the specificity of the tender, although that criterion was not referred to in the tender specifications. That argument must be rejected: see the findings in paragraphs 32 to 56 above.

408    Therefore, the complaint directed at the evaluation of the applicants’ indications about the sub-criterion set out in point 5.4.1.5 of the submission form must also be rejected.

 The complaint directed at the sub-criterion set out in point 5.4.2 of the standard submission form

409    Point 5.4.2 of the standard submission form asked tenderers to indicate, in order of priority, the 10 most important technological points that would influence that tender domain in the next four years.

410    The applicants answered that question in part Q.5.4.2 of the document entitled ‘Part II - SSF Technical Evaluation Part/SSF S5/Q.5.4’.

411    The evaluation committee made the following observations with respect to that reply in the evaluation report:

‘The focus of the answer in the context of the question is good, specificity to the context of the tender is poor and the overall value of the answer is good.

Social objectives are not met (referring only to web 2.0).

Strong understanding of technical parts and data issues.

The answer provided not relevant to the EIT’s scope.’

412    The evaluation committee gave the applicants’ tender a score of 5.85/9 for this sub-criterion.

413    The applicants argue that some of those observations are incorrect.

414    In the first place, they state that their tender met the requirements of the tender specifications, with web 2.0 and collaborative issues having been fully covered.

415    In that regard, it should be noted that the evaluation committee did not make a manifest error of assessment in considering that the applicants had not referred to web 3.0 and had not explained why web 2.0 was sufficient for the EIT. Given the EIT’s objectives, it cannot be considered manifestly incorrect to take account of web 3.0 (the Semantic Web).

416    In that context, nor have the applicants put forward any argument casting doubt on the comment that the answer provided was not relevant in the light of the EIT’s activities.

417    In the second place, the applicants state that the tender ranked first should not have obtained a score of 9/9 for this point. The answer is not focused on the question and is out of scope. Therefore, it should not have received a 100% score for the focus element.

418    In that regard, firstly, it should be noted that the evaluation committee observed the following in respect of the tender ranked first:

‘Clearly identified areas (functional, technical, process) with the risks and mitigation considered … The list is strategically driven.’

419    Secondly, contrary to the applicants’ assertions, it cannot be inferred from those comments that the list submitted by the tenderer ranked first did not concern technical points, as requested in point 5.2.2 of the standard submission form. In its letter of 26 May 2014, the EIT stated that, in that tender, the tenderer had listed the technologies with relevant reasons and had explained the relative importance of each factor. It can thus be inferred from those comments that the list submitted by the tenderer ranked first concerned technical points.

420    Therefore, the arguments put forward by the applicants do not establish that the elements referred to by the tenderer ranked first were not focused on the question.

421    In the third place, the applicants submit that the EIT’s answer was not sufficient, as it did not list the 10 technical points referred to by the tenderer ranked first and did not explain how that list was better than the one proposed by them.

422    That argument alleges infringement of the obligation to state reasons.

423    In that regard, firstly, it must be borne in mind that whilst Article 133(2) of the Financial Regulation provides that the contracting authority is required to communicate the characteristics and relative advantages of the tender ranked first, it also states that some elements need not be communicated where doing so would be detrimental to undertakings’ legitimate business interests. In that context, it should also be remembered that the Commission cannot be required to provide a detailed summary of how each detail of its tender was taken into account when the tender was evaluated (see paragraph 104 above).

424    Secondly, it should be noted that the information requested by the EIT is liable to be information the disclosure of which could adversely affect the legitimate business interests of the tenderer ranked first. The indications of the tenderer ranked first concerning the 10 technical points it considered to be the most important from among those that would influence the tender domain in the next four years enable conclusions to be drawn as to the strategy it envisages for the future.

425    Thirdly, it must be borne in mind that it could be inferred from the evaluation committee’s comments that, contrary to the tender ranked first, the applicants had not taken account of web 3.0 and had not provided a relevant answer in the light of the EIT’s field of activity, which in itself provides sufficient grounds on which to justify the difference between the scores given to the two tenders.

426    In the light of the foregoing considerations, the grounds communicated in the EIT’s letters of 11, 25 April and 26 May 2014 must be held to be sufficient.

427    Therefore, the complaint aimed at proving an error in the evaluation of the sub-criterion set out in point 5.4.2 of the standard submission form must be rejected.

 The complaint directed at the general comment about the evaluation of criterion 5.4 and sub-criteria 5.4.1.2 and 5.4.1.6 of the standard submission form

428    As a general observation concerning the applicants’ tender in relation to the criterion set out in point 5.4 of the standard submission form, the evaluation committee observed:

‘The tenderer did not offer … any innovative ideas, or light approaches to their offer. There was a lack of relevance to the scope of the tender and particularly to the EIT.’

429    The evaluation committee gave the applicants’ tender a score of 25.72/44 for this criterion.

430    The applicants take the view that the evaluation committee’s comment is vague and unfounded.

431    In the first place, the argument alleging that the EIT should not have taken account of the lack of references to the Triennial Work Programme in their indications about sub-criteria 5.4.1.2 and 5.4.1.6 must be rejected. In that regard, it is sufficient to refer to the findings made in paragraphs 382 to 399 above.

432    In the second place, the applicants’ argument, to the effect that they proposed a mix of innovative ideas and tried-and-tested methods in the supply of services and integrated ‘light’ approaches in the services tender inter alia by using a service-oriented architecture allowing for the re-use of elements, must be rejected: see paragraph 406 above.

433    In the third place and in any event, those arguments do not cast doubt on the score of 25.72/44 points that the evaluation committee gave to the applicants’ tender in respect of the criterion set out in point 5.4 of the tender specifications. That score corresponds to the total of all the scores given for the sub-criteria set out in points 5.4.1.1 to 5.4.1.6 and 5.4.2 of the standard submission form. As the applicants have not demonstrated that the EIT’s comments about one of those sub-criteria were incorrect, their argument does not cast doubt on the consolidated score for the criterion set out in point 5.4 of the tender specifications.

434    This argument of the applicants must therefore also be rejected.

435    Therefore, the complaint directed at the evaluation of the tender in respect of the sub-criteria set out in points 5.4.1.2 and 5.4.1.6 of the standard submission form must be rejected, as must the part concerning the criterion set out in point 5.4 of the standard submission form.

436    Therefore, the first and third pleas must be rejected in their entirety.

3.     The fourth plea: infringement of Regulation No 1049/2001 and the rules governing conflicts of interest for the members of the evaluation committee

437    The applicants submit that, in failing to disclose the names of the members of the evaluation committee, the EIT infringed both the rules on conflict of interest for members of the evaluation committee and the fundamental right of access to documents under the provisions of Regulation No 1049/2001.

438    In the first place, the applicants state that the EIT infringed the rules on conflict of interest for members of the evaluation committee. Suffice it to note that, after learning the names of the members of the evaluation committee, the applicants acknowledged that they could not prove that there was any conflict of interest. This complaint must therefore be rejected.

439    In the second place, under the fourth plea, the applicants submit that their letters of 11 April and 12 May 2014 had to be regarded as requests for access to documents for the purposes of Regulation No 1049/2001 and that the EIT infringed the provisions of that regulation. Those arguments have not been put forward in support of the action for annulment of the decision of 11 April 2014. In any event, even if they had been put forward in support of the action for annulment of that decision, those arguments do not cast doubt on its well-foundedness. As the EIT sent its letter of 11 April 2014 at a time when the applicants had not yet requested disclosure of the list of the members of the evaluation committee, that letter cannot be considered a measure adopted on the basis of Regulation No 1049/2001.

440    Therefore, in so far as the fourth plea is put forward in support of the action for annulment of the decision of 11 April 2014, it must be rejected.

441    As all of the pleas must be rejected, so too must the action for annulment of the decision of 11 April 2014.

B –  The action for annulment of the letter of 25 April 2014

442    The applicants also seek annulment of the letter of 25 April 2014.

443    In that context, it must be borne in mind that the pleas put forward by the applicants allege not only infringement of the rules governing the procedure for the award of public contracts, but also infringement of the provisions of Regulation No 1049/2001.

444    In the first place, the applicants submit that their letters of 11 April and 12 May 2014 must be regarded as requests for access to documents for the purposes of Regulation No 1049/2001. In those letters, they asked to be provided with a list showing the names of the members of the evaluation committee in order to ascertain whether or not there was any conflict of interest. Regulation No 1049/2001 does not prescribe a specific form for an application for access to documents. Nor is there any requirement that such applications must include an explicit reference to that regulation. Nevertheless, the EIT seemed to be fully aware of the nature of their applications, since it provided answers concerning the disclosure of the names of the members of the evaluation committee and stated the reasons for its refusal.

445    In the second place, the applicants maintain that the EIT infringed Regulation No 1049/2001. First of all, it breached the right of access provided for in that regulation by ignoring their applications and refusing on a number of occasions to provide them with a list of the names of the members of the evaluation committee. Contrary to the EIT’s assertion stated in its letter of 26 May 2014, the refusal to supply the list of members of the evaluation committee cannot be based on Article 4(1)(b) of Regulation No 1049/2001. In any event, that refusal was not sufficiently reasoned. Next, the applicants maintain that the EIT breached the obligation to act promptly laid down in Article 8 of Regulation No 1049/2001.

446    The EIT disputes those arguments.

447    The action for annulment of the letter of 25 April 2014 must be rejected.

448    Contrary to the applicants’ assertions, the letter of 25 April 2014 is not a challengeable act for the purposes of Article 263 TFEU.

449    According to settled case-law, any measure the legal effects of which are binding on and capable of affecting the interests of the applicant by bringing about a distinct change in his legal position is an act or a decision which may be the subject of an action under Article 263 TFEU for a declaration that it is void (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9).

450    Firstly, the refusal to provide the list of the members of the evaluation committee contained in the EIT’s letter of 25 April 2014 is not a challengeable act under the provisions of Regulation No 1049/2001.

451    In the present case, after receiving the EIT’s letter of 11 April 2014 informing the applicants that their tender had been ranked second, on the same day European Dynamics Luxembourg requested a copy of the evaluation report concerning their tender and that of the successful tenderer, and asked to know the names of the members of the evaluation committee. In its letter of 25 April 2014, the EIT explained that it was not authorised to disclose the names of the members of the evaluation committee.

452    Irrespective of the question whether the applicants’ request of 11 April 2014 could be regarded as an initial request for access to documents within the meaning of Articles 6 and 7 of Regulation No 1049/2001, as the applicants maintain it was, or fell to be regarded as solely forming part of a public procurement procedure, as the EIT maintains, in any event, a refusal to provide the list of the members of the evaluation committee contained in the letter of 25 April 2014 cannot be considered a challengeable act under the provisions of Regulation No 1049/2001.

453    Under the procedure introduced by Regulation No 1049/2001, a party requesting access may not, as a rule, challenge an initial refusal for access to documents, but must make a confirmatory application. A refusal of a confirmatory application is definitive in nature and is therefore a challengeable act for the purposes of Article 263 TFEU (see, to that effect, judgment of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, not published, EU:T:2009:318, paragraphs 70 to 73).

454    The Court has held, ‘exceptionally’ and in very specific circumstances, that an action for the annulment of the initial application could be a challengeable act. However, that exception concerned a scenario where, in its letter stating the reasons for refusal of the initial application, the institution or agency had failed to inform the applicant of its right to make a confirmatory application, and subsequently, the applicant had not made a confirmatory application (judgment of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, not published, EU:T:2009:318, paragraphs 73 and 75).

455    That case-law cannot, however, be applied to the present case, since even if the applicants’ request must be regarded as an initial application within the meaning of Regulation No 1049/2001, and even if there may have been a possible omission by the EIT to inform them of their right to make a confirmatory application, they in fact made a new request in their letter of 12 May 2014.

456    Secondly, the EIT’s letter of 25 April 2014 cannot be regarded as a challengeable act under the rules governing the procedure for awarding public contracts. In that regard, it must be borne in mind that, by its letter of 11 April 2014, the EIT informed the applicants of its decision to rank their tender second, below that of the successful tenderer. By contrast, by its letter of 25 April 2014, the EIT merely responded to the request for additional information submitted by the applicants after they were informed of that decision. In the context of the tendering procedure at issue here, the EIT’s letter of 25 April 2014 is therefore merely communication within the meaning of Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules. The Court has held that such a letter is not in the nature of a decision and is therefore not a challengeable act for the purposes of Article 263 TFEU (judgment of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, not published, EU:T:2009:318, paragraph 76).

457    Therefore, in the light of the foregoing considerations, the action for annulment of the letter of 25 April 2014 must be rejected, without its being necessary to rule on the question whether the applicants still have locus standi in that regard.

C –  The action for annulment of the other related decisions

458    The applicants also seek annulment of all the other decisions related to the EIT’s decision of 11 April 2014.

459    It should be recalled in that regard that the subject matter of the dispute and the applicant’s heads of claims are two essential indications which must, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and with Article 44(1)(c) and (d) of the Rules of Procedure of 2 May 1991, be included in the application initiating the proceedings (order of 7 May 2013, TME v Commission, C‑418/12 P, not published, EU:C:2013:285, paragraph 32).

460    According to the case-law, the application initiating proceedings must state the subject matter of the proceedings and a summary of the pleas in law and that statement must be ‘sufficiently clear and precise’ as to enable the defendant to prepare its defence and the Court to rule on the application. Similarly, the heads of claim in the application initiating the proceedings must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (see order of 7 May 2013, TME v Commission, C‑418/12 P, not published, EU:C:2013:285, paragraph 33 and the case-law cited).

461    Therefore heads of claim such as those listed in the application that seek the annulment of acts related to challenged acts which are not identified must be declared inadmissible as a result of the lack of precision of their subject matter (see, to that effect, judgment of 8 July 2015, European Dynamics Luxembourg and Others v Commission, T‑536/11, EU:T:2015:476, paragraph 54).

462    It follows from the foregoing considerations that the action for annulment directed at the other decisions related to the decision of 11 April 2014 must be rejected as inadmissible.

463    Therefore, all of the actions for annulment must be rejected.

II –  Consideration of the claim for damages

464    With regards to the claim for damages, it must borne in mind that, according to settled case-law, in order to be awarded damages the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see judgment of 12 November 2008, Evropaïki Dynamiki v Commission, T‑406/06, not published, EU:T:2008:484, paragraph 133 and the case-law cited).

465    Those three conditions are cumulative. Consequently, if any one of those conditions is not satisfied, the action must be dismissed in its entirety (see judgment of 25 February 2003, Renco v Council, T‑4/01, EU:T:2003:37, paragraph 60 and the case-law cited).

466    In the present case, the claim for damages is based on illegalities vitiating the decision of 11 April 2014.

467    Yet, as the above examination shows, none of the arguments put forward by the applicants establishes that the decision of 11 April 2014 is vitiated by an illegality.

468    As one of the three cumulative conditions for awarding damages is not fulfilled, the claim for damages must be dismissed.

III –  The request for the adoption of a measure of inquiry

469    In the first place, as stated in paragraph 14 above, after submitting a document following a measure of organisation of procedure under Article 89 of the Rules of Procedure, the EIT requested the adoption of measures of inquiry ordering the production of a document under Article 91(b) of the Rules of Procedure and confidential treatment of that document vis-à-vis the applicants under Article 103 of the Rules of Procedure. It did indicate, however, that if that measure of inquiry were not adopted, it would not object to its being communicated to the applicants.

470    Regarding the request for the adoption of a measure of inquiry, it should be noted that Article 91(b) of the Rules of Procedure does not permit the Court to order, by way of measure of inquiry, the production of a document which was produced earlier following a measure of organisation of procedure. As is apparent from Article 92(3) of the Rules of Procedure, as a rule, a measure of inquiry may be ordered only when the party concerned by the measure has not complied with a measure of organisation of procedure adopted previously for that purpose. Although that provision also provides that a measure of inquiry may be ordered when the party concerned by the measure explicitly requests it, providing reasons in support thereof, the need for such a measure is not made out when a party, like the EIT in the present case, produces a document in response to a measure of organisation of procedure and states, albeit in the alternative, that it is prepared not to withdraw it from the case file and not to object to its being transmitted to the other party.

471    Moreover, it is apparent from the travaux préparatoires for the Rules of Procedure that the second scenario referred to in the first sentence of Article 92(3) thereof was included in order to prevent the adoption of a measure of organisation of procedure before a measure of inquiry where the party concerned has previously informed the Court that it was not able to produce a document in response to a measure of organisation of procedure (see second and third paragraphs of the explanatory notes explaining the objectives of Article 92 of the draft Rules of Procedure of the General Court of the European Union of 17 March 2014 (ST 7795 2014 INIT)). That is not the situation in the present case, however, since the EIT complied with the measure of organisation of procedure adopted by the Court.

472    As to the request for confidential treatment, it must be borne in mind that confidential treatment vis-à-vis the other party to the proceedings may not be requested for documents and material submitted following a measure of organisation of procedure since, under Article 65 of the Rules of Procedure, they must be served on the parties to the proceedings. Although that provision applies subject to, inter alia, Article 103 of the Rules of Procedure, which governs the treatment of confidential documents and material, the wording of that provision is very clear that it applies only to documents and material adduced before the Court following a measure of inquiry. The travaux préparatoires for the Rules of Procedure, which confirm that transmission of a document to the Court following a measure of organisation of procedure will result in that document’s being served on the other party (see second paragraph of the explanatory notes explaining the objectives of Article 92 of the draft Rules of Procedure of the General Court of the European Union of 17 March 2014 (ST 7795 2014 INIT)), also weigh in favour of Article 65 being interpreted thusly.

473    Since the EIT produced the document in question following a measure of organisation of procedure from the Court and indicated that, should a measure of inquiry ordering the production of a document under Article 91(b) of the Rules of Procedure not be adopted, it would not object to its being communicated to the applicants, that document was communicated to the applicants under Article 65 of the Rules of Procedure.

474    Therefore, the EIT’s requests must be rejected.

475    In the second place, as stated in paragraph 14 above, the applicants requested the adoption of measures of inquiry ordering the production of extracts of the evaluation report referring to the applicants’ tender and of the tender ranked first.

476    That application must also be refused.

477    In that regard, firstly, it must be borne in mind that, in public procurement procedures, a contracting authority is not under an obligation to provide an unsuccessful tenderer with a full copy of the evaluation report upon written request from the latter (see order of 20 September 2011, Evropaïki Dynamiki v Commission, C‑561/10 P, not published, EU:C:2011:598, paragraph 25).

478    Secondly, as is apparent from the examination of the arguments put forward by the applicants, the EIT’s comments about the applicants’ tender and the tender ranked first contained in the letters of 11, 25 April and 12 May 2014 highlighted its reasons sufficiently clearly in a manner that enabled the applicants to be aware of the reasons for the measure taken so as to be able to defend their rights and ascertain whether or not the decision of 11 April 2014 was well founded. Those comments also enabled the Court to exercise its power of review of its legality.

479    Therefore, for the purposes of the present dispute, the adoption of measures of inquiry ordering the production of extracts of the evaluation report referring to the applicants’ tender and the tender ranked first is not necessary.

480    In view of all the foregoing, the application must therefore be dismissed in its entirety.

 Costs

481    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the EIT.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

Delivered in open court in Luxembourg on 15 September 2016.

[Signatures]

Table of contents

Background to the dispute and contested decisions

Procedure before the General Court and forms of order sought

Law

I –  The actions for annulment

A –  The action for annulment of the decision of 11 April 2014, including the decision to award the contract

1.  The second plea in law: the evaluation method used by the evaluation committee

a)  First part: the use of coefficients relating to focus, specificity and overall value and a harmonised scoring system

b)  Second part: the use of a non-linear scoring system

c)  The third part: concealment and lack of clarity in the evaluation method

2.  First and third pleas: manifest errors of assessment, infringement of Article 110 of the Financial Regulation and Article 149 of the Implementing Rules and infringement of the obligation to state reasons

a)  Preliminary observations

Relevant provisions and case-law

The principal requirements provided for in the tender specifications

Which letters from the EIT may be taken into account

b)  The first part: the criterion set out in point 5.1 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.1.1 of the standard submission form

The complaint directed the sub-criterion set out in point 5.1.2 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.1.3 of the standard submission form

c)  The second part: the criterion set out in point 5.2 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.2.1 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.2.2 of the standard submission form

The complaint directed at the general comment concerning the evaluation of the criterion set out in point 5.2 of the standard submission form

d)  The third part: the criterion set out in point 5.3 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.3.1 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.3.3 of the standard submission form

–  The arguments directed at the observation about there being no mention of a problem-solving approach

–  The arguments directed at the comment about full service support

–  The differences between the applicants’ tender and the tender ranked first

The complaint directed at the sub-criterion set out in point 5.3.4 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.3.5 of the standard submission form

The complaint directed at the sub-criterion laid down in point 5.3.6 of the standard submission form

The complaint directed at the general comment about the evaluation of the criterion set out in point 5.3 of the standard submission form

e)  The fourth part: the criterion set out in point 5.4 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.4.1.1 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.4.1.3 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.4.1.5 of the standard submission form

The complaint directed at the sub-criterion set out in point 5.4.2 of the standard submission form

The complaint directed at the general comment about the evaluation of criterion 5.4 and sub-criteria 5.4.1.2 and 5.4.1.6 of the standard submission form

3.  The fourth plea: infringement of Regulation No 1049/2001 and the rules governing conflicts of interest for the members of the evaluation committee

B –  The action for annulment of the letter of 25 April 2014

C –  The action for annulment of the other related decisions

II –  Consideration of the claim for damages

III –  The request for the adoption of a measure of inquiry

Costs

* Language of the case: English.

© European Union
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