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

JUDGMENT OF THE GENERAL COURT (Second Chamber)

19 October 2022 (*)

(Public procurement – Tendering procedure – Acquisition, delivery, installation and maintenance of the Leonardo Supercomputer for the hosting entity Cineca – Rejection of a tenderer’s bid – Equal treatment – Principle of sound administration – Manifest error of assessment)

In Case T‑717/20,

Lenovo Global Technology Belgium BV, established in Machelen (Belgium), represented by S. Sakellariou, G. Forwood and F. Abou Zeid, lawyers,

applicant,

v

European High-Performance Computing Joint Undertaking (EuroHPC), represented by P.‑E. Partsch and F. Dewald, lawyers,

defendant,

supported by

European Commission, represented by L. André, M. Ilkova, P.‑J. Loewenthal, C. Vollrath and T. Van Noyen, acting as Agents,

intervener,

THE GENERAL COURT (Second Chamber),

composed, at the time of the deliberations, of V. Tomljenović, President, F. Schalin (Rapporteur) and I. Nõmm, Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure,

further to the hearing on 29 June 2022,

gives the following

Judgment

1        By its action based on Article 263 TFEU, the applicant, Lenovo Global Technology Belgium BV, seeks annulment of the decision Ares(2020)5103538 of the European High-Performance Computing Joint Undertaking (EuroHPC) of 29 September 2020 rejecting the tender submitted by the applicant concerning the third lot in call for tenders SMART 2019/1084 relating to the acquisition, delivery, installation and maintenance of the Leonardo Supercomputer for the hosting entity Cineca and awarding the contract to another tenderer (‘the contested decision’).

 Background to the dispute

2        EuroHPC was set up by Council Regulation (EU) 2018/1488 of 28 September 2018 establishing the European High Performance Computing Joint Undertaking (OJ 2018 L 252, p. 1).

3        In accordance with Article 3(1) of Regulation 2018/1488, EuroHPC’s mission is to develop, deploy, extend and maintain in the European Union an integrated world-class supercomputing and data infrastructure and to develop and support a highly competitive and innovative high-performance computing ecosystem.

4        By the contract notice of 28 November 2019, published in the Supplement to the Official Journal of the European Union (OJ 2019/S 230‑563382), the European Commission, on behalf of EuroHPC, issued a call for tenders under reference ‘Luxembourg-Luxembourg: Acquisition, Delivery, Installation and Hardware and Software Maintenance of Precursors to Exascale Supercomputers – SMART 2019/1084 – 2019/S 230‑563382’ (‘the contract notice’). The contract comprised three lots, corresponding respectively to the supply of three supercomputers. The third lot concerned the supply of the Leonardo Supercomputer, for an estimated amount of EUR 120 000 000 (‘Lot 3’), to be hosted in Bologna (Italy) by Cineca, an Italian consortium of universities and public institutions which supports public and industrial scientific research through high-performance computing and the use of supercomputing systems based on state-of-the-art architectures and technologies.

5        In the procurement procedure relating to Lot 3, which lasted approximately one year, EuroHPC studied six separate competing tenders. According to Section 1.3, entitled ‘Public procurement procedure’, of the invitation to tender, the contract had to be awarded to the tenderer offering the best price-quality ratio on the basis of a global ‘total cost of ownership’ approach which included, in addition to the investment costs corresponding to specific purchase prices, the operation expenses associated with the energy consumption of the supercomputer and of the infrastructure necessary for its operation.

6        In the third and final stage of the procurement procedure, the evaluation of the tenders by EuroHPC, in the present case by a committee of experts set up within EuroHPC (‘the evaluation committee’), concerned only three suppliers that had submitted binding financial and technical tenders, that is to say, the applicant, A and B.

7        On 29 September 2020, EuroHPC informed the applicant of the contested decision, which rejected the applicant’s tender on the ground that it had not been found to be the most economically advantageous tender, and that the contract had been awarded to A.

8        By email of 30 September 2020, the applicant requested from EuroHPC further information on the evaluation of the successful tenderer.

9        By email of 6 October 2020, EuroHPC provided the applicant with four files containing the evaluation report relating to A, the maximum evaluation scores awarded for each criterion, a detailed analysis of the applicant’s evaluation and a breakdown of the total cost of ownership (TCO) evaluated for the applicant and A.

10      The final scores obtained by the participants in the call for tenders were as follows:

11      On 22 October 2020, EuroHPC and A concluded the contract. The contract award notice was published on 3 November 2020 in the Supplement to the Official Journal of the European Union (OJ 2020/S 214‑523180).

12      By letter of 6 November 2020, EuroHPC rejected the applicant’s request that it suspend signature of the contract with A.

 Forms of order sought

13      The applicant claims that the Court should:

–        annul the contested decision;

–        order EuroHPC to pay the costs.

14      EuroHPC contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

15      The Commission claims that the Court should dismiss the action as being unfounded.

 Law

16      The applicant raises four pleas in law in support of the action. First, it asserts that, in the procurement procedure, EuroHPC breached the principles of equal treatment and of transparency by failing to disqualify A, which had not met a number of mandatory requirements. Secondly, it claims that the contested decision is vitiated by a manifest error of assessment and a breach of the principle of good administration in respect of award criterion 2, entitled ‘Cost performance analysis’. Thirdly, the applicant alleges that the contested decision is vitiated by a manifest error of assessment in respect of award criterion 4, entitled ‘EU Added Value’. Fourthly, it claims that the contested decision is vitiated by a breach of the principle of equal treatment, a breach of the duty to state reasons and a manifest error of assessment in respect of award subcriterion 1.3, entitled ‘Security of the supply chain’.

17      In the reply, the applicant emphasises that its pleas are well founded and admissible and that it has an interest in challenging the contested decision. First, it argues, it could challenge a decision awarding a public procurement contract in order to prevent future repetition of the alleged illegality; secondly, such a challenge could result in establishing liability for damages on the part of the European Union; and, thirdly, the inclusion of an unlawful selection criterion could render the whole call for tenders unlawful. It is, furthermore, not inconceivable that, if EuroHPC had not included unlawful selection criteria, it would have included other criteria or applied a different weighting to the criteria used.

18      EuroHPC contends that all the pleas raised by the applicant should be rejected as being manifestly unfounded and also ineffective. It asserts in this respect that the margin by which the tenders of A and B outranked the applicant’s tender was so significant that, if all the evaluation subcriteria criticised by the applicant were excluded, this would have no bearing, in relation to the applicant, on the award of the contract. It also states that it is prepared, if the Court were to decide that it was necessary, to supply all the relevant evaluation documentation, even other documents, subject to those documents being treated confidentially.

19      In the rejoinder, although it did not formally raise a plea of inadmissibility within the meaning of Article 130 of the Rules of Procedure of the General Court, EuroHPC asserts that, although the applicant did have locus standi to bring the action, it did not, however, any longer have an interest in bringing proceedings since, first, there is no risk of the alleged illegality being repeated, because the proposed acquisition of another supercomputer provided for by Lot 2 has been abandoned; and, secondly, were the contested decision to be annulled, B’s better ranking would in any event make it impossible for the applicant to be awarded the contract. EuroHPC is therefore of the view that there is no longer any need to adjudicate on this action.

20      The Commission claims that the four pleas raised by the applicant should be rejected. In its statement in intervention, it provides a line of argument seeking specifically to refute the last two pleas. In respect of the first two pleas, it states that it supports the arguments put forward by EuroHPC.

 The first plea in law, alleging breach of the principles of equal treatment and of transparency, in so far as A was not disqualified from the procurement procedure for failing to meet a number of mandatory requirements

21      The first plea comprises two parts.

22      In the first part, the applicant asserts that the principles of equal treatment and of transparency were breached inasmuch as the tenderers had to submit tenders for each of the lots by lodging a separate tender with a fixed price, whereas A included a mutual exchange rate clause in its tender. That clause was capable of having a significant impact on the actual price of A’s tender, which should have led to it being disqualified.

23      Even assuming that EuroHPC ultimately removed the mutual exchange rate clause from the contract, that would nevertheless have had the effect of altering the general scheme of the call for tenders to the benefit of one tenderer. In the reply, the applicant asserts that EuroHPC cannot merely state that A’s financial proposal was in the prescribed format. It alleges that the presence of such a clause means that A did not internalise the risk of currency fluctuations, with the result that A’s financial proposal did not have a sound economic basis. By ultimately ignoring the price adjustment mechanism proposed by A, EuroHPC unlawfully allowed a substantial change to that proposal.

24      In addition, according to the applicant, A failed to provide a fixed price for the memory components (components for rapid short-term data storage for a central unit), the price of which is very volatile, even though those components represented more than 10% of the total contract price. This, it is submitted, should also have led to A’s tender being disqualified.

25      In order to clarify the exact nature of the mutual exchange clause in A’s proposal, the applicant requests the Court to order EuroHPC, by way of measures of organisation of procedure, to produce that proposal, with confidential information redacted if necessary.

26      In the second part, the applicant states that, in order to respond to the call for tenders, it was necessary to address 43 requirements, which were not referred to in the technical response template but had to be copied manually from the technical specifications. The applicant is uncertain as to whether the proposal submitted by A complied with those requirements. On that ground, it requests to the Court to order EuroHPC, by way of measures of organisation of procedure, to produce A’s technical proposal, with confidential information redacted if necessary. It observes in this respect that EuroHPC has not objected to producing that proposal.

27      EuroHPC, supported by the Commission, disputes the applicant’s arguments.

28      In the present case, it must be noted that, under Article 160(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’), all contracts financed in whole or in part by the EU budget must respect the principles of transparency, proportionality, equal treatment and non-discrimination. According to settled case-law, the contracting authority is required to ensure, at each stage of a tendering procedure, observance of the principle of equal treatment and, thereby, equality of opportunity for all the tenderers (see judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraph 31 and the case-law cited).

29      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 (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 110; of 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 62; and of 16 October 2018, Proof IT v EIGE, T‑10/17, not published, EU:T:2018:682, paragraph 34).

30      It is also clear from the case-law that the principle of equal treatment implies an obligation of transparency in order to permit verification that it has been complied with (see judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraph 32 and the case-law cited).

31      The principle of transparency 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 notice or contract documents so that, first, all reasonably well-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 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 64, and of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraph 33; see also, to that effect, judgment of 4 July 2016, Orange Business Belgium v Commission, T‑349/13, not published, EU:T:2016:385, paragraphs 50 and 51).

32      The principle of equal treatment and the obligation of transparency cannot, as a rule, preclude an economic operator from being excluded from a procedure for the award of a public contract because it has failed to comply with an obligation that is expressly imposed – on pain of the operator’s exclusion – by the documents relating to that procedure. The foregoing applies all the more since, according to settled case-law of the Court of Justice, where obligations were imposed clearly in the documents relating to the public procurement procedure – on pain of the operator’s being excluded – the contracting authority could not accept any rectification whatsoever of failures to comply with those obligations (see, by analogy, judgment of 2 May 2019, Lavorgna, C‑309/18, EU:C:2019:350, paragraphs 21 and 22 and the case-law cited).

33      As regards the first part, it should be borne in mind that, pursuant to the documents describing the contract, tenderers had to submit firm tenders with fixed prices in euros, which prohibited any clause mitigating the exchange rate risk, on pain of exclusion from the contract. In that regard, it should be noted that the requirement to submit a tender at a fixed price is expressly mentioned several times in the invitation to tender, inter alia in Section 1.5, entitled ‘Description of the Procurement’ and in Sections 2.17.4 and 3.3.3, entitled ‘Award Criteria’.

34      As EuroHPC states, A’s financial proposal, which is reproduced in a non-confidential version in paragraph 26 of the defence, did not contain a price variation clause allowing it to reprice or renegotiate its financial proposal. Each of the cost items in that proposal, including the item corresponding to the price of memory components, was expressed in euros and allowed a fair and transparent comparison with competing proposals. It is thus apparent that the prices indicated by A were fixed and constituted binding commitments for A.

35      It is true that EuroHPC acknowledges that, in order to respond specifically to the subcriterion entitled ‘Long-term risk management, including unexpected unavailability of technology, price changes or lower performance’, which itself fell within award subcriterion 1.3, entitled ‘Security of the supply chain’, A set out, in its technical proposal of 29 June 2020, the suggestion to introduce into the final contract a mutual exchange rate clause, which could have allowed the setting of a new price by it and the hosting entity in the event of significant exchange rate fluctuations. That suggestion was worded as follows:

‘A’s preference would be to also include a mutual exchange rate clause in the contract which would state that in the event the exchange rate $/€ rate as record[ed] by the European Central Bank varies by more than +/– 3%, then we reserve the right to reprice. As this clause is mutual Cineca could benefit by price reductions (or increased supply) if the exchange rate swung in that direction.’

36      However, it must be noted that this was a mere suggestion, which concerned at most, if it had been accepted, award subcriterion 1.3, entitled ‘Security of the supply chain’, but which in no event concerned A’s financial proposal, established on the basis of fixed prices in euros in accordance with the contract notice, over which it had no influence.

37      Moreover, as stated on page 6 of A’s evaluation report, the evaluation committee rejected the suggestion in question in the following terms:

‘The risk of price changes is not appropriately addressed with the use of a mutual exchange rate clause in the contract, which would imply the right to reprice. However, this clause is not foreseen in the contract and cannot be included. Memory price changes are mitigated with the use of multiple suppliers, but no contractual agreements have been established in advance to secure this.’

38      A’s suggestion to introduce into the final contract a mutual exchange rate clause in order to meet the subcriterion entitled ‘Long-term risk management, including unexpected unavailability of technology, price changes or lower performance’ cannot therefore constitute relevant evidence of an irregularity in its financial proposal, since that suggestion does not have a direct relationship with that proposal and did not confer any advantage on A when its tender was evaluated.

39      In those circumstances, the applicant cannot rely on a breach of the principles of equal treatment and of transparency, with the result that the first part is unfounded and must be rejected.

40      As regards the second part, it must be noted that the applicant alleges the existence of formal irregularities in A’s financial proposal, namely the alleged absence of handwritten notes of 43 requirements which should have been copied manually from the technical specifications, by relying on an exchange of emails with EuroHPC, of which the applicant clearly distorts the meaning and scope, and by claiming that, since EuroHPC did not provide evidence concerning the presence of those references, A’s tender should be regarded as irregular.

41      In that regard, it should be noted that, by email of 7 October 2020, the applicant questioned EuroHPC with a view to obtaining confirmation that A’s technical proposal met a list of several formal requirements, as follows:

‘As part of the invitation to tender, [EuroHPC] explicitly asked [that] tenderers must ensure that their submitted tenders contain all the information by the contracting authority at the time of [submission of that information]. Can you please review and testify that indeed the following requirements were all answered by [A] (and by [B]) in their submitted tenders as required in EuroHPC Annex 11C [to] LOT 3 Technical Specification 1.1? [Requirements L 3-CCS 1, L 3-CCS 2, L 3-CCS 3, L 3-CCS 4, L 3-CCS 5, L 3-CCS 6, L 3-CCS 7, L 3-CCS 8, L 3-CCS 9, L 3-CCS 10, L 3-CCS 11, L 3-CCS 12, L 3-CCS 13; L 3-SA 3, L 3-SA 4, L 3-SA 7, L 3-MN1, L 5-L 1C2; L 4-SI1, L 4-SI2; L 4-TSC1, L 4-TSC2, L 4-TSC3, L 4-TSC4; L 5-MS 1, L 5-MS 2, L 5-MS 3, L 5-MS 4, L 5-MS 5, L 5-MS 6, L 5-MS 7, L 5-MS 8, L 5-MS 9, L 5-MS 10, L 5-MS 11, L 5-MS 12, L 5-MS 13, L 5-MS 14; L 6-D 0C1; L 6-TRA 1, L 6-TRA 2; L 7-C001, L 7-C002]’

42      By email of 8 October 2020, EuroHPC replied that all the tenders were deemed eligible as they were able to meet all the requirements specified in the call for tenders.

43      Notwithstanding that reply, on 15 October 2020, the applicant sent a repeat email to EuroHPC, in order to enquire about the action taken in response to its request for information of 7 October 2020.

44      On 16 October 2020, EuroHPC sent the applicant a further email in reply stating, in the following terms, that the previous email of 8 October 2020 should indeed be understood as confirming the compliance of all the tenders submitted:

‘We consider that this question has already been answered in our email on 8/10/2020, in which it is specifically stated [that] “all tenders [had been] deemed eligible as they were able to meet all requirements specified in the call”.’

45      Although EuroHPC’s reply was perfectly clear, on 23 October 2020 the applicant sent it an email in which, in essence, it alleged, in a manner which was cryptic and difficult to understand, that the reply which it had received lacked clarity and still needed to be further clarified. It claimed to give contextual information to its request for information by stating that tenderers were required to provide some of their responses manually in the call for tenders.

46      By an email reply of the same day, EuroHPC merely stated that it did not understand the meaning of that latter request for clarification.

47      It follows from the foregoing that the applicant, which intentionally prompted an exchange of emails with EuroHPC, now claims that that exchange, notwithstanding its artificial nature, constitutes, in essence, an indication that A’s technical proposal was non-compliant.

48      It must be held, in order not to distort its scope, that the content of that exchange of emails between the applicant and EuroHPC does not include any admission on the part of EuroHPC relating to non-compliance of the tenders submitted to it and cannot be interpreted as evidence that A’s technical proposal was non-compliant.

49      By refraining from submitting specific evidence capable of establishing that A’s technical proposal was non-compliant, the applicant’s claim appears to be purely speculative and not substantiated and can only be rejected (see, by analogy, judgment of 28 June 2018, Amplexor Luxembourg v Commission, T‑211/17, not published, EU:T:2018:392, paragraph 66).

50      The second part and, therefore, the first plea in its entirety must therefore be rejected as unfounded, without it being necessary to examine whether that plea is ineffective or whether it is necessary to examine the applicant’s request for an order that EuroHPC produce A’s tender.

 The second plea in law, alleging a manifest error of assessment and a breach of the principle of good administration in respect of award criterion 2, entitled ‘Cost performance analysis’

51      The applicant states that one of the main evaluation criteria of the tenders – with a weighting of 45 out of a total of 120 points – was award criterion 2, entitled ‘Cost performance analysis’. A obtained a score of 44.50 for that criterion whereas the applicant obtained a score of only 36.09.

52      The applicant explains that, in order to examine the second plea, it is necessary to confirm the graphics processing unit (GPU) solution, a component intended for computing, proposed by A. It is not thereby seeking to obtain competitively sensitive information. The applicant states that it is, however, subject to strict confidentiality obligations that prevent it from directly disclosing information already known to it.

53      In the context of the first part, which contains three complaints, the applicant submits that EuroHPC manifestly erred in assessing the performance score of the tenders.

54      In this respect, the applicant states that the cost performance of each tender was assessed as the result of a scoring exercise based on several scores, that is to say, the performance score of the system proposed; an efficiency score based on the TCO of the system proposed, and a score for the quality of the benchmark analysis. Those three scores were then weighted and added together to give one score, which was in turn divided by the maximum value among the tenders submitted (in this case, 0.97, which was obtained by the third tenderer) to finally produce a normalised score out of 45.

55      In the first complaint, the applicant submits that EuroHPC committed a manifest error of assessment when calculating the performance scores which reflected the speed at which a supercomputer could solve a benchmark set of complex equations. According to the applicant, EuroHPC used an incorrect minimum value of synthetic calibration intended to measure the communication performance of a central processing unit (CPU) to memory (High Performance Conjugate Gradient, HPCG), namely a value of 2 500 teraflops/second (TF/s) instead of 2 700 TF/s, thereby benefitting A, which offered the lowest HPCG value (TF/s corresponds to the number of 10¹² (tera) floating point operations per second which a computing unit is capable of performing). A is also said to have used a compression mechanism which made it impossible to measure the actual capabilities of the proposed system. That approach distorted the comparison between the solutions proposed by the other tenderers, including the applicant, which did not use that mechanism.

56      The precise impact of that error could, the applicant submits, be calculated only if B’s scores are known, as they might determine the value of the maximum scores that formed part of the calculation. Thus, the applicant requests, by way of a measure of organisation of procedure, that the Court order EuroHPC to produce B’s evaluation report (Annex 3). EuroHPC should also confirm whether the HPCG values given by A were obtained using the compression system provided by a certain North American developer of processors, cards and graphics chips (‘supplier Y’).

57      In the second complaint, the applicant submits that EuroHPC committed a manifest error of assessment by using clearly incorrect values provided by A for the performance values of synthetic calibration intended to measure the communication performance of the central unit to memory (HPCG) or of the synthetic benchmark to measure CPU calculation performance (HPL). In A’s evaluation report, the solution proposed by A was based on an HPL value of 249 509 TF/s and on an HPCG value of 4 278 TF/s. However, it should have been obvious to EuroHPC’s evaluation committee and technical experts that those figures could not be correct, given the technical solutions chosen by A.

58      Since, in order to determine the precise impact of that error, it would be necessary to recalculate the scores based on correct information after obtaining confirmation of the actual GPU solution proposed by A, from which the correct performance values could be deduced, and the relevant scores of the third tenderer, the applicant requests that the Court, as a measure of organisation of procedure, order EuroHPC to provide that information.

59      In the third complaint, the applicant submits that EuroHPC breached the principle of good administration by failing to seek clarification of the figures provided by A in relation to the specifications of the GPU proposed in its tender, even though they gave cause for doubt. According to the applicant, unless it obtained such specifications, which would have enabled it to quickly and efficiently dispel the uncertainties in respect of A’s tender, EuroHPC had no choice but to reject that tender.

60      In the second part, the applicant argues that EuroHPC also committed errors in calculating the efficiency score, which is the second component of the cost performance criterion and reflects the TCO of the system proposed. That score, it argues, reflects the total energy cost when running all the benchmark applications throughout the service life of the system.

61      The applicant alleges that the data relating to electricity consumption (ETS) provided by A are clearly unrealistic and present glaring discrepancies with the data provided by the applicant. The two tenders nevertheless use the same technology, namely an identical processor (component that performs scientific computing), originating from the same North American supplier of microprocessors and semiconductors (‘supplier X’), and the same components. Since an identical processor originating from the same manufacturer is used, it is impossible to understand why the power consumption declared by A is systematically lower than that given by the applicant. According to the applicant, it is not plausible to suggest that A’s use of power optimisation is the reason for the differences found.

62      The applicant submits that any normally diligent expert should have detected the discrepancy, which consisted in A’s tender proposing a high-performance supercomputer with an impossibly low power consumption. By refraining from seeking clarification in that respect, it argues, EuroHPC failed to fulfil its ‘duty to exercise reasonable care’ and breaches the principle of good administration. Had EuroHPC been unable, by means of such clarifications, to resolve quickly and efficiently the uncertainties relating to A’s tender, it would have been obliged to reject the tender.

63      EuroHPC, supported by the Commission, disputes the applicant’s arguments.

64      It should be noted that, according to settled case-law, the contracting authority enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and the review by the Court must be limited to checking compliance with the applicable procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers. The contracting authority is granted such a broad margin of assessment throughout the tendering procedure, including in relation to the choice and evaluation of the selection and award criteria (see judgments of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 31 and the case-law cited, and of 4 July 2016, Orange Business Belgium v Commission, T‑349/13, not published, EU:T:2016:385, paragraph 45 and the case-law cited).

65      For that purpose, in order to establish that in the assessment of the facts the contracting authority committed an error so obvious that is of such a nature as to justify the annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see judgment of 7 June 2017, Blaž Jamnik and Blaž v Parliament, T‑726/15, EU:T:2017:376, paragraph 38 and the case-law cited).

66      Under Article 41 of the Charter of Fundamental Rights of the European Union, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the European Union. In that regard, case-law has made clear that it is for the administration, in accordance with the principle of good administration, to examine all the relevant particulars of a case with care and impartiality and to gather all the factual and legal information necessary to exercise its discretion and ensure the proper conduct and effectiveness of proceedings which it sets in motion (see judgment of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 57 and the case-law cited).

67      As regards the first complaint in the first part, alleging an error in the calculation of the tender performance score, it must be held, as EuroHPC acknowledges, that, of the variables used to calculate that score, an incorrect minimum HPCG value was used.

68      An HPCG value of 2 500 TF/s was used, whereas the exact value was 2 700 TF/s.

69      However, as EuroHPC explains, leaving aside the fact that the final three tenders had HPCG values which were higher than the minimum value required, as re-evaluated at 2 700 TF/s, with the result that none of them was rejected on that basis, the taking into account of the incorrect data could have had only an extremely limited impact on the evaluation of the tenders, since those data were only minimal in the overall cost/performance ratio analysis (at 16%).

70      Thus, an increase in the minimum HPCG value of 200 TF/s was capable only of marginally changing the HPCG values of the applicant and of A.

71      The applicant’s tender did indeed have the highest HPCG value, namely 4 429 TF/s, but A’s tender had a very similar value, namely 4 278 TF/s, with the result that, after a comparative analysis of the three tenders, on a scale from 0 to 1, the applicant’s tender was evaluated at 1, whereas A’s tender was evaluated at 0.913 instead of 0.922. By contrast, B’s tender was more affected, being evaluated at 0.259 as against 0.335 previously, which can be explained by the fact that its tender had an HPCG value closer to the minimum re-evaluated value.

72      The performance score takes into account both the HPCG values at 40%, and the HPL values, which are not specifically challenged, at 60%. However, B’s tender, which had admittedly obtained the best HPL value, was also the tender which was most negatively affected by the change in the HPCG value, unlike the tenders submitted by the applicant and by A.

73      In those circumstances, the scores obtained by the final three tenderers under award criterion 2, entitled ‘Cost performance analysis’ (accounting for 45 points), with a minimum HPCG value re-evaluated at 2 700 TF/s, were 45 points for A, 44.84 points for B and 36.71 points for the applicant, that is to say, a very minor difference in comparison with the scores actually awarded, which ultimately placed A slightly ahead of B.

74      In the present case, the error relied on by the applicant has such insignificant consequences for the scores awarded under award criterion 2, entitled ‘Cost performance analysis’, in particular for the applicant, which would have had its score out of 45 points at most being re-evaluated from 36.09 to 36.71, that it has no impact on the assessment carried out by the evaluation committee and must be regarded as valid, with the result that the first complaint must be rejected as unfounded.

75      As regards the second complaint in the first part, alleging a manifest error of assessment inasmuch as A’s technical proposal was accepted by EuroHPC whereas, in view of the technical solutions adopted, it was inconsistent by relying on an HPL value of 249 509 TF/s and on an HPCG value of 4 278 TF/s, it must be held that it is based on mere speculation.

76      The applicant does not have detailed knowledge of the solutions implemented by A and it bases its claims in particular on a press release from supplier Y of 15 October 2020, in which supplier Y states that the Leonardo Supercomputer delivered by A contains components which it supplies, particularly GPUs. The applicant, however, merely claims that the use of components from supplier Y in A’s technical proposal necessarily renders inconsistent, from a technical point of view, the performance stated by A in terms of energy consumption and computing speed.

77      However, EuroHPC, which, for reasons of confidentiality, does not reveal the details of company A’s technical proposal, maintains that it is not based on any of supplier Y’s GPU architectures as conceived by the applicant in the action.

78      In the light of EuroHPC’s explanations, it appears that the performance of a supercomputer based on a given technology is not constant but progressive, which is, in particular, shown by the example of the Selene Supercomputer which is installed in the United States and uses technology from supplier Y. The performance of the Selene Supercomputer improved very significantly over a few months, between June and November 2020, which, at the end of this period, enabled it to reach fifth place in the world ranking of the most powerful supercomputers.

79      Thus, it is very difficult to evaluate the performance of a supercomputer on the basis of the extrapolation of information, which is necessarily fragmentary and collected at a given moment, such as that from supplier Y, which the applicant claims to interpret, since that information may be incorrect from the outset, or even cease to be relevant after a few months.

80      In the light of the foregoing, it must be held that the applicant has not adduced evidence capable of rendering implausible the evaluation carried out by EuroHPC, with the result that the second complaint must be rejected as unfounded, without it being necessary to grant the applicant’s request for an order requiring EuroHPC to produce the technical proposals of A or of B.

81      As regards the third complaint in the first part, alleging breach of the principle of sound administration, in so far as EuroHPC refrained from seeking clarification from A regarding its tender concerning the HPL and HPCG values used, or, if that clarification did not make it possible to remove the uncertainties surrounding that tender, to reject it, it must be held that the complaint is unfounded.

82      In the absence of the finding that at least one of the manifest errors of assessment relied on by the applicant had distorted the evaluation of A’s technical proposal as regards award criterion 2, entitled ‘Cost performance analysis’, which would have made it possible to find that the assessment carried out by EuroHPC could not be accepted as valid, EuroHPC cannot be criticised for having breached the principle of sound administration by having accepted that proposal as it stood, since, from the outset and contrary to the applicant’s argument, there were no grounds for taking the view that it was ambiguous or gave cause for doubt.

83      The first part must therefore be rejected as unfounded.

84      With regard to the second part, alleging an error in calculating the efficiency score of A’s tender, in so far as the higher energy efficiency of the solution proposed by A, although based on a technological component identical to that used in the applicant’s tender, namely a processor from supplier X, could be explained only by an error in calculation, it should be noted that it is based on an incorrect premiss, that is to say, that the use of the same component by itself determines the energy efficiency of the solution at issue.

85      Even if the two technical proposals had used an identical processor from supplier X, EuroHPC rightly explains that the energy efficiency of those proposals is also determined by several other factors which, taken together, may lead to widely differing levels of energy consumption.

86      In that regard, first of all, EuroHPC submits that the GPU solutions of the two proposals are different and that the use of different GPU architectures results in energy efficiencies which are themselves different. In that regard, parameters such as the compute node architecture (architecture of systems conducting scientific calculations), memory selection, compiler flags, software environment and the experience of the technical personnel may play an important role. Next, A’s approach consisted in using existing GPU architectures which enabled it to reach a convincing compromise between system performance and energy cost, whereas the applicant opted for a new and innovative GPU architecture, resulting from a technology developed by supplier X, which was judged by the evaluation committee as being the least reliable of the final three tenders. Lastly, A used a power optimiser which it had developed itself, the reference data of which were regarded as convincing by the evaluation committee.

87      In the light of the foregoing explanations, it must be held that the evidence adduced by the applicant, which is limited, in essence, to the finding of the use of an identical processor in its tender and in A’s tender, is insufficient to render implausible the assessments made by the evaluation committee which led to the adoption of the contested decision.

88      Similarly, EuroHPC cannot have breached the principle of sound administration, since it did not commit a manifest error of assessment with regard to the calculation of the efficiency score; it was not, in any event, required to carry out any checks concerning an alleged inconsistency in A’s tender.

89      The second part must therefore be rejected as unfounded and, accordingly, the second plea in its entirety, without it being necessary to examine whether that plea is ineffective or to order production of the technical proposals of A or of B in the context of a measure of organisation of procedure.

 The third plea in law, alleging illegality of award criterion 4, entitled ‘EU Added Value’, manifest errors of assessment and a breach of the principle of equal treatment as regards the application of that criterion

90      The third plea comprises two parts.

91      In the first part, which in turn contains three complaints, first, the applicant states that, although contracting authorities have a degree of freedom when choosing economic criteria, they must nevertheless comply with the fundamental principles of EU law, including the principle of non-discrimination. It alleges that inclusion of award criterion 4, entitled ‘EU Added Value’, as contained in the technical response template, was unlawful in that respect. That criterion was unrelated to the subject matter of the contract, since it had no bearing on the characteristics of the supercomputer system being procured and referred to the general characteristics of the digital technology sector within the European Union. Moreover, the applicant argues that, if the heading of the criterion in question, as it appeared in the documents issued with the invitation to tender, were changed in the course of the tendering procedure to ‘EU Added Value and Collaboration’, such a change could not entail a substantive change to the criterion in question without breaching basic principles of public procurement law.

92      Secondly, the applicant asserts that award criterion 4, entitled ‘EU Added Value’, did not result directly from the provisions of Regulation 2018/1488 and did not meet the objective of acquiring a world-class supercomputer offering the best price-quality ratio, since that objective does not require use of ‘EU content’. At the final evaluation, EuroHPC furthermore altered two of the most problematic and discriminatory subcriteria, that is to say, the subcriterion relating to the supply chain and that relating to the integration of EU technologies to explicitly require a ‘collaboration with the Hosting Consortium, or joint development of HPC technology for the exascale era’, thereby significantly restricting the scope of purchasing options.

93      According to the applicant, implementation of award criterion 4, entitled ‘EU Added Value’, as well as confusing the various objectives and activities through which EuroHPC discharges its mission, also breaches the principle of sound financial management enshrined in Article 310(5) TFEU and Article 3 of the Financial Regulation. That approach also runs counter to that advocated by the Commission in the guide entitled ‘Buying Social – A guide to taking account of social considerations in public procurement – Second edition’ (OJ 2021 C 237, p. 1).

94      In the reply, the applicant states that EuroHPC implements its objectives through three distinct but complementary pillars of activity. In the call for tenders at issue, the acquisition and operation of world-class supercomputing infrastructure, which fall within the second pillar, are distinct from the third pillar, which is designed to support a research and innovation agenda in the European Union in order to establish an innovative supercomputing ecosystem. Admittedly, the case-law allows requirements linked to qualitative criteria consisting in the implementation of general policies, but only where those policies are sufficiently broad for tenderers to comply with them without compromising the subject matter of the contract, which is not the case here, since the application of the criterion in question goes beyond the acquisition of a supercomputer.

95      Thirdly, the applicant states that the criterion in question, as stipulated in the tender documents, is contrary to the principle of equal treatment and resulted in unjustified discrimination against the tenderers which involved European technologies or suppliers to a lesser extent. According to the applicant, in this respect, it infringes Article 4(1)(a) of the Agreement on Government Procurement 2012 and related World Trade Organization (WTO) legal instruments, to which the contract notice referred and which was applicable in the present case. Furthermore, the criterion in question was decisive, because, if a tenderer did not obtain the minimum score, it would be disqualified from the tender procedure.

96      In the second part, the applicant explains that, in any event, EuroHPC committed several manifest errors of assessment and breached the principle of equal treatment when it implemented award criterion 4, entitled ‘EU Added Value’.

97      First, as regards the first subcriterion, entitled ‘Reinforcing the digital technology supply chain in the [European] Union, including software’, EuroHPC awarded A the maximum score of six points, whereas the applicant only obtained four, despite there being no material differences between the two tenders. The supply sources of A and of the applicant were, in essence, comparable.

98      Secondly, under the second subcriterion, entitled ‘Level of integration of European technologies, including uptake of R & D results stemming from EU-funded R & D programs’, A obtained five points out of a possible maximum of six, whereas the applicant obtained only four. The components intended for that project, with regard to the proposals of both A and the applicant, are sourced predominantly from outside the European Union. EuroHPC criticised the applicant for submitting an unclear proposal in that respect, but with no genuine justification.

99      Thirdly, in relation to the third subcriterion, entitled ‘Collaboration with the Hosting Consortium, or joint development of HPC technology for the exascale era’, EuroHPC allocated the maximum of three points to A and only two points to the applicant. However, the applicant had explicitly included in its tender the participation by other sites of industry partners from other European countries, with the result that there was no justification for allocating a lower score to the applicant than to A.

100    EuroHPC and the Commission dispute the applicant’s arguments.

101    As a preliminary point, it should be noted that the initial contract documents, in particular the descriptive document for the call for tenders SMART 2019/1084, referred to award criterion 4 under the heading ‘EU Added Value’, and not under the heading ‘EU Added Value and Collaboration’, that latter heading, which was subsequently used, being included in particular in paragraph 7 of the technical response template developed by EuroHPC.

102    However, there is nothing to suggest that that change led to an amendment other than a formal amendment as regards the evaluation of tenders in the light of the tenderers’ ability to collaborate with EuroHPC for the development at European level of high-performance computing technology in the exascale era (computing power of 10¹⁸ flops, flops corresponding to the number of floating point operations per second). It is not therefore a question of amending a criterion for the award of the contract as defined in the tender specifications or in the contract notice. Moreover, it must be borne in mind that it is necessary to look at the substance of an act rather than its form (see, by analogy, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9).

103    It must therefore be held that that amendment remained neutral in the present case, in so far as it has not been shown that it affected the substance of the criterion in question.

104    As regards the substantive examination of the first part, it should be noted, as stated in all the documents relating to the contract at issue, that the latter was governed by the provisions of the Financial Regulation.

105    Under Article 166(2) of the Financial Regulation, the contracting authority is to specify, in the procurement documents, the applicable exclusion, selection and award criteria.

106    Furthermore, it must be borne in mind that the contracting authority, throughout the procurement procedure, enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking compliance with the applicable procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (see paragraph 64 above).

107    EU legislation on public procurement does not preclude a contracting authority from taking into consideration criteria which are not exclusively economic, provided that those criteria are linked to the subject matter of the contract, do not confer an unrestricted freedom of choice on that authority, are expressly mentioned in the contract documents or in the contract notice and comply with all the fundamental principles of EU law, in particular the principle of non-discrimination (see, by analogy, judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 34).

108    First of all, it should be noted in the present case, as mentioned in the technical response template developed by EuroHPC, that award criterion 4, entitled ‘EU Added Value’, was intended, in particular, to assess, with regard to tenderers, their ‘contribution to the development of a European exascale ecosystem, going beyond enabling the acquisition by [EuroHPC] of leadership-class supercomputers’.

109    The criterion in question was divided into three subcriteria. The first subcriterion, counting for six points, sought to evaluate, at the time when the contract was implemented, the tenderer’s contribution to reinforcing the digital technology supply chain in the European Union. The second subcriterion, counting for six points, sought to evaluate, from the beginning of the contract, the integration of European technologies, including uptake of the results of research and development (R & D) stemming from EU-funded R & D programs. The third criterion, counting for three points, sought to evaluate, as part of after-sales or maintenance services, the collaboration with EuroHPC.

110    It must be held that the subject matter of the contract at issue, as referred to in the contract notice, which consisted in the acquisition of a supercomputer for exascale computing for EuroHPC, was to reinforce the European exascale computing ecosystem, corresponding precisely to the objectives of award criterion 4, entitled ‘EU Added Value’, in accordance with the objectives laid down in Regulation 2018/1488, themselves resulting from Article 179 TFEU, which sets out, in particular, that the European Union has the objective of strengthening its scientific and technological bases.

111    Consequently, tenderers had to describe their contribution to the development of a European exascale ecosystem, going beyond the objective of enabling EuroHPC to acquire a world-class supercomputer. The contribution of the criterion in question, as opposed to a criterion limited to evaluating the intrinsic technical characteristics of the supercomputer which was the subject of the contract, was to enable the contracting authority to evaluate the way in which the tenderer intended to contribute to the European exascale ecosystem, in all respects, in the context of the contract at issue.

112    Having regard to the foregoing, it must be held that award criterion 4, entitled ‘EU Added Value’, in the light of its description in the tender documentation and the objectives which it pursued, was clearly linked to the subject matter of the contract at issue, with the result that the first complaint of the first part must be rejected as unfounded.

113    Next, it should be noted that award criterion 4 accounted for only 15 points out of a total of 120, with the result that, in the light of its weighting, it had the characteristics of an ancillary criterion which was not decisive for the award of the contract at issue. However, notwithstanding a low weighting, its aim was achieved since it provided the contracting authority with information on the tenderer’s proposed participation and contribution to EuroHPC’s objectives.

114    By contrast, in view of their decisive character, the other cumulative criteria, in particular award criteria 1 and 2, made it possible to ensure that the supercomputer which is the subject matter of the contract has intrinsic characteristics placing it among world-class supercomputers in the light of its performance.

115    In those circumstances, it is necessary to reject as unfounded the second complaint in the first part, alleging that the taking into account of award criterion 4, entitled ‘EU Added Value’, runs counter to the pursuit of the objective set out in Regulation 2018/1488, consisting in the acquisition of a world-class supercomputer.

116    Finally, it appears that award criterion 4, as a criterion unrelated to the intrinsic characteristics of the supercomputer which is the subject matter of the contract, did not give rise to any unjustified discrimination against any of the tenderers, in so far as all the conditions established by the case-law for the implementation of such a criterion were met.

117    In the first place, the criterion in question, as is apparent from the examination of the second complaint in the first part, was linked to the subject matter of the contract.

118    In the second place, it did not confer on the contracting authority an unrestricted freedom of choice, since, as EuroHPC argues, although tenderers had complete freedom to contribute their tenders to obtaining EU added value and fostering collaboration, the evaluation committee was required to assess award criterion 4 objectively on the basis of three categories of factors listed, in particular, on page 25 of the technical response template, namely:

–        scope, pertinence, effectiveness and credibility of the proposed measures;

–        soundness of the concept, credibility and maturity of the proposed methodology and adopted implementation approach;

–        impact on advancing the European exascale HPC ecosystem and its long-term perspectives.

119    In the third place, the criterion was expressly mentioned in the documents relating to the contract at issue. It appears, in particular, in a detailed form, in the technical response template. Furthermore, contrary to what the applicant claims, the criterion in question was not adjusted or substantially amended during the procedure, but its presentation was clarified, by grouping the factors to be taken into account into three categories, as stated in paragraph 118 above.

120    In the fourth place, the taking into account of award criterion 4, entitled ‘EU Added Value’, complied with the principle of non-discrimination, in so far as, in view of the nature of the subject matter of the contract, only leading global undertakings were likely to submit a tender, since those undertakings had technical and logistical capacities enabling them to take into account the constraints associated with the criterion in question, whether or not they have their seat in the European Union. In that regard, EuroHPC rightly submits that the first lot of the overall contract, relating to the supply of a supercomputer in Finland, was won by B, which is an undertaking based in the United States and which submitted a convincing proposal with regard, in particular, to the criterion in question.

121    Moreover, contrary to what the applicant claims, award criterion 4, accounting for 15 points out of a total of 120, was not decisive and, in any event, the applicant did not obtain an eliminatory score exposing it to disqualification from the contract.

122    In addition, as regards the alleged infringement of Article 4(1)(a) of the Agreement on Government Procurement 2012 and related WTO legal instruments, it must be borne in mind that, in view of their nature and structure, the WTO agreements, namely the Agreement establishing the WTO and the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade of 1994, are not in principle among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed (see, by analogy, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 85 and the case-law cited). In the present case, the applicant has not provided any explanation in the light of which it would be necessary to derogate from that principle as regards the Agreement on Government Procurement 2012 and related WTO legal instruments.

123    The third complaint in the first part and, therefore, the first part of the third plea in its entirety, must be rejected as unfounded.

124    As regards the examination of the substance of the second part, it must be borne in mind that, in the present case, the role of the Court forms part of a review aimed at penalising manifest errors of assessment and that it is for the party alleging such an error to adduce sufficient evidence to render implausible the assessments made in the decision at issue (see paragraph 64 above).

125    As regards the comparison of the tenders under the subcriterion entitled ‘Reinforcing the digital technology supply chain in the [European] Union, including software’, it must be noted that, although, as the applicant submits, the hardware and components used for the supercomputer project, both by the applicant and by A, in the vast majority originate from countries outside the European Union, the fact remains that the applicant’s tender was the subject of a number of reservations during its assessment by the evaluation committee.

126    The evaluation committee in particular took the view that the applicant referred to a number of collaborations in the context of previous work, but without indicating how that work was capable of reinforcing the supply chain in the European Union. It also observed that the applicant did not mention EU-funded R & D programs and that it was not specified how the activity of the suppliers referred to by the applicant and participating in such programs would contribute to the reinforcement of the supply chain in the European Union.

127    Conversely, it was noted by the evaluation committee that A’s tender clearly reinforced the digital supply chain in the European Union and that, in particular, A maintained high-value key skills in the design, integration and scalable software development within its European facilities, while collaborating with various partners, with the aim of putting in place a full European high-performance computing ecosystem capable of developing new European technologies which will give rise to supercomputers at European level.

128    As regards the comparison of the tenders under the subcriterion entitled ‘Level of integration of European technologies, including uptake of R & D results stemming from EU-funded R & D programs’, although it may be accepted, as the applicant submits, that the components for the project come predominantly from outside the European Union, the evaluation committee nevertheless noted that there were differences between the tenders of A and of the applicant. Although the applicant envisaged integrating certain computer software components from research carried out in the context of EU-funded programs, as well as certain applications, the evaluation committee observed that that integration was not specifically described and that, in addition, there was no plan to incorporate EU-funded hardware or infrastructure components.

129    For its part, A proposed to include in the project technologies derived from R & D programs, in particular in the field of EU-funded exascale computing, and to use knowledge already acquired or in the process of being acquired from EU-funded projects. The evaluation committee, which noted that overall EU technologies’ integration was limited in view of the number of components and the size of the system, did not, however, consider that that integration was entirely excluded.

130    As regards the comparison of the tenders under the subcriterion entitled ‘Collaboration with the Hosting Consortium, or joint development of HPC technology for the exascale era’, it should be noted, in particular, that the tenders differed significantly in so far as A envisaged allocating 7.75 of the full-time equivalents (FTEs) to collaboration and cooperation with EuroHPC, whereas the applicant envisaged only 2 FTEs.

131    In the light of the foregoing, it is apparent that the evaluation of the three subcriteria which fell within award criterion 4, entitled ‘EU Added Value’, gave rise to fully plausible explanations from the evaluation committee, whereas the applicant has not adduced sufficient evidence, beyond mere assertions, to render implausible the assessments which led to the award of different scores to each of the tenders in respect of each of the subcriteria in question.

132    In those circumstances, EuroHPC cannot be criticised for having committed manifest errors of assessment when it awarded different scores to A and the applicant in respect of the three subcriteria under award criterion 4, entitled ‘EU Added Value’. Similarly, since the evaluation on which EuroHPC relied in awarding those scores demonstrated significant differences between the tenders of the applicant and of A, EuroHPC cannot be criticised for breaching the principle of equal treatment by treating those tenders differently.

133    Consequently, the second part and, therefore, the third plea in its entirety, must be rejected as unfounded.

 The fourth plea in law, alleging a breach of the principle of equal treatment, a breach of the duty to state reasons and a manifest error of assessment in respect of award subcriterion 1.3, entitled ‘Security of the supply chain’

134    The fourth plea comprises three parts.

135    The applicant states that award criterion 1, entitled ‘Technical value of the system design’, was divided into three subcriteria. Of those, award subcriterion 1.3, entitled ‘Security of the supply chain’, could give rise to the allocation of 10 points out of a total of 120. That subcriterion related specifically to whether the tenderers had secured availability of critical components during the expected lifetime of the supercomputer and had mitigated any risk in that regard.

136    In the first part, the applicant submits that EuroHPC breached the principle of equal treatment in assessing the international context and availability of sensitive components. While the proposals of the applicant and of A were comparable, A’s proposal was awarded five points, compared with only three for the applicant, with no objective justification, which, in the applicant’s view, constitutes a breach of the principle of equal treatment. Both A and the applicant intended to assemble the system within the European Union, while sourcing critical components from non-EU countries. However, the applicant was penalised for failing to take account of the risk of potential export control in respect of the key components (central unit (CU) and GPU), whereas EuroHPC, in its evaluation of the tenders, did not mention the fact that A also sourced supplies for its components from outside the European Union, in particular from Taiwan (China) for motherboards (components that connect all components together) of the CPUs (which conduct scientific calculations). Moreover, no account was taken of the fact that A’s proposal required its French facility to double its output in 2020 in order to manage parallel projects, nor was any reference made to the applicant’s experience in Europe and the rest of the world. The applicant nevertheless specified in its proposal that Cineca and the Leonardo project were its priorities, in particular in relation to the allocation of its resources, which reduced any risk of the project being adversely affected by a lack of available components. As regards the difficulties of supplier X, the applicant also explained that a permanent virtual circuit (PVC) was being developed for two semiconductor processes, and that it had its own risk mitigation plan.

137    In the second part, the applicant claims that EuroHPC manifestly erred in its assessment of the international context and availability of sensitive components. First, EuroHPC committed a manifest error of assessment by taking the incorrect view that the applicant’s proposal had not taken into account the risk of a potential lack of resources to implement several large installations in parallel. Secondly, it claims, EuroHPC also committed a manifest error of assessment by, again incorrectly, considering that the applicant’s proposal did not take appropriate account of the impact of the potential non-availability of critical technologies, their performance and their pricing, whereas the applicant did in fact do so as regards in particular CUs and GPUs.

138    In the third part, the applicant alleges a failure to state reasons with regard to EuroHPC’s evaluation of the mitigation strategies, including the provision of solutions from alternative technology suppliers. Specifically, the applicant argues, it cannot be understood from the evaluation report how the alternatives proposed by the applicant could ‘alter significantly the final performance and power consumption numbers’, whereas those alternatives also corresponded to A’s main component suppliers, which had been validated by EuroHPC. In this respect, an entirely general remark made by EuroHPC does not enable the applicant to understand why the replacement solutions it proposed were not regarded as convincing. In particular, those explanations do not enable the applicant to understand why the alternative solutions of sourcing from supplier Y and from a third supplier were rejected, as was the existence of a contingency plan under which it would have been possible to meet the delivery deadlines in the extremely unlikely event of supplier X encountering difficulties.

139    EuroHPC and the Commission dispute the applicant’s arguments.

140    First, it must be borne in mind that it has consistently been held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified. In the field of public procurement, the contracting authority is required, in particular, to ensure, at each stage of the procedure, observance of the principle of equal treatment, and, thereby, equality of opportunity for all tenderers. Likewise, the principle of equal treatment means that tenderers must be on an equal footing both when they prepare their tenders and when those tenders are evaluated by the contracting authority (see judgment of 10 October 2017, Solelec and Others v Parliament, T‑281/16, not published, EU:T:2017:711, paragraph 26 and the case-law cited).

141    Furthermore, observance of the principle of equal treatment must be examined in the light of the broad discretion enjoyed by the contracting authority throughout the procurement procedure (see paragraph 64 above).

142    In the present case, as regards the evaluation, in the context of the tenders of the applicant and of A, of the international context and the availability of sensitive components, it appears that EuroHPC identified a number of differences between those tenders.

143    First of all, although, in each of the tenders, the components in fact originate to a large extent from outside the European Union, the system proposed by A has the characteristic of being assembled entirely within the European Union, since A intended to use only its factory located in France, the capacity of which was to be doubled in mid-2020. The applicant, for its part, planned to assemble the system in a factory located in Hungary and also, if necessary, in four other installations located in various regions of the world. It follows that there is a significant difference between the two tenders, in so far as the applicant’s supply chain is potentially more dispersed, relying on, inter alia, resources outside the European Union. Its tender is therefore different from that of A, with the result that the evaluation committee could correctly find that it presented a higher level of dispersion to which a higher level of logistical risk necessarily corresponded.

144    Next, although the evaluation committee found that A had provided evidence of the provision of high-performance computing systems in Europe and that its tender was based on a multi-tier approach in order to ensure availability of the components, it noted that, while the applicant had indeed guaranteed availability of each essential component either through internal developments or by choosing technology which was generally available or aligned with exascale computing activities in the United States, it did so without taking into account the risk of potential export controls for the key components.

145    Although the evaluation committee found that the applicant did not take into account the risk of potential export controls for the key components, it should be noted that that risk may, as EuroHPC explains, relate not only to the actual components of the supercomputers, but also to the technology and the related intellectual property rights.

146    Finally, the lack of resources on the part of the technology supplier concerned by the applicant’s choices to implement several large installations in parallel, namely supplier X, was also noted by the evaluation committee in the applicant’s tender. It is not disputed that the technology originating from that supplier, on which the applicant relied in its tender, differed in certain respects from that chosen by A.

147    It follows from the foregoing considerations that, in view of the differences identified by the evaluation committee between the tenders of the applicant and of A, those tenders reflected situations which were not at all comparable. In those circumstances, EuroHPC cannot be criticised for having evaluated them in the light of their respective merits and for having awarded different scores to those tenders, with the result that EuroHPC cannot be criticised for breach of the principle of equal treatment.

148    The first part of the plea must therefore be rejected as unfounded.

149    Secondly, it must be borne in mind that, in the present case, when the applicant alleges two manifest errors of assessment, it is for the applicant to adduce sufficient evidence to render implausible the assessments made by EuroHPC when it adopted the contested decision (see paragraph 64 above).

150    In the first place, it is apparent from the evaluation of the applicant’s tender, as regards the international context and availability of sensitive components, that the evaluation committee took the view that it did ‘not address … a potential lack of resources from the side of the respective technology supplier, to implement several large installations in parallel’.

151    As EuroHPC contends, the applicant confines itself in its action to challenging the evaluation committee’s assessment by referring to its own resources, which it regards as sufficient in the context of the project, but not to the resources of supplier X, which were regarded as potentially insufficient by that committee, which could have consequences for the applicant’s tender.

152    Thus, it appears that the applicant adduces no evidence sufficient to render implausible the assessments made by EuroHPC as regards the resources which it intends to obtain from supplier X as a technology supplier.

153    In the second place, as regards the claim of a second manifest error of assessment concerning the evaluation of long-term risk management, including unexpected unavailability of technology, price changes or lower performance, it is apparent that, contrary to what the applicant claims, the evaluation committee identified a risk relating to the supply chain of CPU and GPU components in the applicant’s technical proposal.

154    That risk lies, in essence, in the dependence of the applicant’s tender on supplier X as the supplier of the components in question, including in the context of fallback solutions, in the event that those components are the subject of supply difficulties.

155    Contrary to what the applicant claims, EuroHPC cannot be criticised for not having evaluated the solutions set out in its tender or for having taken the view that there were weaknesses in those solutions. In that regard, although the applicant claims that it would have the ability to switch to alternative technology suppliers, such as supplier Y or the third supplier referred to in paragraph 138 above, that solution was regarded by the evaluation committee as hypothetical and lacking detail.

156    As EuroHPC states, it could not in fact be ruled out that the difficulties encountered by supplier X in supplying components intended for a supercomputer based in the United States might be evidence of potential difficulties with regard to the Leonardo project.

157    Again, it appears that the applicant, while disputing the evaluation committee’s assessment, has not, however, adduced any sufficient evidence to render implausible the assessments made by EuroHPC.

158    The second part of the plea must therefore be rejected as unfounded.

159    Third, as regards the alleged breach by EuroHPC of its duty to state reasons as regards the evaluation of the applicant’s tender in respect of mitigating strategies, including the provision of solutions by alternative technology suppliers, it must be borne in mind that, where an EU body or institution has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution or body to provide adequate reasons for its decisions. Only then can the Courts of the European Union verify whether the matters of fact and of law upon which the exercise of the discretion depends were present (see judgment of 22 May 2012, Evropaïki Dynamiki v Commission, T‑17/09, not published, EU:T:2012:243, paragraph 38 and the case-law cited).

160    It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment of 22 May 2012, Evropaïki Dynamiki v Commission, T‑17/09, not published, EU:T:2012:243, paragraph 39 and the case-law cited).

161    Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are well founded, which goes to the substantive legality of the contested measure (see judgment of 22 May 2012, Evropaïki Dynamiki v Commission, T‑17/09, not published, EU:T:2012:243, paragraph 40 and the case-law cited).

162    Finally, the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of the notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see judgment of 10 February 2021, Sophia Group v Parliament, T‑578/19, not published, EU:T:2021:77, paragraph 166 and the case-law cited).

163    In the present case, the evaluation committee took the view that, although, in the applicant’s technical proposal, ‘the mitigation strategies for most components [were] well defined and aligned to provide the agreed performance’, the fact remained that, ‘for critical components like the CPU and the GPU the proposed alternatives [were] not convincing as the tenderer heavily [relied] on the release timescale of the suppliers [and that] alternative solutions proposed [might] alter significantly the final performance and power consumption numbers’.

164    It appears that that statement of reasons is amply sufficient to enable the applicant to understand the factors taken into consideration by the evaluation committee when it awarded its tender a score for that subcriterion. The evaluation committee found that the applicant’s considerable dependence on decisions taken by its own suppliers, over which it had no or little influence, was likely to weaken its tender.

165    Even if the applicant did not agree with that finding, such a disagreement corresponds to a criticism of the merits of the contested decision and not to a failure to state reasons.

166    The third part therefore appears to be unfounded, with the result that the fourth plea must be rejected in its entirety as unfounded, without it being necessary to examine whether that plea is ineffective.

167    Since the assessment of the evidence in the file produced in the present proceedings made it possible to reject as unfounded the four pleas in law raised by the applicant in support of the application for annulment of the contested decision, the action must be dismissed in its entirety, without it being necessary to grant the applicant’s request for the implementation of a measure of organisation of procedure and without there being any need to examine the plea of inadmissibility raised by EuroHPC.

 Costs

168    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EuroHPC, in accordance with the form of order sought by EuroHPC.

169    Furthermore, in accordance with Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission is to bear its own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Lenovo Global Technology Belgium BV to bear its own costs and to pay those incurred by the European High-Performance Computing Joint Undertaking (EuroHPC);

3.      Orders the European Commission to bear its own costs.

Delivered in open court in Luxembourg on 19 October 2022.

*      Language of the case: English.

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