Judgments nº T-4/13 of The General Court, June 11, 2014

Resolution DateJune 11, 2014
Issuing OrganizationThe General Court
Decision NumberT-4/13

(Public service contracts — Tendering procedure — Provision of language-training services for staff of the institutions, bodies and agencies of the European Union in Brussels — Rejection of tenders submitted by the applicant — Principle of transparency – Non-discrimination — Equal treatment — Article 94 of the Financial Regulation — Selection criteria — Obligation to state reasons — Award criteria — Manifest error of assessment)

In Case T‑4/13,

Communicaid Group Ltd, established in London (United Kingdom), represented by C. Brennan, Solicitor, F. Randolph QC, and M. Gray, Barrister,

applicant,

v

European Commission, represented by S. Delaude and S. Lejeune, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers,

defendant,

APPLICATION for the annulment, in whole or in part, of the decisions by which the Commission refused to rank Communicaid Group Ltd in first place for Lots 1, 2, 4 and 7 to 9 of the Call for Tenders HR/R3/PR/2012/002 relating to framework agreements for the provision of language training for staff of the institutions, bodies and agencies of the European Union in Brussels (Belgium),

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 8 January 2014,

gives the following

Judgment

Background to the dispute

1 The applicant, Communicaid Group Ltd, is a company incorporated under English law which provided language course services to several institutions, bodies and agencies of the European Union (provision of language trainers and materials) from 2008 onwards on the basis of successive framework contracts, the last of which came to an end in July 2013.

2 By a contract notice published in the Supplement to the Official Journal of the European Union on 6 March 2012 (OJ 2012 S S45), the European Commission launched a call for tenders (HR/R3/PR/2012/002) concerning the conclusion of framework contracts for the provision of language training for staff of the institutions, bodies and agencies of the European Union in Brussels (Belgium). The contract at issue was divided into a number of lots, and each tenderer could submit a tender for one or more lots. Lots 1 to 9 related to the provision of training services for one or more specific languages, whilst Lot 10 concerned the provision of on-line language courses (e-learning). The contract notice provided that, for each lot, a successive multiple framework contract would be entered into with up to three companies or groupings for a maximum term of four years.

3 The contract at issue was subject to the restricted procedure and was to be awarded on the basis of the most economically advantageous tender, assessed according to the criteria stated in the specifications. However, in order to be invited to tender, potential tenderers had to satisfy inter alia the necessary requirements as to proof of economic and financial capacity, in accordance with the contract notice and with Article 136(2) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1) (‘the Implementing Rules’), failing which they would be excluded from the tendering procedure.

4 By letter of 30 May 2012 (‘the decision of 30 May 2012’), the applicant was invited to tender for Lots 1, 2, 4, 5 and 7 to 10.

5 By an application lodged at the Registry of the General Court on 12 July 2012 and registered as T‑318/12, the applicant sought annulment of the decision of 30 May 2012 insofar as the Commission had not authorised it to submit a tender for Lot 3 of the call for tenders at issue. By order of 27 September 2012, the Court dismissed that action.

6 The applicant then submitted separate tenders for each of the lots in respect of which it had been invited to submit a tender, with the exception of Lot 10. On 30 October 2012, the Commission sent to the applicant, by separate letters, six decisions indicating that, as regards Lots 1, 2, 4, 7, 8 and 9, the applicant’s tenders had been ranked in second place (‘the contested decisions’), and a decision indicating that it had been awarded Lot 5.

7 Following receipt of the contested decisions, the applicant requested from the Commission, first, information on the characteristics and relative advantages of the successful tenders and on the assessment of its own tenders and, secondly, a fully detailed breakdown of the successful tenderer’s pricing responses. Further, it informed the Commission that one of the seconded national experts who had been employed by the Commission in its Directorate-General (DG) for human resources (‘Commission unit B.3’) in the months prior to publication of the contract notice at issue and who had sat on a tender evaluation committee in a similar award procedure was now employed by the successful tenderer, and had played a role in the preparation of the latter’s tenders. The applicant also called into question the economic and financial capacity of the successful tenderer to perform the contract at issue. Lastly, having regard to the evaluation methodology and the scoring matrices prepared by the tender evaluation committee (‘the evaluation committee’), the applicant claimed that the contested decisions were vitiated by a number of manifest errors of assessment under each of the criteria which had served as the basis of the quality evaluation of the submitted tenders.

Procedure

8 By application lodged at the Court Registry on 9 January 2013, the applicant brought the present action.

9 By a separate document, lodged at the Court Registry on 10 January 2013, the applicant brought an application for interim measures, under Article 278 TFEU and Article 104 et seq. of the Rules of Procedure of the General Court, seeking, first, suspension of the operation of the contested decisions until the Court had ruled on the main action, and secondly, that the Commission be prohibited from entering into contracts with the successful tenderer in relation to Lots 1, 2, 4, 7, 8 and 9, or from carrying out those contracts if they had already been entered into. The Commission submitted its written observations on the application for interim measures on 1 February 2013. By order of 11 March 2013, the President of the Court dismissed the application for interim measures.

10 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber and the present case was therefore also assigned to that Chamber.

Forms of order sought by the parties

11 The applicant claims that the Court should:

– annul the contested decisions in their entirety or insofar as the successful tenderer was ranked in first place;

– order the Commission to pay the costs.

12 The Commission contends that the Court should:

– declare the action inadmissible insofar as it concerns Lot 3;

– dismiss the action;

– order the applicant to pay the costs.

13 At the hearing, the applicant clarified its claims for annulment, extending them to the decision of 30 May 2012.

Law

  1. Admissibility of the claims relating to Lot 3

    14 The Commission, while not formally raising a plea of inadmissibility, submits that the application is manifestly inadmissible insofar as it concerns Lot 3. It asserts that, as regards that lot, the applicant was informed by a letter of 30 May 2012 that it had not been selected for the purpose of submitting a tender. It therefore submits that the application is manifestly inadmissible as it was brought after the two-month period laid down in Article 263 TFEU had expired.

    15 The applicant claims that the reference to Lot 3 it is a typographical error and that its application must, in fact, be regarded as being directed against the decision of 30 October 2012 placing its tender in second place as regards Lot 4.

    16 It can be seen from pages 1 and 3 of the application that the applicant requests the annulment of the Commission decision of 30 October 2012 relating to Lots 1 to 3 and 7 to 9 of the call for tenders at issue. However, it is expressly stated in paragraphs 7 and 15 of the application that the applicant was not authorised to submit a tender for Lot 3, but that it did submit a tender for Lot 4. Moreover, numerous other paragraphs of the application, such as paragraphs 7, 22, 23, 104 and 105, refer, not to Lot 3, but to Lot 4. Lastly, it was mentioned in paragraph 5 above that the applicant had already brought an action against the decision of 30 May 2012 whereby the Commission had not authorised it to submit a tender for Lot 3 of the call for tenders at issue and that its action was dismissed by an order of the Court of 27 September 2012.

    17 It follows from all of the foregoing that the reference, in pages 1 and 3 of the application, to Lot 3 of the contract at issue is a typographical error and that the application must be regarded as concerning the Commission’s decision of 30 October 2012 relating to Lots 1, 2, 4, 7, 8 and 9 of the call for tenders at issue. Lot 3 therefore does not form part of the subject-matter of the present proceedings. It follows that the Commission’s claim that the application is inadmissible insofar as it concerns Lot 3 is unfounded.

  2. Substance

    18 In support of its action, the applicant raises, in essence, three pleas in law, alleging, first, infringement of the obligation to state reasons, secondly, infringement of the principles of transparency, non-discrimination and equal treatment and of Article 94 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and, thirdly, manifest errors of...

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