Judgments nº T-300/07 of The General Court, September 09, 2010

• Resolution Date: September 09, 2010
• Issuing Organization: The General Court
• Decision Number: T-300/07

In Case T‑300/07,

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

applicant,

v

European Commission, represented by E. Manhaeve, acting as Agent, and by J. Stuyk, lawyer,

defendant,

APPLICATION (i) for annulment of the Commission’s decisions of 21 May 2007 and 13 July 2007 rejecting the tenders submitted by the applicant in tendering procedure ENTR/05/78 for Lot 1 (Editorial Work and Translation) and Lot 2 (Infrastructure Management) for the management and maintenance of the ‘Your Europe’ portal (OJ 2006/S 143-153057) and awarding those contracts to another tenderer and (ii) for damages,

THE GENERAL COURT (Fifth Chamber),

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

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 27 January 2010,

gives the following

Judgment

Legal context

1. The Financial Regulation and the Implementing Rules

   1 The award of service contracts by the European Commission is governed by the provisions of Title V of Part One 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 by the provisions of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. l, ‘the Implementing Rules’).

   2 Article 89(1) of the Financial Regulation provides:

   ‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non‑discrimination.’

   3 Article 97 of the Financial Regulation, reads:

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

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

   4 Article 100 of the Financial Regulation provides:

   ‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.

2. The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

   However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’

   5 Article 130(3) of the Implementing Rules provides:

   ‘The specifications shall at least:

   (a) specify the exclusion and selection criteria applying to the contract, save in the restricted procedure, including after a competitive dialogue, and in the negotiated procedures following publication of a notice, referred to in Article 127; in such cases those criteria shall appear solely in the contract notice or the call for expressions of interest;

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

   …’

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

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

   7 Article 138 of the Implementing Rules provides:

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

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

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

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

3. The contracting authority shall specify, in the call for tenders or in the specifications, the weighting it will apply to each of the criteria for determining best value for money.

   …’

   8 Article 149(2) and (3) of the Implementing Rules provides:

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

3. In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or email, that their application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been accepted.

   The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.

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

   …’

2. Contract notice and tender specifications

   9 The contract notice and the tender specifications state that the framework contracts are to be awarded for each lot to a single operator whose tender offers the best value for money in terms of the criteria stated in the tender specifications. The contract notice states that the initial duration of the framework contract is two years, which can be extended once, and that the estimated total value of purchases for the entire duration of the framework contract (maximum duration of four years) amounts to EUR 6 500 000.

   10 The tender specifications provide for a procedure comprising four stages. During Stage 1 the exclusion criteria are applied (point 3.1 of the tender specifications). During Stage 2 the selection criteria are applied (point 3.2 of the tender specifications) in order to examine the tenderer’s financial and economic, and technical and professional capacity: first, their financial and economic capacity for all lots (based on the audited annual accounts of the tenderers concerned for the last three years and the annual turnover concerning services having a value equal to or greater than EUR 180 000 and, secondly, technical and professional capacity, analysed separately for each of the three lots making up the call for tenders (the conditions being, in particular: to have a sufficient team of qualified professionals, with at least three years’ experience in translation services, web publication and web content creation, and to have provided services in the area concerned in at least three instances and for at least three different customers over the previous five years, one of which must have been a project with an international dimension). During Stage 3 the award criteria (assessment of tenders) are applied (point 3.3 of the tender specifications).

   11 In relation to the technical assessment, the tender specifications set out four award criteria for each of the lots. The criteria for Lots 1 and 2 are largely similar and are broken down as follows:

   – qualitative award criteria relating to Lot 1, the total number of points being 100:

   – criterion No 1: good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks (30 points);

   – criterion No 2: quality and completeness of the draft PMQP (project management and quality plan) (‘PMQP’) (10 points);

   – criterion No 3: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 1 (30 points);

   – criterion No 4: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 2 (30 points);

   – qualitative award criteria relating to Lot 2, the total number of points being 100:

   – criterion No 1: good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks (30 points);

   – criterion No 2: quality and completeness of the draft PMQP (10 points);

   – criterion No 3: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 1 (30 points);

   – criterion No 4: quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in Scenario 2 (30 points).

   12 It is stated in the specifications that tenders scoring less than 70% in the overall points total or less than 50% in the points awarded for a single...