Judgments nº T-387/08 of The General Court, September 09, 2010

• Resolution Date: September 09, 2010
• Issuing Organization: The General Court
• Decision Number: T-387/08

In Case T‑387/08,

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

applicant,

v

European Commission, represented by E. Manhaeve and N. Bambara, acting as Agents, and by J. Stuyck, lawyer,

defendant,

APPLICATION (i) for annulment of the decision of the Publications Office of the European Union of 20 June 2008 rejecting the tender submitted by the applicant in Call for Tender AO 10185 for computing services – maintenance of the SEI‑BUD/AMD/CR systems and related services (OJ 2008/S 43-058884) and of the decision to award the contract 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 18 March 2010,

gives the following

Judgment

Legal context

Financial Regulation and implementing rules

1 The award of service contracts by the Commission is subject to the provisions of Title V of Part 1 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’), and to 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. 1; ‘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 states as follows:

‘1. Contracts shall be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 93, 94 and 96(2)(a) has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders.

2. Contracts shall 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, as applicable at the material time, provides:

   ‘The specifications shall at least:

   (a) specify the exclusion and selection criteria applying to the contract …;

   (b) specify the award criteria and their relative weighting 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 Under Article 138 of the Implementing Rules, as applicable at the material time:

   ‘1. Without prejudice to Article 94 of the Financial Regulation, 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.

   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.

   The contracting authority shall specify, in the contract notice 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, as applicable at the material time, 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, with a value equal to or more than the thresholds set in Article 158 and which are not excluded from the scope of Directive 2004/18/EC, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, by mail, fax or e-mail, that their application or tender has not been accepted, at either of the following stages:

   (a) shortly after decisions have been taken on the basis of exclusion and selection criteria and before the award decision, in procurement procedures organised in two separate stages,

   (b) as regards the award decisions and decisions to reject offers, as soon as possible after the award decision and within the following week at the latest.

   In each case, the contracting authority shall indicate the reasons why the tender or application has not been accepted and the available legal remedies.

   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. …’

   Specifications

   9 The contract notice and the specifications provide that the framework contract is to be awarded to the most economically advantageous tender assessed on the basis of the criteria laid down in the specifications.

   10 The specifications state that the assessment will include three stages: the first stage, during which the exclusion criteria are applied (section 2.5 of the specifications); the second stage, during which the selection criteria are applied (section 2.6 of the specifications); and the third stage, involving the application of the award criteria. Tenders are assessed as follows:

   – technical evaluation: the selected tenderers must score at least half of the points for each of the five award criteria and must score a minimum total of 70 points out of 100 in order to be admitted to the financial evaluation (last paragraph of section 2.7 of the specifications);

   – financial evaluation: the evaluation of the financial requirements is based on the total price for each lot referred to in the bid estimation form (section 2.8 of the specifications);

   – final evaluation: the contract must be awarded to the tenderer whose tender offers the best price-quality ratio, calculated in accordance with the formula set out in section 2.9 of the specifications.

   Background to the dispute

   11 By a contract notice of 1 March 2008 published in the Supplement to the Official Journal of the European Union (OJ 2008 S 43) under reference 2008/S 43‑058884, the Publications Office of the European Union launched Call for Tender AO 10185 (‘Computing services – maintenance of the SEI‑BUD/AMD/CR systems and related services’) comprising three lots. The deadline for submission of tenders was fixed at 14 April 2008.

   12 On 14 April 2008, the applicant submitted its tender.

   13 By letter of 20 June 2008 (‘the contested decision’), the Publications Office informed the applicant that its tender for Lot No 1 ‘was not successful in the abovementioned tendering procedure, as it didn’t receive [a] sufficient number of points during the technical award phase’, and stated that its tender had scored 65 points out of 100 (the quality threshold having been fixed at 70 points out of 100 in the specifications). The Publications Office added that the framework contract had been awarded to Software AG Belgium (‘Software’), whose tender had scored 86.25 points out of 100, with a price/quality ratio fixed at 94.72, the price proposed by the successful tenderer being EUR 3 530 500. The Publications Office also stated that it would not be concluding the contract with the successful tenderer until a period of 14 days had elapsed.

   14 By letter of the same date, the applicant asked the Publications Office for additional information about the evaluation procedure, namely the marks awarded by reference to each award criterion both for its own technical bid and for that of the successful tenderer, and detailed explanations concerning its financial bid in the light of that of the successful tenderer. The applicant asked for detailed information about the advantages and...