Orders nº T-114/06 of Court of First Instance of the European Communities, July 20, 2006

• Resolution Date: July 20, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-114/06

(Public procurement – Community tendering procedure – Interim proceedings – Prima facie case – Urgency)

In Case T‑114/06 R,

Globe SA, established in Zandhoven (Belgium), represented by A. Abate, lawyer,

applicant,

v

Commission of the European Communities, represented by M. Wilderspin and G. Boudot, acting as Agents,

defendant,

APPLICATION for suspension of the operation of the Commission’s decision to reject the applicant’s bid in the tendering procedure for supplies to various countries in Central Asia (EuropeAid/122078/C/S/Multi),

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts of the dispute and procedure

1 Globe SA provides specialised services to network operators (gas and electricity) and to the petrochemical industry. Its core activity, surveying, has been extended to include the taking of measurements in three dimensions (by means of a laser scanning process), data conversion (Globe DD) and computer-aided-design (CAD).

2 In the field of gas pipelines, the applicant developed in 2004, from a software programme called ‘SIG’ (‘système d’information géographique’, geographical information system), a new version of that software called ‘Pipe Guardian’ designed to assist managers of such installations in all aspects of their work.

3 On 20 October 2005, the Commission published an invitation to tender for the EuropeAid/122078/C/S/Multi project calling for the supply of a gas pipeline information system to gas companies in Central Asia (Kazakhstan, Kyrgyzstan, Turkmenistan and Uzbekistan). Those contracts are part of the TACIS 2002 programme.

4 The subject of the contract was the integration, configuration, delivery, installation, commissioning and after-sales service, in a single lot, of three pipeline network information systems, as well as the corresponding application programs and the related ancillary services, that is to say training and after-sales service, as defined in the technical specifications set out in the tender.

5 According to Article 1.1 of the Instructions to tenderers, published only in English, a pipeline information system is a data base system intended for the management of all construction and inspection data of a pipeline network and its geographical environment.

6 The Commission points out that although it initiated the invitation to tender itself, it entrusted the drafting of the substantive details of the tender to an outside consulting firm.

7 Section 2 of the Instructions to tenderers laid down the following timetable:

– deadline for requests for any clarifications from the contracting authority: 18 November 2005;

– last date on which clarifications are issued by the contracting authority: 29 November 2005;

– deadline for submission of tenders: 5 December 2005;

– tender opening session: 8 December 2005;

– notification of award to the successful tenderer:16 December 2005;

– signature of the contract 30 December 2005.

8 By letter of 10 November 2005 to the Commission, the applicant asked several questions on various subjects connected with the invitation to tender, of which one concerned the number of toner cartridges required by the specification in the contract documents (75 black toner cartridges and 25 colour toner cartridges). The applicant wished to know, in particular, whether those quantities were specified for each individual printer or for the whole contract.

9 On 14 November 2005, the Commission published Corrigendum No 1, it which it stated that the last date on which clarifications would be issued by the contracting authority was 24 November 2005.

10 On 22 November 2005, the Commission published a series of clarifications, one of which, No 23, concerned the number of toner cartridges involved in the invitation to tender and indicated that the figures of 75 and 25 toner cartridges referred to the number of cartridges required for each printer. The Commission also stated that the number of printers to be supplied under the contract was 16.

11 On 24 November 2005, the Commission published Corrigendum No 2, it which it stated that the precise number of toner cartridges was five black and two colour cartridges per printer.

12 IGN France International (‘IGN’) submitted its tender on 2 December 2005, that is to say, eight days after the publication of Corrigendum No 2. That tender made mention of a total of 1 600 toner cartridges, namely 1 200 black toner cartridges (that is to say, 75 cartridges for each of the 16 printers) and 400 colour toner cartridges (that is to say, 25 cartridges for each of the 16 printers).

13 The applicant’s bid was submitted on 5 December 2005 and took account of Corrigendum No 2.

14 The two other tenderers, Asia Soft and Geomagic, also submitted bids taking account of the information provided by the Commission in Corrigendum No 2.

15 In accordance with Article 20.6 of the Instructions to tenderers, the sole award criterion was to be the price and the contract would be awarded to the lowest compliant tender.

16 The tender opening session was held by the committee for the evaluation of tenders, as planned, on 8 December 2005. It was determined at that time that the bids of the four tenderers were as follows:

– Globe: EUR 545 215;

– IGN: EUR 592 400;

– Asia Soft: EUR 865 143;

– Geomagic: EUR 934 964.

17 The Commission awarded the contract to IGN. The contract was signed by the Commission on 19 December 2005 and by IGN on 30 December 2005 without the applicant being informed.

18 By letters of 6 January 2006 and 3 February 2006, the applicant and its lawyer wrote to the Commission to enquire as to what further steps had been taken in the tendering procedure.

19 By letter of 1 March 2006, the Commission informed the applicant’s lawyer:

‘... although it is true that at the tender opening session, it was found that Globe’s bid was the lowest, it was discovered subsequently that another tenderer’s bid was based on the quantities set out in the original publication in the Official Journal rather than on those contained in the corrigendum published on the EuropeAid web site. Since the corrigendum was published at a late stage, leaving very little time for potential tenderers to take note of its contents and because, in an invitation to tender for the supply of equipment, it is not possible to identify the potential tenderers in advance, the evaluation committee decided to take that bid into consideration and make the adjustments necessary to take account of the quantities indicated in the corrigendum published on the internet. As a result of those adjustments (reduction of the quantities and, consequently, reduction in the price), it appeared that Globe’s bid was not the lowest. The contract was therefore awarded to [IGN]’.

20 By letter of 2 March 2006 (‘the contested decision’), the Commission informed the applicant that its tender was not the least expensive of those tenders which were technically compliant and that the contract had been awarded to IGN for an amount of EUR 531 600.

21 In response to a letter to the Commission of 6 March 2006 from the applicant’s lawyer, the Commission forwarded, on 17 March 2006, a copy of the report drawn up by the evaluation committee. In that report, under the heading of technical compliance, the evaluation committee states, in essence, that, at the request of the contracting authority IGN’s bid had to be re-calculated to take into account the changed number of toner cartridges, as modified by Corrigendum No 2, and that the bid had been amended to that effect. Under the same heading, the evaluation committee confirmed that the revised bid and the confirmation had been received within 24 hours by e-mail and fax.

22 By an application lodged at the registry of the Court of First Instance on 14 April 2006 the applicant brought an action for the annulment of the contested decision.

23 On the same day, the applicant lodged an application for interim measures in which it seeks, essentially, suspension of the operation of the contested decision by the President of the Court of First Instance and an order for costs against the Commission.

24 On 27 April 2006, the Commission submitted its observations on the application for interim measures. In those observations, it asked the Court to dismiss that application and order the applicant to pay the costs.

25 The parties presented oral argument at the hearing on 16 May 2006.

Law

26 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim measures must specify the subject matter of the dispute, the circumstances giving rise to urgency as well as the pleas of fact and law prima facie justifying the grant of the provisional measure sought (fumus boni juris). Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent (order of the President of the Court in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30). In an appropriate case the President has also to weigh up the interests at stake (order of the President of the Court in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73 and the case-law cited therein).

27 Moreover, in the context of that overall examination, the President enjoys a wide margin of discretion and remains free to determine, in light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination since there is no rule of Community law imposing on him a predetermined analytical model for assessing the need for an interim decision (order of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23).

28 The present application for interim measures must be considered in the light of the principles set out above.

29 Before ruling on the application for interim measures, the subject matter of the application...