JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
26 February 2002 (1) (Public contract for the supply of services - Day nursery management services - Principle of non-discrimination - Contract notice - Contract documents - Reasons stated for decision not to award contract - Misuse of powers)
In Case T-169/00,
Esedra SPRL, established in Brussels (Belgium), represented by G. Vandersanden, É. Gillet and L. Levi, avocats, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented initially by X. Lewis and L. Parpala, and, subsequently, by H. van Lier and L. Parpala, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION, first, for suspension of operation of the Commission's decision not to award to the applicant the public contract relating to invitation to tender No 99/52/IX.D.1, notified to the applicant by letter of 31 May 2000, and the Commission's decision to award the contract to a group of Italian companies represented by Centro Studi Antonio Manieri Srl, notified to the applicant by letter of 9 June 2000, and, second, for compensation for the damage allegedly caused by those decisions,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges,
Registrar: B. Pastor, Administrator,
having regard to the written procedure and further to the hearing on 18 September 2001,
gives the following
Judgment
Legal context
1.
The award of public contracts for the supply of services by the Commission is subject to the provisions of Section 1 (Articles 56 to 64b) of Title IV of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1), as last amended, at the material time, by Council Regulation (EC, Euratom, ECSC) No 2673/99 of 13 December 1999 (OJ 1999 L 326, p. 1) which entered into force on 1 January 2000 (the Financial Regulation).
2.
Under Article 56 of the Financial Regulation:
... when concluding contracts for which the amount involved is equal to or greater than the threshold provided for by the Council directives on the coordination of procedures for the award of public works, supplies and services contracts, each institution shall comply with the same obligations as are imposed upon bodies in the Member States by those directives. The implementing measures shall include appropriate provisions to that end.
3.
Article 139 of the Financial Regulation provides that [in] consultation with the European Parliament and the Council and after the other institutions have given their opinions, the Commission shall adopt implementing measures for this Financial Regulation.
4.
Accordingly, the Commission adopted Regulation (Euratom, ECSC, EC) No 3418/93 of 9 December 1993 laying down detailed rules for the implementation of certain provisions of the Financial Regulation (OJ 1993 L 315, p. 1). Articles 97 to 105 and 126 to 129 of that regulation apply to the award of public contracts for the supply of services. In particular, Article 126 provides as follows:
The Council directives on public works, supplies and services contracts shall be applicable to the award of contracts by the institutions whenever the amounts involved are equal to or greater than the amounts provided for in those directives.
5.
In the present case, the relevant directive is Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended by Directive 97/52/EC of 13 October 1997 of the European Parliament and the Council (OJ 1997 L 328, p. 1) (Directive 92/50), Article 7(1)(a) of which provides for an application threshold of EUR 200 000 for public service contracts for, in particular, health and social services.
Facts giving rise to the dispute
6.
In 1994 the Commission decided to entrust to a private company the management of the Centre de la Petite Enfance Clovis, which is a day nursery and kindergarten for children of the staff of the European institutions situated on its premises in Boulevard Clovis, Brussels (the CPE Clovis). The Commission issued an invitation to tender and subsequently awarded the contract to two Italian companies, Aristea and Cooperativa Italiana di Ristorazione. The management of the CPE Clovis was then entrusted to the applicant company, which was set up by the two aforementioned companies. The management contract was concluded for an initial term of two years from 1 August 1995, renewable for three one-year periods.
7.
By letter of 15 April 1999, the applicant informed the Commission that it did not intend to seek renewal of the contract for 1999/2000.
8.
On 26 May 1999, the Commission, pursuant to Council Directive 92/50, published in the Supplement to the Official Journal a first contract notice for the services relating to the management of the CPE Clovis (contract notice No 99/S 100-68878/FR, OJ 1999 S 100, p. 35). Those services are within category 25, Health and social services, of Annex I B to Directive 92/50. Three undertakings, among them the applicant and Centro Studi Manieri Srl (Manieri), applied to participate.
9.
By letter of 2 July 1999, the Commission informed the applicant that it had decided not to award the contract for the management of the CPE Clovis within the framework of the procedure initiated on 26 May 1999 because the number of candidates was too low to ensure adequate competition.
10.
On 10 July 1999, the Commission published a further contract notice for the management services of the CPE Clovis (contract notice No 99/S 132-97515/FR, OJ 1999 S 132). This notice was worded like the first and stated that the contract would be awarded to the economically most advantageous tender taking account of the prices tendered and the quality of the services proposed (details in the contract documents). Seven undertakings, including the applicant undertakings and Manieri, applied to participate.
11.
The applications were examined on 28 October 1999 by an assessment panel consisting of four Commission officials (the assessment panel). The seven applicant undertakings were selected.
12.
On 29 October 1999, the Commission sent the contract documents to the seven undertakings. The criteria on which the contract would be awarded were as follows:
The contract will be awarded to the economically most advantageous tender taking account of:
- the prices tendered and
- the quality of the tender and of the services proposed, evaluated, in descending order of importance, according to:
(a) the quality of the teaching programme (40%)
(b) the measures and resources employed to provide cover for staff absences (30%)
(c) the methodology and monitoring devices proposed for monitoring of: (30%)
- the quality of service and management
- the maintenance of staffing levels
- the implementation of the teaching programme.
13.
The contract documents were supplemented by the report of the site visit and of the mandatory information meeting on 24 and 25 November 1999 (the contract documents).
14.
By 7 February 2000, the final date set for that purpose, four undertakings, including the applicant and Manieri, had submitted tenders.
15.
The tenders were opened on 14 February 2000. The Commission then asked for further particulars from the tenderers. The applicant received and replied to three such requests from the Commission, dated 25 and 29 February and 17 March 2000. Manieri received five requests dated 25 (two requests) and 29 February, 3 and 10 March 2000, to which it replied on 10 and 14 March 2000.
16.
The tenders were then examined by three assessment panels.
17.
First, they were considered from the viewpoint of quality by an assessment panel consisting of six representatives of the Commission and a representative of the parents' association (the qualitative assessment panel). That panel delivered its report on 5 April 2000. The report placed Manieri's tender first, before that of Esedra.
18.
Secondly, the tenders submitted by the four bidders were assessed from the viewpoint of price by Commission officials (the price assessment panel). That panel compiled a financial evaluation table of the tenders, which placed Manieri's tender second, before that of Esedra.
19.
Thirdly, the qualitative assessment panel report and the abovementioned table were examined by a panel composed of six persons, of whom five were appointed in their capacity as Commission officials and the sixth in her capacity as representative of the Parents' Association (the tender assessment panel). That panel delivered its final assessment on 7 April 2000. The assessment repeats the conclusions of the two previous panels and concludes that Manieri's tender is the first and lowest tender in accordance with the requirements and qualitatively the best.
20.
Following that examination, and after the favourable opinion of the Advisory Committee for Purchases and Contracts of 30 May 2000, the Commission awarded the contract in question to a group of Italian companies represented by Manieri, consisting of the latter and six other undertakings.
21.
By letter of 31 May 2000, the Commission informed the applicant that it had not been awarded the contract in question (the refusal decision).
22.
By letter of 2 June 2000, the applicant's lawyers asked the Commission to inform them of the reasons for the refusal decision. They also asked the Commission to suspend any measure designed to implement the decision to award the contract to another candidate (the award) and, consequently, not to conclude the contract referred to in the contract documents.
23.
By fax of 9 June 2000, the Commission provided...
