Judgments nº T-345/03 of Court of First Instance of the European Communities, March 12, 2008

• Resolution Date: March 12, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-345/03

In Case T-345/03,

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented initially by S. Pappas and subsequently by N. Korogiannakis, lawyers,

applicant,

v

Commission of the European Communities, represented by C. O-Reilly and L. Parpala, acting as Agents,

defendant,

APPLICATION for the annulment of the decision to award the contract which is the subject of the Commission-s call for tenders ENTR/02/55 - CORDIS Lot 2 for the development and provision of services in support of the Community Research and Development Service (CORDIS),

THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 13 July 2006,

gives the following

Judgment

Legal context

1 Until 31 December 2002, the award of public service contracts by the Commission was governed by the provisions of Section 1 (Articles 56 to 64 bis) 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 amended by Council Regulation (EC, ECSC, Euratom) No 2673/99 of 13 December 1999 (OJ 1999 L 326, p. 1), which came into force on 1 January 2000 (-the Financial Regulation-).

2 According to 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 service contracts, each institution shall comply with the same obligations as are imposed upon bodies in the Member States by those directives.

The implementing measures provided for in Article 139 shall include appropriate provisions to that end.-

3 Article 139 of the Financial Regulation provides as follows:

-In consultation with the European Parliament and the Council and after the other institutions have delivered their opinions, the Commission shall adopt implementing measures for this Financial Regulation.-

4 Pursuant to Article 139 of the Financial Regulation, 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) (-the Implementing Rules-). Articles 97 to 105 and 126 to 129 of the Implementing Rules apply to the award of public service contracts.

5 In particular, Article 126 of the Implementing Rules provides as follows:

-The Council directives on public works, supplies and services 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.-

6 Article 3(2) of 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 the European Parliament and of the Council of 13 October 1997, also amending Directives 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public supply contracts and public works contracts respectively (OJ 1997 L 328, p. 1), provides as follows:

-Contracting authorities shall ensure that there is no discrimination between different service providers.-

Background to the dispute

I - CORDIS

7 The present case concerns the general call for tenders ENTR/02/55 relating to the development and provision of the new version of services in support of the Community Research and Development Information Service (CORDIS) (-the call for tenders at issue-). CORDIS is an informatics tool which enables framework programmes for European research to be implemented. It is the principal publishing and communication service for prospective or existing participants and for other groups with an interest in a framework programme for European research. It consists of a multi-purpose platform which can be adapted to the user-s needs, a portal for those involved in European research and innovation and a tool for the dissemination of information to the public.

8 As of 1998, all the support services for CORDIS were supplied by a single contractor, namely Intrasoft International SA (-the existing contractor-).

9 The adoption of the Sixth Framework Programme of the European Community for research, technological development and demonstration activities contributing to the creation of the European Research Area and to innovation (2002-2006) by Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 (OJ 2002 L 232, p. 1) marked the beginning of a new phase in the implementation of CORDIS. For that new phase, the Commission decided to launch a call for tenders and to divide the project in question in the present case into five lots.

II - The call for tenders at issue, the successful tenderer and the award of the contested contract

10 On 13 February 2002, the prior information notice for the invitation to tender at issue was published in the Supplement to the Official Journal of the European Communities (OJ S 31). A prior information notice modifying it was published in the Supplement to the Official Journal of the European Communities of 7 August 2002 (OJ S 152).

11 On 20 November 2002, the contract notice for Lots 1 to 3 was published in the Supplement to the Official Journal of the European Communities (OJ S 225).

12 Volume A of the tendering specifications for the call for tenders at issue, entitled -the general part-, (-Volume A of the tendering specifications-) states, inter alia, as follows:

-Preamble

This is Volume A, the general part of the tendering specifications, applicable to all 5 lots.

For the specific parts, please refer to:

-

Lot 2 - Development

(development and maintenance of the technical infrastructure of all services)

-

1.3 Start date and duration of the contract

The contracts are expected to be signed in June 2003 and to start on the 1 st of July 2003.

The first three months of the contracts are the -running-in phase- of the contracts.

Running-in serves the purpose to enable [sic] non-incumbent contractors to familiarise [themselves] with the CORDIS service. The previous contract specifies a -handover-. New contractors will thus be able to access the service operations in order to prepare themselves for takeover of the services - [at] the latest by the end of the running-in phase.

The running-in is not paid [sic].

It is not excluded, subject to the approval of the CPO and subject to the agreement of the existing contractor, that parts or all of the service are already taken over during the running-in phase (for payment of services taken over during the running-in phase, see point 1.7).

-

1.7 Payment

Payment for each lot shall be made within the delay [sic] fixed by the Commission-s internal regulations for payment as follows:

-

- in [the] case that parts or all of the service are taken over by the new Contractor during the running-in phase (see 1.3), the new Contractor will be paid as of the date of successful takeover for the parts of the service taken over; -

-

3.3 Evaluation of offers - award criteria

The contract will be awarded to the most cost-effective offer (-best value for money-), on the basis of the following award criteria:

- the qualitative award criteria

- the price

The first step in the assessment procedure is to evaluate the selected tender(s) according to the following qualitative award criteria and the corresponding weighting of each criterion.

Criterion

Qualitative award criteria

Weighting (max. points) for Lots 1, 2, 4, 5

Weighting (max. points) for Lot 3

1

Technical merit, conformity with the technical terms of reference and how these are addressed; proposed technical approach (functional completeness, compliance with technical requirements, appropriateness of proposed technology)

35

-

2

Quality of proposed methodology (working methods aiming at effectiveness, usability, security and confidentiality; service reliability / availability / recovery / maintenance; adopting best practices)

25

-

3

Creativity, degree of innovation (value of original ideas on how to innovate the service)

20

-

4

Quality of proposed schedule, contract management and control (proposed arrangements for the production of deliverables on time, and to ensure that the objectives and deadlines are met and quality is guaranteed)

20

-

5 -

(only for Lot 3)

-

-

-

Total points

100

-

-

4. Technical specifications

   Executive summary

   There could be up to five independent Contractors to run the CORDIS service. These are specialising [sic] in the following way:

   -

   Lot 2 will assure [sic] the development of the technical infrastructure used by the other lots and the Commission, such as the Common Production System (CPS), the Web Content Management System (WCMS), the Information Dissemination System (IDS) with all its components (WWW server(s), FTP server(s), BBS, eMail server, firewall, LAN, WAN, broadband Internet access, etc.). Lot 2 will also develop new tools and features, some of which [are] for experimental purposes(s). Lot 2 will bring the know-how and the service-application software, whereas each other lot - and the Commission - will provide the underlying building blocks, i.e. hardware and software system(s), like [sic] database management system, router etc.

   --

   13 Volume B of the tendering specifications for the call for tenders at issue, entitled -Lot 2 Development- (-Volume B of the tendering specifications-) sets out the specifications for Lot 2. It provides, inter alia, as follows:

   -6.2.1 Technical and functional evolution of the system architecture and processes

   -

   The following specifications - on the basis of the current state of CORDIS as of June 2002 and the predictable near future - concentrate on describing...