Judgments nº T-536/11 of The General Court, July 08, 2015

• Resolution Date: July 08, 2015
• Issuing Organization: The General Court
• Decision Number: T-536/11

(Public service contracts - Tender procedure - Provision of computing services for the development and maintenance of software, consultancy and assistance for different types of IT applications - Ranking of a tenderer’s bid in the cascade for different lots and ranking of the bids of other tenderers - Obligation to state reasons - Award criterion - Manifest error of assessment - Non-contractual liability)

In Case T-536/11,

European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),

European Dynamics Belgium SA, established in Brussels (Belgium),

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),

represented by N. Korogiannakis, M. Dermitzakis and N. Theologou, lawyers,

applicants,

v

European Commission, represented initially by S. Delaude and V. Savov, and subsequently by S. Delaude, acting as Agents, and by O. Graber-Soudry, Solicitor,

defendant,

ACTION for annulment of the decision of the Publications Office of the European Union of 22 July 2011 to rank the applicants, in respect of the bids they submitted in response to the call for tenders AO 10340, concerning the provision of computing services for the development and maintenance of software, consultancy and assistance for different types of IT applications (OJ 2011/S 66-106099), in the third place in the cascade for lot 1, in the third place in the cascade for lot 4 and in the second place in the cascade for lot 3, as well as the decisions awarding the contracts at issue to other tenderers in as much as they refer to their ranking, and, second, for damages,

THE GENERAL COURT (Ninth Chamber),

composed of O. Czúcz, acting as President, I. Pelikánová and A. Popescu (Rapporteur), Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 25 September 2014,

gives the following

Judgment

Background to the dispute

1 By a contract notice of 5 April 2011, published in the Supplement to the Official Journal of the European Union (OJ 2011/S 66-106099), with a corrigendum published in the Official Journal (JO 2011/S 70-113065), the Publications Office of the European Union (PO) launched call for tenders AO 10340 (‘Computer services for software development and maintenance, consultancy and assistance for different types of information technology applications’).

2 According to the contract notice, the computing services in question were divided into four lots, the following three of which are relevant to this action:

- lot 1, concerning ‘support and specialised administrative applications’;

- lot 3, concerning ‘production and reception chains’;

- lot 4, concerning ‘consultancy and assistance services regarding management of information technology projects’.

3 The purpose of the call for tenders was to conclude new framework service contracts for each lot that would replace the framework contracts due to expire.

4 In the tender specifications, the PO stated that, for each lot, tenderers would be selected according to ‘the cascade mechanism’ (‘the cascade’) and that, for each lot, framework contracts would be signed, for a term of four years, with the tenderers who submitted the three best bids. When the specific contracts were awarded for each lot, the economic operator whose bid was considered to present the best value for money was contacted first. If that first operator was unable to provide the service requested or was not interested, the second best operator was contacted. If the latter was unable to provide the requested service or was not interested, the third best operator was then contacted.

5 Section 2.1 of the tender specifications stated that the assessment would consist of three main stages: a first stage, during which exclusion criteria would be applied (Section 2.5 of the tender specifications); a second stage, during which selection criteria would be implemented (Section 2.6 of the tender specifications); and a third stage, during which a technical and financial assessment of the bid would be carried out in the light of the award criteria (Sections 2.7 and 2.8 of the tender specifications).

6 In respect of the technical evaluation for lots 1 and 3, the tender specifications set out, in Section 2.7.2, five award criteria, as follows:

- criterion 1: ‘Overall quality of the presentation of the tenderer’s response’ (for lot 1, ‘criterion 1.1’ and, for lot 3, ‘criterion 3.1’) (maximum number of points: 5 out of 100);

- criterion 2: ‘Tenderer’s approach to the quality assurance and to project management to be used during the execution of the contract’ (for lot 1, ‘criterion 1.2’ and, for lot 3, ‘criterion 3.2’) (maximum number of points: 40 out of 100);

- criterion 3: ‘Technical merits of the human resources for the execution of the tasks’ (for lot 1, ‘criterion 1.3’ and, for lot 3, ‘criterion 3.3’) (maximum number of points: 25 out of 100);

- criterion 4: ‘Tenderer’s proposal for a take-over and hand-over’ (for lot 1, ‘criterion 1.4’ and, for lot 3, ‘criterion 3.4’) (maximum number of points: 10 out of 100);

- criterion 5: ‘Tenderer’s proposal for a [service level agreement]’ (for lot 1, ‘criterion 1.5’ and, for lot 3, ‘criterion 3.5’) (maximum number of points: 20 out of 100).

7 In respect of the technical evaluation for lot 4, the tender specifications set out, at Section 2.7.2, three award criteria, as follows:

- criterion 1: ‘Overall quality of the presentation of the tenderer’s response’ (‘criterion 4.1’) (maximum number of points: 5 out of 100);

- criterion 2: ‘Tenderer’s approach to the quality assurance and to project management to be used during the execution of the contract’ (‘criterion 4.2’) (maximum number of points: 55 out of 100);

- criterion 3: ‘Technical merits of the human resources for the execution of the tasks’ (‘criterion 4.3’) (maximum number of points: 40 out of 100).

8 For each lot, the award criteria represented a total of 100 points. Only bids obtaining at least half the points for each criterion and a total score of at least 65 points could be considered for the award of the contracts. Each bid was evaluated for the purpose of determining to what extent it satisfied the stated requirements, the successful bid being that which represented the best value for money. Quality, namely the technical evaluation, counted for 50% and price, namely the financial evaluation, counted for 50% (Section 2.9 of the tender specifications).

9 On 17 May 2011, the applicants, European Dynamics Luxembourg SA, European Dynamics Belgium SA, and Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, in the form of a consortium, submitted bids for lots 1, 3 and 4.

10 On 1 July 2011, the evaluation report was drawn up for lots 1 and 4, and, on 4 July 2011, for lot 3, in accordance with Article 147(1) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1, ‘the implementing rules’).

11 On 13 July 2011, the comité des achats et marchés, the Publication Office’s advisory body in the field of public procurement, delivered a favourable opinion on the award decision for lots 1, 3 and 4, as recommended by the evaluation committees in their reports. On 14 July 2011, the authorising officer by sub-delegation adopted the award decision, in line with that opinion and the recommendations of the evaluation committee.

12 On 18 July 2011, the evaluation committee adopted a correction to its original report of 1 July 2011 concerning the evaluation of lot 1. On 21 July 2011, the comité des achats et marchés of the PO sent a note to the authorising officer by sub-delegation, informing him of the correction to its opinion of 13 July 2011 concerning lot 1. On 22 July 2011, a corrected award decision was adopted by the authorising officer by sub-delegation, on account of a calculation error in the evaluation report for lot 1.

13 By letter of 22 July 2011, the PO notified the applicants of the ranking of their bids for each of the relevant lots, namely third place in the cascade for lot 1, third place in the cascade for lot 4 and second place in the cascade for lot 3, and of the names of the other tenderers whose bids had been successful for lots 1, 3 and 4 (‘the successful tenderers’). It stated that for lot 1, the bids submitted by the Sword-Siveco consortium (‘Sword-Siveco’) and by Logica Luxembourg (‘Logica’) had been ranked in first and second place, respectively, in the cascade; for lot 3, the bid submitted by ARHS Cube had been ranked in first place in the cascade; and for lot 4, the bids submitted by Novitech and Logica had been ranked in first and second place, respectively, in the cascade (‘the other successful tenderers’). The PO also specified the scores awarded in respect of those bids at the technical evaluation stage, the prices proposed in those bids and their price-quality ratio. Lastly, it stated that the applicants were entitled to request additional information on the ranking of their bids in the cascade for each of the relevant lots and on the characteristics and advantages of the bids which were ranked higher than theirs.

14 By letter dated 22 July 2011, the applicants requested the following information from the PO: first, the names of the potential subcontractor (or subcontractors) forming part of the consortia of the other successful tenderers and the percentages of the contract allocated to it (or them); second, the scores awarded, for each of the technical award criteria, to all of their bids and to the bids of the other successful tenderers; third, an analysis of the strengths and weaknesses of both their bids and the bids of the other successful tenderers; fourth, the relative advantages and the additional or better...