Judgments nº T-556/11 of The General Court, April 27, 2016

• Resolution Date: April 27, 2016
• Issuing Organization: The General Court
• Decision Number: T-556/11

(Public service contracts - Tendering procedure - Software development and maintenance services - Rejection of a tenderer’s bid - Classification of a tenderer in the cascade procedure - Grounds for exclusion - Conflict of interest - Equal treatment - Duty of diligence - Award criteria - Manifest error of assessment - Duty to state reasons - Non-contractual liability - Loss of opportunity)

In Case T-556/11,

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 initially by N. Korogiannakis, M. Dermitzakis and N. Theologou, subsequently by I. Ampazis, and lastly by M. Sfyri, lawyers,

applicants,

v

European Union Intellectual Property Office (EUIPO), represented initially by N. Bambara and M. Paolacci, and subsequently by M. Bambara, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers,

defendant,

ACTION, first, for annulment of the decision of EUIPO notified by letter of 11 August 2011 and adopted in tendering procedure AO/029/10 entitled ‘Software development and maintenance services’ rejecting the tender submitted by European Dynamics Luxembourg and the other related decisions of EUIPO adopted in the context of that procedure, including those awarding the contract to other tenderers, and, second, for damages,

THE GENERAL COURT (Fourth Chamber),

composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 July 2015,

gives the following

Judgment

Background to the dispute

1 The applicants, European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, are active in the field of information technology and communication and regularly submit tenders in tendering procedures launched by various EU institutions and bodies, including the European Union Intellectual Property Office (EUIPO).

2 By contract notice of 15 January 2011, EUIPO published in the supplement to the Official Journal of the European Union (OJ 2011/S 10-013995) a call for tenders under reference AO/029/10, entitled ‘Software development and maintenance services’. The contract to be awarded covered the supply to EUIPO of IT services for prototyping, analysis, design, graphic design, development, testing and installation of information systems, as well as the provision of technical documentation, training and maintenance for those systems.

3 Under point II.1.4 of the contract notice, the tender concerned the award of framework agreements for a maximum duration of seven years with three different IT service providers. In that regard, that point of the contract notice, read together with point 14.3 of the tender specifications (Annex I to the tender documentation), stated that the framework contracts had to be concluded separately and in accordance with the ‘cascade’ procedure for an initial period of three years, with an option for tacit annual renewal up to a maximum duration of four years. That mechanism meant that if the first-ranked tenderer was unable to provide the services required, EUIPO was to turn to the second-ranked tenderer, and so on (see point 14.2 of the tender specifications).

4 Under point IV.2.1 of the contract notice, the contract was to be awarded to the most economically advantageous tender, namely the tender with the best price-to-quality ratio.

5 By letters of 19 and 24 January and 1 February 2011 addressed to EUIPO, the applicants complained of certain irregularities in the terms and conditions of tendering procedure AO/029/10. EUIPO replied by letters of 28 January and 4 February 2011, dismissing their allegations and drawing their attention to the possibility of lodging a complaint with the Commission pursuant to Article 122 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

6 By letter of 16 February 2011 addressed to EUIPO, the applicants reiterated their criticisms concerning the lack of clarity and the ambiguity of certain technical criteria set out in the tender specifications, and requested EUIPO to amend them.

7 By letter of 4 March 2011, the applicants lodged a complaint with the Directorates General (DG) ‘Internal market’ and ‘Competition’ of the Commission, requesting the Commission to investigate EUIPO’s conduct in its capacity as contracting authority, in particular with respect to the purported irregularities relating to the management of tendering procedure AO/029/10 and the previous maintenance framework agreements bearing number 4020070018, awarded by EUIPO in May 2007, on the basis of the ‘cascade’ procedure, to three companies, including the third applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis.

8 By letters of 8 and 9 March 2011 addressed to EUIPO, the applicants again challenged the terms and conditions of tendering procedure AO/029/10.

9 On 11 March 2011, the first applicant, European Dynamics Luxembourg, submitted a tender in response to the contract notice of 15 January 2011.

10 By letter of 30 May 2011, the Commission informed the applicants, first, that it considered that the complaint had been lodged out of time and therefore that it could not examine it and, secondly, that it had forwarded certain allegations to the European Anti-Fraud Office (OLAF), as they came under that office’s jurisdiction. By letter of 13 December 2011, OLAF informed EUIPO that it was closing the case in so far as it related to another contract notice, also published in the supplement to the Official Journal of the European Union (OJ 2011/S 55-089144).

11 By letter of 31 May 2011 addressed to the Commission, the applicants challenged the dismissal of their complaint as time-barred and once again called on the Commission to examine it.

12 By letter of 11 August 2011 (‘the letter at issue’), EUIPO informed the first applicant of the outcome of tendering procedure AO/029/l0 and that its tender had not been successful because it was not the most economically advantageous (‘the decision to reject the tender’). That letter also contained a comparative table setting out the number of points awarded to that tender, namely 84.72, and the number of points awarded to the three tenderers which had obtained the highest scores, namely ‘Informática El Corte Ingles - Altia’ with 90.58 points, ‘Everis-Unisys-Fujitsu’ with 90.19 points, and ‘the Drasis consortium’ with 85.65 points.

13 By letter of 12 August 2011, the first applicant asked EUIPO to inform it of, first, the exact composition of the consortia of the successful tenderers, and also the names of any partner or partners or subcontractor or subcontractors of those tenderers and the percentages of the contract awarded to them; secondly, the scores awarded to their tender and the tenders of the successful tenderers for each of the technical award criteria, together with a comparative analysis of the strong and weak points of those tenderers for each sub-criterion, and also an explanation of the relative advantages and additional or better-quality services offered by the successful tenders by comparison with its own tender; thirdly, a detailed copy of the evaluation report; fourthly, the financial tenders of the successful tenderers, by comparison with its own tender; and, fifthly, the names of the members of the evaluation committee, in order to check potential conflicts of interest. In addition, the first applicant claimed that there were conflicts of interest in the case of two of the three successful tenderers, and also certain irregularities in EUIPO’s application of the financial criteria for evaluating the financial tenders. Lastly, the first applicant asked EUIPO to refrain from concluding a contract with the successful tenderers until it had received and examined the answers from EUIPO.

14 By letter of 26 August 2011, EUIPO provided the first applicant with an extract of the evaluation report comprising the qualitative evaluation of its tender on the basis of three criteria: quality of software maintenance, business case, and quality of customer services. In addition, it sent the first applicant, first, the names of the successful tenderers, namely Informática El Corte Ingles, SA - Altia Consultores, S.A. Temporary Association (‘IECI’), which was ranked first, Everis SLU, Unisys and Fujitsu Technology Solutions (‘the Unisys consortium’ or ‘Unisys’), which was ranked second, and the Drasis consortium (Siemens IT Solutions and Services SA (‘Siemens SA’), Siemens IT Solutions and Services SL (‘Siemens SL’)), Intrasoft International SA and Indra Sistemas SA, (‘the Drasis consortium’ or ‘Drasis’), which was ranked third, and, secondly, two tables setting out the scores obtained by the successful tenderers and the first applicant itself for their financial and technical tenders. The two tables are the following:

Comparative table of technical tenders:

Qualitative Criteria

IECI...

[Unisys]

Dras[i]s

European Dynamics

Quality Criterion 1

46.81

45.51

51.74

58.21

Quality Criterion 2

15.00

15.00

15.50

18.00

Quality Criterion 3

10.15

10.15

10.81

11.69

Total

71.96

70.66

78.05

87.90

Total over 100

81.86

80.38

88.78

100.00

Table of comparative evaluation of tenders from the aspect of their economically advantageous nature:

IECI...

[Unisys]

Dras[i]s

European Dynamics

Quality Standards (50%)

81.86

80.38

88.78

100.00

Financial evaluation (50%)

99.30

100.00

82.51

69.44

Total points

90.58

90.19

85.65

84.72

15 By letter of 29 August 2011 addressed to the Commission, the applicants complained that the Commission had still not investigated the matters brought to its attention in the letters of 4 March and 31...