Judgments nº T-392/15 of Tribunal General de la Unión Europea, July 04, 2017

• Resolution Date: July 04, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-392/15

In Case T-392/15,

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

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

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

represented initially by I. Ampazis, M. Sfyri, C.-N. Dede and D. Papadopoulou and, subsequently, by M. Sfyri, C.-N. Dede and D. Papadopoulou lawyers,

applicants,

v

European Union Agency for Railways, represented initially by M.J. Doppelbauer, and subsequently by M.G. Stärkle and Z. Pyloridou, acting as Agents and V. Christianos, lawyer,

defendant,

ACTION based on Article 263 TFEU seeking annulment of the decision of the European Union Agency for Railways ranking the tenders submitted by the applicants for Lots 1 and 2 of contract ERA/2015/01/OP ‘ESP EISD 5 - External Service Provision for ERA Information System’.

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 On 28 May 2013, Contract Notice ERA/2013/16/RSU/OP ‘ESP - EISD 4’ (‘Contract ESP EISD 4’) was published in the Supplement to the Official Journal of the European Union (OJ 2013/S 101-172115). That contract concerned a procedure opened for the supply of external services for development, studies and support for information systems for the European Agency for Railways (ERA) now the European Union Agency for Railways (‘the Agency’). It consisted of three lots and the award criterion was the best quality/price ratio. For each of the lots of the contract the Agency was to conclude a framework contract with the three candidates whose tenders had the highest rankings and would conclude contracts with each of them during the performance of the framework contract.

2 On 16 September 2013, the applicants, European Dyamics Luxembourg SA, Evropaïki Dynamiki - Proigmena Systimata Tilepikoin union Pliroforikis kai Tilematikis AE and European Dynamics Belgium SA, submitted tenders for each of the three lots of Contract ESP EISD 4.

3 On 12 September 2014, the Agency notified the applicant that, for each of the three lots of Contract ESP EISD 4 their tender had been ranked in first position and that it offered them a framework contract for each of those lots.

4 On 14 October 2014, the Agency notified the applicants of its decision to annul Contract ESP EISD 4 on the ground that it did not have a mathematical formula enabling a financial assessment of the tenders. On 29 October 2014, that decision was published in the Supplement to the Official Journal.

5 On 14 October 2014, the applicants challenged the grounds of the Agency’s decision to annul the award of Contract ESP EISD 4. On 13 November 2014, the Agency responded to that challenge stating that that decision had been taken because the tender specifications of the contract concerned did not indicate the weighting, expressed as a percentage, of the level of expertise. It also indicated that a new contract notice would be published and that it would explain the formula adopted to financially evaluate the tenders.

6 On 13 November 2014, the applicants again challenged the grounds for the annulment of Contract ESP EISD 4. On 10 December 2014 the Agency responded to that challenge and, on 15 December 2014, it sent the applicants a public version of the evaluation report relating to that contract.

7 On 28 January 2015, the contract notice ERA/2015/01/OP ‘ESP EISD 5’ - Contract for external services - External Service Provision for [the Agency] Information System’, (‘Contract ESP EISD 5’) was published in the Supplement to the Official Journal (OJ 2015/S 019-029725). That contract related to a procedure opened for the supply of external services in order to develop information systems for the Agency. It consisted of three lots and the award criterion was the best quality/price ratio. For each of the lots of that contract, the Agency would conclude a framework contract with the three candidates whose bids were ranked in first place. The time limit for submitting tenders for the call for tenders was 6 March 2015 and the applicants submitted their tenders as a consortium within that time limit.

8 On 8 May 2015, the Agency informed the applicants of its decision to rank their tender for Lot 1 of the ESP EISD 5 contract, entitled ‘Development of on-site information systems on the basis of the time and means allocated (including studies and assistance)’ (‘Lot 1’), in second place (‘the first contested decision’).

9 On 11 May 2015, the applicants submitted a request to the Agency for further information concerning the award of Lot 1 to the tenderers whose bids were ranked in first and third places.

10 On 20 May 2015, the Agency responded to that request. In its reply, it gave the information concerning the tender which was ranked in first place and the applicants’ tender. It indicated that the evaluation committee had ranked the tender of the Nextera consortium in first place with 56 points out of 60 upon completion of the technical evaluation and 38.78 points out of 40 on completion of the financial evaluation. The applicants tender was ranked in second position with 57 points out of 60 upon completion of the technical evaluation and 35.46 out of 40 upon completion of the financial evaluation.

11 On 8 July 2015, the applicants requested and received a copy of the evaluation report for Lot 1.

12 On 1 July 2015, the Agency communicated to the applications its decision to rank their tender for Lot 2 of the ESP EISD 5 contract entitled ‘Development of offsite information systems (including studies and assistance)’ (‘Lot 2’) in seventh position and therefore to reject it (‘the second contested decision’).

13 On 2 July 2015, the applicants requested further information on the award of Lot 2 to the three tenderers whose bids were accepted.

14 On 7 July 2015, the Agency responded to that request by transmitting an extract of the evaluation committee’s report containing, in particular, the information relating to the tenders which were accepted for Lot 2. In particular Intrasoft’s tender was ranked in first place with 51 points out of 60 upon completion of the technical evaluation and 39.04 points out of 40 on completion of the financial evaluation. Atos Belgium’s tender was ranked in second place with 48.5 points out of 60 upon completion of the technical evaluation and 40 out 40 on completion of the financial evaluation. Nextera2’s tender was ranked in third place with 52.5 out of 60 upon completion of the technical evaluation and 32.53 points out of 40 upon completion of the financial evaluation. As to the applicants tender, it obtained 52 points out of 60 upon completion of the technical evaluation and 26.23 out of 40 on completion of the financial evaluation.

15 On 8 July 2015, the applicants sent the Agency a letter in which they claimed that it had committed a number of irregularities affecting the contested decisions. In particular, they took the view that the tenderers whose bids had been accepted for Lots 1 and 2 had improperly reduced their prices in order to win a competitive advantage. They also indicated that they did not understand how the Agency could accept such prices that were artificially low and regretted that the Agency had decided to accept those prices without any investigation or explanation.

Procedure and forms of order sought

16 By application lodged at the Registry of the General Court on 17 July 2015, the applicants brought the present action against the contested decisions.

17 On 23 July 2015, the applicants indicated to the Agency that they had not received any response to their letter of 8 July 2015, repeated that they considered the tenders accepted to be abnormally low and stated that they had brought an action against the contested decision.

18 On 24 July 2015, the Agency responded to the applicants’ letter of 8 July 2015 challenging the complaints they had put forward.

19 On 27 July 2015, the applicants challenged the Agency’s arguments set out in its letter of 24 July 2015.

20 On 29 July 2015, the applicants’ application was served on the Agency by the Registry of the General Court.

21 By separate document, lodged at the Registry of the General Court on 15 October, the Agency raised a plea of inadmissibility under Article 130 of the Rules of Procedure in respect of the applicants’ action against the second contested decision.

22 On the same day, the Agency lodged its defence at the Court Registry.

23 By separate act lodged at the Court Registry on 26 November 2015, the Agency put forward new arguments and submitted new evidence.

24 On 22 February 2016, the applicants lodged their reply at the Court Registry, in which they set out their observations on the defence, the objection of inadmissibility, and the new arguments and evidence put forward by the Agency.

25 On 21 April 2016 the Agency lodged a rejoinder at the Court Registry.

26 The applicants claim that the Court should:

- dismiss the objections of inadmissibility;

- annul the contested decisions;

- reject the new pleas and new evidence submitted by the Agency in its pleadings of 26 November 2015;

- order the Agency to pay the costs.

27 The Agency contends that the Court should:

- declare the action inadmissible in so far as it concerns the second contested decision;

- if the action were to regarded as being admissible in its entirety, reject the action as unfounded in its entirety;

- withdraw Annex C 4 from the documents before the General Court and disregard the applicants’ arguments based on that annex;

- order the applicants to pay the costs.

28 By order of the General Court (Fourth Chamber) of 21 July 2016, consideration of the objection of inadmissibility was reserved for the final judgment and the costs were reserved.

29 As a result of the changes to the composition of the chambers of the...