Judgments nº T-182/15 of Tribunal General de la Unión Europea, April 09, 2019

Resolution DateApril 09, 2019
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-182/15

(Public service contracts - Tendering procedure - Supply of IT services to the Parliament and other EU institutions and bodies - Exclusion from tendering procedures - Potential conflict of interests - Failure to provide information required by the contracting authority - Article 107(1)(b) of the Financial Regulation - Transparency - Proportionality - Equal treatment - Article 102(1) of the Financial Regulation)

In Case T-182/15,

Sopra Steria Group SA, established in Annecy-le-Vieux (France), represented by A. Verlinden, R. Martens and J. Joossen, lawyers,

applicant,

v

European Parliament, represented by B. Simon and L. Tapper Brandberg, acting as Agents,

defendant,

supported by

CGI Luxembourg SA, established in Bertrange (Luxembourg),

and

Intrasoft International SA, established in Luxembourg (Luxembourg),

represented by N. Korogiannakis, lawyer,

interveners,

ACTION under Article 263 TFEU seeking annulment of the European Parliament’s decisions, taken in the context of tendering procedure PE/ITEC-ITS14, concerning the provision of IT services to the European Parliament and other EU institutions and bodies, to exclude the tenders submitted for Lots 2 and 3 by the IBI IUS and STEEL consortia, of which the applicant was a member,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín and I. Reine (Rapporteur), Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 October 2017,

gives the following

Judgment

Background to the dispute

1 On 3 April 2014, the European Parliament, acting on its own behalf and on behalf of other EU institutions and bodies, issued an invitation to tender in call for tenders PE/ITEC-ITS14 on the external provision of IT services (‘the call for tenders’).

2 The call for tenders was divided into eight lots. The subject matter of Lots 2 to 4 were as follows:

- Lot 2: Development and maintenance of dissemination information systems;

- Lot 3: Development and maintenance of production information systems;

- Lot 4: Test of developments.

3 The tender specifications for the tendering procedure (‘the tender specifications’) provided for the allocation of multiple framework contracts for each lot and a cascade mechanism for the performance of the framework contracts.

4 Point I.3 of the tender specifications provided:

‘Tenderers may submit a tender for one or more lots, with the exception of the incompatibilities duly mentioned in each lot description. Tenders submitted for incompatible lots subject to an order of preference will be rejected.’

5 Point I.4 of the tender specifications provided:

‘The economic operators must neither form part of more than one consortium submitting offers, nor must they be proposed as subcontractors by more than one tenderer in the same lots or in exclusive lots.’

6 Annex II to the tender specifications provided that a tenderer submitting a tender for Lot 2 or Lot 3 was consequently to be excluded from tendering, either as a sole contractor, as a member of a consortium or as a subcontractor, for Lots 4 and 6. With regard to Lot 4, the same prohibition applied vis-à-vis Lots 2, 3 and 6.

7 By press release of 8 April 2014, it was announced that Sopra Group SA intended to acquire Groupe Steria SA.

8 On 22 May 2014, the IBI IUS consortium and the STEEL consortium, each of which included Sopra Group, submitted tenders for Lot 2 and Lot 3 respectively. On the same day, the TEPting consortium, which included Steria Benelux SA, a subsidiary of Groupe Steria, submitted a tender for Lot 4.

9 Further, on 22 May 2014, the CGI-Intrasoft International consortium, composed of the interveners, CGI Luxembourg SA and Intrasoft International SA, also submitted a tender for Lot 3.

10 As is apparent from the documents before the Court, the applicant, Sopra Steria Group SA, is the result of a merger between Sopra Group and other entities, namely Groupe Steria, its subsidiary Steria SA and the latter’s subsidiary, Steria Benelux. Following that merger, Steria Benelux thus became an indirect subsidiary of Sopra Steria Group.

11 On 26 June 2014, Sopra Group commenced the process of acquiring Groupe Steria.

12 On 14 July 2014, the European Commission decided not to oppose the public exchange of shares between Sopra Group and Groupe Steria.

13 On 6 August 2014, Sopra Group announced that the required success threshold in respect of the exchanged shares had been reached and that 79.69% of the shares forming the subject of the transaction had been acquired.

14 On 5 September 2014, Sopra Group acquired 90.52% of the shares and 89.41% of the voting rights in Groupe Steria. On the same day, Sopra Group was renamed Sopra Steria Group.

15 By letter of 18 September 2014, the Parliament informed the STEEL consortium that its tender for Lot 3 had been ranked first and that it was one of the successful tenderers for that contract.

16 Also by letter of 18 September 2014, the Parliament informed the CGI-Intrasoft International consortium that its tender for Lot 3 had been ranked second and that it was one of the successful tenderers for that contract.

17 On 30 October 2014, the Parliament informed the IBI IUS consortium that its tender for Lot 2 had been ranked second and that it was one of the successful tenderers for that contract. It also informed the TEPting consortium that its tender for Lot 4 had been ranked second and that it was one of the successful tenderers for that contract.

18 On 10 and 12 November 2014, the IBI IUS and TEPting consortia received further information concerning the assessment of the tenders for the lots in respect of which they had submitted a request for information.

19 On 12 November 2014, the Parliament was informed of the ‘tie-up’ between Sopra Steria Group and Groupe Steria by letter from the interveners.

20 By application lodged at the Court Registry on 14 November 2014 and registered under case number T-769/14, the interveners, acting on their own behalf and on behalf of the CGI-Intrasoft International consortium, brought an action seeking annulment, first, of the Parliament’s decision to rank their tender for Lot 3 second and, second, of the Parliament’s decision to rank the STEEL consortium’s tender for Lot 3 first and award it the contract as first cascade contractor, as well as an order that the Parliament should pay compensation.

21 By letters from the Parliament of 19 November 2014, the IBI IUS, STEEL and TEPting consortia were informed of the suspension of the procurement procedures for Lots 2 to 4. Those letters set out the following reason for the suspension: ‘The purpose of this suspension is to ascertain whether the additional information received by the ... Parliament is well founded and whether it could affect the award decision.’

22 On 21 November 2014, the IBI IUS and STEEL consortia informed the Parliament of the process for the acquisition of Groupe Steria by Sopra Steria Group. Steria Benelux supplied the same information to the Parliament and proposed ‘to withdraw from the contract’ for Lot 4.

23 On 15 December 2014, the TEPting consortium, which included Steria Benelux, informed the Parliament that it was withdrawing its tender for Lot 4. By letter of 13 February 2015, the Parliament accepted the TEPting consortium’s withdrawal of its tender for Lot 4.

24 On 31 December 2014, the merger of Sopra Steria Group and Groupe Steria was completed, resulting in Sopra Steria Group owning 99.9% of the shares in Steria Benelux.

25 By letters of 15 and 20 January 2015, the Parliament requested further information from the IBI IUS, STEEL and TEPting consortia and from Steria Benelux. It requested information, in particular, regarding whether, from an economic perspective and in the light of the tie-up and the prohibition on submitting tenders for incompatible lots, Steria Benelux formed part of Sopra Group, which could give rise to a conflict of interests.

26 By letter of 22 January 2015, the IBI IUS and STEEL consortia responded to that request. By letters of 23 January 2015, Sopra Steria Group and Steria Benelux also provided the required information. In those letters, the four entities argued that there was no conflict of interests and, consequently, that they were not precluded from submitting tenders for incompatible lots. Further, they claimed that all relevant information had been submitted in good time.

27 By two letters of 13 February 2015, the Parliament informed the IBI IUS and STEEL consortia of its decisions to reject their respective tenders for Lots 2 and 3 (‘the contested decisions’). On 16 February 2015, the Parliament sent copies of those decisions to the applicant.

28 The contested decisions are each based on the same two separate grounds.

29 In the first place, the Parliament claimed that the simultaneous submission of tenders by the IBI IUS, STEEL and TEPting consortia for incompatible lots infringed the first subparagraph of Article 158(3) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1) (‘the delegated regulation’) and Point I.3 of the tender specifications. In particular, the Parliament concluded that, due to the tie-up between Sopra Group and Groupe Steria, the applicant and Steria Benelux had become the same economic operator. As a result, the IBI IUS and STEEL consortia, of which the applicant was a member, and the TEPting consortium, of which Steria Benelux was a member, had submitted tenders for incompatible lots - namely the former had tendered for Lots 2 and 3 and the latter had tendered for Lot 4 - in spite of the prohibition set out in Point I.3 of the tender specifications. In that regard, in order to consider that, since 5 September 2014, the applicant and Steria Benelux...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT