Orders nº T-352/18 of Tribunal General de la Unión Europea, February 04, 2021

• Resolution Date: February 04, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-352/18

(Action for annulment and for damages - Public service contracts - Tendering procedure - Follow-up study on trade union practices on non-discrimination and diversity - Rejection of a tenderer’s bid - Award criteria - Action in part manifestly lacking any foundation in law and in part manifestly inadmissible)

In Case T-352/18,

Germann Avocats LLC, established in Geneva (Switzerland), represented by C. Giannakopoulos and N. Skandamis, lawyers,

applicant,

v

European Commission, represented by J. Estrada de Solà and A. Katsimerou, acting as Agents, and by R. van Melsen, lawyer,

defendant,

First, APPLICATION based on Article 263 TFEU for the annulment of the Commission’s decision to reject the applicant’s bid submitted in response to the call for tenders JUST/2017/RDIS/FW/EQUA/0042 (‘Follow-up study on trade union practices on non-discrimination and diversity’ (2017/S 215-446067)) and, secondly, APPLICATION based on Article 268 TFEU for compensation for the damage allegedly suffered by the applicant following the adoption of that decision,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov (Rapporteur), President, E. Buttigieg and G. Hesse, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 On 9 November 2017, the European Commission published in the Supplement to the Official Journal of the European Union (OJ 2017/S 215-446067) a public procurement notice concerning the award, through an open procedure, of a service contract entitled ‘Follow-up study on trade union practices on non-discrimination and diversity’.

2 Point 4 of the tender specifications for the call for tenders which was the subject of that contract notice provided as follows:

‘The evaluation is based solely on the information provided in the submitted tender. It involves the following: verification of non-exclusion of tenderers on the basis of the exclusion criteria; selection of tenderers on the basis of selection criteria; verification of compliance with the minimum requirements set out in these tender specifications; evaluation of tenders on the basis of the award criteria …

The tenders will be assessed in the order indicated above. Only tenders meeting the requirements of one step will pass on to the next step.’

3 Point 4.3 of the specifications set out the award criteria as follows:

‘The tenders will be evaluated following the award criteria outlined below producing a total score out of 100%.

No

Award criteria

Weighting

1

Quality of the proposed methodology

Quality of the technical approach.

Clarity, credibility and quality of the technical content of the tender, including the comprehensiveness of the research and analysis performed.

Methodology for collecting and analysing data/Soundness and appropriateness of the proposed analysis tools and data gathering techniques/Completeness of the methodology to cover the full scope of the tasks.

Quality of proposed recommendations, interventions, conclusions.

Added value of the tender in an EU context.

Degree to which all relevant issues are covered.

(All the above sub-criteria are of equal relative importance).

70

2

Organisation of the work and resources

Quality of work plan and organisation of the work.

Realistic time scale.

Appropriate allocation of human and budgetary resources.

(All the above sub-criteria are of equal relative importance).

20

3

Quality control

This criterion will assess the quality control system applied to the service foreseen in this tender specification concerning the quality of the deliverables, the language quality check, and continuity of the service in case of absence of a member of the team. The quality system should be detailed in the tender and specific to the tasks at hand; a generic quality system will result in a low score.

10

Total number of points

100

Tenders must score minimum 60% for each criterion and minimum 70% in total. Tenders that do not reach the minimum quality levels will be rejected and will not be ranked.’

4 Eight tenders were submitted, including a tender submitted jointly by the applicant, Germann Avocats LLC, and another entity.

5 On 28 March 2018, following the evaluation of the tenders, the Commission decided to award the contract to A (‘the successful tenderer’). By letter of the same day, the Commission informed the applicant that its tender had not been selected as it did not present the minimum required quality level (‘the contested decision’). The letter further stated that the applicant’s tender had obtained a total of 46 points in the evaluation of the three award criteria mentioned above, as follows:

- 35 points out of 70 for criterion 1 (Quality of the proposed methodology). The reasons given for that score were as follows:

‘The tenderer identifies all the tasks and describes the methodology for these, however, it does not describe the theoretical and conceptual framework to be used in more detail. The suggested research limits the scope of the project, which raises questions on the added value in an EU context. As regards the soundness of the bid, more reflection is needed regarding the description [of] the potential sources of information and literature’;

- 10 points out of 20 for criterion 2 (Organisation of the work and resources). The reasons given for that score were as follows:

‘The time scale of the project seems realistic. The organisation of work is not clearly defined and allocation of human resources seems excessive with respect to the required tasks’;

- 1 point out of 10 for criterion 3 (Quality control). The reasons given for that score were as follows:

‘The bid does not identify any specific quality control system or risk-assessment’.

6 On 3 April 2018, the applicant sent a first letter to the Commission, asking it to review the contested decision. The applicant argued that the evaluation of its tender manifestly infringed the principles of good faith, transparency, procedural fairness and equal treatment and requested, in particular, that the Commission organise a second round of evaluation of the tenders after having gathered additional information.

7 On 17 April 2018, the Commission replied to the applicant’s letter of 3 April 2018, specifying, with regard to award criterion 1, that the applicant’s tender focused specifically on migration and the education, media, culture and entertainment sectors, whereas the main objective of the contract, as set out in point 2.2 of the tender specifications (Technical specifications), was different. With regard to criterion 2, the Commission argued that, although the applicant’s tender listed the tasks to be performed and allocated the project staff to the individual tasks, it failed to provide any detailed overview of the planning and organisation of the work with regard to the respective sub-tasks and therefore did not provide a thorough justification for the working hours presented. Finally, so far as concerns award criterion 3, the Commission explained that the evaluators had acknowledged the fact that in its tender the applicant had indicated that the work would be done according to the ISO 9001 standard, whereas point 4.3 of the tender specifications clearly required a more detailed and tailored quality system. The Commission also pointed out that the procurement rules on the evaluation of the award criteria prohibited taking into account or referring at that stage to curricula vitae, profiles, qualifications, skills, experience, expertise, knowledge of the subject, technical capacity and previous contracts, as these parameters clearly referred to selection criteria, which were a different part of the evaluation process. It concluded that the rules on public procurement had been respected with regard to the call for tenders at issue and, consequently, that there was no need to organise a second round of evaluation.

8 On 18 April 2018, the applicant sent a second letter to the Commission in which it criticised the consistency and reliability of the information presented by the Commission in its letter of 17 April 2018. In addition, the applicant requested information aimed at providing assurance that there had been no discrimination in the evaluation of the submitted tenders on the basis of the nationality of the tenderers. It also asked for the identity of the successful tenderer for the public contract in question.

9 On 2 May 2018, the Commission informed the applicant of the identity of the successful tenderer for the contract in question and stated that no discrimination on the basis of nationality had taken place during the award procedure at issue.

10 The applicant subsequently sent further letters, dated 3, 11 and 18 May 2018, claiming various pieces of information concerning the successful tenderer.

Procedure and forms of order sought

11 By application lodged at the General Court Registry on 5 June 2018, the applicant brought the present action. That action was also brought on behalf of XJ. Since the latter had not authorised a lawyer to represent him before the General Court, by order of 30 January 2019, Germann Avocats v Commission (T-352/18, not published, EU:T:2019:78), the action was declared inadmissible in so far as it was brought on his behalf.

12 On 5 April 2019, by separate document lodged at the Court Registry under Article 130(1) of the Rules of Procedure of the General Court, the Commission raised an objection of inadmissibility.

13 On 20 May 2019, the applicant lodged observations on the objection of inadmissibility at the Court Registry.

14 By order of 24 September 2019, the General Court (Seventh Chamber) decided to reserve its decision on the objection of inadmissibility raised by the Commission until the Court ruled on the substance of the case.

15 Since the composition of the Chambers of the General Court had changed, pursuant to Article 27(5) of the Rules of Procedure the Judge Rapporteur was assigned to the Tenth Chamber, to which the present case was accordingly reallocated.

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