European Dynamics v Commission [2007] EUECJ T‑250/05 (12 July 2007)

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(Public service contracts - Community tendering procedure - Provision of services for the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal of the European Union - Rejection of a tender - Equal treatment - Obligation to state reasons - No manifest error of assessment)

Evropaiki Dynamiki - Proigmena Systimata Tilepikinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

Commission of the European Communities, represented by M. Wilderspin and M. Šimerdová, acting as Agents,

APPLICATION for annulment of the decision of the Office for Official Publications of the European Communities of 15 April 2005 to reject the applicant’s tender in connection with the call for tenders issued on 19 November 2004 (OJ 2004 S 226) for the provision of services in relation to the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal of the European Union, and to award the contract to the successful tenderer,

having regard to the written procedure and further to the hearing on 1 March 2007,

1 The award of service contracts by the Commission is subject to the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’) and to the provisions of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1; ‘the implementing rules’). Those provisions are based on the relevant Community directives and, in particular, as regards service contracts, on Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997 (OJ 1997 L 328, p. 1), and replaced by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination.’

3 As Article 97(2) of the Financial Regulation states, a contract may be awarded by the best-value-for-money procedure.

‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’

‘The contracting authorities shall draw up clear and non-discriminatory selection criteria.’

6 Finally, Article 149(2) of the implementing rules, in the version which applies to the facts of this case, provides as follows:

‘The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.’

7 The applicant is a company governed by Greek law, active in the area of information technology and communications.

8 By a contract notice of 19 November 2004, published in the Supplement to the Official Journal of the European Union (OJ 2004 S 226) under reference 2004/S 226 194443, the Office for Official Publications of the European Communities launched a call for tenders for the provision of services in relation to the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal (‘the call for tenders’).

9 The call for tenders concerned the provision of a number of services, including online access to the European public procurement database TED (Tenders Electronic Daily) for public procurement notices published on a daily basis in the Supplement to the Official Journal and offline access to that supplement on CD-ROM or DVD-ROM for subscribers wishing to have a hard copy.

10 Annex I to the draft contract, annexed to the call for tenders, specified the days and times by which the CD-ROM had to be delivered to the Publications Office in Luxembourg (Luxembourg). Thus, for a layout available at 15.00 on Mondays and Thursdays, the contractor had to deliver the CD-ROM on Tuesdays and Fridays respectively by 17.00 at the latest. Annex I to the draft contract also provided that tenderers had to submit an offer including, as an alternative to delivery of the CD-ROM to the Publications Office, its direct dispatch by post to subscribers on Tuesdays and Fridays respectively by 22.00 at the latest. According to the draft contract, meeting those delivery times was the prime objective.

11 By fax of 24 December 2004, the applicant indicated to the Publications Office that, according to its own research, only one company, Technicolor Srl, established in Luxembourg, could comply with the deadlines referred to in the call for tenders for delivery of the CD-ROM and that that company had an exclusivity agreement with the incumbent contractor, Euroscript Srl. The applicant requested the Publications Office to ensure equal conditions of competition for all the tenderers.

12 By letter of 4 January 2005, the Publications Office replied that several companies were able to meet the terms and conditions of the call for tenders and that those terms and conditions did not create any obstacles to competition.

13 By fax of the same date, the applicant reiterated its assertions and requested the Publications Office to indicate to it the companies capable of producing the CD-ROM and complying with the delivery deadlines set out in the call for tenders.

14 By letter of 6 January 2005, the Publications Office informed the applicant that it was not in a position to provide any further information regarding the economic operators capable of fulfilling the requirements of the call for tenders.

15 On 11 January 2005, the applicant, in a consortium with Sofware AG, submitted a tender in response to the call for tenders. The Publications Office also received three other tenders, two of which were rejected at the selection stage.

16 On 10 February 2005, the applicant sent the Publications Office samples of the CD-ROM holders.

17 By letter and fax of 17 February 2005, the Publications Office requested the applicant, in the context of the evaluation of its tender, to provide it inter alia with a schedule complying with the deadlines referred to in the call for tenders and a detailed action plan to ensure production, delivery and/or dispatch of the CD-ROM within the deadlines.

18 On 21 February 2005, the applicant sent a fax to the Publications Office in which it replied to those requests.

19 By letter and fax of 15 April 2005, the Publications Office informed the applicant that its tender had been rejected at the award stage, since it had not achieved the necessary quality score, and that the contract would be awarded to the Eutis consortium, comprising the Euroscript and Intrasoft companies, whose tender had been considered to be the most economically advantageous (‘the contested decision’). The Publications Office added that the applicant could request in writing additional information on the grounds for the rejection of its tender.

20 On the same day, the applicant sent a letter and a fax to the Publications Office requesting it to communicate to the applicant the names of any of the successful tenderer’s partners and subcontractors, the scores awarded in respect of each criterion for its technical offer and that of the successful tenderer, a copy of the Evaluation Committee report, and a comparison of the financial offers of the applicant and the successful tenderer.

21 By letter of 19 April 2005, the Publications Office replied, indicating the name of the successful tenderer and that of its subcontractor, DocData, and the scores awarded in respect of each criterion for the applicant’s technical offer and that of the successful tenderer, in the form of tables. According to those tables, the applicant obtained, at the award stage, a total of 60.6 points out of 120 whilst Eutis obtained a total of 100.4 points. The table relating to the applicant also contained six ‘general comments taking into account the awarding criteria and price’ which stated inter alia that the tender contained ‘no information with regard to the CD-ROM’ and that the ‘daily production d[id] not seem realisable according to provided information on the procedures’. The letter from the Publications Office also stated that Eutis’ financial offer was EUR 5 784 684.54 and the applicant’s was EUR 4 973 140.

22 By fax of 27 April 2005, the applicant set out a number of objections to the contested decision, in particular in so far as concerned the results of the technical evaluation.

23 By letter of 13 May 2005, the Publications Office advised the applicant that it was taking account of certain complaints raised by it and that, consequently, it was suspending the signing of the contract in order to conduct a supplementary examination.

24 By letter of 3 June 2005, the Publications Office informed the applicant that the supplementary examination had confirmed the outcome presented in its letter of 15 April 2005 and that it had decided to proceed with the signing of the contract. The conclusions of that examination were summarised in a note internal to the Publications Office, but were not recorded formally.

25 Also on 3 June 2005, the applicant requested the Publications Office to communicate to it the results of the supplementary examination and the answers to the questions raised in its letter of 27 April 2005. It also asked the Publications Office not to proceed with the signing of the contract before those requests had been satisfied.

26 The applicant had not received any response to those requests by the date on which this action was brought.

27 By application lodged at the Court Registry on 24 June 2005, the applicant brought the present action.

28 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, requested the Commission to produce Annex II to the draft contract annexed to the call for tenders. The Court also requested the parties to reply to written questions. The parties complied with those requests within the prescribed period.

29 The parties presented oral argument and answered the questions put by the Court at the hearing on 1 March 2007. At that hearing, the applicant submitted written comments concerning the extract of the Evaluation Committee report and the Publications Office’s internal note drawn up in the context of the supplementary examination of its tender, as annexed to the Commission’s rejoinder. In those written comments it claims, principally, that the Publications Office’s internal note should be removed from the file.

30 The Commission made written submissions in response to the applicant’s comments and the oral procedure was closed on 21 March 2007.

- order the Publications Office to pay all the costs, even if the action is dismissed.

33 The applicant relies on three pleas in support of its application for annulment: (i) impairment of free competition and breach of the principle of equal treatment, (ii) manifest errors of assessment by the Publications Office in the evaluation of the applicant’s tender, (iii) infringement of the obligation to state reasons and lack of transparency.

34 The Court considers it appropriate to start by considering the first plea, then the third plea and, finally, the second plea.

The first plea: impairment of free competition and breach of the principle of equal treatment

35 The applicant claims that it informed the Publications Office of problems connected with the call for tenders, relating in particular to the fact that only CD-ROM producers located within a range of approximately two hours from Luxembourg by road were in a position to supply the quantity requested within the time-limit imposed and, consequently, that the tenderers were obliged to produce the CD-ROM at the premises of those few companies having a production site in that area. The Publications Office failed to take any action to investigate that situation, remedy it, and subsequently inform the tenderers concerned.

36 Thus, the Publications Office could have, first, annulled or modified the call for tenders in relation to the deadlines for delivering the CD-ROM to Luxembourg or, second, allowed contractors to propose production in more distant areas and subsequently send the CD-ROM directly to end customers. The Publications Office therefore failed to ensure that free competition would be observed throughout the tendering procedure, which led it to the view that only one tender fulfilled the technical evaluation criteria, that of the incumbent contractor, although the project is of average technical complexity - the only noteworthy features being the large quantity of CD-ROMs (about 8 000) to be manufactured and the very strict deadlines for delivery to the premises of the Publications Office.

37 Referring to the case-law, the applicant also states that the Publications Office did not ensure equal treatment between tenderers at every stage of the contract award procedure.

38 In addition, the financial offer of the selected tenderer is extremely high. The procedure implemented therefore failed to offer the best value for money.

39 In its reply, the applicant adds that it understands the need for strict deadlines as regards the project in question. In this respect, the option consisting of direct dispatch of the CD-ROM from the production site to the final recipients could have resulted in fair competition between the tenderers. However, the Publications Office imposed delivery of the CD-ROM to its premises in Luxembourg.

40 The Commission states, as a preliminary point, that it has broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court’s review should be limited to checking that there has been no serious and manifest error.

41 It then states that the Publications Office was under an obligation to publish public procurement notices sent by the contracting authorities within the time-limits laid down in Article 36(3) of, and Annex VIII to, Directive 2004/18. Since the CD-ROM is the only hard copy version of the Supplement to the Official Journal, it was necessary to fix the same deadlines for delivery of the CD-ROM and for publication of notices on the internet in order not to discriminate against readers of the Supplement to the Official Journal without access to the internet.

42 Moreover, the applicant admits in its application that a number of manufacturers could be chosen as partners. Consequently, the conditions laid down in the call for tenders could have been complied with in any event. The applicant also admits that the call for tenders gave tenderers the option to submit alternative offers providing for direct dispatch to end users.

43 Lastly, other tenderers chose companies in different Member States (France, Belgium, the Netherlands) for the production of the CD-ROM. This shows that the claims of discrimination are not well founded.

44 Under Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.

45 Thus, according to settled case-law, the Commission is required to ensure at each stage of a tendering procedure equal treatment and, thereby, equality of opportunity for all the tenderers (Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraph 108; Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 85; and Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 75).

46 Furthermore, a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 51, and Case C-462/99 Connect Austria [2003] ECR I-5197, paragraph 83).

47 In the present case, it is apparent from the oral argument at the hearing that the process for distributing the CD-ROM to subscribers consists of three stages. The first consists of preparing the call for tenders following the dispatch by the contracting authorities of the Member States and the Community institutions or bodies of documents which must be published; the second of the validation and editing of the call for tenders and the third of the production proper and delivery of the CD-ROM to the Publications Office in Luxembourg or its dispatch by post to end users. This dispute concerns only the third stage, which was the subject of the disputed call for tenders. For that third stage, the tenderer entrusts the technical part of the production of the CD-ROM to a manufacturer.

48 The applicant claims, first, that the call for tenders did not ensure free competition and equal treatment between tenderers in that the deadlines for delivery of the CD-ROM to the Publications Office in Luxembourg were too short.

49 In that respect, it must be pointed out that the call for tenders did provide for very strict deadlines for delivery of the CD-ROM. Thus, for a layout available at 15.00 on Mondays and Thursdays, the contractor had to deliver the CD-ROM to the Publications Office on Tuesdays and Fridays respectively by 17.00 at the latest. The contractor therefore had 26 hours in total, whilst production alone of the CD-ROM requires 12 to 20 hours according to the applicant, which was not contradicted on that point by the Commission at the hearing.

50 The applicant does not however adduce evidence that those deadlines were set with the aim of benefiting the incumbent contractor to the detriment of all the other tenderers.

51 First of all, the applicant does not dispute the need for short deadlines, as provided for in Article 36(3) of Directive 2004/18, in order that subscribers have access to the CD-ROM at the same time as contract notices are published on the internet.

52 Next, the Court notes that applicant’s argument relating to the number of specialised manufacturers capable of complying with the deadlines provided for in the call for tenders is imprecise. In its letter of 24 December 2004, reproduced in its application, the applicant claims that only one company, namely Technicolor, established in Luxembourg and having an exclusivity agreement with Euroscript Srl, could manufacture the CD-ROM within the deadlines provided for in the call for tenders. Next, the applicant refers, in its application, to CD-ROM manufacturers located within 2 hours of Luxembourg by road, which meant, according to the applicant, that tenderers were obliged to produce the CD-ROM at the ‘premises of those few companies having a production site in that area’. Lastly, in its reply, the applicant submits that, apart from Technicolor, one other manufacturer was capable of complying with the deadlines provided for, namely DocData, whose production site is in Langres (France).

53 It is apparent from the replies to the written questions put by the Court, by way of measures of organisation of procedure, that Euroscript had chosen, for the call for tenders, two of DocData’s production sites, in Langres and in Tillburg (Netherlands). Since Euroscript was the successful tenderer, those sites must be regarded as satisfying the conditions as to deadlines laid down by the call for tenders, which the applicant did not dispute at the hearing. Furthermore, the two other tenderers opted for sites which were also different: Wellen (Belgium) and Uden (Netherlands).

54 It is apparent from those findings that several manufacturers other than Technicolor were capable of satisfying the conditions as to deadlines laid down by the call for tenders.

55 Moreover, the applicant does not adduce any facts or evidence in support of its claim that Technicolor had an exclusivity agreement with Euroscript.

56 The applicant asserts, secondly, that the Publications Office required delivery of the CD-ROM to Luxembourg although the call for tenders also provided for another option, the direct dispatch of the CD-ROM by post to subscribers.

57 In that respect, it is sufficient to observe that this is merely an assertion on the part of the applicant and it is not able to establish or, at the very least, submit evidence substantiating its claims.

58 In addition, the applicant does not explain how the Publications Office could, at the stage of the examination of the tenders, refuse the option of direct dispatch by post even though that was expressly provided for in the call for tenders.

59 Lastly, the fact that only one tenderer managed to offer a service achieving the quality score required by the call for tenders does not mean, in itself, that the call for tenders was discriminatory.

60 It is apparent from the foregoing that the applicant has failed to demonstrate that the Publications Office impaired free competition and infringed the principle of equal treatment between tenderers.

The third plea: infringement of the obligation to state reasons and lack of transparency

62 The applicant claims that the contested decision is vitiated by failure to provide an adequate statement of reasons. By failing to reply to the applicant’s questions raised within the time-limits or to provide clarifications repeatedly requested in writing, the Publications Office did not make it possible to assess the legality of its acts. Thus, the Evaluation Committee fails to explain why a tender that was EUR 1 600 000 higher than the applicant’s could be considered more advantageous. In addition, the Publications Office did not reply to the questions put by the applicant in its letter of 27 April 2005.

63 Moreover, according in particular to Article 253 EC, Article 100 of the Financial Regulation and Article 148(3) of Regulation No 2342/2002, the contracting authority is required to give reasons for its decision to reject the tender of a participant when requested, within a period of 15 days. In that respect, the Publications Office did not sufficiently elaborate on the characteristics and relative advantages of the tender of the successful tenderer. The insufficient reasoning given in the contested decision therefore makes review by the Court difficult.

64 The applicant also observes, in its reply, that Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 amending Regulation No 2342/2002 (OJ 2005 L 201, p. 3) supplemented Article 149 of Regulation No 2342/2002 with a view to limiting the discretionary power of the Community institutions in relation to notification of the grounds for rejecting a tender. The Publications Office has thus misinterpreted its obligation to state reasons for its decisions.

65 The Commission submits that the Publications Office more than fulfilled its duty to state reasons. By its letter of 15 April 2005 the Publications Office first of all informed the applicant that its tender had not been selected on the ground that it had not achieved the necessary quality score and that, if it made a written request, the tenderer would be informed in more detail of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded.

66 The applicant requested additional information on the same day and the Publications Office then sent the tables concerning the technical evaluation in which details of the applicant’s own tender and those of the successful tender, were shown, as well as the name of the successful tenderer and its subcontractor. Thus, the applicant was clearly in a position to know the reasons why its tender had been rejected.

67 Moreover, the statement of reasons is not intended to present the unsuccessful tenderer with an opportunity to demand that the evaluation procedure be recommenced, nor is it intended to impose a burden on the Commission to prove the legality of its decision. The Commission’s obligation is simply to give reasons for its decisions and it is then for the applicant to show that those reasons reveal a manifest error.

68 In accordance with Article 100(2) of the Financial Regulation and Article 149(2) of the implementing rules, the Publications Office was required to notify the applicant of the grounds for rejecting its tender and, since its tender was admissible, the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded, within not more than fifteen calendar days from the date on which a written request was received.

69 Such a manner of proceeding satisfies the purpose of the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (see, to that effect, Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 32).

70 It must be stated at the outset that Annex II to the draft contract, relating to the ‘special terms and conditions’ provided, in paragraph 5.3 thereof, that the contract would be awarded to the tenderer submitting the most economically advantageous bid, on the basis of two award criteria: first, the quality of the production process, assessed according to six specific criteria under which it was possible to obtain 120 points and, second, the assessment of the financial terms. Once the quality of the tenders had been assessed, companies which obtained the minimum score of 80 points in total and half of the possible points for each of the criteria would be classified according to the price proposed and the contract would be awarded to the lowest tender.

71 In the present case, the Publications Office first of all informed the applicant, by letter of 15 April 2005, that its tender had been unsuccessful in the call for tenders. That letter contained two standard phrases concerning the evaluation stage: ‘the tender did not achieve the necessary quality score’ and ‘the tender is not the most economically advantageous’. The Publications Office put a cross in the box opposite the first phrase. In that letter, the Publications Office added that the contract would be concluded with the Eutis consortium, whose tender had been considered to be the most economically advantageous, and that the applicant could obtain additional information on the grounds for the rejection of its tender.

72 In response to a written request by the applicant, also dated 15 April 2005, the Publications Office notified it, by letter of 19 April 2005, of the name of the successful tenderer and that of its subcontractor and the scores awarded in respect of each criterion for its technical offer and that of the successful tenderer, in the form of tables. The table relating to the applicant’s tender indicates that it obtained scores lower than the average possible score in respect of two of the evaluation criteria: 10.9 out of 25 as regards the fourth criterion ‘Quality of the proposed procedures and organisation to carry out the project (development and operation)’ and 13 out of 30 in respect of the sixth criterion ‘Quality of the outline of the proposed technical components (hardware, software and netware) for the TED website and its related services’. Furthermore, the table shows that the applicant obtained a total of 60.6 points out of 120.

73 That table was accompanied by six general comments: ‘methodology not well adapted’; ‘certain technical specifications are not taken into account’; ‘no information with regard to the CD-ROM’; ‘daily production does not seem realisable according to provided information on the procedures’; ‘the resources proposed for production are not appropriate’; ‘the offer does not meet the characteristics required in the specifications’.

74 At the same time, the table concerning the Eutis consortium indicated that it had obtained the average in respect of each of the award criteria, in particular 21.4 points for the fourth criterion and 25.1 points for the sixth criterion. Furthermore, the Eutis consortium obtained a total of 100.4 points.

75 Consequently, the Publications Office gave a sufficiently detailed statement of the reasons for which it had rejected the applicant’s tender and explained the characteristics and relative advantages of that of the successful tenderer (see, to that effect and by analogy, Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraphs 187 to 193; Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraphs 54 to 59; and Case T-4/01 Renco v Council [2003] ECR II-171, paragraphs 89 to 97). The applicant could immediately identify the precise reasons for the rejection of its tender, namely that it did not achieve the necessary quality score for two of the award criteria and for the overall quality of its tender. It could also compare, for each of the award criteria, its results with those of the successful tenderer. Moreover, the general comments gave details on the aspects of its tender which were considered to be unsatisfactory by the Publications Office.

76 Such reasoning therefore enables the applicant to defend its rights and the Court to exercise its power of review.

77 As regards the argument based on the entry into force of Commission Regulation No 1261/2005, which supplemented Article 149 of the implementing rules by adding a paragraph 3, it is sufficient to note that that regulation was not applicable at the material time. In any event, the applicant merely cites the text of Article 149(3), without stating how the Publications Office failed to comply with those new provisions.

78 Lastly, as regards the correspondence exchanged during the tendering procedure, it must be stated that the Publications Office did not reply in detail to all of the applicant’s letters, in particular that of 27 April 2005. However, the Publications Office cannot be criticised for that, since, having provided reasons for the contested decision in accordance with Article 100(2) of the Financial Regulation, it was not required to reply. Moreover, that fact cannot call in question, of itself, the legality of the contested decision (see, to that effect and by analogy, Case T-30/04 Sena v EASA [2005] ECR-SC I-A-113 and II-519, paragraph 95).

The second plea: manifest errors of assessment by the Publications Office in the evaluation of the applicant’s tender

80 The applicant claims that the Evaluation Committee made several manifest errors of assessment.

81 First of all, as regards the price proposed by the applicant, the Evaluation Committee referred to a total amount of EUR 4 973 140, which is lower than that of the tender of the selected tenderer, which amounted to EUR 5 784 684.54. In the applicant’s submission, the price mentioned in its tender was, in actual fact, only EUR 4 177 748.

82 The applicant states, next, that the Evaluation Committee report refers to ‘general comments taking into account the awarding criteria and price’, which indicates that price was indeed taken into consideration, even if the Publications Office states, in the contested decision, that the applicant’s tender was rejected on the ground that it had not achieved the necessary quality score. In its reply, the applicant adds that since the envelope containing the financial offer is opened at the beginning of the evaluation procedure, the Publications Office knew from the start the price proposed by each tenderer. The applicant is therefore convinced that the tenderers’ price offers were taken into account by the Publications Office.

83 The applicant also asserts that the arguments put forward by the Evaluation Committee in order to reject its tender are vague and inaccurate. The Evaluation Committee thus made another manifest error of assessment by taking the view that the ‘daily production d[id] not seem realisable’. The applicant used the quotations of professional CD-ROM manufacturers, one of which has worked with the incumbent contractor for a number of years, including at the time of the call for tenders. The Publications Office cannot argue that that manufacturer is in a position to deliver the daily production in association with the incumbent contractor, but is incapable of doing the same when working with the applicant.

84 Nor can the Evaluation Committee claim that the tender contained ‘no information with regard to the CD-ROM’. The applicant’s tender includes the same manufacturer as that chosen until then by the incumbent contractor. In addition, in its technical offer, its letter of 10 February 2005 and its fax of 21 February 2005, the applicant provided all the necessary information with regard to the CD-ROM.

85 The Commission states that, under the special terms and conditions provided for by the call for tenders, the contract is to be awarded to the most economically advantageous tender on the basis of two criteria: the quality of the production process and the assessment of the financial terms. Only the tenders which have been awarded the minimum score of 80 points in total and at least half of the possible points for each evaluation criterion in respect of the quality of the production process will be the subject of a financial evaluation. Since the applicant did not succeed in overcoming the quality hurdle, its arguments relating to price are irrelevant.

86 The Commission concedes that the formulation ‘general comments taking into account the awarding criteria and price’, used in its letter of 19 April 2005, is imprecise and may have led to confusion. Nevertheless, that formulation gives no support to the applicant’s allegation, since its tender was not the subject of a financial evaluation. The aim of the general comments made in its letter of 19 April 2005 was simply to provide the applicant with further details as regards the reasons for which its tender did not meet all the requirements of the Technical Specifications. Those comments should be read in conjunction with the table concerning the evaluation of the quality criteria.

87 In its rejoinder, the Commission recognises that its letter of 19 April 2005 mentions by error the price of EUR 4 973 140 in relation to the applicant’s tender, but that error did not have any impact on the evaluation process. The price proposed in the applicant’s tender does not moreover appear in the Evaluation Committee report. Further, the supplementary examination of its tender confirms the Evaluation Committee’s conclusion that it did not meet all the quality criteria.

88 Finally, the Commission states that the tenders were opened in compliance with Article 145 of Regulation No 2342/2002 by the Opening Committee, the composition of which is not the same as the Evaluation Committee’s.

89 As a preliminary point, it should be recalled that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147, and Case T-148/04 TQ3Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47).

90 It should also be noted that, according to Article 97(2) of the Financial Regulation, a contract may be awarded by the best-value-for-money procedure.

91 In the present case, the applicant, who does not challenge the two award criteria or the criteria relating to the quality of the production process selected for the call for tenders, claims that the Publications Office made several manifest errors of assessment in the evaluation of its tender.

92 First, the Evaluation Committee proceeded on the basis of a total price of EUR 4 973 140, although the price which appears in the applicant’s tender documents is in actual fact EUR 4 177 748. In addition, according to the applicant, the table concerning the evaluation of its tender, annexed to the letter of 19 April 2005, contains the heading ‘General comments taking into account the awarding criteria and price’, which indicates that its price was indeed taken into account in the evaluation of its tender.

93 In that respect, it must be stated, first of all, that the Publications Office’s letter of 19 April 2005 mistakenly mentions the price of EUR 4 973 140 as regards the applicant’s tender, which the Commission concedes in its rejoinder.

94 However, whether it is a clerical error or an incorrect evaluation of the price proposed by the applicant, such an error is, in the present case, of no consequence.

95 It must be recalled that the applicant’s tender obtained a total of 60.6 points and less than half of the points for two of the criteria relating to the quality of the production process. Consequently, pursuant to the rules laid down by Annex II to the draft contract, the applicant’s tender was rejected at the stage of the examination of the quality of the production process. There is therefore no need to examine the price of the tender, as the extract of the Evaluation Committee report produced by the Commission confirms.

96 The fact that the table relating to the applicant contains the heading ‘General comments taking into account the awarding criteria and price’ cannot call in question such a finding, since the Publications Office followed the evaluation procedure laid down by the call for tenders.

97 Consequently, the price of the applicant’s tender, although stated incorrectly by the Publications Office, had no influence on the decision to award the contract to another tenderer.

98 Moreover, the applicant claims that the Publications Office was aware, right from the start of the tendering procedure, of the price proposed by each tenderer.

99 In that regard, it is sufficient to observe that that is a mere assertion on the part of the applicant, who does not adduce any facts or evidence in support of its claim.

100 Consequently, the applicant has not demonstrated that the Publications Office made a manifest error of assessment as regards the price of its tender.

101 Second, the applicant refers to the general comment, which appears in the table concerning the evaluation of the applicant’s offer, that ‘daily production does not seem realisable according to provided information on the procedures’. In its submission, the Publications Office cannot argue that one of the manufacturers is in a position to deliver the daily production in association with the incumbent contractor, but is incapable of doing the same when working with it.

102 However, there again, the applicant does not put forward any specific facts or evidence to warrant the conclusion that the Publications Office made a manifest error of assessment in relation to its tender as regards daily production.

103 Third, the Publications Office is alleged to have made another error of assessment by also stating, among the general comments annexed to the table concerning the evaluation of its tender, that that tender contained ‘no information with regard to the CD-ROM’. In support of its argument, the applicant relies on various aspects of its tender and its letters of 10 and 21 February 2005. The applicant claims that it is clear from those documents that it provided the Publications Office with various information relating to the CD-ROM.

104 At the hearing, the Commission stated that that general comment concerned the fourth criterion, relating to the ‘quality of the proposed procedures and organisation to carry out the project’.

105 Consequently, it must be stated that the comment at issue is, at the very least, imprecise and that it gave rise to confusion regarding the Evaluation Committee’s assessment of the applicant’s tender.

106 However, such imprecision does not suffice to warrant the conclusion that the Publications Office made a manifest error of assessment. The table contains other general comments which are not disputed on a reasoned basis by the applicant. Furthermore, the applicant has not put forward any argument showing that the scores awarded in respect of each of the award criteria for its tender were erroneous.

The request relating to the Publications Office’s internal note drawn up in the context of the supplementary examination of its tender

108 The Commission produces, in Annex II to its rejoinder, the Publications Office’s internal note, drawn up in the context of the supplementary examination carried out in response to the applicant’s letter of 27 April 2005.

109 In its written comments presented at the hearing, the applicant requests, principally, that that note not be taken into account by the Court for the purposes of the examination of the legality of the contested decision.

110 In that respect, it must observed that that document, which is neither dated nor signed, postdates, according to the Commission, the contested decision and does not replace the Evaluation Committee’s earlier assessment.

111 Consequently, the Court considers that the applicant’s request should be allowed.

112 The applicant requests, in its plea alleging infringement of the obligation to state reasons and lack of transparency, that the Publications Office produce a full copy of the Evaluation Committee report. It states, in its reply, that, in the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

113 It must be pointed out, first of all, that the Publications Office was not required to communicate to the applicant, as part of the statement of reasons for the contested decision, the Evaluation Committee report. Article 100(2) of the Financial Regulation provides only that, following a request in writing, the contracting authority is to notify those concerned of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

114 Next, assuming that the applicant’s request must be understood as a request for access to documents, it must be held that the applicant did not comply with the procedure, provided for in Article 6 et seq. of Regulation No 1049/2001, for applying for access to the Evaluation Committee report before bringing an action before the Court in the event of a refusal, which renders such a request inadmissible.

115 Lastly, the Commission has produced, in an annex to its rejoinder, an extract from the Evaluation Committee report concerning the applicant, in a non-confidential version.

116 In the circumstances, the Court considers that there is no need to order the Commission to produce the Evaluation Committee Report in its entirety.

117 In light of all the foregoing the application must be dismissed in its entirety.

118 The applicant asks that the Publications Office be ordered to pay all the costs, even if the application is dismissed. It claims that the insufficient grounds given for the contested decision did not allow it fully to evaluate its chances of challenging that decision and therefore forced it to bring the present action in order to preserve its rights.

119 The Commission submits that the applicant’s purported reasons are non-existent.

120 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

121 In the present case, it has been held that the third plea, alleging infringement of the obligation to state reasons and lack of transparency, was unfounded. The applicant’s claim must therefore be dismissed.

122 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

2. Orders Evropaiki Dynamiki - Proigmena Systimata Tilepikinonion Pliroforikis kai Tilematikis AE to pay the costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> European Dynamics v Commission [2007] EUECJ T‑250/05 (12 July 2007) URL: http://www.bailii.org/eu/cases/EUECJ/2007/T25005.html Cite as: [2007] EUECJ T‑250/5, [2007] EUECJ T‑250/05

Court of Justice of the European Communities (including Court of First Instance Decisions)