Evropaiki Dynamiki v Commission (Public service contracts) [2011] EUECJ T-377/07 (13 December 2011)

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(Public service contracts – Tendering procedure – Supply of IT services relating to content interoperability technologies for European eGovernment services – Rejection of a tender – Manifest error of assessment – Obligation to state reasons – Misuse of powers – Non-contractual liability)

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

European Commission, represented by E. Manhaeve, acting as Agent, and by J. Stuyck, lawyer,

1 The applicant – Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘ED’) – is a company incorporated under Greek law, operating in the field of information technology and communications.

2 By a contract notice of 28 June 2006, published in the Supplement to the Official Journal of the European Union (OJ 2006 S 128) under reference 2006/S 128-136080, the Commission of the European Communities launched a call for tenders in relation to ‘Content interoperability technologies for European eGovernment services’. The call for tenders was intended to lead to a framework contract with the Commission: the contract for the supply of software consultancy services for the programme entitled ‘Interoperable Delivery of European eGovernment Services to Public Administrations, Businesses and Citizens’ (‘IDABC’).

3 The tender specifications laid down a procedure comprising three stages: during Stage 1, the exclusion criteria had to be applied (Section 3.1 of the tender specifications); during Stage 2, the selection criteria had to be applied (Section 3.2 of the tender specifications) in order to examine the tenderer’s financial and economic, and technical and professional capacity; during Stage 3, the award criteria had to be applied (Section 3.3 of the tender specifications).

4 Section 3.3 of the tender specifications, entitled ‘Stage 3 – Application of Award Criteria (Assessment of Tenders)’, stated that the contract would be awarded to the most cost-effective tender, and set out a table showing the maximum number of points which could be awarded for each of the four qualitative award criteria. The four qualitative criteria were described as follows, the total number of points possible overall being 100:

5 In that connection, it was stated that tenders scoring less than 70% of the total points overall or less than 50% of the points awarded for a single criterion would be excluded from the rest of the assessment procedure. The tender specifications went on to state that the points scored for the four qualitative award criteria would be set against the price. The total price for implementing the scenarios in the table set out in Section 5.5.3 of the tender specifications was then defined as the award criterion, and that table indicated that the total cost offer was to be obtained by adding together the costs for scenarios 1 and 2. Lastly, the tender specifications stated that the contract would be awarded to the tender which was the most cost-effective on the basis of the ratio between the price and the total points scored.

6 On 6 September 2006, ED submitted a bid in response to that call for tenders, responsibility for which was transferred on 1 January 2007 because the IDABC unit had been transferred from the Commission Directorate-General (DG) for Enterprise and Industry to the Commission Directorate-General for Informatics (‘DG DIGIT’).

7 By letter of 23 May 2007, the Commission asked ED to provide clarification of its financial offer. By letter of 24 May 2007, ED asked the Commission to provide clarification of its letter of 23 May 2007, a request to which the Commission responded by letter of 29 May 2007. By letter of 29 May 2007, ED answered the Commission’s questions. By letters of 31 May and 18 June 2007, the Commission asked ED to provide additional clarification of its financial offer. By letters of 1 and 19 June 2007, ED met those requests.

8 By letter of 13 July 2007 (‘the rejection decision of 13 July 2007’), the Commission informed ED that its tender had been rejected on the ground that it had not reached the thresholds laid down in Section 3.3 of the tender specification. The Commission also informed ED that it was entitled to request information concerning the rejection.

9 By letter of 13 July 2007, ED asked to be sent the name of the successful tenderer; the respective scores obtained, in relation to each award criterion, by the technical offers made by the successful tenderer and by ED; and information regarding the financial offer made by the successful tenderer and how it compared with the offer made by ED. ED also requested a copy of the evaluation committee’s report.

10 By letter of 19 July 2007, the Commission provided ED with the name of the successful tenderer, as well as two extracts from the evaluation committee’s report, one stating the justification for the marks awarded to ED’s tender and the other presenting a comparison between ED’s offer and the offer made by the successful tenderer.

11 By letter of 26 July 2007, ED submitted detailed comments on the two extracts from the evaluation committee’s report. ED also asked the Commission to suspend the procedure and the signing of the contract pending examination of its letter by an ‘impartial committee’, alleging, in particular, difficulties with DG DIGIT and serious and manifest errors of assessment in the evaluation of its tender. By letter of 11 September 2007, ED asked the Commission to respond to its letter of 26 July 2007.

12 By letter of 12 September 2007, the Commission informed ED that its letter of 26 July 2007 had been answered by email of 9 August 2007 and by registered letter of 7 August 2007, posted on 14 August 2007. However, the Commission explained, enclosing the letter of 7 August 2007, that that letter had been incorrectly addressed and had been returned marked ‘… non réclamée [not collected] …’.

13 By letter of 13 September 2007, ED informed the Commission that it had not received either its registered letter of 7 August 2007 or its email of 9 August 2007; an email from the Commission had arrived on that date, but it related to another matter. In addition, ED claimed, in particular, that the Commission had failed to reply to its comments; that it had refused to explain the comparison between ED’s tender and the bid made by the successful tenderer; and that it had not explained why the evaluation committee had decided to evaluate ED’s financial offer even though its technical offer had allegedly not exceeded the thresholds in qualitative terms. Lastly, ED reiterated its position that its tender ought to have been examined solely by officials who were not biased against it and that the contract should not have been signed.

14 By application lodged at the Court Registry on 24 September 2007, ED brought the present action.

15 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which the present case was accordingly allocated.

16 Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure. At the hearing on 15 June 2011, the parties presented oral argument and replied to the questions put by the Court.

19 In support of its application for annulment, ED puts forward three pleas in law alleging, respectively: (i) manifest errors of assessment; (ii) breach of the obligation to state reasons; and (iii) misuse of powers.

20 ED submits that the Commission made a number of manifest errors of assessment in its appraisal of ED’s tender in relation to criteria Nos 1 to 3.

22 As a preliminary point, it should be recalled that the Commission has a broad discretion in assessing the factors to be taken into account for the purposes of deciding to award a contract following an invitation to tender and that the Court’s review must be limited to checking that the rules governing the procedure and statement of reasons have been complied with, that the facts are correct and that there has been no manifest error of assessment or misuse of powers (see, to that effect, Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; see also Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 56, and the judgment of 9 September 2010 in Case T-63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 73 and the case-law cited).

25 ED submits that the Commission was wrong to award it an average mark of 12 out of 20. First, that mark is inconsistent with the internationally-recognised expertise and know-how of ED and its partners. It is also inconsistent with the evaluation committee’s very positive assessment and with the fact that ED submitted a complete tender which fully complied with the tender specifications, as may be seen from the evaluation committee’s comment in that regard. ED submits that the fact of having complied with the tender specifications is sufficient to obtain a mark above the threshold, in the range of at least 80 to 90%.

26 It should be noted that, when the tenders were being appraised in the light of the qualitative award criteria for the contract in question, it was the specific proposals put forward by ED in its tender which had to be appraised in relation to those criteria. In the present case, criterion No 1 did not cover the know-how of tenderers or their general reputation.

27 In addition, ED refers only to part of the evaluation committee’s comments in the ninth paragraph of the extract from the evaluation report relating to the assessment of criterion No 1(a). Admittedly, the evaluation committee did state that the vision document was complete with respect to the tender requirements, but it also identified negative points, such as the fact that only a few ideas were put forward and that these were not realistic since European coordination processes and existing work on interoperability were ignored, and also the fact that there was no deduction of the proposed actions and priorities from the described challenges. Furthermore, ED’s assertion that compliance with the tender specifications is sufficient to attract a mark above the threshold, in the range of at least 80 to 90%, is wholly unfounded.

28 ED’s argument must therefore be rejected. The mere fact that ED has been awarded a particular mark does not, however, call into question its knowledge and experience.

29 Secondly, ED submits that it clearly set out the role played by the Commission and did not ignore the previous work on interoperability.

30 It should be noted that the evaluation committee’s comments quoted by ED are a summary of the assessment of the tender in relation to criterion No 1(a). In the two extracts quoted, the evaluation committee’s comments do not contain any negative remarks concerning the description of the role played by the Commission. Consequently, ED’s argument in that regard, alleging misinterpretation in the comments quoted in relation to the present complaint, must be rejected. In any event, it is not clear from examining ED’s complaints concerning the assessment of its tender against criterion No 1 that the evaluation committee made a manifest error of assessment in relation to the description of the role played by the Commission or to the question whether the previous work on interoperability was taken into account (see paragraphs 32 to 35 and 40 to 43 below).

32 ED submits that the evaluation committee has made a number of errors of assessment. First, ED’s team of experts forms an integral part of the ‘international elite’ in the field of semantic interoperability and interacts with the public sector and government authorities on a worldwide scale. ED took advantage of their experience in order to analyse different examples of success and problems and to make a ‘very realistic and professional proposal’. In Section 1.3 of its tender, under the heading ‘Challenges’, ED clearly and exhaustively presented the interoperability challenges and particularities in the European Union, according to the market and project process and the significant input which they would generate. ED proposed a virtual scenario integrating the reality faced in the European Union and also the best practices applied worldwide.

33 It should be noted, first of all, that – as the Commission correctly observes – at that stage of the tendering procedure, it was no longer a question of evaluating a team. It should also be pointed out that the evaluation committee’s comment relates to meeting the needs, in a European context, of the concept of the European Union Semantic Interoperability Community of Practice (‘EU SICoP’) as set out in ED’s tender and which is modelled on US government activities. ED’s argument that it listed the challenges to be met in a European context does not prove that the evaluation committee made a manifest error of assessment in finding that it had not been shown how the proposed concept could meet those challenges. ED’s argument that it proposed a scenario integrating, in particular, the reality faced in the European Union is, moreover, not substantiated.

34 Secondly, ED challenges the evaluation committee’s comment concerning the equivocal role to be played by the Commission and IDABC in the EU SICoP. ED did not use the verb form ‘should’, but rather ‘could’, and it was never as affirmative about the provisions to be adopted. In ED’s submission, the key role to be played by the Commission and by IDABC was highlighted and clearly defined, while the majority of ED’s proposed actions adopt the ‘IDABC working paper on Semantic Interoperability Strategy’ and the object of the contract is, in the present case, to put in place a scheme to support, guide and advise the Commission. Thus, as the Commission is the beneficiary of the contractor’s services, it is clearly associated in the process.

35 It should be noted that ED does not give further details of the key role which, it claims, it highlighted in its tender. Admittedly, in Section 1.4 of ED’s tender, under the heading ‘Prioritisation of actions’, it is stated that the EU SICoP would consult with the Commission on semantic interoperability issues and that, after the publication of guidelines on semantic interoperability, the Commission could adopt those guidelines and incorporate them in consultations or in communications. However, although it is apparent from those details that – as ED states – the Commission is associated in the process, that does not imply that it would play a key role in the scheme proposed by ED. Lastly, as regards the use of the word ‘could’ instead of ‘should’, first, that word relates to the composition of the EU SICoP and, second, it should be pointed out that ED does not explain how this aspect reveals a manifest error of assessment on the part of the evaluation committee in its appraisal of ED’s tender in that regard. ED does not show, in particular, how the use of the word ‘could’ would show clearly the key role to be played by the Commission. ED’s complaint must therefore be rejected.

37 ED submits that the evaluation committee’s assessment is incorrect, since ED did not imply in its tender that only a website and a wiki would be used and would be sufficient; rather, it gave examples of tools which in its view might be used in order to manage the ‘Community of Practice’ (‘CoP’). Furthermore, ED clearly described the advisory role of the CoP in its tender, in the third paragraph on page 6. ED adds that the successful tenderer’s role is to support official political and administrative processes and not to replace them, a point which the evaluation committee ignored, wrongly awarding ED low marks. Lastly, in the reply, ED maintains that it submitted an ‘optimum offer’ and set out all the elements which the Commission alleges that it failed to specify.

38 It should be noted, first of all, that the third paragraph on page 6 of ED’s tender, in the part relating to criterion No 1, does not relate to the CoP’s advisory role, contrary to ED’s claims. It should be noted, next – as the Commission states – that ED stated in its tender that ‘the best way to organise the [CoP] is through a website or a wiki, with which the stakeholders can interact’, referring then to ‘wikis’, ‘forums’ for ‘fruitful discussions’ and ‘workshops’ for ‘stakeholders’. It follows that the evaluation committee did in fact evaluate ED’s tender with reference to the proposals made in that tender. In addition, the evaluation committee criticised ED’s tender as not being adequate in the context of European processes of political and administrative coordination. Contrary to ED’s assertions, that comment does not mean that the tenderer was being asked to replace the official political and administrative processes. Lastly, ED simply asserts that it had set out all the elements requested by the Commission, without, however, specifying which elements it is referring to or clarifying where in its tender these are set out. Consequently, ED’s arguments must be rejected.

40 ED submits that the evaluation committee erred in asserting, in essence, that ED’s bid ‘depict[ed] a scenario where all interoperability solutions seem[ed] to start from scratch’. First, the evaluation committee failed to take account of certain parts of ED’s tender, in particular Section 2.1.1 of the document concerning the qualifications of the proposed team and entitled ‘Participation in international Standardisation initiatives and organisations’. On pages 5 and 6 of Section 2.1.1, ED proved that its consortium partners not only followed the standardisation bodies but also formed an integral part of many of those bodies and contributed to their work. In fact, according to ED, the evaluation committee penalised it because those elements did not appear in the right place. ED submits that, as it had only 10 pages in which to address that very technical aspect of the tender, it was obliged not to repeat the same points every time they had to be mentioned.

41 As the Commission correctly observes, the condition relating to the number of pages applied to all tenderers alike and ED was not penalised in that regard. In addition, ED refers to a part of its tender which relates to the selection criteria. That part is not relevant as regards appraisal of the tender in the light of the award criteria and, at that stage, ED’s team did not fall to be examined. In any event, ED’s argument that the members of its team followed the standardisation bodies, forming an integral part of many of those bodies and contributing to their work is not relevant for the purposes of assessing the proposals made in the tender in the light of criterion No 1. Even if those activities are proved, that does not mean that, in its tender, ED formulated proposals corresponding to the criticisms expressed by the evaluation committee.

42 Secondly, ED submits that in order to achieve the best possible CoP model, it had proposed in its tender to take into account, in particular, existing experience, stakeholders, the work already done and achievements, so as to benefit from European and international experience and best practices. ED proposed a model extending the IDABC’s CoP initiative and clearly referred to a role for IDABC. In ED’s submission, all those points were detailed, inter alia, in the parts of its tender entitled ‘Tenderer’s Strategic Vision and Understanding of the Implementation Requirements’ and ‘Tenderer’s Methodological Approach’.

43 In that connection, it should be noted that ED refers to two parts of its tender, corresponding to its proposals in relation to criteria Nos 1 and 2. First, when assessing the tender against criterion No 1, the evaluation committee had to take into account the proposals put forward by ED in response to that criterion. ED cannot therefore complain that the evaluation committee made an error of assessment on the basis of a claim that its proposals in relation to one criterion had been set out in parts of its tender relating to another qualitative award criterion – specifically, in the part of its tender entitled ‘Tenderer’s Methodological Approach’, relating to criterion No 2. Secondly, ED does not state how, or precisely where, in the part of its tender entitled ‘Tenderer’s Strategic Vision and Understanding of the Implementation Requirements’, relating to criterion No 1, it referred, in particular, to the ‘Standardisation bodies and initiatives in the different policies areas’; nor does it indicate how it referred to European experience and best practices and, in particular, to existing standardisation organisations and initiatives. Consequently, ED’s arguments in that regard must be rejected.

45 ED submits that the evaluation committee’s assessment is incorrect. According to ED, it was shown on pages 16 to 26 of the document entitled ‘Tenderer’s Approach concerning the Scenario 1’ that the six proposed actions do not operate in parallel, apart from those which, for obvious reasons, must operate in parallel for work packages 3 and 4. ED also presented Gantt and PERT diagrams on page 26 of that document, showing the various actions and the various tasks within each action.

46 As the Commission observes, the section referred to by ED is not taken from the part of the tender which relates to criterion No 1, but from the part which relates to criterion No 3. ED’s argument must therefore be rejected. Moreover, contrary to the assertions made by ED, there is no PERT diagram on page 26 of the document referred to. In any event, if ED is in fact meaning to refer to the PERT diagram on page 10 of the part of its tender which relates to criterion No 1, it is clear from that diagram that the activities essentially operate in parallel, that is to say, between months 7 or 8 to month 36 for actions 2 to 5, between months 9 and 36 for action 6, while action 1 runs from month 1 to month 36. Consequently, that diagram – which supplements the Gantt chart referred to by the evaluation committee – provides no basis for the claim that the evaluation committee’s assessment concerning the Gantt chart is mistaken.

48 ED submits that the evaluation committee has made a number of manifest errors of assessment in its evaluation of the table of contents. First, the fact that the Commission describes ‘obvious clerical mistakes’, consisting in the reversal of two words, as errors demonstrates the ‘value’ of the arguments which it uses in order to penalise ED.

49 It should be pointed out that, since the evaluation committee’s assessment, quoted by ED, does not mention clerical mistakes, ED’s argument is based on a misinterpretation of the evaluation committee’s comments in that connection and is irrelevant.

50 Secondly, ED submits that its tender fully satisfied the requirements of the tender specifications. ED complied with the page-limit laid down by the tender specifications with regard to the table of contents. It added 33 pages of annexes which address in detail all the issues raised in the table of contents, which the Commission wrongly ignored. However, according to ED, although the purpose of limiting the number of pages was to require tenderers to produce a brief document so as to make the work of the evaluation committee easier, the tender specifications did not state that tenderers were not permitted to provide detailed annexes. Lastly, although the evaluation committee found that the table of contents was well structured, with ‘most of the standard elements of a feasibility study’ present, it did not identify the elements allegedly missing and gave no indication of what else a tenderer could have added in a ‘high-level text’ of four pages.

51 First, it should be noted that, while stating that the evaluation committee failed to identify the pages which were allegedly missing, ED ignores the comment that the titles and annotations remained far too generic to provide a picture of how the bidders intended to implement the study. Secondly, even if an annex could have supplemented ED’s response on that point, the fact remains that – as is clear from the evaluation committee’s report – the titles and explanations could not be generic, a fact which ED does not dispute. In any event, ED has provided no information concerning the contents of the annex in question or where, in ED’s tender, that annex is to be found. ED’s complaint must therefore be rejected.

53 ED disputes the evaluation committee’s assessment, maintaining that the ‘vague terms’ used by the evaluation committee show that it did not dedicate the time or the attention necessary to evaluate ED’s tender. According to ED, the evaluation committee was mistaken in its allegation that there was no reference to risk factors, risk analysis or a strategy for dealing with risks. In that regard, the evaluation committee had disregarded – contrary to the tender specifications – two annexes in which ED referred to risk management and control in the context of the project: (i) a 33-page document in the tender, relating to criterion 2.6 and entitled ‘Measures Deployed to ensure the Quality of Services’, and (ii) Annex B to the document relating to the tenderer’s planned approach to scenario 1, entitled ‘Risk Management Methodology’.

54 It should be noted that, in response to the comment alleging that it had omitted to include a risk analysis in the feasibility study, ED does not dispute that those risks were not included in the table of contents required for criterion No 1, submitting, in essence, that its response on that point was set out in two annexes. If the annexes could be taken into consideration at all, despite the fact that they are not mentioned in relation to criterion No 1 in the tender specifications, it must be held that Annex B (entitled ‘Risk Management Methodology’), to which ED refers, relates to criterion No 3 and that the document entitled ‘Measures Deployed to ensure the Quality of Services’ relates – as ED states – to selection criterion 2.6, in the section concerning proof of the tenderer’s technical and professional capacity. Accordingly, the evaluation committee cannot be criticised for not taking into account the annexes, which do not, in any event, relate to criterion No 1.

55 In the light of the above, it is appropriate to reject ED’s complaints alleging that manifest errors of assessment were made in the appraisal of its tender in relation to criterion No 1.

58 ED submits that the evaluation committee erred in awarding it a mark of 13.33 out of 25. Contrary to the Commission’s assertions, the evaluation committee’s observations are positive. ED states that it is accordingly unable to understand in what way its tender was lacking in originality or which of the criteria of the tender specifications it failed to meet.

59 It should be noted that ED has picked out the paragraph in question from among the evaluation committee’s comments. However, the mark awarded by the committee must be assessed in the light of all the committee’s comments in relation to criterion No 2. The remark quoted is indeed positive, but it is apparent from the remainder of the evaluation committee’s comments that there are negative aspects, to which ED itself alludes. ED’s argument must therefore be rejected.

61 ED argues that, as the tender specifications specified a maximum of five pages of text for this section, it made optimum use of those pages and referred to all the aspects of the work to be carried out. The evaluation committee’s observation relating to the EU SICoP is incorrect, since ED had clearly stated that ‘IDABC [would have been] responsible for managing the Semantic Interoperability Guideline’ (see the fifth bullet point of point 1.2.4, on page 4 of the document on ED’s methodological approach, entitled ‘Organisational issues of semantic interoperability’), and IDABC would merely have consulted the EU SICoP. Furthermore, ED’s tender stated that the Commission’s management of the ‘“Semantic Interoperability Guideline” [would have concerned] administrative issues’, and that statement did not refer to the ‘administrative aspects of the contract of the contractor’. Accordingly, in ED’s submission, the key role to be played by the EU SICoP is clear from its tender, but only in relation to the management of the content of the semantic interoperability guidelines, which is a very technical and highly complex task requiring the successful tenderer’s support for the Commission. ED maintains that its tender thus complied with the tender specifications.

62 It should be noted, first of all, that the page limit was applicable to all the tenderers. Next, it should be noted that – as the evaluation committee observed – ED stated in its tender that the EU SICoP would be in charge of the management of the future guidelines and that the implementation should be carried out by the contractor. ED thus indicated that the EU SICoP would be responsible for maintaining and updating the content of the documents constituting the ‘IDABC Semantic Interoperability Guideline’, or even for removing a document if its content is no longer valid. Moreover, as the Commission observed – as did ED, but only in part – ED’s tender stated that, ‘[s]ince the European Commission (IDABC) is funding this work they will be responsible for managing the “IDABC Semantic Interoperability Guideline” as far as the administrative issues are concerned’ and that, ‘[w]hen it comes to content management issues IDABC should consult [the EU] SICoP’. ED’s tender also stated that ‘[the EU] SICoP should in our view have a key role in the management of “IDABC Semantic Interoperability Guideline”, mainly due to the fact that because of their expertise in the field they will be able to tackle … all issues regarding the content.’ Consequently, it is not apparent from those factors that the evaluation committee made an error of assessment in relation to the role allocated by ED, in its tender, to the EU SICoP.

63 Furthermore, according to the Commission, the drawing up of guidelines for the implementation of semantic interoperability requires a high level of coordination and close consultation between those involved in European standardisation, since that area of pre-standardisation relies on voluntary agreements. Accordingly, very technical aspects were not given absolute priority. In that connection, it should be found that, although the Commission and ED have conflicting views as to whether the EU SICoP could manage guidelines on semantic interoperability in the context of the contract in question, this is a disagreement concerning ED’s proposal, and not an error of assessment by the evaluation committee with regard to the evaluation of the tender.

64 In the light of the above, it is appropriate to reject ED’s complaints alleging that manifest errors of assessment were made in the appraisal of its tender in relation to criterion No 2.

67 According to ED, in the context of scenario 1, the tender specifications (Section 4.4.1, pages 36 to 42) – which requested a prototype and a description of the services offered, in eight bullet points – essentially required the tenderer to provide work of a technical and developmental nature; work of a consultative nature on technical issues; and work of an editorial nature on the semantic and Extensible Markup Language (‘XML’) technologies. In ED’s submission, the problem to be dealt with in the context of the contract at issue was linked to the fact that each Member State of the European Union uses one or more different technical solutions to implement similar semantic concepts. ED adds that the XML Clearinghouse is a purely technical concept and that the successful tenderer had to be capable of addressing all its technical dimensions in order to be able to assist the Commission in achieving content interoperability. Accordingly, ED did not focus solely on the elements required by the tender specifications for scenario 1. It also developed the other aspects – in particular, challenges of a political nature – in other areas of its tender, where it was asked to do so.

68 It should be noted that ED does not state precisely which of the lists in Section 4.4.1 of the tender specifications it is referring to, as that section contains a number of lists. In reply to a question from the Court at the hearing, ED confirmed that it was referring to the list on pages 38 to 41 of the tender specifications. However, it is apparent from Section 4.4.1 of the tender specifications and, in particular, from the list[s] set out in that section that – as the Commission contends – tenderers were also requested to address non-technical issues for that award criterion, contrary to the assertions made by ED. The Commission accordingly stated in Section 4.4.1 that it wished to have support in the organisation, governance and promotion of the planned Clearinghouse. In consequence, since ED does not dispute that it focussed its response on technical aspects, its arguments that the evaluation committee made an error of assessment in that respect must be rejected.

70 ED disputes the evaluation committee’s assessment and states that it is unable to understand in what way the fact that it followed the bullet points in criterion No 1 can be a negative point in the evaluation procedure.

71 It should be stated that although ED quotes a paragraph from the evaluation committee’s comments, it then refers in its argument only to the first sentence of that paragraph, which is merely introductory. In so doing, ED does not show how the remainder of the evaluation committee’s comment – which concerns the negative aspects of the tender – is incorrect. The evaluation committee had criticised ED for failing to elaborate, in that part of the tender, on its understanding of the purposes and for putting forward technical solutions. Since ED has therefore failed to adduce any evidence to support its argument that the evaluation committee’s assessment is mistaken, that argument must be rejected.

72 The comments in the evaluation report quote an extract from ED’s tender and read as follows:

73 ED submits that the evaluation committee erred, since the extract from its tender quoted by the evaluation committee simply reflects what was requested in the tender specifications, in the second bullet point on page 38, which specifically asked tenderers to provide ‘news items’ on other semantic interoperability projects. It is obvious that where ED stated that ‘[t]hese contributions [had to] be collected and managed by the Commission’, it was clearly referring to the work carried out by the contractor for and on behalf of the Commission, as requested by the latter. In fact, it is clear that ‘industry, … academia and the public administrations’ play a key role in the semantic interoperability process and must be consulted and sensitised in order to make a contribution to semantic interoperability. In ED’s submission, the Commission’s committees and the standardisation bodies themselves consult those key players.

74 It should be pointed out that the evaluation committee indicates in its comments, quoted by ED, that these relate to Section 1.2, entitled ‘guidance and harmonisation’, in the part of ED’s tender which relates to criterion No 3. ED submits that the extract from its tender quoted by the evaluation committee is in fact its response to the second bullet point on page 38 of the tender specifications, entitled ‘Providing and editing general content’. However, it must be found that – as the Commission observes – the evaluation committee’s comment in fact relates to the first bullet point on page 40 of the tender specifications, entitled ‘Supporting the Commission’s co-ordination and harmonisation efforts in regard to interoperability assets/Providing guidance’. In any event, ED does not show how the committee has made an error of assessment as to ED’s understanding of the Commission’s competences. In addition, even if ED intended to refer to the role of the successful tenderer, its explanations reveal no convincing evidence as to why it referred to the Commission. In the two bullet points referred to by ED and by the Commission – that is to say, the bullet points on pages 38 and 40 respectively of the tender specifications – the contractor/successful tenderer had to refer to its role. The extract from the evaluation report immediately following the extract quoted by ED also notes that ED’s tender failed to refer to the role that it would play in the context of the task entitled ‘Supporting the Commission’s co-ordination and harmonisation efforts in regard to interoperability assets/Providing guidance’, described on page 40 of the tender specifications. ED’s argument must therefore be rejected.

76 ED disputes the evaluation committee’s assessment. First, it submits that, according to the tender specifications, tenderers were required to follow the guidelines and, in a 20-page document, to refer only to the elements mentioned in those guidelines. They were never asked to refer to coordination/governance/project-management issues at that stage, but to do so in the context of the selection phase. The tender specifications referred only to a project and quality management plan, which is precisely what ED provided. According to ED, the evaluation committee therefore confused the selection criteria with the award criteria.

77 As the Commission correctly states, the evaluation committee refers, in its comments, to pages 36 and 39 of the tender specifications indicating the relevant criterion, a fact which ED does not dispute. In that regard, in reply to a question from the Court at the hearing, the Commission confirmed that the evaluation committee was referring to the fourth bullet point on page 36 of the tender specifications, entitled ‘Providing Syntactic/Semantic Interoperability Assets’, and to the bullet point entitled ‘Clearing process’ on page 39 of the tender specifications. As it is, on page 36 of the tender specifications and, in particular, at the fourth bullet point (‘Providing Syntactic/Semantic Interoperability Assets’), the coordination role is clearly set out. Accordingly, it is not clear from ED’s arguments how the evaluation committee made an error of assessment, since ED does not dispute that it failed in its tender to address the issues of coordination and governance, or the role of the contractor.

78 Secondly, ED submits that the evaluation committee was wrong to disregard two annexes, whereas the list entitled ‘Question 3 – related to … [criterion No 3]’, on page 41 of the tender specifications, stated that the maximum number of 20 pages excluded potential annexes. Those two annexes consist in (i) a 33-page document, produced under criterion 2.6 and entitled ‘Measures Deployed to Ensure a Quality of Service’, in which ED referred to project and quality management provisions and (ii) the document on the ‘Qualifications of the Proposed Team’, produced under criterion 2.5. This also explains why ED received less than 50% of the marks available for criterion No 3.

79 It should be noted that – as the Commission contends – tenderers had to address, in 20 pages, all the points listed in the tender specifications and that page-limit applied to all tenderers. Furthermore, the Commission correctly observes that, while annexes could in fact be appended, it was clear that the 20 pages were the decisive factor for the evaluation. In any event, it must be stated that the two documents to which ED refers – which, moreover, are not annexes – were produced, as ED stated in its written pleadings and confirmed at the hearing, under criteria 2.5 and 2.6 respectively, in the section relating to the proof of the tenderer’s technical and professional capacity. Those two criteria, however, relate to the selection stage. Accordingly, ED cannot criticise the evaluation committee for failing to take into account documents which do not relate to criterion No 3.

81 ED claims that there is an error in the evaluation committee’s assessment, since gateway functions were not precluded in page 36 of the tender specifications: it was merely stated that the requirements must be examined first. Accordingly, the evaluation committee’s criticism is unfounded, as is the consequent awarding of a very low mark, given that ED endeavoured to respond very precisely to the tender specifications’ requirements. Furthermore, ED stated in its tender that it was prepared to deal with that part of the project when the Commission asked it to do so.

82 It should be noted that ED does not dispute that it addressed the gateway function. However, contrary to ED’s assertions – and as the Commission contends – it is clear that the gateway function was specifically excluded from the technical specifications, as was stated in the evaluation report. ED’s complaint must therefore be rejected.

84 ED disputes the evaluation committee’s assessment, arguing that the comments of the evaluation committee are contradictory, since they assert that the content of that section of ED’s tender is both general and detailed. Nor is ED able to understand what was missing from its tender or which requirements of the tender specifications justify those criticisms on the part of the evaluation committee.

85 Although ED quotes only part of the paragraph from the evaluation report, it follows from the remainder of that paragraph that ED’s tender displayed a lack of understanding as regards the tasks of organising and coordinating the award criteria and as regards the scenarios set out. The evaluation committee’s comment also criticises ED’s approach, which it considered to be too technical. In that connection, ED does not dispute that it adopted a very technical approach; nor does it dispute the fact that only one of the five sections of the part of its tender entitled ‘Methodology and Approach’ addressed the issues of collaboration, coordination and eGovernment raised in the tender specifications, a point that was noted by the evaluation committee in the section immediately following its comment. As the Commission correctly observes, the tender specifications asked tenderers to supply ‘[t]he methodology and approach on how they intend[ed] to meet the requirement[s] listed’. Consequently, ED’s complaint must be rejected.

87 ED submits that the evaluation committee erred in that assessment. In the context of a fixed-price/fixed-scope project, those 20 days did not have to be considered in isolation but incorporated for the purpose of the work done in other areas, while a number of person-days were also devoted to project management. Consequently, the 20 man-days concerned the overall coordination of the project of 667 man-days and the Commission’s assertion that ED ‘allocate[d] 20 man-days … to coordination tasks’ constitutes a manifest error of assessment.

88 It is not clear from ED’s arguments how the evaluation committee made an error of assessment, since ED does not deny that it allocated only 20 man-days out of 667 to coordination tasks among stakeholders and users that are of paramount importance for the project and described as such in the tender specifications, on pages 38 to 41, as the Commission observes.

89 In the light of all the above considerations, it is appropriate to reject ED’s complaints that manifest errors of assessment were made in the appraisal of its tender in relation to criterion No 3.

90 It follows from the above that ED has failed to establish that the Commission had made a manifest error of assessment in the evaluation of its tender. That finding is not called into question by ED’s argument, relating to the internal review carried out in response to ED’s letter of 26 July 2007, that the Commission does not adduce sufficient evidence to prove that that review is not flawed by the same shortcomings as the evaluation, since, in particular, all ED’s comments were rejected by the internal review body. It must be observed that ED does not substantiate that argument in any way and does not allege any specific error of assessment in that regard.

91 The plea in law alleging manifest errors of assessment must therefore be rejected.

92 ED submits, in essence, that the Commission did not indicate to it the merits of the successful tenderer as compared with its own merits. In addition, according to ED, the Court should order the Commission to produce the full evaluation report and also all supporting documents and internal correspondence relating to the evaluation of ED’s financial offer.

94 It follows from Article 100(2) 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’), Article 149 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’), in the versions applicable at the material time, and from the case-law, that the Commission fulfils its obligation to state reasons if, first of all, it immediately informs the unsuccessful tenderers of the reasons for the rejection of their tenders and if, secondly, it informs tenderers who have submitted an admissible tender and who so request of the characteristics and the relative advantages of the selected tender, together with the name of the successful tenderer, within 15 days of receiving a written request (see, to that effect and by analogy, Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraphs 188 and 189; judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47 and the case-law cited; and Case T-437/05 Brink’s Security Luxembourg v Commission [2009] ECR II-3233, paragraph 160).

95 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 the judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 69 and the case-law cited, and Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 94 above, paragraph 48).

96 It is also important to bear in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63 and the case-law cited, and Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 94 above, paragraph 49 and the case-law cited).

97 In order to determine whether the obligation, laid down in the Financial Regulation and the Implementing Rules, to state reasons has been met in the present case, it is necessary to examine not only the rejection decision of 13 July 2007 but also the letter of 19 July 2007, sent to ED in reply to its express request of 13 July 2007 for additional information concerning the rejection of its tender.

98 In its rejection decision of 13 July 2007, the Commission set out, in accordance with Article 100(2) of the Financial Regulation, the reasons why ED’s tender had been rejected, namely, that the tender had not reached the thresholds laid down in Section 3.3 of the tender specifications. The Commission also informed ED that it was entitled to request additional information concerning those reasons and concerning the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded.

99 Following ED’s written request of 13 July 2007, the Commission replied by a letter of 19 July 2007 containing various items of information in response to ED’s request for further details. Accordingly, the Commission gave the name of the successful tenderer and stated that the latter had obtained a score of 81.67 points out of 100 for the quality of its tender and a final score of 16.92.

100 The Commission also appended to the letter of 19 July 2007 two extracts from the evaluation report, one with the comments justifying the scores awarded to ED’s tender for the four technical evaluation criteria, and the other containing the following table:

101 As a result of the communication of those extracts from the evaluation report, appended to the letter of 19 July 2007, ED was in a position, inter alia, to determine to what extent its tender had not reached the thresholds laid down in Section 3.3 of the tender specifications and which of the qualitative award criteria this involved.

102 As it is, in accordance with Section 3.3 of the tender specifications, entitled ‘Stage 3 – Application of Award Criteria (Assessment of Tenders)’, only tenders scoring more than 70% by way of total overall points and more than 50% for each of the qualitative award criteria were to be regarded as being sufficient in terms of those criteria and then examined in order to determine the most cost-effective tender.

103 ED’s tender was accordingly eliminated, not following a comparison with the other tenders – and, in particular, with the bid submitted by the successful tenderer – but on the ground that the minimum threshold required for one of the qualitative award criteria, and the minimum score required for all of the criteria, had not been reached.

104 In that connection, the reason set out in the rejection decision of 13 July 2007 enabled ED to understand at what stage of the tender procedure its bid had been rejected – specifically, before the tenders submitted were compared with each other – and why this was so, and the letter of 19 July 2007 and its annexes supplemented that information. It should be noted that, at the hearing, ED itself stated, moreover, that its tender and that of the successful tenderer had not been compared together in the light of the technical award criteria – which it confirmed in reply to a question from the Court – as was formally noted in the record of the hearing.

105 Thus, the information communicated by the Commission was, in the present case, sufficient in the light of the relevant requirements (see, to that effect, the judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 106 to 108, and the judgment of 9 September 2010 in Case T-582/08 Carpent Languages v Commission, not published in the ECR, paragraph 45). The Court considers that in the light of those circumstances the obligation, laid down in Article 100(2) of the Financial Regulation and in Article 149 of the Implementing Rules, to notify the characteristics and relative advantages of the successful tender was met in the present case.

106 The plea alleging breach of the obligation to state reasons must therefore be rejected, without it being necessary to ask the Commission to produce either the full evaluation report or all supporting documents and internal correspondence relating to the evaluation of ED’s financial offer.

107 ED submits that the evaluation committee misused its powers by examining ED’s tender in such a way as to exclude it from the tendering procedure, this misuse of powers being the result – according to ED – of a ‘very hostile attitude’ towards ED on the part of DG DIGIT, following various proceedings which ED has brought before the European Ombudsman and the Courts of the European Union.

109 It should be borne in mind that, in accordance with settled case-law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for purposes other than those stated (Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24, and Case C-400/99 Italy v Commission [2005] ECR I-3657, paragraph 38). Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim (Case 2/54 Italy v High Authority [1954] ECR 37, 54, and Case T-87/05 EDP v Commission [2005] ECR II-3745, paragraph 87).

110 It should be noted, first of all, that ED simply asserts that the financial offers made by the tenderers had to remain confidential until the outcome of the technical evaluation and does not indicate the provisions of EU public procurement law, or of the Financial Regulation, on which it relies. At the hearing, in reply to a question from the Court, ED stated that it based its arguments on the provisions of the tender specifications and, more specifically, on the provisions set out on page 23 of those specifications. However, it must be pointed out that nowhere is it stated in the tender specifications that financial offers had to remain confidential pending the outcome of the technical evaluation.

111 Next, ED does not adduce any relevant evidence to support its assertion that, in breach of the tender specifications, the evaluation committee deliberately undertook a comparative examination of ED’s financial offer, comparing it with that of the other tenderers, and then, after finding that ED would be ‘the winning tenderer piecewise’, decided to exclude it on the basis of alleged qualitative criteria.

112 First, ED does not, in its pleadings, identify the provision in the light of which it must be found that the evaluation committee had erred in examining ED’s financial offer before its technical offer or at the same time. At the hearing, in reply to a question from the Court, ED stated that it based its arguments on the provisions of the tender specifications and, more specifically, on the provisions set out on page 23 of those specifications. However, it is not clear from the provisions set out on that page of the tender specifications that the financial offer could not be examined while the tender was being appraised in relation to the technical criteria, at least – as the Commission contends – in order to ensure that the financial offer did not include certain items which might disqualify it.

113 Secondly, it should be recalled that – as is clear from the considerations relating to the plea alleging manifest errors of assessment – ED has not adduced any evidence to show that the evaluation committee had erred in its appraisal of ED’s tender in relation to the qualitative criteria. Accordingly, ED has not proved that there was an error in the appraisal of its tender in relation to the qualitative award criteria.

114 Thirdly, it should be pointed out that ED has not put forward any other evidence to show that, in the present case, the Commission used its powers for purposes other than that of determining which tender to select. At most, ED has referred to problems which it claims to have encountered with the Commission in the context of other public procurement contracts. Such arguments are not relevant, however, to the examination of the present case, since they do not concern the tendering procedure in question, and those arguments are based essentially on complaints lodged with the Ombudsman. Lodging a complaint with the Ombudsman cannot constitute evidence for the purposes of establishing a misuse of powers. In any event, as the Commission correctly notes, it may be observed that the Ombudsman states in his letter of 22 February 2008 in relation to another tendering procedure – a letter referred to by ED – that his decision did not, either directly or indirectly, suggest that the Commission might have been biased against ED.

115 Consequently, it must be concluded that ED has not adduced any relevant and objective factors to show that, in examining its tender, the Commission pursued a purpose other than that of determining which tender to select, and that ED’s general and imprecise assumptions – in particular, with regard to the allegation of bias on the part of most of the members of the evaluation committee – cannot constitute evidence in that regard.

116 Accordingly, ED’s argument that most of the members of the evaluation committee, the new authorising officer and the official who carried out the internal review and produced the review note were not in a position to evaluate ED’s tender fairly, since they were concerned by a complaint lodged with the European Ombudsman, cannot succeed. That argument is based on a complaint lodged with the Ombudsman which, moreover, relates to another public procurement contract. In any event, the argument is not substantiated, since ED has not established that those persons were actually referred to or concerned by that complaint. In that connection, it may also be observed that, although ED states that it is unaware of the composition of the evaluation committee, it alleges that its members were not impartial. Similarly, ED claims that the official carrying out the internal review was not impartial, while at the same time stating that no information had been given as to who conducted the internal review; in its view, however, the internal review was conducted by the Head of the relevant unit of DG DIGIT.

117 It follows from all of the foregoing that it has not been proved that there has been any misuse of powers and that, consequently, the plea alleging misuse of powers must be rejected.

118 Since ED has been unsuccessful in all its pleas for annulment, the present action must be dismissed in so far as it seeks annulment of the decision not to accept the tender submitted by ED. With regard to the application for annulment of the decision to award the contract to another person, that application must inevitably be dismissed as a consequence of the dismissal of the application for annulment of the rejection decision of 13 July 2007 with which it is closely connected.

119 ED brings a claim for damages under Articles 225 EC and 228 EC. At the hearing, it confirmed that it was claiming damages in the amount of EUR 2 million, a point which was formally noted in the record of the hearing.

120 The Commission contends that ED’s claim for damages should be dismissed as inadmissible or, in the alternative, as unfounded.

121 It is settled law that, for the Community to incur extra-contractual liability, for the purposes of the second paragraph of Article 288 EC, for the illegal conduct of its organs, a number of conditions must be met, that is to say, the conduct of which the institutions are accused must be unlawful, the damage must be real and there must be a causal connection between that conduct and the damage (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Evropaïki Dynamiki v EMCDDA, paragraph 22 above, paragraph 126). Where one of those conditions is not satisfied, the action must be dismissed in its entirety, there being no need to consider the other conditions (see, to that effect, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81).

122 In the present case, as is clear from the considerations relating to the application for annulment, ED has failed to prove unlawful conduct on the part of the Commission. It follows that, since one of the three conditions for the Community’s non-contractual liability has not been met, the application for damages must be rejected as unfounded, there being no need to rule on its admissibility.

123 In the light of all the above considerations, the action must be dismissed in its entirety.

124 ED claims that the Commission should be ordered to pay the costs, pursuant to Article 87(3) of the Rules of Procedure of the General Court, even if the Court dismisses the present action. According to ED, it was forced to bring an action before the Court by the Commission’s ‘defective evaluation’ of its tender, the failure to state reasons for the rejection decision of 13 July 2007 and the failure to inform it of the relative merits of the successful tenderer.

126 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. However, under the second subparagraph of Article 87(3), the Court may order a party to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur. As it is, ED does not claim to have sustained unreasonable or vexatious costs. Consequently, since ED has been unsuccessful in its pleas, it must be ordered to pay the costs, as applied for by the Commission.

2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and pay the costs incurred by the European Commission.

Criteria	Description	European Dynamics	INIT AG	Max points
1	Quality and completeness of strategic vision and understanding of implementation requirements – to be demonstrated in (a) vision document on ‘Implementing semantic interoperability for pan-European services’ and (b) a Table of content for a feasibility study: ‘Pan-European Administration Orientation Map’ (as described in chapter 4.3.1 / question 1).	12	14,67	20
2	Quality and completeness of methodology approach – to be demonstrated in (a) a methodology document: ‘Providing Guidance for Implementation of Semantic Interoperability’, (b) a document elaborating on five priority areas for practical advice, (c) tables of content for each of the areas defined in under (b) (as described in chapter 4.3.1 / question 2)	13,33	21	25
3	Quality and completeness of the proposed solutions for scenario 1: ‘Setting up a prototype for an European XML-Clearinghouse’ – demonstrated by a document describing understanding of the scenario – including the draft for a Project Management and Quality Plan (as described in chapter 4.4.1 / question 3)	18,33	33	40
4	Quality and completeness of the proposed solutions for the scenario 2: ‘Support for an Expert Meeting on the XML-Clearinghouse’ (as described in chapter 4.4.2 / question 4)	9	13	15
Total		52,67	81,67	100

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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) >> Evropaiki Dynamiki v Commission (Public service contracts) [2011] EUECJ T-377/07 (13 December 2011) URL: http://www.bailii.org/eu/cases/EUECJ/2011/T37707.html Cite as: [2011] EUECJ T-377/07, [2011] EUECJ T-377/7

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