Alfastar Benelux v Council (Judgment) [2014] EUECJ T-394/12 (25 November 2014)

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(Public service contracts — Tender procedure — Technical maintenance and help desk and on-site intervention services for the personal computers, printers and peripherals of the General Secretariat of the Council — Rejection of a tenderer’s bid and award of contract to another tenderer — Decision taken following the annulment by the General Court of an earlier decision — Action for damages)

Alfastar Benelux SA, established in Ixelles (Belgium), represented by N. Keramidas and N. Korogiannakis, lawyers,

Council of the European Union, represented by M. Vitsentzatos, E. Chatziioakeimidou and M. Robert, acting as Agents,

APPLICATION, first, for annulment of the decision of the Council of 13 June 2012 not to select the tender submitted by the applicant in response to the restricted call for tenders UCA 218/07, for the provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer and, secondly, application for compensation for the damage allegedly suffered as a result of the award of the contract to another tenderer,

composed of M. Prek (Rapporteur), President, I. Labucka and V. Kreuschitz, Judges,

having regard to the written procedure and further to the hearing on 7 March 2014,

1 By a contract notice of 10 May 2008, published in the Supplement to the Official Journal of the European Union (OJ 2008 S 91) under reference 2008/S 91-1227961, the Council of the European Union launched the restricted call for tenders UCA 218/07 (‘Technical maintenance — helpdesk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council’).

2 The contract award procedure took the form of a restricted procedure. Under that procedure all economic operators could apply to take part, but only those candidates that met the selection criteria and received a written invitation from the contracting authority to tender could submit a tender.

3 The contract notice provides that tenderers must fulfil selection criteria. The contract notice requires inter alia that the tenderer and its staff must have security clearance although, for staff, that clearance may be replaced by a ‘letter of intent to take the necessary steps to fulfil the security clearance’.

4 The contract notice and the tendering specifications provide that the contract is to be awarded to the most economically advantageous tender assessed on the basis of the criteria laid down in the tendering specifications. The scores obtained for the technical evaluation and the financial evaluation are weighted 40% for the former and 60% for the latter.

5 The tendering specifications provide that, during the technical evaluation, regard must be had to the following award criteria:

– with respect to ‘service 1’ (service desk), ‘service 2’ (second line support), ‘Service 4’ (installation and configuration support) and ‘service 5’ (physical handling of all equipment during its lifecycle, with equipment as detailed in service 2), the tender is evaluated, in respect of those services, on the basis of the ‘description’ (5 points) and ‘resources’ (5 points) criteria;

– as regards ‘service 6’ (ad-hoc services), the tender is evaluated solely on the basis of the ‘description’ criterion (5 points);

– the part of the tender relating to the ‘start-up phase’ is evaluated on the basis of the ‘knowledge transfer’ (15 points) and the ‘service level agreement implementation’ (15 points) criteria;

– as regards the ‘operational phase’, the tender is evaluated on the basis of the ‘resources’ (5 points), ‘methodology’ (5 points) and ‘training’ criteria (5 points);

– the part of the tender relating to the ‘handover phase’ is examined in the light of the ‘resources’ (5 points) and ‘methodology’ (5 points) criteria.

6 Section 14.2 of the tendering specifications relates to the financial evaluation of the tender.

7 The tendering specifications provide lastly that, during the final evaluation, an assessment is made as to which tender offers the best value for money, calculated according to the formula indicated in section 14.3 of the tendering specifications.

8 On 12 June 2008, the applicant, Alfastar Benelux SA, and Siemens IT Solutions and Services SA (‘the Alfastar-Siemens consortium’) applied to take part jointly in the contract award procedure.

9 By letter dated 8 August 2008, the contracting authority invited the Alfastar-Siemens consortium to submit a tender.

11 On 1 December 2008, the Council sent the Alfastar-Siemens consortium a decision informing it that another tenderer had been awarded the contract, which had therefore not been awarded to that consortium.

12 On 3 December 2008, the Alfastar-Siemens consortium requested inter alia further information from the Council, which, by letter of 10 December 2008, sent it information on the scores the consortium had obtained and those obtained by the successful tenderer.

13 By letter dated 12 December 2008 and by fax of 15 December 2008, the Alfastar-Siemens consortium requested the Council to re-examine its tender and that submitted by the successful tenderer, claiming that the result of the evaluation was incorrect.

14 On 18 December 2008, the Council replied to the Alfastar-Siemens consortium that the tenders would not be re-examined.

15 On 9 February 2009, the applicant brought, before the General Court, an action for annulment of the Council Decision of 1 December 2008 to reject the tender submitted by the Alfastar-Siemens consortium, in response to restricted call for tenders UCA 218/07 for the provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer.

16 By judgment of 20 October 2011 in Case T‑57/09 Alfastar Benelux v Council, not published in the ECR, the Court annulled the Council Decision of 1 December 2008. It ruled that the Council had not correctly complied with its obligation to state reasons, inasmuch as its letter of 10 December 2008 did not meet the requirements laid down in 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; ‘the Financial Regulation’) and Article 149(3) 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’) (Alfastar Benelux v Council, cited above, paragraph 36). It also rejected the claim for damages on the ground that it was premature.

17 On 13 June 2012, the Council adopted the new decision not to select the tender submitted by the applicant in response to the restricted call for tenders UCA 218/07, for the provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer (‘the contested decision’). By the contested decision, the Council awarded the contract to the same tenderer as that selected in the annulled decision.

– order the Council to pay the applicant damages in the amount of EUR 2 937 902 or a proportion of that amount according to the ‘date of annulment’ of the contested decision;

– dismiss the claim for damages as unfounded in fact and in law or, failing that, limit it to an amount resulting from the application of settled case-law;

20 By measure of organisation of procedure of 3 February 2014, the Court put a question to the applicant concerning Belgian employment legislation and requested the Council to produce the letter of 8 August 2008 addressed to the successful tenderer, stating that the latter had been chosen as the candidate for the award of the contract. The Council lodged the requested document on 5 February 2014 and the applicant replied to the question by letter of 26 February 2014.

21 In support of its claim for annulment, the applicant raises six pleas in law. The first plea, raised in the reply, alleges infringement of the obligation to state reasons. The second plea is based on infringement of the tendering specifications. The third plea alleges manifest errors of assessment. In the fourth plea, the applicant submits that the Council confused the selection and award criteria. The fifth plea relates to the existence of inconsistencies and inaccurate information in the call for tenders. The final plea alleges infringement of Article 100(2) of the Financial Regulation.

22 In the application, the applicant observes that a passage in general comments relating to the successful tenderer reads as follows: ‘Important they also bring in a lot of knowledge from their experience. International presence in’. The applicant observes that the second phrase is incomplete, leaving questions on the exact reasoning of the contested decision.

23 In its reply, the applicant expressly raises a plea alleging infringement of the obligation to state reasons on the ground that the extract of the evaluation report communicated to it by the Council is incomplete and that account should not be taken of the new completed document that the Council communicated to it during these proceedings.

24 The Council contends that that plea is inadmissible or, in any event, unfounded.

25 As regards the admissibility of that plea, it should be borne in mind that, since infringement of the obligation to give reasons is a matter of public interest, the European Union judicature must raise it of its own motion and, therefore, the fact that the applicant raised it belatedly does not render such a plea inadmissible (see, to that effect, Case T‑385/11, BP Products North America v Council [2014] ECR II‑0000, paragraph 164).

26 As to whether that plea is well founded, it should be borne in mind that the institutions of the European Union have a 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 (see, to that effect, Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraph 33, and judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

27 Where the EU institutions have a broad discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union judicature verify whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, Evropaïki Dynamiki v Commission, paragraph 26 above, paragraph 54; and Case T‑89/20 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 61).

28 The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review (Case C‑367/95 Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63).

29 In the present case, the last item of information mentioned in the extracts of the evaluation report which are contained in the contested decision, in the box relating to the general comments concerning the successful tenderer, is worded as follows: ‘International presence in’. It is apparent from the document annexed to the application that the phrase which ends with the word ‘in’ must in fact be completed by the following missing words: ‘Luxembourg, Strasbourg, Geneva (CERN) and Washington. Dedicated resource for stock management is a plus.’ The phrase in the contested decision is interrupted and does not have a full stop. It is manifestly apparent that that interruption is the result of an unintentional clerical error.

30 First of all, it must be stated that, apart from the few missing words mentioned in paragraph 29 above, all the extracts from the evaluation report which are contained in the contested decision are identical to the document annexed to the application. Thus, and contrary to the applicant’s submission, the Council did not substitute a new statement of reasons for the contested decision’s statement of reasons. Next, as the Council states, the section of the table concerned by the clerical error related solely to general comments. Lastly, the words of the phrase ‘International presence in’ are sufficient to make it understood that the successful tenderer was active internationally. The precise location of the three cities concerned by that international presence in no way alters the substance of the statement of reasons for the contested decision. As regards the missing phrase, ‘Dedicated resource for stock management is a plus’, its absence in the contested decision in the version sent to the applicant cannot suffice to lead to the conclusion that there was an infringement of the obligation to state reasons. The general comments may easily be inferred from the detailed technical evaluations of the successful tenderer’s bid which are not concerned by the formatting error, since the general comments constitute a succinct summary of material contained in the contested decision.

31 Consequently, the first plea, alleging infringement of the obligation to state reasons, must be rejected.

32 The second plea, which is based on infringement of the tendering specifications, consists of two complaints. In the first complaint, the applicant submits that the successful tenderer did not have at its disposal the necessary staff proposed in its tender. The Council infringed the principle of equal treatment by failing to take account of that factor. In the second complaint, the applicant submits that the tendering specifications were infringed on the ground that the successful tenderer stated that it uses movers in order to perform second line support under service 2.

33 The applicant submits that service 5 required that tenderers provide a qualified team of movers. In support of that complaint, it puts forward two main arguments. In the first place, it claims that the curricula vitae submitted by the successful tenderer were fictitious, as only 2 of the 19.5 persons concerned by those curricula vitae were recruited. 40% of the ‘movers’ team were recruited from the applicant’s staff. The applicant observes that the fact that 90% of the staff made available differ from the staff evaluated constitutes a substantial amendment to the winning tender. In the second place, it submits that, in the light of the nature of their tasks, movers are beyond any doubt manual workers. By classifying them as employees, the successful tenderer infringed Belgian legislation. The applicant specifies that ‘ouvriers’ (manual workers) need to undergo annual medical exams in order to preserve their health. The mechanism by which movers are made employees provides significant benefits in terms of annual cost per person and on account of the absence of costs related to annual medical check-ups and tests for manual workers.

34 In the first place, it is necessary to examine the argument that the curricula vitae submitted by the successful tenderer were fictitious and the Council substantially amended the conditions of the contract by allowing the replacement of certain members of staff of the successful tenderer.

35 First of all, it is apparent from the case-law that neither the Financial Regulation nor the Implementing Rules require a tenderer actually to have available to it, at the time it submits its tender, the staff to perform a future contract which might be awarded to it. Any selected tenderer must be able to start providing the services on the date set by the contract resulting from the tendering procedure, and not before the contract is finally awarded to it. To require the tenderer to have the requisite number of employees at the time it lodges its tender would be tantamount to favouring the tenderer holding the existing contract and thus nullify the very essence of the call for tenders (see, to that effect, Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 90).

36 Next, it should be borne in mind that section 4.5.1.1 of the technical specifications of the tendering specifications provides that the tenderer is to describe inter alia the methods, organisation, procedures and tools used to comply with the requirements. The tenderer must also describe the profiles of the persons that are going to be used, and include their curricula vitae stating clearly their professional experience and using a common format. Section 4.5.1.4.1 of the technical specifications of the tendering specifications states that the tender is to include a compliancy matrix for each proposed resource (staff, agent), corresponding to the submitted curriculum vitae.

37 The tendering specifications also provide that the complete list of agents, together with their curricula vitae, is to be provided to the General Secretariat of the Council and maintained by the service provider (see section 4.5.1.4.2 of the technical specifications of the tendering specifications).

38 Thus, the tendering specifications do not provide that the designation ad nominem of one or more members of staff responsible for performing defined tasks constitutes an award criterion. Nor do they provide that the members of staff put forward in the tender cannot be replaced by other members of staff with skills equivalent to those mentioned in the compliancy matrix.

39 On the contrary, the fact that the tendering specifications provide for the updating of the list of agents and their curricula vitae permits the conclusion that the actual replacement of agents is implicitly, but necessarily, envisaged and that such replacement by the successful tenderer does not entail an infringement of the tendering specifications.

40 That is all the more true since the evaluation committee based its assessment on the profiles submitted by the tenderers, in the form of compliancy matrices, supplemented by curriculum vitae.

41 Lastly, as regards whether the replacement of staff could be construed as a material amendment to the tender, it should be borne in mind that an amendment to a public contract during its currency may be regarded as being material when it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted or would have allowed for the acceptance of a tender other than the one initially accepted, when it extends the scope of the contract considerably to encompass services not initially covered or when it changes the economic balance of the contract in favour of the contractor in a manner which was not provided for in the terms of the initial contract (see, by analogy, Case C‑454/06 pressetext Nachrichtenagentur [2008] ECR I‑4401, paragraphs 35 to 37).

42 However, as was stated in paragraph 38 above, the tendering specifications in no way precluded the replacement of members of staff by other persons with equivalent skills.

43 It follows that, by allowing the successful tenderer to replace certain members of staff during the performance of the public contract at issue, the contracting authority did not materially amend the tender for the purposes of pressetext Nachrichtenagentur (paragraph 41 above). In the absence of any material amendment of the tender, it must also be acknowledged that the applicant is wrong to claim infringement of the principle of equal treatment.

44 In the second place, it is necessary to determine whether the applicant is right in asserting that, according to Belgian law, movers cannot have a status other than that of ‘manual worker’ and, accordingly, whether the Council was under an obligation to take account of this when assessing the various tenders.

45 First, it should be borne in mind that the tendering specifications do not require of tenderers that the members of their staff who will perform the tasks envisaged for service 5 must have the status of manual workers for the purposes of Belgian labour law.

46 Second, it should be recalled that the Court, by way of a measure of organisation of procedure, requested the applicant to produce the relevant Belgian legislation in the field of labour law that would prevent a manual worker being given the status of employee under a contract. By letter of 26 February 2014, the applicant submitted the Law of 3 July 1978 relating to employment contracts. It also attached two judgments of the Belgian Cour de cassation (Court of Cassation) and three judgements of the Liège and Brussels employment courts in order to demonstrate that the aforementioned law should be interpreted as meaning that movers could not have the status of employee. At the hearing, the parties were requested to submit their point of view on the Belgian legislation and case-law on employee and manual worker contracts of employment submitted by the applicant.

47 However, it must be observed that it is not apparent either from the Belgian legislation or case-law submitted by the applicant that an employer may not give a manual worker the status of employee under a contract.

48 To that effect, the argument that the successful tenderer benefits from significant advantages in terms of annual cost per person and on account of the absence of costs related to annual medical check-ups and tests for manual workers is irrelevant, the applicant prejudging that the successful tenderer does not comply with the applicable Belgian legislation. The mere fact that the successful tenderer decides to give the status of employee under a contract to its movers does not mean that it will deprive them of the advantage given to manual workers in law. For the same reason, it is necessary to reject the applicant’s argument that the Council did not comply with section 5(1) of the tendering specifications providing that the Belgian law of 4 August 1996 on the well-being of workers at work must be observed.

49 In that context, the applicant seeks unsuccessfully to argue that it informed the Council, before the contract was signed, that the successful tenderer did not have available the staff to perform service 5 and refers in that regard to a letter of 12 December 2008 that it sent to the Council. That letter states that the balance sheet of the successful tenderer published by the National Bank of Belgium mentions that the staff employed by the successful tenderer amounts to 172.4 units and that that tenderer does not have any manual workers. The applicant infers from this that the successful tenderer did not have any movers and was not able to perform service 5.

50 That reasoning does not however suffice to demonstrate that the successful tenderer did not have available the staff to perform the contract. As was highlighted in paragraphs 34 to 43 above, no provision required that the tenderers actually have at their disposal, at the time that they submitted their tender, the staff necessary to perform the contract that might have been awarded to them. Moreover, as was observed in paragraph 47 above, the applicant wrongly infers from the fact that a person has the status of employee for the purposes of the Belgian legislation that that person cannot be a manual worker for the purposes of that legislation.

51 Similarly, the applicant relies in vain on Case T‑139/99 AICS v Parliament [2000] ECR II‑2849, since it has not been demonstrated that the conditions laid down in the invitation to tender induced tenderers, and in particular the successful tenderer, to infringe the national legislation applicable to their business.

52 It follows that the first complaint, relating to the lack of necessary staff, must be rejected.

The second complaint, alleging infringement of the tendering specifications as a result of the use of movers to perform technical assistance tasks

53 In the second complaint, the applicant submits that the tendering specifications were infringed on the ground that the successful tenderer stated that it uses movers in order to execute second line support under service 2. First, it is apparent from this that the movers do not perform moving tasks full time. Second, they do not have the specific skills in order to perform second line support. Their curricula vitae have not moreover been evaluated against the qualifications that are required to perform service 2 tasks. Third, the applicant claims that the movers hired to perform service 5 tasks are remunerated based on a fixed fee per person. By contrast, service 2 is remunerated as a service, irrespective of the number of specialists hired to perform the tasks of that service. The successful tenderer therefore increased the number of movers so as to decrease the number of second line support experts in order to maximise its profitability. Two extra movers were indeed added to its team. The applicant states also that it is true that the tendering specifications provide that movers are to cooperate with other services, but that that cooperation concerns the flow of information and not the performance of service 2 tasks. The applicant observes moreover that its tender provided for overlapping competences of the staff only concerning services 1, 2, on the one hand, and, on the other, service 4, and not with regard to Service 5. Services 1, 2 and 4 are regulated by the Service Level Agreement. Those services are remunerated as a service. Thus, the provider is, admittedly, free to determine the number of staff necessary to carry out the task, although the reduction of the team may trigger financial penalties for non-performance in accordance with the Service Level Agreement.

54 The Council disputes the applicant’s arguments and submits that the second complaint should be rejected.

55 At the outset, it is necessary, first, to recall the provisions of the tendering specifications.

56 First of all, the tendering specifications describe in a general manner service 5 as the ‘physical handling of all equipment during its lifecycle, with equipment as detailed in service 2’. Next, it is provided therein that movers are inter alia tasked with moving all IT-related equipment and that they must have the physical ability to carry out the work. Moreover, it is apparent from section 4.5.1.4.1(5) of the technical specifications of the tendering specifications and from a response of the Council to the questions put by the applicant pursuant to Article 141 of the Implementing Rules that the expression ‘6 full-time persons’ set out in section 4.5.1.2 of the technical specifications of those tendering specifications, in order to perform service 5, must be understood as meaning 6 full-time equivalent persons.

57 Lastly, the technical specifications of the tendering specifications state, in section 4.2.1.4.1(4), note 1, that certain requirements for the performance of service 2 tasks do not apply to all members of the team which has been assigned to perform those tasks.

58 It is necessary, second, to recall what the tender submitted by the successful tenderer contains.

59 The successful tenderer stated (i) that movers would carry out second line support during peaks in workload and (ii) that the types of incidents most frequently logged by any IT Service Desk concerned printer paper jams and poor quality printing due to dirty or almost empty toner cartridges. The successful tenderer stated that movers would have the necessary skills to resolve virtually all such incidents.

61 First, it may not be inferred from the tendering specifications that the full-time equivalent staff performing service 5 tasks are exclusively dedicated to those tasks. The Council correctly observes that the obligation to assign six full-time equivalent persons is not a requirement as to the service to be provided. The Council also claims, without being challenged by the applicant, that the statistics on service 5 provided in Annex C to the technical specifications of the tendering specifications indicate that the workload is not constant and that it does not imply a permanent and exclusive deployment of all six members of staff.

62 It is therefore not apparent that, in terms of working time and, therefore, of availability of the staff concerned, the proposal, approved by the Council, contained in the successful tenderer’s bid to assign the service 5 movers to certain specific service 2 tasks during peaks in workload is contrary to the requirements of the tendering specifications.

63 Second, the argument that movers do not have the specific skills in order to perform second line support cannot succeed. On the one hand, it was noted in paragraph 57 above that certain requirements for the performance of service 2 tasks do not apply to all members of the team which has been assigned to perform those tasks in terms of skills. On the other hand, the tasks that movers will perform concern the resolution of incidents such as printer paper jams and poor quality printing due to dirty or almost empty toner cartridges. It is not manifestly incorrect to take the view that such tasks do not constitute interventions of such complexity that it would be impossible for those movers to be trained for that type of intervention.

64 Third, the applicant claims that a larger number of movers leads to greater remuneration for the tenderer and submits that, in that context, the successful tenderer hired two additional movers and decreased the number of second line support experts in order to maximise its profitability.

65 That line of argument cannot succeed. As the Council notes, a modification in the number of movers is not possible by the contractor on its own. Section 4.5.1.2 of the technical specifications of the tendering specifications states in essence that the service provider must provide 6 full-time persons and that the number of persons must be increased by 100% if the Council so requests. Moreover, the applicant’s reasoning fails to take account of the link between the experience of the service providers and salary costs, despite the fact that this element is taken into account to a considerable extent in the evaluation of the tenders. Moreover, seeking a financial benefit would have a negative effect on the financial score of the tender.

66 Lastly, the Council stated that, contrary to the applicant’s submission, only one mover was added to the movers team and was assigned to the service for the ‘Preparations of the roll-out of a new computer operating system (Windows 7)’. The applicant has not put forward any evidence aimed at contradicting those explanations.

67 It follows that the second complaint, alleging infringement of the tendering specifications as a result of the use of movers to perform technical assistance tasks, must be rejected.

68 In the light of all the foregoing, the second plea, alleging infringement of the tendering specifications and of the principle of equal treatment, must be rejected.

69 The applicant submits that a series of manifest errors of assessment were committed by the Council and breaks its plea down into five complaints.

70 As a preliminary point, it should be recalled that, under Article 97(1) of the Financial Regulation, contracts are to be awarded on the basis of award criteria applicable to the content of the tender.

71 Moreover, it should be recalled that, within the limits of the applicable rules and the provisions of the tendering specifications that it has drawn up, the Council has a broad discretion with regard to the factors to be taken into account for the purposes of awarding a contract to a tenderer. Review by the General Court must therefore 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 (see, to that effect, Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 147, and Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraph 95).

72 It is in the light of that case-law that the five complaints put forward by the applicant must be considered.

The first complaint, relating to the absence of certification of the staff of the successful tenderer

73 In the first complaint, the applicant observes, first, that, in order to comply with service 2 entitled ‘second level support’, the tenderers had to present the names of their qualified staff who would repair office machines in the event of a machine failure. The applicant claims that the certification, issued by the printer manufacturers, of members of the repair team is the only professional guarantee designed to prove the ability of the team to perform the repair tasks. It maintains that, unlike the staff proposed by the successful tenderer, its own staff were certified, as their curricula vitae show, and that it is therefore wrong that a score of 4.5 out of 5 was awarded to the applicant and 5 out of 5 to the successful tenderer. The Council itself also took into account, when evaluating the various tenders, certain formal certifications presented by a number of tenderers and thus failed to observe the principle of equal treatment and non-discrimination. Second, the applicant considers that the issue remains whether the technical merits of the curricula vitae were evaluated and how.

75 First, as regards the argument based on the certifications of equipment manufacturers, it should be noted that, with respect to the award criterion relating to service 2, section 14 of the tendering specifications states that the proposed resources are evaluated based on the information provided in the detailed curricula vitae and the compliancy matrix. The tendering specifications state that the quality of the tenders will be evaluated in respect of the various award criteria that they provide for, by assessing the degree to which the tenders in question fulfil the requirements of those tendering specifications, the latter referring in that regard to Annex 1 thereto, which contains the technical specifications.

76 The compliancy matrix lists eleven specific requirements on the basis of which the general IT skills of the staff of the tenderers are assessed. The tendering specifications make no reference to the possession of certifications, with the exception of specific certifications relating to Microsoft applications.

77 It should be noted that the successful tenderer’s bid was awarded 5 out of 5 and the applicant’s 4.5 out of 5 in respect of the criterion of section 4.2.4.1 of the technical specifications of the tendering specifications, relating to the resources allocated for service 2. The marks awarded concerned both the team leader and the team members. As regards the successful tenderer’s bid, the evaluation report states that, in the case of the team leader, the tender demonstrates ten years of experience in performing the contract, that the team leader is also identified as problem manager in terms of Information Technology Infrastructure Library (ITIL) terminology and that the certification and qualifications are of a high standard. As regards the team members, the evaluation report states that the profiles are very good, that the skills and staffing are in line with the requirements, in particular those relating to Microsoft certifications, and that they have a large amount of experience in the fields required.

78 The evaluation report relating to the applicant’s tender states that the team leader role is not clearly identified and that there is a question as to whether the service manager is backed up by the team leader when the former is absent. As regards the team members, the evaluation report states that their skills are in line with the requirements, although formal certification is complied with by the indication of an online certification test.

79 It is apparent from the foregoing that the Council did not make a manifest error in considering that the applicant’s tender was not of the same quality as regards the part concerning the team leader. The applicant has not moreover put forward any convincing argument to call in question the fact that the role of team leader for service 2 was not clearly identified in its tender. It must be stated that this alone may suffice to justify the half-point difference in the marks awarded to the two tenderers.

80 Moreover, with respect to the staff, it should be noted that the award criterion is, in the present case, worded in such a way that, without prejudice to the obligation to provide curricula vitae, it enables the tenderers to present freely the experience of their staff members by documents which they deem appropriate. In that regard, submission of a relevant certificate is one of a number of conventional ways of providing evidence in the preparation of tenders in public procurement procedures. Despite the difference between the tenders in relation to the team leader, the applicant was nevertheless awarded the high mark of 4.5 out of 5. The Council thus took account of the experience of the applicant’s staff, notably through the certifications of its staff, which is demonstrated by the finding that the skills of the staff are in line with the requirements.

81 It cannot however be accepted, as the applicant claims, that the certification of the staff by the equipment manufacturers ought to have constituted a preponderant factor — or even the only factor — in relation to that of professional experience and that it ought therefore to have obtained a better score for service 2. It should be recalled in that regard that those certifications by the equipment manufacturers were not required in the tendering specifications and therefore constituted, for the tenderers, only one of several means of demonstrating the experience of their members of staff.

82 Accordingly, it is not apparent that the Council made a manifest error of assessment in awarding, for service 2, 4.5 out of 5 to the applicant’s tender and 5 out of 5 to that of the successful tenderer.

83 Second, the applicant claims unsuccessfully, in that context, that the contested decision does not make it possible to determine whether the technical merits of the curricula vitae were evaluated or how those merits should have been evaluated. In the present case, it is apparent from the evaluation committee’s report that the knowledge required by the members of staff of the successful tenderer were evaluated in the light of the criteria of the table set out in section 4.2.1.4.1 of the technical specifications of the tendering specifications and that that knowledge was demonstrated. As was noted in paragraph 77 above, the evaluation report states, as regards the team leader, that that person has ten years of relevant experience in performing the contract. As regards the team members, the report states that they have very good profiles, that they satisfy the certification requirements relating to Microsoft applications, and that they have a large amount of experience in the field concerned. It is not therefore apparent that the factors on which the evaluation committee relied in examining the existence of the knowledge required are not relevant.

84 In that context, it is necessary to reject the applicant’s argument that the Council accorded importance to certain formal certifications, but not to others, and thus infringed the principles of equal treatment and non-discrimination. As was pointed out in paragraph 80 above, the marks awarded to the applicant’s tender in respect of the staff’s experience demonstrate that the Council took account, as evidence aimed at proving the professional experience of the profiles submitted, of certifications other than just the Microsoft certifications which were mentioned in the tendering specifications. In that context, the Council cannot be criticised for also having taken account of the formal certifications explicitly mentioned as award criterion in the tendering specifications, namely the Microsoft certifications.

85 Similarly, the applicant incorrectly asserts that, by stating that only the conditions listed in the table set out in section 14 of the tendering specifications could be taken into consideration for the evaluation of the tender, the Council failed to take account of the fact that the tendering specifications provided that the proposed resources would be evaluated on the basis of the information provided in the compliancy matrix and the detailed curricula vitae and that, therefore, it did not examine those curricula vitae. As was stated in paragraph 75 above, the tendering specifications state that the quality of the tenders will be evaluated in respect of the various award criteria in the table set out in section 14, by assessing the degree to which the tenders in question fulfil the technical specifications of the tendering specifications in Annex 1 to the tendering specifications. There is therefore a clear link between the evaluation criteria of the table, on the one hand, and the requirements of the technical specifications — which provide themselves for the evaluation on the basis of the information submitted in the compliancy matrix and the curricula vitae — on the other. It is therefore incorrect to assert that, by announcing that it would take into account only the conditions listed in the table set out in section 14 of the tendering specifications, the Council did not evaluate the tenders on the basis of the information submitted in the compliancy matrix and the curricula vitae.

86 Moreover, the applicant claims that the manner in which the ‘Technician Skills’ criterion set out in the compliancy matrix was evaluated is incomprehensible on the ground that the entry ‘ok’ or ‘compliant’ is used without the consistency between the criteria set out in the compliancy matrix and the content of the curricula vitae being verified.

87 Although the applicant does not identify the paragraphs of the contested decision to which it is referring in its arguments, it appears that its argument concerns the staff for service 5. It must be stated that, as the Council observes, most of the criteria set out in the compliancy matrix in section 4.5.1.4.1 of the technical specifications of the tendering specifications do not call for a particular response. The finding that they are satisfied is sufficient.

88 Accordingly, the applicant has not demonstrated that the Council committed a manifest error of assessment of the tenders in the light of the assessment criterion relating to the qualification of the staff in respect of services 2 and 5.

89 Lastly, the applicant’s argument that a member of the successful tenderer’s staff was incompetent cannot succeed. The applicant claims that that member of staff worked for it when it performed the previous public contract and that he had been dismissed on account of his alleged incompetence. The mere fact that a member of a staff was dismissed by the applicant does not however mean that that person did not satisfy the conditions of the tendering specifications, or even that he was incompetent from an objective point of view. A multitude of subjective factors may play a role in relations between an employer and a member of its staff and may lead to the latter’s dismissal.

90 It follows from all the foregoing that the first complaint, relating to the absence of certification of the staff of the successful tenderer, must be rejected.

The second plea, alleging a manifest error of assessment in relation to the qualifications of the successful tenderer’s staff

91 In the second complaint, the applicant submits that the Council wrongly awarded 4.5 points to the applicant’s tender for the methodology in the operational phase and 4.75 points to that of the successful tenderer in respect of the same criterion. The applicant states that the Council examined the ITIL certification held by the successful tenderer under the award criteria. However, that certification should not have been considered as the only criterion and proof of technical capacity of the staff. The applicant observes that the Council ought to have taken account of the fact that the applicant has ISO 20000 certification and that it has undertaken to ensure that its employees acquire individual ITIL certification. The applicant also expresses serious doubts as to whether the staff ultimately recruited by the successful tenderer were in a position to perform the contract in accordance with the ITIL certification. The Council thus failed to observe the principles of equal treatment and non-discrimination.

93 As a preliminary point, it should be made clear, as the applicant stated, that the complaint that it raises concerns section 13 of the evaluation committee’s report, which concerns the methodology of the operational phase.

94 In that regard, it is apparent from section 5.2 of the technical specifications of the tendering specifications that the tenderer was required to describe in detail the methodology and processes he intended to use during the operational phase. In this respect, he was required to provide details on the following aspects: the program management structure — including contacts, program teams and structure — the management of resources deployed and the continuous training of resources deployed.

95 The reasoning relating to the successful tenderer’s bid in the evaluation committee’s report states that that report noted that, as regards the methodology, the service delivery is based on ITIL best practices, supplemented by the ISO 9002 Quality Management System. That report then went on to state that the tender stated that monthly quality management meetings are organised and that a quarterly steering committee ensures the commitment and reinforces this commitment between the service requestor and the service provider. It then went on to state that there was a detailed focus in the tender on the following ITIL processes: incident management, problem management, release management and financial management.

96 It is clearly apparent from the reasoning of the evaluation committee’s report that, for the methodology, the successful tenderer decided to follow the methods prescribed by the ITIL best practices supplemented by the requirements laid down in the context of the ISO 9002 Quality Management System. The findings of the evaluation committee do not therefore relate to the possession or non-possession of ITIL or ISO 9002 certifications, but to the methodology described by the successful tenderer. The latter chose to refer to the methods prescribed by those ITIL and ISO 9002 frameworks and the evaluation committee’s report expressed its approval of the manner in which the methodology was devised.

97 With respect to the applicant’s tender, the evaluation report states that the methodology is well described and documented, that meetings are planned at regular intervals and that there is a small gap between the long-term coordination meetings and the day-to-day operational communication, which should be filled by a weekly or bi-weekly operational coordination meeting.

98 It must therefore be stated that there is a clear link between the conditions laid down in the tendering specifications and the reasoning of the contested decision, and that the applicant’s tender and that of the successful tenderer were assessed in the light of those conditions.

99 In that context, the applicant’s argument that the Council ought to have taken account of the fact that the applicant has ISO 20000 certification is irrelevant. The Council evaluated the methodology presented by the applicant in its tender. The absence of any express reference to possession by the applicant of ISO 20000 certification does not permit the conclusion that the Council failed to take account of that certification or committed a manifest error of assessment when evaluating the methodology presented by the applicant. Indeed, the Council found in its evaluation report that the applicant’s methodology was well described and documented.

100 The applicant’s argument that the staff ultimately recruited by the successful tenderer to perform the contract were not in a position to do so in accordance with the ITIL best practices is not supported by any evidence and must therefore be rejected.

101 Accordingly, the applicant has failed to demonstrate that, in the assessment of the tenders as regards the methodology of the operational phase, the Council infringed the principles of equal treatment and non-discrimination, or that it committed a manifest error of assessment.

102 Consequently, the second complaint, alleging a manifest error of assessment in relation to the qualifications of the successful tenderer’s staff, must be rejected.

The third complaint, alleging that the mark awarded to the applicant for knowledge transfer was too low

103 The third complaint alleges that the mark of 14.25 out of 15 awarded to the applicant for the award criterion relating to knowledge transfer was too low. In the applicant’s submission, if the Council had awarded it the contract at issue, the staff assigned for the performance of that contract would have been the same as that performing the tasks in the framework of the previous contract; the Council could therefore not really doubt its ability to obtain the maximum mark for that criterion. It points out that the scope of the contract concerned by the present case is not significantly different from the previous contract. It considers that the Council cannot claim that the same people have to employ a method elaborated to transfer knowledge to themselves in order to perform the same tasks when a new contract is concluded.

104 It should be observed that section 5.1 of the technical specifications of the tendering specifications provides, first of all, that, in order to ensure knowledge transfer during the start-up phase, the service provider must be familiar with the products, applications and systems in use at the General Secretariat of the Council, through a series of workshops organised by that secretariat. It then provides that the service provider needs to get into line with the Service Level Agreement which governs the services and fine-tune its resources and processes to comply with that agreement. In that regard, the tendering specifications state that tenders must describe in detail how tenderers intend to attain the abovementioned goals. The description in the tenders must therefore include a transfer plan and a roadmap on the methodology, structure and processes that the tenderers intend to use during the knowledge transfer phase. The tendering specifications provide lastly that particular attention should be given to the effective use of the resources of the General Secretariat of the Council during this phase and that tenderers should identify explicitly specific constraints in their tenders.

105 It is apparent from the contested decision that the applicant and the successful tenderer obtained 14.25 out of 15 and 15 out of 15 respectively in respect of the award criterion relating to knowledge transfer.

106 As regards the successful tenderer’s bid, the evaluation committee’s report states that the successful tenderer proposes a transition team in addition to the resources that would be available for the performance of the normal contract, that that team has experience in introducing new services with customers and that it is composed of a transition director and four team members for a period of three months.

107 As regards the applicant’s tender, the evaluation committee’s report observes that it focusses on continuation of service and that its tender could have covered better the fact that the new call for tenders was more extensive in scope.

108 It is therefore apparent that the successful tenderer’s bid was more precise as to the manner in which knowledge would be efficiently transferred and that the applicant has not put forward any evidence to show that, by awarding it 14.25 out of 15 for the specific evaluation of the transfer plan, the Council committed a manifest error of assessment.

109 In that regard, the applicant’s argument that the Council ought to have awarded it the maximum mark of 15 out of 15 is based solely on its having been the incumbent of the contract to be renewed in the context of the call for tenders which gave rise to the contested decision and that the members of staff who performed the tasks of the previous contract would remain the same for the renewed contract.

110 However, as the Council correctly points out, the evaluation of the tenders in respect of the transfer phase related to objective data set out in the proposed knowledge transfer plan. The applicant may not thus rely on its status as incumbent of the previous contract in order to argue that it would in essence be absurd that the same persons must use a method elaborated to self-transfer knowledge in order to perform identical tasks.

111 In addition, even though it attempts to minimise the importance of the scope of the new call for tenders, the applicant does not contest that that new call for tenders presents changes of approach and methodology in relation to the previous contract (CUE DTI 2003-04) and that certain elements increased the scope of that contract. Those reasons also justify the need to provide a detailed description of the methodology, structure and processes used during the knowledge transfer phase.

112 Accordingly, the third complaint of the plea, alleging that the mark awarded to the applicant for knowledge transfer was too low, must be rejected.

The fourth complaint, alleging a failure to take into account the number of employees proposed by the different tenderers

113 The applicant claims in essence that the Council committed a manifest error of assessment by attaching clearly insufficient importance to the number of persons allocated to carry out the services forming the subject-matter of the contract in order to determine the quality of the tender. The applicant criticises the Council for not having taken into account the number of employees proposed by each tenderer. It points out in that regard that the successful tenderer proposed 2.5 members of staff fewer than it did. Nevertheless, a larger workforce means more availability and more skills in order to tackle the services required. The applicant points out that, in the light of the price which it proposed, the cost per person was lower for a better service and that this should have been taken into account. It states that, in reply to a question it put to the Council, it was confirmed that there was no minimum level of quality scoring below which tenders might be eliminated. It infers from that that a tender which has obtained a low quality scoring could win mathematically because of an aggressive pricing policy, for example, by means of the under-dimensioning of human resources. It also criticises the Council for not having clarified how many people currently carry out the required tasks, which gives an advantage to tenderers having inside information. The applicant is amazed that, unlike the initial evaluation, there is no longer any reference in the evaluation report to the number of profiles proposed in the tenders. The applicant submits that that report contains observations on the proposed profiles that are contradictory or contrary to the tendering specifications.

114 The Council disputes those arguments and contends that the complaint should be rejected.

115 It is apparent from the information in section 14.1 of the tendering specifications that the qualitative evaluation of the tender with respect to the various award criteria is based mainly on the proposed approach and the proposed resources.

116 As regards the proposed approach, the tendering specifications provide that tenderers are requested to describe inter alia the methods, organisation and procedures and tools that they intend to use.

117 With respect to the proposed resources, tenderers are requested to describe the profile of the persons who will perform the contract and to provide a curriculum vitae stating their professional experience.

118 It should also be noted that the tendering specifications do not require a precise number of members of staff who will perform the contract to be specified, with the exception of the specific number of persons mentioned for certain services such as service 5.

119 Accordingly, it was for the different tenderers to assign an appropriate number of persons according to the specifications provided in the tender documents. In that regard, the Council correctly observes that the number of persons allocated by the different tenderers to each service and the total number of persons proposed in the tenders displays a certain consistency, the variation in staffing numbers proposed being limited. That consistency tends to show that the information in the tendering specifications was sufficiently clear and precise regarding the Council’s expectations.

120 Thus, the exact number of persons employed to perform the contract is not as such a quality indicator of tenderers’ proposals. If that number may, admittedly, be a useful indicator from the point of view of a possible under-estimate of the requirements essential for a satisfactory performance of the contract covered by the invitation to tender, such statistical data cannot be considered a decisive guide, since the efficiency of a tenderer’s structural organisation may justify a smaller number of members of staff. As the Council correctly states, the number of persons proposed is taken as the result of tenderers’ estimates and that number is taken into account, not in isolation, but together with the other elements of the tender to evaluate its appropriateness as a whole.

121 In the present case, the evidence presented by the applicant does not permit the inference that the estimate of the successful tenderer with regard to the number of persons was inappropriate or that that tenderer underestimated that number.

122 In that context, the applicant relies, first of all, on a reply to a question it put to the Council, according to which there was no minimum level of quality scoring below which tenders might be eliminated, in order to argue that a tender which has obtained a low quality scoring could win mathematically because of an aggressive pricing policy, for example, by means of the under-dimensioning of human resources. That reasoning is incorrect.

123 First, the rules on public works contracts neither require nor prohibit the contracting authority from providing that tenderers must obtain minimum marks in terms of quality below which tenders are eliminated. It is therefore an option which falls within the discretion of the contracting authority.

124 Second, it is apparent from the evaluation committee’s report that no tenderer submitted a tender which was abnormally low in relation to the other tenders. On the contrary, the financial tenders submitted by the other tenderers were higher than those submitted by the applicant and the successful tenderer. As to the difference from a financial point of view between those last two tenders, it must be stated that it is extremely small, the applicant’s being EUR 153 098.41 and the successful tenderer’s EUR 151 698.97.

125 Next, the applicant’s claims that the Council has not demonstrated which methodology was used in order to evaluate the number of profiles considered as adequate, or more advantageous for the performance of the contract and deliberately omitted to mention the number of profiles in the new evaluation report are irrelevant. As was observed in paragraphs 118 to 120 above, the total number of persons proposed in a tender does not constitute an award criterion.

126 Moreover, the applicant argues unsuccessfully that several additional members of staff were recruited less than two years after the beginning of the performance of the contract, that those staff members were paid on a per head basis and not according to the Service Level Agreement, thus increasing costs by 20% of the initial value of the contract, and that that situation demonstrates that a number of 19.5 members of staff proposed by the successful tenderer was insufficient.

127 The Court would point out that the nature of the contract means that the Council regularly makes extra requests, which the applicant itself moreover acknowledges. In its claim for damages, the applicant relies itself on the need to take account, in the calculation of damages, of the fact that a significant amount of revenues would arise from probable and additional revenues, ‘since the nature of the contract imposes regularly such requests from the Council (e.g. 24 hour service during European Councils, additional resources and services etc.)’. In any event, the applicant has not put forward any argument or submitted any evidence which would permit the conclusion that the addition of supplementary members of staff was not related to the performance of extra requests by the Council.

128 Moreover, the applicant attempts to claim that the evidence adduced by the Council to justify the recruitment of an additional mover in 2011 — namely the increased workload due to the roll out of Windows 7 — is false. The applicant observes that the roll out of Windows 7 began only in 2012 and that the installation of that operating system on the 8 000 computers of the Council was handled by automated procedures without human intervention.

129 However, the Council disputes that the migration process to Windows 7 does not require any human intervention and states on the contrary that it entails the physical replacement of obsolete PCs, the preparation of hardware and software configurations, as well as interventions on the hardware and the software both before and after deployment. The Council specifies also that the Windows 7 upgrade started not in 2012, but in 2009.

130 That assessment by the Council is credible. Accordingly, it is not apparent that the recruitment of an additional mover could be indicative of a manifestly incorrect evaluation of the number of staff necessary to perform the contract.

131 Lastly, contrary to the applicant’s submission, the recruitment of three additional movers for a period of three months by the successful tenderer is justified by the need to carry out periodic inventories. However, the performance of that task of carrying out periodic inventories was not foreseen by the tendering specifications.

132 In the light of the foregoing, the fourth complaint, alleging a failure to take into account the number of employees proposed by the different tenderers, must be rejected.

The fifth complaint, relating to other elements pertaining to the new evaluation report

133 In the fifth complaint, the applicant submits that various omissions and errors were committed.

134 First, the applicant claims that all the references to the headcount proposed by the tenderers which were made in the decision annulled by the General Court were deliberately omitted in order to cover up an error in the calculation of that headcount.

135 Second, the applicant submits that the negative comments on the staff structure proposed in its tender are not justified. That structure differs only marginally from that presented by the successful tenderer. As regards service 1, the roles of service manager and service desk manager were clearly defined. Moreover, the tender specified the manner in which continuity of service would be ensured, for example during lunch breaks.

136 Third, the applicant notes that the general comments in the evaluation report do not mention that the Alfastar-Siemens consortium had a much larger international presence than the successful tenderer.

137 Fourth, the applicant relies on the fact that the call for tender did not require formal certifications and that ‘“equivalent” was deemed enough’. It observes, moreover, that its staff obtained such certifications.

138 Fifth, the applicant submits that the Council erroneously classified as a minor methodological issue the proposal for a phased introduction of the different services in the successful tenderer’s bid.

139 Sixth, the applicant asserts that, with respect to service 6, the O-Team software used by the successful tenderer has no functionality such as managing the availability of additional resources in its organisation, unlike the planning tool proposed by the applicant.

140 It is necessary to examine systematically the six arguments put forward by the applicant.

141 First, the applicant has not adduced any evidence which would permit the inference that the Council erred in the calculation of the headcount. In that regard, it is apparent from the examination of the fourth complaint of the third plea that the estimate of the successful tenderer with regard to the number of persons needed to perform the contract was appropriate and that that tenderer did not therefore underestimate that number.

142 Similarly, it was found in paragraphs 66 and 129 to 131 above that the addition of supplementary members of staff was justified and cannot therefore be regarded as indicative of an alleged insufficient headcount proposed by the successful tenderer.

143 In any event, the applicant’s assertion that the Council omitted all references to the headcount proposed by the tenderers which were made in the previous evaluation decision in order to cover up an error in the calculation of that headcount is irrelevant. The decision annulled by the General Court to which the applicant refers is not the subject-matter of these proceedings.

144 Second, the applicant’s observations on the comments relating to the staff structure proposed in its tender do not demonstrate that the Council’s assessment is manifestly incorrect. The applicant acknowledges itself that there is a difference between its tender and that of the successful tenderer, even though it describes it as ‘marginal’.

145 Third, the matter of the applicant’s international presence is irrelevant given that that information was not submitted to the Council by the applicant in its tender and that, as the Council correctly points out, it cannot be criticised for not taking into account external information, or information that was not present at the time of the evaluation. Moreover, it should be noted that the successful tenderer’s international presence does not appear in the main evaluation table and was not therefore taken into account as an award criterion (see paragraph 163 below).

146 Fourth, the argument relating to the formal certifications cannot succeed. In the exercise of its broad discretion, the Council did not commit any manifest error of assessment in finding in essence that the tenderer possessing formal certifications deserved a higher mark than the tenderer which had committed to obtaining them.

147 Fifth, it is necessary to reject the applicant’s argument based on the alleged serious methodological error made by the successful tenderer for having proposed the phased introduction of the different services. The applicant wrongly inferred from the fact that the successful tenderer had proposed the phased introduction of the different services that it proposed to perform the contract in phases and that it was not therefore offering the full service from day 1 of the performance of the contract. As the evaluation report indicates, for the successful tenderer, that phased introduction of the different services relates only to the start-up phase provided for in the call for tenders and not the operational phase. Accordingly, the contracting authority was entitled to take the view, without committing a manifest error of assessment, that that proposal was only a minor methodological issue and that it would probably be necessary to compress the different phases of the start-up period due to time constraints.

148 Sixth, the successful tenderer presented the O-Team software as serving to manage the provision of manpower in response to ad hoc requests. It stated that that software allows the administration and the service delivery manager to follow the life cycle of a specific contract from a central location. It added that the O-Team software made it possible to coordinate centrally the information pertaining to the number of days an individual has worked on a specific contract and any time off due to training leave or sickness. That tenderer concluded that the software enabled it to coordinate information.

149 Thus, by stating in the contested decision that the O-Team software manages the availability of available resources, the Council did not commit any manifest error of assessment.

150 It follows that the fifth complaint, alleging omissions and errors in the new evaluation report, must be rejected.

151 In the light of all the foregoing, the third plea, alleging manifest errors of assessment, must be rejected.

The fourth plea, alleging confusion between the selection and award criteria and between the phases of the call for tenders procedure

152 In the fourth plea, the applicant submits that the Council confused the selection and award criteria and the phases of the call for tenders procedure. Two complaints are put forward in support of this plea. First, it claims that two of the main factors concerning the successful tenderer, which were taken into account by the Council at the award stage of the contract, were its experience and international presence. The applicant states that those criteria concern tenderers’ ability to perform the contract, that they could be taken into account only under selection criteria and that they did not therefore have the status of award criteria. In that context, the applicant submits in the alternative that the Council infringed the principle of equal treatment by not taking account of its international presence.

153 Second, the applicant submits that, as regards security clearance, the Council evaluated the certification of the applicant’s staff within the award phase, although that is a selection criterion a priori, and that the Council attempts to dissimulate this situation by new wording in the contested decision.

154 It is clear from the case-law that a distinction must be drawn between selection criteria and award criteria. Indeed, the examination of the tenderers’ capacity to perform the contract and the award of the contract are two distinct procedures and are governed by different rules. The tenderers’ capacity to perform the contract is to be checked by the authority awarding the contract in accordance with the selection criteria, that is to say, the criteria of economic, financial, technical and professional capacity referred to in Articles 136 and 137 of the Implementing Rules. By contrast, the award of the contract is based on the criteria set out in Article 97(2) of the Financial Regulation, namely the lowest price when the contract is awarded by the automatic award procedure, or the tender offering the best value for money, pursuant to Article 138(2) of the Implementing Rules (judgment of 8 December 2011 in Case T‑39/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 18; see also, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 15, 16 and 18, and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraphs 26 and 28). Under the latter provision, the tender offering the best value for money is the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance (judgment of 8 December 2011 in Evropaïki Dynamiki v Commission, cited above, paragraph 20).

155 However, although, as is shown by the use of the expression ‘such as’, Article 138(2) of the Implementing Rules does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities in the award phase and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria aimed at identifying the tender offering the best value for money (judgment of 8 December 2011 in Evropaïki Dynamiki v Commission, paragraph 154 above, paragraph 21; see also, by analogy, Beentjes, paragraph 154 above, paragraph 19, and Lianakis and Others, paragraph 154 above, paragraph 29).

156 Therefore, award criteria cannot include criteria that are not aimed at identifying the tender offering the best value for money, but are instead essentially linked to the evaluation of the tenderers’ technical and professional capacity to perform the contract in question (judgment of 8 December 2011 in Evropaïki Dynamiki v Commission, paragraph 154 above, paragraph 22; see also, by analogy, Lianakis and Others, paragraph 154 above, paragraph 30, and Case C‑199/07 Commission v Greece [2009] ECR I‑10669, paragraph 55).

157 In particular, a criterion based on the tenderers’ experience concerns the tenderers’ ability to perform a contract and therefore does not constitute an award criterion for the purposes of Article 138 of the Implementing Rules (judgment of 8 December 2011 in Evropaïki Dynamiki v Commission, paragraph 154 above, paragraph 23; see also, by analogy, Lianakis and Others, paragraph 154 above, paragraph 31, and Commission v Greece, paragraph 156 above, paragraph 56).

158 Moreover, where a contract is awarded on the basis of the tender offering the best value for money, the quality of the tenders must be evaluated on the basis of the tenders themselves and not on the basis of selection criteria, such as the technical or professional capacity of the tenderers, which were checked at the selection stage and which cannot be taken into account again for the purpose of comparing the tenders (Esedra v Commission, paragraph 71 above, paragraph 158; TQ3 Travel Solutions Belgium v Commission, paragraph 35 above, paragraph 86, and judgment of 8 December 2011 in Evropaïki Dynamiki v Commission, paragraph 154 above, paragraph 24).

159 On the other hand, a criterion based on the professional experience of the members of a team which a tenderer proposes for performance of a contract may, in certain situations, constitute an award criterion within the meaning of Article 138 of the Implementing Rules. First of all, it should be recalled that the award criteria are not necessarily all required to be quantitative (Case T‑461/08 Evropaïki Dynamiki v EIB [2011] ECR II‑6367, paragraph 147). Also, in a case where both a framework contract relates to services of a highly technical nature and the precise subject-matter of the services to be provided must be determined progressively as performance of that contract proceeds, the technical skills and professional experience of the members of the team proposed are liable to have an impact upon the quality of the services rendered under the contract. In such a situation, the technical skills and professional experience may therefore determine the technical value of a bidder’s tender and, consequently, its economic value (judgment of 17 October 2012 in Case T‑447/10 Evropaïki Dynamiki v Court of Justice, not published in the ECR, paragraph 42).

160 It is in the light of that case-law that the two complaints of the fourth plea must be considered.

161 As regards the first complaint, it should be noted at the outset that the applicant specified that it was basing its line of argument on the comment of the evaluation committee relating to the experience and international presence of the successful tenderer and not on that experience and presence of that tenderer’s staff, formal note of which was taken in the minutes of the hearing.

162 It should be noted that the contested decision contains a box entitled ‘General Comments [name of the successful tenderer]’ in which the following comments were written: ‘Very clear dossier, well prepared, with an utmost professional look. Clearly focused on meeting the needs of the GSC, and not general descriptions. Important: they also bring a lot of knowledge from their experience. International presence in’. It should be pointed out that that box containing the general comments is located below the table which lists the technical award criteria, the reasoning relating to the successful tenderer’s bid in respect of each of those criteria, the marks awarded to the tender in respect of each of those criteria and the total score obtained for the tender. That box is therefore clearly separate from that table.

163 It must be stated that the international presence of the successful tenderer did not give rise to the award of points under the award criteria. In that regard, it should be noted that the only reference to the successful tenderer as an ‘international organisation’ is mentioned in the description of service 1. The evaluation committee merely stated that the successful tenderer’s proposal not only describes the structure of the project, but also how the different aspects of the proposal integrate with each other and with the successful tenderer itself as an ‘international organisation’. It is not therefore the international presence of the successful tenderer which was taken into account, but the way in which the aspects of the project integrated with the successful tenderer.

164 As regards the experience of the successful tenderer, it did not give rise to the award of points under the award criteria either. The experience to which reference is made in services 2, 4 and 5 in the evaluation table is that of the team leader and the staff of the successful tenderer. However, as was stated in paragraph 161 above, the applicant does not base its line of argument on the staff’s experience. In addition, in view of the case-law cited in paragraph 159 above, the Council cannot be criticised for taking account of the experience of the team leader and the members of staff also under the award criteria.

165 With respect to the second complaint, it should be observed that the contract notice provides that tenderers must fulfil selection criteria. The contract notice requires inter alia that the tenderer and its staff must have security clearance although, for staff, that clearance may be replaced by a ‘letter of intent to take the necessary steps to fulfil the security clearance’.

166 It must be stated that the committee’s report relating to the evaluation of the applicant’s tender in respect of the award criteria for services 2 and 4 refers to clearance and that it is not contested by the Council that the clearance is in fact NATO (North Atlantic Treaty Organisation) clearance which the applicant mentions in its complaint.

167 That does not however mean that the Council took account of NATO security clearance for staff as an award criterion. As the Council points out, the reference to clearance in the evaluation report is solely intended to point out that the applicant already had that clearance. That becomes more understandable given that the tendering specifications foresaw the possibility of a tenderer’s confining itself initially to a letter of intent to take the necessary steps to fulfil the security clearance. In that context, the Council found that, in the applicant’s case, it was already in possession of the clearance required.

168 For that reason, the assertion that, by adding in the contested decision the words ‘For information’ in respect of service 4 which were not present in the decision annulled by the Court, the Council attempted to dissimulate the fact that the selection criterion was taken into account within the award phase is irrelevant.

169 In the light of the foregoing, the fourth plea, alleging confusion between the selection and award criteria and between the phases of the call for tenders procedure, must be rejected.

The fifth plea, alleging the existence of numerous inconsistencies and inaccuracies in the call for tenders

170 In the fifth plea, the applicant maintains that the Council infringed the obligation laid down in the case-law to define the subject-matter of the contract clearly and unambiguously in the call for tenders, relying in that regard on its experience as the service provider responsible for performing the previous contract.

171 First of all, it points out that the workload that the staff of the Council would continue to undertake is a key parameter for the evaluation of the effort required from the tenderers. In that regard, it criticises the Council for not having provided any information regarding the number of Council employees who would continue to carry out service tasks together with the successful tenderer, and for having mentioned inaccurate statistics. It points out that, during the previous contract, 15 employees of the Council assumed an active role by carrying out tasks connected inter alia with minor technical problems (mouse problems, keyboard problems etc.). In that regard, it states that the data provided in the documents entitled ‘Incident Maintenance Volume’ and ‘Installation Volume’ annexed to the tendering specifications are inconsistent with the statistics which the applicant supplied to the Council. In particular, it observes a major discrepancy between its own statistics and those of the ‘Support’ line of the annex relating to the ‘Incident Maintenance Volume’. It points out that, in response to a question concerning the significance of the ‘Support’ line, the Council stated that it covered all support calls not related to a hardware maintenance problem concerning PCs, screens or printers (for example, mouse problems, keyboard problems, on-site software problems, etc.). However, according to the applicant, the latter tasks which would be entrusted to the contractor have up to now been carried out by the 15 employees of the Council and the Council had given no indication whether its employees would continue to carry out those tasks entirely or partially. The applicant then states that software and hardware installations that are currently done by the service 2 (second level support) team are shown in statistics under the workload of service 4 (installation & configuration support). It maintains that the work carried out by its installation and configuration team (which should fall under service 4) does not appear in the statistics of the call for tenders. It points out, finally, that the Council has admitted assigning 2.5 people to perform work that the successful tenderer should be doing.

172 Secondly, the applicant points out that the tendering specifications state that service 4 includes replacement of all consumables which are not considered as user replaceable, an indicative list of which can be found in Annex B to the technical specifications of the tendering specifications, entitled ‘List of Consumables’. However, the tendering specifications (except Annex B) do not contain any detailed description of service 4 or any information relating to the replacement of consumables.

173 It should be noted that, under Article 97(1) of the Financial Regulation, the contracting authority is required to define the selection criteria and the award criteria in advance and to set them out in the tender documentation. That obligation, which consists in ensuring an appropriate level of publicity for the criteria and the conditions governing each contract, is set out in more detail in Articles 135 to 137 of the Implementing Rules as regards the selection criteria and in Article 138 of the Implementing Rules as regards the award criteria. Those provisions are intended to ensure compliance with the principles of equal treatment and transparency, as stated in Article 89 of the Financial Regulation, at all stages of the procedure for the award of public contracts, in particular the stage of selection of the tenderers and that of selection of tenders for the award of the contract (judgment of 15 October 2013 in Case T‑474/10 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 100 and 101; see also, to that effect and by analogy, Beentjes, paragraph 154 above, paragraphs 21 and 22, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92).

174 The purpose of those provisions is simply to allow all reasonably well informed and normally diligent tenderers to interpret both the selection criteria and the award criteria in the same way (see, to that effect and by analogy, Case C‑19/00 SIAC Construction [2001] ECR I‑7725, paragraph 42) and, consequently, to have equality of opportunity in formulating the terms of their applications to participate or of their tenders (judgment of 15 October 2013 in Evropaïki Dynamiki v Commission, paragraph 173 above, paragraph 102; see also, to that effect, Case C‑87/94 Commission v Belgium [1996] ECR I‑2043, paragraph 54).

175 It is necessary to examine, in the light of the foregoing, the plea alleging the existence of numerous inconsistencies and inaccuracies in the call for tenders.

176 In the first place, the complaint raised by the applicant appears, in essence, that it must be understood as meaning that it sent to the Council the statistical data of the interventions that it carried out when it performed the previous contract. Those data were allegedly erroneously transcribed in the table set out in Annex H to the technical specifications of the tendering specifications, entitled ‘Installation Volume’, and in the table of Annex F to those technical specifications, entitled ‘Incident Management Volume’. In particular, the statistical data mentioned in Annex F under the line ‘Support’ contradict the statistical data that it provided. Those data under the line ‘Support’ indicate the number of interventions carried out until then by fifteen Council employees. However, the Council failed to inform the tenderers whether Council employees would continue to perform entirely or partly those tasks.

177 First, with respect to the absence of any reference to the Council’s staff, it should be pointed out that section 2.3 of the technical specifications of the tendering specifications indicates sufficiently precisely how the contract fits in the global ‘user support unit’ of the Council. The content of the public contract, namely the different services to be provided, is indicated clearly in section 3 of those technical specifications. Annex B to those technical specifications contains a list of consumables which were to be provided. Annexes C, F and H to those technical specifications contain precise statistical data to allow tenderers to prepare their tender. It is apparent from the tendering specifications that the service provider was requested to provide services planned on the basis of a given volume of tasks to be performed, which were described in detail in the tender documents. As the Council notes, the service did not relate to the hiring of staff. It follows that the Council cannot be criticised for not having provided any detailed information on the organisation of staff or the number of officials that would be assigned to contribute to the performance of the requested service.

178 Second, as regards the alleged inconsistency between the statistical data that the applicant provided the Council and the data of the tendering specifications of restricted call for tenders UCA 218/07, it should be observed, first of all, that the applicant made no reference to any document containing statistical data compiled during the performance of the previous contract in respect of which it was the incumbent contractor. The Court is not therefore in a position to verify whether the applicant’s assertion is correct.

179 Next, it must be recalled that the subject-matter of the contract is not identical to that of the contract that the applicant performed. It does not therefore appear abnormal that, on the assumption that that inconsistency is established, the statistical data mentioned in the tendering specifications show differences from those provided by the applicant.

180 Moreover, the Council observes, without being challenged in that regard by the applicant, that the alleged contradiction stems solely from a different presentation of the relevant statistics set out in the call for tender documents. The Council states that, on the basis of the ITIL methodology which it followed for the call for tenders, installations had to be included in service 4 and that, accordingly, the statistical data fell under the workload of service 4 and no longer under service 2, as had been the case under the previous public contract. In other words, Annex F to the technical specifications of the tendering specifications concerned the statistical data on incident management in terms of ITIL methodology and Annex H to those technical specifications presented the statistical data on installation volumes, that is to say change and version management in terms of that ITIL methodology. The applicant refers to statistical data by category of staff — that is to say the staff of the contractor and that of the Council, who are tasked with second line support, on the one hand, and the staff assigned to installation and configuration support, on the other — whereas the statistical data set out in Annexes F and H mention the volumes of tasks carried out. The applicant has not therefore demonstrated that the information contained in the call for tenders was incorrect.

181 In addition, the applicant’s assertion that the work carried out by its installation and configuration team, which should have fallen under service 4, does not appear in the statistics of the call for tenders is imprecise and unsupported by any document containing statistical data in that regard.

182 Similarly, the applicant is wrong to rely on Evropaïki Dynamiki v EIB (paragraph 159 above) in order to submit that the Council failed to give the tenderers any precise figures. In the present case, as the Council points out, the tendering specifications contained extensive statistics and quantitative data allowing the tenderers to assess the number of staff required in order to ensure the service level desired.

183 Lastly, the applicant relies unsuccessfully on the fact that the Council stated that 2.5 officials were assigned to the tasks that the successful tenderer was to carry out. For the reasons set out in paragraphs 176 to 181 above, the Council was not required to provide any detailed information on the organisation of staff or the number of officials that would be assigned to contribute to the performance of the requested service.

184 In the second place, the argument that the tendering specifications, except Annex B to the technical specifications of the tendering specifications, do not contain any detailed description of service 4 or any information relating to the replacement of consumables must be rejected.

185 As the Council points out, the data relating to consumables appear in the tendering specifications, in section 4.2.1.7(1)(j) and section 4.4.1.3(3)(b)(iv) of the technical specifications and in Annex B to those technical specifications.

186 In the context of the replies to the questions put by the applicant pursuant to Article 141 of the Implementing Rules, the Council confirmed that the successful tenderer was only responsible for stock management and installation of the items indicated in Annex B to the technical specifications of the tendering specifications.

187 Moreover, the assessment of needs may only be made by the contracting authority.

188 It follows from the foregoing that the fifth plea, alleging the existence of numerous inconsistencies and inaccuracies in the call for tenders, must be rejected.

The sixth plea, alleging failure to comply with Article 100(2) of the Financial Regulation

189 The applicant submits that the Council infringed Article 100(2) of the Financial Regulation and puts forward, in essence, two complaints in support of the sixth plea.

190 In the first complaint, the applicant states first that no reference is made to verification of the selection criteria in the exchanges of correspondence between it and the Council. The applicant observes that the evaluation committee’s report relating to the evaluation of its tender in respect of the award criteria for service 2 and service 3 makes two references to staff security clearance, which did not happen in the case of the successful tenderer, and that it may be inferred from this that the latter did not have clearance. According to the pre-information notice published in the Official Journal on 19 August 2006, interested tenderers were invited to take the necessary measures in order to obtain security clearance for their company and their staff. NATO security clearance is required for entry to European Union buildings, the Cortenbergh building at all times and, as is apparent from a press release relating to a European Council in December 2006, the Justus Lipsius building during European Councils.

191 Second, the applicant claims that the obligation to state the reasons on which the award decision was based was infringed in the absence of any reference to the examination and verification of selection criteria.

192 In the second complaint, the applicant submits that the Council committed a manifest error of assessment by considering that a company without security clearance for the majority of the staff proposed could be allowed to take part in the ‘tendering procedure’ and to rank first under the selection and award criteria. In that context, the applicant expresses serious doubts regarding the accuracy of the Council’s statement that the successful tenderer had presented the security clearances of its staff after the publication of the contract notice together with its request to participate in the restricted call for tenders. It states that, at the request to participate stage, no individual curricula vitae had been requested by the Council and the specifications of the call for tender were unknown, so that it was therefore impossible that the people assigned by the successful tenderer to perform the contract at the beginning of April 2009 had already been proposed by the successful tenderer in June 2008.

193 As a preliminary point, it must be borne in mind that, according to Article 100(2) of the Financial Regulation, the contracting authority is required to notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and to notify 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 has been awarded.

194 Moreover, according to the case-law, a key part of the public procurement procedure is to verify that the selection criteria have been met. Consequently, it is necessary to check whether the contracting authority has indeed verified whether the tenders submitted by the tenderers contain that proof. In that context, it is not necessary that the contracting authority send to the Court the documents actually submitted by the successful tenderer, but only the document emanating from the contracting authority and certifying that it has indeed duly received and checked the documents in question (judgment of 15 September 2011 in Case T‑407/07 CMB and Christof v Commission, not published in the ECR, paragraph 136).

195 It should also be recalled that the contract notice required NATO security clearance for the company and the staff but that, for the staff, it could be replaced by a ‘letter of intent to take the necessary steps to fulfil the security clearance…’. The applicant does not challenge the fact that the successful tenderer had security clearance. The applicant confirmed that the line of argument relates only to the security clearance of that tenderer’s staff, formal note of which was taken in the minutes of the hearing.

196 As regards the first complaint, it is necessary to examine, first, the argument that no reference is made as to verification of the selection criteria in the exchanges of correspondence between the applicant and the Council. However, it is apparent from a letter of 8 August 2008 from the Council to the Alfastar-Siemens consortium that ‘[t]he Committee, specially designated to supervise the proceedings of the call for tenders, has carefully examined the [applicant’s file] and has selected [its] application in respect of the abovementioned call for tenders’. As was noted in paragraph 20 above, the Council lodged a copy of the letter of the same day that it sent to the successful tenderer, indicating that it fulfilled the selection criteria. It must therefore be held that the abovementioned letters of the Council state expressly that the application of the Alfastar-Siemens consortium and that of the successful tenderer were the subject of careful examination at the end of which the addressees were selected as candidates for the award of the contract.

197 Thus, in accordance with the case-law cited in paragraph 194 above, it must be acknowledged that the Council’s letter demonstrates that it had indeed duly received and checked the documents aimed at showing that the tenderers concerned fulfilled the selection criteria and, in particular, the letter of intent of the successful tenderer to take the necessary steps to fulfil the security clearance.

198 In that context, the applicant claims that it may be inferred from the contested decision that the successful tenderer did not have clearance for its staff, whereas the pre-information notice had invited interested tenderers to take the necessary measures in order to obtain security clearance for their staff. Those arguments cannot be accepted.

199 The reference to the pre-information notice is irrelevant, since it is the contract notice which defines the selection and award criteria. It is apparent from the contract notice that the tenderers were not bound to propose at any stage of the tendering procedure staff already cleared in order to fulfil the selection criteria and award criteria defined by the tendering specifications. As mentioned in paragraph 195 above, the contract notice stated that security clearance for the staff could be replaced by a letter of intent to take the necessary steps to fulfil such clearance.

200 The fact that, in the contested decision, the Council mentioned the security clearance of the applicant’s staff and mentioned nothing as regards the successful tenderer’s staff in no way implies that the successful tenderer had not fulfilled the selection criterion consisting of the submission of a letter of intent to take the necessary steps to fulfil the staff security clearance.

201 It is necessary to examine, second, the argument alleging infringement of the obligation to state reasons regarding the selection criteria, which argument must be rejected. As was mentioned in paragraph 196 above, the letter of 8 August 2008 states that the committee supervising the proceedings of the call for tenders carefully examined the tenderers’ files. It is apparent in essence from those reasons that the Council verified whether the tenderers fulfilled the selection criteria, including that of submitting the staff security clearance or a letter of intent to take the necessary steps to fulfil the staff security clearance. The Council was not therefore required to state once again, in the contested decision, that the files of the various tenderers had been checked so as to determine whether they fulfilled the selection criteria.

202 In the second complaint, the applicant essentially challenges the selection criterion consisting of the letter of intent to take the necessary steps to fulfil the staff security clearance and claims that staff security clearance should have been a prerequisite during the selection stage.

203 As was noted in paragraph 71 above, the Council enjoys a 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 review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (ADT Projekt v Commission, paragraph 71 above, paragraph 147, and judgment of 24 April 2012 in Case T‑554/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 37).

204 The contracting authorities are granted such a broad margin of assessment throughout the tendering procedure, including in relation to the choice and evaluation of the selection criteria (ADT Projekt v Commission, paragraph 71 above, paragraph 147, and judgment of 24 April 2012 in Evropaïki Dynamiki v Commission, paragraph 203 above, paragraph 38).

205 In the present case, the applicant has not demonstrated why the actual obtaining of staff security clearance should have been a prerequisite for the selection of candidates and, therefore, why the Council committed a manifest error of assessment in considering that the submission of a letter of intent to take the necessary steps to fulfil the staff security clearance was sufficient.

206 It is common ground between the parties that the process of obtaining staff security clearance may take a long time. In view of this, the Council did not exceed its broad discretion by favouring, as a selection criterion, the submission of a letter of intent to take the necessary steps to fulfil the staff security clearance over the submission of the security clearance itself.

207 In that context, it is necessary to examine the argument that staff security clearance is decisive in the evaluation of the tenders. The applicant maintains that entry at all times to the Cortenbergh building and during European Councils to the Justus Lipsius building requires security clearance and thus staff without such clearance cannot perform the tasks envisaged in the call for tenders. It submits also that, at the time of the evaluation of tenders, the majority of the staff included in the successful tenderer’s bid did not have such security clearance and that, since it takes from 6 months to one year to obtain security clearance, the successful tenderer would not have been able to perform its duties related to the public contract during this period.

208 First of all, it should be noted that, according to the Council, staff security clearance is a requirement for staff who have access to premises in which classified information is dealt with and is therefore granted on the basis of the assessment of the risk of that information’s being leaked or jeopardised. The Council states also that that classified information represents only a very small part of the volume of information handled in its premises and that, accordingly, the security vetting required for the functioning of the few services handling such information is far from necessary for the mainstream activities across its buildings. It must be stated that the applicant does not put forward any argument calling those considerations into question and thus demonstrating that the Council committed a manifest error of assessment by merely requesting the letter of intent to take the necessary steps to fulfil the staff security clearance, rather than requiring possession of that clearance at the tender stage.

209 Next, the applicant’s argument alleging that it is necessary to have staff security clearance to carry out duties during European Council summits in the Justus-Lipsius building and at all times in the Cortenbergh building cannot succeed. As regards the premises in which the activities of the European Council are held, the Council states that the applicant confuses the accreditation procedure — which makes it possible to obtain accreditation on the basis of a security risk assessment other than the risk of the leaking of classified information — with the security vetting procedure. It must be stated that the applicant has not put forward any observations aimed at contradicting the Council regarding the existence of such confusion.

210 Lastly, the applicant’s assertion that it is not possible to perform the market in the absence of staff clearance is not correct since, as the Council points out, the applicable security regulations make it possible for it to grant temporary security clearance.

211 In the light of those elements and given that the Council is best placed to determine its own security needs, it is not apparent that it committed a manifest error of assessment in finding that compliance with the condition of possession of security clearance for the staff may be assessed only at operational level, namely once a contract is actually in place.

212 It follows from all the foregoing that, prior to the award of the contract, the Council was not required to ascertain of its own motion whether the respective staff of the tenderers had security clearance. The Council was perfectly entitled to take the view that the selection criterion concerned was fulfilled by the mere submission of the letter of intent to take the necessary steps to fulfil the staff security clearance. With respect to the successful tenderer, it is apparent from paragraph 201 above that the Council carried out such verification.

213 It follows that the sixth plea, alleging failure to comply with Article 100(2) of the Financial Regulation, must be rejected.

214 Since none of the pleas for annulment submitted by the applicant is well founded, this action must be dismissed in so far as it seeks the annulment of the contested decision.

215 The applicant has brought a claim for damages on the basis of Articles 256 TFEU, 268 TFEU and 340 TFEU. In its view, the various infringements and manifest errors relied on constitute, in themselves, infringements of EU law, on which it may found its claim for damages. As regards, in particular, the manifest errors of assessment, it presents a table containing scores for its tender and that of the successful tenderer in the event that those errors had not been made.

216 The applicant submits that there is a causal link between the infringement concerned and the damage. The causal link arises from the contested decision’s preventing the applicant from being awarded the contract and from entering into the framework contract with the Council as first successful tenderer. It submits that the contracting authority cannot arbitrarily declare that it does not wish to award the contract to a specific contractor which is successful under the tendering procedure. In its view, the selection of another tenderer based on other criteria should occur under exceptional circumstances and specific justification should be provided for this. It submits that the existence of a causal link cannot be denied on the alleged ground that tenderers are not entitled to expect the contract to be awarded to them.

217 The applicant submits that, having obtained a quality/price ratio slightly lower than that of the successful tenderer, it lost at least the opportunity to obtain the contract.

218 The applicant seeks damages for loss of opportunity, the impact on its reputation and breach of the principle of the protection of legitimate expectations.

219 As regards the calculation of the damage, it requests that the Council be ordered to pay it compensation in the amount of EUR 2 937 902 in respect of the estimated gross profit it could have earned from the contract.

221 In accordance with settled case-law, for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4119, paragraphs 19 and 81; judgment of 9 September 2010 in Case T‑387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 168, and of 22 May 2012 in Case T‑17/09 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 122).

222 It is therefore necessary to consider whether those conditions are satisfied.

223 In the present case, all the arguments the applicant put forward in order to demonstrate the unlawfulness of the contested decision have been examined and rejected.

224 It is clear from the conclusions reached in relation to the application for annulment that the applicant has failed to prove unlawful conduct on the part of the Council.

226 In the light of all the foregoing, the action must be dismissed in its entirety.

227 The applicant requests that, even if the Court should dismiss the action, the Council should be ordered to pay the costs, on the basis of the second subparagraph of Article 87(3) of the Rules of Procedure of the General Court. It claims that the flawed evaluation of its tender, the failure to state the reasons for that evaluation, the Council’s refusal to respond to its requests for reasons and associated observations, and the refusal to address its arguments identifying manifest errors in the evaluation of the documents that it submitted forced it to bring the present action. The Council should therefore be ordered to pay all the costs of these proceedings.

229 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 first subparagraph of Article 87(3) of those rules, the Court may, particularly where the circumstances are exceptional, order that the costs be shared.

230 In the present case, it was found that all of the pleas must be rejected as unfounded. Moreover, the circumstances on which the applicant relies and which are set out in paragraph 227 above do not constitute exceptional circumstances within the meaning of the first subparagraph of Article 87(3) of the Rules of Procedure, by reason of which the Court should depart from the rule in Article 87(2) of those rules.

231 Consequently, since the applicant has been unsuccessful in all of its claims, it must be ordered to pay the costs, in accordance with the form of order sought by the Council.

The second complaint, alleging infringement of the tendering specifications as a result of the use of movers to perform technical assistance tasks

The first complaint, relating to the absence of certification of the staff of the successful tenderer

The second plea, alleging a manifest error of assessment in relation to the qualifications of the successful tenderer’s staff

The third complaint, alleging that the mark awarded to the applicant for knowledge transfer was too low

The fourth complaint, alleging a failure to take into account the number of employees proposed by the different tenderers

The fifth complaint, relating to other elements pertaining to the new evaluation report

The fourth plea, alleging confusion between the selection and award criteria and between the phases of the call for tenders procedure

The fifth plea, alleging the existence of numerous inconsistencies and inaccuracies in the call for tenders

The sixth plea, alleging failure to comply with Article 100(2) of the Financial Regulation

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Alfastar Benelux v Council (Judgment) [2014] EUECJ T-394/12 (25 November 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/T39412.html Cite as: EU:T:2014:992, [2014] EUECJ T-394/12, ECLI:EU:T:2014:992

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