(Public service contracts Community tendering procedure Provision of computer services relating to telematic systems to control the movement of products subject to excise duty Rejection of a tenderer's bid Action for annulment Consortium of tenderers Admissibility Principles of equal treatment of tenderers and transparency Award criteria Principles of sound administration and diligence Obligation to state the reasons on which the decision is based Manifest error of assessment)
- The award of service contracts of the Commission of the European Communities is subject to the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the financial regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1, 'the financial regulation') and the provisions of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the financial regulation (OJ 2002 L 357, p. 1; 'the implementing rules'), in the versions applicable to the facts of the case.
Background to the dispute
I Computerising the movement and surveillance of excisable products (EMCS)
- On 16 June 2003, the European Parliament and the Council of the European Union adopted Decision No 1152/2003/EC on computerising the movement and surveillance of excisable products (OJ 2003 L 162, p. 5), in which they stated that it was necessary to have a computerised system for monitoring the movement of excisable goods (EMCS), such as would allow Member States to obtain real-time information on those movements and to carry out the requisite checks (recital 3 of Decision No 1152/2003).
- Article 1 of Decision No 1152/2003 thus provides for the establishment of the EMCS.
- Furthermore, Article 3(2) of Decision No 1152/2003 provides:
'The Commission shall ensure that in work on the Community components of the computerised system every attention is paid to re-using as much of the NCTS [new computerised transit system] as possible and ensuring that the computerised system is compatible with, and, if technically possible, integrated into, the NCTS with the objective of creating an integrated computer system for the surveillance both of intra-Community movements of excisable goods and of movements of excisable goods and goods subject to other duties and charges coming from or going to third countries.'
- The file shows that the EMCS was to be introduced in four stages between 2002 and 2009 (stage 0 in parallel to stages 1, 2 and 3).
- Stage 0 was to be an intermediary phase prior to the actual setting up of the EMCS. During that stage, the existing computer systems used in the excise duty sector were to be kept in place and supported up until the moment of their integration into the EMCS at a time when the latter had become operational. Stage 0 was to take place in parallel to the other stages of the EMCS and to end once the EMCS started working. The tasks during stage 0 were to be carried out by the contractor for the public contract Fiscalis Information Technology Systems, specification, development, maintenance and support (FITS'DEV).
- Stage 1 was to comprise the setting up of the EMCS and the definition of its specifications. Those specifications were to be produced by the contractor for public contract EMCS System Specifications (ESS) ('the ESS contract'). The work of that contractor was to be finished by the middle of 2005.
- Finally, stages 2 and 3 were to be development and implementation stages and were to be linked to the activities of the contractor for the public contract called 'Specification, development, maintenance and support of telematic systems to control the movement of products subject to excise duty within the European Community under the excise-duty suspension arrangements (EMCS'DEV)-(TAXUD/2004/AO-004)' ('the contract at issue').
II Award of the contract at issue
- By a contract notice of 20 July 2004, published in the Supplement to the Official Journal of the European Union (OJ 2004, S 139), the Commission's Directorate-General for Taxation and Customs Union ('Taxation and Customs Union DG' or 'the contracting authority') issued an open call for tenders for the contract at issue. The contract was to be awarded to the most economically advantageous tender, that is to say the one presenting the best price-quality ratio. The time-limit for receipt of tenders was 31 August 2004.
- Point 10 of the specifications annexed to the invitation to tender defines the criteria for the award of the contract as follows:
'10. Award criteria
The contract will be awarded based on the economically most advantageous tender. The following criteria will be taken into account when assessing tenders:
(1) Quality of the proposed solution:
1. Fitness of the proposed strategy to perform the tasks of the contract (40/100)
2. Fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks (30/100)
3. Fitness of the proposed team organisation to perform the tasks (20/100)
4. Structure, clarity and level of completeness of the proposal (10/100)
The price component will be further evaluated for the tenders which have reached a global quality score of 60% across all the quality criteria and minimal scores (50%) for each of the quality criteria.
(2) Price
The offer presenting the best value for money will be identified in the following way:
The offer with the best technical score will receive a quality indicator of 100 points. The remaining offers will receive lower quality indicators in proportion to their technical scores;
the offer found to be the cheapest will receive a price indicator of 100 points. The remaining offers will receive higher price indicators in proportion to their prices.
A quality/price ratio will be calculated for each offer by dividing the quality indicator by the price indicator. The highest result will go to the offer presenting the best value for money.'
- By fax of 27 August 2004, the applicant, Evropaïki Dynamiki Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, a company incorporated under Greek law active in the area of information and communications technology, expressed reservations regarding the procedure for the award of the contract at issue, based on a potential lack of objectivity of the call for tenders to the advantage of tenderers which had already been suppliers to the Taxation and Customs Union DG, a lack of clear specifications in the call for tenders and a lack of precise and objective criteria for the evaluation of tenderers. By the same fax, it also asked the contracting authority to extend the deadline for the submission of tenders until it had remedied the abovementioned problems.
- On 31 August 2004, the applicant in consortium with the French company Steria SA submitted its tender ('the Evropaïki Dynamiki-Steria consortium's tender').
- By letter of 3 September 2004, the contracting authority expressed the opinion that the reservations in the applicant's fax of 27 August 2004 were unfounded and refused to grant its request for extension of the deadline for the submission of tenders.
- In response to the abovementioned letter of 3 September 2004, the applicant, by fax of 6 September 2004, submitted reservations regarding the compliance of the tendering procedure with Article 92 of the financial regulation and Article 131(1) and (2) of the implementing rules.
- By letter of 5 October 2004, the contracting authority replied that the conditions of Article 92 of the financial regulation and Article 131(1) and (2) of the implementing rules had been complied with.
- The opening of the tenders took place on 8 September 2004. Five tenders were received and all of them were declared admissible. One of the tenders was eliminated at the exclusion stage. Another was eliminated at the quality evaluation stage. Only three tenders, including that of the Evropaïki Dynamiki-Steria consortium, were compared in terms of the price-quality ratio.
- The evaluation committee proposed awarding the contract to Intrasoft International SA ('Intrasoft'), whose tender presented the best price-quality ratio. It decided to rank the Evropaïki Dynamiki-Steria consortium's tender third.
- The evaluation committee's proposal was endorsed by the contracting authority which, by decision of 18 November 2004, awarded the contract at issue.
- The result of the tendering procedure was communicated to the applicant by letter of 18 November 2004. The letter stated that '[the applicant's] tender has not been selected for award, because following the assessment of the tenders selected and in the light of the award criteria specified in the terms of reference, it does not represent the best offer in terms of quality and price'.
- By registered letter and fax of 22 November 2004, the applicant requested the following information and documents from the contracting authority: the name of the successful tenderer and, in case the successful tenderer had a partner (or partners), or a subcontractor (or subcontractors), their names and the percentage of the contract to be allocated to the partner(s)/subcontractor(s); the scores awarded to the applicant's technical offer and to that of the successful tenderer for each award criterion; a copy of the evaluation committee report; how the applicant's financial offer compared with that of the successful tenderer and, more particularly, the scores attributed to each of those two tenders. By fax of 8 December 2004, the applicant repeated its request.
- In reply, the contracting authority, by letter of 10 December 2004, provided the applicant with an extract from the report of the evaluation committee. That extract contains, among other things, comments by the committee on the tenders of Intrasoft and the Evropaïki Dynamiki-Steria consortium concerning each of the award criteria for the contract at issue. Those comments are as follows:
'A. Intrasoft ...
Overall comment
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An excellent offer, demonstrating a profound understanding of the issues involved with an extremely well thought out and detailed project management approach. The level of detail, the careful approach to analysing potential problems and the attention paid to quality management issues contributes to the overall quality of this offer. The only weakness is a lack of architectural analysis, which nevertheless does not detract greatly from the overall quality of the offer.
The offer is based on a solid comprehension of the excise domain and its political and organisational environment in the Commission and the Member States.
Methods and team organisation are of a very high quality and show that they will be able to cope with the scope of the task, including [by displaying] the necessary flexibility.
As a result, this proposal appears perfectly adequate to assume the responsibility for the project.
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Criteria 'Fitness of the proposed strategy to perform the tasks of the contract'
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This company has an outstanding comprehension of the EMCS business problems to be solved, a clear understanding of how the project components fit together.
The offer presents a comprehensive and in depth description of their strategy, implementation approach, and very detailed work packages description.
Their vision and strategy is supported by a very detailed and sound project plan.
There is a good analysis of the possibility of re-use of NCTS components.
The offer presents an exhaustive requirements tracking matrix that shows their deep understanding of the project purposes and their adherence to the 'high level' requirements defined in the terms of reference of the call for tender.
The offer proposes a nice set of quality indicators covering all activities, to complement the ones proposed in the terms of reference.
A small weakness of the offer is the lack of deep analysis of architectural issues (robustness, scalability and performance).
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Criteria 'Fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks'
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Extremely detailed description of the methods and tools proposed. General approach combining RUP [Rational Unified Process] for the specification phase followed by TEMPO for the development phase shows a good understanding of the differences between the two stages in Commission-Member State collaborative developments.
The quality assurance approach is extremely well thought out, proposing quality indicators for both process and product, derived from 'key evaluation topics'.
The tenderer has a good understanding of the principles of COSMIC FFP [footnote omitted], although the description is a bit theoretical, as their offer lacks pragmatic implementation (e.g. does not specify the tools to be used).
Although the development infrastructure is very well defined, the security provisions in the tender's premises are overlooked.
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Criteria 'Fitness of the proposed team organisation to perform the tasks'
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The team structure and the organisation are extremely well defined, along with lines of reporting, extensive profiles identification (23 in total) and description, full matrix of skills per profile. The team composition is well balanced between manager profiles, business experts, business analysts, developers, designers, helpdesk operators etc.
The roles and responsibilities within the team are very well described.
The sizing of the team (around 60 people) is sound and consistent with the volume of activities to be performed.
Their offer guarantees low turnover by maintaining it to around 80% of team personnel, avoiding them being removed to work on other projects.
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Criteria 'Structure, clarity and level of completeness of the proposal'
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The proposal is complete and comprehensive in its treatment of all project activities.
The overall presentation is well structured, rich in explanatory diagrams. Information is easy to find and to read as it is written in a comprehensive language. The offer only lacks a table of acronyms.
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B. [Evropaïki Dynamiki-Steria]
Overall comment
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Whilst this offer contains some interesting proposals concerning architecture, the proposal is too generic: the description of the specification and development process does not show much emphasis on the specificity of the [implementation of the] EMCS project.
The offer's proposed methodology is a good collection of best practices and literature about computerisation system development. However, again, the specific issues of the EMCS development are dealt with in a very generic fashion and the proposed analysis is not very complete.
The description of the team organisation is good, but does not indicate that there is an understanding of the necessity of strong end user support during the specification activities of the [implementation of the] EMCS project.
The offer contains some inconsistencies, and this casts some doubt on the reliability of the proposal.
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Criteria 'Fitness of the proposed strategy to perform the tasks of the contract'
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The tenderer has included a review of the EMCS technical architecture, made an interesting proposal concerning the architecture (e.g. the use of Web services), made initial attempts to propose technical solutions, and a proposal for setting up the infrastructure.
The offer presents a detailed list of work packages with relevant order, request, planning, delivery/acceptance mechanism, and quality indicators.
However, the overall approach is extremely generic with few close examinations of EMCS specific issues.
The proposed strategy is a bit simplistic with many excerpts from external sources (e.g. large excerpts from IBM Rational RUP documentation) without showing how that documentation fits in the project.
The offer shows some lack of understanding of the terms of reference as the proposal makes reference to activities that have already been completed, or will be completed by the time the contract will come into force, or are proposing architecture elements that would not fit the EMCS environment in terms of performance or scalability.
The offer presents some inconsistencies, and in particular in the planning: for instance, some development activities are starting even before the start of the specifications.
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Criteria 'Fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks'
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The methods proposed are generally well presented. The offer presents an accurate description of the IT development infrastructure and a good description of its relevant security aspects.
There are lots of textbook-like references to architecture, standards, IT tools and infrastructure components (e.g. XML, X509, J2EE), accompanied by a few hundred pages of manuals and brochures from HP, Oracle, CISCO, etc., but often without any justification or connection made to EMCS objectives.
The offer presents a detailed description of Cosmic FFP, but the tools proposed for estimates (Calico and Costar) are only suitable for estimates based on the Cocomo II methodology, which is incoherent (see section 4.1.3.5.1).
RUP is considered throughout their offer as 'the' project management methodology but their software proposal for the development environment does not list any IBM-Rational licence.
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Criteria 'Fitness of the proposed team organisation to perform the tasks'
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Good description of team organisation, showing understanding of the evolution of the team composition as the project proceeds from specification to development to production, to handover, including security, testing, and helpdesk. Interactions in the team organisation are well described.
The sizing of the team, with a pool of 67 team members, is adequate.
Although customs and excise experience is identified in their offer as a must in terms of skills, in practice, their proposal does not show such competences.
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Criteria 'Structure, Clarity and level of completeness of the proposal'
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The presentation of the offer is clear.
Its structure and overview is good.
However, the overwhelmingly generic material and the low level of details lower the readability of the offer.'
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- The extract from the evaluation committee's report sent to the applicant also contains a comparative evaluation table concerning the quality of the tenders from the Evropaïki Dynamiki-Steria consortium and Intrasoft and a comparative evaluation table for the price-quality ratio of the two tenders. The two tables are as follows:
Comparative evaluation table
ITT TAXUD/2004/AO-004 EMCS-DEV
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Criteria
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...
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Intrasoft
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Evropaïki Dynamiki-Steria
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...
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...
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Quality
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|
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Fitness of the proposed strategy to perform the tasks of the contract (/40)
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35.1
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23.2
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Fitness of the proposed methods, tools, quality environment and quality procedures to perform the task (/30)
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24.5
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16.7
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Fitness of the proposed team organisation to perform the tasks (/20)
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17.6
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14.5
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Structure, clarity and level of completeness of the proposal (/10)
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8.5
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5.8
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Total quality
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85.7
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60.2
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|
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Quality indicator (maximum reference is 100)
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100
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70
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Comparative evaluation table
ITT TAXUD/2004/AO-004 EMCS-DEV
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Criteria
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...
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Intrasoft
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Evropaïki Dynamiki-Steria
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...
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...
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Total quality
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85.7
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60.2
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Quality indicator (maximum reference is 100)
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100
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70
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Quoted price TBP/(IS+EI) (in euros)
(IT services and provision for the evolution of the infrastructure)
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11 634 533
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15 078 693
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Normalised price indicator (minimum reference is 100)
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100
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130
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Quality indicator / Price indicator
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1
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0.54
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- By registered letter and fax of 30 December 2004, the applicant submitted its observations on the extract from the evaluation committee's report communicated to it and repeated its view that the procedure for the award of the contract at issue was contrary to the financial regulation and to the applicable legislation.
- By letter of 14 January 2005, the contracting authority indicated that it was closely examining the points raised by the applicant in its letter of 30 December 2004 and that the applicant would receive a detailed reply as soon as possible.
- By letter of 17 February 2005, the contracting authority replied to the applicant's observations set out in its letter of 30 December 2004.
- The award notice for the contract at issue was published on 2 March 2005 in the Supplement to the Official Journal of the European Union (OJ 2005, S 43).
Procedure and forms of order sought by the parties
- By application lodged at the Registry of the Court on 28 January 2005, the applicant brought the present action.
- By letter of 30 October 2006, the Court, by way of measures of organisation of procedure, asked the applicant to reply in writing to questions concerning the admissibility of the action. The applicant complied with that request within the time allowed.
- Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
- By letter of 3 February 2009, the Court, by way of measures of organisation of procedure, asked the parties to reply in writing to certain questions. By the same letter, the Court also asked the Commission to submit certain documents. The parties complied with those requests within the time allowed.
- By letter of 2 March 2009, the Court, by way of measures of organisation of procedure, asked each party to submit its written observations on the replies given by the other party to the written questions put by the Court in the letter of 3 February 2009. The parties complied with those requests within the time allowed.
- The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 17 March 2009.
- The applicant claims that the Court should:
annul the decision of the Commission not to choose its tender and to award the contract to the successful tenderer;
order the Commission to pay the costs, even if the application is dismissed.
- The Commission contends that the Court should:
dismiss the action as unfounded;
order the applicant to pay the costs.
Law
I Admissibility
A Arguments of the parties
- Without formally raising an objection of inadmissibility, the Commission draws the Court's attention to the fact that Steria, the other member of the Evropaïki Dynamiki-Steria consortium, has not challenged the decision of the contracting authority not to choose the tender submitted by that consortium and to award the contract at issue to another tenderer and that, furthermore, it was not clear from the application that that decision was being challenged by the applicant on behalf of Steria. The Commission therefore observes that the applicant is challenging that decision only on its own behalf.
- In its reply, the applicant responds that, as leader of the Evropaïki Dynamiki-Steria consortium and the member fully responsible for preparing and drafting the tender, it has standing to act and that no Community legislation or case-law requires all members of a consortium of tenderers to challenge a contested decision to award a contract. Furthermore, the applicant set out those arguments in its written responses to the Court's questions (see paragraph 28 above).
- The Commission did not challenge the position of the applicant as set out above.
B Findings of the Court
- The Court considers it appropriate in the present case to examine whether the applicant has standing to bring an action against the contracting authority's decision, communicated to it by letter of 8 November 2004, not to choose the tender submitted by the Evropaïki Dynamiki-Steria consortium and, consequently, to award the contract at issue to another tenderer ('the contested decision').
- Under the fourth paragraph of Article 230 EC, '[a]ny natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former'.
- In the present case, even though the contested decision is formally addressed to the tenderer, that is to say the Evropaïki Dynamiki-Steria consortium, the fact remains that, as the applicant stated in its written replies to the Court's questions (see paragraph 28 above), which were not contested by the Commission and which the Court has no reason to doubt, the Evropaïki Dynamiki-Steria consortium has never had legal personality. Consequently, from the point of view of Article 230 EC, given that its members remained visible in that ad hoc structure, the two undertakings at issue must both be considered to be addressees of the contested decision. Therefore, the applicant was entitled, as addressee of the contested decision, to challenge that decision in accordance with the conditions laid down by Article 230 EC.
- It follows that the applicant's action is admissible.
II Substance
- In support of its action for annulment, the applicant puts forward five pleas in law. The first plea alleges breach of the principles of non-discrimination and freedom of competition. The second plea alleges infringement of the provisions of the financial regulation, the implementing rules, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). The third plea alleges that there is a manifest error of assessment in the contracting authority's evaluation of the Evropaïki Dynamiki-Steria consortium's tender. The fourth plea alleges a lack of relevant information and reasoning. The fifth plea alleges breach of the principle of sound administration and diligence.
- The Court considers it appropriate to start by examining the first plea, then the second, then the fifth, then the fourth and finally the third. That order is dictated by the fact that the first, second and fifth pleas concern the award procedure for the contract at issue, whereas the fourth and third pleas concern the contested decision itself.
A The first plea: breach of the principles of non-discrimination and freedom of competition
1. Arguments of the parties
- The applicant submits that the Commission infringed the principles of non-discrimination and freedom of competition among tenderers by not making available to the applicant despite a request to that effect from the applicant before the deadline for the submission of tenders two types of technical information that were necessary for the formulation of tenders for the contract at issue, namely, first, the exact specifications for the EMCS and, second, technical information relating to existing computer applications linked to the EMCS and, more specifically, the source-code for the NCTS. That alleged omission on the part of the Commission benefited tenderers which were previous or current contractors for the Taxation and Customs Union DG, or which had links to such contractors, and which therefore had exclusive access to the abovementioned information. Those tenderers, including the successful tenderer, were thus able to submit tenders that were more competitive than that of the applicant, both technically and financially.
- As regards, first, the specifications for the EMCS, the applicant emphasises that they were not yet available at the time of the procurement procedure for the contract at issue, but that they were being prepared by another contractor under a separate contract. The applicant submits that the Commission fails to explain how a tenderer could adequately fulfil the objectives and the requirements of a computer system for which it had not received detailed specifications and wonders how its tender could have been 'better' than that of the incumbent contractor, which was the only one to have access to such specifications.
- As regards, second, the NCTS source-code, the applicant emphasises that the Commission refused to grant it access for no valid reason and despite its request to that effect. By contrast, the successful tenderer had access to that source-code, since it was the Commission's contractor for the NCTS and was, for that reason, able to submit a tender that was more competitive than the applicant's tender.
- In order to show the importance of the NCTS source-code for the formulation of tenders for the contract at issue, the applicant points to the following aspects.
- First, the applicant refers to Article 3(2) of Decision No 1152/2003, which suggests that the contractor for the contract at issue re-use as much as possible the NCTS, the aim being to create an integrated computer system for intra-Community movement of excisable goods. The applicant interprets the content of that article to mean that the decision requires the re-use, by the contractor for the contract at issue, of the NCTS source-code and its architecture.
- Second, the applicant refers to the description of work package No 7.1 in the technical annex to the tender specifications, where the NCTS source-code was mentioned.
- Third, the applicant refers to the comments made by the evaluation committee in respect of the tender submitted by the successful tenderer, according to which that tender contained a good analysis of the possibility of re-using the components of the NCTS. The applicant submits that the term 'components' in that instance 'clearly' refers 'to various blocks of source-code'.
- Fourth, regarding the financial offer, the applicant, in order to show that it was necessary to know the NCTS source-code for the pricing of its tender, claims that the Commission asked tenderers to mention in their offers not only unit prices, as the Commission claims, but also and more importantly a budget and a total price for the supply of the EMCS and all associated services. That requirement on the part of the Commission required tenderers to evaluate with precision the scope and the complexity of the project, which in turn required knowledge of the source-code. The fact that the applicant did not know the source-code forced it to raise the price of its offer in order to incorporate the risks resulting from that lack of knowledge. By contrast, the successful tenderer, which knew that code, was able to submit an offer that was more competitive, requiring only 50% of the budget made available for the contract at issue.
- Finally, the applicant submits that, in the context of the call for tenders for another contract (a contract for the specification, development, maintenance and support of customs IT systems for the Taxation and Customs Union DG's IT systems (CUST'DEV) (TAXUD/2005/AO'001)), launched not long after the call for tenders for the contract at issue and for which the Taxation and Customs Union DG was also the contracting authority, the NCTS source-code was made available to tenderers. The applicant is therefore asking the Commission to explain that difference in treatment. Furthermore, at the hearing, the applicant submitted that the present case was similar to Case T-345/03 Evropaïki Dynamiki v Commission [2008] ECR II-341, in which the Court accepted the applicant's plea alleging that there had been a breach of the principle of equal treatment of tenderers and thus annulled the contract award decision adopted by the Commission.
- The Commission contests the applicant's arguments.
2. Findings of the Court
- According to Article 89(1) of the financial regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.
- Therefore, according to consistent case-law, the contracting authority is required to ensure at each stage of a tendering procedure that the principle of equal treatment and, thereby, equality of opportunity for all the tenderers is observed (Case C-496/99 P Commission v CASSucchi di Frutta [2004] ECR I-3801, paragraph 108; Case T-203/96 Embassy Limousines& Services v Parliament [1998] ECR II-4239, paragraph 85; and Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 75).
- Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (see, to that effect, Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 34, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 93).
- The case-law also shows that the principle of equal treatment implies an obligation of transparency so that it is possible to verify that that principle has been complied with (Case C-92/00 HI [2002] ECR I-5553, paragraph 45, and Universale-Bau and Others, paragraph 56 above, paragraph 91).
- That principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tendering specifications (Commission v CAS Succhi di Frutta, paragraph 55 above, paragraph 111).
- The principle of transparency therefore implies that all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public procurement procedure in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner and, secondly, to enable the contracting authority actually to verify whether the tenderers' bids meet the criteria of the contract in question (Evropaïki Dynamiki v Commission, paragraph 52 above, paragraph 145).
- In the present case, the applicant criticises the Commission for not providing it with two types of technical information, which, according to the applicant, were necessary for the formulation of tenders and which were, moreover, available to other tenderers. In the light of the case-law cited in paragraphs 55 to 58 above, that alleged omission on the part of the Commission, if it were proven, would prejudice the equality of opportunity between tenderers as well as the principle of transparency as a corollary to the principle of equal treatment.
- As the Court held in Evropaïki Dynamiki v Commission, paragraph 52 above (paragraph 147), such an undermining of equality of opportunity and the principle of transparency, assuming that it were proved, would constitute a defect in the pre-litigation procedure adversely affecting the right of the parties concerned to information. That procedural defect could lead to the annulment of the decision in question only if it were shown that, but for that defect, the administrative procedure could have had a different outcome if the applicant had had access to the information in question and if there was even a small chance that the applicant could have brought about a different outcome to the administrative procedure (see Evropaïki Dynamiki v Commission, paragraph 52 above, paragraph 147 and the case-law cited).
- Therefore, it is appropriate to examine, first, whether there was a disparity in respect of information in the present case, in the sense that, in the context of the call for tenders, information which the applicant claims not to have had was available to some tenderers, including the successful tenderer. If such a disparity was found to have existed, it would then be appropriate to examine, second, whether the relevant information was useful for the purpose of the formulation of the tenders. Only if that had been the case would the tenderer with access to that information have had an advantage to the detriment of the other tenderers. It would be appropriate to examine, third, whether the alleged disparity in respect of useful information was the result of a procedural defect brought about by the Commission. If there was such a defect, it would be appropriate to examine, fourth, whether, but for that defect, the tendering procedure could have had a different outcome. From that point of view, such a defect can constitute an infringement of the equality of opportunity of tenderers only in so far as the explanations provided by the applicant demonstrate, in a plausible and sufficiently detailed manner, that the procedure could have had a different outcome as far as it was concerned (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 52 above, paragraphs 148 and 149).
- That reasoning applies to each of the two types of technical information that the applicant claims were not made available to it, namely the specifications for the EMCS (first part of the plea) and the NCTS source-code (second part of the plea).
a) The first part of the plea, concerning the non-availability of the specifications for the EMCS
- The applicant submits, essentially, that the non-availability of the exact specifications for the EMCS, at the time of the procurement procedure, created an advantage for tenderers that were already providing services to the Taxation and Customs Union DG including the successful tenderer and which, for that reason, were already aware of the said specifications. Therefore, those tenderers were in a position to submit tenders that were more precise and, accordingly, more competitive than the applicant's tender.
- As was pointed out in paragraph 62 above, it is appropriate to examine first whether, in the present case, there was a disparity in respect of information in that the specifications for the EMCS were available to some tenderers, including the successful tenderer, but not to the applicant.
- The tender specifications for the contract at issue (see paragraph 7 above) show that the project for the setting up of the EMCS, of which the contract at issue was to be a part, provided for a stage 1 during which the contractor for the ESS contract was to define the specifications for the EMCS. The Commission explained that they were 'high level' specifications for the EMCS. The abovementioned tender specifications also state that the contractor for the ESS contract was to draw up those specifications before and, in part, in parallel to the drawing up of specifications by the contractor for the contract at issue. The Commission explained that the specifications prepared under the contract at issue relate to the application of the EMCS ('application-related specifications'), as opposed to the 'high level' specifications for that system, prepared under the ESS contract. Finally, the abovementioned tender specifications make it clear that the contractor for the ESS contract was to finalise its work by the middle of 2005.
- The applicant's arguments show that its complaint concerns the alleged failure to communicate to tenderers the 'high level' specifications for the EMCS.
- In addition, the Commission has contended, without being contradicted by the applicant, that the contractor for the ESS contract, namely Siemens, had begun to work on the specifications for the EMCS in June 2004 (and that it had finished in April 2005), whereas the call for tenders for the contract at issue was published in July 2004 and the deadline for the submission of tenders was 31 August 2004. Therefore, in the light of the Commission's argument, which was not contested by the applicant, it must be found that only three months elapsed between the start of Siemens' work on the specifications for the EMCS and the deadline for the submission of tenders for the contract at issue, which means that, while the call for tenders remained open, there were no specifications for the EMCS that were actually usable and of which knowledge could have been to the advantage of a tenderer with access to those specifications.
- Finally, both the applicant and the Commission stated that Siemens, contractor for the ESS contract, had also submitted a tender for the contract at issue.
- The following conclusions are to be drawn from the abovementioned information.
- First, it appears that no tenderer including the successful tenderer could have had more information regarding the specifications for the EMCS than the applicant, since those specifications did not exist, or were at an embryonic stage. Therefore, it has not been shown that there was a disparity of information which would have led to an infringement of the principle of equal treatment of tenderers.
- Second, the fact that the specifications for the EMCS did not exist when the tendering procedure for the contract at issue was launched was not the result of a procedural defect on the part of the Commission, but resulted from the actual planning for the setting up of the EMCS, which envisaged that those specifications would be drawn up under an ESS contract that was separate from the contract at issue and preceded it.
- Third, even if Siemens managed, under the ESS contract for which it was the contractor, to draw up specifications capable of being used for the formulation of tenders for the contract at issue, it is apparent that that was not decisive since Siemens' tender, submitted for the contract at issue, was not successful. Furthermore, the fact that Siemens submitted a tender for the contract at issue and, therefore, entered into direct competition with the successful tenderer for the award of the contract at issue suggests that Siemens did not share with that tenderer its alleged knowledge of the specifications for the EMCS. Hence, there is no basis for claiming that any tenderer benefited from any sort of privileged access to the said specifications.
- Given that the applicant has not shown that some tenderers, including the successful tenderer, had more information regarding the specifications for the EMCS than the applicant itself, it should be concluded that, as regards that type of technical information, there was no unequal treatment of tenderers. Accordingly, the first part of this plea in law must be rejected.
b) The second part of the plea, concerning the failure to communicate the NCTS source-code
- The applicant submits, essentially, that the refusal by the contracting authority to communicate to it the NCTS source-code created an advantage for the successful tenderer, which was also the contractor for the Commission when the NCTS was set up and did, for that reason, inevitably have access to the source code. Since it had that information, the successful tenderer was able to submit a tender that was more competitive than that of the applicant, both technically and financially.
Disparity in information to the benefit of the successful tenderer
- The Commission does not contest the fact that the NCTS source-code was available to the contracting authority before the date on which the tendering procedure for the contract at issue was launched and that it did not communicate it to tenderers. It contends that it considered it to be of no use for the formulation of the tenders.
- It is also not disputed that the successful tenderer knew the NCTS source-code when it prepared its tender, given that it was the contractor for the Taxation and Customs Union DG for the NCTS.
- It follows that, when the tendering procedure for the contract at issue was launched and until the deadline for the submission of tenders, technical information that had been denied to the applicant was available to the successful tenderer, because it was the contractor for the Taxation and Customs Union DG for the NCTS.
The usefulness of the NCTS source-code for the formulation of the tenders
- In order for the disparity in information established to represent an advantage to the benefit of the successful tenderer in the preparation of its tender, it is further necessary to show that the relevant information was useful for the development of tenders for the contract at issue, in the sense that not having that information could be to the detriment of the tender in terms of quality and the financial offer.
- In the present case, and in the light of the arguments submitted by the parties, the usefulness of the NCTS source-code for the formulation of tenders for the contract at issue must be assessed. Two preliminary observations are called for.
- First of all, as the arguments of the parties show, the source-code is a set of instructions written in a computer programming language that permits creation of a computer programme. The arguments also show that the source-code is one of the first pieces of material to be produced in the entire software life-cycle.
- Further, the Commission explained at the hearing, without being contradicted by the applicant, that there are clear differences between the NCTS and the EMCS, in so far as the NCTS concerned the customs sector whereas the EMCS related to the excise duty sector. In the context of the NCTS, the main users are customs officials, while in the context of the EMCS, the main users are economic operators. It follows that the 'targets' of the two systems are different and, therefore, that the two systems do not have the same function.
- In the first place, the applicant, in support of its claim concerning the usefulness of access to the NCTS source-code, refers to Article 3(2) of Decision No 1152/2003, quoted in paragraph 4 above.
- In this respect, it is appropriate to point out that Decision No 1152/2003 constitutes the legal basis for the setting up of the EMCS and that Article 3(2) of that decision defines the relationship between the EMCS and the NCTS. The Commission's task was to ensure the integration, if technically possible, of the EMCS into the NCTS, with the objective of creating an integrated computer system to monitor the intra-Community movements of excisable goods. It was in order to accomplish that mission that it had been entrusted with by the Community legislature that the Commission launched the tendering procedure for the contract at issue. In the context of that procedure, the Commission, as contracting authority, took the view that the expression 're-using as much of the NCTS as possible' in Article 3(2) of the decision did not mean that tenderers had to be given the NCTS source-code for the purposes of formulating their tenders. The Commission communicated that 'message' to tenderers in the documentation relating to the tendering procedure at issue.
- In this respect, the Commission refers, in particular, to paragraph 4.2.1 of the management plan for the setting up of the EMCS entitled 'The EMCS development based on NCTS experience' , which was distributed to tenderers and thus also to the applicant; the description in that plan of the 'NCTS experience' to be taken into account for the development of the EMCS does not refer to the NCTS source-code or, a fortiori, to the need to have access to it in order to formulate a tender. Furthermore, in clarification No 46, provided as part of the award procedure for the contract at issue, the contracting authority explained that, once the contract had been awarded, '[the duty of] the Contractor [for the contract at issue will be] to propose and [the Taxation and Customs Union DG's] to decide how much of the NCTS applications' architecture and source-code will be reused' and that that 'information [namely the NCTS source-code] will only be available to the successful Tenderer'.
- Consequently, the applicant cannot in the present case invoke Article 3(2) of Decision No 1152/2003 in support of its claim concerning the usefulness of access to the NCTS source-code, since the contracting authority incorporated that article's requirement to 're-us[e] as much of the NCTS as possible' in the call for tenders at issue in concrete terms and in a transparent manner in such a way that it was not necessary for tenderers to have access to that source-code in order to be able to formulate their tenders.
- In the second place, the applicant invokes, in support of its claim, the description of work package No 7.1 in the technical annex to the tender specifications. That description is worded as follows:
'Work package 7.1.: Application development
This work package covers development and maintenance of the Centrally Developed Applications (CDA), Test Applications and Central Service applications (e.g. the MCC, ETA, SETA, CS/RD and CS/MIS).
The applications developed will take as much inspiration as possible from the architecture and even the source code of the NCTS applications:
...'
- The description of that work package does indeed mention the NCTS source-code. However, that description does not show that the said source-code is useful for the preparation of tenders, as the applicant claims, but shows that the source-code will be useful for the work that will have to be carried out at a stage following the award of the contract at issue, namely during the performance of that contract by the successful tenderer.
- Furthermore, that information emerges clearly from the abovementioned clarification No 46 (see paragraph 85 above).
- It follows that both the description of work package No 7.1 and, above all, clarification No 46, far from showing the usefulness of the NCTS source-code for the formulation of tenders for the contract at issue, show that the 'message' that the contracting authority wanted to communicate to tenderers was, first, that that code was not relevant to the formulation of tenders, but that it would become so only at the later stage of the performance of the contract at issue by the successful tenderer and, second, that it would be for the contracting authority to decide how much of the NCTS source-code would be reused. Furthermore, at the hearing, the Commission revealed that, in the end, the contracting authority had decided not to use a single line of the NCTS source-code for the development of the project to set up the EMCS.
- Consequently, the applicant's argument relating to the reference in the description of work package No 7.1 to the NCTS source-code cannot be accepted.
- In the third place, the same is true for the applicant's argument concerning a specific comment made by the evaluation committee about the tender submitted by the successful tenderer (see paragraph 50 above). The applicant provides no evidence to show that the expression 'components of the NCTS', which the evaluation committee used, is a reference to the components of the NCTS source-code. In this respect, the tender documents for the contract at issue show that the contracting authority provided tenderers with a certain number of reference documents regarding the NCTS which, as the Commission rightly claimed, cover a vast range of subjects, from methodology to quality assurance procedures, from system specifications to test procedures, and from the functional description of NCTS applications to the specifications of central operations. It must therefore be considered that the evaluation committee, when it referred to the possibility of re-using 'components of the NCTS', was alluding to the possibility of re-using the elements of the NCTS that are mentioned in the documents made available to tenderers. In any event, the applicant does not provide any demonstration or evidence that could undermine this analysis.
- In the fourth place, the applicant also does not demonstrate the usefulness of access to the NCTS source-code for the pricing of tenders. It is recalled that the applicant submits, in essence, that that pricing required tenderers to make precise estimates as to the size and the complexity of the project, which required knowledge of the source-code. Lack of access to the source-code made it impossible for the applicant to estimate precisely the size and the complexity of the project, forcing it, essentially, to raise the price of its tender.
- That argument from the applicant cannot be upheld.
- First, the NCTS source-code was not necessary in order to estimate the size and the complexity of the project for the setting up of the EMCS. In fact, as previously stated, the NCTS and the EMCS are different from each other (see paragraph 82 above) and the contracting authority clearly communicated to tenderers and thus to the applicant that the NCTS source-code was not relevant for the formulation of tenders (see paragraph 90 above).
- Further, as the Commission contended and as the applicant conceded at the hearing, as regards the activities whose pricing allegedly depended on an estimate of the size and the complexity of the project, the contracting authority, having itself determined the number of days which were to be devoted to carrying out those activities, merely asked tenderers to quote unit prices expressed in daily rates for each staff profile required (namely developer, programmer and analyst). In order to arrive at the price of the tender, those unit prices were to be multiplied by the number of days determined by the contracting authority. By determining the number of days required for carrying out the abovementioned activities, the contracting authority itself estimated the scale of the work to be done, thus liberating tenderers from the need to undertake that task and focusing competition among tenderers on the daily rates proposed for each necessary staff profile. The applicant has not shown that lack of knowledge of the NCTS source-code had any sort of impact on the daily rate quoted for its staff.
- It follows that it has not been shown that access to the NCTS source-code would have been useful for the purposes of pricing the applicant's offer.
- Finally, the applicant's argument relating to the usefulness of access to the NCTS source-code is not supported by Evropaïki Dynamiki v Commission, paragraph 52 above. Unlike the present case, in which the computer system under the contract at issue the EMCS is different from the system whose source-code was not provided the NCTS (see paragraph 82 above), the case cited by the applicant related to a computer system the Cordis system which was merely a new version of the same Cordis system for which the source-code had not been provided (Evropaïki Dynamiki v Commission, paragraph 52 above, paragraph 7). Since the present case concerns the usefulness of the NCTS source-code, no analogy may be drawn between the present case and Evropaïki Dynamiki v Commission, paragraph 52 above.
- The same is true for the applicant's argument concerning the CUST'DEV contract (see paragraph 52 above). In this respect, the Commission stated in the observations it submitted in response to the Court's letter of 2 March 2009 (see paragraph 31 above) that the CUST'DEV contract concerned computer applications in the customs sector, which is also the relevant sector for the NCTS, and that it was therefore right to provide tenderers with the source-code of that system. By contrast, that was not the case for the contract at issue, which concerns computer applications in the excise duty sector, in other words, a sector other than customs. The applicant did not contest the Commission's claim at the hearing and the Court has no reason to doubt it.
- In the light of the above reasoning, the conclusion must be that the usefulness of the NCTS source-code for the formulation of tenders in connection with the award of the contract at issue has not been demonstrated. Consequently, the second part of the applicant's plea in law must be rejected.
- It follows that the present plea in law must be rejected in its entirety.
B The second plea: infringement of the financial regulation, the implementing rules, and Directives 92/50 and 2004/18
1. Arguments of the parties
- The applicant claims that the award criteria for the contract at issue are not sufficiently specific and quantifiable and, consequently, were not capable of being examined objectively by the evaluation committee. That failure on the part of the contracting authority constitutes an infringement of Article 97(1) of the financial regulation, Article 138 of the implementing rules, Article 17(1) of Directive 92/50 and the provisions of Directive 2004/18.
- The Commission contests the applicant's arguments.
2. Findings of the Court
- By way of a preliminary point, it must be noted that, pursuant to Article 105 of the financial regulation, from 1 January 2003 onwards the date of entry into force of the regulation the directives relating to the coordination of procedures for the award of public supply, service and works contracts do not apply to public contracts awarded by the Community institutions on their own behalf except as regards questions concerning the thresholds which determine publication arrangements, the choice of procedures and corresponding time-limits. It follows that the applicant's complaint against the award criteria for the contract at issue must be examined solely in the light of the provisions of the financial regulation and the implementing rules.
- In addition, it must be recalled that, in accordance with Article 97(2) of the financial regulation and Article 138(1)(b) of the implementing rules, the contract at issue had to be awarded to the most economically advantageous tender.
- It must, next, be recalled that, in order to ensure that the principles of transparency, equal treatment and non-discrimination are observed at the stage at which tenders are selected with a view to awarding a contract, Article 97(1) of the financial regulation imposes on the contracting authority, where the contract is awarded to the most economically advantageous tender, the obligation to define and set out in the call for tenders the award criteria for evaluating the content of tenders. Those criteria must, in accordance with Article 138(2) of the implementing rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value for money.
- Nevertheless, those provisions leave it to the contracting authority to choose the award criteria in the light of which tenders will be assessed. However, the award criteria which the contracting authority proposes to use must, in any event, be aimed at identifying the offer which is economically the most advantageous (see, to that effect, Case T-4/01 Renco v Council [2003] ECR II-171, paragraph 66, and Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 74).
- In addition, the criteria used by the contracting authority to identify the most economically advantageous tender do not necessarily have to be quantitative or related solely to the price. Even if award criteria that are not expressed in quantitative terms are included in the tender specifications, they can be applied objectively and uniformly in order to compare tenders and are clearly relevant for identifying the most economically advantageous tender (see, to that effect, Renco v Council, paragraph 107 above, paragraphs 67 and 68).
- In the present case, it must be recalled first that the award criteria for the contract at issue appear both in the contract notice (paragraph IV 2) and in the specifications annexed to the invitation to tender. Therefore, the condition of publicity laid down in Article 97(1) of the financial regulation has been fulfilled.
- Further, it should be recalled that the award criteria, described as vague and subjective by the applicant, read as follows:
'1. Quality of the proposed solution:
Fitness of the proposed strategy to perform the tasks of the contract (40/100);
fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks (30/100);
fitness of the proposed team organisation to perform the tasks (20/100);
structure, clarity and level of completeness of the proposal (10/100).'
- It must therefore be held that the applicant, far from substantiating its argument that those criteria are vague and subjective, finds itself contradicted by the clear terms of those criteria. In particular, the applicant puts forward no evidence to support its claims which would allow for a finding that, when the contracting authority defined those criteria, it failed to have regard to its obligation to observe the principles of transparency and equal treatment of tenderers. On the contrary, the applicant in effect repeats the argument it put forward in the context of the first plea, concerning the alleged lack of an exact description of the services required and of the specific requirements of the work to be done.
- A review of the abovementioned criteria shows that they focus on the following elements: the strategy proposed by the tenderers (first criterion), the methods, tools, quality environment and quality procedures proposed by the tenderers (second criterion), the proposed team organisation (third criterion), and the structure, clarity and level of completeness of the tender (fourth criterion). The applicant does not explain, or show, why those criteria are not justified by the subject of the contract at issue. Furthermore, there is no reason to doubt that those criteria are relevant to identifying the most economically advantageous tender, since those criteria are guaranteed to affect the quality of the services provided under the contract at issue and, therefore, the value of the tender itself.
- Although those criteria are not quantitative, that fact alone cannot be taken to mean that the contracting authority did not apply them objectively and uniformly (see, to that effect, Renco v Council, paragraph 107 above, paragraphs 67 and 68). It should be noted that, in the present case, the applicant has submitted no evidence to that effect.
- Finally, for the sake of completeness, it should be observed that the contracting authority specified, in accordance with the applicable provisions, the relative weighting it would apply to each of the award criteria, thus informing tenderers of the importance it intended to attach to each criterion when it came to the comparative evaluation of the tenders.
- It follows from the foregoing that the applicant has not shown that the contracting authority failed to fulfil its obligation to define, in the call for tenders, the award criteria in compliance with the regulatory framework and the principles laid down in the case-law as set out in paragraphs 104 to 108 above.
- It follows from all the foregoing that the second plea in law must be rejected.
C The fifth plea: breach of the principles of sound administration and diligence
1. Arguments of the parties
- The applicant claims, in essence, that the Commission infringed the principles of sound administration and diligence by failing to respond promptly and adequately to the applicant's fax of 27 August 2004, in which the applicant expressed its reservations regarding the call for tenders, in particular with regard to the principle of non-discrimination.
- The Commission contests the applicant's arguments.
2. Findings of the Court
- In accordance with the general principle of sound administration, which also encompasses the duty of care, a Community institution must observe reasonable time-limits in conducting administrative proceedings and behave diligently in its relations with the public (Case C-47/07 P Masdar (UK) v Commission [2008] ECR I-9761, paragraph 92, and Case T-394/03 Angeletti v Commission [2006] ECR'SC I'A'2'95 and II'A'2'441, paragraph 162).
- In addition, as regards the award of Community public contracts, contact between the contracting authority, on the one hand, and potential tenderers or tenderers, on the other hand, is regulated by Articles 141 and 148 of the implementing rules.
- Article 141 of the implementing rules provides:
'1. Provided that the request was made in good time before the deadline for submission of tenders, the specifications and additional documents shall be sent, within six calendar days of the receipt of the request, to all economic operators who have requested the specifications or expressed interest in submitting a tender.
2. Provided it has been requested in good time, additional information relating to the specifications shall be supplied simultaneously to all economic operators who have requested the specifications or expressed interest in submitting a tender no later than six days before the deadline for the receipt of tenders or, in the case of requests for information received less than eight calendar days before the deadline for receipt of tenders, as soon as possible after receipt of the request.
...'
- Furthermore, Article 148 of the implementing rules provides:
'1. Contact between the contracting authority and tenderers during the contract award procedure may take place, by way of exception, under the conditions set out in paragraphs 2 and 3.
2. Before the closing date for the submission of tenders, in respect of the additional documents and information referred to in Article 141, the contracting authority may:
(a) at the instance of tenderers, communicate additional information solely for the purpose of clarifying the nature of the contract, such information to be communicated on the same date to all tenderers who have asked for the specifications;
...'
- Therefore, the provisions cited above show that contact between the contracting authority, on the one hand, and potential tenderers or tenderers, on the other hand, before the deadline for submission of tenders, is permitted in so far as it is for the purpose of obtaining 'additional information' relating to the specifications (Article 141(2) of the implementing rules) and 'additional information' in respect of the additional documents and information referred to in Article 141 and 'solely for the purpose of clarifying the nature of the contract' (Article 148(2)(a) of the implementing rules).
- As regards the 'additional information' referred to in Article 141(2) of the implementing rules, the contracting authority is required to provide it to the potential tenderers within the time-limits laid down in that article. As regards the 'additional information' referred to in Article 148(2)(a) of the implementing rules, the contracting authority has the right to communicate it to the tenderers, but is not under an obligation to do so.
- In the present case, it must be held that the fax of 27 August 2004 to which the applicant refers does not contain a request for the information referred to by the abovementioned provisions of the implementing rules. As previously stated (see paragraph 11 above), in that fax, the applicant expressed reservations regarding the procedure for the award of the contract at issue, based on a potential lack of objectivity of the call for tenders to the advantage of tenderers which had already been suppliers to the Taxation and Customs Union DG, a lack of clear specifications in the call for tenders and a lack of precise and objective criteria for the evaluation of tenderers. By way of the same fax, the applicant also asked the Taxation and Customs Union DG to extend the deadline for the submission of tenders until it had remedied the abovementioned problems. It follows that the Commission was not required to reply to that letter. It did reply none the less, in a manner that was both prompt and adequate, by letter of 3 September 2004, expressing the view that the applicant's reservations were unfounded and refusing to grant its request to extend the deadline for the submission of tenders (see paragraph 13 above). Therefore, there is no doubt that the defendant acted diligently, in the spirit of sound administration, all the more so because, as stated above, the legislature had not imposed any obligation on it to provide a response in the present case. It follows that the Commission's follow-up to the applicant's fax of 27 August 2004 does not in any way infringe the principles of sound administration and diligence.
- For the sake of completeness, it should be noted that the applicant did not contest the Commission's claim that the contracting authority had replied quickly to all the questions put by tenderers about the tender specifications, most of which had been asked by the applicant.
- In the light of the foregoing, this plea must be rejected as unfounded.
D The fourth plea: lack of relevant information and failure to state reasons
1. Arguments of the parties
- The applicant argues that the contested decision is vitiated by the fact that the Taxation and Customs Union DG did not give a sufficient statement of reasons for its acts. The plea is based on two complaints.
- First, the Taxation and Customs Union DG did not provide the applicant with all the information requested concerning the grounds for the rejection of its tender, contrary to Article 253 EC and Article 8 of Directive 92/50. That DG did not set out clearly the reasons why it rejected the applicant's tender and made no reference to the characteristics and comparative advantages of the successful tender, thereby denying the applicant the possibility of effectively commenting on the choice made, and any possibility of seeking legal redress. The applicant adds that the Taxation and Customs Union DG did not invoke any reason of public policy or commercial secret to justify its refusal to provide the evaluation report which the Commission normally sends to all tenderers in such cases, in accordance with Article 12(2) of Directive 92/50. According to the applicant, an insufficient statement of reasons, such as that in the present case, makes the Court's review of the contested decision extremely difficult, if not impossible.
- Secondly, in the reply, the applicant points to the non-compliance with the 15-day time-limit for providing tenderers with extracts from the evaluation committee's report, contrary to the financial regulation and the legislation on public contracts. That non-compliance and the complete lack of reasons concerning certain aspects of the contested decision caused the applicant difficulties in bringing its action before the Court.
- The Commission contends that this plea should be rejected.
2. Findings of the Court
- It must be noted, as a preliminary point, that the legislative provisions which determine the content of the obligation to state reasons which a contracting authority has towards unsuccessful tenderers in a public procurement procedure are Article 100(2) of the financial regulation and Article 149 of the implementing rules, and not the provisions of Directive 92/50, as alleged by the applicant (see paragraph 104 above).
- It follows from those articles that, in the field of public procurement, a contracting authority fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received (see judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 68, and judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47 and case-law cited).
- Such a manner of proceeding satisfies the purpose of the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as to enable, on the one hand, the persons concerned to be aware of the reasons for the measure in order to assert their rights, and, on the other, the Court to exercise its review (see, to that effect, Case T-19/95 Adia interim v Commission [1996] ECR II-321, paragraph 32; Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraph 190; Strabag Benelux v Council, paragraph 107 above, paragraph 55; and Case T-250/05 Evropaïki Dynamiki v Commission, paragraph 133 above, paragraph 69).
- Moreover, compliance with the duty to state reasons must be assessed in the light of the information available to the applicant at the time when the action is brought (Strabag Benelux v Council, paragraph 107 above, paragraph 58, and Renco v Council, paragraph 107 above, paragraph 96).
- It follows that, in order to determine whether the Commission fulfilled its duty to state reasons in the present case, it is necessary to examine the letters of 18 November 2004 and 10 December 2004 sent by it to the applicant before the present action was brought.
- The letter of 18 November 2004 informs the applicant that its tender (submitted with Steria as part of the Evropaïki Dynamiki-Steria consortium's tender) was unsuccessful. It states that that tender was not chosen because, in the light of the award criteria, it did not represent the best tender in terms of quality and price. That letter adds that the applicant could obtain further information on the grounds for the rejection of its tender and that, if it made a request in writing, it could be informed of the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Lastly, the letter states that certain details of the successful tender would not be disclosed if that disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings. It follows that that letter, although somewhat formulaic in nature, is drafted in accordance with Article 100(2) of the financial regulation.
- The letter of 10 December 2004, from the Commission to the applicant, provides the latter with an extract from the evaluation committee's report. That letter was sent in response to a written request from the applicant dated 22 November 2004, repeated on 8 December 2004.
- The extract from the evaluation committee's report refers to the name of the successful tenderer. It also contains the evaluation committee's detailed comments on the successful tender and the Evropaïki Dynamiki-Steria consortium's tender in respect of each of the award criteria (see paragraph 21 above). That extract also contains a table with the points awarded to each of the two tenders in respect of each of the award criteria, and a table showing the respective prices of the two tenders and the comparative evaluation of the price-quality ratio (see paragraph 22 above).
- Accordingly, the Court finds that, by communicating to the applicant, first, the essential grounds for the rejection of the Evropaïki Dynamiki-Steria consortium's tender, and then the aforementioned extract from the evaluation committee's report, the Commission stated to the requisite legal standard the reasons why the applicant's tender was rejected, in accordance with Article 100(2) of the financial regulation and Article 149(2) of the implementing rules. It should be noted that that extract refers to the name of the successful tenderer and, through the comments of the evaluation committee and the two abovementioned tables, the 'characteristics and relative advantages of the successful tender'. The letter of 18 November 2004 and that extract, provided with the letter of 10 December 2004, thus enabled the applicant to identify immediately the reasons why its tender had not been selected, that is, because it was less advantageous economically than that of the successful tenderer, which offered a better price-quality ratio.
- As regards, finally, the applicant's complaint regarding non-compliance with the 15-day time-limit for providing it with extracts from the evaluation committee's report, it must, in fact, be noted that that extract was sent to it by letter of 10 December 2004 and thus reached it at least 18 calendar days after its written request, sent to the Commission by fax and by registered letter on 22 November 2004. Although it is to be regretted, that slight delay has not, however, in any way restricted the possibility for the applicant to assert its rights before the Court and cannot therefore, by itself, lead to the annulment of the contested decision. It is clear from the documents before the Court that the applicant has used all the information contained in that extract in order to bring the present action (see, to that effect, Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 133 above, paragraph 52).
- Having regard to the foregoing, it must be concluded that the statement of reasons provided in the contested decision enabled the applicant to assert its rights and the Court to exercise its review. Accordingly, the present plea must be rejected.
E The third plea: manifest errors of assessment in the contracting authority's evaluation of the applicant's tender
1. Arguments of the parties
- The applicant submits that the Taxation and Customs Union DG made a manifest error of assessment by failing to evaluate correctly and objectively the quality of the applicant's tender and by deciding that that tender was inferior to that submitted by the successful tenderer.
- In the context of this plea, the applicant argues first that, since the Taxation and Customs Union DG did not follow an objective and predetermined methodology known to the tenderers in order to arrive at the final ranking, it is obvious that the decision of the evaluation committee was based on incorrect assumptions.
- Second, the applicant argues that the general nature of the criteria used and the tenderers' lack of knowledge of the exact nature of the contractual task to be performed led to a subjective evaluation of the value of the tenders.
- Finally, the applicant criticises specific comments made by the evaluation committee, which show that its evaluation of the applicant's tender contained manifest errors of assessment.
- The Commission contests the applicant's arguments.
2. Findings of the Court
- According to consistent case-law, the contracting authority enjoys a broad margin of assessment 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 must be 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 (Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33, and Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47; see also, to that effect, Case 56/77 Agence européenne d'intérims v Commission [1978] ECR 2215, paragraph 20).
- In the present case, it should be noted that the applicant bases its argument, in essence, on two factors in order to show that the contracting authority made a manifest error of assessment.
- In the first place, the applicant claims that the Taxation and Customs Union DG did not follow an objective and predetermined methodology known to the tenderers in order to arrive at the final ranking. It also refers to the alleged lack of knowledge on the part of the tenderers of the nature of the contractual tasks to be performed and the allegedly general nature of the award criteria and concludes from this that the evaluation of the tenders must have been subjective and based on incorrect assumptions.
- It must be held that the applicant confines itself to general assertions that are unsubstantiated and not supported by any evidence. Its argument is a repetition of the argument put forward in the context of the first and second pleas, which have been rejected by the Court. Furthermore, the applicant does not show in any way how all these alleged shortcomings on the part of the contracting authority led it to make incorrect assumptions and evaluate the tenders subjectively. Therefore, it must be concluded that that argument cannot support the present plea in law.
- In the second place, the applicant contests specific comments made by the evaluation committee on the Evropaïki Dynamiki-Steria consortium's tender.
- First, the applicant contests the evaluation committee's comment that '[t]he offer shows some lack of understanding of the Terms of Reference as the proposal makes reference to activities that have already been completed, or will be completed by the time the contract will come into force'. The applicant contests the merits of that comment, which it describes as subjective and unfair, and submits, in essence, that, if there was a misunderstanding, that misunderstanding was due to the fact that the applicant had been invited to submit a tender for a project for which the specifications were unknown. The applicant claims, furthermore, that in any event the comment is vague and that it is impossible to argue against it.
- The abovementioned comment of the evaluation committee relates to the first award criterion for the contract at issue, namely that of 'fitness of the proposed strategy to perform the tasks of the contract'. As regards that award criterion, the Evropaïki Dynamiki-Steria consortium's tender was given a score of 23.2/40 whereas the successful tender received a score of 35.1/40.
- It must be held that, once more, in the context of its criticism of the abovementioned comment, the applicant reiterates the arguments it put forward in the context of its first plea, which has been rejected by the Court. Furthermore, by simply making statements, the applicant does not show in any way the merits of its claim that the comment quoted above is subjective, unfair and vague. It follows that the applicant's criticism in respect of the abovementioned comment of the evaluation committee does not show that that comment was wrong and, even less, that there was a manifest error of assessment in respect of its tender.
- Second, the applicant contests the evaluation committee's comment that '[t]he offer presents some inconsistencies, and in particular in the planning: for instance, some development activities are starting even before the start of the specifications'. The applicant, in its response to a written question from the Court, stated that a careful review of the Gantt diagrams included in its tender showed that, contrary to the evaluation committee's comment, it had envisaged that, save for some justified exceptions, development activities would start after the activities related to the specifications.
- The abovementioned comment of the evaluation committee, which is contested by the applicant, also concerns the first award criterion for the contract at issue.
- The Court, having examined the Gantt diagrams submitted by the applicant and taking into account the answers provided by the parties to the questions put by the Court at the hearing, finds that the diagrams do in fact give the impression that the applicant envisaged, in its planning of the project for the contract at issue, that at least some development activities would commence before the corresponding specification activities, thus showing that the evaluation committee's comment was well founded. Admittedly, the applicant, in essence, claimed at the hearing that any misunderstanding which might arise from reading the Gantt diagrams was due to the fact that those diagrams, as lodged before the Court and also included as part of the tender, were presented in A4 format, which meant that some information which was necessary to understand the planning of the project in the Evropaïki Dynamiki-Steria consortium's tender was not visible. The applicant has claimed that it had also included as part of its tender the same Gantt diagrams, but in A3 format, which made the relevant information concerning the planning of the project visible and show that the evaluation committee's comment was unfounded. However, irrespective of their alleged importance, the Gantt diagrams in A3 format were not available to the Court.
- In any event, even assuming that this argument presented by the applicant is well founded, it must be noted that it relates to the first award criterion for the contract at issue. As the tables set out in paragraph 22 above show, even if, in respect of that award criterion, the applicant's tender had been given maximum points, namely 40/40, the applicant could not have been awarded the contract, taking into account the number of points its tender received in respect of the other three award criteria.
- In those circumstances, it must be concluded that the applicant has not shown that the comment in question made by the evaluation committee was incorrect and that, in any event, it has not shown at all that that allegedly incorrect comment reflects a manifest error of assessment in the evaluation of its tender.
- Third, the applicant contests the following comment by the evaluation committee:
'The offer presents a detailed description of Cosmic FFP, but the tools proposed for estimates (Calico and Costar) are only suitable for estimates based on the Cocomo II methodology, which is incoherent (see section 4.1.3.5.1 [of the tender]).'
- That comment relates to the second award criterion for the contract at issue, namely 'fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks'. As regards that award criterion, the applicant's tender received a score of 16.7/30 whereas the successful tender received a score of 24.5/30.
- The Commission explained in its written pleadings and at the hearing that the inconsistency noted by the evaluation committee consisted in the fact that, while the applicant in its tender described the tools it intended to use to support the Cocomo method, which the call for tenders did not ask for, it did not provide any information regarding the infrastructure to support the Cosmic FFP method, which was the method required by the tender specifications. Furthermore, the applicant did not explain the link between the two methods, Cocomo and Cosmic FFP, mentioned in its tender or the link between the Cocomo method, which it mentioned in its tender for no apparent reason, and the system that is the subject of the contract at issue.
- In its reply to a written question put by the Court, the applicant submitted that the reference in its tender to the Cocomo method should not be considered to be an inconsistency and that the reason why it had not proposed specific tools for the Cosmic FFP methodology lay in the fact that such specific tools were not necessary. The successful tenderer, for its part, also did not propose such tools in its tender.
- It should be noted, first, that the tender specifications for the contract at issue do in fact require use of the Cosmic FFP system to provide estimates relating, in essence, to the effort required to carry out certain computer activities related to the contract at issue. A review of section 4.1.3.5.1 of the Evropaïki Dynamiki-Steria consortium's tender also shows that it refers very briefly and in general terms to the Cocomo method and the Calico and Costar tools. Finally, it should be noted that the evaluation committee criticised not only the Evropaïki Dynamiki-Steria consortium, but also the successful tenderer for not specifying the tools that would be used within the framework of the Cosmic FFP system.
- The Court finds that the applicant does not put forward a single argument to establish that those factual elements, which are not contested, mean that the evaluation committee's comment set out in paragraph 161 above was incorrect or, a fortiori, support the finding that that comment led the contracting authority, in that regard, to make a manifestly incorrect assessment of the Evropaïki Dynamiki-Steria consortium's tender, especially since the score given to that tender in respect of the second award criterion for the contract at issue, far from being based on that analysis alone, was also based on the evaluation committee's other, corresponding comments (see, to that effect, Case T-250/05 Evropaïki Dynamiki v Commission, paragraph 133 above, paragraph 106).
- Fourth, the applicant contests the evaluation committee's comment that 'RUP [was] considered throughout [the Evropaïki Dynamiki-Steria consortium's] offer as 'the' project management methodology, [even though its] software proposal for the development environment does not list any IBM-Rational licence'. That comment also relates to the second award criterion for the contract at issue.
- The Commission explained in its written pleadings and at the hearing that, by that comment, the evaluation committee had pointed to an inconsistency in the Evropaïki Dynamiki-Steria consortium's tender that consisted in the tender referring to RUP on several occasions as 'the' methodology to follow, but failing to state whether the consortium had a licence for the IBM-Rational software, which was required for that method, thus leaving open the question of who would pay for using that software, the applicant or the contracting authority.
- According to the applicant, the abovementioned comment was liable to mislead the contracting authority and is also irrelevant. The necessary licences had to be paid for by the applicant and there was thus no reason to refer to that matter at all in the tender, since the call for tenders did not require it. According to the applicant, it was obvious that it would use products covered by a licence to carry out its work.
- It suffices, in this respect, to state that the applicant's argument is of a general nature and not supported by any evidence. It is therefore not capable of showing that the abovementioned comment by the evaluation committee was incorrect or, even less, that the contracting authority made a manifest error of assessment.
- Fifth, the applicant contests the relevance of the evaluation committee's comment that '[a]lthough customs and excise experience is identified in [the Evropaïki Dynamiki-Steria consortium's tender] as a must in terms of skills, in practice, their proposal does not show such competences'. That comment relates to the third award criterion for the contract at issue, namely 'fitness of the proposed team organisation to perform the tasks'. The score given to the Evropaïki Dynamiki-Steria consortium's tender in respect of that award criterion was 14.5/20 whereas the successful tender received a score of 17.6/20.
- In the first place, the applicant submits that the abovementioned comment is not well founded, since the Evropaïki Dynamiki-Steria consortium had experience in the area of customs and excise and that experience was described in the tender. In the second place, the applicant states that there was no reason to include detailed information on that area in the tender, since the call for tenders did not ask for it and the tender specifications did not require that such 'competence' be offered. Finally, the applicant claims that the fact that the alleged lack of experience of the Evropaïki Dynamiki-Steria consortium in the area of customs and excise was being used to justify a mediocre evaluation of its tender constitutes an infringement of the call for tenders, since the call for tenders does not list that experience as an evaluation criterion.
- The applicant's criticism relates both to the relevance of the evaluation committee's comment and to its merits.
- As regards the relevance of the comment, the Court notes that, even though the tender specifications did not require tenderers to have customs and excise experience, the evaluation committee simply wanted to emphasise, with that comment, that there was an inconsistency in the Evropaïki Dynamiki-Steria consortium's tender. That inconsistency consisted in the fact that, while the consortium stated that the tenderer, in order to be successful, had to have customs and excise experience, its tender did not however show that it had such experience. Contrary to the applicant's claim, such a comment from the evaluation committee helped to clarify matters for the contracting authority.
- As regards the merits of the comment, the Commission explained that that comment was made in relation to section 6.3.1 of the Evropaïki Dynamiki-Steria consortium's tender, which stated that the business analysts in the proposed team had 'proven experience in the area of excise/tax/customs in the EU'. According to the Commission, the evaluation committee took the view that the curricula vitae submitted by the applicant for the business analysts did not show that experience. The applicant was not able to refute those explanations given by the Commission. In those circumstances, the Court finds that it has not been shown that the comment in question made by the evaluation committee was incorrect.
- Finally, it should be noted that the applicant contests the evaluation committee's comment relating to the second award criterion, which criticises the Evropaïki Dynamiki-Steria consortium's tender for including textbook-like references to, in particular, the architecture and IT tools used, without any justification or connection made to the objectives of the EMCS. The applicant also refutes the evaluation committee's comment relating to the fourth award criterion, concerning the allegedly general nature of the Evropaïki Dynamiki-Steria consortium's tender. However, the Court finds that, again, the applicant puts forward mere assertions, argues in a general manner and does not adduce any supporting evidence. Consequently, those complaints must be rejected.
- For the sake of completeness, the Court considers it important to emphasise that the applicant's approach, which is to criticise certain specific comments made by the evaluation committee, is ineffective, since the applicant does not show in any way how those allegedly incorrect comments were likely to bring about a manifest error of assessment of the Evropaïki Dynamiki-Steria consortium's tender. In this respect, the applicant should explain, above all, how the allegedly incorrect comment affects the score given to its tender. The applicant did not provide such an explanation.
- Having regard to the foregoing, the conclusion must be that the applicant has not shown that the contracting authority made manifest errors of assessment in the evaluation of Evropaïki Dynamiki-Steria consortium's tender. Consequently, the present plea in law must be rejected.
- It follows that the action must therefore be dismissed.
Costs
- The applicant has asked the Court to order the Commission to pay all costs, even if the application is dismissed. The applicant claims that as a result of the Taxation and Customs Union DG's failure to provide it in good time with sufficient reasons, it was not able fully to evaluate its chances of challenging the contested decision and was thus forced to bring the present action to preserve its rights.
- The Commission submits that that request has no basis in Community law.
- Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.
- Furthermore, Article 87(3) of those rules provides:
'Where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bear its own costs.
The Court ... may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.'
- In the present case, it has been found, inter alia, that the fourth plea, alleging a lack of relevant information and failure to state reasons, was unfounded. Furthermore, there is no other reason for the Court to deviate from the rule in Article 87(2) of the Rules of Procedure. Consequently, the applicant's request must be rejected.
- Since the applicant has been entirely unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.
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Azizi
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Cremona
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Frimodt Nielsen
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Delivered in open court in Luxembourg on 19 March 2010.
[Signatures]
Table of contents
Legal context
Background to the dispute
I Computerising the movement and surveillance of excisable products (EMCS)
II Award of the contract at issue
Procedure and forms of order sought by the parties
Law
I Admissibility
A Arguments of the parties
B Findings of the Court
II Substance
A The first plea: breach of the principles of non-discrimination and freedom of competition
1. Arguments of the parties
2. Findings of the Court
a) The first part of the plea, concerning the non-availability of the specifications for the EMCS
b) The second part of the plea, concerning the failure to communicate the NCTS source-code
Disparity in information to the benefit of the successful tenderer
The usefulness of the NCTS source-code for the formulation of the tenders
B The second plea: infringement of the financial regulation, the implementing rules, and Directives 92/50 and 2004/18
1. Arguments of the parties
2. Findings of the Court
C The fifth plea: breach of the principles of sound administration and diligence
1. Arguments of the parties
2. Findings of the Court
D The fourth plea: lack of relevant information and failure to state reasons
1. Arguments of the parties
2. Findings of the Court
E The third plea: manifest errors of assessment in the contracting authority's evaluation of the applicant's tender
1. Arguments of the parties
2. Findings of the Court
Costs
* Language of the case: English.
