European Dynamics Luxembourg and Evropaiki Dynamiki v Joint undertaking Fusion for Energy (Judgment) [2015] EUECJ T-553/13 (02 December 2015)

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(Public service contracts — Tendering procedure — Supply of IT services, consulting, software development, Internet and support — Rejection of the tender of one tenderer and award of the contracts to other tenderers — Non-contractual liability)

Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),

European Joint Undertaking for ITER and the Development of Fusion Energy, represented initially by H. Jahreiss, R. Hanak, A. Verpont, I. Costin and A. Nagy, and subsequently by R. Hanak, A. Verpont, I. Costin and A. Nagy, acting as Agents, and by P. Wytinck and B. Hoorelbeke, lawyers,

APPLICATION for (i) annulment of the decision of the European Joint Undertaking for ITER and the Development of Fusion Energy of 7 August 2013 taken in the context of the tendering procedure F4E-ADM-0464 concerning IT services, consulting, software development, Internet and support services (OJ 2012/S 213-352451) rejecting the tender submitted by European Dynamics Luxembourg SA and awarding the contracts to other tenderers, and (ii) an award of damages,

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

having regard to the written procedure and further to the hearing on 16 April 2015,

1 By contract notice of 6 November 2012, published in the Supplement to the Official Journal of the European Union (OJ 2012 S 213) under No 352451, the European Joint Undertaking for ITER and the Development of Fusion Energy (‘Fusion for Energy’ or ‘F4E’) launched Call for Tenders F4E-ADM-0464, entitled ‘Provision of Information and Communications Technology (ICT) Projects to Fusion for Energy’ on framework service contracts in cascade and concerning the provision of IT services and other related services. The deadline for the submission of tenders was fixed at 14 January 2013.

2 The applicants, European Dynamics Luxembourg SA, a company incorporated under Luxembourg law, and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, a parent company established in Athens (Greece), operate in the field of information and communications technology. The first applicant submitted a tender in response to the call for tenders on 14 January 2013.

3 The contract notice (Section IV.3.7) and the tender specifications (Section 6.3) required that the tenders should remain valid for a minimum of 130 days from the deadline for the receipt of tenders. Furthermore, the successful tenderers were required to maintain the validity of their tenders for a further 60 days from the notification of the award of the contract.

4 On 18 June 2013, the first applicant sent an e-mail to F4E pointing out that the last day of validity of its tender was 27 May 2013 and enquiring as to the status of the evaluation process. On 19 June 2013, F4E replied by e-mail, stating that the evaluation process was still ongoing and that all tenderers would be informed at the same time about the outcome of the evaluation and explaining that the delay was principally due to the number of tenders received.

5 By letter of 7 August 2013 (‘the contested letter’), F4E informed the first applicant of its decision to reject its tender (‘the award decision’) and to award the contract to three other tenderers. In that letter, F4E informed the first applicant that its tender had not been selected and that it was therefore not one of the three contractors for the multiple framework contracts. F4E explained to that applicant that, while its tender demonstrated technical merits, the first-ranked tender had received a higher technical score and proposed a lower price. In that letter, F4E provided a scoring table showing the technical scores for each award criterion (and for each sub-criterion of the first award criterion) together with the financial score of the first applicant and that of the first-ranked tender. Finally, that letter explained that that applicant could seek further clarification regarding the characteristics and relative advantages of the successful tenders.

6 On 8 August 2013, the first applicant replied to the contested letter, asking for the names of the three successful tenderers for the contracts in cascade (as well as the composition of the consortia and the names of the subcontractors), the scores awarded to its own tender and to all of the tenders selected in cascade in respect of each technical award criterion, and a copy of the evaluation report, or at least of the sections of that report concerning the evaluation of the three successful tenderers explaining their characteristics and relative advantages.

7 By letter of 23 August 2013, F4E informed the first applicant of the names of the three successful tenderers and provided detailed score cards indicating the scores obtained by that applicant and by the three selected tenders in respect of each technical award criterion, and their respective financial scores. That letter also set out, for each of the successful tenders, the award criteria in respect of which they had obtained a higher score and justification for that score.

8 On the same day, the first applicant replied to F4E, requesting it to confirm that the call for tenders concerned would be cancelled because the tenders were no longer valid as from 27 May 2013 and calling on it not to sign the contracts.

9 By letter of 29 August 2013, the first applicant reiterated its request that the call for tenders be cancelled.

10 By e-mail of 29 August 2013, F4E replied to the first applicant’s letters of 23 and 29 August 2013 and explained that the validity period specified in the contract notice and tender specifications was a minimum period. F4E acknowledged that the evaluation had been concluded after the minimum validity period of the tenders had expired, but stated that all the tenders, which were unchanged, had nevertheless been evaluated on the basis of the evaluation criteria set out in the tender specifications. Lastly, F4E added that cancellation of the call for tenders would be a disproportionate measure.

11 By e-mail of 29 August 2013, the first applicant categorically rejected the arguments contained in F4E’s letter of the same day, claiming that its tender had not been evaluated at all.

12 By e-mail of 13 September 2013, F4E replied to the first applicant’s e-mail of 29 August 2013 and confirmed that the award decision had been taken on 7 August 2013. Furthermore, F4E denied that it had failed to evaluate that applicant’s tender. As proof of the fact that that applicant’s tender had been duly evaluated, F4E included an extract of the evaluation report relating to that tender.

13 By application lodged at the Court Registry on 17 October 2013, the applicants brought the present action.

– annul the award decision and all related subsequent decisions, including the decision to award the contract to the three successful tenderers;

– order Fusion for Energy to pay them EUR 100 000 as compensation for loss of opportunity to obtain the contract;

16 The applicants rely on two pleas in law in support of their claim for annulment. The first plea in law alleges infringement of Article 138(2)(c) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1)(‘the Implementing Rules’) and infringement of the principle of non-discrimination. The second plea in law alleges infringement of the obligation to give reasons and of Article 113(2) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1)(‘the Financial Regulation’).

The first plea in law, alleging infringement of Article 138(2)(c) of the Implementing Rules and infringement of the principle of non-discrimination

17 The applicants claim that, by evaluating the tenders of tenderers after their validity period had come to an end, F4E infringed Article 138(2)(c) of the Implementing Rules and treated the first applicant in a discriminatory manner compared with other tenderers. The first applicant’s tender expired at the end of that period and F4E continued its evaluation after that date, confining that evaluation to the tenders of other tenderers which were not limited in time. According to the applicants, the evaluation had not been completed or even started when the validity period of the tenders ended.

18 According to the applicants, the principles of sound administration, transparency and equal treatment of tenderers require that no contract be awarded or signed in the event that one or more tenders are no longer valid in the course of the evaluation, unless the contracting authority officially requests and obtains an extension of the validity period of the tenders, which did not happen during the tendering procedure at issue. Accordingly, it is a prerequisite for the validity of the evaluation of tenders and the award procedure that tenders be valid throughout the entire evaluation process, in order to ensure that the evaluator’s examination is impartial.

19 In particular, the principle of equal treatment was infringed inasmuch as the different tenderers were not placed in a position of equality during the evaluation because certain tenders were still valid whereas the applicants’ tender had expired. Consequently, F4E should have either formally requested an extension of the tenders’ validity or cancelled the tendering procedure.

20 Fusion for Energy argues, in reply, that the applicants’ first plea in law should be declared inadmissible or, at the very least, ineffective, and, since it is based on a distortion of the facts, in part unfounded.

21 As a preliminary point, it should be noted that, under Article 130(2)(c) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1) [now Article 138(2)(c) of the Implementing Rules], ‘[t]he invitation to tender or to negotiate or to take part in the dialogue shall at least: … (c) specify the period during which a tender will remain valid and may not be varied in any respect’.

22 It must be stated at the outset that, contrary to the applicants’ claim, nothing in the text of that provision or any other provision applicable to call-for-tender procedures imposes an obligation on the contracting authority to complete the evaluation of a tender within the validity period of that tender. Whilst it is certainly in the interest of the contracting authority to complete its assessment before the expiry of the tenders’ validity period, exceeding that time-limit cannot render the procedure unlawful, nor can it constitute a ground for cancellation of the evaluation of the tenders.

23 According to case-law, that provision creates an obligation, on the part of the contracting authority, to determine in the call for tenders a period during which a tender will remain valid and an obligation, on the part of the tenderers, not to vary the terms of their tenders during that period, and that provision does not preclude the contracting authority from requesting tenderers to extend the validity of their tenders beyond the deadline specified in the tender specifications (judgment of 15 March 2012 in Evropaïki Dynamiki v Commission, T‑236/09, EU:T:2012:127, paragraph 37).

24 Furthermore, as regards the rationale of that provision, the General Court has ruled that the purpose of the validity period of tenders is to ensure that a tenderer does not vary his tender during the evaluation stage and that compliance with that period is not a condition sine qua non for the signature of contracts at the end of the award procedure (judgment in Evropaïki Dynamiki v Commission, cited in paragraph 23 above, EU:T:2012:127, paragraph 40).

25 It follows from that case-law that the applicants may not regard evaluation of the tenders during their validity period as a condition of the validity of the tender procedure, and that their claim that the principles of transparency, sound administration and equal treatment between tenderers preclude a contract from being concluded when one or more tenders is no longer valid must be rejected (see, to that effect, judgment in Evropaïki Dynamiki v Commission, cited in paragraph 23 above, EU:T:2012:127, paragraph 40).

26 Moreover, in so far as the applicants claim that F4E should have officially requested the first applicant to extend the validity of its tender when it realised that the period in question was not long enough to complete the evaluation phase, it should be stressed that, whilst it is true that the contracting authority is entitled to request an extension of the validity period of tenders, it is not required to do so under any of the applicable provisions.

27 As F4E correctly notes, the only consequence that may arise from that provision for the contracting authority is that it cannot oblige a tenderer whose tender has expired to sign and perform a contract based on the conditions set out in that tender.

28 In addition, equal treatment between tenderers is ensured by evaluating all the tenders using the same evaluation criteria and comparing them with one another. If the validity period of the tenders is not one of the evaluation criteria, it could only lead to discrimination in respect of their evaluation if it were proved that a tender was not taken into account on the ground that it had expired, which the applicants have failed to establish in the present case.

29 The file shows that the tenders of all tenderers were evaluated, including the first applicant’s tender, and that that evaluation took place while the tenders were valid, and the applicants have not put forward any arguments capable of casting doubt on that finding.

30 In such circumstances, the mere fact that the final decision was adopted after that validity period had ended cannot render the award decision unlawful. The first plea in law must therefore be dismissed.

The second plea in law, alleging breach of the obligation to give reasons and infringement of Article 113(2) of the Financial Regulation

31 The applicants claim that the reasoning of the award decision is inadequate and does not allow them to understand the specific reasons why the three successful tenders selected by the evaluation committee were superior to the first applicant’s tender. The award decision merely lists the various criteria and sub-criteria against which the tenders were assessed, assigns points to each tenderer for each of those criteria and asserts that each of the three successful tenders was of ‘better quality and merit’ than that applicant’s tender, without explaining sufficiently how each was superior in terms of quality and merit. Furthermore, the extract of the evaluation report containing information on the evaluation of the first applicant’s tender does not satisfy the obligations under Article 113 of the Financial Regulation and Article 161 of the Implementing Rules relating to information on the characteristics and relative advantages of the tender selected. The evaluation report and extract thereof do not constitute a comparative assessment enabling the applicants to ascertain the additional or superior elements offered by the successful tenders, and contain generic and vague comments.

32 Fusion for Energy contends that it complied in full with its obligation to give reasons, as defined in Article 113 of the Financial Regulation and the relevant case-law and disputes the applicants’ arguments in that regard.

33 The first point to be noted, as regards the provisions applicable in the present case, is that, under Article 94 of the Financial Regulation of Fusion for Energy, adopted by Decision of the Governing Board of 22 October 2007, as last amended on 25 November 2011, the procedures for the award of public contracts launched by F4E for the provision of services required for its administrative functioning and needs are subject to the general Financial Regulation applicable to the European Union and accordingly to its Implementing Rules.

34 However, Article 161(3) of the Implementing Rules applies to ‘contracts awarded by the Union institutions on their own account, with a value equal to or more than the thresholds referred to in Article 170(1) and which are not excluded from the scope of Directive 2004/18/EC’.

35 Without it being necessary to rule on the applicability in the present case of Article 161(3) of the Implementing Rules, the duty of the contracting authority to fulfil the obligation to give reasons derives from paragraphs 1 and 2 of that Article, read in conjunction with Article 113(2) of the Financial Regulation.

36 Article 113(2) of the Financial Regulation provides that ‘[t]he contracting authority shall notify all candidates or tenderers, whose requests to participate or tenders are rejected, of the grounds on which the decision was taken, as well as the duration of the standstill period referred to in Article 118(2)[; t]he contracting authority shall notify all tenderers who meet the exclusion and selection criteria, and who make a request in writing, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded’.

‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure.

2. The contracting authority shall, within not more than 15 calendar days from the date on which a written request is received, communicate the information provided for in Article 113(2) of the Financial Regulation.’

38 According to well-established case-law, the obligation to state reasons in respect of public contracts is fulfilled when the contracting authority informs 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 made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer (see, to that effect, judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, T‑465/04, EU:T:2008:324, paragraph 47 and the case-law cited).

39 In addition, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations (see judgment in Evropaïki Dynamiki v Commission, cited in paragraph 38 above, EU:T:2008:324, paragraph 49 and the case-law cited).

40 However, it is apparent from the case-law that a contracting authority cannot be required to communicate to an unsuccessful tenderer, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see, to that effect, orders of 20 September 2011 in Evropaïki Dynamiki v Commission, C‑561/10 P, EU:C:2011:598, paragraph 27; 29 November 2011 Evropaïki Dynamiki v Commission, C‑235/11 P, EU:C:2011:791, paragraphs 50 and 51; and judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraph 21).

41 Furthermore, it does not follow either from the first subparagraph of Article 113(2) of the Financial Regulation or from Article 161(2) of the Implementing Rules or from the case-law that, on written request by an unsuccessful tenderer, the contracting authority is bound to supply it with full copies of the evaluation report and the successful tender (see, by analogy, order of 13 January 2012 in Evropaïki Dynamiki v EEA, C‑462/10 P, EU:C:2012:14, paragraph 39).

42 Moreover, according to case-law, if the institution concerned sends a letter in reply to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 161(2) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see, by analogy, judgment of 20 May 2009 in VIP Car Solutions v Parliament, T‑89/07, ECR, EU:T:2009:163, paragraph 73 and the case-law cited).

43 In the present case, it must be noted that Fusion for Energy notified the applicant immediately, in the contested letter, of the grounds for rejection of its tender. In particular, it was stated that, although that applicant’s tender demonstrated certain merits, the tender of the first-ranked tenderer had received a higher technical score and was better value for money. Furthermore, the award decision included a table showing the minimum scores and the scores obtained by that applicant and by the successful tenderers in respect of each of the criteria and sub-criteria and the financial score for the two scenarios set out in the specifications.

44 Accordingly, the contested letter was drafted in accordance with Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules (see, to that effect, judgment of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, EU:T:2014:848, paragraph 69 and the case-law cited).

45 Subsequently, Fusion for Energy replied to the requests for further information sent by that applicant in letters of 23 August and 13 September 2013. The fact that those letters were sent to the first applicant after the time-limit laid down in Article 161(2) of the Implementing Rules had expired, does not preclude, in any way, their being taken into account, in the light of the case-law referred to in paragraph 42 above, for the purposes of examining whether the reasons are sufficient.

46 The first of those letters included the names of the three successful tenderers, the evaluation sheet showing the scores obtained by the first applicant and those successful tenderers in respect of each of the technical and financial criteria and sub-criteria and information, in respect of each successful tender and each of those criteria, concerning the ‘better quality and merit’ of the successful tenders compared with that applicant’s tender.

47 In an annex to the second letter, Fusion for Energy provided a full extract of the evaluation report concerning that applicant’s tender, containing specific comments on the evaluation of that tender in respect of each of the applicable technical criteria.

48 First, Fusion for Energy notified the first applicant of the names of the successful tenderers and provided a table enabling the first applicant to compare directly, in respect of the various criteria evaluated, the scores awarded to it, with the result that it could identify the respective strengths and weaknesses of the various tenders (see, to that effect, judgment in Euro-Link Consultants and European Profiles v Commission, cited in paragraph 44 above, EU:T:2014:848, paragraph 72).

49 Secondly, since, during the contract award procedure, the applicants were provided with a complete extract of the evaluation report concerning the first applicant’s tender, they were in a position to understand why those scores had been allocated to the tender in question and, more generally, the evaluation as a whole.

50 Thirdly, Fusion for Energy also provided comments concerning the evaluation of the successful tenderers’ tenders, which, despite being less detailed than those provided in respect of the first applicant’s tender, enabled the applicants and the Court, by reading them in conjunction with the other elements referred to above, in particular the full extract of the evaluation report concerning that tender, to understand the reasons for that tender’s rejection. The applicants were therefore in a position to be aware of the evaluation of that tender and on what points other tenderers’ tenders were better. By taking note of the details of that evaluation, they were able to identify, by converse implication, the elements of the report where other tenderers’ tenders did not contain the same shortcomings as that of the first applicant and, accordingly, received higher scores.

51 Fourthly, it should be noted that the applicants have failed to identify and to challenge, in a detailed manner, the specific points of the reasons given by the contracting authority concerning the evaluation of the first applicant’s tender, which they could consider to be inadequate and which prevent them from understanding the essential features of that evaluation and the reasons for the tender’s rejection. On the contrary, the applicants have merely complained of an alleged inherent inadequacy in the additional reasoning concerning the evaluation of the successful tenderers’ tenders and the absence of an explanation of the reasons why those tenders were superior to the first applicant’s tender. In particular, they were wrong to assume that that tender had not been evaluated or evaluated only after its validity period had expired. Those general and unsubstantiated findings are not, however, sufficient to call into question the adequacy of the reasons for the award decision as a whole, when it is read in context (see paragraphs 48 to 50 above).

52 In the light of the above, it must be concluded that the applicants have failed to demonstrate that the reasons for the award decision are inadequate. The second plea in law must therefore be dismissed as unfounded.

53 The application to annul the decision awarding the contract to the successful tenderers must be rejected as a result of the rejection of the application to annul the award decision, with which it is closely connected (see, to that effect, judgment of 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 170 and the case-law cited).

55 The applicants consider that the conditions giving rise to non-contractual liability of the European Union are satisfied in the present case. In particular, they submit, Fusion for Energy’s breach of Articles 102 and 113 of the Financial Regulation, Articles 138(2)(c) and 161(1) and (3) of the Implementing Rules, the specifications and the principle of equal treatment was sufficiently serious. The unlawful conduct consisted in carrying out the evaluation after the validity period of the tenders had expired and evaluating only the tenders which were valid, excluding that of the applicants, without requesting that the applicants extend the validity period of their tender. In addition, they claim, the provisions infringed have a particular degree of clarity and precision and the contracting authority acted deliberately. The criteria of damage and causation were, in addition, fulfilled in the present case. Consequently, the applicants seek compensation in the amount of EUR 100 000, for loss of opportunity to obtain the contract. Since, in their view, Fusion for Energy’s conduct was arbitrary, the applicants also claim payment of exemplary damages and interest, quantified at EUR 50 000.

56 Fusion for Energy contends that none of the three conditions for incurring non-contractual liability on the part of the EU institutions has been met in the present case.

57 It should first be noted that, according to settled case-law, in order for the Union to incur non-contractual liability, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is actual and certain and that there is a direct causal link between the conduct of the institution concerned and the damage relied upon (judgments of 29 September 1982 in Oleifici Mediterranei v EEC, 26/81, ECR, EU:C:1982:318, paragraph 16, and 9 July 1999 New Europe Consulting and Brown v Commission, T‑231/97, ECR, EU:T:1999:146, paragraph 29).

58 Moreover, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions which give rise to that liability (judgments of 15 September 1994 in KYDEP v Council and Commission, C‑146/91, ECR, EU:C:1994:329, paragraph 81; 14 October 1999 Atlanta v European Community, C‑104/97 P, ECR, EU:C:1999:498, paragraph 65; and 10 December 2009 Antwerpse Bouwwerken v Commission, T‑195/08, ECR, EU:T:2009:491, paragraph 91).

59 In the present case, it is clear from the Court’s findings on the claim for annulment that the applicants have not proved that Fusion for Energy acted unlawfully.

60 It follows that the claim for compensation must be dismissed as unfounded in its entirety.

62 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by Fusion for Energy.

2. Orders European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> European Dynamics Luxembourg and Evropaiki Dynamiki v Joint undertaking Fusion for Energy (Judgment) [2015] EUECJ T-553/13 (02 December 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T55313.html Cite as: EU:T:2015:918, [2015] EUECJ T-553/13, ECLI:EU:T:2015:918

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