Euro -Link Consultants and European Profiles v Commission (Judgment) [2014] EUECJ T-199/12 (02 October 2014)

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(Public service contracts — Tender procedure — Crimean tourism diversification and support project — Rejection of the applicants’ tender — Action for annulment — Measure not amenable to review — Confirmatory measure — Partial inadmissibility — Obligation to state reasons — Award criteria — Manifest error of assessment — Misuse of powers — Equal treatment)

European Profiles AE Meleton kai Symvoulon Epicheiriseon, established in Athens (Greece),

European Commission, represented initially by S. Bartelt and A. Bordes, and subsequently by S. Bartelt and M. Konstantinidis, acting as Agents,

APPLICATION for the annulment of the decision of 28 February 2012 of the European Union Delegation to Ukraine, in the restricted tender procedure EuropeAid/131567/C/SER/UA ‘Crimean tourism diversification and support project’, not to award the contract to the applicants’ consortium, and the subsequent decisions rejecting the applicants’ complaints made on 14 March 2012 by that authority and on 2 May 2012 by the Director of the Neighbourhood Directorate of the Commission’s Directorate General for Development and Co‑operation — EuropeAid,

composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 13 March 2014,

1 The award of service contracts by the European Commission in the context of the European Union’s external actions is governed by the provisions of the second part of Title IV 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’).

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

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

3 The Practical Guide to Contract Procedures for EU external actions, in its 2010 version, updated in March 2011 (‘the PRAG’), applies to all EU external aid contracts financed from the EU general budget and the 10th European Development Fund, and, accordingly, to the call for tenders at issue in the present proceedings.

4 The first subparagraph of point 2.4.14 of the PRAG, entitled ‘Ethics clauses’, provides:

‘Any attempt by a candidate, applicant or tenderer to obtain confidential information, enter into unlawful agreements with competitors or influence the committee or the Contracting Authority during the process of examining, clarifying, evaluating and comparing tenders and applications will lead to the rejection of its candidacy, proposal or tender.’

‘[T]enderers … believing that they have been harmed by an error or irregularity during the award process may petition the Contracting Authority directly. The Contracting Authority must reply within 45 days of receipt of the complaint.’

6 Point 2.8.2 of the PRAG, entitled ‘Impartiality and confidentiality’, provides:

‘All members of the Evaluation Committee and any observers must sign a Declaration of Impartiality and Confidentiality …

While the procurement procedure is under way, all contacts between the contracting authority and candidates or tenderers must satisfy conditions ensuring transparency and equal treatment; they may not lead to amendment of the conditions of the contract or the terms of the original tender. No information about the examination, clarification, evaluation or decisions about the contract award can be disclosed before the signature of the contract(s). Any attempt by a tenderer or applicant to influence the process in any way (whether by initiating contact with members of the Evaluation Committee or otherwise) may result in the immediate exclusion of its tender or proposal.’

‘With the agreement of the other Evaluation Committee members, the Chairperson may communicate in writing with tenderers whose submissions require clarification, offering them the possibility to respond within a reasonable time limit to be fixed by the Committee.

The tenderers must provide proof documents for the key experts proposed. This includes copies of the diplomas mentioned in the CV and employers’ certificates or references proving the professional experience indicated in the CV. If missing proofs are requested it should only be for the relevant experience and diplomas which are among the requirements in the Terms of Reference.

Interviews should be standard practice whenever the expert proposed has no relevant experience on EU projects in the same language area, as evidenced by the CV. In other cases verification/checks within EC are more appropriate (centralised procedures). They shall therefore be provided for in the tender dossier and must be well prepared if conducted.

The Evaluation Committee may, after writing up its provisional conclusions and before definitively concluding its evaluation of the technical offers, decide to interview the key experts proposed in technically compliant tenders (i.e. those which have achieved an average score of 80 points or more in the technical evaluation).

Out of the tenders reaching the 80-point threshold, the best technical offer is awarded 100 points. The others receive points calculated using the following formula:

Technical score = (final score of the technical offer in question/final score of the best technical offer) x 100.’

8 Pursuant to point 3.3.10.5 of the PRAG, entitled ‘Conclusions of the Evaluation Committee’, ‘[t]he best value for money is established by weighing technical quality against price on an 80/20 basis’.

9 On 28 July 2011, the Commission launched, via the European Union Delegation to Ukraine, the restricted tender procedure EuropeAid/131567/C/SER/UA ‘Crimean tourism diversification and support project’ (OJ/S 152-251372, ‘the call for tenders’), intended to promote the diversification of the tourism industry in the Autonomous Republic of Crimea and Sevastopol (Ukraine) and to create a more balanced and attractive tourism product.

10 The call for tenders was composed, inter alia, of instructions to tenderers, general conditions for service contracts and terms of reference.

11 Point 4 of the instructions to tenderers sets out the formal requirements for the submission of tenders. In particular, point 4.1.4 of the instructions to tenderers reiterates the requirement set out in point 3.3.10.3 of the PRAG that the tenderers must provide documents proving the qualifications and professional experience of the key experts proposed.

12 Point 12.3 of the instructions to tenderers reproduces the wording of point 3.3.10.5 of the PRAG (see paragraph 8 above).

13 Point 12.4 of the instructions to tenderers, entitled ‘Confidentiality’, states:

‘The entire evaluation procedure is confidential … The Evaluation Committee’s decisions are collective and its deliberations are held in closed session. The members of the Evaluation Committee are bound to secrecy …’

14 Point 13(a) of the instructions to tenderers reiterates, in essence, point 2.4.14 of the PRAG (see paragraph 4 above).

15 Point 6.1.1 of the terms of reference specifies the required qualifications and professional experience of the key experts.

16 The applicants, Euro-Link Consultants Srl (‘Euro-Link’) and European Profiles AE Meleton kai Symvoulon Epicheiriseon, are consultancy firms, Romanian and Greek respectively. They were part of a consortium led by Euro-Link established for the purposes of the restricted tender procedure at issue in the present case.

17 On 3 November 2011, the Commission informed Euro-Link that the consortium it led was invited to participate in the restricted tender procedure and provided it with the instructions to tenderers, a draft contract, the general conditions for service contracts, the terms of reference and the form to be used to submit its tender.

18 By letter of 16 November 2011, following a request for clarification from a tenderer, the Commission specified to all the preselected tenderers that fluency in Russian was considered to be a minimum requirement for the three key experts, failing which their tender would be rejected.

19 The applicants’ consortium submitted a tender within the prescribed period.

20 The Evaluation Committee met on seven occasions in January 2012 in the premises of the EU delegation to Kiev (Ukraine). On 26 January 2012, it interviewed all the team leaders and key experts proposed by the tenderers.

21 On 28 February 2012, the Commission sent Euro-Link a notice by email that the contract had not been awarded to it. The Commission also sent it a letter by fax (‘the non-award decision’) in which it identified the tenderer ranked in first place, the consortium led by GDSI Ltd (‘GDSI’). That letter also included a table that contained the scores awarded to the tender from its consortium and those awarded to the selected tender.

22 On 29 February 2012, Euro-Link sent a letter to the Commission in which it disputed the validity of the tender evaluation procedure. In particular, it claimed that GDSI’s team leader, Ms T., did not meet the conditions set by the terms of reference relating to professional experience and command of Russian, with the result that GDSI’s tender did not comply with the terms of reference.

23 In a letter of 14 March 2012, the Commission replied to Euro-Link that the Evaluation Committee had examined the documents, curriculum vitae (CVs) and references relating to the professional experience of the key experts that had been provided to it in the present call for tenders. It indicated, however, that other documents provided by Euro-Link or by any other company were not relevant and could not be taken into consideration. The Commission stated that, having regard to the references provided, Ms T.’s CV met the minimum requirements and that she had not only demonstrated at the interview that her level of Russian was sufficient to perform her tasks and complied with the requirements set out in the terms of reference, but during the interview demonstrated a better level of Russian than any other candidate. The Commission concluded that there was no need to re-open the evaluation procedure or to amend the non-award decision.

24 By letters of 22 March 2012, Euro-Link notified the Director General of the Commission’s Directorate General for Development and Co-operation — EuropeAid and the European Anti-Fraud Office (‘OLAF’) of alleged irregularities in the tender evaluation procedure.

25 The Director of the Neighbourhood Directorate of the Commission’s Directorate General for Development and Co-operation — EuropeAid replied to Euro-Link on 28 March 2012. He informed it that the tender procedure had been carried out according to the applicable provisions. However, he noted that the information contained in Euro-Link’s letter of 22 March 2012 demonstrated that Euro-Link and a member of its consortium had had access to confidential information while the tender procedure was still under way. The Commission therefore requested it to indicate its source and the manner in which it had obtained that information. It also indicated that the complete case-file had already been sent to OLAF for examination.

26 By letter of 18 April 2012, Euro-Link informed the Commission that neither it, nor the members of the consortium which it led, had attempted to obtain or obtained confidential information during the evaluation procedure. Amongst the clarifications provided in its letter, Euro-Link referred to contacts with the Ukrainian authorities. Euro-Link stated that it had been informed that a member of the Evaluation Committee had influenced the other members of that committee by telling them that he had contacted the EU Delegation to Serbia, which had given him ‘not very positive’ information on the team leader proposed by the consortium led by Euro-Link, to the effect that the team leader probably did not speak Russian. Euro-Link stated that that information had been provided to it by the team leader proposed in its consortium’s tender, who had obtained that information from Mr X, an attaché to the EU delegation to Serbia. Euro-Link also drew the Commission’s attention to the fact that the Commission had not taken a position on its allegations relating to the failure to comply with the requirements of the terms of reference by the team leader of the consortium led by GDSI.

27 The Director of the Neighbourhood Directorate replied to Euro-Link by letter of 2 May 2012 in which he took note of the fact that Euro-Link had confirmed in its letter of 18 April 2012 that it had been in contact with the Ukrainian authorities. The Commission informed Euro-Link that that conduct constituted a clear infringement of point 2.8.2 of the PRAG and of point 13 of the instructions to tenderers. As regards Euro-Link’s allegation that a member of the Evaluation Committee had influenced the other members by contacting the EU Delegation to Serbia, the Commission explained to it that the Evaluation Committee was entitled to perform all necessary checks and that some controls are part of the standard tasks to be carried out in the context of the evaluation procedure. As for the allegations relating to the failure to observe the requirements of the terms of reference by the GDSI consortium’s team leader, the Commission considered that it had already replied to that and noted that ‘any assessment [of] the fulfilment of the requirements of the terms of reference and any subsequent decision fall within the exclusive competence of the evaluation committee and the responsible Contracting Authority’.

28 By letter of 14 May 2012, Euro-Link stated again that neither it, nor the members of the consortium which it led, had attempted to obtain or obtained confidential information during the evaluation procedure.

29 By application lodged at the Court Registry on 8 May 2012, the applicants brought the present action.

30 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Sixth Chamber, to which this case was according assigned.

31 The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 13 March 2014.

32 At the hearing, the Court asked the Commission to submit to it the table of key experts, showing the qualifications and professional experience of the experts proposed by the consortium led by GDSI. The Commission was also authorised to add to the file the evaluation report drawn up by the Evaluation Committee.

33 The applicants submitted their observations on those documents on 28 March 2014.

– dismiss the action as inadmissible in so far as it is directed against acts other than the non-award decision;

– dismiss the applicants’ claims as inadmissible in accordance with the principle of ‘nemo auditur propriam turpitudinem allegans’;

37 In support of their action, the applicants rely on three grounds alleging (i) infringement of the obligation to state reasons, (ii) infringement of an essential procedural requirement, and (iii) infringement of the principle of equal treatment and a misuse of powers.

38 The Commission considers that the letters of 14 March and 2 May 2012 rejecting Euro-Link’s complaints only confirm the non-award decision and therefore do not constitute actionable measures, since they do not produce legal effects on the applicants’ situation. Consequently, the action must be dismissed as inadmissible in so far as it is directed against those two letters.

39 At the hearing, the Commission withdrew its argument that the action should be dismissed as inadmissible in accordance with the principle of ‘nemo auditur propriam turpitudinem allegans’. It nevertheless maintained that the evidence relied on by the applicants in support of their second and third pleas in law was inadmissible, since it had been obtained in breach of that principle.

40 According to settled case-law, an action for the annulment of a measure which merely confirms a previous decision that has become final is inadmissible. A measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous decision and was not preceded by a re-examination of the circumstances of the person to whom that decision was addressed (judgment of 7 February 2001 in Inpesca v Commission, T‑186/98, ECR, EU:T:2001:42, paragraph 44, and judgment of 22 May 2012 in Sviluppo Globale v Commission, T‑6/10, EU:T:2012:245, paragraph 22).

41 However, the confirmatory or other nature of a measure cannot be determined solely with reference to its content as compared with that of the previous decision which it is said to confirm. The nature of the contested measure must also be appraised in the light of the nature of the request to which it constitutes a reply (judgment in Inpesca v Commission, EU:T:2001:42, paragraph 45, and judgment in Sviluppo Globale v Commission, EU:T:2012:245, paragraph 23).

42 In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision (judgment in Inpesca v Commission, EU:T:2001:42, paragraph 46, and judgment in Sviluppo Globale v Commission, EU:T:2012:245, paragraph 24).

43 It is settled case-law that the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become final. If a request for reconsideration of a decision which has become final is based on substantial new facts, the institution concerned is required to comply with the request. After the reconsideration, the institution must take a new decision, the legality of which may where necessary be challenged before the European Union judicature. If, on the other hand, the request for reconsideration is not based on substantial new facts, the institution is not required to comply with it (see judgment in Inpesca v Commission, EU:T:2001:42, paragraphs 47 and 48 and the case-law cited).

44 An action brought against a decision refusing to reconsider a decision which has become final will be declared admissible if it appears that the request was actually based on substantial new facts. On the other hand, if it appears that the request was not based on such facts, an action against the decision refusing to reconsider it will be declared inadmissible (see judgment in Inpesca v Commission, EU:T:2001:42, paragraph 49 and the case-law cited).

45 As regards the question of the criteria which determine whether facts are to be classified as ‘substantial new’ facts, it is clear from the case-law that, in order for a fact to be ‘new’, it is essential that neither the applicant nor the administration was aware of, or in a position to be aware of, the fact in question when the previous decision was adopted (see judgment in Inpesca v Commission, EU:T:2001:42, paragraph 50 and the case-law cited).

46 In order to be ‘substantial’, the fact concerned must be capable of substantially altering the applicant’s situation forming the basis of the initial request that gave rise to the previous decision which has become final (see judgment in Inpesca v Commission, EU:T:2001:42, paragraph 51 and the case-law cited).

47 The admissibility of the present action, in so far as it is directed against the letters of 14 March and 2 May 2012, must be examined in the light of that case-law.

48 In that regard, it must be noted that, in its complaint of 29 February 2012, Euro‑Link, in essence, challenged the validity of the award of the contract to the consortium led by GDSI, alleging an erroneous evaluation of the minimum requirements set out in the call for tenders. Euro-Link sent with that complaint a CV in its possession of the key expert of the consortium led by GDSI, Ms T. It is undisputed, in view of the documents produced by the Commission at the hearing, that several pieces of information contained in the version of Ms T.’s CV that was submitted to the Evaluation Committee by the consortium led by GDSI did not appear in the version of her CV that was sent to the Commission by Euro-Link.

49 In addition, it can be seen from the letter of 14 March 2012 that, in that letter, the Commission merely indicated that it confirmed the non-award decision and that a new examination of that decision was not necessary, since the Evaluation Committee had examined the version of Ms T.’s CV submitted by GDSI and it had verified the documents relating to the qualifications and professional experience declared by each expert.

50 It follows from the case-law cited in paragraphs 41 to 44 above that an action for annulment of a measure by which an institution refuses a request for reconsideration, such as the letter of 14 March 2012, is admissible only if that request was based on substantial new facts, within the meaning of the case-law cited in paragraph 45 above. It must therefore be examined whether the request for reconsideration contained in Euro-Link’s letter of 29 February 2012 was based on facts that were both new and substantial.

51 In that respect, it must be noted that the only factual evidence presented by Euro‑Link in support of its letter of 29 February 2012 was the CV that it had received from Ms T. In those circumstances, since, as the Commission stated in its letter of 14 March 2012, the Evaluation Committee had examined the version of Ms T.’s CV submitted by GDSI in its tender and verified the supporting documents relating to the professional experience indicated in that CV, the Commission was entitled to consider that the version of Ms T.’s CV submitted to it by Euro-Link was not a substantial new fact justifying reconsideration of the award decision. As the Commission pointed out at the hearing, experts may submit different CVs to competing tenderers in order to improve their chances of being hired by one of those tenderers in particular.

52 Otherwise, the statements contained in Euro-Link’s letter of 29 February 2012 are not facts, but rather pleas put forward in the context of their administrative appeal. Those statements merely alleged that the contracting authority had not respected its obligations under the terms of reference. Such pleas cannot be regarded as new facts within the meaning of the case-law cited in paragraph 42 above without rendering that case-law inoperative (see, to that effect, judgment in Sviluppo Globale v Commission, EU:T:2012:245, paragraph 34).

53 Accordingly, in the light of the case-law cited in paragraph 44 above, the action must be declared inadmissible in so far as it is directed against the letter of 14 March 2012, refusing Euro-Link’s request for reconsideration of 29 February 2012.

54 In addition, it must be pointed out that Euro-Link, in its letter of 22 March 2012, merely drew the Commission’s attention to the ‘irregularities, misconduct and breach of procedures’ that had allegedly taken place during the evaluation of the tenders. As noted in paragraph 52 above, since those statements merely alleged that the contracting authority had not respected its obligations under the rules applicable to the tender procedure, that letter cannot be regarded as containing new facts. That is also the case for most of the contents of Euro-Link’s letter of 18 April 2012. In other respects that letter merely reiterates the allegations relating to Ms T.’s qualifications contained in the complaint of 29 February 2012.

55 Accordingly, in the light of the case-law cited in paragraph 44 above, the action must be declared inadmissible in so far as it is directed against the letter of 2 May 2012, refusing Euro-Link’s requests for reconsideration of 22 March and 18 April 2012.

The first plea in law, alleging, inter alia, infringement of the obligation to state reasons

56 As a preliminary, it must be noted that — although unrelated to the obligation to state reasons — the applicants also argue in the first plea that the Commission erred in law in failing to examine the version of Ms T.’s CV annexed to Euro‑Link’s complaint of 29 February 2012. As a separate argument, it is alleged that the Commission did not adequately verify whether Ms T.’s qualifications met the requirements of the call for tenders.

57 The applicants’ first plea is therefore composed, in essence, of three parts, alleging (i) a failure to state reasons for the non-award decision, (ii) a failure to take into account the version of Ms T.’s CV submitted by the applicants and (iii) a challenge to the version of Ms T.’s CV submitted by the consortium led by GDSI and placed in the file at the hearing.

58 By the first part, alleging a failure to state reasons for the non-award decision, the applicants submit that the Commission infringed an essential procedural requirement since the scores communicated in the non-award decision were completely indecipherable and incorrect and were not in any way explained as far as the characteristics and relative advantages of the successful tender were concerned. In its letter of 2 May 2012, the Commission should have responded to the applicants’ allegations in a clear, detailed and responsible manner.

59 By the second part, alleging the failure to take into account the version of Ms T.’s CV submitted by the applicants, the applicants argue that, in accordance with the principle of good administration, the Commission should have acted on their complaint by verifying whether Ms T. met the minimum requirements set out in the call for tenders, irrespective of the evidence invoked. That verification was particularly important in the present case because (i) the Commission tends to check the statements contained in CVs, (ii) the applicants invoked a lack of transparency and impartiality, (iii) Ms T.’s qualifications had been called into question by another consortium and (iv) there was a divergence between the version of her CV submitted by GSDI in the call for tenders and the version in the possession of the applicants.

60 By the third part, raised in their observations on the documents lodged at the hearing, the applicants challenge the version of Ms T.’s CV submitted by the consortium led by GDSI. They submit, first of all, that it does not meet the formal requirements set out in point 4.1.3(b) of the instructions to tenderers, with the result that the version of Ms T.’s CV submitted by the applicants was treated differently from the version submitted by the consortium led by GDSI. The applicants then claim that Ms T. did not meet the minimum requirements set out in point 6.1.1 of the terms of reference. They claim, lastly, that the Commission did not submit, either to them or to the Court, evidence of Ms T.’s professional experience.

62 As regards the first part, alleging a failure to state reasons for the non-award decision, it must be borne in mind that, according to the first subparagraph of Article 100(2) of the Financial Regulation, the contracting authority is required to notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and to notify all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

63 It is clear from those provisions, and from the Court’s case-law, that the Commission 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, 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, to that effect, judgment of 5 October 2012 in Evropaïki Dynamiki v Commission, T‑591/08, EU:T:2012:522, paragraph 77 and the case-law cited).

64 In the present case, the applicants acknowledged at the hearing that Euro-Link’s letter to the Commission of 29 February 2012 was the only request for clarification it sent to the Commission concerning its award decision. In that letter, Euro-Link asked the Commission, under point 2.4.15 of the PRAG, to define in writing its position on the alleged irregularities that took place in the course of the tender procedure. It can be seen from paragraph 22 above that that request concerned the compliance of the tenderer submitted by the consortium led by GDSI with the minimum requirements. Accordingly, it did not contain any request intended to obtain the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded. Accordingly, the applicants’ argument that the Commission did not notify it of the characteristics and relative advantages of the successful tender must be rejected.

65 The applicants also allege a breach of the obligation to state reasons for the contested decision.

66 According to that obligation, laid down in Article 296 TFEU, the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its supervisory jurisdiction (see Evropaïki Dynamiki v Commission, EU:T:2012:522, paragraph 78 and the case-law cited).

67 It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63 and the case-law cited, and judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, T‑465/04, EU:T:2008:324, paragraph 49).

68 However, it follows from that case-law that the Commission 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 (see judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraph 21 and the case-law cited).

69 In the present case, it must be noted that, upon adopting the non-award decision, the Commission immediately communicated the name of the successful tenderer and the reasons that the tender submitted by the applicants’ consortium had been rejected. In particular, that letter stated that ‘your offer was not the most economically advantageous of those tenders which were technically compliant’. Moreover, the decision contained a table showing the average and overall scores awarded to the tender submitted by the applicants’ consortium and to that of the consortium led by GDSI. That table indicated, in particular, the scores relating to the award criteria set out in points 4.1 and 4.2 of the instructions to tenderers, namely organisation and methodology, the three key experts and the financial offer. Accordingly, the non-award decision was drafted in accordance with the provisions of Article 100(2) of the Financial Regulation (see, to that effect, judgment of 13 December 2013 in European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑165/12, ECR, EU:T:2013:646, paragraph 69).

70 In that respect, the applicants’ argument that the table communicated to them in the non-award decision did not correspond to that set out in point 3.3.10.5 of the PRAG must be rejected. First, in the present case, no provision required the contracting authority to use that table in order to communicate the results of the evaluation procedure. On the contrary, it follows from point 3.3.10.5 of the PRAG that the table in question is a ‘Specimen Tender Evaluation Summary’. Secondly, the principal difference between the table provided in the present case by the contracting authority and that set out in point 3.3.10.5 of the PRAG is that, in the former, the titles of the lines have been swapped with those of the columns and it contains a greater level of detail than the latter table, for which the Commission cannot be criticised.

71 As regards the alleged indecipherable and erroneous nature of the notes set out in the table in the non-award decision, it must be pointed out that the Evaluation Committee carried out its calculations in accordance with the rules laid down in the PRAG and in the instructions to tenderers. The calculation method was described in point 3.3.10.3 of the PRAG (see paragraph 7 above). Thus, the breakdown of the technical score corresponded to the categories set out in the evaluation grid communicated to the tenderers. The fact that the addition of those various scores gives a figure different from the technical score set out in the table can be explained by the fact that the latter was obtained by dividing the final score of the applicants’ technical offer by the final score of the best technical offer. Accordingly, the applicants had all the information necessary to understand the manner in which their final score was calculated.

72 In any event, the table set out in the non-award decision enabled the applicants to compare directly, as regards the principal criteria evaluated, the scores awarded to their tender with those obtained by the tenderer ranked in first place (see, to that effect, judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, T‑59/05, EU:T:2008:326, paragraph 127), with the result that they could identify the respective strengths and weaknesses of each tender.

73 In addition, the information contained in the letter of 14 March 2012 responds in detail to Euro-Link’s allegations. In that letter, the Commission stated the reasons that it could not take into consideration the version of Ms T.’s CV submitted by Euro-Link and the manner in which the key experts had been evaluated, as regards inter alia, their knowledge of Russian. The level of detail of that information justified the Commission’s decision merely to refer to it in the letter of 2 May 2012.

74 Accordingly, it must be found that the Commission gave sufficient reasons for the non-award decision, since the applicants were, on reading that decision, in a position to ascertain the reasons for it in order to defend their rights, which they did in the present case.

75 As regards the second part, alleging failure to take into account the version of Ms T.’s CV submitted by the applicants, it can be seen from paragraph 51 above that the version of Ms T.’s CV annexed to Euro-Link’s complaint of 29 February 2012 was not relevant for purpose of evaluating the tender submitted by the consortium led by GDSI. Thus, in the absence of other new and relevant information, the Commission was not required to carry out a new examination of the tenders that it had already evaluated. Moreover, it can be seen from the Commission’s letter of 14 March 2012, from its reply and from its statements at the hearing that it met its obligations in verifying the documents required under point 4.1.4 of the instructions to tenderers. Furthermore, the applicants have not put forward any relevant evidence capable of calling into question that verification. In those circumstances, the applicants’ allegation of an irregularity must be rejected.

76 As regards the third part, concerning a challenge to the version of Ms T.’s CV submitted by the consortium led by GDSI, it must be pointed out that the table of key experts lodged at the hearing (see paragraph 32 above) comprised a detailed CV of each of the three key experts proposed by the consortium led by GDSI. The professional experience indicated in each CV specified the period, place, employer, job title and description and referred to the supporting documents for each item of professional experience. In Ms T.’s case, the CV contained 22 prior items of professional experience, with the specific duties and dates.

77 In that respect, it is undisputed, first of all, that Ms T.’s CV submitted by GDSI contained six pages, whereas point 4.1.3(b) of the instructions to tenderers required that the CVs of the key experts be limited to three pages. However, point 4 of those instructions indicates that failure to respect the requirements in point 4.1 of that document constitutes a formal error and may result in the rejection of the tender, thus allowing the contracting authority a discretion in that regard. In accordance with settled case-law, the Commission, like the other institutions, has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 75 and the case-law cited).

78 As regards the alleged infringement of the principle of equal treatment, it must be noted that, according to settled case-law, that principle requires that comparable situations not be treated differently and different situations not be treated alike unless such treatment is objectively justified (see judgment of 10 October 2013 in Manova, C‑336/12, ECR, EU:C:2013:647, paragraph 30 and the case-law cited). In the present case, it must be noted that the different treatment of the version of Ms T.’s CV submitted to the Evaluation Committee by the consortium led by GDSI and that submitted by the applicants is justified by the different situations in which those two documents were submitted. The first, submitted in the context of the evaluation procedure, was intended to be examined by the contracting authority, whereas the second, submitted after the contract had been awarded, did not constitute, subject to the examinations carried out by the Commission, evidence capable of calling into question the probative value of the first.

79 In the present case, the Court considers that, in deciding to take into consideration the version of Ms T.’s CV submitted by the consortium led by GDSI despite its length, the Commission did not commit a manifest error of assessment, or infringe the principle of equal treatment. In those circumstances, the Commission cannot be criticised for accepting the version of Ms T.’s CV submitted by the consortium led by GDSI despite its length.

80 In their observations on those documents, the applicants disputed that Ms T.’s duties with the Organising Committee for the 2004 Olympic Games in Athens and at the University of Thessaly, as indicated in the version of her CV submitted to the Evaluation Committee by the consortium led by GDSI, could constitute relevant professional experience in order to meet the criterion laid down in point 6.1.1 of the terms of reference, according to which the team leader must have at least 10 years professional experience in international tourism development.

81 However, it can be seen from the version of Ms T.’s CV examined by the Evaluation Committee and submitted to the Court that, apart from the periods during which she worked for the Organising Committee of the 2004 Olympic Games in Athens and for the University of Thessaly, Ms T. had approximately 10 years and 9 months of potentially relevant professional experience in the field of international tourism development. That experience is therefore sufficient to justify the Commission’s conclusion that Ms T. had 10 years of professional experience in the field at issue as required in point 6.1.1 of the terms of reference. Accordingly, that argument must be rejected.

82 Lastly, the applicants state, in their observations on the documents lodged at the hearing, that the Commission did not submit, either to them or to the Court, any evidence to substantiate the professional experience indicated in Ms T.’s CV. In that regard, it must be noted that, with the exception of her duties with the Organising Committee of the 2004 Olympic Games in Athens and at the University of Thessaly (see paragraph 81 above), the applicants have not contested any aspect of Ms T.’s professional experience as indicated in the CV lodged at the hearing. Since the evidence called for does not support their arguments, their complaint is unfounded. Moreover, the applicants have not put forward any evidence capable of calling into question the content of the CVs of the three key experts of the consortium led by GDSI and, in particular, the references to the supporting documents proving their professional experience as indicated therein. It follows that the applicants’ argument and, accordingly, the third part of the first plea in law in its entirety, must be rejected.

The second plea in law, alleging infringement of a substantial procedural requirement

84 The applicants claim that the contested decisions are marred by infringement of a substantial procedural requirement, since the Evaluation Committee did not observe either point 12.4 of the instructions to tenderers or point 3.3.10.3 of the PRAG. Mr D., a member of the Evaluation Committee, made contact with Mr X, an attaché to the EU Delegation to Serbia, in order to obtain information on the qualifications of Mr S., the team leader proposed by the applicants’ consortium. Furthermore, the members of the Evaluation Committee changed the tenderers’ ranking order after receiving adverse comments about Mr S. The Commission did not take into account the irregularities raised by the applicants.

86 As regards, first of all, the alleged contact between a member of the Evaluation Committee, namely Mr D., and Mr X, it is alleged that Mr D. did not communicate with one of the tenderers but with a third party. In those circumstances, the applicants cannot rely, in the present case, on point 3.3.10.3 of the PRAG, according to which the chairperson of the Evaluation Committee may, with the agreement of the other members of that committee, communicate in writing with tenderers whose submissions require clarification.

87 It must also be noted that Mr X worked for a delegation of the Commission and that he was expressly mentioned as a reference in Mr S.’s CV, with the result that, as the Commission submitted, he could be contacted by the Evaluation Committee on that basis.

88 In that respect, it must be noted that the provisions applicable to the present call for tenders do not preclude the Evaluation Committee from seeking an external opinion, subject to the rules on confidentiality and impartiality. On the contrary, it can be seen from point 3.3.10.3 of the PRAG that the Evaluation Committee could carry out verifications, especially within the bodies of the European Union. That provision provides that, in cases other than those in which the proposed expert has no relevant experience in EU projects, ‘verifications/checks within the [European Union] are more appropriate’. It is that context, therefore, that Mr D. would have contacted Mr X.

89 In addition, the applicants argued, at the hearing, that the verifications carried out should, in any event, have taken place in the presence of all the members of the Evaluation Committee and have been mentioned in the Evaluation Report. In that regard, it must be emphasised that the requirement to act collectively laid down in point 12.4 of the instructions to tenderers concerns only the decisions of the Evaluation Committee and does not apply to all of the evaluation procedure. That assessment is supported by the fact that, under point 3.3.10.3 of the PRAG, each member of the Evaluation Committee evaluates individually the technical aspects of the tenders submitted. More generally, no provision of the PRAG requires that the Evaluation Committee carry out any verification collectively. Likewise, no provision requires that those verifications be recorded in the Evaluation Report. Accordingly, that argument must be rejected.

90 In those circumstances, Mr D.’s telephone call to Mr X, even if were proven, could not constitute an irregularity.

91 Next, as regards the information that Mr X allegedly sent to Mr S., the team leader proposed by the applicants’ consortium, it must be noted that Mr X was, when working for the delegation of the European Union to Serbia, subject to the obligation of confidentiality imposed on the Commission and its staff by Article 339 TFEU. However, Mr X’s acts cannot be attributed to the Evaluation Committee and thus constitute infringement of a substantial procedural requirement by it.

92 As regards, lastly, the negative report on Mr S.’s qualifications that Mr D. is alleged to have given to the Evaluation Committee, it must be pointed out that the applicants acknowledged, at the hearing, that their allegations in that respect were solely based on assumptions. In those circumstances and since those assumptions are not supported by any evidence in the file, the argument that the Commission did not take those allegations into account cannot succeed.

93 The correspondence invoked by the applicants cannot call into question the foregoing considerations. The applicants argue that ‘there is strong evidence’ that the positive appraisal of Mr S.’s qualifications sent by Mr X to Mr D. was not communicated to the other members of the Evaluation Committee and that those members even received unfavourable comments concerning Mr S. at the stage of the evaluation of the tenders. It suffices to note that no such evidence has been placed on the file.

94 In any event, the applicants have not put forward any evidence capable of proving the alleged irregularities which, they claim, adversely affected the evaluation of their tender. Moreover, the applicants’ argument that the alleged unfavourable comments communicated by Mr D. concerning Mr S.’s qualifications had the effect of downgrading the tender submitted by the applicants’ consortium from first to second place in the ranking of tenderers must also be rejected, since it can be seen from the evaluation report that the applicants’ consortium was always ranked in second place.

95 Since the applicants have not put forward any evidence capable of supporting their arguments, there is no need to rule on the admissibility of that evidence.

The third plea in law, alleging infringement of the principle of equal treatment and misuse of power

97 The applicants claim that the contested decisions are the result of an unlawful procedure, the sole purpose of which was to remove them from the first place on the evaluation list.

99 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof and Article 44(1)(c) of the Rules of Procedure of the General Court, all applications initiating proceedings are to state the subject-matter of the proceedings and to include a summary of the pleas raised. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and intelligible (judgment of 2 March 2010 in Evropaïki Dynamiki v EMSA, T‑70/05, EU:T:2010:55, paragraph 78, and judgment of 16 September 2013 in Ecoceane v EMSA, T‑518/09, EU:T:2013:476, paragraph 111).

100 In the present case, the applicants merely state that the ‘illegal [evaluation] procedure has exceptionally been applied only in the case of the applicants [and that], [f]rom this point of view, there is discrimination’. That reference to the principle of equal treatment is not specifically developed in any way and does not identify how or at what stage the evaluation procedure was marred by infringement of that principle.

101 In any event, it can be seen from the documents added to the file and the clarifications provided by the Commission at the hearing that the tenders were evaluated under the same conditions and that equal opportunities between the tenderers were ensured. Moreover, the Court has not found any irregularity during the evaluation procedure.

102 Accordingly, the complaint alleging infringement of the principle of equal treatment must be rejected, principally, as inadmissible, and in addition, as unfounded.

103 In accordance with the case-law, the concept of misuse of powers has a precisely defined scope in EU law and refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. In that respect, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (judgment of 25 February 1997 in Kernkraftwerke Lippe-Ems v Commission, T‑149/94 and T‑181/94, ECR, EU:T:1997:21, paragraphs 53 and 149, and judgment of 26 February 2002 in Esedra v Commission, T‑169/00, ECR, EU:T:2002:40, paragraph 198).

104 In the present case, it must be noted that the applicants have not produced any evidence capable of showing that the Commission pursued a purpose other than that of awarding the contract to the tender offering the best value for money in accordance with the applicable provisions and having regard to the award criteria laid down in the call for tenders. In particular, the applicants have failed to show the existence of objective, relevant and consistent evidence, within the meaning of the case-law cited in paragraph 103 above, capable of establishing that the Commission used its powers to eliminate the applicants from the tender procedure at issue.

105 Since the applicants have not put forward any evidence capable of supporting their arguments, there is no need to rule on the admissibility of that evidence.

106 Accordingly, the third plea in law must be rejected as in part inadmissible and, in any event, as unfounded.

107 It follows from the foregoing that the application must be dismissed in its entirety.

108 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

2. Orders Euro-Link Consultants Srl and European Profiles AE Meleton kai Symvoulon Epicheiriseon 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) >> Euro -Link Consultants and European Profiles v Commission (Judgment) [2014] EUECJ T-199/12 (02 October 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/T19912.html Cite as: EU:T:2014:848, ECLI:EU:T:2014:848, [2014] EUECJ T-199/12

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