Orange Business Belgium v Commission (Judgment) [2016] EUECJ T-349/13 (04 July 2016)

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(Public service contracts — Tender procedure — Provision of ‘Trans-European Services for Telematics between Administrations — new generation (TESTA‑ng)’ — Rejection of a tenderer’s bid — Award of the contract — Transparency — Equal treatment — Non‑discrimination — Obligation to state reasons)

Orange Business Belgium SA, established in Brussels (Belgium), represented by B. Schutyser and T. Villé, lawyers,

European Commission, represented by S. Delaude, S. Lejeune and F. Moro, acting as Agents, and by P. Wytinck and B. Hoorelbeke, lawyers,

APPLICATION for annulment of the Commission’s decision of 19 April 2013 rejecting the tender submitted by the applicant in the restricted call for tenders DIGIT/R2/PR/2011/039 ‘Trans-European Services for Telematics between Administrations — new generation (TESTA-ng)’, and awarding the contract to another tenderer,

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

having regard to the written part of the procedure and further to the hearing on 23 September 2015,

1 By contract notice of 27 October 2011, published in the Supplement to the Official Journal of the European Union (OJ 2011/S 207-336367), the Directorate-General (DG) for Informatics of the European Commission launched call for tenders DIGIT/R2/PR/2011/039 — ‘Trans-European Services for Telematics between Administrations — new generation (TESTA-ng)’, prepared in connection with the Interoperability solutions for European public administrations programme (ISA programme), established for the period 2010-2015. On 3 November 2011, a corrigendum to the contract notice was published in the Supplement to the Official Journal (OJ 2011/S 233-376812).

2 The aim of that call for tenders was to conclude a new framework contract concerning a new network called TESTA-ng for a period of three years, renewable four times.

3 The contract was to be awarded to the tenderer submitting the most economically advantageous tender within the framework of a restricted procedure comprising two stages, namely, the selection of candidates and the evaluation of the offers.

4 For the purpose of selecting the candidates, interested parties had until 30 November 2011 to submit their applications, together with certain information evidencing their economic, financial, technical and professional capacities to perform the contract at issue.

5 On 30 November 2011, four companies submitted a request to participate in the tendering procedure at issue, including the applicant, Orange Business Belgium SA.

6 By letter of 26 July 2012, all the companies which had requested to participate in the tendering procedure at issue were invited to submit a tender. Initially, the date set for submission of tenders was 25 September 2012. At the request of the candidates selected, that date was altered. A tender could be submitted until 5 November 2012.

7 On 5 November 2012, three of the candidates selected, including the applicant, submitted a tender in the context of the tendering procedure at issue. On 8 November 2012, the committee for evaluating the tenders (‘the evaluation committee’), composed of nine members representing the EU institutions, agencies and bodies which had launched the call for tenders, assisted by three external experts, was appointed. The tenders were opened on 9 November 2012.

8 For the purposes of the technical evaluation of the tenders, six award criteria were set out in point 9 of the tender specifications. Together, the award criteria allowed a total of 100 points to be given to each tender. The minimum score per award criterion was fixed at 50%. The scores given were weighted according to the importance of each of the six award criteria. The minimum weighted score was fixed at 70%.

9 As regards the financial evaluation of the tenders, it was stated that this was to be carried out on the basis, first, of the prices mentioned by the selected candidates in answer to the financial questionnaire in Annex 14 to the tender specifications and, secondly, the volume assumptions in the contract notice and the tender specifications.

10 Lastly, the tender specifications stated that the price/quality ratio would be determined using a mathematical formula in which the quality of the offer, namely, the technical evaluation, accounted for 60% and the proposed price, namely, the financial evaluation, accounted for 40%.

11 By letter of 19 April 2013 of the Commission (‘the contested decision’), the applicant was informed as follows:

– its tender had not been successful as it was not the most economically advantageous (best quality/price ratio);

– it could request additional information regarding its tender, and such information could be provided to it in a follow-up letter or at a debriefing meeting;

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

12 By email of the same date, the applicant requested additional information on the reasons why its tender had not been successful and an extract of the analysis carried out by the evaluation committee. By letter of 23 April 2013, it reiterated its request and asked for an extension of the standstill period and the suspension of the signature of the framework contract until it had submitted its observations on the award procedure at issue.

13 By letter of 26 April 2013, the Commission communicated the following information to the applicant:

– clarification that the standstill period was fixed by 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’);

– clarification that the contracting authority had a maximum of 15 calendar days in which to reply to unsuccessful tenderers’ requests to obtain additional information;

– the extract from the evaluation report concerning the evaluation of the applicant’s tender and information about the methodology used for evaluating the technical offers;

– a statement that the information which did not fall within the exceptions mentioned in Article 113 of the Financial Regulation, in relation to the technical evaluation of the successful tenderer’s tender (‘the successful tender’), would be communicated to the applicant once the review of the assessment comments was finished;

– a summary table with the scores obtained by the applicant and by the successful tenderer in the technical evaluation of the tenders and a summary table of the prices proposed by the two tenderers in their financial offers;

– a table establishing the ranking of the two tenders after applying the formula provided for identifying the tender with the ‘best quality/price ratio’; and

15 By letter of 30 April 2013, the Directorate-General for Informatics sent the applicant an extract of the report of the technical evaluation of the winning tender.

16 By letter of 8 May 2013, the applicant requested ‘further confirmation concerning the award procedure’.

17 By letter of 14 May 2013, the applicant repeated its request for a debriefing meeting to be held at the earliest convenient date and asked for a prompt reply to, and ‘confirmation’ of, its letter of 8 May 2013.

18 By letter of 15 May 2013, the Directorate-General for Informatics invited the applicant to participate in a debriefing meeting on 16 May 2013 and, in response to the applicant’s letter of 8 May 2013, provided the relevant extract from the table summarising the scores obtained by the applicant and the successful tenderer during the technical evaluation of the tenders with regard to award sub-criteria 6a and 6b.

20 By letter of 23 May 2013, the Directorate-General for Informatics sent a letter to the applicant containing the information provided during the debriefing meeting, in particular on the evaluation process. It also stated that, at that time, the framework contract had not yet been signed with the successful tenderer.

21 By letter of 24 May 2013, the applicant informed the Directorate-General for Informatics that, after application of the evaluation rule communicated to the tenderers in response to question 1.88 of the document entitled ‘Questions and Answers’, the 8.5 points awarded to the successful tenderer should be replaced by 5 points, which led to a weighted score of 66.65%, below the required threshold of 70%.

22 By letter of 27 May 2013, the applicant sent the Directorate-General for Informatics a copy of the meeting notes taken by the applicant’s representatives during the debriefing meeting.

23 By letter of 29 May 2013, the applicant sent the Directorate-General for Informatics its observations on the evaluation process and the award decision.

24 By letter of 30 May 2013, the Directorate-General for Informatics informed the three tenderers that the signature of the framework contract had been suspended for additional examination, in accordance with Article 171(1) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1) (‘the Rules of Application’), given the nature of the comments made by unsuccessful tenderers.

25 By letter of 17 June 2013, the Directorate-General for Informatics informed the three tenderers that the additional examination was finished and that the authorising officer had confirmed his initial decision to award to the contract at issue to one of those tenderers. The unsuccessful tenderers received an extract of the additional examination report. In that letter, the Directorate-General for Informatics also responded to the applicant’s letter of 27 May 2013 and informed the applicant that, since it had not been consulted during the drafting of the meeting notes taken by the applicant’s representatives during the debriefing meeting, it formally rejected those notes and that, in any event, those meeting notes did not reflect the information provided during that meeting.

26 On 12 July 2013, the contract at issue was signed with the successful tenderer.

27 The contract award notice at issue was published on 7 August 2013 in the Supplement to the Official Journal (OJ 2013/S 152-263766).

28 By application lodged at the Court Registry on 1 July 2013, the applicant brought the present action.

29 The applicant has requested the confidential treatment of its tender with regard to possible interveners and any third parties.

30 On hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral stage of the procedure.

31 By letter of 4 February 2015, the Court, by way of measures of organisation of procedure, asked the parties to reply in writing to certain questions. The parties replied within the prescribed period. By the same letter, the Commission was also requested to produce, first, certain extracts of the applicant’s tender relating to two award sub-criteria, secondly, Annexes 1 and 10 to the tender specifications, thirdly, a copy of the evaluation method signed before the start of the evaluation of the tenders, the agenda of the first meeting of the evaluation committee and the circulation sheet on the evaluation method, fourthly, the full versions of the evaluation report and the additional examination report on the successful tender and, fifthly, the full versions of the extracts from the successful tender on five award sub-criteria. The Commission complied with that request only in part.

32 By order of 7 April 2015, the Court adopted a measure of inquiry by which it ordered the Commission to produce two documents, namely the full versions of the evaluation report and the additional examination report on the successful tender, as well as the full versions of the extracts from that tender, relating to award sub-criteria 3e, 4a, 4d, 5c and 5e. The Commission complied with that request within the prescribed period.

33 By letter of 26 May 2015, the Court, by way of measures of organisation of procedure, asked the Commission to produce certain documents. The Commission complied within the prescribed period.

34 By letter of 21 July 2015, the Court, by way of measures of organisation of procedure, decided that the applicant’s representatives were authorised to consult, at the Registry, selected extracts of the full version of the additional examination report concerning the successful tender. One of the applicant’s representatives consulted the documents at issue at the Court Registry. The other documents produced by the Commission were removed from the file.

35 By letter of 13 August 2015, the applicant made an application for measures of organisation of procedure under Article 88 of the Rules of Procedure of the General Court, in order to be able to present in writing its observations on, first, the application for confidentiality for certain documents relating to the successful tender, secondly, the Commission’s alleged additional defence in reply to the requests for production of documents and, thirdly, the documents consulted at the Court Registry.

36 By a letter of the same date, the Court requested the Commission to submit its written observations on the application for measures of organisation of procedure made by the applicant. The Commission complied with that request within the prescribed period.

37 By decision of 21 September 2015, the Court decided not to grant the application for measures of organisation of procedure made by the applicant and invited it to submit its observations at the hearing.

38 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 23 September 2015.

– annul the contested decision by which the Commission decided not to accept its tender and to award the contract to the successful tenderer;

– declare the contract null and void in the event that the Commission has already awarded the contract;

– in the alternative, appoint an independent expert responsible for assessing the conformity of the successful tender, defer its decision until the expert submits his/her report and, subsequently, annul the contested decision;

– ‘declare the action for annulment of the [contested decision and the subsequent contract] entirely unfounded’;

41 In support of its application for annulment, the applicant relies, in essence, on two pleas in law. The first plea in law alleges infringement of the tender specifications and of Article 102(1) of the Financial Regulation, in that the Commission did not apply the award criteria correctly. The second plea in law alleges infringement of Article 102(1) of the Financial Regulation, in that the successful tender did not comply with the technical requirements.

The first plea in law, alleging infringement of the tender specifications and of Article 102(1) of the Financial Regulation in that the Commission did not apply the award criteria correctly

42 The applicant submits, in essence, that the contested decision was taken in breach of the tender specifications and Article 102(1) of the Financial Regulation and, in particular, the principles of transparency, equal treatment and non-discrimination laid down in that provision, given that the Commission did not apply the award criteria correctly.

44 The first part of the plea alleges the incorrect application of award sub‑criterion 6b. The second part of the plea alleges that the factually incorrect communication of the award criteria 6c and 6d led to the application of new uncommunicated award criteria. The third part of the plea alleges the failure to communicate the evaluation method applied, before the submission of tenders.

45 It should be noted, at the outset, that it is clear from settled case-law that the adjudicating 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 that review by the General Court must be limited to checking compliance with the applicable procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (see judgments of 15 March 2012 in Evropaïki Dynamiki v Commission, T‑236/09, not published, EU:T:2012:127, paragraph 88 and the case-law cited, and 24 April 2012 in Evropaïki Dynamiki v Commission, T‑554/08, not published, EU:T:2012:194, paragraphs 37 and 38 and the case-law cited). The contracting authority is granted such a broad margin of assessment throughout the tendering procedure, including in relation to the choice and evaluation of the selection and award criteria.

46 In addition, Article 102(1) of the Financial Regulation provides that all public contracts financed in whole or in part by the European Union budget must respect the principles of transparency, proportionality, equal treatment and non‑discrimination.

47 Consequently, according to settled case-law, the adjudicating authority must comply, at each stage of a tendering procedure, with the principle of equal treatment and, thereby, equality of opportunity for all the tenderers (judgments of 29 April 2004 in Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 108; 17 December 1998 in Embassy Limousines & Services v Parliament, T‑203/96, EU:T:1998:302, paragraph 85; and 17 March 2005 in AFCon Management Consultants and Others v Commission, T‑160/03, EU:T:2005:107, paragraph 75).

48 Under the principle of equal treatment of 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 tenderers must be subject to the same conditions (see, to that effect, judgments of 18 October 2001 in SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 34, and 12 December 2002 in Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 93).

49 The Court’s case-law also demonstrates that the principle of equal treatment implies an obligation of transparency in order to enable verification that it has been complied with (judgments of 18 June 2002 in HI, C‑92/00, EU:C:2002:379, paragraph 45, and 12 December 2002 in Universale-Bau and Others, C-470/99, EU:C:2002:746, paragraph 91).

50 In the context of public procurement, the principle of transparency is essentially intended to preclude any risk of favouritism or arbitrary conduct on the part of the contracting authority. It implies that all the conditions and detailed rules of the tender procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents (judgment of 29 April 2004 in Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 111).

51 The principle of transparency implies, therefore, that all technical information relevant for the purpose of a sound understanding of the contract notice or the tender specifications must be made available as soon as possible to all the undertakings taking part in a 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 (judgment of 12 March 2008 in Evropaïki Dynamiki v Commission, T‑345/03, EU:T:2008:67, paragraph 145).

52 The present plea in law must be assessed in the light of the principles set out in paragraphs 45 to 51 above.

The first part of the plea, alleging the incorrect application of award sub-criterion 6b

53 In the first part of the plea, the applicant complains in essence, that, in its technical evaluation of the tenders, the Commission did not apply correctly one of the ‘decisive’ award sub-criteria, namely, award sub-criterion 6b. Had it been applied correctly, this would have led to the exclusion of the successful tender. In addition, it is claimed that the Commission amended the evaluation method ex post facto, when evaluating the tenders in the light of that award sub-criterion, in order artificially to upgrade the scoring for the successful tender compared to the scoring for the applicant’s tender.

54 In support of its complaint, the applicant submits that the evaluation rule for award sub-criterion 6b was not used in the sense of the answer given to the question at point 1.88 of the document entitled ‘Questions and Answers’, in which it was stated that both the Liquidated Damages Multiplication Factor (‘the MF’) and the Round Trip Delay (‘the RTD’) would be evaluated. It is apparent from the evaluation report that the tenders of the three tenderers were, however, only evaluated in the light of the MF. The Commission indeed confirmed this itself at the debriefing meeting and also in an extract from the additional examination report sent on 17 June 2013.

55 The Commission asserts in reply that it did indeed compare the tenders of the different tenderers in the light of award sub-criterion 6b, in line with the answer to question 1.88 in the document entitled ‘Questions and Answers’, which was confirmed in an extract from the additional examination report sent on 17 June 2013 and did not, therefore, infringe the tender specifications or the principles of transparency and equal treatment. The scores awarded to those tenders under award sub‑criterion 6b were not, therefore, manipulated.

56 At the outset, the provisions of the tender specifications concerning award sub‑criterion 6b must, first of all, be considered.

57 Award sub-criterion 6b provides for the quality of the network performance Service Level Agreement (SLA) to be evaluated and is described in point 9.6.2 of the tender specifications. For the purposes of that evaluation, the tenderers had:

– to provide a high-level description of the monitoring infrastructure explaining how those requirements would be complied with;

– to provide the best RTDs between each Turnkey access point (‘TAP’) location of scenario 2 and a central monitoring infrastructure located in Brussels (or within 50 km around Brussels);

58 In answer to a written question from the Court, the Commission stated that the MF aimed to calculate the amount of liquidated damages payable when the network performance is bad or the network is down. The RTD parameter is used in this case as an indicator of the network behaviour. In fact, the RTD measures the time that a data packet takes to travel to a target destination and back (Round Trip).

59 Before the deadline for receiving tenders, the tenderers sent the Commission three sets of questions in order to obtain additional information or clarification. Answers to those questions were provided by the Commission in the document entitled ‘Questions and Answers’.

60 It must be noted, next, that a written question was submitted in relation to award sub-criterion 6b.

61 The question in point 1.88 of the document entitled ‘Questions and Answers’ was worded as follows:

‘This question is related to the [award sub-criterion] 6b [, entitled] “Quality of the network performance SLA”[;] point 9.6.2 mentions that under this section, we have to provide a high level description, [RTDs] and [an MF]. Can you please clarify how you will score this section (and more specifically, how will you assess the [RTD] figures and how you will assess the [MF])?’

62 The answer to the question in point 1.88 of the document entitled ‘Questions and Answers’ was worded as follows:

‘Points will be granted for the [RTD] and the [MF] separately, comparing the results of all bidders. To obtain the overall evaluation both points will be multiplied. To obtain the overall points, the evaluation result will be multiplied by a factor and rounded in order to obtain 10 points for the best bidder.’

63 Reference must be made, lastly, to the extracts from the evaluation report concerning the applicant’s tender and the successful tender and also the extract from the additional examination report.

64 As regards award sub-criterion 6b, the applicant’s tender was evaluated as follows: ‘The provided [MF] [confidential] for the calculation of network performance [SLA] liquidated damages was considered EXCELLENT.’

65 According to the extract from the evaluation report concerning the successful tender, ‘the provided [MF] (redacted data) for the calculation of network performance SLA liquidated damages was welcomed and therefore the evaluation committee quoted the quality of the network performance SLA as VERY GOOD’.

66 The extract from the additional examination report states that, ‘for the assessment of the quality of the [network performance] SLA, all the abovementioned requirements were taken into account, including the RTD for scenario 2 and the [MF]’ (see paragraph 57 above).

67 As regards the applicant’s argument that, concerning award sub-criterion 6b, the extract from the evaluation report refers only to the MF and not to the RTD (see paragraph 54 above), it must be pointed out — as the applicant notes — that it is clear from the answer to the question in point 1.88 of the document entitled ‘Questions and Answers’ (see paragraph 62 above), that:

– to obtain the overall points, the evaluation result will be multiplied by a simplifying factor and rounded in order to obtain 10 points for the best bidder.

68 That is indeed confirmed by the Commission in answer to a written question from the Court.

69 The main point of disagreement between the parties relates to whether the Commission had taken into account not only the information concerning the MF, but also the information concerning the RTD for the evaluation of the tenders in the light of award sub-criterion 6b.

70 It is apparent from reading the extract of the evaluation report which referred directly to award sub-criterion 6b that the information concerned indeed only the MF (see paragraph 57 above). The Commission indeed accepts this moreover.

71 However, the Commission notes in that regard that this does not mean that the MF was the only factor which was assessed when the tenders were evaluated in the light of award sub-criterion 6b. It states that the RTD was also a factor examined when the tenders were evaluated in the light of award sub-criterion 6a and that it was mentioned there that that factor would be used when the tenders were evaluated in the light of award sub-criterion 6b.

72 First, it is apparent from point 9.6.1 of the tender specifications, concerning award sub-criterion 6a, that the tenderers had to deliver the characteristics specific to each class of services provided, relating to latency, RTD, jitter, packet loss and bandwidth management. It follows that the RTD already formed part of the parameters which tenderers had to indicate in the light of that award sub-criterion.

73 It must be noted, in that regard, that the RTD proposed in the tenders and which had to be examined when the those tenders were evaluated in the light of award sub-criteria 6a and 6b was identical and that the conclusions on the RTD proposed were already set out in the evaluation of the tenders in the light of award sub-criterion 6a. It is apparent from the extract from the evaluation report concerning the applicant’s tender that the RTD was taken into account in the context of the evaluation of that tender in the light of award sub-criterion 6a in these terms: ‘especially the RTD parameters were very good’ and ‘clarification was requested to be sure about the RTD figures’. In those circumstances, it must be found that nothing should prevent the adjudicating authority, in the evaluation report, from focusing, in its comments relating to the evaluation of the tenders in the light of award sub-criterion 6b, on the factor which had not yet been evaluated, namely the MF.

74 Secondly, it cannot be inferred solely from the extract from the evaluation report relating to the evaluation of the tenders according to award sub-criterion 6b that the evaluation of the RTD proposed in the tenders was excluded when those tenders were evaluated in the light of award sub-criterion 6b.

75 In the first place, it is expressly apparent from the additional examination report that the RTD was taken into consideration in order to evaluate the tenders in the light of award sub-criterion 6b. The fact that that report is subsequent to the award decision cannot affect either the validity or reliability of the comments set out therein. It must be noted that Article 171(1) of the Rules of Application provides for the possibility of carrying out an additional examination if expressly requested by the unsuccessful tenderers. That provision would be rendered inoperative if every additional examination of that type were automatically deemed biased or subject to caution.

76 In the second place, the Commission provided, in the defence, the result of the application of the formula, as described in paragraph 62 above, for the tenderers’ bids in the light of award sub-criterion 6b.

77 It is apparent from the table in paragraph 76 above that the score obtained by the tenderers’ bids in the light of award sub-criterion 6b was awarded while taking into account both the RTD and the MF, in accordance with the answer to the question in point 1.88 of the document entitled ‘Questions and Answers’.

78 In answer to a written question from the Court, the Commission confirmed that the table reproduced in paragraph 76 above had been drawn up during the administrative procedure and before the present action was brought.

79 Consequently, the applicant’s argument according to which the extract from the report for the evaluation of the tenders in the light of award sub‑criterion 6b refers only to the MF and not to the RTD must be rejected.

80 As regards the applicant’s argument that the Commission confirmed at the debriefing meeting that it had only evaluated the tenders in the light of award sub‑criterion 6b by taking into account the MF (see paragraph 54 above), it must, first of all, found that that statement, which is based upon point 4.6 of the meeting notes taken by the applicant’s representatives at the debriefing meeting, is not supported by any other document before the Court, such as the tender specifications, the evaluation report or the additional evaluation report.

81 Next, the Court points out that the meeting notes taken by the applicant’s representatives during the debriefing meeting (Annex A.14) were not only drawn up without consulting the Commission, but were also formally rejected by the latter in its letter of 17 June 2013 in that those meeting notes did not reflect in all cases the information provided during that meeting.

82 Lastly, it must be observed that it is clear from the question raised by the applicant, mentioned in point 4.2 of the meeting notes taken by its representatives during the debriefing meeting, that there was no doubt, at the time of the meeting, of the fact that both factors, the RTD and the MF, had been taken into account when the tenders were evaluated in the light of award sub-criterion 6b. The applicant had only requested clarification concerning the evaluation method.

83 Indeed, point 4.2 of the meeting notes, entitled ‘Rules for the Technical Evaluation for the RTD and MF, used for [award sub-criterion] 6b’, taken by the applicant’s representatives during the debriefing meeting, mentions the following:

‘More specifically, for the [award sub-criterion] 6b, [the applicant] asked on which criteria the RTD and the MF were evaluated.

The Commission confirmed that the RTD and the MF were also evaluated based on the seven levels of estimations mentioned in the table hereabove.’

84 Consequently, the applicant’s argument that the Commission confirmed at the debriefing meeting that it had evaluated the tenders in the light of award sub-criterion 6b only by taking into account the MF must be rejected.

85 As regards the applicant’s argument that the Commission confirmed in the additional examination report that the tenderers’ bids had not been compared in the light of award sub-criterion 6b (see paragraph 54 above), it is true, as the applicant states, that the additional examination report mentions on the first page that ‘no comparison among the tenders was performed, except in the case of the [award] sub-criteria 6c and 6d, requesting values of different multiplication factors’. However, it does not follow that that statement and the answer to the question in point 1.88 of the document entitled ‘Questions and Answers’ are contradictory.

86 The Commission concedes, in that regard, that the additional examination report does indeed state that the points awarded to the tenders for sub-criteria 6c and 6d were the only points that were the direct and automatic result of a comparison between the tenderers’ bids. By contrast, as regards the evaluation of the tenders in the light of award sub-criterion 6b, the Commission contends that there was a comparison made between the tenderers’ bids for the proposed RTD and MF and that the final scores had been obtained following the application of a formula which had been explained in response to the question in point 1.88 of the document entitled ‘Questions and Answers’ (see paragraph 62 above).

87 It follows from the table in paragraph 76 above that the Commission carried out a comparison of the different tenderers’ bids in the light of award sub-criterion 6b taking into account all the factors, in accordance with the answer to the question in point 1.88 of the document entitled ‘Questions and Answers’.

88 In those circumstances, the explanations provided in the additional examination report concerning the successful tender only serve to confirm that finding. That report states, as regards award sub-criterion 6b, that, ‘for the assessment of the quality of the network performance SLA, all the abovementioned requirements were taken into account, including the RTD for scenario 2 and the [MF]’ and that ‘the Evaluation Committee applied the rules of evaluation in conformity with [the answer to the question in point] 1.88 [of the document entitled “Questions and Answers”] as explained below’.

89 Consequently, the applicant’s argument according to which the Commission confirmed in the additional examination report that no comparison among the tenders was performed in the light of award sub-criterion 6b must be rejected.

90 Consequently, it is not apparent from examining the arguments put forward in support of the first part of the present plea that the tender specifications were infringed as regards award sub-criterion 6b.

91 Nonetheless, it must be noted that the applicant also submits that the scores given to the tenderers’ bids in the light of award sub-criterion 6b cannot be explained on the basis of the evaluation method used by the evaluation committee. The applicant states that, in applying that evaluation method ex post facto, the Commission manipulated the sub-criterion at issue in order to inflate artificially the score obtained by the successful tender compared with that of the applicant’s tender.

92 The Commission contends that that argument was raised for the first time at the stage of the reply.

93 It must be borne in mind, in that regard, that under the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court of 2 May 1991 the introduction of a new plea in law in the course of proceedings is not allowed unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which constitutes an amplification of a submission previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible. The same applies to a submission made in support of a plea in law (see judgment of 21 March 2002 in Joynson v Commission, T‑231/99, EU:T:2002:84, paragraph 156 and the case-law cited). Furthermore, arguments the substance of which is closely connected to a plea set out in the application initiating the proceedings cannot be regarded as new pleas and may be submitted at the stage of the reply or the hearing (judgment of 12 September 2012 in Italy v Commission, T‑394/06, not published, EU:T:2012:417, paragraph 48).

94 It must be recalled that the applicant has already put forward, in the application, its observations according to which the correct application of the evaluation method when evaluating the tenders in the light of award sub-criterion 6b inevitably led to a score for the successful tender below the minimum threshold of 70%, which would result in the rejection of that tender. After the applicant learned of the result of the evaluation as disclosed by the Commission in its defence, its argument that the evaluation method used when the tenders were evaluated in the light of award sub-criterion 6b was altered a posteriori, in order to inflate artificially the score obtained by that tender compared with the applicant’s score, was based upon the assumption that the seven levels of appraisal of the ‘scoring grid’ had also been used in order to obtain the overall points for the RTD and MF parameters before those scores were multiplied which, in the applicant’s view, constituted an incorrect application of the evaluation method. That argument, introduced for the first time at the stage of the reply, constitutes, therefore, an amplification of a submission previously made and is closely linked to it, within the meaning of the case-law referred to in paragraph 93 above.

95 Before being able to examine the merits of the applicant’s claim, the following points must be made.

96 First, it must be noted that the evaluation committee was appointed on 8 November 2012 (see paragraph 7 above).

97 Secondly, in answer to a written question from the Court, the Commission adduced the necessary proof that it had decided to apply the evaluation method (including the non-linear scoring grid) before the evaluation was carried out.

98 The Commission produced the agenda of the first meeting of the evaluation committee sent by email of 6 November 2012, the circulation sheet on the evaluation method dated 8 November 2012 and a copy of the evaluation method signed by all the members of the evaluation committee at the first meeting of that committee on 12 November 2012.

99 It follows that the evaluation method was determined and approved by the evaluation committee before the start of the evaluation of the tenders which were found to be admissible after they were opened on 9 November 2012.

100 As regards the determination of an evaluation method by the evaluation committee, the evaluation committee must be able to have some leeway in carrying out its tasks. Accordingly, it may, without amending the contract award criteria set out in the contract documents or the contract notice, structure its own work of examining and analysing the submitted tenders (judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 35).

101 The objective of determining an evaluation method is to make it easier to carry out the tasks of the evaluation committee and to guarantee that all the tenders will be evaluated on the basis of the same standards in order to ensure that all the selected tenderers or selected candidates are treated equally and fairly.

102 In addition, the Court must examine the evaluation method applied by the Commission in the present case to carry out the technical assessment of the tenders in the light of each award criterion and sub-criterion. That evaluation method was communicated by letter of 26 April 2013 to the applicant (see paragraph 13 above).

103 It follows, therefore, that each of the tenders was evaluated in the light of each award sub-criterion and assessed as corresponding to one of the seven appraisal levels below:

104 A tender which has obtained a rating which must be assessed as ‘Good’ in the light of the award sub-criteria as a whole achieves the minimum weighted score of 70% required under the tender specifications.

105 First, it must be noted that the overall points for sub-criterion 6b results from the following formula, as recalled in paragraph 62 above: ((points RTD) x (points MF)) x simplifying factor = overall points for the sub-criterion.

106 The overall points thereby obtained by each tender in the light of award sub‑criterion 6b were recorded as an assessment corresponding to one of the seven levels of appraisal referred to in paragraph 103 above, in accordance with the evaluation method sent to the tenderers. The simplifying factor brought the points within a scale of 10.

107 Secondly, contrary to the applicant’s claims, the points obtained by the tenders having regard to the RTD and the MF were not translated into an assessment corresponding to one of the seven levels of appraisal referred to in paragraph 103 above, which is indeed confirmed by the Commission. In that regard, the Commission correctly argues that the application of those levels of appraisal in respect of those points would have given a mathematically incorrect score and created a distortion in the technical evaluation of the tenders.

108 More specifically, according to the table in paragraph 76 above, the evaluations of the tenders by the evaluation committee in the light of the RTD and the MF were indicated in points. Consequently, the tender with the best RTD obtained 10 points and the tender with the lowest RTD obtained 9 points. As regards the MF, the evaluation committee found that the tender with the best MF deserved 10 points and the tender which had to be classified second deserved 9.5 points. The figures relating to the ‘RTD score’ and the ‘MF score’ reflect, therefore, the evaluation committee’s assessments and are the points awarded in the light of award sub‑criterion 6b having regard to the various factors of the tenders. Only the multiplication of the points ‘RTD score’ and ‘MF score’ results in an overall score obtained by each tender in the light of award sub-criterion 6b, which is recorded as one of the seven levels of appraisal referred to in paragraph 103 above, which is entirely consistent with the formula set out in paragraph 105 above.

109 By contrast, if the points for the ‘RTD score’ and the ‘MF score’ had to be recorded as one of the seven levels of appraisal referred to in paragraph 103 above before those points were multiplied, in accordance with the method advocated by the applicant, the inevitable conclusion is that the overall score obtained by the successful tender in the light of award sub-criterion 6b would have been 72.25 (corresponding to the assessment ‘Good’) instead of 85.5 (corresponding to the assessment ‘Very good’), given that the ‘RTD score’ would have been rounded to 8.5 (instead of 9) and the ‘MF score’ to 8.5 (instead of 9.5), which would have created a distortion in the evaluation of the tenders.

110 It follows from the foregoing that the seven levels of appraisal referred to in paragraph 103 above served only to award a weighting corresponding to each tender in the light of award sub-criterion 6b and not to evaluate the different factors of the tenders in the light of that award sub-criterion. It must, therefore, be concluded that the calculations presented by the applicant in its pleadings are erroneous and unfounded.

111 In any event, it must be found that the applicant has not adduced any evidence in support of its claim that the Commission manipulated award sub-criterion 6b ex post facto in order to inflate artificially the score obtained by the successful tender compared with that obtained by the applicant’s tender. The evidence put forward by the applicant does not show that the Commission pursued any object other than that of awarding the contract to the tenderer which submitted the most economically advantageous bid, taking account of the award criteria laid down in the tender specifications. In that regard, it must be observed that, 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 (see judgment of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 103 and the case-law cited).

112 In addition, there is no evidence to indicate that the evaluation method has not been applied to all the tenders submitted in the context of the tendering procedure at issue. The applicant cannot, therefore, maintain that such a method fails to have regard to the principle of equal treatment.

113 Consequently, the first part of the first plea in law must be rejected in its entirety.

The second part of the first plea in law, alleging that the factually incorrect communication of the award criteria 6c and 6d led to the application of new uncommunicated award criteria

114 In the context of the second part of the plea, the applicant states that the Commission communicated factually incorrect award criteria with regard to award sub-criteria 6c and 6d, which led to the application of new award criteria which had not been communicated beforehand to the tenderers. That argument is based on the answers given to the questions in points 1.89 and 1.90 of the document entitled ‘Questions and Answers’.

115 The Commission contends that the answers given to the questions in points 1.89 and 1.90 of the document entitled ‘Questions and Answers’ did not give rise to the application of uncommunicated award criteria. It considers that all the tenderers were placed in the same circumstances during the preparation of their tenders and that the Commission applied the same evaluation rule uniformly to all the tenderers. Therefore, it takes the view that the tenderers were treated equally and without discrimination and had exactly the same chances when preparing their tender.

116 It should be noted at the outset that, where a contract is to be awarded by the best‑value-for-money procedure, in accordance with Article 110(2) of the Financial Regulation and Article 149(1) of the Rules of Application, as in the present case, the contracting authority must define and specify in the tender specifications the award criteria enabling evaluation of the content of tenders. In addition, those criteria must, in accordance with Article 149(2) of those rules, be justified by the subject of the contract. According to Article 149(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. Those provisions seek to ensure compliance with the principles of equal treatment and transparency at the stage of evaluation of tenders with a view to award of the contract (see, by analogy, judgments of 20 September 1988 in Beentjes, 31/87, EU:C:1988:422, paragraphs 21 and 22, and 12 December 2002 in Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraphs 90 to 92).

117 Consequently, in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the most economically advantageous offer, and, if possible, their relative importance, when they prepare their tenders (see, to that effect, judgments of 24 November 2005 in ATI EAC e Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 24, and 24 January 2008 in Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 36).

118 It follows that a contracting authority cannot apply sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention (see, to that effect, judgment of 24 January 2008 in Lianakis and Others, C-532/06, EU:C:2008:40, paragraph 38).

119 In the present case, it is necessary, first of all, to consider the content of (i) award sub-criterion 6c, (ii) the question in point 1.89 of the document entitled ‘Questions and Answers’, (iii) the answer to that question in point 1.89 and (iv) the evaluation report.

120 Award sub-criterion 6c provides for the quality of the adherence to planning SLA to be evaluated and is described in point 9.6.3 of the tender specifications. For the purposes of that evaluation, the tenderers had to provide the value of the MF in the formula ‘(LD = (SQI_ATP_WP# - 0.05) x Cost of the Work Package x MF)’ where SQI_ATP_WP = (actual duration – planned duration)/actual duration’.

121 In answer to a written question from the Court, the Commission explained that that parameter aimed to calculate the amount of liquidated damages payable when the planning is not respected. It states, in that regard, that the higher the MF value, the more confident the provider is to deliver a planned service in time and the higher the liquidated damages will be in case of slippage.

122 The question in point 1.89 of the document entitled ‘Questions and Answers’ was worded as follows:

‘This question is related to [award sub-criterion] 6c, [entitled] “Quality of the Adherence to planning SLA”.

Point 9.6.3 [of the tender specifications] mentions that we have to provide a multiplication factor. Can you please clarify how you will score this question?’

123 The answer to the question in point 1.89 of the document entitled ‘Questions and Answers’ was worded as follows:

‘The calculation will be similar to the one described in [point] 1.88 [of the document entitled “Questions and Answers”].’

124 According to the extract from the additional examination report, ‘only the value of the multiplication factor MF was taken into account’ and ‘the reference made [in point 1.89 of the document entitled “Questions and Answers” to the [method] explained [in the answer to the question in point 1.88 of that document] is an obvious clerical mistake, since the [RTDs] are not applicable in the assessment of the quality of the adherence to planning SLA’.

125 Secondly, the content of (i) award sub-criterion 6d, (ii) the question in point 1.90 of the document entitled ‘Questions and Answers’, (iii) the answer to that question in point 1.90, (iv) the evaluation report and (v) the additional examination report must be set out.

126 Award sub-criterion 6d provides for the quality of the availability of the services SLA to be evaluated and is described in point 9.6.4 of the tender specifications. For the purposes of that evaluation, the tenderers had to provide the value of the MF in the formula ‘(LD = (0.9985 - SQI_xxxA) x Monthly Costs of the Service x MF_SQI_xxxA) where SQI_xxxA = (total target availability – total service down)/total target availability’.

127 In answer to a written question from the Court, the Commission explained that that SLA parameter aimed to calculate the amount of liquidated damages payable when generic services, such as mail relay, public key infrastructure, and network termination point, are down. It clarifies, in that regard, that that parameter has nothing to do with the RTD. The SLA parameter does not measure the availability of the network. In addition, the evaluation of award sub-criterion 6d was only based on the evaluation of the multiplication factor.

128 The question in point 1.90 of the document entitled ‘Questions and Answers’ was worded as follows:

‘This question is related to [award sub-criterion] 6d, [entitled] “Quality of availability of the Services SLA”.

[Point 9.6.4 of the tender specifications] mentions that we have to provide a multiplication factor. Can you clarify how you will score this question?’

129 The answer to the question in point 1.90 of the document entitled ‘Questions and Answers’ was worded as follows:

‘The calculation will be similar to the one described in [point] 1.88 [of the document entitled “Questions and Answers”].’

130 The second part of the first plea in law must be examined taking those factors into account.

131 First, it must be found that it is apparent from award sub-criteria 6c and 6d (see paragraphs 120 and 126 above, respectively) and the answers to the questions in points 1.89 et 1.90 of the document entitled ‘Questions and Answers’ (see paragraphs 123 and 129 above, respectively) that only the MF will be evaluated in a similar manner to that described in the answer to the question in point 1.88 of that document.

132 Secondly, it is clear, for all reasonably informed tenderers exercising ordinary care, from reading award sub-criteria 6c and 6d that the RTD could not and would not be assessed in the framework of those award sub-criteria, as the Commission rightly argues. It must be emphasised in that regard that this fact was clear to the applicant, given that it had not provided any information concerning the RTD in its tender related to those sub-criteria.

133 Thirdly, it is not clear from the foregoing that the Commission used award criteria not communicated beforehand in order to carry out its assessment, contrary to the applicant’s claims. They do not, therefore, constitute new award criteria compared with those in the tender specifications.

134 In those circumstances, even accepting that in the answers to the questions in points 1.89 and 1.90 of the document entitled ‘Questions and Answers’ it was a question of a clerical mistake, as argued by the Commission in the additional examination report (see paragraph 124 above), it must be concluded that all the tenderers were in a position to understand the exact scope of award sub-criteria 6c and 6d and to interpret them in the same way and were, therefore, under the same conditions when preparing their tenders.

135 The second part of the first plea in law must, therefore, be rejected as unfounded.

The third part of the first plea, alleging the failure to communicate, before the deadline for the receipt of tenders, the evaluation method which was to be used

136 In the context of the third part of the plea, first, the applicant claims that the Commission did not communicate, before the deadline for the receipt of tenders, the evaluation method which it intended to apply, thus depriving tenderers of the possibility of taking that method into account when preparing their tender. Secondly, that applicant states that by applying that evaluation method, the Commission was able to maintain an overall score for the technical evaluation of 70.15% during the technical evaluation of the successful tender, whereas a correct evaluation method would have inevitably resulted in that tender obtaining a score of less than 70% and being considered to be non-compliant.

137 The Commission asserts in reply that it was in no way required to communicate the evaluation method before the submission of tenders. It was required only to communicate the award criteria applicable and their relative weighting.

138 In the first place, in addition to the case-law cited in paragraphs 116 to 118 above, it must be pointed out that, as regards the question of whether the adjudicating authority was obliged to communicate the evaluation method, before the submission of tenders, the Court has answered that question in the negative. In its judgment of 23 November 2011 in bpost v Commission (T‑514/09, not published, EU:T:2011:689, paragraph 86), the Court held that the Financial Regulation did not oblige the Commission to divulge its system of marking or its methodology of evaluation. Similarly, nor can such an obligation be inferred from the Rules of Application.

139 According to the case-law applicable to the present case, the Commission was only obliged to communicate the award criteria applicable, any sub-criteria and their relative weighting.

140 In that regard, first of all, it must be observed that point 9 of the tender specifications mentions the award criteria to be used during the technical evaluation of the offers, the sub-criteria and their relative weighting. Next, the award criteria to be used during the financial evaluation of the offers are set out in point 10 of the tender specifications. Lastly, point 11 of the tender specifications lays down the formula for determining the most economically advantageous tender.

141 It must, therefore, be found that, as regards the award criteria applicable, the sub‑criteria and their relative weighting, the Commission did not fail to fulfil its obligations stemming from the Financial Regulation and the Rules of Application.

142 In the second place, it must be borne in mind that the Court has stated that a contracting authority cannot apply sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention (see, to that effect and by analogy, judgment of 24 January 2008 in Lianakis and Others, C-532/06, EU:C:2008:40, paragraph 38).

143 It is, nonetheless, possible for a contracting authority, after expiry of the period for submission of tenders, to determine weighting coefficients for sub-criteria of an award criterion previously established, on three conditions, namely that that ex post determination, first, does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect and by analogy, judgment of 24 November 2005 in ATI EAC e Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 32).

144 First, it must be borne in mind that, in the present case, the award criteria applicable, the sub-criteria and their relative weighting were mentioned in the tender specifications.

145 Secondly, the content of the award criteria, the sub-criteria and their relative weighting are not affected by the evaluation method used by the evaluation committee. The minimum threshold for each award criterion and each sub‑criterion remains identical (namely 50% of the maximum points for each criterion), as does the maximum score which may be awarded for each award criterion. It must be observed, in that regard, that the application in the present case of a linear evaluation method could have had the result that a tender which obtained a score which had to be assessed as ‘Good’, which meant that it met all the technical requirements such as those described in the tender specifications and was of a satisfactory quality, would only obtain a score of 66.70%, whereas a minimum 70% was required and would not, therefore, have passed the technical evaluation stage. The table below, which shows that the evaluation method at issue does not distort the relative weighting of the award criteria and produces results in line with the criteria laid down in the tender specifications, compares the marks used in the evaluation method employed by the Commission and the marks which would have been applied if a linear scoring system had been used:

146 Thirdly, contrary to the applicant’s claims, the evaluation method has no effect on the preparation of tenders. It must be emphasised, in that regard, that point 4.2.2 of the tender specifications states ‘the technical proposal must meet the technical specifications … and provide, as a minimum, all the information needed for the purpose of awarding the contract’. The requirement for conformity is absolute and the tenders not meeting the essential minimum technical requirements such as those described in the tender specifications must be rejected. As regards the seven levels of appraisal referred to in paragraph 103 above, they relate to the quality of the solution proposed by each of the tenders in the light of each sub-criterion, referring to how the question is addressed and the level of detail presented (see point 4.2.2 of the tender specifications).

147 Fourthly, there is no indication in the file that the evaluation method, which was drawn up and approved before the evaluation procedure started (see paragraph 99 above), was not applied uniformly and without discrimination to all the tenders.

148 It must be found that the applicant merely makes general assertions, which are not substantiated or corroborated by any probative evidence whatsoever. It follows from all the foregoing that, first of all, the applicable award criteria, the sub-criteria and their relative weighting were communicated to all the tenderers, next, those criteria were sufficiently clear and precise to enable the tenderers to prepare their tenders and the Commission to evaluate the quality of the tenders in the light of those award criteria and the sub-criteria and, lastly, all the tenderers’ bids were evaluated in the light of those award criteria and sub-criteria uniformly and without discrimination in order to preclude any favouritism or any arbitrary decision.

149 It must, therefore, be concluded that the applicant’s line of argument cannot substantiate the third part of the first plea in law.

The second plea in law, alleging infringement of Article 102(1) of the Financial Regulation, in that the successful tender did not comply with the technical requirements

151 The applicant submits, in essence, that the Commission has infringed Article 102(1) of the Financial Regulation and, in particular, the principles of transparency, equal treatment and non-discrimination laid down in that provision, in declaring that the successful tender complied with the tender specifications, which invalidates the Commission’s decision declaring that the successful tender was the most economically advantageous.

152 The second plea in law is divided into two parts. The first part of the plea concerns the alleged non-conformity of the successful tender with the technical requirements set out in the tender specifications. The second part of the plea alleges incompatibility between the detailed rules in the tender specifications and the way in which they have been applied.

The first part of the second plea in law, concerning the alleged non-conformity of the successful tender with the technical requirements set out in the tender specifications

153 In the context of the first part of the plea, the applicant disputes, in essence, the validity of the assessments carried out by the evaluation committee in the light of award sub-criteria 3e, 4a, 4d, 5c and 5e in the evaluation report concerning the successful tender. It submits that that committee has infringed Article 102(1) of the Financial Regulation and, in particular, the principles of transparency, equal treatment and non-discrimination laid down in that provision.

154 The Commission asserts in reply that the successful tender met all the prescriptive technical requirements. It therefore infringed neither the Financial Regulation nor the Rules of Application, nor the principles of transparency, equal treatment and non-discrimination.

155 The applicant states that the tender specifications single out a number of elements among the technical specifications as described in part II of the tender specifications that the future contractor must obligatorily comply with in the light of the tender specifications and designates them as being compulsory or forbidden. It results from the wording that has been used in the tender specifications and the document entitled ‘Questions and Answers’ that compliance with a number of specifications was mandatory. It follows, in the applicant’s view, that the Commission had the obligation to verify compliance with the technical requirements of the tender specifications and had to ‘exclude’ tenders which did not comply with these requirements.

156 In that regard, it must be noted that the requirement to comply is absolute and a tender not containing all the essential elements required in the tendering documents must be eliminated (see paragraph 146 above).

157 It is clear from point 4.2.2 of the tender specifications that ‘the technical proposal must meet the technical specifications set out below and provide, as a minimum, all the information needed for the purpose of awarding the contract’. It is also stated at point 4.2.2 that ‘the level of detail of the tender will be extremely important for the evaluation of the tender’.

158 Moreover, the technical requirements related to the Trans-European Services for Telematics between Administrations and could be met by different technical means which did not necessarily include the same devices and software. In addition, the call for tenders promoted competition in technical matters and encouraged the competitors to propose an innovative solution going beyond the minimum requirements, which enabled tenderers to obtain more points.

159 The evaluation committee had to examine the tenders in the light of each of the six award criteria and the sub-criteria. That examination presupposed above all that each part of the tenders was formally, but also substantively, dedicated to each of those criteria. If a tender met that minimum requirement, the committee awarded it a certain number of points.

160 Observance of the principle of equal treatment of tenderers requires that all the tenders comply with the tender conditions so as to ensure an objective comparison of the tenders submitted by the various tenderers (see, by analogy, judgments of 22 June 1993 in Commission v Denmark, C‑243/89, EU:C:1993:257, paragraph 37, and 25 April 1996 in Commission v Belgium, C‑87/94, EU:C:1996:161, paragraph 70).

161 First of all, it must be pointed out that the applicant’s representative consulted at the Court Registry extracts from the full version of the additional examination report concerning the successful tender relating to award sub-criteria 3e, 4a, 4d, 5c and 5e. At the hearing, he stated, in answer to a question from the Court in that regard, that it was not essential for him to consult those extracts in order to present and substantiate his arguments, so that the applicant’s rights of defence were not adversely affected.

– Award sub-criterion 3e, entitled ‘Quality of the physical security of the Security and Operations Centre’

162 The applicant argues that the successful tender did not comply with the requirements laid down in Annex 1 and Annex 10, Chapter 3, to the tender specifications concerning the physical security of the Security and Operations Centre (‘the SOC’).

163 Award sub-criterion 3e provides for the quality of the physical security of the SOC to be evaluated. Point 9.3 of the tender specifications states that each of the tenders will be evaluated in the light of that award sub-criterion, having regard to the requirements laid down in Annex 1 and Annex 10, Chapter 3, to the tender specifications. Point 9.3 further states that a site visit will take place in order to verify the set-up and compliance of the premises or, if not available at the time the tender was submitted, the feasibility of the solution proposed to render the offer compliant, in particular with the requirements listed in Chapter 3 of Annex 10.

164 The extract from the evaluation report concerning the successful tender states that ‘[the latter] gave an extended description of the security measures in place’, but that ‘the site visit of the SOC (redacted data)’ and that ‘therefore, the quality of the physical security was quoted FAIR’.

165 It must be noted, first, that the evaluation committee confirmed that the successful tender complied with the prescribed requirements and was acceptable in terms of quality and, secondly, that it found an anomaly, during the site visit, which led it to award that tender a rating which had to be assessed as ‘fair’.

166 The additional examination report states, in that regard, that, ‘with regard to the physical security of the SOC, [the successful tenderer] gave an extended description of the measures put in place’, that ‘during the onsite visit, the visiting team noticed that one particular layer of security (redacted data) could be improved’, that ‘additional security measures were present (redacted data)’ and that ‘the Evaluation Committee confirms a [quotation which had to be assessed as ‘Fair’] based on the fact that the proposal, which [was] compliant with the requirements and acceptable in terms of quality, [could] be improved as mentioned above’.

167 The Commission contends, in that regard, that the reference in the evaluation report of the successful tender to the possibility of improvement in the physical security means that some aspects of that tender did not exceed the Commission’s expectations and that tender could not, therefore, obtain the corresponding higher level. Nonetheless, the Commission considers that the successful tender complied with the minimum requirements of the tender specifications, which led it to award it a rating which had to be assessed as ‘Fair’.

168 It is apparent from the additional examination report that the evaluation committee confirmed that the successful tenderer had not only given an extended description of the security measures put in place, but also explained what the anomaly observed during the site visit consisted of. In fact, the evaluation committee found that a particular layer of security could be improved, but that additional security measures were present. In other words, all the requirements of the tender specifications and more specifically those in Annexes 1 and 10 thereto had been met, even though, on the day of the site visit, certain security measures in place were not implemented.

169 The arguments put forward by the applicant alleging that the successful tender was not compliant in the light of award sub-criterion 3e must, therefore, be rejected.

– Award sub-criterion 4a, entitled ‘Quality of the encryption solutions (eurodomain, SIS II and VIS)’

170 The applicant puts forward three arguments in support of its statement that the successful tender obtained a rating which had to be assessed as ‘Good’, although the solution proposed was not ‘compliant’.

171 In the first place, according to the applicant, the ‘SINA’ encryption boxes proposed by the successful tenderer could not provide a service which complied with the requirements of the tender specifications, given that another device, such as a firewall, was necessary in order to be able to address the failover between core sites and it was unclear whether the successful tenderer had addressed the failover mechanism correctly, especially on locations that have no firewall (SIS/VIS).

172 Award sub-criterion 4a provides for the quality of the encryption solutions (eurodomain, SIS II and VIS) to be evaluated. The corresponding technical requirement is mentioned in point 9.4 of the tender specifications, entitled ‘Quality of the security specific service’, which is worded as follows:

– Make a description of the encryption solution for the Eurodomain, SIS II and VIS network cloud and describe compliance with:

– General network security requirements with regard to topology (demonstrate how management and monitoring of the connection and the security devices is performed by the different service centres)

– Key management process (full lifecycle, creation, distribution, revocation, recovery, destruction).’

173 The extract from the evaluation report concerning the successful tender states as follows:

‘[The successful tenderer’s] offer is presented in a very great detail in Section II‑4.

For non-classified information encryption, the proposed (redacted data) are certified by the German BSI for use in classified environments to the German classification level equivalent to “EU Restricted”. The (redacted data). (redacted data). The (redacted data).

For EUCI [European Union classified information], [the successful tenderer] proposed the (redacted data). (redacted data). [It] also stressed compliance to (redacted data) certification. The business version of (redacted data) is currently used to encrypt non-EUCI s-TESTA traffic.

Whereas the offer regarding the proposed managed cryptographic systems are detailed, not-managed crypto boxes (SIS/VIS) are very briefly explained.

174 First of all, it must be pointed out that, according to the Commission, the applicant’s argument is based on the incorrect assumption that the successful tenderer proposed the ‘SINA’ boxes as non-classified encryption devices. It contends, in that regard, that the reference to the equipment ‘certified by the German BSI’ in the evaluation report relates to another encryption device of another brand proposed for the non-classified information encryption.

175 Next, it must be pointed out that the applicant does not explain clearly to what extent the successful tenderer has failed to provide a compliant solution in proposing the ‘SINA’ boxes. In addition, as the Commission notes, it must be observed that the tender specifications do not prohibit a proposal which combines the proposed encryption devices with additional hardware or a firewall.

176 Lastly, it must be found that the explanations presented before the Court by the Commission are convincing. According to the Commission, the encryption solutions provided by the successful tenderer had dynamic routing capabilities and no other device, such as a firewall, was required behind the encryption devices to address the failover mechanism. The Commission further stated that that solution could also be implemented for the ‘SIS II/VIS’ sites (which have no firewall). The Court points out that the applicant has not adduced any serious evidence to challenge those explanations.

177 In the second place, the applicant submits that, in the evaluation report, there is no mention of the failover mechanism of non-classified and classified devices, notwithstanding the fact that the answers given to the questions in points 1.10 and 1.11 of the document entitled ‘Questions and Answers’ stated that this had to be an important part in the evaluation. Consequently, the Commission failed to show that the successful tender was ‘compliant’ in that regard.

178 It must be found, as the Commission observes, that the absence of a comment concerning the routing and fall-back capabilities of the encryption devices proposed by the successful tenderer, in the evaluation report, does not automatically mean that the tender was not ‘compliant’.

179 In any event, it is apparent from point 7.2.1.2 of the tender specifications, entitled ‘EUCI approved encryption devices’, that an encryption device certified for handling ‘Restricted EU’ documents will be required only in the case of accreditation of an application using TESTA-ng. The tender specifications do not provide anywhere in the description of the seven implementation scenarios envisaged that the classified (‘EUCI’ approved) encryption devices must be used on the network by the future contractor. That is confirmed by the answer to the question in point 1.71 of the document entitled ‘Questions and Answers’ and repeated in the answer to the question in point 1.122 of that document.

180 In addition, it is apparent from point 7.2.1.2 of the tender specifications that the requirement for the assessment of award sub-criterion 4a as regards managed and non-managed classified encryption services provides only that the proposed devices must be on the list of ‘EUCI’ approved cryptographic devices.

181 In that regard, it must be pointed out that the Commission confirmed, at the hearing, that the ‘SINA’ box proposed by the successful tenderer was on the list of ‘EUCI’ approved cryptographic devices, at the time of submission of the offers, which was formally noted in the minutes of the hearing.

182 Consequently, the encryption solutions for classified and non-classified traffic satisfy the criteria of the tender specifications, so that the successful tender did not have to be qualified by any condition, contrary to what the applicant claims.

183 In the third place, the applicant claims that it is apparent from the evaluation report that the non-managed encryption boxes (SIS II/VIS) were only briefly explained. It inferred from this that the non-managed solution is not ‘compliant’ with the criteria of the tender specifications.

184 The Commission contends that the encryption devices for the managed and the non-managed services (that is, on the locations of ‘SIS II/VIS’) are the same. It states that the evaluation committee’s remark concerning the non-managed services only pointed out that it was not explained in detail how the management (installation, maintenance) of the non-managed encryption devices would be done.

185 It must be pointed out, in that regard, that the fact that the successful tenderer only briefly described the non-managed encryption devices, namely those situated on the ‘SIS II/VIS’ locations, does not imply that the solutions proposed did not comply with the technical requirements of the technical specifications.

186 The Court must, therefore, reject the applicant’s arguments concerning the non-conformity of the successful tender in the light of award sub‑criterion 4a, given that they result from uncertain deductions, unsubstantiated by evidence.

– Award sub-criterion 4d, entitled ‘Quality of the proposed intrusion detection/prevention service’

187 The applicant submits that the successful tender obtained a rating which had to be assessed as ‘Fair’, whereas the solution proposed did not comply with at least two technical requirements in the light of award sub-criterion 4d, given that the intrusion detection/prevention service (‘the IDS/IPS’) and firewall capabilities were combined in one box and that the specific aspect of segregation of duties was not explained in the tender, contrary to what had been required in the tender specifications and confirmed by the answers given to the questions in points 1.33 and 3.10 of the document entitled ‘Questions and Answers’. The applicant adds that a two-box solution, as proposed by it, is more expensive than a one-box solution as proposed by the successful tenderer.

188 Award sub-criterion 4d is aimed at the ‘Quality of the proposed intrusion detection/prevention service’. The corresponding technical requirement is mentioned in point 9.4 of the tender specifications, entitled ‘Quality of the security specific service’ which is worded as follows:

– Make a description of the intrusion detection/prevention solution for the Eurodomain, SIS II and VIS network cloud and describe compliance with:

– General network security requirements with regard to topology (demonstrate how management and monitoring of the connection and the security devices is performed by the different service centres)

– The tenderer shall provide a description for both managed and not managed intrusion detection/prevention solutions.’

189 The extract of the evaluation report concerning the successful tender states:

‘[The successful tenderer] describes the use of (redacted data). Cooperation between the (redacted data) and (redacted data) is supported through a single vendor approach.

The IDS is considered as an add-on component over the firewall system. However, (redacted data) segregation of duty related to security systems management. This specific aspect of segregation of duties was not explained in the offer.

Consequently, to ensure full compliance with the call for tender contents, there is room for improvement (redacted data). The managed IDS service includes (redacted data) per community. [The successful tenderer’s] offer explains that the “not managed” (redacted data) is equivalent to the managed service excluding the management dimension.

The section also describes briefly [the successful tenderer’s] responsibilities related to delivery, installation, configuration, testing, acceptance and maintenance as well as training and hand-over to community system administrators. However, the not-managed IDS service is not described in detail.

‘The [successful party’s] solution concerning the IDS/IPS and firewall capabilities is based on separate hardware devices. Therefore, it is compliant with the technical requirement. More precisely, the separate device configuration (redacted data).

However, the management aspect was below expectations. Though formally compliant, there is room for improvement with regard to the description of the IDS management implementation in order to meet the expectations in this area.

Apart from this aspect, the proposed solution is in generally acceptable in terms of quality. Therefore the [quotation which had to be assessed as ‘Fair’] is confirmed.’

191 In the first place, as regards the applicant’s claim that the IDS/IPS and firewall capabilities were combined in one box, it must be noted that, according to the answer to question 1.33 of the document entitled ‘Questions and Answers’, internet protocol (‘the IP’) intrusion detection may not be combined with the firewall in one box.

192 In addition, the answer to the question in point 3.10 of the document entitled ‘Questions and Answers’, relating to the confirmation that the IDS/IPS and firewall capabilities may not be combined in one box, reads as follows: ‘Yes, they cannot be combined’.

193 The applicant claims that it is apparent from the evaluation report, in particular from the passage which states that ‘IDS is considered as an add-on component over the firewall system’, that the solution proposed by the successful tenderer combines the IDS/IPS and firewall capacities in a single box.

194 It must be noted, in that regard, that the evaluation committee stated in the additional examination report that ‘[the successful tenderer’s] solution concerning the IDS/IPS and firewall capabilities [was] based on separate hardware devices’.

195 At first sight, it could appear that there is a disparity between the evaluation report and the additional examination report. The question to be asked is whether or not an add-on component over the firewall system is equipment separate from that system.

196 The Commission submits that, even if ‘the IDS is considered as an add-on component’, it will be implemented through a separate device, as confirmed in the additional examination report.

197 In answer to a written question from the Court, the Commission confirms that the successful tenderer’s solution concerning the IDS/IPS is not a one-box solution but is based, as required by the tender specifications, on two separate devices. In support of its reply, the Commission refers to the extract from the successful tender, reproduced in the rejoinder, according to which:

‘The [successful tenderer’s] solution design incorporates a hybrid approach of a dedicated firewall service, with the complement of an encryption device and an IDS/IPS device service. This separate device configuration follows the layer security defence strategy implemented to remove “One Box” doing the entire configuration. Each device performs optimal security protection in their particular area of security features, i.e. Firewall-Stateful Inspection, IDS/IPS malicious traffic detection and prevention, encryption device removal of readable text using the highest level of algorithmic encryption schemes.’

198 It may be seen from that explanation that the IDS/IPS functionality is provided on a separate device and that the successful tender complies, therefore, with the requirements of the tender specifications.

199 In the second place, as regards the applicant’s claim that the specific aspect of segregation of duties was not explained in the successful tender, it must be noted that, according to point 7.2.3, entitled ‘IP intrusion detection/prevention of TESTA-NG’, the solution proposed must comply with the minimum security requirements set out in Annex 1 to the tender specifications.

200 The applicant submits that it is apparent from Annex I to the tender specifications that the segregation of duties is a clear requirement. It considers that the lack of description suggests that the successful tenderer did not provide two physical boxes for the IDS/IPS and firewall, as it does not make any technical sense to have two separated boxes for the IDS/IPS and firewall if you do not have segregation of duties concerning the security systems management.

201 It must be borne in mind that the mere fact that a full description of the segregation of duties regarding the security systems management is not provided does not mean that the successful tender does not comply with the requirements of the tender specifications. This means only that if more details had been given, a higher score could have been awarded to the tender (see paragraphs 157 and 158 above).

202 The applicant’s claims concerning the non-compliance of the successful tender in the light of award sub-criterion 4d must, therefore, be rejected.

203 The applicant submits that the successful tender obtained a rating which had to be assessed as ‘fair’, although the solution proposed did not meet the requirements of the tender specifications. First, that tender does not satisfy the hardening measures of the rack, which does not seem to be a robust model. Secondly, the successful tenderer did not provide information on the amount of detectors, events, and local logging of events.

204 Award sub-criterion 5c provides for the quality of rack monitoring to be evaluated. The corresponding technical requirement is mentioned in point 9.5 of the tender specifications, entitled ‘Quality of the resilient TAP and backbone management’, which reads as follows:

‘Ref § 7.1.6: Explain how the secured rack, both customer and supplier provisioned, will be centrally monitored, secured and controlled. The tenderer shall provide a description for both managed and not managed rack security.’

205 The extract of the evaluation report concerning the successful tender states:

‘The description of the rack monitoring and control system is incomplete and confusing.

Additional hardening measures are not described (redacted data). Further details about type and amount of detectors, events, local logging of events are not described in detail in the proposal.

‘[The successful tenderer] gives a succinct description of the measures that are foreseen to monitor, secure and control a secured rack. With regard to this aspect, the proposal is generally clear and acceptable.

However, despite the fact that all the requirements are correctly understood and that the required measures are provided, the Evaluation Committee considers that the description on how some measures are implemented is incomplete (e.g. rack monitoring traffic flow was explained on a diagram but not detailed in the text, hence confusion) and therefore some aspects can be improved. It’s to be noted that this confusing traffic flow has no impact on the global solution which is acceptable in all cases.

The [quotation which had to be assessed as ‘Fair’] is confirmed after the additional examination of the offer.’

207 It is apparent from the evaluation report and the additional examination report that the successful tender satisfied the requirements laid down in the tender specifications and that the presence of more details, in particular as regards the rack monitoring traffic flow and the type and number of detectors, events, and local logging of events, could have increased the score awarded to that tender. It must be borne in mind, in that regard, that the level of detail was extremely important for the evaluation of the tenders (see paragraphs 157 and 158 above).

208 The applicant’s claims concerning the non-conformity of the successful tender in the light of award sub-criterion 5c must, therefore, be rejected.

209 The applicant submits that the description of the solution proposed by the successful tenderer deserves a rating which has to be assessed as ‘Very poor’ and not the assessment ‘Fair’ and that it follows from this that the successful tender was not ‘compliant’. It considers that, as a consequence of the ‘non-compliance’ of that tender, the successful tenderer was able to submit an extremely low-priced offer.

210 Award sub-criterion 5e provides for the quality of the integration of internet protocol version 6 (‘the IPv6’) to be evaluated. The corresponding technical requirement is mentioned in point 9.5 of the technical specifications, entitled ‘Quality of the resilient TAP and backbone connection’, which is worded as follows:

‘Ref § 7.1.9: Provide a design for a cloud, dedicated to potential pure IPv6 connections with particular highlight on the bridging mechanism to be used to integrate to the IPv4 cloud.’

211 It follows that two technical requirements may be identified in the tender specifications: first, the ability to provide a design for a cloud, dedicated to potential pure IPv6 connections and, secondly, the ability to provide a bridging mechanism to be used to integrate to the internet protocol version 4 (‘the IPv4’) cloud.

212 The extract from the evaluation report concerning the successful tender states:

‘[The successful tenderer] claims that IPv6 support will be available in a separate network cloud. The integration between the IPv6 and IPv4 clouds is based on dual stack, which is not seen as a viable option for the sTESTA network. In addition the description of a bridging mechanism was very poor. A roadmap data for the IPv6 support at the level of the TAP was also insufficient.

‘[The successful tenderer’s] network fully supports IPv6 in all the required elements and the proposed architecture is acceptable.

However for some aspects, mainly the bridging, the provided description based on dual stack was under expectations because it’s not a viable option for the cases where IPv6/IPv4 translation is needed (client nodes are not under [European Commission] control and therefore it cannot be considered that on the client side dual stack can be implemented). The lack of description of this translation has led to the [rating which had to be assessed as ‘Fair’].

It’s to be noted that these mechanisms are fully supported by the [successful tenderer’s] proposed devices and that the solution complies with the tender requirements. The evaluation committee confirms the FAIR assessment.’

214 The Commission explains that the solution proposed by the successful tenderer for the IPv6 implementation was a predominantly software support approach that has the ability simultaneously to support the IPv4 and IPv6 formats, with a view to ensuring the expected long-term coexistence of IPv4 and IPv6. For some aspects, mainly the bridging, the provided description based on the dual-stack approach was, in its view, below expectations because it was not a viable option for the cases where IPv6/IPv4 translation was needed.

215 As regards the ability to run dedicated IPv6 clouds, the Commission states that the successful tenderer’s proposal is based on the standard, most used approach. In adopting that approach, the successful tenderer is perfectly able to run dedicated clouds for IPv6 by obviously not using or running IPv4 on these clouds. This part of the solution is thus fully compliant with the tender specifications.

216 Concerning the bridging mechanism between IPv6 and IPv4, the Commission states that the successful tenderer described the dual-stack bridging mechanism between IPv4 and IPv6 worlds which is based on domain name system selection. Although the successful tenderer’s proposal described the standard approach, it fully supports any additional bridging mechanism. Consequently, the evaluation committee concluded that while the description was sometimes lacking, the proposed devices and solution had the necessary bridging capabilities (translation mechanisms) and thus from a technical point of view complied with the requirements as set out in the tender specifications.

217 In answer to a written question from the Court, first, the Commission contends that the IPv6 has never been used over the TESTA network and the call for tender’s requirements were to guarantee its availability in case it might be requested in the future. Secondly, it notes that the comments in the evaluation report and the additional examination report do not summarise the whole evaluation, but highlight some aspects of the successful tender. The Commission states that the comment ‘not viable’ only related to the dual-stack approach proposed by the successful tenderer, which may, in theory, have limitations for some scenarios where the devices used are not controlled end-to-end by the Commission staff.

218 In those circumstances, it must be confirmed that the successful tender complied with the tender specifications from the point of view of functioning, since it contained all the elements required in order to take into account the prescribed technical requirements, including bridging. In addition, the inadequacy found, being linked to limited and purely theoretical cases, was taken into account by the evaluation committee so that the successful tenderer was not able to obtain a better rating than ‘Fair’.

219 Consequently, the Court must reject that the applicant’s claims concerning the non-compliance of the successful tender in the light of award sub-criterion 5e and its argument that, because of the non-compliance of the successful tender, the successful tenderer was in a position to submit an extremely low-priced offer.

220 Since all the claims put forward by the applicant concerning the non-compliance of the successful tender have been rejected, it follows that the applicant’s argument that the tender’s non-compliance enabled the successful tenderer to make a financial offer appreciably lower than that of the applicant must also be rejected.

The second part of the second plea, alleging incompatibility between the detailed rules in the tender specifications and the way in which they have been applied

222 In the context of the second part of the plea, the applicant submits that the failure to communicate the evaluation method used before the submission of tenders harmed the preparation of its tender and led it to submit a tender which proposed a price that was substantially higher than that of the successful tender. Moreover, the disclosure of every level of appraisal would have helped the tenderers to decide better whether or not it was necessary to comply. Therefore, the principles of transparency, equal treatment and non-discrimination have not been observed.

223 The Commission contends that it evaluated only those tenders that were fully compliant with the minimal technical requirements as laid down in the tender specifications. The evaluation method and the seven corresponding levels of appraisal did not have the effect of enabling tenders not complying with the tender specifications to be considered in the evaluation stage. The evaluation method was solely a framework for the evaluation of the quality and level of detail of technical offers that satisfied the minimum technical requirements set out in the tender specifications.

224 Contrary to the Commission’s contentions, the applicant did not alter the second part of the present plea in law in the reply. It must be found, in that regard, that the applicant’s line of argument in the reply is a reiteration of the line of argument developed in the context of the third part of the first plea in law.

225 As regards the failure to communicate, before the deadline for the receipt of tenders, the evaluation method which was to be used, the Court has found, in the context of the third part of the first plea in law (see paragraph 138 above), that the Commission was not obliged under the Financial Regulation or its Rules of Application to divulge its marking system or its evaluation methodology. Moreover, the evaluation method does not include elements which could have influenced the preparation of the tenderers’ bids (see paragraph 146 above). Even if that were the case, the evaluation method was communicated to the three tenderers after they submitted their tenders. Consequently, it must be observed that all three tenderers prepared their tenders unaware of that evaluation method and were, therefore, in the same situation when preparing their tenders.

227 It follows from all the foregoing considerations that the second plea in law must be rejected as unfounded.

228 Since all the pleas and arguments directed against the contested decision have been rejected, the application for annulment of that decision must be dismissed.

229 The applicant claims that the Court should declare the contract null and void in the event that the Commission has already awarded the contract at issue.

230 In that regard, it should be noted that it has consistently been held that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. Such an interest presupposes that annulment of the contested measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it (see judgment of 23 May 2014 in European Dynamics Luxembourg v ECB, T-553/11, not published, EU:T:2014:275, paragraph 94 and the case-law cited).

231 Even on the assumption that the award decision were severable from the contract and may be the subject of an action for annulment, the outcome of such an action is not likely to procure an advantage for the applicant, since the lawfulness of the contested decision by which the Commission decided not to accept the applicant’s tender and to award the contract to another tenderer has been upheld (see paragraph 230 above).

233 In the reply, the applicant requests, in the alternative, the appointment of an independent expert to examine fully whether the successful tender complies with the technical requirements as set out in the tender specifications.

234 The Commission considers that that request, made for the first time in the reply, is inadmissible under Article 48(2) of the Rules of Procedure of 2 May 1991, for the request is not based on any new matters of law or of fact coming to light in the course of the procedure. In addition, the appointment of such an expert would amount to a re-evaluation by the General Court of the successful tender, which would be contrary to settled case-law regarding the extent of the review by the Court in such matters.

235 In the present case, in the light of the parties’ written pleadings, the evidence placed on the file and the results of the hearing, the Court considers that it has sufficient information to rule on the present case.

236 As is apparent from the reasoning concerning the first head of claim, the examination of the first part of the second plea in law, alleging infringement of Article 102(1) of the Financial Regulation, in that the successful tender did not comply with the technical requirements, did not disclose any failure of that tender to comply with the technical requirements as set out in the tender specifications.

237 In those circumstances, the applicant’s request for the appointment of an expert must be rejected and there is no need to rule on the admissibility of that request.

239 Under Article 134(1) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

The first plea in law, alleging infringement of the tender specifications and of Article 102(1) of the Financial Regulation in that the Commission did not apply the award criteria correctly