# 62015TJ0726

T‐726/1562015TJ0726EU:T:2017:37600011144T

JUDGMENT OF THE GENERAL COURT (Third Chamber)

7 June 2017 (
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  )

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‛Public service contracts — Property market — Tender procedure — Negotiated procedure without publication of a contract notice — Premises for the European Union House in Ljubljana — Rejection of the tender after prospecting the local market — Award of the contract to another tenderer — Failure to examine the documents annexed to the tender — Error of law — Manifest error of assessment’

In Case T‐726/15,

Jožica Blaž Jamnik and Brina Blaž, residing in Ljubljana (Slovenia), represented by D. Mihevc, lawyer,

Jožica Blaž Jamnik and Brina Blaž

applicants,

v

European Parliament, represented by V. Naglič, P. López-Carceller and B. Simon, acting as Agents,

European Parliament

defendant,

APPLICATION under Article 263 TFEU, principally, seeking the annulment of the decision of the Parliament of 12 October 2015 rejecting, after prospection of the local market, the tender submitted by the applicants in connection with building contract INLO.AO-2013-051-LUX-UGIMBI‐06 concerning the future European Union House in Ljubljana and the decision to award the contract to another tenderer and, in the alternative, a claim based on Article 268 TFEU for compensation for damage that the applicants allegedly suffered,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, I.S. Forrester and E. Perillo (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment (
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  )

Judgment (
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[omissis]

Law

Law

The application for annulment

The application for annulment

[omissis]

The application for annulment of the rejecting the tender

The application for annulment of the rejecting the tender

[omissis]

| 16 | As a preliminary point, it should be recalled that, in accordance with Article 101 of the Financial Regulation, public contracts are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities in order to obtain, against payment of a price paid in whole or in part from the budget of the European Union, the supply of movable or immovable assets, the execution of works or the provision of services. According to that article, such contracts comprise, inter alia, ‘building contracts’ which concern, in particular the purchase or rental of a building. Article 102(1) of the Financial Regulation also states that ‘[a]ll public contracts financed in whole or in part by the budget [of the European Union] shall respect the principles of transparency, proportionality, equal treatment and non-discrimination.’ As regards, in particular, the rules governing procurement procedures, Article 102(2) of the Financial Regulation provides that ‘[a]ll public procurement contracts shall be put out to tender on the broadest possible basis, except when use is made of the negotiated procedure referred to in point (d) of Article 104(1) [of the Financial Regulation]’. |
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16

As a preliminary point, it should be recalled that, in accordance with Article 101 of the Financial Regulation, public contracts are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities in order to obtain, against payment of a price paid in whole or in part from the budget of the European Union, the supply of movable or immovable assets, the execution of works or the provision of services. According to that article, such contracts comprise, inter alia, ‘building contracts’ which concern, in particular the purchase or rental of a building. Article 102(1) of the Financial Regulation also states that ‘[a]ll public contracts financed in whole or in part by the budget [of the European Union] shall respect the principles of transparency, proportionality, equal treatment and non-discrimination.’ As regards, in particular, the rules governing procurement procedures, Article 102(2) of the Financial Regulation provides that ‘[a]ll public procurement contracts shall be put out to tender on the broadest possible basis, except when use is made of the negotiated procedure referred to in point (d) of Article 104(1) [of the Financial Regulation]’.

| 17 | As regards the latter procedure, Article 134(1)(h) of Delegated Regulation No 1268/2012 states that the contracting authorities may use the negotiated procedure without prior publication of a contract notice, whatever the estimated value of the contract, ‘for building contracts, after prospecting the local market’. In practice, under such a procedure, the contracting authority may choose freely the undertaking or undertakings with which they wish to enter into negotiations for the conclusion and award of the contract concerned (see, to that effect, judgment of 8 May 2007, Citymo v Commission, T‐271/04, EU:T:2007:128, paragraph 94). |
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17

As regards the latter procedure, Article 134(1)(h) of Delegated Regulation No 1268/2012 states that the contracting authorities may use the negotiated procedure without prior publication of a contract notice, whatever the estimated value of the contract, ‘for building contracts, after prospecting the local market’. In practice, under such a procedure, the contracting authority may choose freely the undertaking or undertakings with which they wish to enter into negotiations for the conclusion and award of the contract concerned (see, to that effect, judgment of 8 May 2007, Citymo v Commission, T‐271/04, EU:T:2007:128, paragraph 94).

| 18 | It is clear from the provisions mentioned in paragraphs 16 and 17 above that, in the context of a negotiated procedure without prior publication of a contract notice, the contracting authority concerned has a broad discretion as to the information to be taken into consideration in deciding whether or not to award the building contract concerned and the choice of successful tenderer, since the award of the contract does not necessarily have to be put out on the broadest possible basis between the parties concerned (see, to that effect, judgment of 8 May 2007, Citymo v Commission, T‐271/04, EU:T:2007:128, paragraph 111).The same is true a fortiori in the phase of prospecting the local market which precedes the negotiation phase of the contract itself. During that phase, the contracting authority aims, essentially, to better prepare for possible negotiations regarding the contract concerned, in accordance with the principles set out in paragraph 16 above, in particular, the principles of transparency, equal treatment and non-discrimination. Further, this very broad discretion is also accorded to the contracting authority in the choice and evaluation of the selection criteria, where it has defined them in the contract documents relating to the negotiated procedure concerned (see, to that effect, judgment of 6 May 2013, Kieffer Omnitec v Commission, T‐288/11, not published, EU:T:2013:228, paragraph 47 and the case-law cited). |
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18

It is clear from the provisions mentioned in paragraphs 16 and 17 above that, in the context of a negotiated procedure without prior publication of a contract notice, the contracting authority concerned has a broad discretion as to the information to be taken into consideration in deciding whether or not to award the building contract concerned and the choice of successful tenderer, since the award of the contract does not necessarily have to be put out on the broadest possible basis between the parties concerned (see, to that effect, judgment of 8 May 2007, Citymo v Commission, T‐271/04, EU:T:2007:128, paragraph 111).The same is true a fortiori in the phase of prospecting the local market which precedes the negotiation phase of the contract itself. During that phase, the contracting authority aims, essentially, to better prepare for possible negotiations regarding the contract concerned, in accordance with the principles set out in paragraph 16 above, in particular, the principles of transparency, equal treatment and non-discrimination. Further, this very broad discretion is also accorded to the contracting authority in the choice and evaluation of the selection criteria, where it has defined them in the contract documents relating to the negotiated procedure concerned (see, to that effect, judgment of 6 May 2013, Kieffer Omnitec v Commission, T‐288/11, not published, EU:T:2013:228, paragraph 47 and the case-law cited).

| 19 | In those circumstances, the review by the General Court of the negotiated procedure for the award of the building contract itself and the phase of prospecting the local market which precedes it, must be limited to verifying compliance with the procedural rules that the contracting authority intended to put in place, rules governing procedure and the statement of reasons, the material accuracy of the facts, and absence of serious or manifest errors of assessment (see to that effect, judgment of 28 January 2016, Zafeiropoulos v Cedefop, T‐537/12, not published, EU:T:2016:36, paragraph 36 and the case-law cited). In the course of its review, the court is also required to check that contracting authority concerned has complied with the principles of transparency, proportionality, equal treatment and non-discrimination, as set out in Article 102 of the Financial Regulation (see paragraph 16 above).
  [omissis] |
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19

In those circumstances, the review by the General Court of the negotiated procedure for the award of the building contract itself and the phase of prospecting the local market which precedes it, must be limited to verifying compliance with the procedural rules that the contracting authority intended to put in place, rules governing procedure and the statement of reasons, the material accuracy of the facts, and absence of serious or manifest errors of assessment (see to that effect, judgment of 28 January 2016, Zafeiropoulos v Cedefop, T‐537/12, not published, EU:T:2016:36, paragraph 36 and the case-law cited). In the course of its review, the court is also required to check that contracting authority concerned has complied with the principles of transparency, proportionality, equal treatment and non-discrimination, as set out in Article 102 of the Financial Regulation (see paragraph 16 above).

[omissis]

– The second part of the ground of appeal, alleging errors of law

The second part of the ground of appeal, alleging errors of law

[omissis]

| 35 | In those circumstances, the second limb of the plea must be dismissed. |
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35

In those circumstances, the second limb of the plea must be dismissed.

– The third plea in law, alleging a manifest error of assessment

The third plea in law, alleging a manifest error of assessment

| 36 | The applicants submit that the assessment by the Parliament of their tender is vitiated by a manifest error, essentially on the ground that, as compared with the bid finally accepted, their tender corresponded more closely to the assessment criteria, as laid down in the call for tenders. |
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36

The applicants submit that the assessment by the Parliament of their tender is vitiated by a manifest error, essentially on the ground that, as compared with the bid finally accepted, their tender corresponded more closely to the assessment criteria, as laid down in the call for tenders.

| 37 | In that connection, although the contracting authority stated in the decision rejecting the applicant’s tender that it was not ‘the most advantageous’, it cannot be inferred that the applicants’ tender had been compared to the tender finally accepted at the end of the whole procedure, since it is common ground that the applicants, whose tender was rejected at the phase of prospecting the local property market, were not among the five tenderers selected to take part in the negotiations themselves. In those circumstances, the plea based on a manifest error of assessment must be regarded as relevant solely to the extent that it concerns the phase of prospecting the local property market, during which the applicants’ tender was in fact compared to the other tenders, including that submitted by the future successful tenderer. |
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37

In that connection, although the contracting authority stated in the decision rejecting the applicant’s tender that it was not ‘the most advantageous’, it cannot be inferred that the applicants’ tender had been compared to the tender finally accepted at the end of the whole procedure, since it is common ground that the applicants, whose tender was rejected at the phase of prospecting the local property market, were not among the five tenderers selected to take part in the negotiations themselves. In those circumstances, the plea based on a manifest error of assessment must be regarded as relevant solely to the extent that it concerns the phase of prospecting the local property market, during which the applicants’ tender was in fact compared to the other tenders, including that submitted by the future successful tenderer.

| 38 | However, it must be stated, as a preliminary point that, in order to establish that in the assessment of the facts the contracting authority committed an error so obvious that is of a nature as to justify the annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see, to that effect and by analogy, judgments of 12 December 1996, AIUFFASS and AKT v Commission, T‐380/94, EU:T:1996:195, paragraph 59, and of 12 February 2008, BUPA and Others v Commission, T‐289/03, EU:T:2008:29, paragraph 221). |
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38

However, it must be stated, as a preliminary point that, in order to establish that in the assessment of the facts the contracting authority committed an error so obvious that is of a nature as to justify the annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see, to that effect and by analogy, judgments of 12 December 1996, AIUFFASS and AKT v Commission, T‐380/94, EU:T:1996:195, paragraph 59, and of 12 February 2008, BUPA and Others v Commission, T‐289/03, EU:T:2008:29, paragraph 221).

| 39 | That is particularly true where the decision at issue is vitiated by errors of assessment which, if they were taken as a whole, are minor decisions not likely to have been able to influence the administration in one way rather than another (see, to that effect, and by analogy, judgment of 29 September 2011, AJ v Commission, F‐80/10, EU:F:2011:172, paragraph 36 and the case-law cited).
  [omissis] |
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39

That is particularly true where the decision at issue is vitiated by errors of assessment which, if they were taken as a whole, are minor decisions not likely to have been able to influence the administration in one way rather than another (see, to that effect, and by analogy, judgment of 29 September 2011, AJ v Commission, F‐80/10, EU:F:2011:172, paragraph 36 and the case-law cited).

[omissis]

The application for annulment of the award decision

The application for annulment of the award decision

| 66 | As regards the application for the annulment of the decision awarding the contract, it must be recalled that, according to settled case-law, where a tenderer’s bid is rejected at a stage of the procedure preceding the award decision so that and, accordingly, it was not compared with the other tenders, the admissibility of the action brought by the tenderer concerned against the award decision depends on the annulment of the decision rejecting its tender (judgments of 13 September 2011, Dredging Internation and Ondernemingen Jan de Nul v EMSA, T‐8/09, EU:T:2011:461, paragraphs 134 and 135, and of 22 May 2012Evropaïki Dynamiki v CommissionT‐17/09, not published, EU:T:2012:243, paragraphs 118 and 119). |
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66

As regards the application for the annulment of the decision awarding the contract, it must be recalled that, according to settled case-law, where a tenderer’s bid is rejected at a stage of the procedure preceding the award decision so that and, accordingly, it was not compared with the other tenders, the admissibility of the action brought by the tenderer concerned against the award decision depends on the annulment of the decision rejecting its tender (judgments of 13 September 2011, Dredging Internation and Ondernemingen Jan de Nul v EMSA, T‐8/09, EU:T:2011:461, paragraphs 134 and 135, and of 22 May 2012Evropaïki Dynamiki v CommissionT‐17/09, not published, EU:T:2012:243, paragraphs 118 and 119).

| 67 | In the present case, it is common ground that the applicants’ tender was rejected during the phase of prospecting the local property market, so that they were not invited to participate in the negotiation phase which led to the designation of the successful tenderer. In those circumstances, since the application for annulment of the decision rejecting the tender has been dismissed, the application for annulment of the decision to award the contract is inadmissible, since it took place in the phase of the award procedure to which the applicants were not entitled to participate. |
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67

In the present case, it is common ground that the applicants’ tender was rejected during the phase of prospecting the local property market, so that they were not invited to participate in the negotiation phase which led to the designation of the successful tenderer. In those circumstances, since the application for annulment of the decision rejecting the tender has been dismissed, the application for annulment of the decision to award the contract is inadmissible, since it took place in the phase of the award procedure to which the applicants were not entitled to participate.

| 68 | Moreover, it must be observed that, with regard to the decision awarding the contract, the applicants do not raise any plea different from those relied on to challenge the lawfulness of the decision rejecting the tender. All of those pleas, assuming they may be transposed to the decision awarding the contract, have been dismissed, so that the application for the annulment of the decision awarding the contract should, as the Parliament rightly argues, be dismissed on such a ground, since, in the present case, the two decisions are closely linked (see, to that effect, judgments of 10 October 2012, Evropaïki Dynamiki v Commission, T‐247/09, not published, EU:T:2012:533, paragraph 170 and the case-law cited, and of 28 June 2016, AF Steelcase v EUIPO, T‐652/14, not published, EU:T:2016:370, paragraph 94).
  [omissis] |
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68

Moreover, it must be observed that, with regard to the decision awarding the contract, the applicants do not raise any plea different from those relied on to challenge the lawfulness of the decision rejecting the tender. All of those pleas, assuming they may be transposed to the decision awarding the contract, have been dismissed, so that the application for the annulment of the decision awarding the contract should, as the Parliament rightly argues, be dismissed on such a ground, since, in the present case, the two decisions are closely linked (see, to that effect, judgments of 10 October 2012, Evropaïki Dynamiki v Commission, T‐247/09, not published, EU:T:2012:533, paragraph 170 and the case-law cited, and of 28 June 2016, AF Steelcase v EUIPO, T‐652/14, not published, EU:T:2016:370, paragraph 94).

[omissis]

| | On those grounds,
  THE GENERAL COURT (Third Chamber)
  hereby: |
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On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

| | 1. | Dismisses the action; |
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1.

1.

Dismisses the action;

Dismisses the action;

| | 2. | Orders Ms Jožica Blaž Jamnik and Ms Brina Blaž to pay the costs. |
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2.

2.

Orders Ms Jožica Blaž Jamnik and Ms Brina Blaž to pay the costs.

Orders Ms Jožica Blaž Jamnik and Ms Brina Blaž to pay the costs.

| | Frimodt Nielsen


  Forrester


  Perillo


  Delivered in open court in Luxembourg on 7 June 2017.
  [Signatures] |
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Frimodt Nielsen

Forrester

Perillo

Delivered in open court in Luxembourg on 7 June 2017.

[Signatures]

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(
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  )	Language of the case: Slovenian.

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(
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  )	Only the paragraphs of the present judgment that the General Court considers useful to be published are set out below.

1