**Case T-50/05**

**Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE**

**v**

**European Commission**

(Public service contracts – Community tendering procedure – Provision of computer services relating to telematic systems to control the movement of products subject to excise duty – Rejection of a tenderer’s bid – Action for annulment – Consortium of tenderers – Admissibility – Principles of equal treatment of tenderers and transparency – Award criteria – Principles of sound administration and diligence – Obligation to state reasons – Manifest error of assessment)

Summary of the Judgment

1.      *Actions for annulment – Natural or legal persons – Locus standi*

*(Art. 230, fourth para, EC)*

2.      *European Communities’ public procurement – Tender procedure – Duty to comply with the principle of equal treatment of tenderers*

*(Council Regulation No 1605/2002, Art. 89(1))*

3.      *European Communities’ public procurement – Tender procedure – Award of contracts – Most economically advantageous tender
– Award criteria*

*(Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138(2) and (3))*

4.      *Acts of the institutions – Statement of reasons – Obligation – Scope – Decision, in the procedure for award of a public contract,
not to accept a bid*

*(Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149)*

1.      In the context of an action for annulment against a decision of the awarding authority, addressed to a consortium tenderer
which has never had legal personality, not to accept that tenderer’s bid and to award the public contract at issue to another
tenderer, the companies concerned, the members of the consortium, must be regarded as the addressees of the decision. In such
circumstances, it is therefore lawful for a company which is a member of that consortium, as addressee of the contested decision,
to challenge that decision in accordance with the conditions laid down by Article 230 EC.

(see para. 40)

2.      The contracting authority is required to ensure at each stage of a tendering procedure that the principle of equal treatment
and, thereby, equality of opportunity for all the tenderers is observed. Under the principle of equal treatment as between
tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking
part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders,
which therefore implies that the tenders of all competitors must be subject to the same conditions.

The principle of equal treatment also implies an obligation of transparency so that it is possible to verify that that principle
has been complied with. That principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness
on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must
be drawn up in a clear, precise and unequivocal manner in the contract notice or tendering specifications. The principle of
transparency therefore implies that all technical information relevant for the purpose of a sound understanding of the contract
notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a
public procurement procedure in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand
their precise scope and to interpret them in the same manner and, secondly, to enable the contracting authority actually to
verify whether the tenderers’ bids meet the criteria of the contract in question.

An undermining of equality of opportunity and the principle of transparency constitutes a defect in the pre-litigation procedure
adversely affecting the right of the parties concerned to information. However, that procedural defect could lead to the annulment
of the decision in question only if it were shown that, but for that defect, the administrative procedure could have had a
different outcome if there was even a small chance that the applicant could have brought about a different outcome to the
administrative procedure.

(see paras 55-59, 61)

3.      Article 97(1) of Regulation No 1605/2002, on the financial regulation applicable to the general budget of the European Communities,
imposes on the contracting authority, where the contract is awarded to the most economically advantageous tender, the obligation
to define and set out in the call for tenders the award criteria for evaluating the content of tenders. Those criteria must,
in accordance with Article 138(2) of Regulation No 2342/2002, laying down detailed rules for the implementation of the financial
regulation, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also
specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining
the best value for money. Nevertheless, those provisions leave it to the contracting authority to choose the award criteria
in the light of which tenders will be assessed. The criteria used do not necessarily have to be quantitative or related solely
to the price. Even if award criteria that are not expressed in quantitative terms are included in the tender specifications,
they can be applied objectively and uniformly in order to compare tenders and are clearly relevant for identifying the most
economically advantageous tender.

(see paras 106-108)

4.      The legislative provisions which determine the content of the obligation to state reasons which a contracting authority has
towards unsuccessful tenderers in a public procurement procedure are Article 100(2) of Regulation No 1605/2002, on the financial
regulation applicable to the general budget of the European Communities, and Article 149 of Regulation No 2342/2002, laying
down detailed rules for the implementation of the financial regulation. It follows from those articles that, in the field
of public procurement, a contracting authority fulfils its obligation to state reasons if it confines itself first to informing
unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if
expressly requested to do so, provides to all tenderers who have submitted an admissible tender the characteristics and relative
advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from
the date on which a written request is received. Such a manner of proceeding satisfies the purpose of the duty to state reasons
laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question
must be disclosed in a clear and unequivocal fashion so as to enable, on the one hand, the persons concerned to be aware of
the reasons for the measure in order to assert their rights, and, on the other, the Court to exercise its review.

(see paras 132-134)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

19 March 2010 (*)

(Public service contracts – Community tendering procedure – Provision of computer services relating to telematic systems to control the movement of products subject to excise duty – Rejection of a tenderer’s bid – Action for annulment – Consortium of tenderers – Admissibility – Principles of equal treatment of tenderers and transparency – Award criteria – Principles of sound administration and diligence – Obligation to state the reasons on which the decision is based – Manifest error of assessment)

In Case T‐50/05,

**Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE**, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

applicant,

v

**European Commission,** represented initially by L. Parpala and K. Kańska, subsequently by L. Parpala and E. Manhaeve, and lastly by L. Parpala,
E. Manhaeve and M. Wilderspin, acting as Agents,

defendant,

ACTION for the annulment of the Decision of the Commission of the European Communities of 18 November 2004 rejecting the tender
submitted by the consortium formed by the applicant and another undertaking in a tendering procedure relating to the provision
of computer services concerning the specification, development, maintenance and support of telematic systems to control the
movement of products subject to excise duty within the European Community under the excise-duty suspension arrangements and
awarding the contract to another tenderer,

THE GENERAL COURT (Third Chamber),

composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 17 March 2009,

gives the following

**Judgment**

**Legal context**

1        The award of service contracts of the Commission of the European Communities is subject to the provisions of Title V of Part
One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the financial regulation applicable to the general
budget of the European Communities (OJ 2002 L 248, p. 1, ‘the financial regulation’) and the provisions of Commission Regulation
(EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the financial regulation
(OJ 2002 L 357, p. 1; ‘the implementing rules’), in the versions applicable to the facts of the case.

**Background to the dispute**

I –  *Computerising the movement and surveillance of excisable products (EMCS)*

2        On 16 June 2003, the European Parliament and the Council of the European Union adopted Decision No 1152/2003/EC on computerising
the movement and surveillance of excisable products (OJ 2003 L 162, p. 5), in which they stated that it was necessary to have
a computerised system for monitoring the movement of excisable goods (EMCS), such as would allow Member States to obtain real-time
information on those movements and to carry out the requisite checks (recital 3 of Decision No 1152/2003).

3        Article 1 of Decision No 1152/2003 thus provides for the establishment of the EMCS.

4        Furthermore, Article 3(2) of Decision No 1152/2003 provides:

‘The Commission shall ensure that in work on the Community components of the computerised system every attention is paid to
re-using as much of the NCTS [new computerised transit system] as possible and ensuring that the computerised system is compatible
with, and, if technically possible, integrated into, the NCTS with the objective of creating an integrated computer system
for the surveillance both of intra-Community movements of excisable goods and of movements of excisable goods and goods subject
to other duties and charges coming from or going to third countries.’

5        The file shows that the EMCS was to be introduced in four stages between 2002 and 2009 (stage 0 in parallel to stages 1, 2
and 3).

6        Stage 0 was to be an intermediary phase prior to the actual setting up of the EMCS. During that stage, the existing computer
systems used in the excise duty sector were to be kept in place and supported up until the moment of their integration into
the EMCS at a time when the latter had become operational. Stage 0 was to take place in parallel to the other stages of the
EMCS and to end once the EMCS started working. The tasks during stage 0 were to be carried out by the contractor for the public
contract Fiscalis Information Technology Systems, specification, development, maintenance and support (FITS‐DEV).

7        Stage 1 was to comprise the setting up of the EMCS and the definition of its specifications. Those specifications were to
be produced by the contractor for public contract EMCS System Specifications (ESS) (‘the ESS contract’). The work of that
contractor was to be finished by the middle of 2005.

8        Finally, stages 2 and 3 were to be development and implementation stages and were to be linked to the activities of the contractor
for the public contract called ‘Specification, development, maintenance and support of telematic systems to control the movement
of products subject to excise duty within the European Community under the excise-duty suspension arrangements (EMCS‐DEV)-(TAXUD/2004/AO-004)’
(‘the contract at issue’).

II –  *Award of the contract at issue*

9        By a contract notice of 20 July 2004, published in the Supplement to the*Official Journal of the European Union*(OJ 2004, S 139), the Commission’s Directorate-General for Taxation and Customs Union (‘Taxation and Customs Union DG’ or
‘the contracting authority’) issued an open call for tenders for the contract at issue. The contract was to be awarded to
the most economically advantageous tender, that is to say the one presenting the best price-quality ratio. The time-limit
for receipt of tenders was 31 August 2004.

10      Point 10 of the specifications annexed to the invitation to tender defines the criteria for the award of the contract as follows:

‘10. Award criteria

The contract will be awarded based on the economically most advantageous tender. The following criteria will be taken into
account when assessing tenders:

(1)      Quality of the proposed solution:

1. – Fitness of the proposed strategy to perform the tasks of the contract (40/100)

2. – Fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks (30/100)

3. Fitness of the proposed team organisation to perform the tasks (20/100)

4. – Structure, clarity and level of completeness of the proposal (10/100)

The price component will be further evaluated for the tenders which have reached a global quality score of 60% across all
the quality criteria and minimal scores (50%) for each of the quality criteria.

(2)      Price

The offer presenting the best value for money will be identified in the following way:

–        The offer with the best technical score will receive a quality indicator of 100 points. The remaining offers will receive
lower quality indicators in proportion to their technical scores;

–        the offer found to be the cheapest will receive a price indicator of 100 points. The remaining offers will receive higher
price indicators in proportion to their prices.

A quality/price ratio will be calculated for each offer by dividing the quality indicator by the price indicator. The highest
result will go to the offer presenting the best value for money.’

11      By fax of 27 August 2004, the applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis
AE, a company incorporated under Greek law active in the area of information and communications technology, expressed reservations
regarding the procedure for the award of the contract at issue, based on a potential lack of objectivity of the call for tenders
to the advantage of tenderers which had already been suppliers to the Taxation and Customs Union DG, a lack of clear specifications
in the call for tenders and a lack of precise and objective criteria for the evaluation of tenderers. By the same fax, it
also asked the contracting authority to extend the deadline for the submission of tenders until it had remedied the abovementioned
problems.

12      On 31 August 2004, the applicant in consortium with the French company Steria SA submitted its tender (‘the Evropaïki Dynamiki-Steria
consortium’s tender’).

13      By letter of 3 September 2004, the contracting authority expressed the opinion that the reservations in the applicant’s fax
of 27 August 2004 were unfounded and refused to grant its request for extension of the deadline for the submission of tenders.

14      In response to the abovementioned letter of 3 September 2004, the applicant, by fax of 6 September 2004, submitted reservations
regarding the compliance of the tendering procedure with Article 92 of the financial regulation and Article 131(1) and (2)
of the implementing rules.

15      By letter of 5 October 2004, the contracting authority replied that the conditions of Article 92 of the financial regulation
and Article 131(1) and (2) of the implementing rules had been complied with.

16      The opening of the tenders took place on 8 September 2004. Five tenders were received and all of them were declared admissible.
One of the tenders was eliminated at the exclusion stage. Another was eliminated at the quality evaluation stage. Only three
tenders, including that of the Evropaïki Dynamiki-Steria consortium, were compared in terms of the price-quality ratio.

17      The evaluation committee proposed awarding the contract to Intrasoft International SA (‘Intrasoft’), whose tender presented
the best price-quality ratio. It decided to rank the Evropaïki Dynamiki-Steria consortium’s tender third.

18      The evaluation committee’s proposal was endorsed by the contracting authority which, by decision of 18 November 2004, awarded
the contract at issue.

19      The result of the tendering procedure was communicated to the applicant by letter of 18 November 2004. The letter stated that
‘[the applicant’s] tender has not been selected for award, because following the assessment of the tenders selected and in
the light of the award criteria specified in the terms of reference, it does not represent the best offer in terms of quality
and price’.

20      By registered letter and fax of 22 November 2004, the applicant requested the following information and documents from the
contracting authority: the name of the successful tenderer and, in case the successful tenderer had a partner (or partners),
or a subcontractor (or subcontractors), their names and the percentage of the contract to be allocated to the partner(s)/subcontractor(s);
the scores awarded to the applicant’s technical offer and to that of the successful tenderer for each award criterion; a copy
of the evaluation committee report; how the applicant’s financial offer compared with that of the successful tenderer and,
more particularly, the scores attributed to each of those two tenders. By fax of 8 December 2004, the applicant repeated its
request.

21      In reply, the contracting authority, by letter of 10 December 2004, provided the applicant with an extract from the report
of the evaluation committee. That extract contains, among other things, comments by the committee on the tenders of Intrasoft
and the Evropaïki Dynamiki-Steria consortium concerning each of the award criteria for the contract at issue. Those comments
are as follows:

‘A.      Intrasoft ...

| Overall comment |
| ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| An excellent offer, demonstrating a profound understanding of the issues involved with an extremely well thought out and detailed
project management approach. The level of detail, the careful approach to analysing potential problems and the attention paid
to quality management issues contributes to the overall quality of this offer. The only weakness is a lack of architectural
analysis, which nevertheless does not detract greatly from the overall quality of the offer.
The offer is based on a solid comprehension of the excise domain and its political and organisational environment in the Commission
and the Member States.
Methods and team organisation are of a very high quality and show that they will be able to cope with the scope of the task,
including [by displaying] the necessary flexibility.
As a result, this proposal appears perfectly adequate to assume the responsibility for the project. |
| Criteria “Fitness of the proposed strategy to perform the tasks of the contract” |
| This company has an outstanding comprehension of the EMCS business problems to be solved, a clear understanding of how the
project components fit together.
The offer presents a comprehensive and in depth description of their strategy, implementation approach, and very detailed
work packages description.
Their vision and strategy is supported by a very detailed and sound project plan.
There is a good analysis of the possibility of re-use of NCTS components.
The offer presents an exhaustive requirements tracking matrix that shows their deep understanding of the project purposes
and their adherence to the “high level” requirements defined in the terms of reference of the call for tender.
The offer proposes a nice set of quality indicators covering all activities, to complement the ones proposed in the terms
of reference.
A small weakness of the offer is the lack of deep analysis of architectural issues (robustness, scalability and performance). |
| Criteria “Fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks” |
| Extremely detailed description of the methods and tools proposed. General approach combining RUP [Rational Unified Process]
for the specification phase followed by TEMPO for the development phase shows a good understanding of the differences between
the two stages in Commission-Member State collaborative developments.
The quality assurance approach is extremely well thought out, proposing quality indicators for both process and product, derived
from “key evaluation topics”.
The tenderer has a good understanding of the principles of COSMIC FFP [footnote omitted], although the description is a bit
theoretical, as their offer lacks pragmatic implementation (e.g. does not specify the tools to be used).
Although the development infrastructure is very well defined, the security provisions in the tender’s premises are overlooked. |
| Criteria “Fitness of the proposed team organisation to perform the tasks” |
| The team structure and the organisation are extremely well defined, along with lines of reporting, extensive profiles identification
(23 in total) and description, full matrix of skills per profile. The team composition is well balanced between manager profiles,
business experts, business analysts, developers, designers, helpdesk operators etc.
The roles and responsibilities within the team are very well described.
The sizing of the team (around 60 people) is sound and consistent with the volume of activities to be performed.
Their offer guarantees low turnover by maintaining it to around 80% of team personnel, avoiding them being removed to work
on other projects. |
| Criteria “Structure, clarity and level of completeness of the proposal” |
| The proposal is complete and comprehensive in its treatment of all project activities.
The overall presentation is well structured, rich in explanatory diagrams. Information is easy to find and to read as it is
written in a comprehensive language. The offer only lacks a table of acronyms. |

B.      [Evropaïki Dynamiki-Steria]

| Overall comment |
| -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| Whilst this offer contains some interesting proposals concerning architecture, the proposal is too generic: the description
of the specification and development process does not show much emphasis on the specificity of the [implementation of the]
EMCS project.
The offer’s proposed methodology is a good collection of best practices and literature about computerisation system development.
However, again, the specific issues of the EMCS development are dealt with in a very generic fashion and the proposed analysis
is not very complete.
The description of the team organisation is good, but does not indicate that there is an understanding of the necessity of
strong end user support during the specification activities of the [implementation of the] EMCS project.
The offer contains some inconsistencies, and this casts some doubt on the reliability of the proposal. |
| Criteria “Fitness of the proposed strategy to perform the tasks of the contract” |
| The tenderer has included a review of the EMCS technical architecture, made an interesting proposal concerning the architecture
(e.g. the use of Web services), made initial attempts to propose technical solutions, and a proposal for setting up the infrastructure.
The offer presents a detailed list of work packages with relevant order, request, planning, delivery/acceptance mechanism,
and quality indicators.
However, the overall approach is extremely generic with few close examinations of EMCS specific issues.
The proposed strategy is a bit simplistic with many excerpts from external sources (e.g. large excerpts from IBM Rational
RUP documentation) without showing how that documentation fits in the project.
The offer shows some lack of understanding of the terms of reference as the proposal makes reference to activities that have
already been completed, or will be completed by the time the contract will come into force, or are proposing architecture
elements that would not fit the EMCS environment in terms of performance or scalability.
The offer presents some inconsistencies, and in particular in the planning: for instance, some development activities are
starting even before the start of the specifications. |
| Criteria “Fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks” |
| The methods proposed are generally well presented. The offer presents an accurate description of the IT development infrastructure
and a good description of its relevant security aspects.
There are lots of textbook-like references to architecture, standards, IT tools and infrastructure components (e.g. XML, X509,
J2EE), accompanied by a few hundred pages of manuals and brochures from HP, Oracle, CISCO, etc., but often without any justification
or connection made to EMCS objectives.
The offer presents a detailed description of Cosmic FFP, but the tools proposed for estimates (Calico and Costar) are only
suitable for estimates based on the Cocomo II methodology, which is incoherent (see section 4.1.3.5.1).
RUP is considered throughout their offer as “the” project management methodology but their software proposal for the development
environment does not list any IBM-Rational licence. |
| Criteria “Fitness of the proposed team organisation to perform the tasks” |
| Good description of team organisation, showing understanding of the evolution of the team composition as the project proceeds
from specification to development to production, to handover, including security, testing, and helpdesk. Interactions in the
team organisation are well described.
The sizing of the team, with a pool of 67 team members, is adequate.
Although customs and excise experience is identified in their offer as a must in terms of skills, in practice, their proposal
does not show such competences. |
| Criteria “Structure, Clarity and level of completeness of the proposal” |
| The presentation of the offer is clear.
Its structure and overview is good.
However, the overwhelmingly generic material and the low level of details lower the readability of the offer.’ |

22      The extract from the evaluation committee’s report sent to the applicant also contains a comparative evaluation table concerning
the quality of the tenders from the Evropaïki Dynamiki-Steria consortium and Intrasoft and a comparative evaluation table
for the price-quality ratio of the two tenders. The two tables are as follows:

| Comparative evaluation table
ITT TAXUD/2004/AO-004 EMCS-DEV | |
| ------------------------------------------------------------------------------------------------------------ | - |
| Criteria | ... |
| Quality | |
| Fitness of the proposed strategy to perform the tasks of the contract (/40) | |
| Fitness of the proposed methods, tools, quality environment and quality procedures to perform the task (/30) | |
| Fitness of the proposed team organisation to perform the tasks (/20) | |
| Structure, clarity and level of completeness of the proposal (/10) | |
| Total quality | |
| Quality indicator (maximum reference is 100) | |

| Comparative evaluation table
ITT TAXUD/2004/AO-004 EMCS-DEV | |
| -------------------------------------------------------------------------------------------------------- | - |
| Criteria | ... |
| Total quality | |
| Quality indicator (maximum reference is 100) | |
| Quoted price TBP/(IS+EI) (in euros)
(IT services and provision for the evolution of the infrastructure) | |
| Normalised price indicator (minimum reference is 100) | |
| Quality indicator / Price indicator | |

23      By registered letter and fax of 30 December 2004, the applicant submitted its observations on the extract from the evaluation
committee’s report communicated to it and repeated its view that the procedure for the award of the contract at issue was
contrary to the financial regulation and to the applicable legislation.

24      By letter of 14 January 2005, the contracting authority indicated that it was closely examining the points raised by the applicant
in its letter of 30 December 2004 and that the applicant would receive a detailed reply as soon as possible.

25      By letter of 17 February 2005, the contracting authority replied to the applicant’s observations set out in its letter of
30 December 2004.

26      The award notice for the contract at issue was published on 2 March 2005 in the Supplement to the*Official Journal of the European Union*(OJ 2005, S 43).

**Procedure and forms of order sought by the parties**

27      By application lodged at the Registry of the Court on 28 January 2005, the applicant brought the present action.

28      By letter of 30 October 2006, the Court, by way of measures of organisation of procedure, asked the applicant to reply in
writing to questions concerning the admissibility of the action. The applicant complied with that request within the time
allowed.

29      Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.

30      By letter of 3 February 2009, the Court, by way of measures of organisation of procedure, asked the parties to reply in writing
to certain questions. By the same letter, the Court also asked the Commission to submit certain documents. The parties complied
with those requests within the time allowed.

31      By letter of 2 March 2009, the Court, by way of measures of organisation of procedure, asked each party to submit its written
observations on the replies given by the other party to the written questions put by the Court in the letter of 3 February
2009. The parties complied with those requests within the time allowed.

32      The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 17 March
2009.

33      The applicant claims that the Court should:

–        annul the decision of the Commission not to choose its tender and to award the contract to the successful tenderer;

–        order the Commission to pay the costs, even if the application is dismissed.

34      The Commission contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

**Law**

I –  *Admissibility*

A –  *Arguments of the parties*

35      Without formally raising an objection of inadmissibility, the Commission draws the Court’s attention to the fact that Steria,
the other member of the Evropaïki Dynamiki-Steria consortium, has not challenged the decision of the contracting authority
not to choose the tender submitted by that consortium and to award the contract at issue to another tenderer and that, furthermore,
it was not clear from the application that that decision was being challenged by the applicant on behalf of Steria. The Commission
therefore observes that the applicant is challenging that decision only on its own behalf.

36      In its reply, the applicant responds that, as leader of the Evropaïki Dynamiki-Steria consortium and the member fully responsible
for preparing and drafting the tender, it has standing to act and that no Community legislation or case-law requires all members
of a consortium of tenderers to challenge a contested decision to award a contract. Furthermore, the applicant set out those
arguments in its written responses to the Court’s questions (see paragraph 28 above).

37      The Commission did not challenge the position of the applicant as set out above.

B –  *Findings of the Court*

38      The Court considers it appropriate in the present case to examine whether the applicant has standing to bring an action against
the contracting authority’s decision, communicated to it by letter of 8 November 2004, not to choose the tender submitted
by the Evropaïki Dynamiki-Steria consortium and, consequently, to award the contract at issue to another tenderer (‘the contested
decision’).

39      Under the fourth paragraph of Article 230 EC, ‘[a]ny natural or legal person may, under the same conditions, institute proceedings
against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision
addressed to another person, is of direct and individual concern to the former’.

40      In the present case, even though the contested decision is formally addressed to the tenderer, that is to say the Evropaïki
Dynamiki-Steria consortium, the fact remains that, as the applicant stated in its written replies to the Court’s questions
(see paragraph 28 above), which were not contested by the Commission and which the Court has no reason to doubt, the Evropaïki
Dynamiki-Steria consortium has never had legal personality. Consequently, from the point of view of Article 230 EC, given
that its members remained visible in that ad hoc structure, the two undertakings at issue must both be considered to be addressees
of the contested decision. Therefore, the applicant was entitled, as addressee of the contested decision, to challenge that
decision in accordance with the conditions laid down by Article 230 EC.

41      It follows that the applicant’s action is admissible.

II –  *Substance*

42      In support of its action for annulment, the applicant puts forward five pleas in law. The first plea alleges breach of the
principles of non-discrimination and freedom of competition. The second plea alleges infringement of the provisions of the
financial regulation, the implementing rules, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of
procedures for the award of public service contracts (OJ 1992 L 209, p. 1) and Directive 2004/18/EC of the European Parliament
and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply
contracts and public service contracts (OJ 2004 L 134, p. 114). The third plea alleges that there is a manifest error of assessment
in the contracting authority’s evaluation of the Evropaïki Dynamiki-Steria consortium’s tender. The fourth plea alleges a
lack of relevant information and reasoning. The fifth plea alleges breach of the principle of sound administration and diligence.

43      The Court considers it appropriate to start by examining the first plea, then the second, then the fifth, then the fourth
and finally the third. That order is dictated by the fact that the first, second and fifth pleas concern the award procedure
for the contract at issue, whereas the fourth and third pleas concern the contested decision itself.

A –  *The first plea: breach of the principles of non-discrimination and freedom of competition*

1.     Arguments of the parties

44      The applicant submits that the Commission infringed the principles of non-discrimination and freedom of competition among
tenderers by not making available to the applicant – despite a request to that effect from the applicant before the deadline
for the submission of tenders – two types of technical information that were necessary for the formulation of tenders for
the contract at issue, namely, first, the exact specifications for the EMCS and, second, technical information relating to
existing computer applications linked to the EMCS and, more specifically, the source-code for the NCTS. That alleged omission
on the part of the Commission benefited tenderers which were previous or current contractors for the Taxation and Customs
Union DG, or which had links to such contractors, and which therefore had exclusive access to the abovementioned information.
Those tenderers, including the successful tenderer, were thus able to submit tenders that were more competitive than that
of the applicant, both technically and financially.

45      As regards, first, the specifications for the EMCS, the applicant emphasises that they were not yet available at the time
of the procurement procedure for the contract at issue, but that they were being prepared by another contractor under a separate
contract. The applicant submits that the Commission fails to explain how a tenderer could adequately fulfil the objectives
and the requirements of a computer system for which it had not received detailed specifications and wonders how its tender
could have been ‘better’ than that of the incumbent contractor, which was the only one to have access to such specifications.

46      As regards, second, the NCTS source-code, the applicant emphasises that the Commission refused to grant it access for no valid
reason and despite its request to that effect. By contrast, the successful tenderer had access to that source-code, since
it was the Commission’s contractor for the NCTS and was, for that reason, able to submit a tender that was more competitive
than the applicant’s tender.

47      In order to show the importance of the NCTS source-code for the formulation of tenders for the contract at issue, the applicant
points to the following aspects.

48      First, the applicant refers to Article 3(2) of Decision No 1152/2003, which suggests that the contractor for the contract
at issue re-use as much as possible the NCTS, the aim being to create an integrated computer system for intra-Community movement
of excisable goods. The applicant interprets the content of that article to mean that the decision requires the re-use, by
the contractor for the contract at issue, of the NCTS source-code and its architecture.

49      Second, the applicant refers to the description of work package No 7.1 in the technical annex to the tender specifications,
where the NCTS source-code was mentioned.

50      Third, the applicant refers to the comments made by the evaluation committee in respect of the tender submitted by the successful
tenderer, according to which that tender contained a good analysis of the possibility of re-using the components of the NCTS.
The applicant submits that the term ‘components’ in that instance ‘clearly’ refers ‘to various blocks of source-code’.

51      Fourth, regarding the financial offer, the applicant, in order to show that it was necessary to know the NCTS source-code
for the pricing of its tender, claims that the Commission asked tenderers to mention in their offers not only unit prices,
as the Commission claims, but also and more importantly a budget and a total price for the supply of the EMCS and all associated
services. That requirement on the part of the Commission required tenderers to evaluate with precision the scope and the complexity
of the project, which in turn required knowledge of the source-code. The fact that the applicant did not know the source-code
forced it to raise the price of its offer in order to incorporate the risks resulting from that lack of knowledge. By contrast,
the successful tenderer, which knew that code, was able to submit an offer that was more competitive, requiring only 50% of
the budget made available for the contract at issue.

52      Finally, the applicant submits that, in the context of the call for tenders for another contract (a contract for the specification,
development, maintenance and support of customs IT systems for the Taxation and Customs Union DG’s IT systems (CUST‐DEV) (TAXUD/2005/AO‐001)),
launched not long after the call for tenders for the contract at issue and for which the Taxation and Customs Union DG was
also the contracting authority, the NCTS source-code was made available to tenderers. The applicant is therefore asking the
Commission to explain that difference in treatment. Furthermore, at the hearing, the applicant submitted that the present
case was similar to Case T‐345/03 *Evropaïki Dynamiki* v *Commission* [2008] ECR II‐341, in which the Court accepted the applicant’s plea alleging that there had been a breach of the principle
of equal treatment of tenderers and thus annulled the contract award decision adopted by the Commission.

53      The Commission contests the applicant’s arguments.

2.     Findings of the Court

54      According to Article 89(1) of the financial regulation, all public contracts financed in whole or in part by the budget are
to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.

55      Therefore, according to consistent case-law, the contracting authority is required to ensure at each stage of a tendering
procedure that the principle of equal treatment and, thereby, equality of opportunity for all the tenderers is observed (Case
C‐496/99 P *Commission* v *CAS* *Succhi di Frutta* [2004] ECR I‐3801, paragraph 108; Case T‐203/96 *Embassy Limousines* *& Services* v *Parliament*[1998] ECR II‐4239, paragraph 85; and Case T‐160/03 *AFCon Management Consultants and Others* v *Commission* [2005] ECR II‐981, paragraph 75).

56      Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and
effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality
of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject
to the same conditions (see, to that effect, Case C‐19/00 *SIAC Construction* [2001] ECR I‐7725, paragraph 34, and Case C‐470/99 *Universale-Bau and Others* [2002] ECR I‐11617, paragraph 93).

57      The case-law also shows that the principle of equal treatment implies an obligation of transparency so that it is possible
to verify that that principle has been complied with (Case C‐92/00 *HI* [2002] ECR I‐5553, paragraph 45, and *Universale-Bau and Others*, paragraph 56 above, paragraph 91).

58      That principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of
the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in
a clear, precise and unequivocal manner in the contract notice or tendering specifications (*Commission* v *CAS Succhi di Frutta*, paragraph 55 above, paragraph 111).

59      The principle of transparency therefore implies that all technical information relevant for the purpose of a sound understanding
of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings
taking part in a public procurement procedure in order, first, to enable all reasonably well-informed and normally diligent
tenderers to understand their precise scope and to interpret them in the same manner and, secondly, to enable the contracting
authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question (*Evropaïki Dynamiki* v *Commission*, paragraph 52 above, paragraph 145).

60      In the present case, the applicant criticises the Commission for not providing it with two types of technical information,
which, according to the applicant, were necessary for the formulation of tenders and which were, moreover, available to other
tenderers. In the light of the case-law cited in paragraphs 55 to 58 above, that alleged omission on the part of the Commission,
if it were proven, would prejudice the equality of opportunity between tenderers as well as the principle of transparency
as a corollary to the principle of equal treatment.

61      As the Court held in *Evropaïki Dynamiki* v *Commission*, paragraph 52 above (paragraph 147), such an undermining of equality of opportunity and the principle of transparency, assuming
that it were proved, would constitute a defect in the pre-litigation procedure adversely affecting the right of the parties
concerned to information. That procedural defect could lead to the annulment of the decision in question only if it were shown
that, but for that defect, the administrative procedure could have had a different outcome if the applicant had had access
to the information in question and if there was even a small chance that the applicant could have brought about a different
outcome to the administrative procedure (see *Evropaïki Dynamiki* v *Commission*, paragraph 52 above, paragraph 147 and the case-law cited).

62      Therefore, it is appropriate to examine, first, whether there was a disparity in respect of information in the present case,
in the sense that, in the context of the call for tenders, information which the applicant claims not to have had was available
to some tenderers, including the successful tenderer. If such a disparity was found to have existed, it would then be appropriate
to examine, second, whether the relevant information was useful for the purpose of the formulation of the tenders. Only if
that had been the case would the tenderer with access to that information have had an advantage to the detriment of the other
tenderers. It would be appropriate to examine, third, whether the alleged disparity in respect of useful information was the
result of a procedural defect brought about by the Commission. If there was such a defect, it would be appropriate to examine,
fourth, whether, but for that defect, the tendering procedure could have had a different outcome. From that point of view,
such a defect can constitute an infringement of the equality of opportunity of tenderers only in so far as the explanations
provided by the applicant demonstrate, in a plausible and sufficiently detailed manner, that the procedure could have had
a different outcome as far as it was concerned (see, to that effect, *Evropaïki Dynamiki* v *Commission*, paragraph 52 above, paragraphs 148 and 149).

63      That reasoning applies to each of the two types of technical information that the applicant claims were not made available
to it, namely the specifications for the EMCS (first part of the plea) and the NCTS source-code (second part of the plea).

a)     The first part of the plea, concerning the non-availability of the specifications for the EMCS

64      The applicant submits, essentially, that the non-availability of the exact specifications for the EMCS, at the time of the
procurement procedure, created an advantage for tenderers that were already providing services to the Taxation and Customs
Union DG – including the successful tenderer – and which, for that reason, were already aware of the said specifications.
Therefore, those tenderers were in a position to submit tenders that were more precise and, accordingly, more competitive
than the applicant’s tender.

65      As was pointed out in paragraph 62 above, it is appropriate to examine first whether, in the present case, there was a disparity
in respect of information in that the specifications for the EMCS were available to some tenderers, including the successful
tenderer, but not to the applicant.

66      The tender specifications for the contract at issue (see paragraph 7 above) show that the project for the setting up of the
EMCS, of which the contract at issue was to be a part, provided for a stage 1 during which the contractor for the ESS contract
was to define the specifications for the EMCS. The Commission explained that they were ‘high level’ specifications for the
EMCS. The abovementioned tender specifications also state that the contractor for the ESS contract was to draw up those specifications
before and, in part, in parallel to the drawing up of specifications by the contractor for the contract at issue. The Commission
explained that the specifications prepared under the contract at issue relate to the application of the EMCS (‘application-related
specifications’), as opposed to the ‘high level’ specifications for that system, prepared under the ESS contract. Finally,
the abovementioned tender specifications make it clear that the contractor for the ESS contract was to finalise its work by
the middle of 2005.

67      The applicant’s arguments show that its complaint concerns the alleged failure to communicate to tenderers the ‘high level’
specifications for the EMCS.

68      In addition, the Commission has contended, without being contradicted by the applicant, that the contractor for the ESS contract,
namely Siemens, had begun to work on the specifications for the EMCS in June 2004 (and that it had finished in April 2005),
whereas the call for tenders for the contract at issue was published in July 2004 and the deadline for the submission of tenders
was 31 August 2004. Therefore, in the light of the Commission’s argument, which was not contested by the applicant, it must
be found that only three months elapsed between the start of Siemens’ work on the specifications for the EMCS and the deadline
for the submission of tenders for the contract at issue, which means that, while the call for tenders remained open, there
were no specifications for the EMCS that were actually usable and of which knowledge could have been to the advantage of a
tenderer with access to those specifications.

69      Finally, both the applicant and the Commission stated that Siemens, contractor for the ESS contract, had also submitted a
tender for the contract at issue.

70      The following conclusions are to be drawn from the abovementioned information.

71      First, it appears that no tenderer – including the successful tenderer – could have had more information regarding the specifications
for the EMCS than the applicant, since those specifications did not exist, or were at an embryonic stage. Therefore, it has
not been shown that there was a disparity of information which would have led to an infringement of the principle of equal
treatment of tenderers.

72      Second, the fact that the specifications for the EMCS did not exist when the tendering procedure for the contract at issue
was launched was not the result of a procedural defect on the part of the Commission, but resulted from the actual planning
for the setting up of the EMCS, which envisaged that those specifications would be drawn up under an ESS contract that was
separate from the contract at issue and preceded it.

73      Third, even if Siemens managed, under the ESS contract for which it was the contractor, to draw up specifications capable
of being used for the formulation of tenders for the contract at issue, it is apparent that that was not decisive since Siemens’
tender, submitted for the contract at issue, was not successful. Furthermore, the fact that Siemens submitted a tender for
the contract at issue and, therefore, entered into direct competition with the successful tenderer for the award of the contract
at issue suggests that Siemens did not share with that tenderer its alleged knowledge of the specifications for the EMCS.
Hence, there is no basis for claiming that any tenderer benefited from any sort of privileged access to the said specifications.

74      Given that the applicant has not shown that some tenderers, including the successful tenderer, had more information regarding
the specifications for the EMCS than the applicant itself, it should be concluded that, as regards that type of technical
information, there was no unequal treatment of tenderers. Accordingly, the first part of this plea in law must be rejected.

b)     The second part of the plea, concerning the failure to communicate the NCTS source-code

75      The applicant submits, essentially, that the refusal by the contracting authority to communicate to it the NCTS source-code
created an advantage for the successful tenderer, which was also the contractor for the Commission when the NCTS was set up
and did, for that reason, inevitably have access to the source code. Since it had that information, the successful tenderer
was able to submit a tender that was more competitive than that of the applicant, both technically and financially.

Disparity in information to the benefit of the successful tenderer

76      The Commission does not contest the fact that the NCTS source-code was available to the contracting authority before the date
on which the tendering procedure for the contract at issue was launched and that it did not communicate it to tenderers. It
contends that it considered it to be of no use for the formulation of the tenders.

77      It is also not disputed that the successful tenderer knew the NCTS source-code when it prepared its tender, given that it
was the contractor for the Taxation and Customs Union DG for the NCTS.

78      It follows that, when the tendering procedure for the contract at issue was launched and until the deadline for the submission
of tenders, technical information that had been denied to the applicant was available to the successful tenderer, because
it was the contractor for the Taxation and Customs Union DG for the NCTS.

The usefulness of the NCTS source-code for the formulation of the tenders

79      In order for the disparity in information established to represent an advantage to the benefit of the successful tenderer
in the preparation of its tender, it is further necessary to show that the relevant information was useful for the development
of tenders for the contract at issue, in the sense that not having that information could be to the detriment of the tender
in terms of quality and the financial offer.

80      In the present case, and in the light of the arguments submitted by the parties, the usefulness of the NCTS source-code for
the formulation of tenders for the contract at issue must be assessed. Two preliminary observations are called for.

81      First of all, as the arguments of the parties show, the source-code is a set of instructions written in a computer programming
language that permits creation of a computer programme. The arguments also show that the source-code is one of the first pieces
of material to be produced in the entire software life-cycle.

82      Further, the Commission explained at the hearing, without being contradicted by the applicant, that there are clear differences
between the NCTS and the EMCS, in so far as the NCTS concerned the customs sector whereas the EMCS related to the excise duty
sector. In the context of the NCTS, the main users are customs officials, while in the context of the EMCS, the main users
are economic operators. It follows that the ‘targets’ of the two systems are different and, therefore, that the two systems
do not have the same function.

83      In the first place, the applicant, in support of its claim concerning the usefulness of access to the NCTS source-code, refers
to Article 3(2) of Decision No 1152/2003, quoted in paragraph 4 above.

84      In this respect, it is appropriate to point out that Decision No 1152/2003 constitutes the legal basis for the setting up
of the EMCS and that Article 3(2) of that decision defines the relationship between the EMCS and the NCTS. The Commission’s
task was to ensure the integration, if technically possible, of the EMCS into the NCTS, with the objective of creating an
integrated computer system to monitor the intra-Community movements of excisable goods. It was in order to accomplish that
mission that it had been entrusted with by the Community legislature that the Commission launched the tendering procedure
for the contract at issue. In the context of that procedure, the Commission, as contracting authority, took the view that
the expression ‘re-using as much of the NCTS as possible’ in Article 3(2) of the decision did not mean that tenderers had
to be given the NCTS source-code for the purposes of formulating their tenders. The Commission communicated that ‘message’
to tenderers in the documentation relating to the tendering procedure at issue.

85      In this respect, the Commission refers, in particular, to paragraph 4.2.1 of the management plan for the setting up of the
EMCS – entitled ‘The EMCS development based on NCTS experience’ –, which was distributed to tenderers and thus also to the
applicant; the description in that plan of the ‘NCTS experience’ to be taken into account for the development of the EMCS
does not refer to the NCTS source-code or, *a fortiori*, to the need to have access to it in order to formulate a tender. Furthermore, in clarification No 46, provided as part of
the award procedure for the contract at issue, the contracting authority explained that, once the contract had been awarded,
‘[the duty of] the Contractor [for the contract at issue will be] to propose and [the Taxation and Customs Union DG’s] to
decide how much of the NCTS applications’ architecture and source-code will be reused’ and that that ‘information [namely
the NCTS source-code] will only be available to the successful Tenderer’.

86      Consequently, the applicant cannot in the present case invoke Article 3(2) of Decision No 1152/2003 in support of its claim
concerning the usefulness of access to the NCTS source-code, since the contracting authority incorporated that article’s requirement
to ‘re-us[e] as much of the NCTS as possible’ in the call for tenders at issue in concrete terms and in a transparent manner
in such a way that it was not necessary for tenderers to have access to that source-code in order to be able to formulate
their tenders.

87      In the second place, the applicant invokes, in support of its claim, the description of work package No 7.1 in the technical
annex to the tender specifications. That description is worded as follows:

‘Work package 7.1.: Application development

This work package covers development and maintenance of the Centrally Developed Applications (CDA), Test Applications and
Central Service applications (e.g. the MCC, ETA, SETA, CS/RD and CS/MIS).

The applications developed will take as much inspiration as possible from the architecture and even the source code of the
NCTS applications:

...’

88      The description of that work package does indeed mention the NCTS source-code. However, that description does not show that
the said source-code is useful for the preparation of tenders, as the applicant claims, but shows that the source-code will
be useful for the work that will have to be carried out at a stage following the award of the contract at issue, namely during
the performance of that contract by the successful tenderer.

89      Furthermore, that information emerges clearly from the abovementioned clarification No 46 (see paragraph 85 above).

90      It follows that both the description of work package No 7.1 and, above all, clarification No 46, far from showing the usefulness
of the NCTS source-code for the formulation of tenders for the contract at issue, show that the ‘message’ that the contracting
authority wanted to communicate to tenderers was, first, that that code was not relevant to the formulation of tenders, but
that it would become so only at the later stage of the performance of the contract at issue by the successful tenderer and,
second, that it would be for the contracting authority to decide how much of the NCTS source-code would be reused. Furthermore,
at the hearing, the Commission revealed that, in the end, the contracting authority had decided not to use a single line of
the NCTS source-code for the development of the project to set up the EMCS.

91      Consequently, the applicant’s argument relating to the reference in the description of work package No 7.1 to the NCTS source-code
cannot be accepted.

92      In the third place, the same is true for the applicant’s argument concerning a specific comment made by the evaluation committee
about the tender submitted by the successful tenderer (see paragraph 50 above). The applicant provides no evidence to show
that the expression ‘components of the NCTS’, which the evaluation committee used, is a reference to the components of the
NCTS source-code. In this respect, the tender documents for the contract at issue show that the contracting authority provided
tenderers with a certain number of reference documents regarding the NCTS which, as the Commission rightly claimed, cover
a vast range of subjects, from methodology to quality assurance procedures, from system specifications to test procedures,
and from the functional description of NCTS applications to the specifications of central operations. It must therefore be
considered that the evaluation committee, when it referred to the possibility of re-using ‘components of the NCTS’, was alluding
to the possibility of re-using the elements of the NCTS that are mentioned in the documents made available to tenderers. In
any event, the applicant does not provide any demonstration or evidence that could undermine this analysis.

93      In the fourth place, the applicant also does not demonstrate the usefulness of access to the NCTS source-code for the pricing
of tenders. It is recalled that the applicant submits, in essence, that that pricing required tenderers to make precise estimates
as to the size and the complexity of the project, which required knowledge of the source-code. Lack of access to the source-code
made it impossible for the applicant to estimate precisely the size and the complexity of the project, forcing it, essentially,
to raise the price of its tender.

94      That argument from the applicant cannot be upheld.

95      First, the NCTS source-code was not necessary in order to estimate the size and the complexity of the project for the setting
up of the EMCS. In fact, as previously stated, the NCTS and the EMCS are different from each other (see paragraph 82 above)
and the contracting authority clearly communicated to tenderers – and thus to the applicant – that the NCTS source-code was
not relevant for the formulation of tenders (see paragraph 90 above).

96      Further, as the Commission contended and as the applicant conceded at the hearing, as regards the activities whose pricing
allegedly depended on an estimate of the size and the complexity of the project, the contracting authority, having itself
determined the number of days which were to be devoted to carrying out those activities, merely asked tenderers to quote unit
prices expressed in daily rates for each staff profile required (namely developer, programmer and analyst). In order to arrive
at the price of the tender, those unit prices were to be multiplied by the number of days determined by the contracting authority.
By determining the number of days required for carrying out the abovementioned activities, the contracting authority itself
estimated the scale of the work to be done, thus liberating tenderers from the need to undertake that task and focusing competition
among tenderers on the daily rates proposed for each necessary staff profile. The applicant has not shown that lack of knowledge
of the NCTS source-code had any sort of impact on the daily rate quoted for its staff.

97      It follows that it has not been shown that access to the NCTS source-code would have been useful for the purposes of pricing
the applicant’s offer.

98      Finally, the applicant’s argument relating to the usefulness of access to the NCTS source-code is not supported by *Evropaïki Dynamiki* v *Commission*, paragraph 52 above. Unlike the present case, in which the computer system under the contract at issue – the EMCS – is different
from the system whose source-code was not provided – the NCTS – (see paragraph 82 above), the case cited by the applicant
related to a computer system – the Cordis system – which was merely a new version of the same Cordis system for which the
source-code had not been provided (*Evropaïki Dynamiki* v *Commission*, paragraph 52 above, paragraph 7). Since the present case concerns the usefulness of the NCTS source-code, no analogy may
be drawn between the present case and *Evropaïki Dynamiki* v *Commission*, paragraph 52 above.

99      The same is true for the applicant’s argument concerning the CUST‐DEV contract (see paragraph 52 above). In this respect,
the Commission stated in the observations it submitted in response to the Court’s letter of 2 March 2009 (see paragraph 31
above) that the CUST‐DEV contract concerned computer applications in the customs sector, which is also the relevant sector
for the NCTS, and that it was therefore right to provide tenderers with the source-code of that system. By contrast, that
was not the case for the contract at issue, which concerns computer applications in the excise duty sector, in other words,
a sector other than customs. The applicant did not contest the Commission’s claim at the hearing and the Court has no reason
to doubt it.

100    In the light of the above reasoning, the conclusion must be that the usefulness of the NCTS source-code for the formulation
of tenders in connection with the award of the contract at issue has not been demonstrated. Consequently, the second part
of the applicant’s plea in law must be rejected.

101    It follows that the present plea in law must be rejected in its entirety.

B –  *The second plea: infringement of the financial regulation, the implementing rules, and Directives 92/50 and 2004/18*

1.     Arguments of the parties

102    The applicant claims that the award criteria for the contract at issue are not sufficiently specific and quantifiable and,
consequently, were not capable of being examined objectively by the evaluation committee. That failure on the part of the
contracting authority constitutes an infringement of Article 97(1) of the financial regulation, Article 138 of the implementing
rules, Article 17(1) of Directive 92/50 and the provisions of Directive 2004/18.

103    The Commission contests the applicant’s arguments.

2.     Findings of the Court

104    By way of a preliminary point, it must be noted that, pursuant to Article 105 of the financial regulation, from 1 January
2003 onwards – the date of entry into force of the regulation – the directives relating to the coordination of procedures
for the award of public supply, service and works contracts do not apply to public contracts awarded by the Community institutions
on their own behalf except as regards questions concerning the thresholds which determine publication arrangements, the choice
of procedures and corresponding time-limits. It follows that the applicant’s complaint against the award criteria for the
contract at issue must be examined solely in the light of the provisions of the financial regulation and the implementing
rules.

105    In addition, it must be recalled that, in accordance with Article 97(2) of the financial regulation and Article 138(1)(b)
of the implementing rules, the contract at issue had to be awarded to the most economically advantageous tender.

106    It must, next, be recalled that, in order to ensure that the principles of transparency, equal treatment and non-discrimination
are observed at the stage at which tenders are selected with a view to awarding a contract, Article 97(1) of the financial
regulation imposes on the contracting authority, where the contract is awarded to the most economically advantageous tender,
the obligation to define and set out in the call for tenders the award criteria for evaluating the content of tenders. Those
criteria must, in accordance with Article 138(2) of the implementing rules, be justified by the subject of the contract. According
to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the
weighting it will apply to each of the criteria for determining the best value for money.

107    Nevertheless, those provisions leave it to the contracting authority to choose the award criteria in the light of which tenders
will be assessed. However, the award criteria which the contracting authority proposes to use must, in any event, be aimed
at identifying the offer which is economically the most advantageous (see, to that effect, Case T‐4/01 *Renco* v *Council* [2003] ECR II‐171, paragraph 66, and Case T‐183/00 *Strabag Benelux* v *Council* [2003] ECR II‐135, paragraph 74).

108    In addition, the criteria used by the contracting authority to identify the most economically advantageous tender do not necessarily
have to be quantitative or related solely to the price. Even if award criteria that are not expressed in quantitative terms
are included in the tender specifications, they can be applied objectively and uniformly in order to compare tenders and are
clearly relevant for identifying the most economically advantageous tender (see, to that effect, *Renco* v *Council*, paragraph 107 above, paragraphs 67 and 68).

109    In the present case, it must be recalled first that the award criteria for the contract at issue appear both in the contract
notice (paragraph IV 2) and in the specifications annexed to the invitation to tender. Therefore, the condition of publicity
laid down in Article 97(1) of the financial regulation has been fulfilled.

110    Further, it should be recalled that the award criteria, described as vague and subjective by the applicant, read as follows:

‘1.      Quality of the proposed solution:

–      Fitness of the proposed strategy to perform the tasks of the contract (40/100);

–      fitness of the proposed methods, tools, quality environment and quality procedures to perform the tasks (30/100);

–      fitness of the proposed team organisation to perform the tasks (20/100);

–      structure, clarity and level of completeness of the proposal (10/100).’

111    It must therefore be held that the applicant, far from substantiating its argument that those criteria are vague and subjective,
finds itself contradicted by the clear terms of those criteria. In particular, the applicant puts forward no evidence to support
its claims which would allow for a finding that, when the contracting authority defined those criteria, it failed to have
regard to its obligation to observe the principles of transparency and equal treatment of tenderers. On the contrary, the
applicant in effect repeats the argument it put forward in the context of the first plea, concerning the alleged lack of an
exact description of the services required and of the specific requirements of the work to be done.

112    A review of the abovementioned criteria shows that they focus on the following elements: the strategy proposed by the tenderers
(first criterion), the methods, tools, quality environment and quality procedures proposed by the tenderers (second criterion),
the proposed team organisation (third criterion), and the structure, clarity and level of completeness of the tender (fourth
criterion). The applicant does not explain, or show, why those criteria are not justified by the subject of the contract at
issue. Furthermore, there is no reason to doubt that those criteria are relevant to identifying the most economically advantageous
tender, since those criteria are guaranteed to affect the quality of the services provided under the contract at issue and,
therefore, the value of the tender itself.

113    Although those criteria are not quantitative, that fact alone cannot be taken to mean that the contracting authority did not
apply them objectively and uniformly (see, to that effect, *Renco* v *Council*, paragraph 107 above, paragraphs 67 and 68). It should be noted that, in the present case, the applicant has submitted no
evidence to that effect.

114    Finally, for the sake of completeness, it should be observed that the contracting authority specified, in accordance with
the applicable provisions, the relative weighting it would apply to each of the award criteria, thus informing tenderers of
the importance it intended to attach to each criterion when it came to the comparative evaluation of the tenders.

115    It follows from the foregoing that the applicant has not shown that the contracting authority failed to fulfil its obligation
to define, in the call for tenders, the award criteria in compliance with the regulatory framework and the principles laid
down in the case-law as set out in paragraphs 104 to 108 above.

116    It follows from all the foregoing that the second plea in law must be rejected.

C –  *The fifth plea: breach of the principles of sound administration and diligence*

1.     Arguments of the parties

117    The applicant claims, in essence, that the Commission infringed the principles of sound administration and diligence by failing
to respond promptly and adequately to the applicant’s fax of 27 August 2004, in which the applicant expressed its reservations
regarding the call for tenders, in particular with regard to the principle of non-discrimination.

118    The Commission contests the applicant’s arguments.

2.     Findings of the Court

119    In accordance with the general principle of sound administration, which also encompasses the duty of care, a Community institution
must observe reasonable time-limits in conducting administrative proceedings and behave diligently in its relations with the
public (Case C‐47/07 P *Masdar (UK)*v *Commission* [2008] ECR I‐9761, paragraph 92, and Case T‐394/03 *Angeletti* v *Commission* [2006] ECR‐SC I‐A‐2‐95 and II‐A‐2‐441, paragraph 162).

120    In addition, as regards the award of Community public contracts, contact between the contracting authority, on the one hand,
and potential tenderers or tenderers, on the other hand, is regulated by Articles 141 and 148 of the implementing rules.

121    Article 141 of the implementing rules provides:

‘1. Provided that the request was made in good time before the deadline for submission of tenders, the specifications and
additional documents shall be sent, within six calendar days of the receipt of the request, to all economic operators who
have requested the specifications or expressed interest in submitting a tender.

2. Provided it has been requested in good time, additional information relating to the specifications shall be supplied simultaneously
to all economic operators who have requested the specifications or expressed interest in submitting a tender no later than
six days before the deadline for the receipt of tenders or, in the case of requests for information received less than eight
calendar days before the deadline for receipt of tenders, as soon as possible after receipt of the request.

...’

122    Furthermore, Article 148 of the implementing rules provides:

‘1. Contact between the contracting authority and tenderers during the contract award procedure may take place, by way of
exception, under the conditions set out in paragraphs 2 and 3.

2. Before the closing date for the submission of tenders, in respect of the additional documents and information referred
to in Article 141, the contracting authority may:

(a) at the instance of tenderers, communicate additional information solely for the purpose of clarifying the nature of the
contract, such information to be communicated on the same date to all tenderers who have asked for the specifications;

...’

123    Therefore, the provisions cited above show that contact between the contracting authority, on the one hand, and potential
tenderers or tenderers, on the other hand, before the deadline for submission of tenders, is permitted in so far as it is
for the purpose of obtaining ‘additional information’ relating to the specifications (Article 141(2) of the implementing rules)
and ‘additional information’ in respect of the additional documents and information referred to in Article 141 and ‘solely
for the purpose of clarifying the nature of the contract’ (Article 148(2)(a) of the implementing rules).

124    As regards the ‘additional information’ referred to in Article 141(2) of the implementing rules, the contracting authority
is required to provide it to the potential tenderers within the time-limits laid down in that article. As regards the ‘additional
information’ referred to in Article 148(2)(a) of the implementing rules, the contracting authority has the right to communicate
it to the tenderers, but is not under an obligation to do so.

125    In the present case, it must be held that the fax of 27 August 2004 to which the applicant refers does not contain a request
for the information referred to by the abovementioned provisions of the implementing rules. As previously stated (see paragraph
11 above), in that fax, the applicant expressed reservations regarding the procedure for the award of the contract at issue,
based on a potential lack of objectivity of the call for tenders to the advantage of tenderers which had already been suppliers
to the Taxation and Customs Union DG, a lack of clear specifications in the call for tenders and a lack of precise and objective
criteria for the evaluation of tenderers. By way of the same fax, the applicant also asked the Taxation and Customs Union
DG to extend the deadline for the submission of tenders until it had remedied the abovementioned problems. It follows that
the Commission was not required to reply to that letter. It did reply none the less, in a manner that was both prompt and
adequate, by letter of 3 September 2004, expressing the view that the applicant’s reservations were unfounded and refusing
to grant its request to extend the deadline for the submission of tenders (see paragraph 13 above). Therefore, there is no
doubt that the defendant acted diligently, in the spirit of sound administration, all the more so because, as stated above,
the legislature had not imposed any obligation on it to provide a response in the present case. It follows that the Commission’s
follow-up to the applicant’s fax of 27 August 2004 does not in any way infringe the principles of sound administration and
diligence.

126    For the sake of completeness, it should be noted that the applicant did not contest the Commission’s claim that the contracting
authority had replied quickly to all the questions put by tenderers about the tender specifications, most of which had been
asked by the applicant.

127    In the light of the foregoing, this plea must be rejected as unfounded.

D –  *The fourth plea: lack of relevant information and failure to state reasons*

1.     Arguments of the parties

128    The applicant argues that the contested decision is vitiated by the fact that the Taxation and Customs Union DG did not give
a sufficient statement of reasons for its acts. The plea is based on two complaints.

129    First, the Taxation and Customs Union DG did not provide the applicant with all the information requested concerning the grounds
for the rejection of its tender, contrary to Article 253 EC and Article 8 of Directive 92/50. That DG did not set out clearly
the reasons why it rejected the applicant’s tender and made no reference to the characteristics and comparative advantages
of the successful tender, thereby denying the applicant the possibility of effectively commenting on the choice made, and
any possibility of seeking legal redress. The applicant adds that the Taxation and Customs Union DG did not invoke any reason
of public policy or commercial secret to justify its refusal to provide the evaluation report which the Commission normally
sends to all tenderers in such cases, in accordance with Article 12(2) of Directive 92/50. According to the applicant, an
insufficient statement of reasons, such as that in the present case, makes the Court’s review of the contested decision extremely
difficult, if not impossible.

130    Secondly, in the reply, the applicant points to the non-compliance with the 15-day time-limit for providing tenderers with
extracts from the evaluation committee’s report, contrary to the financial regulation and the legislation on public contracts.
That non-compliance and the complete lack of reasons concerning certain aspects of the contested decision caused the applicant
difficulties in bringing its action before the Court.

131    The Commission contends that this plea should be rejected.

2.     Findings of the Court

132    It must be noted, as a preliminary point, that the legislative provisions which determine the content of the obligation to
state reasons which a contracting authority has towards unsuccessful tenderers in a public procurement procedure are Article
100(2) of the financial regulation and Article 149 of the implementing rules, and not the provisions of Directive 92/50, as
alleged by the applicant (see paragraph 104 above).

133    It follows from those articles that, in the field of public procurement, a contracting authority fulfils its obligation to
state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection
of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have submitted
an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful
tenderer, within a period of 15 calendar days from the date on which a written request is received (see judgment of 12 July
2007 in Case T‐250/05 *Evropaïki Dynamiki* v *Commission*, not published in the ECR, paragraph 68, and judgment of 10 September 2008 in Case T‐465/04 *Evropaïki Dynamiki* v *Commission*, not published in the ECR, paragraph 47 and case-law cited).

134    Such a manner of proceeding satisfies the purpose of the duty to state reasons laid down in Article 253 EC, according to which
the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal
fashion so as to enable, on the one hand, the persons concerned to be aware of the reasons for the measure in order to assert
their rights, and, on the other, the Court to exercise its review (see, to that effect, Case T‐19/95 *Adia interim* v *Commission* [1996] ECR II‐321, paragraph 32; Case T‐169/00 *Esedra* v *Commission* [2002] ECR II‐609, paragraph 190; *Strabag Benelux* v *Council*, paragraph 107 above, paragraph 55; and Case T‐250/05 *Evropaïki Dynamiki* v *Commission*, paragraph 133 above, paragraph 69).

135    Moreover, compliance with the duty to state reasons must be assessed in the light of the information available to the applicant
at the time when the action is brought (*Strabag Benelux* v *Council*, paragraph 107 above, paragraph 58, and *Renco* v *Council*, paragraph 107 above, paragraph 96).

136    It follows that, in order to determine whether the Commission fulfilled its duty to state reasons in the present case, it
is necessary to examine the letters of 18 November 2004 and 10 December 2004 sent by it to the applicant before the present
action was brought.

137    The letter of 18 November 2004 informs the applicant that its tender (submitted with Steria as part of the Evropaïki Dynamiki-Steria
consortium’s tender) was unsuccessful. It states that that tender was not chosen because, in the light of the award criteria,
it did not represent the best tender in terms of quality and price. That letter adds that the applicant could obtain further
information on the grounds for the rejection of its tender and that, if it made a request in writing, it could be informed
of the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Lastly, the
letter states that certain details of the successful tender would not be disclosed if that disclosure would hinder application
of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private
undertakings or could distort fair competition between those undertakings. It follows that that letter, although somewhat
formulaic in nature, is drafted in accordance with Article 100(2) of the financial regulation.

138    The letter of 10 December 2004, from the Commission to the applicant, provides the latter with an extract from the evaluation
committee’s report. That letter was sent in response to a written request from the applicant dated 22 November 2004, repeated
on 8 December 2004.

139    The extract from the evaluation committee’s report refers to the name of the successful tenderer. It also contains the evaluation
committee’s detailed comments on the successful tender and the Evropaïki Dynamiki-Steria consortium’s tender in respect of
each of the award criteria (see paragraph 21 above). That extract also contains a table with the points awarded to each of
the two tenders in respect of each of the award criteria, and a table showing the respective prices of the two tenders and
the comparative evaluation of the price-quality ratio (see paragraph 22 above).

140    Accordingly, the Court finds that, by communicating to the applicant, first, the essential grounds for the rejection of the
Evropaïki Dynamiki-Steria consortium’s tender, and then the aforementioned extract from the evaluation committee’s report,
the Commission stated to the requisite legal standard the reasons why the applicant’s tender was rejected, in accordance with
Article 100(2) of the financial regulation and Article 149(2) of the implementing rules. It should be noted that that extract
refers to the name of the successful tenderer and, through the comments of the evaluation committee and the two abovementioned
tables, the ‘characteristics and relative advantages of the successful tender’. The letter of 18 November 2004 and that extract,
provided with the letter of 10 December 2004, thus enabled the applicant to identify immediately the reasons why its tender
had not been selected, that is, because it was less advantageous economically than that of the successful tenderer, which
offered a better price-quality ratio.

141    As regards, finally, the applicant’s complaint regarding non-compliance with the 15-day time-limit for providing it with extracts
from the evaluation committee’s report, it must, in fact, be noted that that extract was sent to it by letter of 10 December
2004 and thus reached it at least 18 calendar days after its written request, sent to the Commission by fax and by registered
letter on 22 November 2004. Although it is to be regretted, that slight delay has not, however, in any way restricted the
possibility for the applicant to assert its rights before the Court and cannot therefore, by itself, lead to the annulment
of the contested decision. It is clear from the documents before the Court that the applicant has used all the information
contained in that extract in order to bring the present action (see, to that effect, Case T‐465/04 *Evropaïki Dynamiki* v *Commission*, paragraph 133 above, paragraph 52).

142    Having regard to the foregoing, it must be concluded that the statement of reasons provided in the contested decision enabled
the applicant to assert its rights and the Court to exercise its review. Accordingly, the present plea must be rejected.

E –  *The third plea: manifest errors of assessment in the contracting authority’s evaluation of the applicant’s tender*

1.     Arguments of the parties

143    The applicant submits that the Taxation and Customs Union DG made a manifest error of assessment by failing to evaluate correctly
and objectively the quality of the applicant’s tender and by deciding that that tender was inferior to that submitted by the
successful tenderer.

144    In the context of this plea, the applicant argues first that, since the Taxation and Customs Union DG did not follow an objective
and predetermined methodology known to the tenderers in order to arrive at the final ranking, it is obvious that the decision
of the evaluation committee was based on incorrect assumptions.

145    Second, the applicant argues that the general nature of the criteria used and the tenderers’ lack of knowledge of the exact
nature of the contractual task to be performed led to a subjective evaluation of the value of the tenders.

146    Finally, the applicant criticises specific comments made by the evaluation committee, which show that its evaluation of the
applicant’s tender contained manifest errors of assessment.

147    The Commission contests the applicant’s arguments.

2.     Findings of the Court

148    According to consistent case-law, the contracting authority enjoys a broad margin of assessment with regard to the factors
to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and review by
the Court must be limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of
the facts found and that there is no manifest error of assessment or misuse of powers (Case T‐211/02 *Tideland Signal* v *Commission* [2002] ECR II‐3781, paragraph 33, and Case T‐148/04 *TQ3 Travel Solutions Belgium* v *Commission* [2005] ECR II‐2627, paragraph 47; see also, to that effect, Case 56/77 *Agence européenne d’intérims* v *Commission* [1978] ECR 2215, paragraph 20).

149    In the present case, it should be noted that the applicant bases its argument, in essence, on two factors in order to show
that the contracting authority made a manifest error of assessment.

150    In the first place, the applicant claims that the Taxation and Customs Union DG did not follow an objective and predetermined
methodology known to the tenderers in order to arrive at the final ranking. It also refers to the alleged lack of knowledge
on the part of the tenderers of the nature of the contractual tasks to be performed and the allegedly general nature of the
award criteria and concludes from this that the evaluation of the tenders must have been subjective and based on incorrect
assumptions.

151    It must be held that the applicant confines itself to general assertions that are unsubstantiated and not supported by any
evidence. Its argument is a repetition of the argument put forward in the context of the first and second pleas, which have
been rejected by the Court. Furthermore, the applicant does not show in any way how all these alleged shortcomings on the
part of the contracting authority led it to make incorrect assumptions and evaluate the tenders subjectively. Therefore, it
must be concluded that that argument cannot support the present plea in law.

152    In the second place, the applicant contests specific comments made by the evaluation committee on the Evropaïki Dynamiki-Steria
consortium’s tender.

153    First, the applicant contests the evaluation committee’s comment that ‘[t]he offer shows some lack of understanding of the
Terms of Reference as the proposal makes reference to activities that have already been completed, or will be completed by
the time the contract will come into force’. The applicant contests the merits of that comment, which it describes as subjective
and unfair, and submits, in essence, that, if there was a misunderstanding, that misunderstanding was due to the fact that
the applicant had been invited to submit a tender for a project for which the specifications were unknown. The applicant claims,
furthermore, that in any event the comment is vague and that it is impossible to argue against it.

154    The abovementioned comment of the evaluation committee relates to the first award criterion for the contract at issue, namely
that of ‘fitness of the proposed strategy to perform the tasks of the contract’. As regards that award criterion, the Evropaïki
Dynamiki-Steria consortium’s tender was given a score of 23.2/40 whereas the successful tender received a score of 35.1/40.

155    It must be held that, once more, in the context of its criticism of the abovementioned comment, the applicant reiterates the
arguments it put forward in the context of its first plea, which has been rejected by the Court. Furthermore, by simply making
statements, the applicant does not show in any way the merits of its claim that the comment quoted above is subjective, unfair
and vague. It follows that the applicant’s criticism in respect of the abovementioned comment of the evaluation committee
does not show that that comment was wrong and, even less, that there was a manifest error of assessment in respect of its
tender.

156    Second, the applicant contests the evaluation committee’s comment that ‘[t]he offer presents some inconsistencies, and in
particular in the planning: for instance, some development activities are starting even before the start of the specifications’.
The applicant, in its response to a written question from the Court, stated that a careful review of the Gantt diagrams included
in its tender showed that, contrary to the evaluation committee’s comment, it had envisaged that, save for some justified
exceptions, development activities would start after the activities related to the specifications.

157    The abovementioned comment of the evaluation committee, which is contested by the applicant, also concerns the first award
criterion for the contract at issue.

158    The Court, having examined the Gantt diagrams submitted by the applicant and taking into account the answers provided by the
parties to the questions put by the Court at the hearing, finds that the diagrams do in fact give the impression that the
applicant envisaged, in its planning of the project for the contract at issue, that at least some development activities would
commence before the corresponding specification activities, thus showing that the evaluation committee’s comment was well
founded. Admittedly, the applicant, in essence, claimed at the hearing that any misunderstanding which might arise from reading
the Gantt diagrams was due to the fact that those diagrams, as lodged before the Court and also included as part of the tender,
were presented in A4 format, which meant that some information – which was necessary to understand the planning of the project
in the Evropaïki Dynamiki-Steria consortium’s tender – was not visible. The applicant has claimed that it had also included
as part of its tender the same Gantt diagrams, but in A3 format, which made the relevant information concerning the planning
of the project visible and show that the evaluation committee’s comment was unfounded. However, irrespective of their alleged
importance, the Gantt diagrams in A3 format were not available to the Court.

159    In any event, even assuming that this argument presented by the applicant is well founded, it must be noted that it relates
to the first award criterion for the contract at issue. As the tables set out in paragraph 22 above show, even if, in respect
of that award criterion, the applicant’s tender had been given maximum points, namely 40/40, the applicant could not have
been awarded the contract, taking into account the number of points its tender received in respect of the other three award
criteria.

160    In those circumstances, it must be concluded that the applicant has not shown that the comment in question made by the evaluation
committee was incorrect and that, in any event, it has not shown at all that that allegedly incorrect comment reflects a manifest
error of assessment in the evaluation of its tender.

161    Third, the applicant contests the following comment by the evaluation committee:

‘The offer presents a detailed description of Cosmic FFP, but the tools proposed for estimates (Calico and Costar) are only
suitable for estimates based on the Cocomo II methodology, which is incoherent (see section 4.1.3.5.1 [of the tender]).’

162    That comment relates to the second award criterion for the contract at issue, namely ‘fitness of the proposed methods, tools,
quality environment and quality procedures to perform the tasks’. As regards that award criterion, the applicant’s tender
received a score of 16.7/30 whereas the successful tender received a score of 24.5/30.

163    The Commission explained in its written pleadings and at the hearing that the inconsistency noted by the evaluation committee
consisted in the fact that, while the applicant in its tender described the tools it intended to use to support the Cocomo
method, which the call for tenders did not ask for, it did not provide any information regarding the infrastructure to support
the Cosmic FFP method, which was the method required by the tender specifications. Furthermore, the applicant did not explain
the link between the two methods, Cocomo and Cosmic FFP, mentioned in its tender or the link between the Cocomo method, which
it mentioned in its tender for no apparent reason, and the system that is the subject of the contract at issue.

164    In its reply to a written question put by the Court, the applicant submitted that the reference in its tender to the Cocomo
method should not be considered to be an inconsistency and that the reason why it had not proposed specific tools for the
Cosmic FFP methodology lay in the fact that such specific tools were not necessary. The successful tenderer, for its part,
also did not propose such tools in its tender.

165    It should be noted, first, that the tender specifications for the contract at issue do in fact require use of the Cosmic FFP
system to provide estimates relating, in essence, to the effort required to carry out certain computer activities related
to the contract at issue. A review of section 4.1.3.5.1 of the Evropaïki Dynamiki-Steria consortium’s tender also shows that
it refers very briefly and in general terms to the Cocomo method and the Calico and Costar tools. Finally, it should be noted
that the evaluation committee criticised not only the Evropaïki Dynamiki-Steria consortium, but also the successful tenderer
for not specifying the tools that would be used within the framework of the Cosmic FFP system.

166    The Court finds that the applicant does not put forward a single argument to establish that those factual elements, which
are not contested, mean that the evaluation committee’s comment set out in paragraph 161 above was incorrect or, *a fortiori*, support the finding that that comment led the contracting authority, in that regard, to make a manifestly incorrect assessment
of the Evropaïki Dynamiki-Steria consortium’s tender, especially since the score given to that tender in respect of the second
award criterion for the contract at issue, far from being based on that analysis alone, was also based on the evaluation committee’s
other, corresponding comments (see, to that effect, Case T‐250/05 *Evropaïki Dynamiki* v *Commission*, paragraph 133 above, paragraph 106).

167    Fourth, the applicant contests the evaluation committee’s comment that ‘RUP [was] considered throughout [the Evropaïki Dynamiki-Steria
consortium’s] offer as “the” project management methodology, [even though its] software proposal for the development environment
does not list any IBM-Rational licence’. That comment also relates to the second award criterion for the contract at issue.

168    The Commission explained in its written pleadings and at the hearing that, by that comment, the evaluation committee had pointed
to an inconsistency in the Evropaïki Dynamiki-Steria consortium’s tender that consisted in the tender referring to RUP on
several occasions as ‘the’ methodology to follow, but failing to state whether the consortium had a licence for the IBM-Rational
software, which was required for that method, thus leaving open the question of who would pay for using that software, the
applicant or the contracting authority.

169    According to the applicant, the abovementioned comment was liable to mislead the contracting authority and is also irrelevant.
The necessary licences had to be paid for by the applicant and there was thus no reason to refer to that matter at all in
the tender, since the call for tenders did not require it. According to the applicant, it was obvious that it would use products
covered by a licence to carry out its work.

170    It suffices, in this respect, to state that the applicant’s argument is of a general nature and not supported by any evidence.
It is therefore not capable of showing that the abovementioned comment by the evaluation committee was incorrect or, even
less, that the contracting authority made a manifest error of assessment.

171    Fifth, the applicant contests the relevance of the evaluation committee’s comment that ‘[a]lthough customs and excise experience
is identified in [the Evropaïki Dynamiki-Steria consortium’s tender] as a must in terms of skills, in practice, their proposal
does not show such competences’. That comment relates to the third award criterion for the contract at issue, namely ‘fitness
of the proposed team organisation to perform the tasks’. The score given to the Evropaïki Dynamiki-Steria consortium’s tender
in respect of that award criterion was 14.5/20 whereas the successful tender received a score of 17.6/20.

172    In the first place, the applicant submits that the abovementioned comment is not well founded, since the Evropaïki Dynamiki-Steria
consortium had experience in the area of customs and excise and that experience was described in the tender. In the second
place, the applicant states that there was no reason to include detailed information on that area in the tender, since the
call for tenders did not ask for it and the tender specifications did not require that such ‘competence’ be offered. Finally,
the applicant claims that the fact that the alleged lack of experience of the Evropaïki Dynamiki-Steria consortium in the
area of customs and excise was being used to justify a mediocre evaluation of its tender constitutes an infringement of the
call for tenders, since the call for tenders does not list that experience as an evaluation criterion.

173    The applicant’s criticism relates both to the relevance of the evaluation committee’s comment and to its merits.

174    As regards the relevance of the comment, the Court notes that, even though the tender specifications did not require tenderers
to have customs and excise experience, the evaluation committee simply wanted to emphasise, with that comment, that there
was an inconsistency in the Evropaïki Dynamiki-Steria consortium’s tender. That inconsistency consisted in the fact that,
while the consortium stated that the tenderer, in order to be successful, had to have customs and excise experience, its tender
did not however show that it had such experience. Contrary to the applicant’s claim, such a comment from the evaluation committee
helped to clarify matters for the contracting authority.

175    As regards the merits of the comment, the Commission explained that that comment was made in relation to section 6.3.1 of
the Evropaïki Dynamiki-Steria consortium’s tender, which stated that the business analysts in the proposed team had ‘proven
experience in the area of excise/tax/customs in the EU’. According to the Commission, the evaluation committee took the view
that the curricula vitae submitted by the applicant for the business analysts did not show that experience. The applicant
was not able to refute those explanations given by the Commission. In those circumstances, the Court finds that it has not
been shown that the comment in question made by the evaluation committee was incorrect.

176    Finally, it should be noted that the applicant contests the evaluation committee’s comment relating to the second award criterion,
which criticises the Evropaïki Dynamiki-Steria consortium’s tender for including textbook-like references to, in particular,
the architecture and IT tools used, without any justification or connection made to the objectives of the EMCS. The applicant
also refutes the evaluation committee’s comment relating to the fourth award criterion, concerning the allegedly general nature
of the Evropaïki Dynamiki-Steria consortium’s tender. However, the Court finds that, again, the applicant puts forward mere
assertions, argues in a general manner and does not adduce any supporting evidence. Consequently, those complaints must be
rejected.

177    For the sake of completeness, the Court considers it important to emphasise that the applicant’s approach, which is to criticise
certain specific comments made by the evaluation committee, is ineffective, since the applicant does not show in any way how
those allegedly incorrect comments were likely to bring about a manifest error of assessment of the Evropaïki Dynamiki-Steria
consortium’s tender. In this respect, the applicant should explain, above all, how the allegedly incorrect comment affects
the score given to its tender. The applicant did not provide such an explanation.

178    Having regard to the foregoing, the conclusion must be that the applicant has not shown that the contracting authority made
manifest errors of assessment in the evaluation of Evropaïki Dynamiki-Steria consortium’s tender. Consequently, the present
plea in law must be rejected.

179    It follows that the action must therefore be dismissed.

**Costs**

180    The applicant has asked the Court to order the Commission to pay all costs, even if the application is dismissed. The applicant
claims that as a result of the Taxation and Customs Union DG’s failure to provide it in good time with sufficient reasons,
it was not able fully to evaluate its chances of challenging the contested decision and was thus forced to bring the present
action to preserve its rights.

181    The Commission submits that that request has no basis in Community law.

182    Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they
have been applied for in the successful party’s pleadings.

183    Furthermore, Article 87(3) of those rules provides:

‘Where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order
that the costs be shared or that each party bear its own costs.

The Court ... may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously
caused the opposite party to incur.’

184    In the present case, it has been found, *inter alia*, that the fourth plea, alleging a lack of relevant information and failure to state reasons, was unfounded. Furthermore,
there is no other reason for the Court to deviate from the rule in Article 87(2) of the Rules of Procedure. Consequently,
the applicant’s request must be rejected.

185    Since the applicant has been entirely unsuccessful, it must be ordered to pay the costs in accordance with the form of order
sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and
to pay those incurred by the European Commission.**

| Azizi | Cremona | Frimodt Nielsen |
| ----- | ------- | --------------- |

Delivered in open court in Luxembourg on 19 March 2010.

[Signatures]

Table of contents

Legal context

Background to the dispute

I –  Computerising the movement and surveillance of excisable products (EMCS)

II –  Award of the contract at issue

Procedure and forms of order sought by the parties

Law

I –  Admissibility

A –  Arguments of the parties

B –  Findings of the Court

II –  Substance

A –  The first plea: breach of the principles of non-discrimination and freedom of competition

1.  Arguments of the parties

2.  Findings of the Court

a)  The first part of the plea, concerning the non-availability of the specifications for the EMCS

b)  The second part of the plea, concerning the failure to communicate the NCTS source-code

Disparity in information to the benefit of the successful tenderer

The usefulness of the NCTS source-code for the formulation of the tenders

B –  The second plea: infringement of the financial regulation, the implementing rules, and Directives 92/50 and 2004/18

1.  Arguments of the parties

2.  Findings of the Court

C –  The fifth plea: breach of the principles of sound administration and diligence

1.  Arguments of the parties

2.  Findings of the Court

D –  The fourth plea: lack of relevant information and failure to state reasons

1.  Arguments of the parties

2.  Findings of the Court

E –  The third plea: manifest errors of assessment in the contracting authority’s evaluation of the applicant’s tender

1.  Arguments of the parties

2.  Findings of the Court

Costs

---

- Language of the case: English.