**Case T-300/07**

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

**v**

**European Commission**

(Public service contracts – Community tendering procedure – Provision of information technology services relating to the management and maintenance of an internet portal – Rejection of the bid submitted by a tenderer – Award criteria – Duty to state reasons – Manifest error of assessment – Equal treatment – Transparency)

Summary of the Judgment

1.      *Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a procedure for the award of a public service
contract not to accept a tender*

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

2.      *Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a procedure for the award of a public service
contract not to accept a tender*

*(Council Regulation No 1605/2002, Art. 100(2))*

3.      *Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link*

*(Art. 288, second para., EC)*

1.      The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content
of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other
parties to whom it is of direct and individual concern, may have in obtaining explanations. Therefore, in so far as, during
a Community procurement procedure, it is following a comparison with the other bids, and in particular the successful tenderer’s
bid, that the Commission has decided not to accept the bid submitted by the applicant undertaking, the Commission does not
correctly fulfil its obligation to state reasons where the information provided by the Commission, at the request of the applicant
undertaking, concerning the characteristics and relative advantages of the tender selected consist merely of a table indicating,
on the one hand, the scores obtained by the applicant undertaking and by the successful tenderer for the qualitative award
criteria and, on the other hand, the final ratio obtained by applying the formula in the tender specifications in order to
determine the best quality/price ratio and do not therefore contain even a brief comment on the successful tenderer’s bid.

In particular, the elements of the assessment of the quality of the successful tenderer’s bid as regards the qualitative award
criteria are all the more necessary where, despite the fact that the successful tenderer offered a price that was higher than
that offered by the applicant undertaking, the Commission considered that the successful tenderer’s bid offered the best quality/price
ratio.

(see paras 46, 49, 67, 69-73)

2.      During a Community procurement procedure, the Commission’s obligation to state reasons does not, under the principle of transparency,
require it to disclose the report of the evaluation committee or a copy of the successful tenderer’s bid. Article 100(2) of
the Financial Regulation provides merely that the contracting authority, when requested in writing, is to disclose the characteristics
and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded, within 15 days
of receipt of a written request.

(see para. 127)

3.      Where, during a Community procurement procedure, a Commission decision eliminating a tenderer is vitiated by defective reasoning
and must therefore be annulled, that does not mean that the award of the contract to the successful tenderer constitutes wrongful
conduct or that there is a causal link between that fact and the loss alleged by the applicant undertaking as the eliminated
tenderers. Indeed, there is no ground for concluding that the Commission would have awarded the contract in question to that
undertaking if the decision in question had been adequately reasoned. Moreover, in so far as a claim for damages is based
on other pleas that were not considered in the context of the claim for annulment, it is premature and must be rejected on
that ground. Since the annulled decision contains inadequate reasons, the Court is not in a position to examine whether that
decision is the result of a manifest error of assessment or infringement of the principles of equal treatment and transparency.
An application for annulment based on those pleas can only, if necessary, be considered in the light of the grounds of the
decision that replaces the decision annulled by the Court.

(see paras 143-144, 146)


JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

9 September 2010 ([\*](#Footnote*))

(Public service contracts – Community tendering procedure – Provision of information technology services relating to the management and maintenance of an internet portal – Rejection of the bid submitted by a tenderer – Award criteria – Obligation to state the reasons on which a decision is based – Manifest error of assessment – Equal treatment – Transparency)

In Case T‐300/07,

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

applicant,

v

**European Commission,** represented by E. Manhaeve, acting as Agent, and by J. Stuyk, lawyer,

defendant,

APPLICATION (i) for annulment of the Commission’s decisions of 21 May 2007 and 13 July 2007 rejecting the tenders submitted
by the applicant in tendering procedure ENTR/05/78 for Lot 1 (Editorial Work and Translation) and Lot 2 (Infrastructure Management)
for the management and maintenance of the ‘Your Europe’ portal (OJ 2006/S 143-153057) and awarding those contracts to another
tenderer and (ii) for damages,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucă, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 27 January 2010,

gives the following

**Judgment**

**Legal context**

1.     *The Financial Regulation and the Implementing Rules*

1        The award of service contracts by the European Commission is governed by 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 by 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. l, ‘the Implementing Rules’).

2        Article 89(1) of the Financial Regulation provides:

‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality,
equal treatment and non‐discrimination.’

3        Article 97 of the Financial Regulation, reads:

‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating
the content of the tenders shall be defined in advance and set out in the call for tender.

2. Contracts may be awarded by the automatic award procedure or by the best‐value-for-money procedure.’

4        Article 100 of the Financial Regulation provides:

‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award
criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.

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

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

5        Article 130(3) of the Implementing Rules provides:

‘The specifications shall at least:

(a)       specify the exclusion and selection criteria applying to the contract, save in the restricted procedure, including after a
competitive dialogue, and in the negotiated procedures following publication of a notice, referred to in Article 127; in such
cases those criteria shall appear solely in the contract notice or the call for expressions of interest;

(b)       specify the award criteria and their relative weighting or, where appropriate, the decreasing order of importance, if this
is not specified in the contract notice;

...’

6        Article 135(1) of the Implementing Rules provides:

‘The contracting authorities shall draw up clear and non-discriminatory selection criteria.’

7        Article 138 of the Implementing Rules provides:

‘1.       Contracts shall be awarded in one of the following two ways:

(a)       under the automatic award procedure, in which case the contract is awarded to the tender which, while being in order and satisfying
the conditions laid down, quotes the lowest price;

(b)       under the best-value-for-money procedure.

2. The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria
justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics,
environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical
assistance.

3. The contracting authority shall specify, in the call for tenders or in the specifications, the weighting it will apply
to each of the criteria for determining best value for money.

...’

8        Article 149(2) and (3) of the Implementing Rules provides:

‘2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is
received, communicate the information provided for in Article 100(2) of the Financial Regulation.

3. In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial
Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually,
as soon as possible after the award decision and within the following week at the latest, by mail and fax or email, that their
application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been
accepted.

The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders
or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision
notified does not constitute a commitment on the part of the contracting authority.

Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by
mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics
and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph
of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar
days from receipt of the request.

...’

2.     *Contract notice and tender specifications*

9        The contract notice and the tender specifications state that the framework contracts are to be awarded for each lot to a single
operator whose tender offers the best value for money in terms of the criteria stated in the tender specifications. The contract
notice states that the initial duration of the framework contract is two years, which can be extended once, and that the estimated
total value of purchases for the entire duration of the framework contract (maximum duration of four years) amounts to EUR
6 500 000.

10      The tender specifications provide for a procedure comprising four stages. During Stage 1 the exclusion criteria are applied
(point 3.1 of the tender specifications). During Stage 2 the selection criteria are applied (point 3.2 of the tender specifications)
in order to examine the tenderer’s financial and economic, and technical and professional capacity: first, their financial
and economic capacity for all lots (based on the audited annual accounts of the tenderers concerned for the last three years
and the annual turnover concerning services having a value equal to or greater than EUR 180 000 and, secondly, technical and
professional capacity, analysed separately for each of the three lots making up the call for tenders (the conditions being,
in particular: to have a sufficient team of qualified professionals, with at least three years’ experience in translation
services, web publication and web content creation, and to have provided services in the area concerned in at least three
instances and for at least three different customers over the previous five years, one of which must have been a project with
an international dimension). During Stage 3 the award criteria (assessment of tenders) are applied (point 3.3 of the tender
specifications).

11      In relation to the technical assessment, the tender specifications set out four award criteria for each of the lots. The criteria
for Lots 1 and 2 are largely similar and are broken down as follows:

–        qualitative award criteria relating to Lot 1, the total number of points being 100:

–        criterion No 1: good understanding of the work to be done and appropriateness of the methodology proposed for the execution
of the tasks (30 points);

–        criterion No 2: quality and completeness of the draft PMQP (project management and quality plan) (‘PMQP’) (10 points);

–        criterion No 3: quality of the proposed project planning and of the proposed allocation of resources in order to perform all
tasks in Scenario 1 (30 points);

–        criterion No 4: quality of the proposed project planning and of the proposed allocation of resources in order to perform all
tasks in Scenario 2 (30 points);

–        qualitative award criteria relating to Lot 2, the total number of points being 100:

–        criterion No 1: good understanding of the work to be done and appropriateness of the methodology proposed for the execution
of the tasks (30 points);

–        criterion No 2: quality and completeness of the draft PMQP (10 points);

–        criterion No 3: quality of the proposed project planning and of the proposed allocation of resources in order to perform all
tasks in Scenario 1 (30 points);

–        criterion No 4: quality of the proposed project planning and of the proposed allocation of resources in order to perform all
tasks in Scenario 2 (30 points).

12      It is stated in the specifications that tenders scoring less than 70% in the overall points total or less than 50% in the
points awarded for a single criterion will be excluded from the rest of the assessment procedure.

13      Next, the tender specifications provide for a financial assessment, which is based on the prices stated in the tenders and
conducted on the basis of the form given in point 5.5 of the tender specifications.

14      During Stage 4 the contract is awarded for each lot to the tender which offers the best quality/price ratio, assessed on the
basis of the ratio between the total points scored for each lot and the price bid.

**Background to the dispute**

15      The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed
by Greek law, operating in the field of information technology and communications.

16      By a contract notice of 29 July 2006, published in the Supplement to the *Official Journal of the European Union* (OJ 2006 S 143) under reference OJ 2006/S 143-153057, the Commission launched a call for tenders for the management and maintenance
of the ‘Your Europe’ portal as part of the IDABC (Interoperable Delivery of pan-European eGovernment Services to Public Administrations,
Businesses and Citizens) programme.

17      The purpose of that call for tenders was to establish three framework contracts concerning three different lots (Editorial
Work and Translations (Lot 1), Infrastructure Management (Lot 2) and Promotional Work (Lot 3)) for the management and maintenance
of the ‘Your Europe’ portal.

18      Tenderers were allowed to submit bids for one or more lots. The contract notice and the tender specifications stated that
framework contracts would be awarded for each lot to a single operator whose tender offered the best value for money in terms
of the criteria stated in the tender specifications. The contract notice of 29 July 2006 stated that the initial duration
of the framework contract would be two years, which could be extended once, and that the estimated total value of purchases
for the entire duration of the framework contract (maximum duration of four years) was EUR 6 500 000. The estimated value
per lot was EUR 2 250 000 for Lot 1, EUR 1 650 000 for Lot 2 and EUR 2 600 000 for Lot 3.

1.     *Concerning Lot 1*

19      On 4 August 2006 the applicant asked the Commission’s Directorate-General (DG) for Enterprise and Industry to provide it with
the relevant source code for the ‘Your Europe’ portal for the purposes of preparing its bid. DG Enterprise and Industry at
first disputed the relevance of that request. Ultimately it did agree to supply the applicant with the source code on 14 August
2006.

20      On 14 September 2006 the applicant requested further clarification on economic and financial issues relating to the call for
tenders. DG Enterprise and Industry sent a reply to those questions to all tenderers in a letter of 14 September 2006. The
Commission also sent a separate letter to the applicant dated 21 September 2006.

21      On 19 September 2006 the applicant submitted its tender in response to the abovementioned call for tenders relating to Lot
1.

22      On two occasions DG Enterprise and Industry requested the applicant to provide further clarification. The applicant replied
to those requests on 23 and 28 November 2006.

23      In January 2007, during the course of the tendering procedure, DG Informatics took over execution of the call for tenders
for all lots from DG Enterprise and Industry and continued the correspondence with the applicant.

24      By letter of 21 May 2007, DG Informatics informed the applicant that its tender for Lot 1 had been rejected on the ground
that it did not reach the thresholds as stated in point 3.3 of the tender specifications, which sets out the technical evaluation
criteria.

25      On 22 May 2007 the applicant requested clarification from the Commission as regards the letter rejecting its tender. That
request was for the name of the successful tenderer, the scores obtained by the applicant and by the successful tenderer for
each of the technical evaluation criteria and a comparison of the financial bids. The applicant also asked for a copy of the
evaluation committee’s report.

26      By letter of 29 May 2007, the Commission informed the applicant of the name of the successful tenderer (ASCII-Sword Technologies),
and provided it with two extracts from the evaluation report, which outlined the justification for the score given to the
applicant’s tender and provided a comparison of the scores given to the two tenders.

27      In a letter of 29 May 2007, the applicant complained about the way in which the evaluation procedure had taken place. In particular,
it complained that the IDABC project ‘Your Europe’ had been transferred from DG Enterprise and Industry to DG Informatics.
The applicant also asked DG Informatics not to sign the contract with the successful tenderer until it had been provided with
the detailed report.

28      The Commission replied to the applicant by letter of 30 May 2007 that the transfer of the call for tenders from DG Enterprise
and Industry to DG Informatics had had no impact on the evaluation procedure and that the information already provided was
sufficient to afford an understanding of how its tender had been evaluated.

29      On 31 May 2007 the applicant repeated its request for information and, on 4 June 2007, sent in by way of further supporting
documentation an analysis of its comments, covering its arguments one by one.

30      On 13 June 2007, the Commission replied to the applicant’s comments, stating that no information had been overlooked and no
error had been made by the evaluation committee.

2.     *Concerning Lot 2*

31      The applicant submitted its tender for Lot 2 on 19 September 2006.

32      The applicant was informed by letter of 13 July 2007 that its tender had been rejected because it did not present the best
value for money.

33      In a letter of 13 July 2007 the applicant asked DG Informatics for clarification of the grounds for the rejection of its tender,
making the same observations as it had done in respect of Lot 1.

34      In response, the Commission stated in its letter of 16 July 2007 that the contract had been awarded to the ASCII-Sword Technologies
consortium and provided the applicant with extracts from the evaluation committee’s report, which contained the explanation
for the scores given to the applicant’s tender and a comparison of the scores awarded to the two tenders.

35      On 25 July 2007 the applicant sent a letter to the Commission, asking it not to sign the contract with the successful tenderer
until its request for information had been dealt with.

**Procedure and forms of order sought**

36      By application lodged at the Court Registry on 31 July 2007, the applicant brought the present action against the Commission’s
decisions of 21 May 2007 (‘the decision of 21 May 2007’) and 13 July 2007 (‘the decision of 13 July 2007’) rejecting its tenders
for Lot 1 and Lot 2, respectively, and awarding the contract to the successful tenderer.

37      The applicant claims that the Court should:

–        annul the decisions of 21 May and 13 July 2007 not to accept the tenders it submitted and to award the contracts to the successful
tenderer;

–        order the Commission to pay the applicant damages for the loss suffered as a result of the contracts being awarded to other
tenderers, in the amount of EUR 1 125 000 for Lot 1 and EUR 825 000 for Lot 2;

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

38      The Commission contends that the Court should:

–        dismiss the application for annulment;

–        declare the claim for damages to be inadmissible or, in the alternative, unfounded;

–        order the applicant to pay the costs.

39      In its reply, the applicant reduced the amount of its claim for damages to EUR 750 000 for Lot 1 and EUR 400 000 for Lot 2.

40      At the hearing the applicant lodged three new documents: an audited statement of accounts, an e-mail sent to it by the Commission
and a document containing another call for tenders. The Commission made observations concerning the admissibility of the first
document and the relevance of all the documents to the outcome of the dispute.

**Law**

1.     *The claim for annulment*

41      In support of its claim for annulment of the decision of 21 May 2007 and the decision of 13 July 2007, the applicant relies
in essence on three pleas in law. The first plea alleges infringement of the obligation to state reasons. The second plea
alleges that the Commission committed manifest errors of assessment in the evaluation of its bids. The third plea alleges
infringement of the principles of equal treatment and transparency.

*The plea alleging infringement of the obligation to state reasons*

 Arguments of the parties

42      The applicant claims that the Commission infringed the obligation to state reasons by failing to give it any information concerning
the merits of the successful tenderer’s bid.

43      The Commission considers the reasoning given complies with case-law and with the Financial Regulation. It states that it did
provide an extract from the evaluation report both for Lot 1 and for Lot 2, comparing the relative advantages of the applicant’s
bid with that of the successful tenderer. It states that it therefore fulfilled its obligation to state reasons and submits
that the Court has sufficient information to decide the case.

 Findings of the Court

44      It must be noted at the outset that the Commission has a broad discretion with regard to the factors to be taken into account
for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that
discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with,
the facts are correct and there is no manifest error of assessment or misuse of powers (see Case T- 211/02 *Tideland Signal* v *Commission* [2002] ECR II-3781, paragraph 33, and judgment of 10 September 2008 in Case T-465/04 *Evropaïki Dynamiki* v *Commission*, not published in the ECR, paragraph 45).

45      Moreover, where the Commission has a broad discretion, respect for the rights guaranteed by the Community legal order in administrative
procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution
to provide adequate reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements
upon which the exercise of the power of appraisal depends were present (Case C‐269/90 *Technische Universität München* [1991] ECR I-5469, paragraph 14; Case T‐465/04 *Evropaïki Dynamiki* v *Commission*, paragraph 44 above, paragraph 54; and Case T‐89/07 *VIP Car Solutions* v *Parliament* [2009] ECR II‐1403, paragraph 61).

46      It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances
of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which
the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations
(see Case C‐367/95 P *Commission* v *Sytraval and Brink’s France* [1998] ECR I‐1719, paragraph 63 and case-law cited).

47      Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether
the reasons given are correct, which goes to the substantive legality of the contested measure (Case C‐17/99 *France* v *Commission* [2001] ECR I‐2481, paragraph 35; judgment of 12 November 2008 in Case T‐406/06 *Evropaïki Dynamiki* v *Commission*, not published in the ECR, paragraph 47; and *VIP Car Solutions* v *Parliament*, paragraph 45 above, paragraph 63).

48      Lastly, it should be observed that the specific rules regarding the statement of reasons for decisions rejecting bids submitted
by tenderers during a procurement procedure that are applicable in the present case are laid down in Article 100(2) of the
Financial Regulation and Article 149(3) of the Implementing Rules.

49      It is clear from those provisions, and from this Court’s case-law, that the Commission fulfils its obligation to state reasons
if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective
tenders and then, 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, to that effect, Case T‐465/04
*Evropaïki Dynamiki* v *Commission*, paragraph 44 above, paragraph 47).

50      Such a manner of proceeding satisfies the purpose of the obligation 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, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them
to defend their rights, and, on the other, to enable the Court to exercise its review (Case T‐465/04 *Evropaïki Dynamiki* v *Commission*, paragraph 44 above, paragraph 48).

51      It is in the light of those considerations that the applicant’s arguments must be examined.

–       The reasons given in the decision of 21 May 2007 and in the letter of 29 May 2007 (Lot 1)

52      In order to determine whether, in this case, the obligation to state reasons laid down in the Financial Regulation and the
Implementing Rules is satisfied, it is necessary to examine not only the decision of 21 May 2007 but also the letter of 29
May 2007, which was sent to the applicant in reply to its express request of 22 May 2007 for additional information concerning
the rejection of its tender.

53      In the letter of 21 May 2007 the Commission stated that the applicant’s tender had not reached the thresholds stated in point
3.3 of the tendering specifications. It also informed the applicant that it could obtain additional information on the grounds
for the rejection of its tender.

54      The Commission replied to the applicant’s written request of 22 May 2007 in a letter of 29 May 2007 containing various items
of information in response to the applicant’s request for further details. The Commission gave the name of the successful
tenderer and stated that the latter had obtained a qualitative score of 72 out of 100 and a final ratio of 1.170.

55      The Commission also attached to the letter of 29 May 2007 two extracts from the evaluation report, one providing the justification
of the scores awarded to the applicant’s tender for the four technical evaluation criteria, the other containing the following
table:

| | | | | | |
| --- | --- | --- | --- | --- | --- |
| Criteria | Description | | European Dynamics | ASCII Sword Technologies | Maximum Points |
| 1 | Good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks | | 16 | 26.667 | 30 |
| 2 | Quality and completeness of the draft PMQP (see section 4.3.8.3) | | 7 | 8.333 | 10 |
| 3 | Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in the scenario (see section 4.4.3.1) | | 21.667 | 18 | 30 |
| 4 | Quality and completeness of the specific approach to the execution of the tasks in the scenario (see section 4.4.3.1) | | 14 | 19 | 30 |
| Total | | | 58.667 | 72 | 100 |

56      The Court observes first of all that the wording of qualitative award criteria Nos 3 and 4 contained in the table attached
to the letter of 29 May 2007 does not fully correspond to that given in the tender specifications. However, it is clear from
the content of the letter of 29 May 2007 that the Commission was referring to qualitative award criteria Nos 3 and 4 for Lot
1, which has moreover not been disputed by the applicant, and that the error in the wording of those criteria given in the
table is simply the result of a manifest drafting error which has no effect on the contested decision.

57      It should also be noted that in this case the decision of 21 May 2007 is not based on a comparison of the services offered
by the applicant and by the successful tenderer but on the fact that the applicant’s bid did not obtain the minimum number
of points required for the technical evaluation criteria.

58      Under the terms of the call for tenders, only tenders obtaining a minimum of 70% in the overall points total awarded for the
technical evaluation criteria and reaching the minimum threshold of 50% in the points awarded for each technical evaluation
criterion were considered satisfactory with regard to those criteria and were subsequently examined in order to determine
which tender offered the best value for money.

59      Thus, the applicant’s tender was eliminated, not following a comparison with the other tenders and, in particular, with the
bid submitted by the successful tenderer, but on the ground that the minimum threshold required for one of the criteria and
the minimum score required for all of the criteria had not been reached.

60      The information provided by the Commission was therefore, in this case, sufficient from the point of view of the requirements
imposed in that regard (see, to that effect, Case T‐406/06 *Evropaïki Dynamiki* v *Commission*, paragraph 47 above, paragraphs 106 to 108).

61      Consequently, the Court considers that in the light of those circumstances the obligation to notify the characteristics and
relative advantages of the successful tender, laid down in Article 100(2) of the Financial Regulation and in Article 149 of
the Implementing Rules, was met in this case.

62      For all of those reasons, with regard to the decision of 21 May 2007, the plea alleging infringement of the obligation to
state reasons must be rejected.

–       The statement of reasons contained in the decision of 13 July 2007 and in the letter of 16 July 2007 (Lot 2)

63      In order to determine whether the obligation to state reasons laid down in the Financial Regulation and in the Implementing
Rules is satisfied in this case, it is necessary to examine the letter of 13 July 2007 and the letter of 16 July 2007 sent
to the applicant in response to its express request of 13 July 2007 for further information concerning rejection of its tender.

64      In the decision of 13 July 2007, the Commission stated that the applicant’s tender had not been selected as it did not present
the best value for money (quality/price ratio).

65      The Commission replied to the applicant’s written request of 13 July 2007 in a letter of 16 July 2007 containing various items
of information in response to the applicant’s request for further details. The Commission gave the name of the successful
tenderer and stated that the latter had obtained a qualitative score of 83.33 points out of 100 and a final ratio of 0.5911
whilst the applicant had only obtained a qualitative score of 70.33 points out of 100 and a final ratio of 0.5725.

66      The Commission also attached to the letter of 16 July 2007 two extracts from the evaluation report, one providing the justification
of the scores awarded to the applicant’s tender for the four technical evaluation criteria, the other containing the following
table:

| | | | | | |
| --- | --- | --- | --- | --- | --- |
| Criteria | Description | | European Dynamics | ASCII Sword Technologies | Maximum points |
| 1 | Good understanding of the work to be done and appropriateness of the methodology proposed for the execution of the tasks | | 24.67 | 25.67 | 30 |
| 2 | Quality and completeness of the draft PMQP ... | | 6.67 | 7.67 | 10 |
| 3 | Quality of the proposed project planning and of the proposed allocation of resources in order to perform all tasks in ... scenario 1 ... | | 17 | 25 | 30 |
| 4 | Quality and completeness of the specific approach to the execution of the tasks in scenario 2 ... | | 22 | 25 | 30 |
| Total | | | 70.33 | 83.33 | 100 |

67      It should first of all be noted in this case that the score allocated to the applicant’s tender exceeded the minimum number
of points required both for the award criteria as a whole and for the single award criteria. Also, in order to determine the
tender offering the best value for money, the Commission examined the financial proposals of those tenderers, including the
applicant, which had submitted a tender reaching the minimum thresholds of points required. It was therefore following a comparison
with the other bids, and in particular the successful tenderer’s bid, that the Commission decided not to accept the applicant’s
bid.

68      Taking into account the circumstances and, as stated in paragraph 45 above, taking into account the Commission’s broad discretion
in the matter, and the ensuing even more fundamental need to provide an adequate statement of the reasons for its decisions,
the Court must thus determine whether the statement of reasons contained in the decision of 13 July 2007 and the letter of
16 July 2007 is sufficient.

69      The letter of 16 July 2007 contains extracts from the evaluation report setting out the comments justifying the score given
to the applicant’s tender for the four award criteria. The comparison between the services offered by the applicant and those
offered by the successful tenderer consists merely of a table indicating, on the one hand, the scores obtained by the applicant
and by the successful tenderer for those award criteria and, on the other hand, the final ratio obtained by applying the formula
in point 3.3 of the tender specifications, that is to say, the ratio between the total scores obtained for the four technical
evaluation criteria and the price bid for the lot concerned in order to determine the best quality/price ratio. The letter
of 16 July 2007 does not therefore contain even a brief comment on the successful tenderer’s bid.

70      In those circumstances, the Court must conclude that the information contained in the decision of 13 July 2007 and in the
letter of 16 July 2007 does not appear to be satisfactory. That information is not such as, on the one hand, to make the applicant
aware of the characteristics and advantages of the successful tender and thereby enable it to defend its rights or, on the
other, to enable the Court to exercise its review of the comparison made by the Commission between the tenders.

71      In addition, it should be noted that the financial bid submitted by the applicant was lower than that of the successful tenderer.
In that regard, it must be pointed out that the Commission did not expressly state the total price bid by the successful tenderer,
it merely gave the final ratio attributed to the latter’s bid, and disclosed that price for the first time only in a table
set out in the defence.

72      Despite the fact that the successful tenderer offered a price that was higher than that offered by the applicant, the Commission
considered that the successful tenderer’s bid offered the best quality/price ratio and was thus the best value for money.
It therefore appears that the assessment of the quality of the bid as regards the qualitative award criteria was the deciding
factor. Thus, in the circumstances of the case, the information concerning the award criteria was all the more necessary as
the price offered by the applicant was lower than that offered by the successful tenderer (see, to that effect, *VIP Car Solutions* v *Parliament*, paragraph 45 above, paragraph 71).

73      The Court must conclude that the Commission did not correctly fulfil its obligation to state reasons in so far as the content
of the decision of 13 July 2007 and of the letter of 16 July 2007 does not in this case meet the requirements laid down in
Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.

74      It follows from the foregoing that the decision of 13 July 2007 to reject the applicant’s bid and award the contract to the
successful tenderer is vitiated by a defective statement of reasons.

75      Accordingly, the decision of 13 July 2007 must be annulled, without its being necessary to rule on the other pleas in law
relied on by the applicant in connection with Lot 2 or on the need to request the Commission to produce the report of the
evaluation committee.

*The plea alleging manifest errors of assessment (Lot 1)*

76      Since the application is well-founded in so far as the decision of 13 July 2007 is concerned, the plea alleging manifest errors
of assessment need be examined only in so far as it concerns the decision of 21 May 2007.

77      As a preliminary point, it should be recalled that the Commission enjoys a broad margin of discretion with regard to the factors
to be taken into account for the purpose of deciding to award a contract following an invitation to tender. Review by the
Court is 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 (see, to that effect, Case T‐145/98 *ADT Projekt* v *Commission* [2000] ECR II‐387, paragraph 147; Case T‐148/04 *TQ3 Travel Solutions Belgium* v *Commission* [2005] ECR II‐2627, paragraph 47; and Case T‐437/05 *Brink’s Security Luxembourg* v *Commission* [2009] ECR II-0000, paragraph 193).

78      In this case, it is clear from the tender specifications that the contract was awarded on the basis of the tender that offered
the best value for money, in accordance with Article 97(2) of the Financial Regulation.

79      Thus, within the limits imposed by the case-law cited above, the Court must examine whether the Commission committed manifest
errors of assessment in its evaluation of the tender in the light of the various award criteria.

 Qualitative award criterion No 1, ‘Good understanding of the work to be done and appropriateness of the methodology proposed
for the execution of the tasks’

80      It should be recalled first of all that the applicant’s tender obtained a score of 16 points out of a maximum of 30 for qualitative
award criterion No 1. In the letter of 29 May 2007 the Commission justifies that score by the fact that the methodological
approach towards delivering services related to editorial work is generic and the tenderer did not fully understand either
the target content or the target audience of the ‘Your Europe’ portal, since it proposed a ‘News Desk’, which did not fit
the scope of the project, and referred to a target audience of potential investors with an interest in the sort of innovation
promoted and encouraged by the ‘Your Europe’ portal. It states also that the tenderer’s approach to quality assurance and
quality control was based on ‘XPR methodology’, which did not fit at all the way the work for Lot 1 was described in the tender
specifications. Finally, the Commission noted that it was unclear whether translations would be done through ‘bridging’ (‘pivot’)
languages or would be done directly.

81      First of all, the applicant observes that the positive comments contained in the evaluation report are inconsistent with the
score of 16 points out of 30 which it obtained for that award criterion. It states that the only negative comment made in
the report concerns the reference in the tender to 11 official languages of the European Union, which was an obvious clerical
mistake.

82      The applicant further considers that it fully addressed all types of the current portal’s content and all aspects relating
to editing and demonstrated an in-depth understanding of the tasks to be performed. It adds that it deliberately referred
to content types which were not part of the current version of the portal, ‘flash content’ inter alia, in order to show its
overall capacity to handle all types of content in the context of a modern portal and thus adapt to new content during performance
of the contract.

83      The applicant criticises the Commission for describing the methodological approach to editorial work as generic, referring
in that regard to a document. It states that with respect to quality assurance and quality control its tender was perceived
as ‘positive’ and ‘well developed’ and so it fails to understand why the Commission awarded it very low technical marks. The
applicant challenges the Commission’s assessment that its approach in proposing the referenced ‘XPR methodology’ did not correspond
to the manner in which Lot 1 was described in the tender specifications. In that regard, it explains that it wished to present
an overview of the tenderer’s ‘overall quality philosophy’.

84      The applicant challenges the Commission’s assessment that its approach to translation is not clear about whether or not bridging
languages would be used for translation. For the applicant, this was not a question that needed to be decided at the time
of tendering but in the course of the project, depending on project run‐time parameters. It adds that, in any event, the translators
are native speakers of the target language and that it stated in its tender that direct translations were ‘preferred’ by the
tenderer. It concludes that its references to bridging languages are, therefore, clear.

85      In the first place, the Court finds that the applicant is wrong to consider that the score of 16 points out of 30 attributed
to its tender in respect of qualitative award criterion No 1 was the result of a manifest error of assessment. On the one
hand, the applicant’s assertion that the Commission penalised it for an obvious clerical mistake, namely the reference to
11 official languages of the European Union, is factually incorrect. It is apparent from the decision of 21 May 2007 that
the Commission merely noted that obvious clerical mistake, without attaching to it any negative consequences for the applicant.
On the other hand, contrary to the applicant’s assertions, the Commission noted several negative factors in its bid, such
as, in particular, a generic methodological approach and incorrect identification of the target content and target audience
since it proposed a ‘News Desk’, which did not fit the scope of the ‘Your Europe’ project. All this goes to show that the
Commission did not commit a manifest error of assessment in allocating 16 points out of a maximum of 30 to the applicant’s
tender in respect of qualitative award criterion No 1.

86      In the second place, the applicant considers it was wrongly criticised for submitting a generic methodological approach and
failing to identify correctly the portal’s target content and audience. It claims that it did fully address all the types
of the current portal’s content and all related editorial aspects, and refers in that regard to sections 2 to 5 (pp. 634 to
644) and sections 1 to 8 (pp. 818 to 865) of its tender.

87      The Court finds that those arguments cannot be accepted, however. First of all, the applicant merely refers to the abovementioned
sections of the tender and does not establish that the Commission’s assessment that the methodological approach taken in its
bid is generic is manifestly erroneous. In particular, first, some of those sections of the tender refer to thematic areas
of the portal (pp. 634 to 636 of the tender). Secondly, other sections of the tender (pp. 637 and 638 of the tender) concern
the usability of the portal, which the Commission moreover regarded as interesting, or describe the current portal, merely
reproducing the tender specifications. Thirdly, the final sections of the tender (pp. 822 to 855 of the tender), relied upon
by the applicant, describe the methodological approach for delivering ‘Work Package 1.1’ services.

88      Next the Court considers that the Commission did not commit a manifest error of assessment in stating that the content of
the portal was not correctly identified in so far as the bid referred to new services. The ‘flash’ content to which the applicant
referred in its tender was not suited to the objectives of the portal. As the tender specifications make clear, the portal
is intended to provide a permanent database with a low level of information changeability, updated no more than twice a year.
Consequently, the ‘flash’ content, which allows for constant updating of the content, is clearly inappropriate and was not,
moreover, envisaged in the tender specifications.

89      Likewise, the Commission was right to state that, in view of the reference in the applicant’s tender to a ‘News Desk’, which
does not fit the scope of the ‘Your Europe’ project and a ‘specific target audience of potential investors ... with an interest
in the sort of innovation promoted and encouraged by [the] “Your Europe” Portal’, neither the target content nor the target
audience of the portal had been fully understood by the applicant. Nor, in that regard, can the applicant’s argument be accepted
that the addition of new content to the portal is a positive aspect of its bid. As the Commission rightly states, without
being contradicted by the applicant, the latter did not make clear in its tender that it was proposing to introduce into the
portal content that went beyond what was envisaged in the tender specifications.

90      Lastly, there is no contradiction between the statements ‘[t]he overall general understanding of the context [of the bid]
is correct’ and ‘the methodological approach ... is generic’, as both mean only that the applicant’s general understanding
of the object of the call for tenders was correct but the approach it proposed to take was not specific or detailed enough.

91      In the third place, as regards ‘quality assurance’ and ‘quality control’ and the methodology used, the applicant challenges
the Commission’s assessment that its choice of the referenced ‘XPR methodology’, that is to say, a methodology based on a
web service development framework, does not fit the way Lot 1 is described in the tender specifications. It refers in that
regard to several points of its tender (sections 3.4.2 to 3.4.6, pp. 837 to 842, sections 2 to 4, pp. 1 to 33 (pp. 495 to
526), and Section V, pp. V-1 to V-77 (pp. 534 to 610)), in which it describes the methodology followed for ‘quality assurance’
and ‘quality control’ related to editorial work. It also states that ‘XPR methodology’ is mentioned only in the introductory
section of its bid, presenting an overview of the tenderer’s ‘overall quality philosophy’ (p. 836 of the tender).

92      Before the Court, the Commission correctly pointed out that the description of the ‘quality assurance’ principles was generic
and that the sections to which the applicant referred did not correspond in a satisfactory way to the requirements of the
tender specifications ‘WP 1.1 Task 4’, headed ‘To perform quality assurance and quality control on created, updated and received
content before publishing it in the portal’. Indeed, it is clear from just reading the pages of the applicant’s tender to
which the applicant refers that the Commission did not commit a manifest error of assessment in stating that the information
given on those pages is generic. In that regard, it should be noted that the applicant merely made general reference to the
various sections of its tender cited above and did not put forward specific arguments to demonstrate the existence of a manifest
error capable of vitiating the Commission’s assessment on that point.

93      Moreover, the applicant’s statement that the Commission failed to understand that the ‘XPR methodology’ was addressed in an
introductory section presenting an overview of the tenderer’s ‘overall quality philosophy’ and was not directly related to
the editorial aspects of the work of Lot 1, does not affect the generic nature of the bid as regards ‘quality control’. Nor
did the applicant show that the Commission had infringed qualitative award criterion No 1 in the tender specifications in
that regard. On the contrary, there are grounds for finding that it was legitimate for the Commission to base its assessment
on the level of precision of the applicant’s tender, which is an essential element for assessing the quality of that tender.

94      In the fourth place, the applicant challenges the criticism that it had not made clear whether translations would be done
through intermediary, so-called ‘bridging’, languages or whether they would be done directly. It submits that the use of a
‘bridging’ language was not a question to be decided at the time of bidding but in the course of the project. It states that
in any event the translators are native speakers of the target language and the tender stated that direct translations were
‘preferred’.

95      However, the Court notes that in the letter of 29 May 2007 the Commission found there was ambiguity, or even contradiction,
in the applicant’s tender, since the applicant had stated on page 873 of the tender that translators would work in their mother
tongue, whilst on page 644 of the same tender it stated that ‘direct translations are preferred although indirect translations
will be unavoidable’. The applicant’s submissions before the Court do not affect the Commission’s finding in any way. It was
not clearly set out in the applicant’s tender what it meant by translators working in their mother tongue. It was only before
the Court that the applicant explained that that reference should be understood to mean that the translators in question translate
into their mother tongue, either from the original text or, where necessary, from a translation of the text into a ‘bridging’
language. In view of the ambiguous, or even contradictory, nature of the terms used in the applicant’s tender in that connection
the Commission did not commit any manifest error of assessment when it stated that it was not ‘clear whether [bridging languages]
will be used in translations or it will be done directly as the idea is not developed in the offer’.

96      In the light of the foregoing, the Commission did not commit a manifest error in its assessment of the tender as regards qualitative
award criterion No 1.

 Qualitative award criterion No 2, ‘Quality and completeness of the draft PMQP and in particular of the proposed quality assurance
and control procedures’

97      It should be noted from the outset that a score of 7 points out of 10 was attributed to the applicant’s tender in respect
of qualitative award criterion No 2. That score was justified by the fact that the draft PMQP included in the tender was complete
in its structure but the tender was not sufficiently customised, and the hardware and software products to be delivered were
not relevant for editorial work (Lot 1).

98      In the first place, the applicant claims that the reference to hardware and software under the PMQP complies with the tender
specifications. It observes that in the tender specifications tenderers were invited to present their PMQP, indicating ‘deliverables
and documentation (can be products, materials, hardware, software, reports, monitoring tools, etc)’.

99      However, as the Commission noted, the description of the PMQP in the tender specifications is common to three lots. It is
reasonable to accept that although the tender specifications list various possible deliverables the appropriateness of those
deliverables depends on the lot to which the tender relates.

100    The Commission is therefore right in noting in the letter of 29 May 2007 that ‘more customisation of the PMQP would be expected
as it still mentions hardware and software products to be delivered (see, for example, page 933, “Handover file”) which is
not at all relevant for Lot 1’.

101    In the second place, the applicant claims that it was criticised wrongly for failing to develop the description of tasks and
merely copying them from the tender specifications. It maintains that as far as the draft PMQP was concerned it used a proven
methodology and a model followed in its collaboration with the Commission, since the specific conditions for the relevant
specific contracts were not known at the time of writing the tender.

102    However, in point 4.3.8.3 of the tender specifications the PMQP is described as being the first deliverable for the project
and specific to each project. It does not therefore appear that the Commission committed a manifest error of assessment in
stating that the applicant had not developed the description of the tasks.

103    The Court must therefore conclude that the Commission did not commit a manifest error of assessment in evaluating the applicant’s
tender with regard to qualitative award criterion No 2 for Lot 1.

 Qualitative award criterion No 3, ‘Quality of the proposed project planning and of the proposed allocation of resources in
order to perform all tasks in Scenario 1’

104    It should be noted first of all that the applicant’s tender obtained a score of 21.667 points out of a maximum of 30 in respect
of qualitative award criterion No 3. In the letter of 29 May 2007 the Commission observed that the approach to the execution
of tasks related to Scenario 1 was not very detailed and that, as regards ‘quality control’ of the content received from Lithuania,
the tender did not make clear what kind of quality control would be carried out and according to which editorial guidelines.
The letter of 29 May 2007 also states that the period of 6 months for delivery of the final report was correct and hence the
reference to 52 days for delivery was probably only a typing mistake.

105    In the first place, the applicant denies that its approach to the execution of tasks related to Scenario 1 was not very detailed.
It also regards as unjustified the comment that, as regards the requested quality controls on the content received from Lithuania,
the reference to editorial guidelines was not clear and the kind of quality control performed was not stated. It considers
that it complied strictly with the tender specifications. In that regard the applicant maintains that those specifications
stated that tenderers were requested to submit a general bid describing a solution for ‘Scenario 1’, accompanied by a document
of a maximum of four pages’ length suggesting the different tasks envisaged and the approach taken for each task, together
with a brief description of that approach. It was specified that particular attention would be given to the final deliverables.
It infers from that that the tender specifications did not request ‘very detailed explanations’. Moreover, the applicant considers
that it presented its approach for ‘quality assurance management’ and control procedures in various parts of its tender, among
others on pages 830 and 831.

106    However, it does not appear from the applicant’s submissions that the Commission committed any manifest error of assessment.
The applicant referred to other extracts from the tender, in particular pages 830 and 831, in order to show that it complied
with the tender specifications. It did not, however, put forward any specific evidence establishing the existence of a manifest
error vitiating the Commission’s assessment.

107    As the Commission points out, it is apparent from the evaluation of the applicant’s tender under qualitative award criterion
No 1 that the proposed methodological approach to delivering services related to editorial work was regarded as generic. In
those circumstances, it was reasonable for the Commission to consider that the generic nature of the methodological approach
proposed for the delivery of services related to editorial work was reflected in the approach to carrying out the tasks in
connection with Scenario 1. The Commission did not therefore commit a manifest error of assessment in considering that Scenario
1 was not very detailed as regards qualitative award criterion No 3.

108    In the second place, the applicant submits that although there was a typing error in the information given in its tender to
the effect that delivery would be within 52 days, that should not have affected the score awarded in respect of the qualitative
award criterion.

109    However, it is clear from the decision of 21 May 2007 that the Commission took note of the fact that the reference to 52 days
for the delivery of the report was probably a typing mistake. There is nothing to show that the applicant was penalised for
it. Hence, no manifest error of assessment has been demonstrated in that connection.

110    For all the foregoing reasons it is necessary to reject the applicant’s complaint that the Commission committed manifest errors
in the assessment of its bid with regard to qualitative assessment criterion No 3.

 Qualitative award criterion No 4, ‘Quality of the proposed project planning and of the proposed allocation of resources in
order to perform all tasks in Scenario 2’

111    It should be noted first of all that the applicant’s tender obtained a score of 14 points out of a maximum 30 in respect of
qualitative award criterion No 4. It is clear from the contested decision that the applicant’s approach to the subject of
the execution of tasks related to the scenario for ‘Work Package 1.2.’ (‘Scenario 2’) was regarded as basic. It is also stated
in the contested decision that the tender specifications describe the ‘interrelation’ between the scenario for ‘Work Package
1.1’ (‘Scenario 1’) and Scenario 2, but this concept is not reflected in the bid. It is stated in the contested decision that
the applicant operates on the incorrect assumption that all documents will be received at the same time, which is inconsistent
with Scenario 1 and does not take into account the time needed for the translations.

112    It should be observed that, according to the tender specifications, Scenario 1 consists of editorial work. The tasks set out
for Scenario 1 consist mainly in creating, updating and improving various fact-sheets and sets of links for the European-level
content (Task 1) and various fact-sheets and sets of links sent by Member States (Task 2). Scenario 2 corresponds to the work
of translating the content described in Scenario 1. Scenario 2 covers specifically the following two tasks: translation of
various fact-sheets and sets of links that are described, on the one hand, for the European-level content and, on the other
hand, for content sent by Member States.

113    In the first place, the applicant challenges the assessment that the work breakdown structure of the activities (timetable)
was generic. It argues that the work breakdown structure only outlined the tasks to be carried out, and that those tasks had
already been presented in detail in sections 2 (pp. 1047 and 1048) and 3 (pp. 1049 and 1050) of its tender. It also maintains
that those tasks were presented extensively in the relevant section of the methodological approach document (pp. 866-890 of
the tender), under award criterion No 1.

114    It does not appear that any manifest error was committed in the assessment of the bid as regards qualitative award criterion
No 4. As the Commission states, the tender was assessed in the light of qualitative award criterion No 4. The assessment does
not therefore relate to the content of the tasks to be carried out but rather to the planning of those tasks. The applicant
did not provide any evidence to challenge the fact that the information contained in the bid concerning the planning of the
tasks to be carried out was generic.

115    In the second place, the applicant states that it made no express assumption in its tender that all the documents were to
be sent at the same time. It also states that the timetable for submission of documents was not specified in the tender specifications.

116    However, the Court considers that, in the light of what is provided for in the tender specifications (see paragraph 112 above),
the applicant cannot seriously dispute the fact that Scenario 1 describes the content to be created or updated and Scenario
2 covers the translation of that content. The link between the two scenarios is clear and follows logically from the requirements
of Scenario 2. Considerations relating to the time when the content was received and the time needed for translation of that
content must be assessed in the context of the link between Scenario 1 and Scenario 2.

117    The Court must conclude that, as regards the time when the documents are received, the applicant’s tender draws no distinction
whatsoever between the two types of content to be translated (that is to say, the content described in Task 1, on the one
hand, and that described in Task 2, on the other hand).

118    In that regard, the Commission correctly states that, contrary to what the applicant claims, the differentiation between the
two types of content does not result from an unknown evaluation criterion but is rather a requirement laid down in point 4.4.1.2
of the tender specifications.

119    With regard to the time needed for translation of the content, as the Commission states, the delivery time of ‘T0 + 51 working
days’ given by the applicant in section 2.3 of its tender (p. 1040), was inconsistent with Scenario 1, where the total number
of days allowed by the applicant for translations is 55, that is 30 days for the translation of European-level content (‘WU
4.1’) and 25 days for the translation of content sent by Member States (‘WU 4.2.’) (p. 1032).

120    The Court must therefore conclude that the Commission did not commit a manifest error of assessment in evaluating the tender
under qualitative award criterion No 4.

121    It follows from all the above considerations that no manifest error of assessment was committed in the evaluation of the tender
under the four award criteria. This plea must therefore be rejected as unfounded.

*The plea alleging infringement of the principles of equal treatment and transparency*

122    Since the application is well-founded in so far as it relates to the decision of 13 July 2007, the plea alleging infringement
of the principles of equal treatment and transparency need be examined only in so far as the decision of 21 May 2007 is concerned.

 Arguments of the parties

123    The applicant claims that the principles of equal treatment and transparency were infringed.

124    First of all, the applicant maintains that a full copy of the evaluation committee’s report and a copy of the successful tenderer’s
bid should have been sent to it to enable it to understand the decision of 21 May 2007. It points out in that regard that
it expressly requested the Commission to send it those documents and that its request was refused. The applicant further states
that the Commission failed to examine the applicant’s tender correctly, rejecting it on account of misinterpretation. Moreover,
the applicant considers it was not in a position to know all of the evaluation criteria which the Commission applied. Lastly,
it maintains that the Commission applied criteria that were not set out in the tender specifications.

125    The Commission challenges the arguments put forward by the applicant and contends that the plea should be rejected.

 Findings of the Court

126    The complaints alleging infringement of the principles of transparency and equal treatment must be dismissed.

127    First of all, the applicant wrongly complains that it was not sent the report of the evaluation committee or a copy of the
successful tenderer’s bid. In fact, the Commission’s obligation to state reasons did not require it to disclose those documents.
Article 100(2) of the Financial Regulation provides merely that the contracting authority, when requested in writing, is to
disclose the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract
is awarded, within 15 days of receipt of a written request (see, to that effect, Case T‐250/05 *Evropaïki Dynamiki* v *Commission*, not published in the ECR, paragraph 113, and, by analogy, Case T‐19/95 *Adia interim* v *Commission* [1996] ECR II‐321, paragraph 31).

128    Next, the applicant wrongly claims that the principles of equal treatment and transparency were infringed on the supposed
ground that the Commission failed duly to examine the applicant’s bid and rejected it on account of misinterpretation. That
line of argument is essentially the same as that which the applicant put forward in the context of its plea alleging manifest
errors of assessment on the part of the Commission and is not relevant in the context of the present plea. The applicant does
not claim any discrimination against it as such at any stage of the procedure. However, the Commission put forward a number
of objective reasons justifying its decision not to award the contract to the applicant.

129    Moreover, the applicant’s argument that it was not in a position to be aware of all the evaluation criteria is put forward
in a general and vague manner. Also, it is apparent from the extract from the evaluation report attached to the Commission’s
letter of 29 May 2007 that the applicant’s tender was assessed only in the light of the qualitative award criteria given in
the tender specifications. That argument must therefore be rejected.

130    Lastly, for the same reason, it is necessary to reject the applicant’s argument that the Commission applied criteria that
were not set out in the tender specifications.

131    Since none of the applicant’s pleas is well-founded, this application must be dismissed in so far as it seeks annulment of
the decision of 21 May 2007 not to accept the tender submitted by the applicant in respect of Lot 1 and to award the contract
to another tenderer.

2.     *The claim for damages*

*Arguments of the parties*

132    The applicant claims that the Commission should be ordered to pay it damages in the amount of EUR 750 000 in compensation
for the loss caused by the decision of 21 May 2007 and EUR 400 000 in compensation for the loss caused by the decision of
13 July 2007. Its claim in that regard is based on Articles 235 EC and 288 EC.

133    The applicant submits, first, that the amounts claimed correspond to the profit it would have earned from the two public procurement
procedures had it been awarded those contracts. It submits, second, that it has demonstrated in the context of the application
for annulment that the Commission committed a sufficiently serious breach of a superior rule of law for the protection of
the individual.

134    The Commission contends, principally, that the claim alleging non‐contractual liability should be declared inadmissible, or,
in the alternative, that it should be dismissed as manifestly unfounded.

*Findings of the Court*

135    As a preliminary point, it is necessary to define the scope of the damage claimed by the applicant in its pleadings. The applicant
puts forward, first of all, as a head of damages the loss of the framework contracts. It then refers, in paragraph 99 of the
application, to considerations set out in Case T‐160/03 *AFCon Management Consultants and Others* v *Commission* [2005] ECR II-981, paragraph 102, concerning compensation for loss relating to the costs associated with participation in
a tendering procedure. However, it stated unequivocally, in paragraph 52 of the reply, that nowhere was it claiming damages
for the expenses of participation in the tendering procedure.

136    Hence, the Court must conclude that the only head of damages relied on by the applicant in respect of which it claims compensation
is the loss of the framework contracts.

137    In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article
288 EC for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness
of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and
the damage complained of (see Case T‐175/94 *International Procurement Services* v *Commission* [1996] ECR II‐729, paragraph 44; Case T‐336/94 *Efisol* v *Commission* [1996] ECR II‐1343, paragraph 30; and Case T‐267/94 *Oleifici Italiani* v *Commission* ECR [1997] II‐1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its
entirety without its being necessary to examine the other preconditions (see, to that effect, Case C‐146/91 *KYDEP* v *Council and Commission* [1994] ECR I‐4199, paragraph 81).

138    It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual
liability on the part of the Commission have been satisfied.

139    In the first place, as regards the claim for damages for the alleged loss suffered as a result of the decision of 21 May 2007,
it is apparent from the Court’s findings with regard to the claim for annulment that the applicant has failed to prove unlawful
conduct on the part of the Commission. Indeed, all the arguments the applicant put forward in order to demonstrate the unlawfulness
of the decision of 21 May 2007 have been examined and rejected.

140    It is clear from the case-law cited above (see paragraph 137 above) that it is sufficient that only one of the conditions
relating to non-contractual liability on the part of the Commission is not satisfied for the conclusion to be drawn that no
such liability exists.

141    It follows that the claim for damages for the alleged loss suffered as a result of the decision of 21 May 2007 must be dismissed
as unfounded, without it being necessary to give a ruling as to its admissibility.

142    In the second place, it is necessary to examine the claim for damages based on the non-contractual liability of the Commission
following the adoption of the decision of 13 July 2007.

143    In that regard, it should be noted that the claim for damages is based on the same pleas as those put forward in support of
the claim for annulment of the decision of 13 July 2007. It has already been noted, in the context of examination of that
claim, that the decision of 13 July 2007 is vitiated by defective reasoning and must therefore be annulled.

144    However, it must also be pointed out that, even if the Commission did not give adequate reasons for the decision of 13 July
2007, that does not mean that the award of the contract to the successful tenderer constituted wrongful conduct or that there
is a causal link between that fact and the loss alleged by the applicant (see, to that effect, Case T‐4/01 *Renco* v *Council* [2003] ECR II‐171, paragraph 89). Indeed, there is no ground for concluding that the Commission would have awarded the contract
in question to the applicant if the decision of 13 July 2007 had been adequately reasoned.

145    It follows that the claim for damages for the alleged loss suffered as a result of the decision of 13 July 2007 must, in so
far as it is based on the lack of a statement of reasons for that decision, be dismissed as unfounded, without it being necessary
to give a ruling as to its admissibility.

146    In so far as that claim is based on other pleas that were not considered in the context of the claim for annulment, it is
premature and must be rejected on that ground (see, to that effect, Case T‐478/93 *Wafer Zoo* v *Commission* [1995] ECR II‐1479, paragraphs 49 and 50, and Case T‐300/97 *Latino* v *Commission* [1999] ECR-SC I‐A‐259 and II‐1263, paragraphs 95 and 101). Since the decision of 13 July 2007 contains inadequate reasons,
the Court is not in a position to examine whether that decision is the result of a manifest error of assessment or infringement
of the principles of equal treatment and transparency, as the applicant claims. An application for annulment based on those
pleas can only, if necessary, be considered in the light of the grounds of the decision that will replace the decision of
13 July 2007, after its annulment by the Court.

147    It follows that the claim for damages must be rejected in its entirety.

148    There is no need to rule on the objection of inadmissibility raised by the Commission with regard to the audited statement
of accounts lodged by the applicant at the hearing, and on the relevance of that document, of an e‐mail from the Commission
to the applicant and of a document containing another call for tenders, also lodged by the applicant at the hearing, since
it follows from the foregoing that those documents are irrelevant for the purposes of determining the dispute. The documents
in question have thus not been taken into consideration by the Court for the purposes of this judgment (see, to that effect,
Case T‐13/96 *TEAM* v *Commission* [1998] ECR II‐4073, paragraph 79).

**Costs**

149    Under Article 87(3) of its Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads,
the Court may order that the costs be shared or that each party bear its own costs.

150    As the action has been successful in part, the Court will make an equitable assessment of the circumstances of the case and
hold that the applicant should bear 50% of its own costs and pay 50% of the costs incurred by the Commission, and that the
Commission should bear 50% of its own costs and pay 50% of those incurred by the applicant.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      **Annuls the Commission’s decision of 13 July 2007 rejecting the tender submitted by Evropaïki Dynamiki – Proigmena Systimata
Tilepikoinonion Pliroforikis kai Tilematikis AE in tendering procedure ENTR/05/78 for Lot 2 (Infrastructure Management) for
the management and maintenance of the ‘Your Europe’ portal and awarding that contract to another tenderer;**

2.      **Dismisses the remainder of the claim for annulment;**

3.      **Dismisses the claim for damages;**

4.      **Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis to pay 50% of its own costs and
50% of the costs incurred by the European Commission, and the European Commission to pay 50% of its own costs and 50% of those
incurred by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.**

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| Vilaras | Prek | Ciucă |

Delivered in open court in Luxembourg on 9 September 2010.

[Signatures]

Table of contents

Legal context

1. The Financial Regulation and the Implementing Rules

2. Contract notice and tender specifications

Background to the dispute

1. Concerning Lot 1

2. Concerning Lot 2

Procedure and forms of order sought

Law

1. The claim for annulment

The plea alleging infringement of the obligation to state reasons

Arguments of the parties

Findings of the Court

– The reasons given in the decision of 21 May 2007 and in the letter of 29 May 2007 (Lot 1)

– The statement of reasons contained in the decision of 13 July 2007 and in the letter of 16 July 2007 (Lot 2)

The plea alleging manifest errors of assessment (Lot 1)

Qualitative award criterion No 1, ‘Good understanding of the work to be done and appropriateness of the methodology proposed
for the execution of the tasks’

Qualitative award criterion No 2, ‘Quality and completeness of the draft PMQP and in particular of the proposed quality assurance
and control procedures’

Qualitative award criterion No 3, ‘Quality of the proposed project planning and of the proposed allocation of resources in
order to perform all tasks in Scenario 1’

Qualitative award criterion No 4, ‘Quality of the proposed project planning and of the proposed allocation of resources in
order to perform all tasks in Scenario 2’

The plea alleging infringement of the principles of equal treatment and transparency

Arguments of the parties

Findings of the Court

2. The claim for damages

Arguments of the parties

Findings of the Court

Costs

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[\*](#Footref*) Language of the case: English.