Judgment;Abstract — ECLI:EU:T:2019:572
Date: 2019-09-10
Language of the case: French
Court formation: Third Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - successful
Origin: Belgium;Portugal

summary of the evaluation carried out by the contracting authority. It is also established case-law that it must be possible to understand how the contracting authority has arrived at the result at issue (see, to that effect, judgment of 18 July 2016, Argus Security Projects v Commission, T‑266/14, not published, EU:T:2016:415, paragraphs 47 to 51). 65 If there are doubts as to the existence of abnormally low tenders, the contracting authority must therefore set out the reasoning on the basis of which it concluded that, first, on account primarily of their financial characteristics, the successful tenders complied in particular with the national legislation of the country in which the services are to be provided in respect of the remuneration of staff, contributions to the social security scheme and compliance with occupational health and safety standards and, secondly, the proposed price included all the costs arising from the technical aspects of the successful tenders (judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 68). The information provided to the applicants regarding the assessment of the existence of abnormally low offers 66 It is in the light of the considerations set out in paragraphs 35 to 65 above that it is necessary to examine the single plea in law, alleging failure to state adequate reasons concerning the suspicion that the bids submitted by the successful tenderers are abnormally low. 67 During the two months which elapsed between 28 August 2017, the date when the contracting authority informed the applicants that their tender had been unsuccessful at the conclusion of the assessment procedure, and 30 October 2017, the date when the action was brought, the applicants requested, clearly and repeatedly, to be informed of the reasons the contracting authority considered the tenders submitted by the three successful tenderers not to be abnormally low. 68 In the first place, it must be noted that EASA did not reply individually to the applicants’ requests, even though they had put forward concrete reasons for their doubts, referring, inter alia, to the statistics on minimum daily rates published by Payscale (a specialist website providing information on remuneration and salaries) in their letter of 6 September 2017, and to a comparison of their technical scores with those of the successful tenderers in their letter of 25 September 2017. According to the case-law cited in paragraphs 63 to 65 above, the applicants were entitled to receive explanations in the light of the arguments put forward. 69 If EASA considered that the points of comparison used for the applicants’ calculations were invalid, it could have mentioned this (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 51). In any event, EASA was not exempted from its obligation to provide explanations. 70 In the second place, from an examination of the information which EASA actually provided to the applicants, and which EASA sets out in its defence as evidence in support of its claim that it has thereby fulfilled its obligation to state reasons as regards the question of potentially abnormally low prices, it transpires that that information was either irrelevant or incomplete. 71 The information which EASA disclosed to the applicants did not concern the question of abnormally low prices. Accordingly, the replies of 1 September and 15 September 2017 to the applicants’ requests contained the names of the three successful tenderers, an extract from the evaluation report and some additional information relating to the technical evaluation, as well as a general confirmation that no irregularities in the procurement procedure had been found. The details disclosed concerned only technical aspects. Moreover, the contested decision, of which the applicants received a complete copy on 17 October 2017, does not deal with prices. The evaluation report, a copy of which is attached as an annex to the contested decision and which was referred to in that decision, contains a great many redacted passages and does not give any information on prices or the breakdown thereof. That report contains a general remark indicating that the evaluators checked the financial offers for arithmetical errors. The financial scores are also mentioned, but without any explanation, and an Annex E is provided with the text of a ‘model financial offer’. The evaluation report also indicates that the tenderers whose bids required clarification were given the opportunity to answer the requests for clarification. The report refers in that respect to ‘Annex G’ for an overview of the tenderers concerned and a summary of the correspondence exchanged with them. 72 Annex G to the evaluation report as well as several emails, copies of which were sent to the applicants with some of the information redacted, in fact address the issue of abnormally low prices. 73 Accordingly, the applicants received a standard form asking a range of questions, including questions on prices, but the completed forms were not provided. Moreover, Annex G contains remarks to the effect that the three successful tenderers provided the clarifications and proof requested, after an extension of the deadline until 26 July 2017 in the case of Atos and Icarus, while in the case of e-Kare, further requests for clarification were made on that date. 74 However, the copy of the evaluation report sent to the applicants and its annexes remain silent as to the reasons which led the evaluators to consider, in the light of the clarifications requested and received, that the tenders of the four consortia mentioned were not, despite their initial suspicions, abnormally low. 75 EASA also disclosed to the applicants its emails requesting justification of the prices sent to the tenderers in July and August 2017. All specific information was redacted. Those documents reveal the subject matter of the requests for justification, namely the prices for certain profiles, but do not identify the problematic profiles. Moreover, in its emails, when requesting evidence, EASA refers to the admissible categories of evidence and mentions to the tenderers their obligation to demonstrate compliance with social and labour law. In one of its emails to UniSystems, EASA emphasises the obligation for the tenderer to confirm that it will be able to apply the prices offered for the entire duration of the framework contract. 76 Although those documents contain information which is more detailed than a brief statement, the disclosure of that fragmented information is not sufficient to fulfil the obligation to state reasons. First, those documents merely provide some information on the procedure adopted by EASA, without setting out its reasoning as regards the relevant characteristics of the prices. Thus, that information does not disclose the reasoning followed by the institution which adopted the measure in such a way as to enable the Court to exercise its power of review and make the persons concerned aware of the reasons for the measure, thereby enabling them to defend their rights (judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 47). 77 Secondly, it is clear from the case-law cited in paragraph 64 above that, where the contracting authority provides information in the form of figures or tables, it is obliged to provide explanatory comments to show how it reached the conclusion in question and to reflect the evaluation it adopted. The only comment which the applicants received in due time as regards the assessment of the question of potentially abnormally low prices was in the letter of 15 September 2017, according to which the clarifications requested from the various tenderers related to a variety of subjects, and the responses had been assessed and accepted by the evaluation committee. This is not sufficient to satisfy the obligation to state reasons laid down by case-law. 78 EASA claims that the documents disclosed gave the applicants sufficient knowledge of the context. It relies on the judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways (T‑392/15, EU:T:2017:462, paragraph 97), from which it is clear that having knowledge of context enables applicants to challenge the merits of the decision. In the present case, however, the partial information disclosed to applicants, even when viewed as a whole in order to provide an awareness of the context in which the contested decision was adopted, is not sufficient. In the case that gave rise to the abovementioned judgment, the contracting authority took the view that the successful tenders did not contain any circumstantial factors such as to arouse suspicion that they might be abnormally low. In the present case, the initial suspicion of abnormally low prices is not in dispute. The applicants wanted to know why the contracting authority’s initial doubts were dispelled. EASA could have explained, without breaching confidentiality, how the three successful tenderers had convinced it that their tenders were acceptable, as it did later in the procedure before the Ombudsman. 79 Moreover, even with regard to the extracts from certain emails and the evaluation report, in the present case, there was no information in those disclosed documents as regards whether the proposed price included all the costs generated by the technical aspects of the successful tender, even though, in their letter of 25 September 2017, the applicants expressly pointed out that, according to case-law, in order to provide sufficient reasons to the requisite legal standard as regards the question of abnormally low prices, that issue had to be addressed. 80 Thirdly, it should be acknowledged that the information provided by EASA in the procedure before the Ombudsman contains a more detailed line of reasoning, which led the Ombudsman to close the procedure, concluding that the matter was settled. If such an explanation had been provided to the applicants in due time, the current dispute might have been avoided. Nevertheless, the additional information provided by EASA cannot be used to justify the contested decision because it was disclosed on 4 December 2017, whereas the action was brought on 30 October 2017. 81 Fourthly, EASA cannot evade its obligation to state reasons by claiming that documents are confidential. 82 Allowing access to documents is not the only way to disclose the information required to establish that the statement of reasons was adequate. The alleged confidentiality of certain documents does not prevent the contracting authority from rewording, in a more abstract manner, the reasons why it took the decision not to exclude the tenderers concerned from the procurement procedure on account of abnormally low prices. 83 Admittedly, as mentioned by EASA, the obligation to state reasons does not allow the disclosure of confidential information. However, EASA does not argue that it was not possible to provide, if expressly requested, an adequate statement of reasons paraphrasing the confidential details, or a statement of reasons that was more informative and useful than some pages of redacted text. Although certain information cannot be disclosed, it is in principle possible at least to describe the nature of that information or the category to which that information belongs, or even to provide some percentages that would make it possible to compare the prices in question with benchmarks. It has been acknowledged in case-law that a substantial price difference may be explained by the following: the fact that the applicant needed to subcontract 35% of the contract, while the successful tenderer had the staff to perform all the tasks; the fact that the applicant was a new entrant on the market who was not familiar with the services to be provided and had therefore applied a higher margin; the successful tenderer’s focus on prices; and price and quality comparisons with previous similar contracts (see, to that effect, judgment of 8 October 2015, Secolux v Commission, T‑90/14, not published, EU:T:2015:772, paragraphs 64 and 65). 84 Information of that nature would not undermine the confidentiality of trade figures, names of the contracting parties under previous contracts or other sensitive details. Indeed, in the present case, EASA itself disclosed the ‘weighted financial score’ of the first successful tenderer in its letter of 28 August 2017. If, therefore, that score was not part of the data it considered confidential, the question arises as to why the ‘weighted financial score’ of the successful tenderers ranked second and third was not disclosed to the applicants. Both the principle of transparency and the principle of the protection of legitimate business interests of undertakings and fair competition should have been taken into account by EASA. According to case-law, those objectives must be reconciled with each other in order to ensure the consistent application of the Financial Regulation and of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (see, to that effect, judgment of 14 December 2017, Evropaïki Dynamiki v Parliament, T‑136/15, EU:T:2017:915, paragraph 67 and the case-law cited). 85 In the present case, in particular, EASA does not claim that it did not have the opportunity to provide, within a reasonable period, explanations which were at least comparable to those which it ultimately provided, at the request of the Ombudsman, on 4 December 2017, and which it clearly did not consider to be confidential. Until that date, EASA made no effort to provide a statement of reasons which would satisfy the relevant criteria. It focused entirely on the disclosure and confidentiality of the documents, without deeming it necessary to provide any explanations. 86 However, by letter of 4 December 2017, EASA described the evaluation process coherently and in more detail. It explained, inter alia, that its initial doubts concerning certain daily rates had been dispelled by the tenderers’ submission of cost calculation formulas, payment receipts, invoices, contract references for services provided in a similar environment and statements confirming that the applicable laws were complied with. Moreover, in that letter, EASA explained that, in their letter of 6 September 2017, the applicants had not provided sufficiently strong evidence or proof on the basis of which the first three ranked tenders could have been rejected. 87 It follows that, in its response of 4 December 2017, which the Ombudsman regarded as more detailed, better and more comprehensive, EASA provided evidence that it was possible to give a more comprehensive statement of reasons without disclosing protected information or details. The question whether the statement of reasons given on 4 December 2017 would have been sufficient is not the subject of the present proceedings. In order to establish whether there was a procedural error which justifies the annulment of the contested decision, it is sufficient to note that an adequate explanation could have been provided in due time, but was not provided within a reasonable period. 88 In the light of the foregoing, it is necessary to uphold the single plea, alleging a failure to state adequate reasons in the contested decision as regards the reasons which led the contracting authority to conclude that the successful tenders were not abnormally low. Consequently, EASA’s disregard of essential procedural requirements in relation to the contested decision must lead to the annulment of that decision, without it being necessary to consider whether EASA was wrong to conclude that the successful tenders were not abnormally low (see, to that effect, judgment of 2 February 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑74/15, not published, EU:T:2017:55, paragraph 53 and the case-law cited). Costs 89 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EASA has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Annuls the decision of the European Aviation Safety Agency (EASA) of 28 August 2017 rejecting the tender submitted by the TRASYS International EEIG and Axianseu – Digital Solutions SA consortium in call for tenders EASA.2017.HVP.08 relating to a public service contract concerning IT application and infrastructure management in Cologne (Germany), and awarding the contract in accordance with a cascade system to three other tenderers; 2. Orders EASA to pay the costs. Frimodt Nielsen Forrester Perillo Delivered in open court in Luxembourg on 10 September 2019. [Signatures] * Language of the case: French.