Judgment — ECLI:EU:T:2014:848
Date: 2014-10-02
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Greece;Romania

summary of how each detail of its tender was taken into account when the tender was evaluated (see judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraph 21 and the case-law cited). 69 In the present case, it must be noted that, upon adopting the non-award decision, the Commission immediately communicated the name of the successful tenderer and the reasons that the tender submitted by the applicants’ consortium had been rejected. In particular, that letter stated that ‘your offer was not the most economically advantageous of those tenders which were technically compliant’. Moreover, the decision contained a table showing the average and overall scores awarded to the tender submitted by the applicants’ consortium and to that of the consortium led by GDSI. That table indicated, in particular, the scores relating to the award criteria set out in points 4.1 and 4.2 of the instructions to tenderers, namely organisation and methodology, the three key experts and the financial offer. Accordingly, the non-award decision was drafted in accordance with the provisions of Article 100(2) of the Financial Regulation (see, to that effect, judgment of 13 December 2013 in European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑165/12, ECR, EU:T:2013:646, paragraph 69). 70 In that respect, the applicants’ argument that the table communicated to them in the non-award decision did not correspond to that set out in point 3.3.10.5 of the PRAG must be rejected. First, in the present case, no provision required the contracting authority to use that table in order to communicate the results of the evaluation procedure. On the contrary, it follows from point 3.3.10.5 of the PRAG that the table in question is a ‘Specimen Tender Evaluation Summary’. Secondly, the principal difference between the table provided in the present case by the contracting authority and that set out in point 3.3.10.5 of the PRAG is that, in the former, the titles of the lines have been swapped with those of the columns and it contains a greater level of detail than the latter table, for which the Commission cannot be criticised. 71 As regards the alleged indecipherable and erroneous nature of the notes set out in the table in the non-award decision, it must be pointed out that the Evaluation Committee carried out its calculations in accordance with the rules laid down in the PRAG and in the instructions to tenderers. The calculation method was described in point 3.3.10.3 of the PRAG (see paragraph 7 above). Thus, the breakdown of the technical score corresponded to the categories set out in the evaluation grid communicated to the tenderers. The fact that the addition of those various scores gives a figure different from the technical score set out in the table can be explained by the fact that the latter was obtained by dividing the final score of the applicants’ technical offer by the final score of the best technical offer. Accordingly, the applicants had all the information necessary to understand the manner in which their final score was calculated. 72 In any event, the table set out in the non-award decision enabled the applicants to compare directly, as regards the principal criteria evaluated, the scores awarded to their tender with those obtained by the tenderer ranked in first place (see, to that effect, judgment of 10 September 2008 in Evropaïki Dynamiki v Commission, T‑59/05, EU:T:2008:326, paragraph 127), with the result that they could identify the respective strengths and weaknesses of each tender. 73 In addition, the information contained in the letter of 14 March 2012 responds in detail to Euro-Link’s allegations. In that letter, the Commission stated the reasons that it could not take into consideration the version of Ms T.’s CV submitted by Euro-Link and the manner in which the key experts had been evaluated, as regards inter alia, their knowledge of Russian. The level of detail of that information justified the Commission’s decision merely to refer to it in the letter of 2 May 2012. 74 Accordingly, it must be found that the Commission gave sufficient reasons for the non-award decision, since the applicants were, on reading that decision, in a position to ascertain the reasons for it in order to defend their rights, which they did in the present case. 75 As regards the second part, alleging failure to take into account the version of Ms T.’s CV submitted by the applicants, it can be seen from paragraph 51 above that the version of Ms T.’s CV annexed to Euro-Link’s complaint of 29 February 2012 was not relevant for purpose of evaluating the tender submitted by the consortium led by GDSI. Thus, in the absence of other new and relevant information, the Commission was not required to carry out a new examination of the tenders that it had already evaluated. Moreover, it can be seen from the Commission’s letter of 14 March 2012, from its reply and from its statements at the hearing that it met its obligations in verifying the documents required under point 4.1.4 of the instructions to tenderers. Furthermore, the applicants have not put forward any relevant evidence capable of calling into question that verification. In those circumstances, the applicants’ allegation of an irregularity must be rejected. 76 As regards the third part, concerning a challenge to the version of Ms T.’s CV submitted by the consortium led by GDSI, it must be pointed out that the table of key experts lodged at the hearing (see paragraph 32 above) comprised a detailed CV of each of the three key experts proposed by the consortium led by GDSI. The professional experience indicated in each CV specified the period, place, employer, job title and description and referred to the supporting documents for each item of professional experience. In Ms T.’s case, the CV contained 22 prior items of professional experience, with the specific duties and dates. 77 In that respect, it is undisputed, first of all, that Ms T.’s CV submitted by GDSI contained six pages, whereas point 4.1.3(b) of the instructions to tenderers required that the CVs of the key experts be limited to three pages. However, point 4 of those instructions indicates that failure to respect the requirements in point 4.1 of that document constitutes a formal error and may result in the rejection of the tender, thus allowing the contracting authority a discretion in that regard. In accordance with settled case-law, the Commission, like the other institutions, 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, and review by the Court must be 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 judgment of 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 75 and the case-law cited). 78 As regards the alleged infringement of the principle of equal treatment, it must be noted that, according to settled case-law, that principle requires that comparable situations not be treated differently and different situations not be treated alike unless such treatment is objectively justified (see judgment of 10 October 2013 in Manova, C‑336/12, ECR, EU:C:2013:647, paragraph 30 and the case-law cited). In the present case, it must be noted that the different treatment of the version of Ms T.’s CV submitted to the Evaluation Committee by the consortium led by GDSI and that submitted by the applicants is justified by the different situations in which those two documents were submitted. The first, submitted in the context of the evaluation procedure, was intended to be examined by the contracting authority, whereas the second, submitted after the contract had been awarded, did not constitute, subject to the examinations carried out by the Commission, evidence capable of calling into question the probative value of the first. 79 In the present case, the Court considers that, in deciding to take into consideration the version of Ms T.’s CV submitted by the consortium led by GDSI despite its length, the Commission did not commit a manifest error of assessment, or infringe the principle of equal treatment. In those circumstances, the Commission cannot be criticised for accepting the version of Ms T.’s CV submitted by the consortium led by GDSI despite its length. 80 In their observations on those documents, the applicants disputed that Ms T.’s duties with the Organising Committee for the 2004 Olympic Games in Athens and at the University of Thessaly, as indicated in the version of her CV submitted to the Evaluation Committee by the consortium led by GDSI, could constitute relevant professional experience in order to meet the criterion laid down in point 6.1.1 of the terms of reference, according to which the team leader must have at least 10 years professional experience in international tourism development. 81 However, it can be seen from the version of Ms T.’s CV examined by the Evaluation Committee and submitted to the Court that, apart from the periods during which she worked for the Organising Committee of the 2004 Olympic Games in Athens and for the University of Thessaly, Ms T. had approximately 10 years and 9 months of potentially relevant professional experience in the field of international tourism development. That experience is therefore sufficient to justify the Commission’s conclusion that Ms T. had 10 years of professional experience in the field at issue as required in point 6.1.1 of the terms of reference. Accordingly, that argument must be rejected. 82 Lastly, the applicants state, in their observations on the documents lodged at the hearing, that the Commission did not submit, either to them or to the Court, any evidence to substantiate the professional experience indicated in Ms T.’s CV. In that regard, it must be noted that, with the exception of her duties with the Organising Committee of the 2004 Olympic Games in Athens and at the University of Thessaly (see paragraph 81 above), the applicants have not contested any aspect of Ms T.’s professional experience as indicated in the CV lodged at the hearing. Since the evidence called for does not support their arguments, their complaint is unfounded. Moreover, the applicants have not put forward any evidence capable of calling into question the content of the CVs of the three key experts of the consortium led by GDSI and, in particular, the references to the supporting documents proving their professional experience as indicated therein. It follows that the applicants’ argument and, accordingly, the third part of the first plea in law in its entirety, must be rejected. 83 Consequently, the first plea in law must be rejected as unfounded. The second plea in law, alleging infringement of a substantial procedural requirement 84 The applicants claim that the contested decisions are marred by infringement of a substantial procedural requirement, since the Evaluation Committee did not observe either point 12.4 of the instructions to tenderers or point 3.3.10.3 of the PRAG. Mr D., a member of the Evaluation Committee, made contact with Mr X, an attaché to the EU Delegation to Serbia, in order to obtain information on the qualifications of Mr S., the team leader proposed by the applicants’ consortium. Furthermore, the members of the Evaluation Committee changed the tenderers’ ranking order after receiving adverse comments about Mr S. The Commission did not take into account the irregularities raised by the applicants. 85 The Commission disputes the applicants’ arguments. 86 As regards, first of all, the alleged contact between a member of the Evaluation Committee, namely Mr D., and Mr X, it is alleged that Mr D. did not communicate with one of the tenderers but with a third party. In those circumstances, the applicants cannot rely, in the present case, on point 3.3.10.3 of the PRAG, according to which the chairperson of the Evaluation Committee may, with the agreement of the other members of that committee, communicate in writing with tenderers whose submissions require clarification. 87 It must also be noted that Mr X worked for a delegation of the Commission and that he was expressly mentioned as a reference in Mr S.’s CV, with the result that, as the Commission submitted, he could be contacted by the Evaluation Committee on that basis. 88 In that respect, it must be noted that the provisions applicable to the present call for tenders do not preclude the Evaluation Committee from seeking an external opinion, subject to the rules on confidentiality and impartiality. On the contrary, it can be seen from point 3.3.10.3 of the PRAG that the Evaluation Committee could carry out verifications, especially within the bodies of the European Union. That provision provides that, in cases other than those in which the proposed expert has no relevant experience in EU projects, ‘verifications/checks within the [European Union] are more appropriate’. It is that context, therefore, that Mr D. would have contacted Mr X. 89 In addition, the applicants argued, at the hearing, that the verifications carried out should, in any event, have taken place in the presence of all the members of the Evaluation Committee and have been mentioned in the Evaluation Report. In that regard, it must be emphasised that the requirement to act collectively laid down in point 12.4 of the instructions to tenderers concerns only the decisions of the Evaluation Committee and does not apply to all of the evaluation procedure. That assessment is supported by the fact that, under point 3.3.10.3 of the PRAG, each member of the Evaluation Committee evaluates individually the technical aspects of the tenders submitted. More generally, no provision of the PRAG requires that the Evaluation Committee carry out any verification collectively. Likewise, no provision requires that those verifications be recorded in the Evaluation Report. Accordingly, that argument must be rejected. 90 In those circumstances, Mr D.’s telephone call to Mr X, even if were proven, could not constitute an irregularity. 91 Next, as regards the information that Mr X allegedly sent to Mr S., the team leader proposed by the applicants’ consortium, it must be noted that Mr X was, when working for the delegation of the European Union to Serbia, subject to the obligation of confidentiality imposed on the Commission and its staff by Article 339 TFEU. However, Mr X’s acts cannot be attributed to the Evaluation Committee and thus constitute infringement of a substantial procedural requirement by it. 92 As regards, lastly, the negative report on Mr S.’s qualifications that Mr D. is alleged to have given to the Evaluation Committee, it must be pointed out that the applicants acknowledged, at the hearing, that their allegations in that respect were solely based on assumptions. In those circumstances and since those assumptions are not supported by any evidence in the file, the argument that the Commission did not take those allegations into account cannot succeed. 93 The correspondence invoked by the applicants cannot call into question the foregoing considerations. The applicants argue that ‘there is strong evidence’ that the positive appraisal of Mr S.’s qualifications sent by Mr X to Mr D. was not communicated to the other members of the Evaluation Committee and that those members even received unfavourable comments concerning Mr S. at the stage of the evaluation of the tenders. It suffices to note that no such evidence has been placed on the file. 94 In any event, the applicants have not put forward any evidence capable of proving the alleged irregularities which, they claim, adversely affected the evaluation of their tender. Moreover, the applicants’ argument that the alleged unfavourable comments communicated by Mr D. concerning Mr S.’s qualifications had the effect of downgrading the tender submitted by the applicants’ consortium from first to second place in the ranking of tenderers must also be rejected, since it can be seen from the evaluation report that the applicants’ consortium was always ranked in second place. 95 Since the applicants have not put forward any evidence capable of supporting their arguments, there is no need to rule on the admissibility of that evidence. 96 Consequently, the second plea in law must be rejected as unfounded. The third plea in law, alleging infringement of the principle of equal treatment and misuse of power 97 The applicants claim that the contested decisions are the result of an unlawful procedure, the sole purpose of which was to remove them from the first place on the evaluation list. 98 The Commission disputes the applicants’ arguments. 99 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof and Article 44(1)(c) of the Rules of Procedure of the General Court, all applications initiating proceedings are to state the subject-matter of the proceedings and to include a summary of the pleas raised. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and intelligible (judgment of 2 March 2010 in Evropaïki Dynamiki v EMSA, T‑70/05, EU:T:2010:55, paragraph 78, and judgment of 16 September 2013 in Ecoceane v EMSA, T‑518/09, EU:T:2013:476, paragraph 111). 100 In the present case, the applicants merely state that the ‘illegal [evaluation] procedure has exceptionally been applied only in the case of the applicants [and that], [f]rom this point of view, there is discrimination’. That reference to the principle of equal treatment is not specifically developed in any way and does not identify how or at what stage the evaluation procedure was marred by infringement of that principle. 101 In any event, it can be seen from the documents added to the file and the clarifications provided by the Commission at the hearing that the tenders were evaluated under the same conditions and that equal opportunities between the tenderers were ensured. Moreover, the Court has not found any irregularity during the evaluation procedure. 102 Accordingly, the complaint alleging infringement of the principle of equal treatment must be rejected, principally, as inadmissible, and in addition, as unfounded. 103 In accordance with the case-law, the concept of misuse of powers has a precisely defined scope in EU law and refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. In that respect, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (judgment of 25 February 1997 in Kernkraftwerke Lippe-Ems v Commission, T‑149/94 and T‑181/94, ECR, EU:T:1997:21, paragraphs 53 and 149, and judgment of 26 February 2002 in Esedra v Commission, T‑169/00, ECR, EU:T:2002:40, paragraph 198). 104 In the present case, it must be noted that the applicants have not produced any evidence capable of showing that the Commission pursued a purpose other than that of awarding the contract to the tender offering the best value for money in accordance with the applicable provisions and having regard to the award criteria laid down in the call for tenders. In particular, the applicants have failed to show the existence of objective, relevant and consistent evidence, within the meaning of the case-law cited in paragraph 103 above, capable of establishing that the Commission used its powers to eliminate the applicants from the tender procedure at issue. 105 Since the applicants have not put forward any evidence capable of supporting their arguments, there is no need to rule on the admissibility of that evidence. 106 Accordingly, the third plea in law must be rejected as in part inadmissible and, in any event, as unfounded. 107 It follows from the foregoing that the application must be dismissed in its entirety. Costs 108 Under Article 87(2) 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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Euro-Link Consultants Srl and European Profiles AE Meleton kai Symvoulon Epicheiriseon to pay the costs. Frimodt Nielsen Dehousse Collins Delivered in open court in Luxembourg on 2 October 2014. [Signatures] * Language of the case: English.