Judgment — ECLI:EU:T:2012:366
Date: 2012-07-12
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Financial provisions;Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Greece

summary of the pleas in law on which the application is based and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. The present complaint, however, which was first put forward by the applicant at the reply stage, does not satisfy those requirements and must, for that reason, be declared inadmissible. The first plea in law, alleging a breach of the obligation to state reasons and of the principle of transparency 54 The applicant asserts that the contested decision and Frontex’s letters of 4 and 12 October 2007 informing it of the two better financial and technical offers of the tenderers for Lot 1 are inadequately reasoned inasmuch as Frontex did not specify the merits and characteristics of the successful tender. It takes the view that, since the evaluation report is the fundamental document of the evaluation procedure, it should have been provided with a copy of that evaluation report, and that the General Court should examine that evaluation report when evaluating the lawfulness of the contested decision. 55 The applicant also criticises Frontex on the ground that it did not give sufficient reasons for the scores received for the award criteria concerning the quality of the program management methodology proposed, the SLA proposal, and the efficiency and effectiveness of the proposed hypothetical IT solution. The applicant alleges, inter alia, that Frontex did not explain why the requirements of the tendering specifications had not been followed correctly and that Frontex failed to give reasons as to why the offer submitted by the successful tender was better than that of the applicant. It submits that the contested decision does not mention the score obtained for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution. In that respect, it states that it was only later that it was informed by Frontex that it had not passed the 60% threshold. 56 Frontex disputes the applicant’s arguments. 57 It must be pointed out that, pursuant to Article 100(2) of the Financial Regulation and Article 149(2) of the implementing rules, Frontex was under a duty to notify the applicant of the grounds on which its offer had been rejected and, the applicant having submitted an admissible tender, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded, within no more than 15 calendar days from the date on which a written request was received. 58 Such a course of action is consistent with the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure 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 power of review (Case T‑19/95 Adia interim v Commission [1996] ECR II-321, paragraph 32, and judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 49). 59 It should also be noted 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 the case-law cited, and judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 49). 60 In the light of those elements, in order to determine whether Frontex fulfilled its obligation to state reasons under the Financial Regulation and the implementing rules, it is necessary to examine not only the contested decision but also the letter of 4 October 2007, sent by Frontex to the applicant in response to the latter’s request for further information on the decision awarding the contract at issue. It is also necessary to take into consideration all of the documents sent to the applicant, at its request, relating to the reasons for the rejection of its tender, namely Frontex’s letter of 12 October 2007 concerning the comparison of the two best technical and financial offers with those of the applicant and the letter of 14 November 2007 by which Frontex confirmed the findings of the evaluation committee with regard to rejection of the applicant’s tender. 61 Following the applicant’s written request of 3 October 2007, Frontex replied by letter of 4 October 2007, enclosing with its letter a first table showing, for each award criterion of Lot 1, the scores obtained by the successful tenderers and those obtained by the applicant, a collection of tables showing the scores and assessments of the evaluation committee with regard to the offers of the successful tenderers and that of the applicant, as well as the evaluation committee’s report. 62 It must be noted that the first table enabled the applicant to make a direct comparison of the scores awarded to it, and those obtained by the successful tenderers, for each award criterion set out in the tendering specifications. The second series of tables set out, for each award criterion, the conclusions relating to the offers of the successful tenderers and to that of the applicant, allowing the latter to compare the evaluation of its offer with those of the successful tenderers in relation to each award criterion. Moreover, the report of the evaluation committee allowed the applicant to know the identity of the other tenderers for the entire public supply contract for the provision of ‘informatics services, hardware, and software licences’. 63 In its letter of 12 October 2007, Frontex, at the applicant’s request, sent to the latter a document indicating the scores obtained by the successful tenderers for their technical offer and their financial offer as well as the scores obtained by the applicant. 64 In addition, at the request of the applicant, Frontex reviewed the assessment of the applicant’s offer carried out by the evaluation committee and, by letter of 14 November 2007, confirmed the conclusions of the latter. As regards the quality of the program management methodology proposed, it confirmed that the applicant’s tender had not proposed a sufficient level of definition of procedures. With regard to the maintenance proposal criterion, the applicant’s tender did not include an immediately adoptable concrete proposal for hardware maintenance. The same conclusion was drawn with regard to the criterion concerning the SLA proposal. Finally, it concluded that the applicant’s tender had not reached the required threshold for the criterion relating to the efficiency and effectiveness of the proposed hypothetical IT solution, since it proposed an ECM (Enterprise Content Management) solution-based platform. 65 Therefore, contrary to what is claimed by the applicant, the evaluations relating to the offer of the successful tenderers and the evaluation of the applicant’s offer were communicated to the latter, with the result that it was thus in a position not only to identify the specific reasons for the rejection of its tender, but also to compare the assessments of its tender with those relating to the offers of the successful tenderers. 66 As regards the report of the evaluation committee, it must be pointed out that Frontex was not required to send this to the applicant, since, under Article 100(2) of the Financial Regulation, the contracting authority is required to notify the unsuccessful tenderer only of those grounds on which his tender was rejected and, following a request in writing from that unsuccessful tenderer whose offer was admissible, of the characteristics and the relative advantages of the successful tender and of the name of the tenderer to whom the contract has been awarded. In any event, it must be held that the report of the evaluation committee was sent to the applicant by letter of 4 October 2007. 67 With regard to the grounds of rejection of the applicant’s offer, the letter of 4 October 2007 referred to the assessments of the evaluation committee in relation to each of the award criteria. It must be pointed out that the comments of the evaluation committee indicate both the strong and weak points of the applicant’s offer in relation to each of the evaluation criteria. 68 Hence, as regards the award criterion concerning the program management methodology proposed, for which the applicant was given a score of five out of ten, the assessment of the evaluation committee noted that the best practices of the Control objectives for information and related technology (CobiT) had been referred to as the general philosophy adapted to program management, ‘+ principles, - rules, - procedures’. As regards the criterion concerning the SLA proposal, the evaluation committee specified, inter alia, that the applicant’s offer applied the best practices of the Information technology infrastructure library (ITIL) to the Frontex environment, but that there were no hardware maintenance services proposed. The assessment given therefore allowed the applicant to understand the reasons for the scores which it received for each award criterion in so far as the strong and weak points of the applicant’s tender in relation to each of those criteria were set out. 69 The absence of specific reasons concerning compliance with the tendering specifications cannot be considered, in the present case, as a failure to give sufficient reasons, inasmuch as a tender may comply with the criteria of the tendering specifications without being evaluated as the best. 70 As regards the question of whether Frontex failed to state sufficient reasons regarding the score obtained for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution, inasmuch as that score does not appear in the contested decision, it must be pointed out that the statement of reasons for a decision rejecting an offer must be communicated to the tenderers concerned, in sufficient time, so that the unsuccessful tenderers have the opportunity efficiently to bring proceedings (see, by analogy, judgment of 17 February 2011 in Case C‑251/09 Commission v Cyprus, not published in the ECR, paragraph 58 and the case‑law cited). 71 In the present case, the score for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution was notified to the applicant on 4 October 2007, that is to say, the day after the letter setting out the reasons for the rejection of the applicant’s tender and, in accordance with Article 149(2) of the implementing rules, within 15 calendar days of reception of the applicant’s request. 72 In any event, any failure to state reasons would not have had any effect whatsoever on the lawfulness of the contested decision in the present case. A procedural irregularity will entail the annulment of a decision in whole or in part only if it is shown that, had it not been for that irregularity, the contested decision might have been different (see, to that effect, Case T‑345/03 Europaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 147 and the case-law cited). In the present case, Frontex specified in the contested decision that the applicant’s offer had been rejected because it had not achieved the minimum number of points in relation to three of the award criterion. 73 It must also be pointed out that the score and the assessments concerning the award criterion in question were notified to the applicant by Frontex’s letter of 4 October 2007. Although that letter does not contain the evaluation method used to award the score of 0.66 out of 5, it must be noted that the evaluation committee determined that the Mermig platform proposed did not provide all the required features, and specified the negative points for both the efficiency and effectiveness of the proposed hypothetical solution. In any event, Frontex was not required to specify its calculation method for the evaluation of one of the award criterion inasmuch as, as has been mentioned in paragraph 57 above, the contracting authority satisfies its obligation, under Article 100(2) of the Financial Regulation and Article 149 of the implementing rules, to provide reasons if it immediately notifies any unsuccessful tenderer of the reasons for its rejection of its tender and if it subsequently provides to tenderers who have submitted an admissible tender, and who make an express request, the characteristics and the relative advantages of the successful tender. 74 It must be noted, in the present case, that the tendering specifications specify, at pages 23 and 27, that this award criterion is scored out of 5 and that the highest note would be given for the best standard of efficiency and the best standard of effectiveness. 75 It follows from the foregoing that, in the contested decision, Frontex provided, to the requisite legal standard, reasons for the rejection of the applicant’s tender and for the relative advantages of the successful tender and satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(2) of the implementing rules. 76 In support of the present plea in law, the applicant also invokes an infringement of the principle of transparency. That principle is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 111). 77 In addition, the principle of transparency which informs the entire public procurement procedure requires that particular care should be taken, in the rejection of a tender, with respect to the statement of reasons (see, to that effect, judgment of 10 September 2008 in Case T‑59/05 Europaïki Dynamiki v Commission, not published in the ECR, paragraphs 134 and 135). 78 However, as indicated in paragraphs 57 to 72 above, the applicant was given sufficient reasons for the rejection of its tender. In any event, it is necessary to point out that the applicant has not raised any specific complaint in the context of this plea in law relating to a breach of the principle of transparency. Therefore, given the provisions of Article 44(1)(c) of the Rules of Procedure, the complaint alleging an infringement of the principle of transparency must be declared inadmissible. 79 Consequently, the first plea in law must be rejected as unfounded. The second plea in law, alleging the application of evaluation criteria not included in the tendering specifications. 80 The applicant claims, in essence, that Frontex used evaluation criteria which were not set out in the tendering specifications of the call for tenders, in breach of Article 45 of the Frontex financial regulation. 81 Frontex disputes the applicant’s arguments. 82 In this respect, it must be noted that, under Article 97 of the Financial Regulation, the award criteria for evaluating the content of the tenders must be defined in advance and set out in the call for tenders. Article 121 of the regulation on the implementing rules of the Frontex financial regulation provides that the tendering specifications must refer to at least the award criteria and their relative weighting or, if necessary, the decreasing order of importance of those criteria if that is not indicated in the call for tenders. 83 It is thus necessary to examine whether or not the elements which the applicant claims were not taken into consideration constitute inseparable parts of the award criteria included in the tendering specifications. The award criterion relating to the maintenance proposal 84 With regard to the criterion relating to the maintenance proposal for Lot 1, the applicant asserts that the evaluation committee penalised it for the lack of a hardware maintenance proposal even though, according to the tendering specifications, the Lot 1 contractor was not required to provide hardware maintenance directly. According to the applicant, maintenance is the responsibility of contractors of other lots, in accordance with the tendering specifications, which provide that the role of the Lot 1 contractor, as far as hardware is concerned, is to manage the timely performance of the maintenance and assistance services related to hardware products and ensure that they are provided by the contractors of the other lots, third parties, and subcontractors. 85 It adds that the roles and responsibilities of the personnel profiles requested in the tender specifications for Lot 1 did not request specific skills and qualifications for hardware maintenance. The only profile for which management qualifications in the field of hardware maintenance services were required was that of the program/project manager, who had to be able to monitor the work of the contractors of other lots. 86 The applicant submits that, in the part of its tender entitled ‘Services to be provided and maintenance proposal’, it provided a detailed presentation of the standards, methodologies and procedures to be applied for the maintenance of Lot 1 information systems, in accordance with the requirements of the tendering specifications. 87 Frontex asserts in reply that the requirement for hardware maintenance services for Lot 1, as well as the desired staff profiles, is expressly mentioned several times in the tendering specifications. 88 As a preliminary point, it must be noted that the third complaint, relating to the conformity of the applicant’s tender with the requirements of the tendering specifications, set out in paragraph 86 above, refers to a manifest error of assessment on the part of Frontex in assessing that tender. It will therefore be dealt with in the context of the third ground, alleging the existence of manifest errors of assessment. 89 First, it must be held that it follows expressly from the paragraph ‘Program management’ of the terms of reference of the tendering specifications that the contractor of Lot 1 must manage, organise, and oversee maintenance and assistance for hardware concerned by the IT services, even if the hardware assistance is delivered directly by suppliers of other lots of the call for tenders. It is also specifically required to carry out maintenance and assistance in relation to the IT solution developed. 90 It is also clear from the section of the tendering specifications relating to the calculation of the award criteria that, if, in their offer, the tenderers proposed basic, standard, and critical hardware maintenance services, as well as the same categories of services in relation to software, they would obtain the maximum score. 91 It follows that the contractor for Lot 1 must be responsible, not only for maintenance and assistance in relation to the IT solution which includes, inter alia, the supply of software services solutions such as intranet and data storage, but also for the maintenance of that software, which is closely linked to the maintenance of the hardware on which it is dependent. In the terms of reference of the tendering specifications, it is requested that the contractor for Lot 1 manage the maintenance and assistance in relation to the hardware of the IT services of the other lots, even if that contractor does not directly carry out the delivery of those services. That cannot, however, invalidate the fact that Frontex expects the contractor for Lot 1 to provide the best maintenance and assistance services in relation to solutions for software which cannot be completely disassociated from the hardware services on which they are dependent. The maintenance and assistance of the IT solution are closely linked to the maintenance of the IT hardware on which that solution depends. 92 Secondly, as regards the staff competent to carry out the hardware maintenance services, it must be held that it follows expressly from the terms of reference of the tendering specifications that the manager of the information system services program of Lot 1 must manage the maintenance and assistance in relation to hardware and software concerned by the services provided. 93 It follows that the requirement to provide assistance and ensure maintenance of the informatics services linked to the software and hardware itself was known to all of the tenderers for Lot 1. It therefore does not constitute a new criterion in relation to those contained in the tendering specifications. 94 Consequently, the complaints set out in paragraphs 80 and 81 above must be rejected as unfounded. The award criterion relating to the SLA proposal 95 The applicant claims, in essence, that it was not expressly specified that the contractor of Lot 1 would be required to provide hardware assistance and maintenance of IT hardware in relation to services concerning the SLA proposal for Lot 1. 96 In that respect, it must be pointed out that the terms of reference of the tendering specifications are applicable, as regards Lot 1, to all of the award criteria for that lot and not solely to the award criterion relating to the maintenance proposal. In the light of paragraphs 84 to 89 above, the complaint set out in paragraph 91 above must therefore be rejected as unfounded. The award criterion relating to the efficiency and effectiveness of the proposed hypothetical IT solution 97 The applicant claims, in essence, that in its offer it presented its own hypothetical IT solution on the basis of the Mermig platform, which constitutes a product of its choice. It claims, in that respect, that the tendering specifications do not require tenderers to carry out a comparison of the most effective IT tools with regard to the ECM/Document management systems (‘DMS’). The tenderers were therefore free to choose the solution which they considered to be the most appropriate for carrying out the hypothetical IT solution in an effective manner. However, the evaluation committee, in the view of the applicant, evaluated the applicant’s tender in the light of a new criterion which was not set out in the tendering specifications, namely that the proposed hypothetical IT solution must cover all the functionalities of all ECM/DMS systems on the market. 98 It also claims that no provision in the tendering specifications states that the score for that evaluation criterion would be calculated by multiplying the score awarded for effectiveness by that awarded for the efficiency of the services proposed. Moreover, no precise definition was given for the terms ‘effectiveness’ and ‘efficiency’. 99 The applicant also takes the view that Frontex’s argument that the evaluation committee rejected the Mermig platform because the tool proposed did not meet the demands of Lot 1, but of different lots, did not feature in the comments of the evaluation committee and is therefore a new criterion introduced to the tendering specifications. 100 In reply, Frontex contends that the tendering specifications were sufficiently clear and precise both with regard to the calculation of the efficiency and effectiveness of the solution to be proposed, and with regard to what was expected of the tenderers concerning the solution to a hypothetical scenario. 101 First, it must be pointed out that the tendering specifications set out a description of the hypothetical scenario that the tenderer for Lot 1 should propose (page 16): ‘1. Frontex transmits and receives information and documents through secure channels to/from Partners (max 50). According to analyses done on the basis of this information influencing the Program of Work, Frontex decides to organize its operational activities as projects that manage money, people and technical equipments by planning, by tracking and by reporting. Frontex should give on-progress status of all activities to internal and external users. Frontex should facilitate the secure exchange of information among its Partners. 2. Frontex Business Processes should be automated and the workflow of documents should allow the approval and the digital signature of the responsible. 3. Frontex should allow secure role-based access to many kinds of information/documents and to all of its knowledge for internal and external authorised users by means of queries, browsing, chats, fora, virtual meetings, as well. 4. Moreover, in the context of operational activities, the Frontex Headquarter should organize secure audio/video conferences by recording and archiving live sessions held among two, three or four places in Europe (places can be vessels on the sea, or lands without phone coverage, normal offices or with wireless/3G/satellite connection). 5. Frontex wishes to implement a “Virtual and Paperless Office”. 6. Frontex has 1 Headquarter, 50 Partners and 400 workplaces divided in two physically isolated networks. 7. Frontex manages classified information’. 102 It was then specified that the activities of Frontex were described on its website and tenderers were requested to describe how the specialised products and services proposed in the context of Lot 1 could contribute to automating or governing efficiently and effectively the scenario or part of it. 103 The terms of reference specify, as regards Lot 1, that services and products for ECM/non-structured information paradigm solutions are excluded. 104 The tendering specifications also set out the total points for the award criterion in question as well as the calculation method which distinguishes between, on the one hand, the efficiency score of the hypothetical solution and, on the other, its effectiveness score. 105 The complaint that Frontex introduced a new criterion, by requiring tenderers to carry out a comparison of the most effective IT tools as regards the ECM/DMS systems and by requiring that the hypothetical IT solution should cover all the functionalities of all the ECM/DMS systems on the market, is unfounded. It must be held that it follows expressly from the terms of reference of the tendering specifications relating to Lot 1 that ‘the enterprise content management products and services (ECM or unstructured information paradigm) are excluded’ from the products and services that the tenderers should propose for Lot 1. The fact that the evaluation committee assessed the applicant’s ECM/DMS system and compared it to other software of the same type on the market cannot be considered as the introduction of a new criterion and cannot call into question the fact that the terms of reference of the tendering specifications specified that all ECM/DMS systems were excluded from the IT tools which could be proposed for Lot 1. 106 As regards the question of whether the evaluation committee introduced new criteria by not specifying the specific method of calculation of the score for the evaluation criterion in question, consisting in the multiplication of efficiency by effectiveness, it must be noted, as was mentioned in paragraph 104 above, that elements had been given as regards the method of calculation of that award criterion. Moreover, the fact that a precise scale of the calculation of the tenders with regard to that award criterion was not given cannot constitute a breach of the tendering specifications consisting in the introduction, by the contracting authority, of a new award criterion. The calculation used to arrive at a well defined score does not constitute an evaluation criterion of the proposed hypothetical IT solution, but rather a consequence of that evaluation. 107 As regards the complaint that the evaluation committee incorrectly assessed the Mermig platform proposed by the applicant to meet the award criterion relating to the efficiency and effectiveness of the hypothetical IT solution, it is necessary to analyse that complaint in the context of the third plea in law, inasmuch as it criticises the assessment of the applicant’s tender carried out by the evaluation committee. 108 It follows from all of the foregoing that the applicant has not shown that Frontex applied criteria which had not been set out in the tendering specifications or in the terms of reference. 109 Subject to the complaints mentioned in paragraphs 84 and 102 above, which will be examined in the context of the analysis of the third plea in law, the second plea in law must therefore be rejected as unfounded. The third plea in law, alleging the existence of manifest errors of assessment 110 The applicant takes the view that Frontex committed manifest errors of assessment in the evaluation of its offer as regards the award criteria concerning the quality of the program management methodology proposed, the SLA proposal, and the efficiency and effectiveness of the proposed hypothetical IT solution. As indicated in paragraph 88 above, the applicant also claims that Frontex made a manifest error of assessment in relation to the criterion concerning the maintenance proposal. 111 It is necessary to examine, first, whether Frontex made a manifest error of assessment in evaluating the applicant’s offer as regards the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution. 112 According to settled case law, the contracting authority 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. 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, to that effect, Case 56/77 Agence européenne d'interims v Commission [1978] ECR I-2215, paragraph 20, and judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89 and the case law cited). 113 The applicant claims, in essence, that the evaluation committee erred in its evaluation of the hypothetical solution, ignored the content of its tender, and collected information from outside sources. 114 As regards the evaluation committee’s remark that the solution proposed by the applicant did not take into consideration the overall program management and lots synergy, the applicant claims that it presented a complete solution covering all of Frontex’s requirements, as specified in the hypothetical scenario of the tendering specifications. Contrary to Frontex’s submission, the applicant contends that its Mermig platform was not included in the products requested in Lot 6, but completely satisfied the requirements set out in Lot 1. Furthermore, the applicant claims that the evaluation committee erred in finding that the ECM/DMS platform which the applicant proposed did not manage all functionalities of the ECM/DMS systems on the market, while failing to state the functionalities which it did not cover, and nevertheless awarding points for that award criterion. 115 Frontex contends that the applicant obtained a score of 0.66 out of 5 for the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution because the Mermig platform which it proposed was an ECM/DMS solution which was excluded from the products and services to be provided for Lot 1. 116 In that respect, it must be pointed out that the evaluation committee assessed the applicant’s tender in respect of the abovementioned technical award criterion as follows: ‘Mermig Platform used (MPL License) … The software from Mermig, that you can download from the pages listed below, is licensed under the Mozilla Public License (MPL) and it is provided “as is”. We would like to stress that all Mermig software is without any warranty or some other kind of obligation. Of course, you may always contact us and ask for explanations or directions. … – the proposed solution for automating the Scenario lies on the top of a proposed Mermig software platform chosen without any comparison with others on the market. Therefore, this platform overlaps other software lying in the highly specialised ECM/DMS market; in fact, that should be efficiently found only after an open competition; – this solution in Lot 1 doesn’t take into consideration the overall program management and lots synergy (i.e. with Lot 6); – the ECM/DMS Platform proposed doesn’t manage all the functionalities of the specialized ECM/DMS systems on the market. – the Information Security is managed without taking into deep consideration the EU Security Classification levels used for information. They are managed in the same network and only by means of different user rights. The scenario includes two physically separated networks; here they haven’t been used for isolating the classified information, as common practices in EU. – the secure A/V Conferencing System is not secured for internal conferencing by distinguishing the different users’ security clearances.’ 117 Frontex also specified, at the time of the examination of the applicant’s offer, by letter of 14 November 2007, that the applicant’s offer had not reached the required threshold because the Mermig platform proposed used an ECM solution (see paragraphs 20 and 21 above). 118 While it is not expressly apparent from the reasons given for the assessment carried out by the evaluation committee that the low score obtained by the applicant for the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution resulted from the fact that the proposed solution was based on an ECM platform, Frontex did, at the time of the examination of the evaluation committee’s assessment, give the applicant that reason, and communicated it to the applicant by letter of 14 November 2007. That letter, in response to the applicant’s request for an examination of the assessment carried out by the evaluation committee, forms part of the body of documents sent to the applicant enabling it to understand the reasons why its tender had not been selected and, inter alia, the reasons why the required threshold of 60% for four of the technical award criteria had not been reached (see paragraph 64 above). 119 In addition, it is common ground that the Mermig platform is an IT tool that provides an ECM/DMS solution, which the applicant has acknowledged on several occasions, both in its letter of 17 October 2007, in which it challenges the assessment carried out by the evaluation committee, and in paragraphs 57, 73 and 74 of its application. 120 It follows expressly from the terms of reference, as indicated in paragraph 105 above, that ‘Services and Products for Enterprise Content Management Solutions (ECM, or the so-called Unstructured Information Paradigm) are excluded’ from Lot 1. 121 It follows that, contrary to what is claimed by the applicant, the proposed hypothetical solution was based on an IT tool which was not in accordance with the technical directions set out in the terms of reference of the tendering specifications. 122 Therefore, the evaluation committee did not commit a manifest error of assessment in awarding a very low score – 0.66 out of 5 – to the applicant’s offer for the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution, inasmuch as the ECM/DMS solution proposed by the applicant was expressly excluded by the terms of reference of the tendering specifications. 123 In addition, it is apparent from the tendering specifications that, as regards the technical award criterion at issue, the tenderers were required, in their offer, to propose IT tools to respond to a hypothetical situation defined by Frontex. The ECM/DMS systems proposed by the applicant to respond to the hypothetical solution in Lot 1 could not be considered pertinent, since they were already included in the informatics systems to be provided in Lot 6, expressly titled ‘ECM Systems’. 124 It follows that Frontex’s evaluation committee did not commit manifest errors of assessment in finding that the hypothetical solution proposed by the applicant, inasmuch as it was based on the Mermig platform – an ECM/DMS system – did not meet the requirements of the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution. 125 It must also be pointed out that, as set out in the call for tenders, only those offers which obtained more than 60% of the points attributed for each of the technical award criteria were considered to be sufficient to continue the procurement procedure in question. 126 Accordingly, it is necessary to reject as inadmissible the complaints raised by the applicant, alleging manifest errors of assessment with regard to the three other award criteria for which the applicant’s offer did not receive the minimum number of points required, namely the quality of the program management methodology proposed, the maintenance proposal, and the SLA proposal. 127 Even if the applicant’s offer had obtained the maximum number of points for those other three award criteria, its offer could not have been selected, since it had not obtained the minimum required for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution. Therefore, even if the manifest errors of assessment allegedly made in the evaluation of the three other award criteria had been found to have a basis in fact, that would not in any way have invalidated the lawfulness of Frontex’s decision to reject the offer submitted by the applicant. 128 Therefore, the third plea in law must also be rejected, as must also the complaints, raised in the context of the second plea in law, referred to in paragraphs 84 and 102 above. 129 In the light of all of the foregoing, the applicant’s application to have the contested decision annulled must be dismissed. 2. The claim for damages 130 Frontex pleads that the claim for damages is inadmissible, arguing that that claim does not include elements that make it possible to identify the unlawful conduct, the nature and the amount of the damage, or the causal link between the unlawful conduct alleged and the damage allegedly suffered. 131 The applicant submits that its claim for damages is admissible. It argues that the contracting authority committed manifest errors in the assessment of its offer and infringed the rules and principles of the legislation applicable to public procurement. Such infringements of the rules of law, it contends, constitute a sufficiently serious breach of a superior rule of law. It claims that its loss consists in the estimated profit if the contract had been awarded to it and in the loss of revenue and costs incurred in responding to the call for tenders. 132 According to settled case-law, in order for the European Union to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; see also, to that effect, Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). 133 If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 83; see also, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 19). 134 It follows from the Court’s findings relating to the application for annulment that the applicant has not adduced proof of unlawful conduct on the part of Frontex. 135 It follows that, as one of the three conditions subject to which the European Union may incur non-contractual liability has not been satisfied, the claim for damages must be rejected as unfounded, without it being necessary to rule on the admissibility of that claim. Costs 136 The applicant requests that, even if it were to dismiss the action, the Court should order Frontex to pay the costs on the basis of the second subparagraph of Article 87(3) of the Rules of Procedure. It claims that it was forced to bring the present action by reason of the incorrect evaluation of its tender, the failure to state reasons and the failure to inform the applicant as to the merits of the successful tenderers. That, it submits, justifies an order requiring Frontex to bear the entirety of the costs relating to the present proceedings. 137 Frontex contests the applicant’s claim. 138 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. However, under the second subparagraph of Article 87(3) of those Rules, the Court may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur. 139 In the present case, it has been established, with regard to the application for annulment of the contested decision, that the three grounds, alleging, respectively, the breach of the obligation to provide reasons and of the principle of transparency, the application of award criteria which were not included in the tendering specifications, and the existence of manifest errors of assessment, were unfounded. Furthermore, the applicant has provided no evidence to justify an order requiring Frontex to pay to it costs considered to be unreasonable or vexatious. 140 In consequence, the applicant having failed in its action, it must be ordered to pay the costs, including those reserved by the order of the General Court of 28 October 2008, in accordance with the form of order sought by Frontex. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), including those reserved by the order of the General Court of 28 October 2008. Vadapalas O’Higgins Popescu Delivered in open court in Luxembourg on 12 July 2012. [Signatures] * Language of the case: English.