Judgment — ECLI:EU:T:2011:443
Date: 2011-09-09
Language of the case: English
Court formation: First Chamber
Subject matter: Financial provisions;Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - inadmissible
Origin: Greece

summary of the terms of reference complemented with some extracts from the baseline documentation (without making a reference to it) and the table of deliverables from the technical annex supplied by [the contracting authority] with the tender documentation’. 94 In that regard, Evropaïki Dynamiki maintains that it did not have the necessary time to prepare the CustomSystems Consortium’s tender properly and only limited material was provided by the contracting authority. Evropaïki Dynamiki nevertheless admits that it examined all the information communicated by the contracting authority and conducted detailed research in order to draw up the document entitled ‘The Tenderer’s Approach to Implement the Contract Requirements and Foreseen Activities’. According to Evropaïki Dynamiki, the Evaluation Committee was therefore wrong to consider that that document constitutes merely a summary of the terms of reference. In any event, Evropaïki Dynamiki states that it described all the existing applications, and reviewed or proposed new activities regarding their evolution. That document can in no way be regarded as a summary of the terms of reference. Evropaïki Dynamiki submits that the total volume of the tender was in the order of 4 000 pages and that it had clearly explained in the tender submitted by the CustomSystems Consortium that that tender fully met the requirements in the specifications. Regarding the deliverables, Evropaïki Dynamiki claims that it deliberately included in that tender the same table as that supplied by the contracting authority, which confirms that the tender answered the requirements laid down in the call for tenders. 95 The fourth extract commented upon is the following: ‘2. Detailed description of all potential activities to be performed. This part described in detail all potential activities to be performed based on the work packages as described in the technical annex contained in the tender documents. The Evaluation Committee considered this part of the response as a proof that the tenderer has understood most of the required services, although without any specific approach to implement the expected business evolution.’ 96 In that regard, Evropaïki Dynamiki states that the issues relating to the business evolution were not all included in the document ‘WP descriptions’ on purpose. According to Evropaïki Dynamiki, those issues are described properly and rightfully in the document entitled ‘The Tenderer’s Approach to Implement the Contract Requirements and Foreseen Activities’. Evropaïki Dynamiki claims that it had thus devoted a great deal of effort to analysing the ‘interoperability issues of the CUST DEV framework contract’, and described in detail the ‘evolution of the existing systems’. In its view, the Evaluation Committee thus made a manifest error of assessment. 97 The fifth extract commented upon is the following: ‘The proposal does not contain an indicative timetable for the various projects to be developed in the timeframe of the contract to be awarded.’ 98 In that regard, Evropaïki Dynamiki calls upon the contracting authority to indicate where in the tender specifications tenderers are requested to provide ‘an indicative timetable for the various projects to be developed in the timeframe of the contract to be awarded’. It also states that, if the absence of that table were to be regarded as a ‘missing item’ from the CustomSystems Consortium’s tender, the contracting authority should clearly have requested it to be sent. On the other hand, such a timetable would have a limited value, given the nature of the contract, which is a framework contract and requires interventions by the contractor according to actual needs and joint decisions reached by mutual agreement between the contracting authority and the Member States. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 99 The sixth extract commented upon is the following: ‘Several inconsistencies with the Terms of Reference and the technical Annex were observed in the response to the question for this criterion. The Evaluation Committee considered this as an incorrect assessment of some of the requested activities and as a possible risk to a quality delivery of the required services; Several proposals of the offer refer to “Time and Means” services but this is not a required service for this call for tenders.’ 100 In that regard, Evropaïki Dynamiki states that, although it had asked the contracting authority to explain in detail the roadmap of the ‘CUST-DEV request’ handling process, it did not receive any specific response. Accordingly, it could not imagine how the request handling process would work in order to satisfy the needs of the client. Evropaïki Dynamiki states that, for those purposes, it followed the standard approach used in a number of framework contracts in which Fixed Price and/or Time and Means types of services are requested. According to Evropaïki Dynamiki, the tendering specifications describe two types of remuneration – fixed price and price on demand – although these are described only briefly. Moreover, the Draft Framework Contract provides, along with the tendering documentation, an indication concerning also ‘Time and Means’ type of services, which are described only in five additional lines. This may have caused Evropaïki Dynamiki some confusion, especially in view of the limited amount of time it had to prepare the bid to be tendered by the CustomSystems Consortium. 101 Moreover, according to Evropaïki Dynamiki, the contracting authority’s reply to Question 114 caused additional misunderstanding. Evropaïki Dynamiki’s question was the following: ‘Can you please provide a roadmap addressing the issues of the overall request handling process? More specifically, we would be interested to know for example: How many CVs will be required to be submitted by the CUST‑DEV contractor for each profile requested in a Time and Means specific contract? Which are the actual steps of the process in case of a fixed-price and a time and means work order, and which are the deadlines specified? What will happen in case the CUST-DEV contractor cannot respond to a request, since no cascade mechanism is foreseen?’ The reply was as follows: ‘The intended outcome of this tender procedure is a framework contract. After the signature of the framework contract, actual orders will be placed in the form of “specific contracts” concluded in performance of the framework contract. A model specific contract has been supplied with the tender documents. The use of “time and means/fixed price” contracts is not envisaged. The implications of any failure of the contractor to perform his obligations under the contract are evoked in Articles I.10, II.1.3.i, II.4, II.12.1.(i), and II.13 of the draft framework contract’. Thus, in its response, the contracting authority indicates that neither ‘fixed price’ contracts nor ‘time and means’ contracts will be carried out in the framework of a ‘CUST-DEV framework contract’. The CustomSystems Consortium’s tender accordingly uses the term ‘Time and Means’ in order to refer to the particular nature of the ‘actual orders’ which will be placed by the contracting authority. These orders are not properly defined in the tender specifications. However, they involve the definition or description of a task to be performed and a certain number of person days of certain categories of expert. The consortium’s tender refers clearly to these specific ‘actual orders’, on the assumption that they are a special kind of ‘time and means’ mission. In Evropaïki Dynamiki’s view, the Evaluation Committee did not examine in detail the approach proposed by the tenderer and preferred to penalise the use of an allegedly incorrect term. In its view, the Evaluation Committee thus made a manifest error of assessment. 102 The seventh extract commented upon is the following: ‘The description of work package 1.6 dealing with the development IT and telecom infrastructure is not consistent with other parts of the offer. This part specifies that the infrastructure will be hosted at one physical place (section with title “CUST-DEV contractor’s Data Centre Facilities” starts with “The CUST DEV Contractor will host the ICT infrastructure that will be used during the project implementation in its Data Centre, located in the first floor of its central premises. All the dedicated equipment will be installed in separate racks (provided with the equipment) in the contractor’s computer room ...”) but the reply to the criterion “Fitness of the proposed infrastructure” gives the impression that all premises of the Consortium partners will control part of the proposed development infrastructure.’ 103 In that regard, Evropaïki Dynamiki states that, in WP.1.6, the CustomSystems Consortium described the ‘Set-up, Installation, Operation and Maintenance of the IT and Telecom Infrastructure’. The network topology proposed there is identical with the topology proposed in the document ‘Proposed Infrastructure’. This means, according to Evropaïki Dynamiki, that there is no inconsistency between these two documents. Evropaïki Dynamiki also states that it provided a description of its infrastructure for the remaining partners of the CustomSystems Consortium. It states that it did this because the contracting authority did not provide a clear answer to Question 154 and Evropaïki Dynamiki did not want to allow the Evaluation Committee to consider that its consortium had provided incomplete information. Evropaïki Dynamiki claims that it asked its partners to provide a detailed description of the infrastructure they were planning to use as well. The infrastructure of the other partners in the Consortium is considered to be auxiliary. 104 In support of those arguments, Evropaïki Dynamiki cites the content of Questions 153 to 155, together with the contracting authority’s replies to those questions: ‘Question 153: We understand that all CUST-DEV related infrastructure should be placed in one location (machine room). Please confirm that our understanding is correct. Reply: Your understanding is not correct. Question 154: In case of a joined proposal, shall tenderers describe the additional infrastructure at the premises of each consortium member necessary to perform the tasks or not? Reply: The tenderer should describe the required infrastructure as asked in the questions under 5.4 of the questionnaire. Question 155: To our understanding, and in case of contract award, the CUST DEV contractor will have the chance again to examine and reassess the infrastructure necessary for the CUST-DEV services, in cooperation with the Commission, in order to come up with the final list of necessary infrastructure. Can you please indicate if our understanding is correct? Reply: Your understanding is correct in relation to the purchase of hardware and software. Nevertheless, the proposed prices for WP.l.6 and WP.0.C will not be subject to re-examination or re-assessment.’ 105 Evropaïki Dynamiki also points out that, in its tender, the CustomSystems Consortium presented clearly the core or main infrastructure to be used by the project. The fact that the other consortium partners presented the subsidiary infrastructure that they were going to use locally should not have been regarded as a negative point. Furthermore, according to Evropaïki Dynamiki, the Evaluation Committee failed to meet is obligation to evaluate the infrastructure officially proposed by the CustomSystems Consortium. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 106 The eighth extract commented upon is the following: ‘The tenderer refers in his offer to several items or concepts which are unclear and which the tenderer does not qualify as being relevant for this call for tenders: – several references to the call for tender TAXUD/2004/AO-004;’ 107 In that regard, Evropaïki Dynamiki states that this was a clerical or typographical error which occurred only in document ‘WP.0’. It does not see how this mistake could confuse the Evaluation Committee and why it used this as a reason to award low marks. In its view, the Evaluation Committee had the opportunity to ask for clarification of the tender as it did for other purposes and the matter would have been resolved. Evropaïki Dynamiki maintains that, while the Evaluation Committee is not obliged to seek clarification in every case where a tender is ambiguously drafted, it has a duty to exercise a certain degree of care when considering the content of each tender. In cases where the terms of a tender and the surrounding circumstances known to the Commission indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved, it is contrary to the requirements of good administration for an evaluation committee to reject the tender without exercising its power to seek clarification. Similarly, it is contrary to the principle of equality for an evaluation committee to enjoy an unfettered discretion to seek or not to seek clarification of an individual tender regardless of objective considerations and free from judicial supervision. The principle of equality did not preclude the Evaluation Committee from allowing some tenderers to clarify ambiguities in their tenders. Evropaïki Dynamiki also argues that the principle of proportionality requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued and that, where there is a choice between several appropriate measures, recourse be had to the least onerous. 108 The ninth extract commented upon is the following: ‘Several proposals refer to the concept of a Project Quality Plan whereas this has been changed for the CUST‑DEV call for tenders to a more generic Programme Quality Plan concept’. 109 In that regard, Evropaïki Dynamiki accepts that the CustomSystems Consortium’s tender does use this term. However, since the contracting authority was still in the process of finalising its approach as regards the quality plans, Evropaïki Dynamiki takes the view that this should not cause the Evaluation Committee any confusion. Evropaïki Dynamiki states that it, too, had been ‘caused confusion’ by the wording of Question 31 as well as the reply to that question, both of which are set out below: ‘Question No. 31: Terms of Reference. Section 0.3, page 7/69, last sentence. On [the] one hand, it is stated in the CUST-DEV TOR: “Please take ‘TEMPO Methodology – March 2005’ as the reference and more in particular the classical development lifecycle and the quality management lifecycle covering the new approach for PQP, FQP and CQPs”. On the other hand, it is stated in “TEMPO Methodology – March 2005” (document PQP-FQP-CQP – Quality Management): “Note that the new approach to quality plans (PQP-FQP-CQP) is not yet in line with the TEMPO methodology. TEMPO will be transformed in order to support the new concepts mentioned within this document. At the end of 2005, finalised versions/templates of the new quality plans (PQP-FQP-CQP) will become part of the TEMPO methodology”. Could you please precisely clarify the expected approach to take, e.g. work with the current TEMPO at the beginning, and then migrate to the new TEMPO when it is ready? Reply: The baseline of TEMPO for these tendering specifications is the contents of “TEMPO Methodology – March 2005”. The DG [(the contracting authority)] is currently implementing its new approach according to quality plans as explained in document PQP-FQP-CQP – Quality Management. The folder “Under work for next release” contains examples for a PQP, FQP and CQP in order to allow the tenderer to quote a fixed price for the production of a FQP and CQP.’ 110 Consequently, Evropaïki Dynamiki considers that this remark by the Evaluation Committee should not have the slightest negative impact on the CustomSystems Consortium’s tender. In its view, the Evaluation Committee thus made a manifest error of assessment. 111 The tenth extract commented upon is the following: ‘Several proposals refer to CQP/A (Contract Quality Plan/Addendum) but the concept of an addendum to a quality plan is not specified in the tendering specifications of this call for tenders’. 112 In that regard, Evropaïki Dynamiki states that the contracting authority was in the process of finalising its approach towards the new quality plans and that, accordingly, Evropaïki Dynamiki was entitled to consider that tenderers could use what had been used so far in the ‘TEMPO’ methodology. According to Evropaïki Dynamiki, what is really important is that all the quality aspects be addressed and none missed, no matter whether they are in an addendum or in the main part of a document that is part of the offer. The exact formatting and formulation are a matter for agreement during the performance of the contract. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 113 The eleventh and final extract commented upon is the following: ‘The proposal for work package 0.7 of project management refers to “Specific Agreement” as a contractual instrument but this is not specified in the tendering specifications of this call for tenders.’ 114 In that regard, Evropaïki Dynamiki states that the term ‘Specific Agreement’ has a generic character and has been widely used by the Commission in recent years. The tenderer could refer to a ‘specific contract’, ‘assignment’, ‘specific assignment’, ‘work order’ or any equivalent term. However, Evropaïki Dynamiki maintains that the Evaluation Committee should not have used this terminology issue – which does not influence the content of the tender at all – as an argument to award low marks to the CustomSystems Consortium’s tender. In its view, the Evaluation Committee thus made a manifest error of assessment. – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed organisation and supporting services’ 115 Evropaïki Dynamiki breaks down the Evaluation Committee’s assessments of the CustomSystems Consortium’s tender with regard to the criterion ‘Fitness of the proposed organisation and supporting services’ into 10 extracts in order to simplify the presentation of its comments. 116 The first extract commented upon is the following: ‘The offer obtained for this criterion 110 points from a total of 200 points. The Evaluation Committee concluded that the responses given to the questions of this criterion were sufficient but contained several important shortcomings. Responses have been provided to all questions of this criterion with the exception of Question 5.2.1.4 of the questionnaire asking how the proposed organisation will support the service requirements. The tenderer refers to the CUST-DEV service management approach but the Evaluation Committee concluded that this part of the offer is not relevant as a response to Question 5.2.1.4.’ 117 In that regard, Evropaïki Dynamiki states that Question 49 provides proof of the confusion caused to the potential tenderer by the contracting authority, as to what exactly is meant by the term ‘service requirements’ in the context of this particular question. Such confusion is the result of ‘unclear’ tender specifications. From the reply given to this question, Evropaïki Dynamiki reasonably concluded that its approach in the document ‘CUST-DEV Service Management Approach’ would sufficiently meet the requirements of the tender. In its view, the Evaluation Committee thus made a manifest error of assessment. Lastly, Evropaïki Dynamiki recalls that Question 49 and the answer to that question were as follows: ‘Question No. 49: Annex 2 “Questionnaire”, section 5.2.1.4, mentions the “service requirements as specified in the technical annex”. The Technical Annex on page 50, section 3, mentions “Service Quality Requirements” and on page 43, section 2, mentions “General Requirements”. (a) Are the “service requirements” mentioned in the Questionnaire identical to the “Service Quality Requirements” mentioned in the Technical Annex? (b) If not, are the “service requirements” mentioned in the Questionnaire identical to the “General Requirements” mentioned in the Technical Annex? (c) If not, what is the exact meaning of the term “service requirements” and where in the tender documentation can these be found? Reply: (a) No. (b) No. (c) The answer to Question 5.2.1.4 should explain how the proposed organisation will support all service requirements defined in the Technical Annex which includes work packages (with their deliverables and planning), general requirements and service quality requirements.’ 118 The second extract commented upon is the following: ‘Although already given as a comment to the response of the previous criterion, several parts of the responses to the questions of this criterion refer to “Time and Means” services but this is not a required service for this call for tenders. It was unclear for the evaluation committee how this impacts on the proposed organisation.’ 119 In this regard, Evropaïki Dynamiki refers to some of its comments made in relation to the first criterion for assessment of the CustomSystems Consortium’s tender (see paragraphs 99 and 101 above). 120 The third extract commented upon is the following: ‘The offer proposes an organisation in 2 levels: the CUST-DEV Management Service which can be considered as a front office service and the CUST-DEV Service Teams. The CUST-DEV Service teams are organised per Specific Contract although the tenderer specifies that a team member can belong to more than one team. The Evaluation Committee considered the proposed organisation based on Specific Contracts as a possible risk to a coherent execution of the development and maintenance services: the offer does not explain how the proposed organisation will manage development or maintenance activities for different IT customs systems or applications not necessarily aligned with Specific Contract boundaries.’ 121 In that regard, Evropaïki Dynamiki states that the specifications did not describe the overall process for request handling or order placement. In its view, the tenderer could only assume that the work would be conducted within Specific Contracts, each of which would constitute a particular project. It states that it does not comprehend why this is considered by the Evaluation Committee as a drawback in the tender submitted by the CustomSystems Consortium. It states that it highlighted how the proposed organisation would work in the documents ‘CUST-DEV Organisational Structure’ and ‘CUST-DEV Service Management Approach’. Both documents describe in detail the CustomSystems Consortium’s approach to the activities mentioned above. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 122 The fourth extract commented upon is the following: ‘Although the executive summary of the offer defines the roles and responsibilities of the consortium members in terms of involvement in tasks, the way the various members will interact is only explained in general terms and remains unclear.’ 123 Evropaïki Dynamiki states that this is incorrect. In the document ‘CUST-DEV Organisational Structure’, clear roles and responsibilities are defined within the proposed service team, as are the lines of ‘reporting’. Moreover, Evropaïki Dynamiki states that, in the document entitled ‘CUST-DEV Service Management Approach’, it described how the CustomSystems Consortium intended to handle a number of concurrent requests. One section presents in detail the methodology that would be followed by the contractor in order to manage several specific contracts running in parallel. In Evropaïki Dynamiki’s view, it would not have been correct at that stage of the proposal to define specific work shares or work allocation per CustomSystems Consortium partner, given that the contracting authority had not specified how it intended to place the orders of work ‘under CUST-DEV’. Furthermore, the CustomSystems Consortium decided to offer a homogenous approach and to provide manpower to act as a team rather than staff contributed by separate companies. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 124 The fifth extract commented upon is the following: ‘The proposed communication channels with [the contracting authority] are complex and sometimes contradictory. On the one hand the offer specifies that the main point of contact for all issues is the Contractor’s Project Director but defines at another place that seven roles will act as the main contact points with [the contracting authority]: the Project Director, the Quality Assurance officer, the Financial Manager, the Legal Advisor, the Request Manager and the Project Managers.’ 125 In that regard, Evropaïki Dynamiki maintains that the roles of all profiles of the Tenderers Management Service team are clearly described, and that a tenderer would assume that, in the framework of a contract worth EUR 50 million, more than one person would have to deal directly with the client – for management, administrative, contractual, legal and thematic issues, for example – in addition to the Project Director for particular issues, as is common practice for such projects. The Commission in general not only approves but also imposes such cooperation, which is indeed more efficient and productive. Evropaïki Dynamiki has received credit for this methodological approach in other tenders of similar size and concept. In its view, the Evaluation Committee thus made a manifest error of assessment. 126 The sixth extract commented upon is the following: ‘The service reporting part described in section 3.2.4 of the proposal is unclear and is not developed towards the specific reporting requirements for [the contracting authority].’ 127 In that regard, Evropaïki Dynamiki states that the specific reporting requirements as requested by the contracting authority are described in detail in the document ‘WP-0 – Project Management’. As indicated in the document ‘CUST-DEV Organisational Structure’, the CustomSystems Consortium proposed the creation of a ‘CUST-DEV reporting’ service, in addition to the standard reporting already put in place by the contracting authority, which will present to the contracting authority in detail the status of the CUST-DEV framework contract. According to Evropaïki Dynamiki, the use of the term ‘unclear’ is subjective and does not make it possible for the tenderer or the Court to assess the actual content of the remark. The Evaluation Committee failed to explain what was unclear to it. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 128 The seventh extract commented upon is the following: ‘The offer defined profiles which fit the service requirements although it is unclear why several quality profiles have been defined at the two levels of the proposed organisation. The tenderer does not explain why there is a need to have profiles such as the Quality Assurance Officer/Quality Assurance Team for the CUST-DEV Management Service and others such as the Quality Manager/Quality Controller for the CUST-DEV Service Teams.’ 129 In that regard, Evropaïki Dynamiki states that the profiles of the Quality Assurance Officer and Quality Assurance Team are proposed by the CustomSystems Consortium and are clearly described in the tender (see the document entitled ‘CUST-DEV Organisational Structure’). The profile of the ‘Quality Manager and Quality Controller’ was imposed by the contracting authority. Evropaïki Dynamiki notes that, as the CustomSystems Consortium clearly described in its tender, the role of the Quality Assurance Officer and the Quality Assurance Team was to ensure quality at ‘framework contract level’, while the Quality Manager and Quality Controller imposed by the contracting authority would ensure quality at ‘specific contract level’. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 130 The eighth extract commented upon is the following: ‘The defined profiles have been described as requested except for the profiles belonging to the CUST-DEV Management Service, where the required competencies in terms of education and required experience have not been specified.’ 131 In that regard, Evropaïki Dynamiki maintains that the CVs of the Management Service Team have been provided; that the members of that team possess the necessary qualifications; and that the CustomSystems Consortium also provided detailed descriptions of their role in the project. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 132 The ninth extract commented upon is the following: ‘The mapping between the profiles and the team average profiles (Pqa, Pspec, Pdev) has been provided although some profiles are not relevant for: – the Pspec team average profile: Quality Manager, Project Manager, Application Assembler/Deployer/Administrator, Developer, and for – the Pdev team average profile: Project Manager, Quality Manager, Customs Business Expert.’ 133 In that regard, Evropaïki Dynamiki states that, since there were no restrictions or guidelines regarding the ‘Pspec team’ or the ‘Pdev team’, it does not understand how the proposed team could be considered as an irrelevant item. It calls upon the contracting authority to specify which would be the ‘relevant team’ and how this is justified. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 134 The tenth and last extract commented upon is the following: ‘The offer described the human resource management which fits the service requirements. The requested supporting services (centre of expertise – technical knowledge management – training centre) are described and fit the development and maintenance requirements. It is however unclear how one consortium member will have access to the information of the other members.’ 135 In that regard, Evropaïki Dynamiki states that the CustomSystems Consortium will use Mermig throughout the ‘CUST-DEV framework contract’. Mermig is a ‘collaborative environment’ that would facilitate the organisation of work among the consortium partners as well as among the project stakeholders. It is a platform which constitutes a corner stone for efficient cooperation in the context of an international project, while offering various other facilities that provide ‘access to the information of the other members’. It should also be noted that Mermig offered e-learning or e-collaboration services, document management, content management, workflow management and knowledge management services, and organisation of virtual meetings, and so on. Evropaïki Dynamiki also states that a clear description of Mermig was provided in the ‘Annex’ part of the CustomSystems Consortium’s tender. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed methods’ 136 The applicant breaks down the Evaluation Committee’s assessments of the CustomSystems Consortium’s tender with regard to the criterion ‘Fitness of the proposed methods’ into eight extracts in order to simplify the presentation of its comments. 137 The first extract commented upon is the following: ‘The offer obtained for this criterion 200 points from a total of 300 points. The Evaluation Committee concluded that the responses given to the questions of this criterion fit the service requirements. The take-over of the existing systems and applications has been described as a methodological process. However, the following observations have been made by the Evaluation Committee: – The tenderer integrates the set-up activity for the office infrastructure and the set-up activity for the IT and telecom infrastructure into this process. These activities are not part of the ‘take over’ work package as such, but belong to work packages 0.C, 1.3 and 1.6 as described in the technical annex with the exception of the IT equipment for the NCTS/ECS systems which needs to be taken over from the current contractor.’ 138 In that regard, Evropaïki Dynamiki states that it had a more global view of the take-over process, but that all the aspects of that activity which concern the contracting authority were addressed properly and in detail. In its view, they were understood very well. However, the Evaluation Committee did not base its judgment on Evropaïki Dynamiki’s proposal but on the fact that Evropaïki Dynamiki presented a more global view. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 139 The second extract commented upon is the following: ‘The offer proposes a very generic timetable. No attempt has been made to propose a phased approach for the various systems and applications to be taken over, considering the contractual situation, the architecture of some systems or applications, the different customs business domains or any other criterion which is applicable.’ 140 In that regard, Evropaïki Dynamiki states that its timetable was generic, given the specific nature of the call for tenders. However, that timetable ensured a smooth take-over process and Evropaïki Dynamiki proposed a take-over activity of 18 weeks with a sufficient number of qualified professionals who have conducted similar activities in the past for projects similar in size and complexity. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 141 The third extract commented upon is the following: ‘The question asking to explain the service request management process (Question 5.3.2 of the questionnaire) has been answered by the tenderer with a document of more than 100 pages explaining their approach about service management. The Evaluation Committee considered only the part concerning the service request management as relevant, although that part contained, wrongly, a description of handling ‘Time and Means’ service requests which are not applicable to this call for tenders. The Function Point Analysis method was correctly described.’ 142 In that connection, Evropaïki Dynamiki refers to some of its comments made in respect of the assessment of the CustomSystems Consortium’s tender in relation to the criterion entitled ‘Fitness of the proposed approach to implement the contract requirements and foreseen activities’ (see paragraphs 99 and 101 above). 143 The fourth extract commented upon is the following: ‘The procurement management process was described and fits the service requirements although it did not include the role of the Commission as the owner of all IT equipment.’ 144 In that regard, Evropaïki Dynamiki states that, in the document entitled ‘Proposed Methods’, it was stated that liaison with the project actors – including the contracting authority – was of the highest importance. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 145 The fifth extract commented upon is the following: ‘The description of the configuration and release management processes was generic, demonstrated that the tenderer has understood the service requirements, but gave no indication how these processes will be implemented considering aspects such as a multi-site organisation and the tools to be used.’ 146 In that regard, Evropaïki Dynamiki states that it was its intention to describe in detail how the configuration and release management processes would be implemented within the framework of the ‘CUST-DEV framework contract’, but that it had considered this to be impossible owing to the number of applications or systems under the framework contract and the limited information made available by the contracting authority. Accordingly, it considered that the proposed approach should satisfy the Evaluation Committee. In any event, Evropaïki Dynamiki argues that it definitely met all the requirements laid down by the contracting authority as expressed in the tender specifications. It maintains that the Evaluation Committee also failed to fulfil its obligation to explain which of the tender specifications had not been addressed. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 147 The sixth extract commented upon is the following: ‘The descriptions of management of the call, problem and change processes fit the service requirements but do not include a proposal of tools to be used.’ 148 In that regard, Evropaïki Dynamiki maintains that it mentioned all the necessary tools (CVS and PCVS, for example) in a section of the tender concerning the infrastructure. Those tools ‘implement properly and professionally’ the description provided. The Evaluation Committee apparently failed to find those items in the CustomSystems Consortium’s tender. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 149 The seventh extract commented upon is the following: ‘The scope management process was correctly described and fits the service requirements. The quality control process of document deliverables was described in a global context of quality assurance which was not the subject of the question.’ 150 In that regard, Evropaïki Dynamiki states that this process is of the greatest importance for projects which concern critical applications and require the delivery of technical documentation. An impartial evaluation committee would add credits to a proposal for quality control of document deliverables, instead of criticising it. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 151 The eighth and last extract commented upon is the following: ‘The described process for testing the software releases fits the requirements for local tests but does not include support for performance and stress tests. The hand-over process has been described and fits the requirements.’ 152 In that regard, Evropaïki Dynamiki refers to the comments which it made with regard to the assessment of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed infrastructure’. – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed infrastructure’ 153 Evropaïki Dynamiki breaks down the Evaluation Committee’s assessments of the CustomSystems Consortium’s tender with regard to the criterion entitled ‘Fitness of the proposed infrastructure’ into seven extracts in order to simplify the presentation of its comments. 154 The first extract commented upon is the following: ‘The offer obtained for this criterion 50 points from a total of 100 points. The Evaluation Committee concluded that the responses given to the questions of this criterion were sufficient although important weaknesses have been observed which constitute a possible risk to a coherent execution of the required infrastructure services. The security aspects are described and fit development and maintenance requirements. The description of the proposed infrastructure has been provided for each member of the consortium without any indication about the coherency of this proposal as a whole. Furthermore, the following observations have been made: …’ 155 In that regard, Evropaïki Dynamiki states that it was not clear whether all partners of the CustomSystems Consortium should propose separate ‘IDFs’. In order to satisfy the proposed criteria and avoid a disqualification, Evropaïki Dynamiki states that it believed that it was safer also to present the entire subsidiary infrastructure to be used in each one of the sites of the consortium partners. It does not find this approach ‘confusing’. It also states that, in the tender, it clearly identified the core site and infrastructure of the project on which the evaluators should concentrate their evaluation. Evropaïki Dynamiki also believes that if it had presented the description of the infrastructure of only one site it would have risked the opposite criticism. In its view, the Evaluation Committee thus made a manifest error of assessment. 156 The second extract commented upon is the following: ‘The Infrastructure Description Form for European Dynamics specifies 2 new Sun servers with Sun Solaris v.10 as OS but no software licences are foreseen for the tariff applications (e.g. Weblogic)’. 157 In that regard, Evropaïki Dynamiki states that it reasonably did not refer to extra software licenses where it owned them already. That is international common practice in the field and to do otherwise would be surprising. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 158 The third extract commented upon is the following: ‘The description of the Comarch infrastructure is a complete copy of the Terms of Reference concerning the hardware, whereas the proposed software is only applicable for the tariff applications. Furthermore, the Infrastructure Description Form is not in line with this description’. 159 In that regard, Evropaïki Dynamiki states that that approach is an appropriate way of meeting the requirements of the contracting authority in view of the fact that, if awarded a contract, the successful contractor would re-assess the hardware and software to be purchased for the purposes of the framework contract. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 160 The fourth extract commented upon is the following: ‘The description of the ENG infrastructure is generic and unclear how this can be used for the required services; the Infrastructure Description Form confirms this doubt. Furthermore, it is unclear why the infrastructure for the overall administration and the follow-up of the contract is located at the ENG premises although the offer clearly states that European Dynamics will act as the leader for the consortium’. 161 In that regard, Evropaïki Dynamiki maintains that the proposed infrastructure answered the minimum requirements of the tender. Furthermore, in the document entitled ‘Question 5.4 – Proposed Infrastructure’, the tender describes that infrastructure for the overall administration and follow-up of the contract, even though this is regarded as an internal process and does not relate to ‘CUST-DEV framework contract’ administration. As was clearly described in the tender submitted by the CustomSystems Consortium, this would be done through the ‘EOMS’, a system which is very well described in the tender. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 162 The fifth extract commented upon is the following: ‘The description of the Webmedia infrastructure is generic and it is unclear how this can be used for the required services’. 163 In that regard, Evropaïki Dynamiki notes that the CustomSystems Consortium partners provided separate ‘IDFs’ merely in order to respond to the unclear requirements of the terms of reference and to avoid disqualification. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 164 The sixth extract commented upon is the following: ‘The tenderer proposed [its] Electronic Ordering and Monitoring System [EOMS] as the tool and infrastructure for the overall administration and follow-up of the contract. It is unclear for the Evaluation Committee: – what would be the required effort to adapt the tool to support all required administrative and contractual aspects’. 165 In that regard, Evropaïki Dynamiki maintains that the tender submitted by the CustomSystems Consortium clearly stated that the ‘EOMS’ system was already used by the tenderer in various similar contracts. The system would be provided free of charge for the purposes of the ‘CUST-DEV framework contract’ with all the functionality already available. The CustomSystems Consortium had undertaken to make the system available without any impact – financial or other – on the delivery of the contract activities. Evropaïki Dynamiki states therefore that it fails to understand why this could be regarded as a negative aspect of the tender submitted by the CustomSystems Consortium. In its view, the Evaluation Committee thus made a manifest error of assessment. 166 The seventh and last extract commented upon is the following: ‘– if the tool is to be installed and deployed on Commission infrastructure.’ 167 In that regard, Evropaïki Dynamiki states that it was clearly mentioned, in the ‘EOMS’ description in the offer, that the EOMS had zero licence fees, since its implementation is fully based on Open Source Software. – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Structure, clarity and level of completeness of the proposal’ 168 Evropaïki Dynamiki breaks down the Evaluation Committee’s assessments of the CustomSystems Consortium’s tender with regard to the criterion entitled ‘Structure, Clarity and level of completeness of the proposal’ into three extracts in order to simplify the presentation of its comments. 169 The first extract commented upon is the following: ‘The offer obtained for this criterion 70 points from a total of 100 points. The proposal did follow the proposed structure of the questionnaire although several references to different parts of the offer made it quite difficult to constitute the complete response out of the different elements.’ 170 In that regard, Evropaïki Dynamiki states that, in some cases, the references directed the reader to different sections within the tendering documents, but maintains that this was because of the structure of the award criteria and the questionnaire drafted by the contracting authority, in which the questions overlapped. For example, in Question 5.1, the contracting authority requires tenderers to describe in detail their approach to the implementation of the activities envisaged. Evropaïki Dynamiki submits that this clearly meant that the tenderer should describe in detail activities such as those presented under each Work Package. However, in Question 5.3.1, the contracting authority again requested a description of the ‘Take-Over’ activity, which was part of the activities already described within the tenderer’s response to Question 5.1. The tenderers either had to provide the same text twice or make cross references. Evropaïki Dynamiki states that it fails to understand why the Evaluation Committee considers this to be a negative aspect of the tender submitted by the CustomSystems Consortium. In Evropaïki Dynamiki’s view, the Evaluation Committee thus made a manifest error of assessment. 171 The second extract commented upon is the following: ‘The proposal was unclear in the response to the criteria for the proposed organisation and the proposed infrastructure.’ 172 In that regard, Evropaïki Dynamiki states that the Evaluation Committee has failed to explain in what sense its response was unclear. Evropaïki Dynamiki argues that the tender fully satisfies the terms of reference in the call for tenders. 173 The third and last extract commented upon is the following: ‘The offer was complete but contained several inconsistencies as explained in the preceding paragraphs.’ 174 In that regard, Evropaïki Dynamiki states that the Evaluation Committee failed to fulfil its obligation to explain in detail the alleged inconsistencies to which it refers. According to Evropaïki Dynamiki, it addressed all the alleged inconsistencies and demonstrated that the Evaluation Committee had committed serious and repeated errors of assessment. 175 Lastly, Evropaïki Dynamiki claims that the Evaluation Committee’s manifest errors of assessment must be considered as a whole. It states that it presented its comments analytically in order to depict the extent of the error made in connection with the evaluation of the tender submitted by the CustomSystems Consortium. According to Evropaïki Dynamiki, those errors demonstrate that the Evaluation Committee performed its duties extremely poorly. The evaluation by far exceeds the broad discretion of Community institutions in procurement procedures and constitutes an infringement of the applicable rules. 176 In the reply, Evropaïki Dynamiki reproduces and comments on each of the 39 answers given by the contracting authority. 177 The Commission contends that the arguments put forward by Evropaïki Dynamiki in connection with the present plea essentially replicate the content of the comments submitted to the contracting authority on 4 July 2006 in response to the communication of the evaluation report comparing the tender submitted by the CustomSystems Consortium with that of the successful tenderer. Those comments do not stand up to scrutiny. Evropaïki Dynamiki needs to demonstrate a manifest error of assessment and, in order to do so, it must show that the contracting authority could not reasonably have come to the conclusion that it reached. This in turn entails putting forward arguments setting out precisely why Evropaïki Dynamiki considers that the scores awarded in respect of each award criterion were wrong. As it is, in the present case, Evropaïki Dynamiki has taken issue with virtually every comment made by the Evaluation Committee, complaining in almost every case that any error on its part was attributable to an alleged lack of clarity in the tender documents issued by the contracting authority or asserting in a formulaic way that it was obvious that the Evaluation Committee had made an error of assessment in one place or another. In other words, Evropaïki Dynamiki showed only that it disagreed with the comments of the Evaluation Committee. It did not, however, attempt to show why the scores were manifestly wrong. 178 Moreover – the Commission argues – even if it could be demonstrated that the Evaluation Committee had made a manifest error of assessment in one of its comments or even in one of the points awarded in respect of a particular award criterion, it would still be necessary to put forward convincing arguments to demonstrate that such an error had an impact on the contracting authority’s decision to award the contract to a tenderer other than Evropaïki Dynamiki. This would obviously be easier to demonstrate if the evaluation report showed that the final scores were very close. However, Evropaïki Dynamiki was not even in second place, but in third place, almost five points behind the second placed candidate and more than eleven points behind the winning tenderer. 179 The Commission therefore contends that Evropaïki Dynamiki’s arguments are not plausible and should be dismissed from the outset. However, in order to show that it is perfectly possible to rebut each of Evropaïki Dynamiki’s comments, the Commission attaches as an annex an analysis made by the contracting authority. In the rejoinder, the Commission states that the comments made by Evropaïki Dynamiki have no effect on the fact that the Commission considers that it has amply shown that the Evaluation Committee could reasonably have come to the conclusion that it reached. Findings of the Court 180 As a preliminary point, it should be recalled that the Commission has broad discretion with regard to the factors to be taken into account for the purposes of taking a decision awarding a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons have been complied with, that the facts found are correct and that there has been no manifest error of assessment or misuse of powers (Case 56/77 Agence europeenne d’interims v Commission [1978] ECR 2215, paragraph 20; Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 147; and Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 47). 181 It should also be noted that, under Article 97(2) of the Financial Regulation, contracts may be awarded by ‘the best-value-for-money procedure’. 182 In the present case, the Evaluation Committee found that the tender submitted by the SWI Consortium offered the best value for money, that is to say, the best quality/price ratio. 183 With regard to the quality analysis, the following five criteria were taken into consideration: – fitness of the proposed approach to implement the contract requirements and foreseen activities (the SWI Consortium obtained 250 points out of 300, whilst the CustomSystems Consortium obtained 180 points); – fitness of the proposed organisation and supporting services (the SWI Consortium obtained 175 points out of 200, whilst the CustomSystems Consortium obtained 110 points); – fitness of the proposed methods (the SWI Consortium obtained 250 points out of 300, whilst the CustomSystems Consortium obtained 200 points); – fitness of the proposed infrastructure (the SWI Consortium obtained 75 points out of 100, whilst the CustomSystems Consortium obtained 50 points out of 100); – structure, clarity and level of completeness of the proposal (the SWI Consortium obtained 80 points out of 100, while the CustomSystems Consortium obtained 70 points). 184 In total, as regards the technical aspect, the SWI Consortium’s tender obtained a Total Quality mark of 830 points out of 1000 and a weighted quality indicator of 100 points, whilst the CustomSystems Consortium and a third tender obtained a Total Quality mark of 610 points and a weighted quality indicator of 73.49 points. 185 As regards the financial aspect, the SWI Consortium’s tender obtained a weighted price indicator of 125.68 points, whilst the CustomSystems Consortium’s tender obtained a weighted price indicator of 107.20 points and a third tender obtained a weighted price indicator of 100 points. 186 In view of those results, the Evaluation Committee concluded that the tender offering the best quality/price ratio was that of the SWI Consortium with a ratio between the weighted quality indicator and the weighted price indicator of 79.57, which was above that of the bid of another tenderer, which was 73.49, and that of the CustomSystems Consortium’s tender, which was 68.55. 187 In order to show that that evaluation is flawed by a manifest error of assessment, Evropaïki Dynamiki concentrates on the evaluation of the CustomSystems Consortium’s bid in the light of the five criteria taken into consideration for the quality evaluation, without at any point citing or referring to the Evaluation Committee’s parallel evaluation of the tender submitted by the SWI Consortium, the reasoning underlying which had been communicated to it by the Commission in the copy of the Evaluation Report sent to it on 28 June 2006. Accordingly, Evropaïki Dynamiki does not dispute the Total Quality mark of 830 points obtained by the SWI Consortium’s tender for the technical aspect, but only – and implicitly – the Total Quality mark of 610 points awarded to the tender submitted by the CustomSystems Consortium. 188 Moreover, Evropaïki Dynamiki expressly states in the application that all the arguments which it puts forward to substantiate its claim under the present plea in law that there had been a manifest error of assessment are contained in the letter of 4 July 2006 which it sent to the contracting authority requesting it to ‘reconsider’ the merits of the decision not to select the CustomSystems Consortium’s tender. The comparison between that letter and the content of Evropaïki Dynamiki’s arguments confirms that statement, which is borne out, for example, by the fact that Evropaïki Dynamiki sometimes asks the contracting authority to clarify one or other point of its evaluation, despite the fact that the application is addressed to the Court, and it is not for the Court to respond to such a request. De facto, Evropaïki Dynamiki’s arguments ‘recycle’ the comments made to the contracting authority commenting on or criticising the assessments made by the Evaluation Committee concerning the assessment of the quality of the CustomSystems Consortium’s tender. This applies to all the assessments made in Point 7.1.1.2 of the Evaluation Committee’s report. 189 In response to those arguments, the Commission argues in essence that Evropaïki Dynamiki has failed to demonstrate that there was a manifest error of assessment. 190 It must be held that the technique used by Evropaïki Dynamiki in order to assert that there was a manifest error of assessment in the evaluation of the CustomSystems Consortium’s tender is open to criticism. Besides the fact that the Court cannot ‘reconsider’ the evaluation made by the Evaluation Committee, a fact expressly acknowledged by Evropaïki Dynamiki when it states that its arguments should be taken into consideration only for the purposes of checking whether there was a manifest error of assessment as alleged under its third plea in law, that technique causes significant inconvenience to the Court. Evropaïki Dynamiki presumes that the Court is capable of immediately understanding its comments since it considers the Court to be in some way assimilated to the author of the evaluation. Accordingly, Evropaïki Dynamiki did not consider it necessary to produce in support of its arguments even the elements of the CustomSystems Consortium’s tender to which it refers in those arguments; nor are its references to those elements sufficiently detailed and precise to enable the Court to review their implications. 191 Thus, Evropaïki Dynamiki did not attach the CustomSystems Consortium’s tender as an annex to the application. The only document relating to that tender is an extract, which does not include any technical document, but is rather a general presentation, covering 20 of the approximately 4 000 pages which, according to Evropaïki Dynamiki, made up that tender. 192 To take one example, in its criticism of the seventh extract from the assessment of the CustomSystems Consortium’s tender in the light of the criterion ‘Fitness of the proposed infrastructure’ (see paragraphs 166 and 167 above), in which the Evaluation Committee states that it is unclear whether the CustomSystems Consortium’s Electronic Ordering and Monitoring System (EOMS) is to be installed and deployed on Commission infrastructure, Evropaïki Dynamiki maintains that, in the description of the EOMS given in that consortium’s tender, it is clearly mentioned that ‘the EOMS had zero (0) license fees, since its implementation is fully based on Open Source Software’. No reference is made to the appropriate annex and, as was confirmed at the hearing, the relevant pages of that consortium’s tender do not appear in the documents before the Court. Accordingly, given the content of the application and of the documents produced at this stage, the Court is unable to examine in what way Evropaïki Dynamiki’s statement is capable of demonstrating that a manifest error of assessment has been made in the present case. 193 Similarly, it must be held that almost all of the Evaluation Committee’s assessments regarding the quality of the tender submitted by the CustomSystems Consortium are of a technical nature. Examination of that reasoning requires, in any event, prior access to a great deal of information if its nature and scope are to be understood. It should nevertheless be noted that Evropaïki Dynamiki has not made any effort to enable the Court to ascertain that information. 194 Furthermore, the approach taken by Evropaïki Dynamiki, which is to take issue with certain specific comments made by the Evaluation Committee, is ineffective since Evropaïki Dynamiki fails completely to show how those allegedly erroneous comments could result in a manifest error of assessment of the tender submitted by the CustomSystems Consortium. In that respect, Evropaïki Dynamiki should explain, above all, how the allegedly incorrect comment affects the score given to the CustomSystems Consortium’s tender. Evropaïki Dynamiki has not provided any such explanation. 195 Thus, Evropaïki Dynamiki essentially makes mere assertions and mostly fails to adduce any facts or evidence in substantiation. As a consequence, it has not demonstrated in the present case that the contracting authority made a manifest error of assessment as regards the evaluation of the quality of the tender submitted by the CustomSystems Consortium (see, to that effect, judgment of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 99 and 100). 196 It follows from the foregoing considerations that the third plea must be rejected. 197 In consequence, the application for annulment of the contested decision must be dismissed. Costs 198 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. Since Evropaïki Dynamiki has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 199 In support of its claim that, even if the action is dismissed, the Commission should be ordered to pay the costs in their entirety, the applicant fails to put forward any reason on the basis of which the Court would be justified in departing from the rule laid down in Article 87(2) of the Rules of Procedure. That claim must therefore be rejected. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission. Azizi Cremona Frimodt Nielsen Delivered in open court in Luxembourg on 9 September 2011. [Signatures] Table of contents Legal context Background to the dispute Procedure and forms of order sought Law 1. Admissibility of the application for damages 2. Substance First plea in law: infringement of Article 89(1) and Article 98(1) of the Financial Regulation, and of Article 140(1) and (2) and Article 141(2) of the Implementing Rules First part: the time allowed for the preparation and submission of tenders – Arguments of the parties – Findings of the Court Second part: the time allowed for submitting requests for additional information – Arguments of the parties – Findings of the Court Second plea: breach of the principle of equal treatment Arguments of the parties Findings of the Court Third plea in law: manifest error of assessment in the evaluation of the tender submitted by the CustomSystems Consortium Arguments of the parties – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed approach to implement the contract requirements and foreseen activities’ – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed organisation and supporting services’ – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed methods’ – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Fitness of the proposed infrastructure’ – The Evaluation Committee’s assessments of the tender submitted by the CustomSystems Consortium, in the light of the criterion entitled ‘Structure, clarity and level of completeness of the proposal’ Findings of the Court Costs * Language of the case: English.