Judgment (extracts);Judgment;Abstract — ECLI:EU:T:2019:336
Date: 2019-05-16
Language of the case: French
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Belgium

summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of the notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited). Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 22 and the case-law cited). 96 Lastly, it should be noted that, in principle, compliance with the obligation to state reasons must be assessed on the basis of the information available to the applicant at the time the application was brought (see, to that effect, judgment of 13 December 2013, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑165/12, EU:T:2013:646, paragraph 65 and the case-law cited). 97 In the present case, at the time when it brought its action, on 5 April 2018, the applicant had only the contested decision, dated 26 March 2018, available to it as a document from the contracting authority and containing information on the rejection of its tender and the award of the contract to other tenderers, as well as the names of those tenderers. 98 Therefore, it is true that, in accordance with the case-law recalled in paragraph 96 above, it is in the light of that decision alone that, in principle, it must be assessed whether the Commission complied with its obligation to state reasons. 99 Nevertheless, it is also true that the legislature laid down, with regard to the reasoning for the decision by the contracting authority to reject a tender and award the contract to another tenderer, that such reasoning could be in two stages with, first, a summary of the reasons for the rejection of the tender and then, within 15 days of being expressly requested to do so by the unsuccessful tenderer, a description of the characteristics and relative advantages of the selected tender and the name of the successful tenderer (see paragraph 94 above). 100 In the present case, by its letter of 27 March 2018, the applicant requested that the Commission inform it inter alia of the characteristics and relative advantages of the ten successful tenderers’ tenders. The Commission responded to the applicant’s request during the course of the present proceedings, by letter of 13 April 2018. 101 First, it is important to note that the applicant brought the present action on 5 April 2018, thus before the expiry of the 15-day time limit given to the Commission to respond to the letter of 27 March 2018. 102 Secondly, it is the applicant itself which, on 26 April 2018, produced the letter of 13 April 2018 in the present proceedings, pursuant to Article 85(3) of the Rules of Procedure. At the same time as offering that evidence, the applicant responded to the letter of 13 April 2018 by lodging additional pleadings to its application in which it expands on certain points raised in its application with regard to that letter and raises a new plea in law on the basis of Article 84(1) of the Rules of Procedure. The admissibility of those additional pleadings and that new plea in law has not been disputed by the Commission. Accordingly, those elements have been held to be admissible by the present judgment. 103 In those circumstances, it is in the light of the contested decision, dated 26 March 2018, as supplemented by the letter of 13 April 2018, that it must be examined whether the Commission complied with its obligation to state reasons. 104 In that regard, first of all, in the contested decision, the Commission informed the applicant that its tender relating to Lot No 3 had not been ranked among the top ten in the light of its quality-price ratio. The contested decision also included a comparative table which contained the scores awarded to the applicant, those awarded to the first successful tenderer and those awarded to the final successful tenderer. That table contained inter alia the scores awarded for the six items under the section ‘Overall Organisation and Methodology’, the overall technical score, the weighting of technical and financial scores and the overall score. 105 Such information already enabled the applicant to establish that its tender had been ranked in eleventh position with regard to the financial score, but that that was not the case with regard to the technical score. The applicant was able to infer therefrom that the higher price of its tender, in relation to those of other tenderers, had played a decisive role in the rejection of that tender. Moreover, the disclosure of the scores for each of the items of the technical scoring enabled the applicant, albeit in an abstract way, to understand which elements of its tender had been deemed weaker by the contracting authority. 106 Next, by its letter of 13 April 2018, the Commission sent the applicant, in the first place, a table containing the scores that it had been given and those of each of the ten successful tenderers with regard to the six items in the technical scoring. From reading that table, the applicant was able to ascertain that, in the technical offer, its tender was ranked eleventh with regard to the first item ‘Organisation and methodology’, which was the most important item since it was weighted at 35 points out of 100, and eighth with regard to the second item ‘Management team: profiles proposed’, which was the second most important item since it was weighted at 25 points out of 100. 107 In the second place, that table regarding the technical scoring of tenders was supplemented by a comments section in which the evaluation committee’s position on each tender was briefly summarised. 108 With regard more specifically to the applicant’s tender, the evaluation committee’s comments were as follows: ‘Good overall management methodology – members of the team and members of the consortium have experience in [framework contracts] – theoretical presentation of the quality control methodology – integration of local experts – presence in all countries and regions[, but] insufficient information in order to ensure the availability of experts – little industry expertise in the management team – role, complementarity and added value of members of the consortium not clearly defined.’ 109 Thus, the evaluation committee’s comments, read in conjunction with the details of the scores awarded to the applicant and those obtained by each of the successful tenderers for each of the items in the technical scoring, makes it possible to understand why the Commission found that the applicant’s tender was less satisfactory than those selected. In its additional pleadings dated 26 April 2018, the applicant itself states that the comments ‘insufficient information in order to ensure the availability of experts’ and ‘little industry expertise in the management team’ ‘seem to correspond’ in its view to the items ‘Organisation and methodology’ and ‘Management team: profiles proposed’ respectively. 110 In that regard, it should be noted that none of the successful tenderers was the subject of the same criticisms as those raised by the evaluation committee with regard to the applicant’s tender. 111 First, as noted by the applicant, it is, admittedly, clear from the comments reflecting the evaluation committee’s position that that committee could have criticised some tenderers for ‘insufficient details regarding palliative measures in the event of experts being unavailable’ or even the ‘limited information about in-house expertise’. However, those criticisms do not concern the lack of sufficient information concerning the availability of experts per se. Secondly, with regard to the criticism of ‘little industry expertise in the management team’, raised in respect of the applicant’s tender, the applicant itself states in its application that ‘no comments have been made about the other tenderers on the subject of expertise in the management team’. 112 Thus, contrary to the applicant’s suggestion, the fact that the other tenderers also received comments with regard to the negative aspects in their tenders is not capable of rendering the statement of reasons in the letter of 13 April 2018 inconsistent. 113 The applicant was therefore able to understand, from reading the contested decision and the letter of 13 April 2018, the grounds upon which the technical offers were ranked. In that regard, as noted in paragraph 95 above, the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of the notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of its tender. 114 Lastly, with regard to the financial evaluation of the tenders, the letter of 13 April 2018 contained a table containing the overall financial score, the overall technical score and the final scores obtained by the applicant and each of the ten successful tenders. According to that table, the successful tenderer that was ranked first in respect of the financial evaluation of its tender did not receive a total of 100 points, but rather 99.36. 115 In that regard, as the Commission pointed out in its defence, in accordance with point 15.3 of the Instructions to tenderers, the total financial score was calculated by adding the four weighted scores for each experts’ category, mentioned in paragraph 6 above. Those four weighted scores were determined by dividing the lowest prices by the price of the tender under consideration and multiplying the ratio by 100. Thus, by applying that formula, a tenderer which has submitted the lowest overall offer without having submitted the lowest price for each of the experts’ categories could not be awarded an overall score of 100 out of 100. 116 The applicant was therefore in a position to assume that that was the case here, where, as the Commission stated, the successful tenderer that was ranked first with regard to the financial score offered the lowest prices for experts’ categories I and III and for the administrative assistant, but offered the second lowest prices for experts’ category II. Therefore, since that successful tenderer’s offer was not the least expensive for each of those four categories, it could not obtain a total financial score of 100 out of 100. 117 Since none of the arguments put forward by the applicant in support of its third plea in law is well founded, that plea must be rejected. … On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Dismisses the action; 2. Orders Transtec to pay the costs, including those related to the interlocutory proceedings. Gervasoni Madise da Silva Passos Delivered in open court in Luxembourg on 16 May 2019. [Signatures] * Language of the case: French 1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.