Judgment — ECLI:EU:T:2002:40
Date: 2002-02-26
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Statement of reasons;Pleas in law;Communication with tenderers;Extent of judicial review;Scope
Procedure: Action for annulment - unfounded
Origin: Belgium

summary drawn up on the final assessment of tenders shows that there was a significant difference in quality between Manieri, which was placed first, and Esedra, which was second. 151. The Commission adds that the report of the qualitative assessment panel and the annexes thereto show that Esedra received fewer points than Manieri in relation to two of the three qualitative criteria. Findings of the Court 152. As a preliminary point, it must be observed that, with regard to the question under consideration, the Commission has a broad discretion and the Court's review must be limited to verifying that there has been no serious and manifest error (see paragraph 95 above). 153. Before examining the results of the Commission's assessment, mention should be made of the qualitative criteria used by the Commission for assessing the tenders. 154. In the present case, the contract documents stated that the contract was to be awarded to the economically most advantageous tender taking account of: the quality of the tender and of the services proposed, evaluated, in descending order of importance, according to: (a) the quality of the teaching programme (40%) (b) the measures and resources implemented to provide cover for staff absences (30%) (c) the methodology and monitoring devices proposed for monitoring: (30%) - the quality of service and management - the maintenance of staffing levels - the implementation of the teaching programme. 155. In this connection, it is clear from the final table compiled by the qualitative assessment panel that: - Manieri's tender received 27.6 points in respect of the quality of the teaching programme, 21.6 points in respect of the measures and resources implemented to provide cover for staff absences and 21 points in respect of the methodology and devices for monitoring, i.e. a total of 70.2 points, which corresponds to the index 100, which meant that it was the best tender in terms of quality; - Esedra's tender received 21.1 points in respect of the quality of the teaching programme, 13.2 points in respect of the measures and resources implemented to provide cover for staff absences, 22.2 points in respect of the methodology and devices for monitoring, i.e. a total of 56.5 points, which corresponds to the index 80.4, which meant that it was the second best tender in terms of quality. 156. It must be observed that the applicant has not adduced the slightest evidence to show that there was a serious and manifest error of assessment on the Commission's part when appraising the tenders in general. 157. For example, neither the fact that the applicant has obtained the quality certificate ISO 9001:94 and that it is subject to regular and exacting internal and external checks, nor the fact that its tender included different initiatives intended to improve the quality of its services are factors demonstrating that the quality of its tender exceeds that of Manieri's. 158. With regard to the applicant's submission that the members of the group represented by Manieri do not provide or provide hardly at all the services required by the contract in question, it must be observed that, apart from the fact that that argument does not apply in the present case (see paragraphs 117 and 118 above), the quality of the tenders must be assessed on the basis of the tenders themselves and not on that of the experience acquired by the tenderers with the contracting authority in connection with previous contracts or on the basis of the selection criteria (such as the technical standing of candidates) which were checked at the stage of selecting applications and which cannot be taken into account again for the purpose of comparing the tenders (see, to that effect, judgment in Case 31/87 Beentjes [1988] ECR 4635, paragraph 15). 159. So far as concerns the applicant's doubts regarding the competence of the members of the qualitative assessment panel and the absence of on-the-spot inspections of the premises where the tenderers provide their services, it must be observed that the applicant has not adduced any arguments capable of casting doubt on the competence of those persons who have, by virtue of their functions within the Commission, sufficient experience to evaluate tenders from the qualitative point of view, and that such inspections were not required in connection with the procedure for awarding the contract in question. 160. Consequently the applicant's submissions concerning the qualitative evaluation of its tender and that of the successful tenderer in general must be rejected. (b) The qualitative evaluation of certain parameters of the tenders 161. The applicant also submits that the qualitative evaluation of certain parameters of its tender and that of the successful tenderer reveals a manifest error of assessment. 162. It must be observed that, with regard to the question under consideration, the Commission has a broad discretion and the Court's review must be limited to verifying that there has been no serious and manifest error (see paragraph 95 above). 163. The Court finds that the applicant has not adduced the slightest evidence to show that there was a serious and manifest error of assessment on the Commission's part when appraising certain parameters of the tenders. The applicant's submissions concerning each parameter are examined below. (i) Parameters A.2 level of the continuous training plan for teachers and B.1 level of training of replacement staff 164. The applicant observes that it received a poor mark (2 points) and the comment information and not training, confusion between the roles of educational psychologist and instructor, whereas Manieri received an excellent mark (10 points). The applicant contends that the word confusion is mistaken because one of the main functions of an educational psychologist is to instruct adults who work with children and not to be in contact with children, which is the teacher's role. Likewise the finding information and not training is incorrect because Esedra's quality assurance system provides for setting up and complying with different training organisation and identification procedures. Furthermore, the quality of the training provided by the applicant has been praised by a study carried out by two students of the Catholic University of Louvain and a report of the Institut d'Enseignement De Mot-Couvreur on the courses attended by trainee paediatric nurses. 165. According to the applicant, such remarks also apply with regard to parameter B.1 level of training of replacement staff, for which it received 1 point as against 4 for Manieri. 166. The Court points out, as does the Commission, that that institution has sufficient knowledge to assess the quality of the training plan and the role of a team of educational psychologists in the light of the experience acquired in the contractual supervision and management of a group of three day nurseries with more than 600 children. 167. On this point, it should be observed that, although the teaching team may, in addition to its advisory role in the teaching and teacher-training fields, also play a part as instructor, nevertheless, firstly, the team inevitably needs external support and expertise (consultants, specialist organisers, etc.) in the various fields appertaining to early childhood and, secondly, that the training it provides internally or externally must be the subject of a general scheme within the framework of a training plan in correlation with the principles laid down in the teaching programme. 168. However, the Commission can make comparisons between tenders in that field only if the tenderers provide training plans that are as detailed as possible. From this viewpoint, the checks carried out as part of the Esedra quality assurance system, the assessments by the students of the Catholic University of Louvain and the results of training courses at the CPE Clovis during the period of the applicant's management are not factors which reveal that the quality of the applicant's tender is superior to that of Manieri's tender. 169. The applicant's complaint in respect of the evaluation of parameters A.2 and B.1 must therefore be rejected. (ii) Parameter A.4 quality and quantity of teaching aids (toys, equipment, etc.) for children 170. The applicant states that it was awarded the same mark (4 points) as the successful tenderer. However, the applicant points out that its equipment, of which a complete inventory was provided with the tender, was bought by Sapiens. Therefore the applicant is uncertain what equipment was described by Manieri in its tender if Manieri had subsequently to purchase from it the equipment required by the contract documents. 171. The Court observes, as does the Commission, that, since Manieri supplied an inventory of teaching aids in accordance with the requirements of the contract documents, it is immaterial whether Sapiens purchased some of the equipment from the applicant or acquired it from another supplier. 172. Consequently the applicant's complaint in respect of the evaluation of parameter A.4 must be rejected. (iii) Parameter A.7 possibility of expression of the pace suitable for each child ... 173. The applicant questions whether Manieri's teaching programme for children aged two or under exists because the only company in its group which had experience in that field (Garden Bimbo) only accepts children from the age of one year. 174. The Court observes that, as stated in paragraphs 114 to 126 above, the Commission could properly decide that Manieri had the technical standing necessary for its application to be selected and that this question did not have to be considered in connection with the award of the contract in question. 175. Furthermore, it appears from the file that the Commission considered that the teaching programme and activities offered by Manieri were suited to the different age groups covered by the contract in question. 176. The applicant's complaint in respect of the evaluation of parameter A.7 must therefore be rejected. (iv) Parameters C.1.1 quality level of means of supervision and proposed actions and C.1.2 quality of management staff 177. The applicant observes that it has the quality certificate ISO 9001:94 and that it therefore undergoes half-yearly external checks. The applicant also provided a complete organisation chart going beyond the requirements of the contract documents and including, in particular, a quality assurance function coordinated by two persons working full-time. However, that function is not provided for within Sapiens and consequently the latter company did not take on the person responsible for the quality assurance function in Esedra on 31 July 2000. In this connection, the applicant considers that the award of equal points (8 points for parameter C.1.1 and 3 points for parameter C.1.2) to its own tender and to that of Manieri is manifestly erroneous. The applicant adds that, to its knowledge, the qualifications and length of service of the staff employed by Sapiens did not meet the requirements of the contract documents as only 10 of the 20 contracts of employment expiring on 31 July 2000 were renewed by Sapiens. 178. The Court observes that the applicant's remarks concerning Sapiens are not relevant because that company was formed after the tenders were evaluated by the Commission. Similarly, the fact that the applicant has the quality certificate ISO 9001:94 and that it therefore undergoes half-yearly external checks does not show that there was a serious and manifest error of assessment on the Commission's part in awarding the same marks to the applicant and to Manieri. 179. In addition, it must be observed that the Commission's analysis rests on the presentation of specific training plans and not on the results of checks carried out in the past. 180. The applicant's complaint in respect of the evaluation of parameters C.1.1 and C.1.2 must therefore be rejected. 181. It follows from the foregoing that it has not been shown that there was a serious and manifest error of assessment on the Commission's part in concluding that Manieri's tender was qualitatively superior to that of Esedra. 182. Consequently the third plea in law must be dismissed. Fourth plea, breach of the obligation to state reasons Arguments of the parties 183. The applicant contends that the Commission failed in its obligation to state reasons under Article 253 EC, and infringed the principle of transparency which is given the status of a general principle of law by Article 255 EC, and also infringed Article 12 of Directive 92/50 as interpreted by the judgment in the case of Adia Interim v Commission, cited above, because the Commission's letter of 9 June 2000 in reply to the applicant's request for information on the reasons for which the contract in question was not awarded to it does not make it possible to assess the legality of the contested decisions. 184. In this connection, the applicant contends that the statement of reasons is insufficient because it merely discloses the marks awarded to the applicant and to Manieri for each of the award criteria referred to by the contract documents, without giving details of the evaluation method used and of the practical application of that method to the respective tenders. In particular, the applicant states that it does not understand how the different factors used for setting the prices required by the contract documents could have been evaluated globally by the Commission. 185. The applicant adds that it was given no information (making due allowance for the legitimate commercial interests of the successful tenderer) concerning Manieri's tender which would have enabled it to examine the legality of the contested decisions. The applicant is also unaware of the identity of the Italian companies forming the group represented by Manieri and the corporate ties between them and with Sapiens, which is described as the company formed by Manieri to carry out the contract in question. 186. The Commission points out that, with a view to transparency, in its letter of 9 June 2000 it informed the applicant of the characteristics and the advantages of the selected tender and the name of the successful tenderer in accordance with the requirements of Article 12(1) of Directive 92/50. The Commission adds that the applicant, which received the abovementioned reply in good time (by fax of 9 June), did not request any further information. In particular, the Commission notes that the applicant did not ask for the evaluation method used or information concerning the successful tenderer's tender mentioned in the application. Findings of the Court 187. First of all, it is necessary to establish what is the Commission's obligation to state reasons in relation to a tenderer who was not successful in the procedure for the award of the contract in question. 188. Article 12(1) of Directive 92/50 provides as follows: The contracting authority shall, within 15 days of the date on which a written request is received, inform any eliminated candidate or tenderer of the reasons for rejection of his application or his tender, and any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer. However, contracting authorities may decide that certain information on the contract award, referred to in the first subparagraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular undertakings, public or private, or might prejudice fair competition between service providers. 189. Pursuant to the abovementioned provision, the Commission must, within 15 days of receipt of his request, inform an unsuccessful tenderer of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, except for information described as confidential. 190. This manner of proceedings satisfies the purpose of the obligation to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question 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 (see judgments in Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and in Adia Interim v Commission, cited above, paragraph 32). 191. In the present case, the Commission's letter of 9 June 2000 contained the following information: 1. Seven firms were invited to submit a tender, following the stage of selection of applications provided for in the contract notice. 2. Of the seven, four sent in a tender, two withdrew in writing and one did not reply. 3. The successful tenderer is a group of Italian firms represented by Centro Studi Antonio Manieri SRL (Via Faleria 21, I-00183 Rome). 4. Esedra's tender compares as follows with the successful tender with regard to the two criteria for the award of the contract (price and quality) laid down in paragraph 7 of the terms and conditions of the contract documents: ESEDRA SUCCESSFUL TENDER Price index (1) 102.9 100 Quality index (2) 80.4 100 (1) Compared with the lowest tender in accordance with the requirements, on the basis of forecast attendance (minimum index: 100) (2) Compared with the tender which received the best appraisal (maximum index: 100) Esedra's tender is therefore 2.9% more expensive than that of the proposed successful tenderer (which is the lowest of all the tenders meeting the requirements). In addition, the tenders assessment panel considered that the quality of Esedra's offer was inferior (index 80.4) to that of the successful tenderer (which submitted the best tender, with an index of 100). 5. The ratings received by Esedra and by the successful tenderer for each of the three qualitative sub-criteria are as follows: SUB-CRITERIA WEIGHTING ESEDRA SUCCESSFUL TENDERER Teaching programme 40% 21.1/40 27.6/40 Cover for staff absences 30% 13.2/30 21.6/30 Monitoring/method and devices 30% 22.2/30 21/30 TOTAL QUALITY 100% 56.5/100 70.2/100 Relative total/ best tender - 80.4/100 100/100 6. It may be concluded from the foregoing points that the successful tenderer has presented the economically most advantageous tender, [namely] the lowest tender in accordance with the requirements and receiving the best rating with respect to the criterion of quality. ... 192. It must be found that, in the letter of 9 June 2000, the Commission gave a sufficiently detailed explanation of the reasons for which it rejected the applicant's tender by giving the name of the successful tenderer and the relative advantages of the tender selected by comparison with the applicant's tender with respect to the criteria laid down by the contract documents. That statement of reasons also has enabled the applicant to assert its rights and the Court to exercise its power of review. 193. It follows from the foregoing that the plea of breach of the obligation to state reasons must be dismissed. Fifth plea, misuse of powers Arguments of the parties 194. The applicant contends that the Commission misused its powers in failing to award it the contract in question on the ground that alleged paedophilic acts were committed on the premises of the CPE Clovis and that the parents' association and the bodies representing the staff were hostile to the applicant. 195. In addition, the applicant considers that the Commission's decision to close the first invitation to tender issued by the contract notice of 26 May 1999 amounts to a misuse of powers because the Commission had a suitable number of applications (three) for genuine competition in the matter of public contracts. In this connection the applicant cites the judgment in Case C-27/98 Fracasso and Leitschutz [1999] ECR I-5697 and adds that, if Manieri's application to participate in the first invitation to tender was irregular, that was evidence of misuse of powers, like the other irregularities of which it complains in its action. 196. The Commission denies those allegations. It claims that the only reason for which it withdrew the first invitation to tender was to enlarge competition in accordance with Article 27(2) of Directive 92/50 and adds that this succeeded because seven candidates, not three, replied to the second invitation to tender. 197. The Commission also observes that the applicant has not adduced the slightest evidence to show that the first invitation to tender was closed for a reason other than that given above. The Commission contends that the applicant's allegations are invalidated by the fact that Manieri also submitted its application in response to the first invitation to tender and that it was the applicant which did not wish to extend its contract. Findings of the Court 198. The concept of misuse of powers has a precisely defined scope in Community law and refers to cases where an administrative authority exercises its powers for a purpose other than that for which they were conferred. In that respect, it has been consistently held that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (see, for example, the judgment in Joined Cases T-149/94 and T-181/94 Kernkraftwerke Lippe-Ems v Commission [1997] ECR II-161, paragraphs 53 and 149, upheld on appeal by judgment of the Court of Justice in Case C-161/97 P Kernkraftwerke Lippe-Ems v Commission [1999] ECR I-2057). 199. In the present case, the matters raised by the applicant do not show that the Commission pursued any object other than that of awarding the contract to the lowest and economically most advantageous bid, taking account of the criteria laid down in the contract notice and the contract documents. 200. Accordingly, the applicant has not adduced objective, relevant and consistent evidence, within the meaning of the judgment cited above, to show that the Commission exercised its powers to eliminate the applicant from the contract in question by reason of the allegations that paedophilic acts were committed at the CPE Clovis when it was under the applicant's management and by reason of the alleged hostility to the applicant on the part of the parents' association and the bodies representing the staff. 201. Similarly, the fact that only three candidates, of which Esedra and Manieri were two, responded to the first invitation to tender cannot justify the claim that the Commission misused the powers conferred upon it by the Financial Regulation and Directive 92/50 in deciding to close the invitation to tender so as not to award the contract in question to the applicant. 202. In that connection the judgment in the case of Fracasso and Leitschutz, cited above, offers no support for the applicant's argument. In that case, a national court referred to the Court of Justice a question as to whether Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), as amended by Directive 97/52, must be interpreted as meaning that the contracting authority must award the contract to the only candidate deemed suitable for participation. The Court's reply was in the negative, observing in particular that, in order to meet the objective of the development of genuine competition in the field of public works contracts, Article 22(2) of Directive 93/37 (which is in similar terms to Article 27(2) of Directive 92/50) provides that, where the contracting authorities award a contract by restricted procedure, the number of candidates invited to tender must in any event be sufficient to ensure genuine competition (see the judgment in Fracasso and Leitschutz, cited above, paragraph 27). 203. The Commission could therefore properly decide to close the first invitation to tender issued by the contract notice of 26 May 1999 on the ground that it did not have a sufficient number of applications to ensure genuine competition. 204. The plea alleging misuse of powers must therefore be dismissed. 205. Consequently it follows from the foregoing that all the claims for annulment must be dismissed. The claim for damages 206. The applicant seeks damages of EUR 1 001 574.09 on the ground that the Commission acted unlawfully in the procedure for the award of the contract in question. 207. It is settled case-law that, in order for the Community to incur non-contractual liability, a number of conditions must be satisfied concerning the illegality of the conduct alleged against the Community institutions, the fact of the damage and the existence of a causal link between that conduct and the damage complained of (see the judgments in Case C-87/89 Sonito and Others v Commission [1990] ECR I-1981, paragraph 16, and Case T-13/96 TEAM v Commission [1998] ECR II-4073, paragraph 68). 208. The examination of the claims for annulment has shown that, in the course of the procedure for the award of the contract in question, there was no irregularity in the Commission's conduct which might have given rise to its liability vis-à-vis the applicant. 209. Consequently, as the condition relating to unlawful conduct on the part of the institution concerned is not satisfied, the applicant's claim for damages must be dismissed and it is unnecessary to examine whether the other conditions governing liability on the part of the Community are satisfied. The application for the reopening of the oral procedure 210. In its letter of 22 October 2001, the applicant claims that, in connection with another action against the Commission for payment of the price in respect of a day's strike by the staff of Esedra on 22 June 2000, the Commission attempted, in supplementary pleadings lodged at the registry of the Court of First Instance, Brussels, on 9 August 2001, to refute the submission that the strike was a case of force majeure and to show that the strike was not unforeseeable by arguing that on 2 July 1999 the problem of the contractual transfer of the undertaking was raised and the participation [of Esedra] in the procedure for the invitation to tender did not affect the certainty that the [existing] contract would come to an end on 31 July 2000 and the [new] contract would most probably be awarded to another tenderer. According to the applicant, that statement is a clear indication that the Commission did not intend in July 1999 to award the contract to the applicant, that is to say, from the opening of the procedure for the invitation to tender. The applicant therefore submits that it did not receive equal and impartial treatment and that the procedure for the invitation to tender was flawed, and it seeks the reopening of the oral procedure. 211. In its letter of 27 November 2001, the Commission observes that the sentence singled out by the applicant was taken out of its context and that, when put back into the context of the national proceedings and their purpose, it cannot amount to an admission in relation to points of law raised in the proceedings before the Court of First Instance. In any case, and regardless of the perhaps somewhat elliptical terms used by the Commission's lawyer, the statement in question does not, having regard to the already lengthy discussion of this matter and the Commission's arguments to show that the procedure was properly conducted, constitute sufficiently objective, relevant and consistent evidence to justify reopening the oral procedure. 212. In assessing the implications of the sentence in question, it must be observed that it was written in the context of national proceedings the object of which was not to determine whether the procedure for the award of the contract was impartial, but to ascertain whether Esedra's failure to fulfil its contractual obligations could be justified by a strike within the CPE Clovis. It must also be noted that the strike took place on 22 June 2000, that is to say, after the contract was awarded to Manieri, and the matters to which the sentence quoted relate arose in July 1999, namely more than two years before the supplementary pleadings were lodged. Finally, it must be found that it is clear from the foregoing analysis that the procedure for the award of the contract took place without the slightest irregularity, discrimination or misuse of powers. In those circumstances, the statement in question does not contribute relevant evidence such as to cast doubt on the award procedure and justifying the reopening of the oral procedure. 213. The Court therefore finds that there are no grounds for reopening the oral procedure. Costs 214. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must be ordered to pay the costs, including those incurred in the proceedings for interim relief. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the application; 2. Orders the applicant to bear its own costs and pay those of the Commission, including the costs incurred in the proceedings for interim relief. Lindh García-Valdecasas Cooke Delivered in open court in Luxembourg on 26 February 2002. H. Jung J.D. Cooke Registrar President Table of contents Legal context II - 2 Facts giving rise to the dispute II - 3 Procedure and forms of order sought by the parties II - 6 The claims for annulment II - 7 The first plea, alleging breach of the principle of non-discrimination II - 7 1. The allegation that the applicant was not allowed the same time as the other tenderers for submitting its tender II - 7 Arguments of the parties II - 8 Findings of the Court II - 8 2. The allegation that the Commission put questions to the tenderers which went beyond the request for clarification or the correction of obvious clerical errors in the tenders II - 9 Arguments of the parties II - 9 Findings of the Court II - 10 3. The applicant's allegation that the assessment of the tenders was not impartial II - 13 The second plea, alleging that the notice of invitation to tender and the contract documents were disregarded in relation to the assessment of the successful tenderer's financial and technical standing II - 15 1. The successful tenderer's financial standing II - 16 Arguments of the parties II - 16 Findings of the Court II - 17 2. The successful tenderer's technical standing II - 20 Arguments of the parties II - 20 Findings of the Court II - 21 The third plea, alleging that the contract documents were disregarded in relation to the evaluation of prices and the quality of the tenders II - 23 1. Evaluation of the prices offered by the tenderers II - 24 2. Evaluation of the quality of the tenders II - 28 (a) Evaluation of the quality of tenders in general II - 28 Arguments of the parties II - 28 Findings of the Court II - 29 (b) The qualitative evaluation of certain parameters of the tenders II - 31 (i) Parameters A.2 level of the continuous training plan for teachers and B.1 level of training of replacement staff II - 31 (ii) Parameter A.4 quality and quantity of teaching aids (toys, equipment, etc.) for children II - 32 (iii) Parameter A.7 possibility of expression of the pace suitable for each child ... II - 32 (iv) Parameters C.1.1 quality level of means of supervision and proposed actions and C.1.2 quality of management staff II - 33 Fourth plea, breach of the obligation to state reasons II - 34 Arguments of the parties II - 34 Findings of the Court II - 34 Fifth plea, misuse of powers II - 37 Arguments of the parties II - 37 Findings of the Court II - 37 The claim for damages II - 39 The application for the reopening of the oral procedure II - 39 1: Language of the case: French.