JUDGMENT OF THE GENERAL COURT (First Chamber)
9 September 2011(*)
(Public service contracts – Tendering procedure – Provision of services for specification, development, maintenance and support of customs IT services relating to IT projects – Rejection of a tender – Award of the contract to another tenderer – Action for damages – Disregard of the procedural requirements – Inadmissibility – Action for annulment – Time allowed for the receipt of tenders – Time allowed for the submission of requests for information – Equal treatment – Manifest error of assessment)
In Case T‑232/06,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and N. Keramidas, lawyers,
applicant,
v
European Commission, represented by M. Wilderspin and E. Manhaeve, acting as Agents,
defendant,
APPLICATION for (i) annulment of the Commission’s decision of 19 June 2006 not to select the tender submitted by the consortium formed by the applicant and other companies in connection with a call for tenders for specification, development, maintenance and support of customs IT services relating to IT projects ‘CUST-DEV’ and to award the contract to another tenderer and (ii) damages,
THE GENERAL COURT (First Chamber),
composed of J. Azizi, President, E. Cremona and S. Frimodt Nielsen (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 12 January 2011,
gives the following
Judgment
Legal context
1        The awarding of public service contracts by the European Commission is governed by Title V of Part 1 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’) and by Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1; ‘the Implementing Rules’), in the versions applicable at the material time.
2        Under Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.
3        Under Article 140 of the Implementing Rules, in the version applicable in the present case:
‘1.       The time-limits for the receipt of tenders and requests to participate … shall be long enough to allow interested parties a reasonable and appropriate period to prepare and submit their tenders. …
2.       In open procedures, the time-limit for receipt of tenders shall be no less than fifty-two days from the date on which the contract notice is dispatched.
…
4.       Where the contracting authorities, in accordance with Article 118, have sent for publication a pre-information notice containing all the information required in the contract notice no less than fifty-two days and no more than twelve months before the date on which the contract notice is dispatched, the time-limit for the receipt of tenders may generally be reduced to thirty-six days but shall in no circumstances be less than twenty-two days from the date of dispatch of the contract notice, in the case of open procedures ….’
4        Under Article 141(2) of the Implementing Rules, in the version applicable before 5 August 2005:
‘2.       Provided it has been requested in good time, additional information relating to the specifications shall be supplied simultaneously to all economic operators who have requested the specifications or expressed interest in submitting a tender no later than six days before the deadline for the receipt of tenders or, in the case of requests for information received less than eight calendar days before the deadline for receipt of tenders, as soon as possible after receipt of the request.’
5        That provision was amended – by Article 1(25) of Commission Regulation (EC, Euratom) No 261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3), which entered into force on 5 August 2005 – through the addition of the following words: ‘Contracting authorities are not bound to reply to requests for additional information made less than five working days before the deadline for submission of tenders’.
Under Article 2 of Regulation No 261/2005:
‘Public procurement ... procedures launched before entry into force of this Regulation shall continue to be subject to the rules applicable at the time when those procedures were launched’.
Background to the dispute
6        By prior information notice of 6 April 2005, published in the Supplement to the Official Journal of the European Union (OJ 2005 S 67), the Commission announced the publication of a call for tenders relating to a contract for ‘Specification, development, maintenance and support of customs IT systems (CUST DEV)’.
7        By contract notice of 18 June 2005, published in the Supplement to the Official Journal (OJ 2005 S 117), the Commission Directorate-General for Taxation and Customs Union (‘the contracting authority’) issued a call for tenders for the contract at issue.
8        Point III.2.1.2 of the contract notice provided that tenderers were required to demonstrate their economic and financial capacity to perform the contract. One of the conditions laid down in that regard was that the average annual turnover during the previous three years had be at least equal to EUR 15 000 000 and that the average annual turnover concerning the goods or services to be covered by the contract for that period had to be at least EUR 10 000 000. In the case of joint tenders, that condition had to be satisfied by each member (see Point III.2.1.2.3 of the contract notice and the last sentence of Point III.2.1.2 thereof).
9        The contract had to be awarded to the most economically advantageous tender, that is to say, to the tender presenting the best quality-price ratio (see Point IV.2 of the contract notice). The deadline for the receipt of tenders was 26 August 2005 (see Point IV.3.3 of the contract notice).
10      By a corrigendum dated 23 August 2005, published in the Supplement to the Official Journal (OJ 2005 S 161), the contracting authority amended the turnover condition laid down in Point III.2.1.2.3 of the contract notice, stating that that condition had to be satisfied by the group or consortium as a whole and not by each individual member. That amendment was made following a request to that effect from Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’), the applicant in the present case. In order to take account of that change, the deadline for the submission of requests for information was postponed to 2 September 2005 (see Point IV.3.2 of the contract notice) and the deadline for the receipt of tenders was postponed until 30 September 2005 (see Point IV.3.3 of the contract notice).
11      On 21 September 2005, the Commission sent a letter to the 42 companies which had requested the tender documents, appended to which were the replies to the questions which it had received by 2 September of that year.
12      On 30 September 2005, the CustomSystems Consortium, a temporary association of undertakings led by Evropaïki Dynamiki, responded to the invitation to tender in question.
13      By letter of 19 June 2006, the Commission informed Evropaïki Dynamiki that the CustomSystems Consortium’s bid had not been selected because it did not represent the best offer in terms of the quality-price ratio and that the contract had been awarded to another tenderer (‘the contested decision’).
14      By letter of 20 June 2006, Evropaïki Dynamiki asked the Commission to disclose the following information to it: (i) the name of the successful tenderer and, if the successful tenderer had one or more partners or subcontractors, their name(s) and the percentage of the contract to be allocated to the partner(s) or subcontractor(s); (ii) the scores awarded, in respect of each award criterion, to the bid submitted by CustomSystems Consortium and the bid submitted by the successful tenderer; (iii) the content of the Evaluation Committee report; and (iv) an explanation as to how the financial offer made by the CustomSystems Consortium compared with that of the successful tenderer.
15      By letter of 28 June 2006, the Commission gave Evropaïki Dynamiki the name of the successful tenderer and an extract from the Evaluation Committee report comparing the CustomSystems Consortium’s bid with that of the successful tenderer.
16      By letter of 4 July 2006, Evropaïki Dynamiki submitted its observations on that extract from the Evaluation Committee report. It also asked the Commission to reconsider the contested decision and to refrain from entering into a contract with the successful tenderer until it had done so.
17      By letter of 13 July 2006, the Commission informed Evropaïki Dynamiki that it was carefully examining the points raised by the latter in its letter of 4 July 2006 and that it would write to Evropaïki Dynamiki again when that examination was completed.
Procedure and forms of order sought
18      By application lodged at the Court Registry on 28 August 2006, Evropaïki Dynamiki brought the present action.
19      By document lodged on 27 November 2006, the Commission raised a preliminary objection of inadmissibility in accordance with Article 114(1) of the Court’s Rules of Procedure. On 22 January 2007, Evropaïki Dynamiki submitted its observations on that objection. By order of 19 November 2007, the Court (Third Chamber) decided to reserve a decision on the objection of inadmissibility for the final judgment.
20      Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the First Chamber, to which the present case was in consequence assigned.
21      On 11 October 2010, by way of measures of organisation of procedure, the parties were asked to reply to the question whether there had been further requests for clarification of the contract specifications which the contracting authority had not answered.
22      Evropaïki Dynamiki and the Commission replied to that question on 8 November 2010 and 3 November 2010 respectively.
23      On the basis of the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.
24      At the hearing on 12 January 2011, the parties presented oral argument and replied to the questions put by the Court.
25      At the hearing, the Commission abandoned its argument that the action is inadmissible in that it does not describe the defendant correctly or because Evropaïki Dynamiki does not have the requisite locus standi. Formal note was taken of that withdrawal in the minutes of the hearing.
26      Evropaïki Dynamiki claims, in essence, that the Court should:
–        annul the contested decision;
–        order the Commission to pay the ‘damages suffered on account of the tendering procedure in question’;
–        order the Commission to pay the costs even if the action is dismissed.
27      The Commission contends that the Court should:
–        dismiss the action as unfounded as regards the application for annulment;
–        dismiss the action as inadmissible or, in the alternative, as unfounded, as regards the application for damages;
–        order Evropaïki Dynamiki to pay the costs.
Law
1.     Admissibility of the application for damages
28      The Commission contends that the action is inadmissible in so far as the application for damages is concerned, since the oblique reference made by Evropaïki Dynamiki to ‘damages suffered on account of the tendering procedure in question’ gives no indication of the nature of the alleged damage and is unsupported by any plea or argument.
29      Evropaïki Dynamiki claims that the action is admissible in its entirety. It states in its observations on the preliminary objection of inadmissibility that the contested decision is unlawful and unfounded, and that it has caused Evropaïki Dynamiki to sustain actual damage amounting to approximately 40% of the value of the tender submitted by the CustomSystems Consortium. At the hearing, Evropaïki Dynamiki stated that, in fact, the damage amounted to 50% of the value of that bid.
30      It is settled law that an application for compensation for damage caused by an institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers there to be a causal link between the conduct and the damage purportedly suffered, and the nature and extent of that damage (Case T‑38/96 Guérin automobiles v Commission [1997] ECR II‑1223, paragraph 42, and Case T‑19/01 Chiquita Brands and Others v Commission [2005] ECR II‑315, paragraph 65).
31      In the present case, it is not possible to tell from the application the nature of the ‘damages suffered on account of the tendering procedure in question’ in respect of which Evropaïki Dynamiki is seeking compensation under its second head of claim. Nor does the application contain any information showing the reasons for which Evropaïki Dynamiki considers there to be a causal link between that damage and the allegedly unlawful conduct on the part of the Commission; in particular, there is nothing to indicate how the conduct of the Commission could have resulted in a decision other than the decision not to select the tender submitted by the CustomSystems Consortium and to award the contract to another tenderer, thereby adversely affecting Evropaïki Dynamiki.
32      Accordingly, since Evropaïki Dynamiki has not set out in the application, even briefly, the pleas or points of law on which it bases the application for damages, that application must be dismissed as inadmissible under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, without there being any need to consider whether Evropaïki Dynamiki set out such pleas or points of law in its observations on the preliminary objection of inadmissibility.
2.     Substance
33      Evropaïki Dynamiki puts forward three pleas in law in support of its application for annulment of the contested decision: (i) 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; (ii) breach of the principle of equal treatment; and (iii) manifest error of assessment in the evaluation of the tender submitted by the CustomSystems Consortium.
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
34      This plea is in two parts. The first concerns in essence the time allowed for the preparation and submission of tenders. The second concerns in essence the time allowed for the submission of requests for additional information.
First part: the time allowed for the preparation and submission of tenders
–       Arguments of the parties
35      Evropaïki Dynamiki submits that the publication in the Supplement to the Official Journal of the corrigendum of 23 August 2005, by which the contracting authority amended the turnover condition laid down in Point III.2.1.2.3 of the contract notice, which constituted a significant change in the tendering procedure, should have prompted the Commission to ‘re-launch’ the procedure or, at least, to ‘re-start’ the countdown from the date of publication. By not allowing 52 days from that publication for the preparation and submission of tenders, the Commission acted in breach of the principle of equal treatment and infringed Article 140(1) and (2) of the Implementing Rules. Evropaïki Dynamiki also claims that it was deprived of its lawful right to submit a tender within the time-limits set and was unable to prepare a tender before 23 August 2005.
36      The Commission contends that Article 140 of the Implementing Rules contains no instructions as to the steps to be taken if the contracting authority amends the contract notice during the 52-day period following publication of that notice. The Commission nevertheless acknowledges that it must satisfy the fundamental condition laid down in Article 140(1) of the Implementing Rules, that is to say, that the time allowed must be long enough to allow interested parties ‘a reasonable and appropriate period to prepare and submit their tenders’. The Commission infers from this that, if the contracting authority substantially amends the tendering conditions, it must ask itself whether that condition requires it to extend the 52-day time-limit. The questions whether the time-limit should be extended and, if so, by how many days are matters which must be assessed by the contracting authority in the light of the circumstances. The Commission maintains that, in the present case, the relaxing of the turnover conditions made it possible for other persons to tender, and that it was thus appropriate to extend the time-limit by a reasonable period. In that regard, the contracting authority took various factors into account. First and foremost, the essence of the tender was not altered. What is more, given that the prior information notice had been published on 6 April 2005, the Commission could, had it so wished, when launching the call for tenders on 18 June, have allowed a period not exceeding 36 days between the launching of the call for tenders and the deadline for receipt of the tenders. Overall, it seemed fair and reasonable in the circumstances to extend the time-limit for the receipt of tenders by a further 35 days, that is to say, to postpone the deadline from 26 August to 30 September 2005.
–       Findings of the Court
37      According to the contract notice, which was published on 18 June 2005, the date of dispatch of that notice was 8 June 2005 (see Point VI.5) and the deadline for receipt of tenders was originally 26 August 2005 (see Point IV.3). It must therefore be held that the condition laid down in Article 140(2) of the Implementing Rules – that, in open procedures, as in the present case, ‘the time-limit for receipt of tenders shall be no less than 52 days from the date on which the contract notice is dispatched’ – was met.
38      Moreover, it is common ground that, on the date of publication of the contract notice and until the publication of the corrigendum on 23 August 2005, the CustomSystems Consortium did not meet one of the three conditions laid down in Point II.2.1.2 of the contract notice. It should also be pointed out that, as a result of the publication of the corrigendum, the deadline for receipt of tenders was postponed from 26 August to 30 September 2005 (see Point IV.3.3 of the contract notice), which means that the time-limit was extended by 35 days.
39      According to Evropaïki Dynamiki, that extension is inadequate, hence unlawful both under Article 89(1) of the Financial Regulation and under Article 140(1) and (2) of the Implementing Rules. Evropaïki Dynamiki argues that, in the circumstances, the only legitimate option open to the contracting authority was to extend the time-limit for the receipt of tenders by a minimum of 52 days from the publication of the corrigendum of 23 August 2005, in order to enable all tenderers to prepare and submit their bids under the same conditions.
40      It should be noted from the outset that none of the provisions relied upon by Evropaïki Dynamiki required the contracting authority to postpone the deadline for the receipt of tenders by at least 52 days from the publication of the corrigendum of 23 August 2005. The minimum 52-day time-limit provided for in Article 140(2) of the Implementing Rules is the time allowed for the receipt of tenders only in the case where time starts to run from the date on which the contract notice is dispatched. Moreover, it should be pointed out that, contrary to the assertions made by the Commission (see paragraph 36 above), that period could not in the present case be reduced to 36 days, or even to 22 days, under the rules laid down in Article 140(4) of the Implementing Rules: that provision applies only if the prior information notice sent for publication contains ‘all the information required in the contract notice’. As it is, it is clear from the content of that notice that that was manifestly not the position in the present case, as the Commission acknowledged at the hearing.
41      In reality, in the absence of any provision expressly laying down a minimum time-limit for the receipt of tenders, where time starts to run from the publication of a corrigendum concerning the contract notice, that time-limit must be determined in accordance with the scheme of the Financial Regulation and of the Implementing Rules. Those measures seek to maintain equal treatment as between economic operators by enabling every operator to participate effectively in procedures for the award of public contracts. The time allowed must accordingly be long enough to allow interested parties a reasonable and appropriate period to prepare and submit their tenders (see Article 140(1) of the Implementing Rules). A time-limit which is reasonable and appropriate is a matter to be determined in the light of the circumstances of the individual case.
42      In the present case, it is therefore necessary to decide whether the postponement of the deadline for the receipt of tenders by 35 days is sufficient to allow interested parties a reasonable and appropriate period to prepare and submit their tenders. In that regard, Evropaïki Dynamiki claims, in essence, that there was a difference in treatment or discrimination as between the undertakings which, from the time when the contract notice was published, met the conditions relating to their economic and financial capacity to perform the contract, and those which met those conditions only from the publication of the corrigendum of 23 August 2005.
43      It is nevertheless apparent from the circumstances of the present case that the 35‑day postponement of the deadline for the receipt of tenders, granted following publication of the corrigendum of 23 August 2005, was sufficient to allow Evropaïki Dynamiki a reasonable and appropriate period to prepare and submit the tender submitted by the CustomSystems Consortium.
44      The publication in the Supplement to the Official Journal of a prior information notice on 6 April 2005 made it possible for all the interested parties to be aware of the forthcoming launch of a call for tenders relating to a contract for ‘Specification, development, maintenance and support of customs IT systems (CUST DEV)’ and to start preparing for it.
45      So far as Evropaïki Dynamiki is concerned, it was clearly able to start effective preparation of a tender even before the corrigendum to the contract notice was published on 23 August 2005. After the publication of the contract notice on 18 June 2005, Evropaïki Dynamiki had requested and obtained the tender specifications, which were sent to it on 27 June 2005. This is also apparent from the fact that some of the statements made by members of the CustomSystems Consortium concerning the grounds for exclusion are dated 1 August or 8 August 2005, or yet from the fact that, on 1 August 2005, Evropaïki Dynamiki asked the contracting authority to send it the document entitled ‘The Functional Transit System Specifications (FTSS)’ (‘the FTSS document’) and that that document was indeed sent to Evropaïki Dynamiki on 10 August 2005.
46      Evropaïki Dynamiki also states in its reply that, on 21 July 2005 – that is to say, more than a month after the publication of the contract notice – it had asked the contracting authority whether there was an error regarding the turnover conditions laid down in the contract notice and that it had received an answer to that question a short time later, on 3 August 2005. It follows that Evropaïki Dynamiki knew for certain ‘in the middle of the summer holidays’ that it could not submit a tender that would meet the conditions laid down in the contract notice.
47      Moreover, from 23 August 2005, the date of publication of the corrigendum by which the contracting authority amended the turnover condition laid down in Point III.2.1.3 of the contract notice, Evropaïki Dynamiki was in a position to resume the work on which it had already embarked. It emerges from the documents before the Court that Evropaïki Dynamiki was able to put further questions to the contracting authority and managed to submit its tender documents within the time allowed. Moreover, Evropaïki Dynamiki does not adduce any specific evidence to show that it was not in a position to prepare and submit a tender within the 35-day time-limit allowed by the contracting authority following publication of the corrigendum. In that regard, it should be noted that the contract notice published on 18 June 2005 was not significantly amended by the corrigendum. In fact, the amendment made by the contracting authority to that contract notice, at the request of Evropaïki Dynamiki, does not concern the actual object of the contract at issue, the most technically difficult part of the contract to prepare, that is to say, it does not concern the submission of a tender relating to specification, development, maintenance and support of customs IT services relating to IT projects ‘CUST-DEV’.
48      Accordingly, Evropaïki Dynamiki has not established to the requisite legal standard the reasons why, in these circumstances, postponement of the deadline for the receipt of tenders by only 35 days from the publication of the corrigendum of 23 August 2005 could have entailed infringement of Article 89(1) of the Financial Regulation or infringement of Article 140(1) of the Implementing Rules. In the light of the circumstances of the present case, that time-limit must therefore be held to be reasonable and appropriate for the purposes of allowing Evropaïki Dynamiki to prepare and submit a tender.
49      For the sake of demonstrating the argument, it should also be noted that, under Article 140(4) of the Implementing Rules, where a pre-information notice containing all the information required in the contract notice is sent for publication no later than 52 days before the date on which the contract notice is dispatched, the time-limit for the receipt of tenders may generally be reduced to 36 days, or to a minimum of 22 days, from the date of dispatch of the contract notice. The length of time between publication of the prior information notice and publication of the contract notice may therefore be 88 days, or a minimum of 74 days, and still be a reasonable period. Accordingly, applying the same logic to the facts in the present case, Evropaïki Dynamiki had access from 18 June 2005 – the date on which the contract notice was published – to ‘all the information required in the contract notice’, and at the very least to all the information on the substance of the contract at issue. It must therefore be held that nearly three and a half months elapsed between that date and 30 September 2005, the deadline for receipt of tenders.
50      The first part of the first plea must therefore be rejected.
Second part: the time allowed for submitting requests for additional information
–       Arguments of the parties
51      Evropaïki Dynamiki maintains that the Commission should have postponed the deadline for the receipt of tenders so that the interested parties could request additional information up to five working days before that deadline. According to Evropaïki Dynamiki, it is apparent from the last sentence of Article 141(2) of the Implementing Rules, under which ‘[c]ontracting authorities are not bound to reply to requests for additional information made less than five working days before the deadline for submission of tenders’, that potential tenderers have the right to submit such requests and to require replies, provided that those requests are made no later than five days before that deadline. In the present case, the new tenderers, which had not been allowed to participate in the procedure until after publication of the corrigendum of 23 August 2005, should have been permitted to submit questions up until 25 September 2005, not 2 September 2005. The right to request clarifications regarding the tendering documents forms part of the very essence of a transparent public procurement procedure designed to ensure genuine competition and equal treatment of participants. Evropaïki Dynamiki also states that, following publication of the corrigendum of 23 August 2005, it was in a position to send 24 questions within two days. It managed to prepare 64 relevant and constructive questions within the time available to it. Nevertheless the Commission refused to answer the ‘above questions’, an act which constituted discrimination since, in the absence of clarifications, the CustomSystems Consortium needed to take a ‘wild guess’ in relation to several points of the tender.
52      The Commission notes that the last sentence of Article 141(2) of the Implementing Rules was added by Regulation No 1261/2005. It contends that that provision was therefore not applicable on 18 June 2005, the date on which the call for tenders was published. The Commission also contends that, while it is under a duty to act fairly, reasonably and impartially towards potential tenderers, it is not required, when postponing a deadline for the receipt of tenders by a certain number of days, to defer the deadline for the submission of requests for information by the same number of days. According to the Commission, it need only ensure that it gives tenderers adequate time to make requests for additional information. In this case, Evropaïki Dynamiki had been in possession of the tender specifications since 27 June 2005. The Commission also points out that, although Evropaïki Dynamiki was still unaware that it could participate in the tendering procedure concerned as a member of a consortium, it had submitted 14 requests for information and subsequently it had submitted a further 88 requests for information. Accordingly, in the time available to it, Evropaïki Dynamiki was able to submit 102 requests for information (out of a total of 198 requests for information submitted during the tendering procedure).
–       Findings of the Court
53      It is apparent from Point IV.3.2 of the contract notice, as amended by a corrigendum of 23 August 2005, that the contracting authority set the deadline for submitting requests for information as 2 September 2005.
54      Evropaïki Dynamiki claims that that provision infringes Article 141(2) of the Implementing Rules, in the version resulting from Article 1(25) of Regulation No 1261/2005. According to Evropaïki Dynamiki, that infringement also amounted to an infringement of Article 89(1) of the Financial Regulation.
55      It should immediately be noted that the Commission is right in stating that Article 141(2) of the Implementing Rules, in the amended version which entered into force on 5 August 2005 and which is relied on by Evropaïki Dynamiki, is not applicable to a tendering procedure for which the contract notice was published on 18 June 2005, even though it was applicable at the time when the corrigendum of 23 August 2005 was published (see paragraph 52 above). The question of the temporal application of the new provisions introduced by the Implementing Rules is expressly addressed by Article 2 thereof, which provides that ‘[p]ublic procurement … procedures launched before entry into force of this Regulation shall continue to be subject to the rules applicable at the time when those procedures were launched’.
56      The provision applicable in the present case is therefore Article 141(2) of the Implementing Rules, in the version applicable on 18 June 2005 (see paragraphs 4 and 5 above), which reads as follows:
‘2. Provided it has been requested in good time, additional information relating to the specifications shall be supplied simultaneously to all economic operators who have requested the specifications or expressed interest in submitting a tender no later than six days before the deadline for the receipt of tenders or, in the case of requests for information received less than eight calendar days before the deadline for receipt of tenders, as soon as possible after receipt of the request.’
57      It must accordingly be found that Article 141(2) of the Implementing Rules, in the version applicable in the present case, did not allow the Commission to set the deadline for submission of requests for information as 2 September 2005 when the deadline for the receipt of tenders had been postponed from 26 August to 30 September 2005. On the contrary, a reading of that provision shows that it was for the contracting authority to communicate ‘as soon as possible’ to the parties concerned the replies to ‘requests for information received less than eight calendar days before the deadline for receipt of tenders’. It must therefore be held that, in principle, the deadline for submission of requests for information had to fall on the same date as the deadline for receipt of tenders, subject only to the qualification that the contracting authority needed to be able to respond as quickly as possible to such requests for information.
58      Thus, contrary to what the Commission suggests (see paragraph 52 above), there is no legal basis enabling the contracting authority, where the deadline for the receipt of tenders has been postponed until after the date originally provided for in the contract notice, to set the deadline for the submission of requests for information more than three weeks before the new deadline for the receipt of tenders. It is apparent from the wording of Article 141(2) of the Implementing Rules in the version applicable in the present case, and from that of Article 141(2) of the Implementing Rules in the amended version which entered into force on 5 August 2005 – and which is designed specifically to prevent the contracting authority from being confronted with requests for information, submitted at the last minute, to which it cannot in practice reply in a satisfactory manner – that the issue of restricting the time allowed for the submission of requests for information must be considered separately from that of postponing the deadline for the receipt of tenders, which was examined in the context of the first part of the present plea.
59      Consequently, it must be held that, so far as restricting the time allowed for submission of requests for information is concerned, the Commission has no discretion to decide on a reasonable time-limit to be taken into consideration as it does in determining the reasonable and appropriate time to allow for preparing and submitting tenders. The time-limit to be taken into consideration depends on the deadline for the receipt of tenders, which was amended by a corrigendum of 23 August 2005 likely to give rise to all the attendant effects, particularly with regard to the ancillary and parallel postponement of the deadline for the submission of requests for information.
60      Accordingly, by setting the deadline for the submission of requests for additional information as 2 September 2005 when it was postponing the deadline for the receipt of tenders from 26 August to 30 September 2005, the contracting authority infringed Article 141(2) of the Implementing Rules. That infringement constitutes a breach of the pre-litigation procedure.
61      According to settled case-law, a breach of procedure can lead to annulment of the decision in question, however, only if it is shown that, but for that breach, the administrative procedure could have had a different outcome if the applicant had had the opportunity to submit requests for additional information up until the deadline for the receipt of tenders and if there was even a small chance that the applicant could have brought about a different outcome to the administrative procedure in the light of the replies that could have been given by the contracting authority (see, to that effect, Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 31 and the case‑law cited; Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraphs 340 and 430; and Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 147). On this point, the burden of proof rests on the applicant.
62      In order to assess the consequences of the procedural breach established in paragraph 60 above, the Court asked the parties whether, in the present case, there were requests for information which the contracting authority did not answer. That question was also addressed at the hearing.
63      In that regard, it is clear from the Commission’s answers to the question put by the Court that no request for information from Evropaïki Dynamiki went unanswered by the contracting authority. The Commission maintained that position at the hearing.
64      Likewise, in its reply to the question put by the Court, Evropaïki Dynamiki did not mention any request at all for information which had gone unanswered. In that reply and at the hearing, it essentially criticised the fact that the answers to its questions had been ambiguous or incomplete and that the contracting authority had adopted a general strategy of withholding information.
65      Accordingly, Evropaïki Dynamiki maintained that some of the answers supplied by the contracting authority were incomplete, in that some of the information requested had been denied on the ground that such information was not necessary for the preparation of a tender. Evropaïki Dynamiki referred to the answers given by the contracting authority to Questions 93, 94, 95, 98 and 99. In that regard, it should be noted that the issue relating to the quality of the answers given by the contracting authority will be considered in the context of the second plea in law and referred to in the context of the third plea. In any event, since Evropaïki Dynamiki has confined its arguments to stating that the answer provided by the contracting authority was open to dispute since Evropaïki Dynamiki needed the documents requested, it has failed to adduce any evidence to explain why it needed those documents, which makes it impossible to assess their importance for the preparation of a tender. The Court is not therefore in a position to assess the impact which communication of those documents might have had on the evaluation of the tender submitted by the CustomSystems Consortium.
66      More generally, Evropaïki Dynamiki has also maintained that the strategy adopted by the contracting authority was to disclose as little material as late as possible and in an incomplete and non-transparent manner. Evropaïki Dynamiki has referred to the question submitted on 1 August 2005 concerning a request for access to the FTSS document, in answer to which the requested document was produced on 10 August 2005; that does not serve as an example of the approach attributed to the contracting authority, since the latter acknowledged in its answer that the failure to send that document was the result of an error on its part.
67      Moreover, it is clear from the documents before the Court that more than a hundred requests for information – out of the 198 submitted in connection with the tendering procedure – originated with Evropaïki Dynamiki (see paragraph 52 above), which is a considerable number. In the absence of any arguments put forward to the contrary, Evropaïki Dynamiki does not deny the fact that it is in a situation where all its queries have been answered specifically, even if some of those answers may not satisfy it. Evropaïki Dynamiki cannot merely rely in that regard, purely theoretically, on the possibility that it might have raised questions other than those which it did raise, or on its right to raise new questions based on the contracting authority’s answers to its questions, without explaining what those questions might have been and what the impact of the anticipated answer would have been with regard to the preparation and evaluation of the tender submitted by the CustomSystems Consortium. For obvious practical reasons, public procurement contracts cannot be awarded after a never-ending procedure during which the various tenderers must be put in the position of being able to finalise the details of their tenders by requesting clarifications and additional information for as long as they wish.
68      In conclusion, since Evropaïki Dynamiki has not demonstrated in the present case that the procedural breach had a specific impact on the tender submitted by the CustomSystems Consortium, this part of the first plea must be rejected in so far as it seeks annulment of the contested decision.
69      The first plea in law must therefore be rejected.
Second plea: breach of the principle of equal treatment
Arguments of the parties
70      In general, Evropaïki Dynamiki maintains that the incumbent contractors had an advantage over the other tenderers owing to their past working relationship with the contracting authority. Moreover, the contracting authority restricted competition by ‘grouping two previous contracts into one call for tenders’. The contract was awarded to the incumbent contractors on account of the comparative advantage accruing from their cooperation with the contracting authority and because of the contracting authority’s refusal to provide the relevant information to all the participants. To illustrate that advantage, Evropaïki Dynamiki argues that the tenderer composed of the two incumbent contractors was the only tenderer to have specific information about the software and hardware to be used. On that point, Evropaïki Dynamiki refers to the Commission’s letter of 21 September 2005 and, in particular, to the contracting authority’s replies to Questions 51, 93 to 107, 113, 126, 127, 130 to 132, and 177 to 180. According to Evropaïki Dynamiki, a tenderer which did not have that information was unable to submit a precise tender in respect of the corresponding costs. Evropaïki Dynamiki also states that the contracting authority’s replies to Questions 80, 182 and 183 are ‘inexplicable’. Furthermore, it maintains that the fact that tenderers were required to include ‘take-over costs’ in their bids conferred an advantage on the incumbent contractors. As justification for that inclusion, the Commission refers to the need to ensure sound financial management. However, according to Evropaïki Dynamiki, the contracting authority should not have taken those costs into consideration when comparing the bids of the incumbent contractors with those of the other tenderers. On that point, Evropaïki Dynamiki refers to an extract from the financial table relating to the ‘take-over cost’ and several headings in that table, which require inter alia that the tenderers formulate a ‘fixed-price offer’ for the supply of services relating to items only known to the incumbent contractors. The contracting authority took no action with regard to that discriminatory treatment, even though it had been informed of it in connection with Questions 160 to 162, 167, 182 to 183, 190, 193 and 195.
71      In reply to the Commission’s observations, Evropaïki Dynamiki states that the Commission did not disclose in good time all the material it should have disclosed. Thus, on 1 August 2005, Evropaïki Dynamiki had asked for the FTSS document, which had not been included in the material sent to it. Claiming that this had been because of an error in the baseline documentation, the contracting authority sent that document on 10 August 2005.
72      According to the Commission, it is inevitable that the incumbent contractor has an advantage when a tendering procedure is initiated for the award of a contract. The principle of equal treatment does not, however, require the contracting authority to neutralise absolutely all the advantages enjoyed by such a tenderer. Those potential advantages must be neutralised only to the extent that it is technically easy to do so, where it is economically acceptable and where it does not infringe the rights of the existing contractor. Evropaïki Dynamiki’s argument that the contracting authority restricted competition by issuing one call for tenders when it had previously concluded two separate contracts fails to take into account the fact that different Commission departments have different needs. The decision to publish a call for tenders covering a wide area of development was thus taken as part of an overall strategy designed to bring coherence to the contractual arrangements of the contracting authority in the context of a multiplicity of complex projects managed by a relatively small core of officials. In response to Evropaïki Dynamiki’s claim that the incumbent contractors had an advantage in that they alone had certain information, the Commission argues that details of the infrastructure to be taken over by the new contractor were provided in the tender specifications. The contracting authority did not require tenderers to provide a cost for the acquisition of that infrastructure, but only to include the costs for operation of the development infrastructure in the monthly costs of the work package ‘Unit Prices for Operational Services’ of the Price List. The Commission adds that all source codes, software and project documentation, as well as the list of known problems, were supplied in the baseline documentation sent to every potential tenderer. With regard to the issue of take-over costs, the Commission states that, even if those costs were neutralised – and the Commission was not required to neutralise them – the result would make no significant difference to the respective points awarded to the winning tender and to Evropaïki Dynamiki’s tender, and would not have altered the ranking given in the evaluation. In that regard, the Commission provides the following table:
Successful tender
X
ED’s tender (CustomSystems)
Total Quality
830
610
610
Quality indicator (max.=100)
100
73.49
73,49
Quoted price Total Budget Provision
€27 779 494.80
€22 102 495
€23 693 265
Take-over costs
€40 000
€257 508
€480 000
Total price without TO
€27 739 494.80
€21 884 987
€23 213 265
New price indicator (min.=100)
126.98
100
106.26
- New quality/price ratio
78.75
73.49
69.16
- Former quality/price ratio
79.57
68.55
73      Lastly, the Commission states that all the undertakings interested in the call for tenders – including Evropaïki Dynamiki – received the FTSS document on 10 August 2005. That document describes the procedural aspects of the transit system.
Findings of the Court
74      It is settled law that, in accordance with the principle of equal treatment, comparable situations must not be treated differently and different situations must not be treated in the same way (Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, paragraph 7; Case 106/83 Sermide [1984] ECR 4209, paragraph 28; and Evropaïki Dynamiki v Commission, paragraph 61 above, paragraph 60).
75      In the field of public procurement, the principle of equal treatment assumes a very particular importance. Indeed, it is apparent from the well-established case-law of the Court of Justice that the contracting authority is required to comply with the principle that tenderers should be treated equally (Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani [2001] ECR I‑9233, paragraph 37; Case C‑315/01 GAT [2003] ECR I‑6351, paragraph 73; and Evropaïki Dynamiki v Commission, paragraph 61 above, paragraph 61).
76      As regards the assertion made by Evropaïki Dynamiki that the incumbent contractors had an advantage over the other tenderers owing to their past working relationship with the contracting authority (see paragraph 70 above), it should be pointed out that such an advantage is in no way the consequence of any conduct on the part of the contracting authority. Unless such a contractor were automatically excluded from any new call for tenders or, indeed, were forbidden from having part of the contract subcontracted to it, it is inevitable that an advantage would be conferred upon the existing contractor or the tenderer connected to that party by virtue of a subcontract, since that is inherent in any situation in which a contracting authority decides to initiate a tendering procedure for the award of a contract which has been performed, up to that point, by a single contractor. That fact constitutes, in effect, an ‘inherent de facto advantage’ (see, to that effect, Evropaïki Dynamiki v Commission, paragraph 61 above, paragraph 70).
77      Accordingly, it cannot be inferred from the results of the tendering procedure – as Evropaïki Dynamiki suggests – that the very fact that the tenderer composed of the incumbent contractors obtained the contract at issue constitutes a breach of the principle of equal treatment.
78      As regards Evropaïki Dynamiki’s assertion that the tenderer composed of the incumbent contractors was the only tenderer to have specific information about the software and hardware to be used, which gave it a comparative advantage over the other tenderers, it must be held that that assertion is not adequately substantiated. Indeed, Evropaïki Dynamiki merely relies on two sets of replies given by the contracting authority to requests for additional information submitted during the preparation of the tenders (see paragraph 70 above).
79      As regards the first set of replies (the contracting authority’s replies to Questions 51, 93 to 107, 113, 126, 127, 130 to 132 and 177 to 180), Evropaïki Dynamiki merely asserts, without giving any explanation, that a tenderer who does not have information about the cost of running software or providing maintenance for a piece of hardware cannot be specific in that regard. However, it is apparent from the Commission’s comments on that point (see paragraph 72 above) – which Evropaïki Dynamiki does not contradict – that all the undertakings involved in the tendering procedure were able to obtain the technical documentation providing them with a whole set of technical information concerning source codes, software and the relevant documentation. Without explanations enabling it to identify the way in which those replies and the information provided in connection with the tendering were insufficient to meet Evropaïki Dynamiki’s requests, the Court is not in a position to assess the breach of the principle of equal treatment of tenderers alleged by Evropaïki Dynamiki in this connection.
80      In any event, it should be noted that, following a request to that effect from Evropaïki Dynamiki, the contracting authority sent all the undertakings concerned a copy of the FTSS document. Contrary to what Evropaïki Dynamiki implies, there is nothing in the documents before the Court to suggest that the fact that the FTSS document could not be sent before 10 August 2005 was the result of anything other than a simple error.
81      As regards the second set of replies (the contracting authority’s replies to Questions 80, 182 and 183), Evropaïki Dynamiki does not submit the slightest evidence to show in what way those replies are ‘inexplicable’. The Court cannot therefore assess whether, as Evropaïki Dynamiki claims, the principle of equal treatment has been breached in the circumstances.
82      With regard to Evropaïki Dynamiki’s assertion that the issue of take-over costs confers an advantage on the incumbent contractors which constitutes a breach of the principle of equal treatment, it must be said that that issue does not have the significance which Evropaïki Dynamiki attributes to it.
83      In the first place, it is apparent from the data in the financial table headed ‘Take‑over cost’, which are cited by Evropaïki Dynamiki, that the contracting authority requested submission of a ‘take-over fixed price offer’ and a ‘corrective maintenance fixed-price offer’. The fact that those data are ‘fixed-price’ means that a degree of imprecision is inherent in the nature of the data requested, thus placing on an equal footing the various tenderers, who were able to assess those data in the light of the technical information contained in the documentation supplied to them.
84      Secondly, and in any event, it is apparent from the data produced by the Commission (see paragraph 72 above) that, although it is not necessary to make a ruling – as sought by Evropaïki Dynamiki – on the question whether there was a need in the present case to neutralise the take-over costs for the purposes of the comparison of the incumbents’ bid with those of the other tenderers, the neutralisation of those costs would not have altered the ranking made at the time of the evaluation.
85      Lastly, as regards Evropaïki Dynamiki’s assertion that the contracting authority restricted competition by issuing one call for tenders when previously it had concluded two separate contracts, which constitutes a breach of the principle of equal treatment, it must be held that the contracting authority cannot be criticised for wanting to make such a combination as part of a global strategy to harmonise its contractual arrangements.
86      In the light of the foregoing, the second plea in law must be rejected.
Third plea in law: manifest error of assessment in the evaluation of the tender submitted by the CustomSystems Consortium
Arguments of the parties
87      In order to establish that there was a manifest error of assessment in the evaluation of the tender submitted by the CustomSystems Consortium, Evropaïki Dynamiki submits to the Court its comments on the Evaluation Report communicated by the Commission on 28 June 2006, pointing out that it had already submitted those comments to the contracting authority by letter of 4 July 2006, but had received no reply concerning the substance.
–       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’
88      Evropaïki Dynamiki breaks down the Evaluation Committee’s assessments of the CustomSystems Consortium’s tender with regard to the criterion ‘Fitness of the proposed approach to implement the contract requirements and foreseen activities’ into 11 extracts in order to simplify the presentation of its comments.
89      The first extract commented upon is the following:
‘The offer obtained for this criterion 180 points from a total of 300 points. The Evaluation Committee concluded that the proposed approach fits the contract requirements and foreseen activities, although several weaknesses have been observed.
The response to the question for this criterion consisted of two parts.’
90      In that regard, Evropaïki Dynamiki points out that it provided nine documents to respond to the criterion of the proposed approach to implementing the contract requirements and foreseen activities. It also sets out its approach to implementing ‘the contract requirements and foreseen activities’, namely the following stages: ‘WP-0 – Project Management’; ‘WP-l – Setup and Maintenance of Resources’; ‘WP-2 – Take over’; ‘WP-3 – Support via Training/Workshops/Demonstrations, Mission, Consultancy’; ‘WP-4 – Coordination with all involved actors’; ‘WP-5 – Hand-over’; ‘WP-6 – Specifications’; ‘WP-7 – Build and Test’.
91      The second extract commented upon is the following:
‘1. Approach to implement the contract requirements;
The description of the TEMPO and RUP methodology approach fits the requirements.
The tenderer introduces correctly, in the section concerning the computerisation of the customs processes, concepts such as interoperability and accessibility, but fails to propose an approach to implement these concepts in terms of project management activities, coordination between the various parties involved, managing the Trans-European dimension in producing specifications and developing software.’
92      In that regard, Evropaïki Dynamiki maintains that it was not clear from reading the tender specifications that the tender had to address the issues of project management activities, co-ordination between the various parties involved, and managing the Trans-European dimension in producing specifications and developing software. Evropaïki Dynamiki points out that it had only a limited amount of time (37 days instead of 52) to deal with such a complex call for tenders and to organise a consortium composed of companies located in five different countries. In any event, it considers that it addressed the abovementioned issues in documents other than those concerning the computerisation of the customs processes:
–        project management activities: in a document consisting of approximately 60 pages contained in the reply to Question 5.1 and entitled ‘WP-0 – Project Management’; other project management aspects: in the document entitled ‘CUST-DEV Service Management Approach (Question 5.3.2 – Service Request Management and Question 5.2)’;
–        co-ordination between the various parties involved: in a document entitled ‘WP-4 – Coordination with all involved actors’, as well as in a document entitled ‘CUST-DEV Service Management Approach’, provided as the response to Question 5.3.2 concerning Service Request Management and to Question 5.2, and in a document entitled ‘CUST-DEV – Organisational Structure’, provided as the response to Question 5.2.1;
–        managing the Trans-European dimension in producing specifications and developing software: in documents respectively entitled ‘WP-6 – Specifications’ and ‘WP-7 – Build and Test’, since that approach had been used successfully for the provision of similar services to the Commission for over 12 years.
93      The third extract commented upon is the following:
‘The Evaluation Committee considered the rest of this part mainly as a 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.