JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
2 February 2017 (*)
(Public service contracts — Tender procedure — Services for development, study and support for information systems (ESP DESIS III) — Requests for supply of services issued as part of the same lot — Reopening to competition mechanism — Rejection of the tenderers’ tenders — Award criteria — Obligation to state reasons — Abnormally low offer — Non-contractual liability)
In Case T‑74/15,
European Dynamics Luxembourg SA, established in Luxembourg (Luxembourg),
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
represented initially by I. Ampazis and M. Sfyri, and subsequently by M. Sfyri, C.-N. Dede and D. Papadopoulou, lawyers,
applicants,
v
European Commission, represented initially by L. Cappelletti and F. Moro, and subsequently by F. Moro and S. Delaude, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers,
defendant,
APPLICATION, first, pursuant to Article 263 TFEU seeking annulment of the Commission decisions, contained in the letters of 8 and 12 December 2014, rejecting the tenders submitted by the applicants for Request for Quotation No DESIS III‑000455-6000494078-REQ-01 relating to the development of the interactive profiling tool prototype and for Request for Quotation No DESIS III‑000485-6000494078-REQ-01 relating to the development of the EuroGroups Register interactive module in the context of Lot 4 of Call for Tenders DIGIT/R2/PO/2013/029 (OJ 2013 S 219-380314) and, second, application pursuant to Article 268 TFEU seeking damages for the harm allegedly caused to the applicants due to the loss of opportunity to perform the second contract at issue,
THE GENERAL COURT (Sixth Chamber),
composed, during the deliberations, of S. Frimodt Nielsen, President, A.M. Collins (Rapporteur) and V. Valančius, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure and further to the hearing on 22 September 2016,
gives the following
Judgment
Background to the dispute
1        The applicants, European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, are companies incorporated under Luxembourg law and Greek law, respectively, active in the field of information technology and communications, in particular computer programs.
2        By a contract notice published on 12 November 2013 in the Supplement to the Official Journal of the European Union (OJ 2013 S 219-380314), the European Commission launched Call for Tenders DIGIT/R2/PO/2013/029 for ‘external services provision for development, studies and support (ESP–DESIS III)’ comprising four lots. Lot 4 concerned the provision of information technology services relating to off-site information systems development, studies and support.
3        In accordance with paragraph II.3 of the Call for Tenders, ‘multiple framework contracts based on a reopening to competition mechanism’ were to be concluded, for Lot 4, with up to five economic operators (depending on the number of tenderers meeting the award criteria). Specific contracts implementing the ‘competitive multiple framework contracts’ were to be awarded on the basis of ‘mini competitions’ between the selected ‘framework contractors’. Thus, whenever the Commission wished services to be provided in the context of that lot, it had to send a request for a formal offer for services, or a ‘Request for Quotation’, to the five framework contractors. Paragraph IV.2.1 of the Call for Tenders stated that the contract would be awarded to the most economically advantageous tenders.
4        On 27 January 2014, a consortium, led by European Dynamics Luxembourg and of which Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis also formed part (‘the consortium’), submitted a tender for Lot 4. That tender having been accepted, the consortium signed Framework Contract No DI/07345 on 14 October 2014.
5        The present action concerns two Requests for Quotation in the context of Lot 4, the first under reference DESIS III‑000455-6000494078-REQ-01 (‘Request for Quotation No 455’) and the second under reference DESIS III‑000485-6000494078-REQ-01 (‘Request for Quotation No 485’).
1.     Request for Quotation No 455
6        On 27 October 2014, the Commission sent to all the framework contractors of Lot 4 Request for Quotation No 455, relating to the ‘development of the interactive profiling tool (IPT) prototype’, aiming to develop a prototype of an independent application that could be integrated into the universe of EuroGroups Register (EGR) applications.
7        Paragraph 9.1 of the technical annex attached to Request for Quotation No 455 set out a minimum total threshold of 65% (namely, 65 points out of 100) and the following three award criteria:
–        criterion No 1: ‘quality of the proposed technical solution’, with a maximum of 50 points that could be awarded and a minimum of 30 points that had to be obtained;
–        criterion No 2: ‘quality of the project implementation time schedule and staff members’ involvement schedule’, with a maximum of 30 points that could be awarded and a minimum of 18 points that had to be obtained;
–        criterion No 3: ‘assurance of feasibility of the delivery (through communication, reporting, organisation)’, with a maximum of 20 points that could be awarded and a minimum of 12 points that had to be obtained.
8        It was also apparent from the technical annex that the contract would be awarded to the tender presenting the best value for money according to the formula provided in that annex, taking as a basis the lowest tender that had not been rejected after the technical evaluation.
9        On 12 November 2014, the consortium submitted a tender in response to Request for Quotation No 455.
10      By letter of 8 December 2014, sent on 9 December 2014, the Commission informed the applicants that their tender had not been successful because it was not considered the most economically advantageous (‘the first contested decision’). It also informed them that the consortium could obtain, on written request, further information regarding the characteristics and relative advantages of the winning tender, including the name of the successful tenderer.
11      By letter of 9 December 2014, the consortium requested that the Commission provide it with certain information relating to its tender and that of the successful tenderer including, in particular, the name of that tenderer and its potential subcontractors, the scores given to the consortium’s tender and the winning tender for each of the award criteria, a comparative analysis of the strengths and weaknesses, the financial offer of the successful tenderer, the number of tenders received, the rank of the consortium’s tender after the technical evaluation as well as its final rank and a copy of the evaluation report, including, at least, the sections relating to the consortium’s tender and the winning tender. By letter of 16 December 2014, the consortium reiterated its request.
12      By letter dated 16 December 2014 and sent the following day, the Commission informed the consortium of its final rank in third place, the name of the successful tenderer and the fact it was not proposed to make use of subcontractors. That letter contained, in the form of a table, the scores given to the consortium’s tender and to that of the successful tenderer for each of the technical evaluation criteria, and also the Evaluation Committee’s comments to support those scores. It also indicated the successful financial offer and the total number of tenders received for Request for Quotation No 455.
13      In a letter of 19 December 2014, sent in the context of its subsequent correspondence with the Commission relating to Request for Quotation No 485, the consortium also criticised the evaluation of the tenders for Request for Quotation No 455 (see paragraph 25 below). It claimed, in particular, that the successful tender was too low, contrary to the requirements of the technical annex applicable to that Request for Quotation, and invited the Commission to annul the decision awarding that contract.
14      By communication of 22 December 2014, the Commission informed the consortium that the allegations in its letter of 19 December 2014 would be examined and that an answer would be provided to it by 15 January 2015.
15      By letter of 16 January 2015, the Commission replied to the consortium’s letter of 19 December 2014. Concerning Request for Quotation No 485, the Commission referred to its letter of 15 January 2015 (see paragraph 27 below). Concerning Request for Quotation No 455, the Commission stated, in particular, that the consortium’s two tenders for Requests for Quotation No 455 and No 485 (together, ‘the Requests for Quotation at issue’) had been evaluated by two separate Evaluation Committees, that no comparative evaluation of the offers had been performed and that the successful tender for Request for Quotation No 455 did not fall within the category of abnormally low offers.
2.     Request for Quotation No 485
16      On 28 October 2014, the Commission sent to the framework contractors of Lot 4, including the applicants, Request for Quotation No 485 relating to the ‘development of the EGR Interactive Module (IM)’, aiming to develop a module for the EGR which provides for an interactive interface to consult, update and validate EGR data in the consolidation area of the EGR Core.
17      Paragraph 9.1 of the Technical Annex attached to Request for Quotation No 485 set out a minimum total threshold of 65% (that is to say, 65 points out of 100) and the same three award criteria as for Request for Quotation No 455 (see paragraph 7 above).
18      It was also apparent from paragraph 9.5 of the Technical Annex that the contract would be awarded to the tender presenting the best value for money according to the formula provided in that annex, taking as a basis the lowest tender that had not been rejected after the technical evaluation.
19      On 13 November 2014, the consortium submitted a tender in response to Request for Quotation No 485.
20      On 27 November 2014, the Commission sent a request for clarification to the consortium relating to its technical proposal. That request contained eight questions concerning the solutions proposed for specific tasks and relating to the first and second award criteria.
21      By communication of 28 November 2014, the consortium replied to that request.
22      By letter of 12 December 2014, the Commission informed the consortium that its tender had not been successful, because it did not meet the minimum total threshold of 65%, or the threshold of 60% (that is 18 points out of 30) for the second award criterion (‘the second contested decision’). It stated the name of the successful tenderer and its financial offer. In addition, that letter contained two tables detailing the scores given and the Evaluation Committee’s comments to support those scoresfor each of the technical award criteria for the consortium’s tender and the winning tender.
23      By letter of 15 December 2014, the consortium replied to the Commission that, regarding Request for Quotation No 485, it would examine the letter of 12 December 2014. It requested that the Commission provide it with the number of offers received for that Request for Quotation and the rank of its tender after the technical and financial evaluation phases. As regards Request for Quotation No 455, the consortium repeated its request for information of 9 December 2014 (see paragraph 11 above).
24      By letter of 16 December 2014, the consortium submitted its observations on the information provided by the Commission in its letter of 12 December 2014. It alleged manifest errors of assessment committed by the Evaluation Committee relating, on the one hand, to the winning tender and, on the other hand, to its tender. It requested the Commission to annul Request for Quotation No 485 and, in any case, to reject the successful tenderer.
25      By letter of 19 December 2014, headed ‘Additional information concerning Requests for Quotation No 485 and No 455’, the consortium indicated to the Commission a series of alleged inconsistencies in the evaluation of its tenders for those Requests for Quotation, including discrepancies between the scores given for identical elements despite the presence of almost identical comments by the Evaluation Committee. In the light of those observations, it requested that the Commission correct the scores given to its tender for Request for Quotation No 485 for the second and third technical award criteria and, consequently, award the contract to it. In addition, the consortium submitted observations on the allegedly low winning tender for Request for Quotation No 455 and invited the Commission to annul the decision awarding that contract.
26      By communication of 19 December 2014, the Commission informed the consortium that its letter of 16 December 2014 would be examined and that it would be answered by 15 January 2015.
27      By letter of 15 January 2015, the Commission answered the criticisms raised by the consortium in its letter of 16 December 2014 and concluded that the consortium’s tender had been evaluated correctly against the award criteria applicable to Request for Quotation No 485.
Procedure and forms of order sought
28      By application lodged at the General Court Registry on 17 February 2015, the applicants brought the present action.
29      The applicants claim that the Court should:
–        annul the first contested decision;
–        annul the second contested decision;
–        order the Commission to pay them damages and interest in the amount of EUR 12 000 on account of the harm suffered following the loss of opportunity to carry out the contract concluded in the context of Request for Quotation No 485;
–        order the Commission to pay the costs, even if the present action is dismissed.
30      The Commission contends that the Court should:
–        declare the action for annulment unfounded in its entirety;
–        declare the action for damages unfounded;
–        order the applicants to pay the costs.
Law
1.     The claim for annulment
31      In support of their application for annulment, the applicants put forward two pleas in law, of which the first, alleging infringement of the obligation to state reasons, is common to both Requests for Quotation. The second, applying only to the second contested decision, alleges the existence of manifest errors of assessment. It is necessary to examine those claims in relation to each Request for Quotation.
I. The single plea relating to Request for Quotation No 455 alleging infringement of the obligation to state reasons
32      The applicants claim that the Commission misinterpreted the provisions of Article 113(2) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1, ‘the Financial Regulation’) and those of Article 161(2) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1, ‘the Implementing Regulation’) and, in so doing, the obligation to state reasons laid down in Article 296 TFEU. According to the applicants, the Commission did not adequately answer their request for information of 19 December 2014 relating to the successful, abnormally low tender for Request for Quotation No 455 and refused to provide reasoning or the elements of comparison, including the number of person-days (effort allocated) offered by the successful tenderer, which should lead to annulment of the first contested decision.
33      The Commission contends that it fulfilled its obligation to state reasons. The information provided by its letters of 9 and 17 December 2014 and of 16 January 2015 enabled the applicants to identify the precise reason for the rejection of their tender, namely, the fact that it was economically less advantageous than that of the successful tenderer. The Commission also answered the submission relating to the allegedly low nature of the successful tender by explaining, on the one hand, that the contested Requests for Quotations were not comparable and, on the other hand, that the successful tender for Request for Quotation No 455 did not fall within the category of abnormally low offers. In addition, the applicants’ calculations were based on an incorrect claim, in so far as the number of use cases was not the only relevant parameter for determining the person-days necessary for the execution of a project and in so far as not all use cases required the same amount of work or the same costs.
34      It should be pointed out that even if the applicants refer to the present claim as concerning an ‘infringement of the obligation to state reasons’ and as having a first part entitled ‘Failure to state reasons regarding [Request for Quotation] No 455’, it is clear both from their written submissions and from their pleadings that they essentially raise a plea alleging that the statement of reasons in the first contested decision is insufficient, in relation to only one aspect of the letter. The applicants take the view, on the basis of a price calculation based on the number of use cases provided for in the contested Requests for Quotation, that the tender chosen was necessarily abnormally low. Given that their own offer in the context of Request for Quotation No 485 has been clarified by the Commission in order to examine whether it was of such a nature, and, moreover, regard being had to the fact that the consortium expressly raised the same question of the tender being abnormally low during the administrative procedure relating to the tender selected for Request for Quotation No 455, the applicants submit that, in the present case, the Commission was required to examine that question and to provide them with adequate answers.
35      It must be noted at the outset that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 3 March 2011, Evropaïki Dynamiki v Commission, T‑589/08, not published, EU:T:2011:73, paragraph 24 and the case-law cited).
36      It must also be stated that, where the Commission has broad discretion, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union Courts determine whether the factual and legal elements upon which the exercise of the discretion depends were present (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 9 September 2010, Evropaïki Dynamiki v Commission, T‑387/08, not published, EU:T:2010:377, paragraph 31).
37      In addition, the duty to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons with an entirely new statement (see, to that effect and by analogy, judgment of 20 May 2009, VIP Car Solutions v Parliament, T‑89/07, EU:T:2009:163, paragraph 73 and the case-law cited).
38      Accordingly, if the institution concerned provides supplementary information in response to a request from an applicant seeking additional explanations concerning a decision before an action is brought, but after the date laid down in Article 161(2) of the Implementing Regulation, that information may also be taken into account to examine whether the reasoning was sufficient in the case at issue, in so far as it is limited to providing further details as to the initial reasoning and is based on elements of fact and law existing on the date of that decision (see, to that effect, judgment of 15 October 2013, Evropaïki Dynamiki v Commission, T‑474/10, not published, EU:T:2013:528, paragraphs 78 and 79).
39      Furthermore, the duty to state reasons is an essential procedural requirement, which must be distinguished from the question whether the grounds given are correct, which goes to the substantive legality of the contested measure (see judgment of 15 March 2012, Evropaïki Dynamiki v Commission, T‑236/09, not published, EU:T:2012:127, paragraph 76 and the case-law cited). The duty to state reasons for a contested decision is intended to ensure that the person adversely affected by the measure has the right to an effective remedy and enables the impartiality of the tendering procedure which resulted in the decision to be effectively reviewed (see judgment of 22 April 2015, Evropaïki Dynamiki v Frontex, T‑554/10, not published, EU:T:2015:224, paragraphs 79 and 80 and the case-law cited).
40      As regards a decision rejecting a tender submitted by a tenderer in the context of a public service contract, the specific rules which determine the scope of the statement of reasons that it must include are fixed by Article 113(2) of the Financial Regulation and by Article 161(3) of the Implementing Regulation (see, to that effect, judgment of 4 February 2016, PRIMA v Commission, T‑722/14, not published, EU:T:2016:61, paragraphs 27 and 28 and the case-law cited).
41      It is in the light of those considerations that it is necessary to examine the single plea relating to Request for Quotation No 455 and concerning the abnormally low nature of the tender submitted by the successful tenderer.
42      It should be recalled that, at the time of the facts, Article 113(2) of the Financial Regulation was worded as follows:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, as well as the duration of the standstill period referred to in Article 118(2). The contracting authority shall notify all tenderers who meet the exclusion and selection criteria, and who make a request in writing, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. …’
43      At the time of the facts, Article 161 of the Implementing Regulation provided as follows:
‘1.      The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure.
2.      The contracting authority shall, within not more than 15 calendar days from the date on which a written request is received, communicate the information provided for in Article 113(2) of the Financial Regulation.
3.      In the case of contracts awarded by the Union institutions on their own account, with a value equal to or more than the thresholds referred to in Article 170(1) and which are not excluded from the scope of Directive 2004/18/EC, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, by electronic means, that their application or tender has not been accepted at either of the following stages:
(a)      shortly after decisions have been taken on the basis of exclusion and selection criteria and before the award decision, in procurement procedures organised in two separate stages;
(b)      as regards the award decisions and decisions to reject offers, as soon as possible after the award decision and within the following week at the latest.
In each case, the contracting authority shall indicate the reasons why the tender or application has not been accepted and the available legal remedies.
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all selected tenderers whose tenders are not eliminated may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 113(2) of the Financial Regulation. The contracting authority shall reply within no more than 15 calendar days from receipt of the request.’
44      Accordingly, the contracting authority had to provide the same information to the rejected tenderers, irrespective of whether it was a tender procedure for a framework contract with reopening to competition or another contract.
45      In the present case, it is apparent from the letter of 19 December 2014 (see paragraph 25 above) that the applicants expressly requested clarification from the Commission in order to demonstrate that the price offered by the successful tenderer was not abnormally low and not only, as the latter claims, clarification of the effort allocated to the project by the successful tenderer. In reply to a question asked by the General Court at the hearing on that claim, the Commission confirmed that its letter of 16 January 2015 (see paragraph 15 above) contained its reply in that regard. So far as concerns the nature of the tender selected for Request for Quotation No 455, it is apparent from the last page of that letter that the Commission merely stated, in a single sentence, that ‘“the winning offer” of the IPT tender did not fall under the case of “abnormally low” offers.’
46      It is clear that, in requesting the communication of the grounds on which the Evaluation Committee found that the successful tenderer’s tender was not abnormally low, the applicants sought to have the contracting authority set out the characteristics and advantages of that tender (see, by analogy, judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, Case T‑638/11 not published, EU:T:2013:530, paragraph 63). It should be borne in mind that the consortium’s tender was admitted at the financial evaluation stage and that, as is apparent from the first contested decision, that tender was not accepted, because it had not been considered to be the most economically advantageous. Furthermore, it is apparent from the Commission’s letter of 16 December 2014 (see paragraph 12 above) that there were only four points between the consortium’s offer and the tender accepted for the technical evaluation following examination of the award criteria and that the comments of the Evaluation Committee, for each criterion, were highly similar and sometimes identical for the two tenders. Nevertheless, the consortium’s offer was ranked in third final place out of five tenderers.
47      It must be stated that the single sentence in the letter of 16 January 2015 stating that the tender was not abnormally low does not fulfil the duties assigned to the obligation to state reasons, that is, the reasons must be disclosed clearly and unequivocally so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review. It cannot be accepted that a contracting authority should explain the not abnormally low nature of a tender merely by stating that such was considered not to be the case (see, by analogy, judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 64).
48      In so far as the Commission claims, in the rejoinder, to have fulfilled its obligation to state reasons, in its letter of 16 December 2014, by commenting on the satisfactory nature of the effort estimated in the selected tender, that argument cannot be accepted. It appears from that letter that none of the comments therein sets out the reasoning required by the case-law.
49      It should be added that requiring the contracting authority to present the grounds on the basis of which an offer was not considered to be abnormally low does not require it to disclose precise information on the technical and financial aspects of that tender, such as the prices offered or the resources that the successful bidder proposes to use in order to provide the services that it offers. In order to provide a sufficient statement of reasons for that aspect of the selected tender, the contracting authority must set out the reasoning on the basis of which, on the one hand, it concluded that, because of its principally financial characteristics, such an offer complied with the national legislation of the country in which the services were to be carried out in respect of the remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards and, on the other, it determined that the proposed price included all the costs arising from the technical aspects of the selected tender (see, to that effect, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 68; see also, to that effect and by analogy, judgment of 8 October 2015, Secolux v Commission, T‑90/14, not published, EU:T:2015:772, paragraph 62 and the case-law cited). Accordingly, the Commission’s argument that the tenders in the present case had not raised any doubts that they were not abnormally low and that there was therefore no other information which it could have provided to the applicants must be rejected.
50      In its rejoinder, the Commission claims that the Financial Regulation and the Implementing Regulation do not lay down any obligation for the contracting authority to indicate to an unsuccessful tenderer the reasons why it did not consider the selected tender to be abnormally low, a fortiori so because, according to Article 151(1) of the Implementing Regulation, such an analysis is carried out only in cases in which an offer appears abnormally low.
51      However, it cannot be accepted that a contracting authority, by merely invoking that provision, is relieved of the duty to inform the unsuccessful tenderer of the characteristics and advantages of the successful tender, as stated in Article 113(2) of the Financial Regulation in the version applicable at the material time, which undoubtedly includes the reasons for which the successful tenderer’s tender was not abnormally low. In the present case, it does not appear from the documents before the Court that the Commission inquired of the successful tenderer as to the abnormally low nature of the selected tender for the Request for Quotation No 455. Furthermore, the applicants have supported their observations by calculations based on factors which were, prima facie, such as to raise doubts as to the trustworthiness of the selected tender. In such circumstances, it cannot be accepted that the Commission should merely state that it did not consider the selected tender to be abnormally low without providing any other explanation, even if it considered that the points of comparison used for the applicants’ calculations were invalid.
52      Having regard to the principles set out in paragraph 37 above, the explanations given by the Commission for the first time in its written pleadings that the consortium’s offer was objectively more expensive than the financial offer of the successful tenderer, as both were based on the fees proposed in their respective tenders for the framework contract for Lot No 4, cannot be taken into account, since they post-dated the present action being brought.
53      In the light of the foregoing, the single plea in law alleging an inadequate statement of reasons concerning the abnormally low nature of the selected tenderer’s tender for Request for Quotation No 455 must be upheld. Consequently, the Commission’s disregard of essential procedural requirements relating to the first contested decision must lead to its annulment (see, to that effect and by analogy, judgment of 30 March 1995, Parliament v Council, C‑65/93, EU:C:1995:91, paragraph 21), without it being necessary to reply to the substantive argument that the contracting authority was wrong to estimate the effort required to carry out the tasks laid down in the context of Request for Quotation No 455 and, therefore, was wrong to consider that the tender selected was not abnormally low.
II. The pleas in law relating to Request for Quotation No 485
54      The applicants essentially raise two pleas in law in support of their application for annulment of the second contested decision, the first alleging infringement of the obligation to state reasons and the second alleging manifest errors of assessment.
55      By the first plea, the applicants claim that the second contested decision is vitiated by a deficient statement of reasons and does not enable them to understand the reasons for the score given to their tender for the third award criterion. In their view, the Evaluation Committee’s comments were overall very positive and neither indicated the shortcomings of their tender nor anything which would have justified deducting four points. They submit that the winning tender had no competitive advantage, as it received the same score for that criterion, and the comparison of the comments in that regard was not helpful. In addition, the reasons given appear to be even more ambiguous with regard to the applicants’ experience in the parallel procedure for Request for Quotation No 455. Since their tenders were identical for that criterion and for the two contested Requests for Quotation, it is hard to see why a single vaguely negative comment in the near-identical evaluation comments justified the deduction of two points for Request for Quotation No 455 and four points for Request for Quotation No 485, although the two projects and their objectives were similar and the corresponding tasks were the same.
56      By the second plea, the applicants allege a manifest error of assessment of their tender in relation to the second award criterion and concerning three negative comments in the second contested decision relating to that criterion. First, their tender was penalised for proposing a number of person-days too low for project management, whereas their solution respected the requirements of the framework contract and in particular the possibility of proposing such efforts up to 10% of the total person-effort. Second, the Commission incorrectly considered that the decision to deliver the work 25 days earlier than the indicative date stated in the tender specifications was not justified. Third, the applicants claim that the overlapping of tasks was optional and that their tender was wrongly penalised when it proposed the completion of the project before the indicative date, so that that overlapping of tasks was not necessary. Those errors resulted in the exclusion of their tender at the technical evaluation stage for Request for Quotation No 485 and thus in the loss of that contract.
57      In the alternative, the applicants claim a failure to state reasons concerning the second criterion and submit that the Commission was bound to supply further reasoning for its decision to provide services at a price necessarily higher than that proposed by the consortium. Even if the Commission did not commit a substantive error, the Commission’s correspondence and the Evaluation Committee’s comments were contradictory and did not enable the applicants to understand the reasons for the score given to the consortium’s tender for that criterion.
58      The Commission disputes the applicants’ arguments. It stresses, for the two pleas, that a comparison between the consortium’s tenders for Requests for Quotation No 455 and No 485 is inappropriate because they have different objectives and set out different tasks.
The first plea in law and the plea raised in the alternative in the context of the second plea, alleging infringement of the obligation to state reasons
59      It is appropriate to examine together the complaint raised in the alternative in the context of the second plea, covering the statement of reasons for the second contested decision relating to criterion No 2, and the first plea in law, covering the statement of reasons for the second contested decision relating to criterion No 3.
60      In order to determine whether the Commission has fulfilled its obligation to state reasons, it is necessary to examine the second contested decision (see detailed description in paragraph 22 above), the Commission’s request for clarification sent to the consortium specifically concerning their tender (see paragraph 20 above), the letter of 15 January 2015 (see paragraph 27 above) and the letter of 16 January 2015 (see paragraph 15 above), sent to the applicants in response to their request to obtain additional information on the evaluation of that tender. In that regard, it is clear that, if the applicant has asked the institution concerned for additional clarification concerning a decision before bringing an action, it may not ask the General Court not to take them into consideration when determining whether the statement of reasons is adequate, it being understood, however, that the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons (see, to that effect, judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 58, and of 25 February 2003, Renco v Council, T‑4/01, EU:T:2003:37, paragraph 96).
61      On the basis of the factors set out in paragraph 60 above, it is to be noted that the Commission informed the applicants, by the second contested decision, that it had rejected the consortium’s tender for Request for Quotation No 485. It stated therein that the tender had been rejected during the technical evaluation phase on the ground that it had not reached the minimum thresholds required. It is clear therefrom that the tender received a total of 61 points out of 100, whereas the minimum required was 65 points and, for criterion No 2, 15 points out of 30, whereas the minimum required was 18 points. In addition, the Commission informed the applicants of the name of the successful tenderer and the value of the contract awarded to it and a table showing the marks awarded to the consortium’s tenders and the selected tenderer during the technical evaluation phase for each criterion and the comments of the Evaluation Committee, by criterion, concerning the strengths and weaknesses of the consortium’s tender and the selected tender. Furthermore, by its letters of 15 and 16 January 2015, the Commission replied to various observations made by the applicants concerning the evaluation of their tenders. In particular, with reference to the evaluation report and the request for clarification, it highlighted the elements considered under each criterion as well as the shortcomings in the consortium’s offer.
–       The arguments comparing the reasoning provided in the first and second contested decisions
62      As a preliminary point, the Court considers it appropriate to consider the horizontal arguments raised by the applicants in comparing the reasons given in the first and second contested decisions and claiming that they are inconsistent.
63      Whilst accepting, in the application, that the consortium’s tenders for Requests for Quotations Nos 455 and 485 had to be assessed against the award criteria laid down in the respective tender specifications and that the Evaluation Committees did not have to reach the same conclusions, the applicants raise, in the context of the present plea, arguments based on a comparison of the statement of reasons given to them for each Request for Quotation. In reply to a question raised by the General Court at the hearing, they maintained that position, pointing out that the contested Requests for Quotations fell within the same framework contract and that the Evaluation Committees were, therefore, subject to the same rules for carrying out their assessments.
64      As regards a decision rejecting a tender submitted by a tenderer in the context of a public services contract, the obligation to state reasons is embodied in Article 113(2) of the Financial Regulation and Article 116 of the Implementing Regulation (see paragraphs 40, 42 and 43 above). As the EU Courts have already had occasion to note, those provisions do not require the contracting authority to undertake a detailed comparative analysis of the successful tender and the unsuccessful tender in a public procurement procedure (order of 20 September 2011, Evropaïki Dynamiki v Commission, C‑561/10 P, not published, EU:C:2011:598, paragraph 27; see also, to that effect, judgment of 22 April 2015, Evropaïki Dynamiki v Frontex, T‑554/10, not published, EU:T:2015:224, paragraph 61 and the case-law cited). A fortiori, the contracting authority is not obliged, by that legislation, to provide a comparative analysis of the tenders submitted and rejected for different contracts even if those contracts consist of different Requests for Quotations with reopening to competition. Otherwise, according to the logic of the applicants’ arguments, the contracting authority would be subject to an additional obligation to provide reasons for the differences and discrepancies between the reasons given for the contracts and the separate tenders, but considered to be comparable by a rejected tenderer, an obligation which, in any event, would go beyond that imposed by the Financial Regulation.
65      In the present case, it must be stated that, although the statement of the assessment criteria for the two Requests for Quotations is identical, the requirements to be covered by each application remain different. In addition, the composition of the Evaluation Committee was not the same for the two contracts. The fact that identically formulated proposals in the tenders for different Requests for Quotations have received different scores whilst having received similar or identical comments from the respective assessment committees cannot, in itself, undermine the reasoning in the second contested decision (see, to that effect, judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑698/14, not published, EU:T:2016:476, paragraph 49).
66      Furthermore, it should be pointed out that the consortium’s tenders were rejected at different stages of the evaluation procedure: in the context of Request for Quotation No 455, the tender was rejected after the financial analysis, and, therefore, after the comparison with the other eligible tenders following the technical evaluation, whereas, in the context of Request for Quotation No 485, the tender was rejected at the stage of the technical evaluation. The second contested decision is based on the fact that the consortium’s tender did not obtain the minimum number of points required for the application of the technical award criteria (see, by analogy, judgment of 26 September 2014, Evropaïki Dynamiki v Commission, T‑498/11, not published, EU:T:2014:831, paragraph 46 and the case-law cited). It follows that the reasons to be provided to the applicants were not the same for the two Requests for Quotations, but that, in each case, they had to enable them to understand the reasons for the rejection of their tender and, where necessary, the characteristics and relative advantages of the successful tender.
67      Consequently, all the arguments based on a comparison of the statement of reasons given in the decisions resulting from the different contested Requests for Quotations must be rejected.
–       The subsidiary complaint relating to the reasoning in the Evaluation Committee’s comments concerning the second criterion
68      As is apparent from paragraph 61 above, the consortium’s tender for Request for Quotation No 485 was rejected not only because it did not attain the minimum threshold required of 65% of the points for all the award criteria, but also because it did not attain the minimum threshold required for the second criterion. According to the Commission, the latter reason, which would in itself justify the rejection of that tender, is not vitiated by insufficient reasoning and therefore provides a sufficient legal basis for the second contested decision.
69      In that regard, it should be borne in mind that, according to the case-law, where several components of the statement of reasons for a decision are, in themselves, capable of substantiating that decision, any inadequacy of the other components of the decision has no effect on its operative part. In such a case, the decision may not be annulled on account of the inadequacy of the statement of reasons unless it is found not only that the statement of reasons for certain components of the decision is inadequate but also that the other components of that decision, which are not vitiated by inadequate reasoning, are not sufficient to justify that decision (see, to that effect, judgment of 10 April 2014, Evropaïki Dynamiki v Commission, Case T‑340/09, not published, EU:T:2014:208, paragraph 115 and the case-law cited).
70      Accordingly, it is appropriate in the present case first of all to examine the subsidiary complaint concerning the Evaluation Committee’s assessment of the consortium’s offer relating to the second criterion, entitled ‘Quality of the project implementation time schedule and staff members’ involvement schedule.’
71      In the second contested decision, the consortium’s tender received a score of 15 out of 30 for the second criterion. The comments of the Evaluation Committee read as follows:
‘The quality of the project implementation time schedule and staff members’ involvement schedule is fair.
The level of detail of the work plan and timetable is fair. The tenderer provides a Gantt chart with a breakdown of activities and tasks, their durations and their dependencies. However, the task start/end dates are not clearly depicted, although this is required in the tender dossier.
The tenderer decides that the project can be executed in 2 month less than estimated in the technical annex (TA), however, the Evaluation Committee does not find this decision justified. The tenderer decides that the project activities can be executed in (at least) 25 working days less than estimated in the TA, however, the Evaluation Committee does not find this decision justified.
The tenderer has not followed the TA’s instruction “The tasks (Task 1-9 in the following) should be overlapping...”. The tenderer has proposed all Tasks 1‑9 in the Gantt chart to be sequential, forming one single overall Critical Path of 10 months for the project. Such an approach introduces project risk and should be avoided.
The references to mobilisation of the proposed team members, and the planning of the implementation of activities/tasks and the submission of reports and documents are fair. The proposed effort for certain team members (especially under the proposed activity “Overall project management”) is not sufficient to complete successfully the project. The Evaluation Committee considers the role of the Project Manager of paramount importance for the successful implementation of this project. The references to submission of deliverables could have been more analytic.
Based on the above, the Evaluation Committee is not convinced that the proposed project implementation time schedule and staff member’s involvement schedule is realistic and can guarantee successful implementation of the TA.’
72      First, the applicants claim in essence that the Commission failed to fulfil the obligation to provide an enhanced statement of reasons which applied in the present case, since the consortium’s financial offer was lower than the selected tender. Even if the consortium’s tender were lower, the reference to the judgment of 9 September 2010, Evropaïki Dynamiki v Commission (Case T‑300/07, EU:T:2010:372) is, in that regard, irrelevant. The specific circumstances which led to the finding that the decision to reject the applicant’s tender in that case was insufficiently reasoned are not present in the present case. In particular, it is common ground that the score awarded to the consortium’s tender did not exceed the minimum number of points required for all the award criteria, or for the second criterion, which did not enable it to reach the financial evaluation stage and a comparison with the offer ultimately selected.
73      Consequently, it is on the basis of the principles set out in paragraphs 35 to 40 above that it is to be examined whether the assessment of the second criterion is based on sufficient legal reasoning.
74      Second, the applicants claim that the statement of reasons for the contested decision relating to the second criterion was contradicted by the Commission’s letter of 15 January 2015 (see paragraph 27 above), so that they are unable to understand which observations on the shortcomings of their tender, included in the evaluation report, were taken into account in their score and what impact they had on the evaluation. In their view, that letter indicates that several elements listed in the extract from the evaluation report (reproduced in paragraph 71 above) had not been taken into account for the award of their score for that criterion. In addition to those factors, the comments in the second contested decision are vague and generic and do not constitute an adequate statement of reasons. On the other hand, the applicants do not call into question the sufficiency of the information provided concerning the relative characteristics and advantages of the selected tender for this criterion.
75      First of all, it must be stated that the applicants do not dispute that the statement of reasons for the second contested decision is sufficient. In paragraph 40 of the application, they state that ‘the comments … in the evaluation report concerning [the second criterion] indicated concretely three alleged errors’, that ‘those comments were firm, [for] they justified the ablated 15 marks out of 30 and did not leave any space for different interpretation’ and that they had ‘understood the justification and [had] immediately sent two letters … substantiating that those comments were erroneous.’ In response to a question posed by the General Court at the hearing, the applicants stated that the present complaint concerned the subsequent and contradictory statement of reasons provided by the Commission, which again called into question the statement of reasons given in the second contested decision. The applicants, as they acknowledged, were in a position to understand the deduction of the points for the second criterion in the light of the specific negative comments on the consortium’s tender contained in the second contested decision. Accordingly, their argument raised at the hearing and alleging an inadequate statement of reasons, based on the judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO (T‑556/11, under appeal, EU:T:2016:248, paragraph 250), cannot succeed. Unlike the case giving rise to that judgment, in the present case the contracting authority did not apply a mathematical formula or award fractions of points by sub-criterion or by sub-point so that the applicants were unable to understand the precise calculation or breakdown of the points deducted for each criterion.
76      Next, as regards the argument that the Commission stated, in its letter of 15 January 2015 that most of those negative comments had no effect on the award of lower scores, it is necessary to examine the relevant parts of that letter and the applicants’ claims in their letter of 16 December 2014 by way of response to that letter of 15 January 2015.
77      In their letter, the applicants state that they have noted that ‘their tender ... was penalised because it offered to deliver the project 25 working days before the indicative time-plan included in the tender specifications and before the winning tenderer.’ The Commission responded to that claim by pointing out that their ‘tender did not present the minimum required quality level of 60% for this criterion, as it presented a number of weak points which were illustrated in the evaluation report and, in certain cases were pointed out as clarification questions’, that their ‘tender was not “penalised because it offered to deliver the project 25 days working days before the indicative time-plan”, as you mention[ed]’ and that ‘as documented in the evaluation report, the Evaluation Committee concluded that the “level of detail of the intervention plan [was] fair” (see also question 7 of the request for clarification)’. By that last question of the request for clarification, referring in particular to the fact that the consortium had proposed 225 working days for the total duration of the project, the Commission asked the applicants to explain the reasoning to the effect that the project could be carried out in 25 working days less than the 250 working days estimated in the technical annex.
78      It must be held that the explanations given by the Commission, in its letter of 15 January 2015, show no contradiction with the assessment in the second contested decision which states: ‘The tenderer decides that the project activities can be executed in (at least) 25 working days less than estimated in the [technical annex], however, the Evaluation Committee does not find this decision justified.’ As the Commission contends, that sentence was not the only reason for the loss of points in the present case, but had to be read in the context of the adjacent remarks concerning the level of detail of the contingency plan and the schedule which were generally considered reasonable. It must in particular be read in the light of the conclusion that the Evaluation Committee was ‘not convinced that the proposed project implementation time schedule and staff members’ involvement schedule is realistic and can guarantee successful implementation of the TA.’ The applicants are therefore wrong to claim that the Commission had rejected the other clear, negative observations contained in the evaluation report and, in the reply, that the Commission had made a reference for the first time to the other elements of that report.
79      Finally, the applicants cannot claim that the statement of reasons in the second contested decision is vague, when, in their submissions, they have presented detailed and in-depth arguments on the substance raising specific complaints concerning the Evaluation Committee’s specific comments in support of the scores that had been given to their tender for that criterion. As will emerge from the examination of the second plea in law below, the latter statement of reasons easily enabled the applicants to assert their rights before the General Court.
80      In those circumstances, it must be held that the assessment of the second criterion is reasoned to the requisite legal standard and that is is unnecessary to reply to the Commission’s arguments once again based on the case-law following from the judgment of 10 April 2014, Evropaïki Dynamiki v Commission (T‑340/09, not published, EU:T:2014:208, paragraph 115). Accordingly, the complaint raised in the alternative in the context of the second plea in law must be rejected as unfounded.
81      Since the grounds relating to the second criterion in the second contested decision give reasons for it to the requisite legal standard, it is appropriate, on the basis of the considerations set out in paragraph 69 above, to reject the first plea in law, concerning the statement of reasons in the second contested decision relating to the third criterion, as being ineffective.
The principal claim raised in the context of the second plea in law, alleging the existence of manifest errors of assessment
82      First of all, it is necessary to examine the Commission’s argument that the applicants’ arguments cannot justify annulment of the second contested decision, for the assessment and the score relating to their tender concerning the second criterion, far from relying solely on the three comments challenged by them, were also based on the four other concurring comments issued by the Evaluation Committee and which are not in dispute. It must be stated that that argument is based on the case-law in the judgment of 19 March 2010, Evropaïki Dynamiki v Commission (Case T‑50/05, EU:T:2010:101, paragraph 166), which cannot be transposed to the present case. Contrary to the Commission’s submissions, the applicants dispute the essential aspects underlying the conclusion relating to the second criterion. Their arguments concern, in the first place, the assessment of the efforts proposed for certain team members (in particular under the proposed activity entitled ‘Overall Project management’) as being insufficient to enable the project to be completed, in the second place, the consideration of their decision to deliver the project 25 days before the indicative date referred to in the tender specifications as being unjustified and, in the third place, the assessment of the different phases of their Gantt chart as being sequential and not overlapping. Accordingly, the applicants question, in essence, the conclusion that ‘based on the above, the Evaluation Committee is not convinced that the proposed project implementation time schedule and staff member’s involvement schedule is realistic and can guarantee successful implementation of the [technical annex].’ In addition, it should be noted that some of the previous seven comments either constitute a single element divided into two sentences, or form part of a set of comments on the same element.
83      Even assuming that the committee relied on seven distinct reasons to support its assessment, as the Commission submits, it must be stated that the applicants dispute, in essence, five of those seven reasons and that the other two reasons concerning, first, the unjustified estimate of the completion of the project two months earlier than forecast and, second, the insufficient analysis of the references terms of the presentation of the deliverables cannot, on their own, justify the assessment and the score for the second criterion.
–       The arguments relating to the project management
84      As regards the contested element relating to the overall management of the project, the committee’s assessment was worded as follows:
‘The references to mobilisation of the proposed team members, and the planning of the implementation of activities/tasks and the submission of reports and documents are fair. The proposed effort for certain team members (especially under the proposed activity “Overall project management”) is not sufficient to complete successfully the project. The Evaluation Committee considers the role of the Project Manager of paramount importance for the successful implementation of this project.’
85      It is common ground between the parties that the comments must be read in the light of question 4 of the request for clarification. By that question, the Evaluation Committee asked the consortium to ‘explain in detail how the offered effort for Project Management [would] be sufficient for the needs of the project’. In particular, it consisted of four elements of the consortium’s offer, namely: the number of days planned for the manager of project No 1 (46 days) and for the manager of project No 2 responsible for quality control (15 days), the participation of the project manager in meetings relating to the third criterion, which would involve at least 12 person-days, the participation of the project manager in other meetings relating to the third criterion, which would involve at least 20 person-days, and, consequently, the balance of 14 person-days remaining for all other project management tasks required for the second and third criteria. It appears that the Evaluation Committee considered, on the basis of acquired experience, that the 46 person-days of the lead manager set out in the consortium’s tender for project management were insufficient.
86      First, the applicants claim that their tender was penalised because it complied with the terms of the framework contract for Lot No 4, which allowed project management efforts of up to 10% of the total of person-effort offered in the case of specific contracts, as in the present case, in which the project management activity was not explicitly defined. That argument fails in fact since all the tenderers were required to respect the maximum allowed. Furthermore, the Commission confirms that the effort proposed by the successful tenderer for the overall project management represented less than 10% of the total effort proposed. In any event, it is apparent from the second contested decision that it was not the percentage of effort proposed in the consortium’s offer that was criticised, but rather the fact that it was inadequate for carrying out the project.
87      Second, the applicants claim that they explained to the Evaluation Committee that, in their tender, certain daily management tasks of a lower level falling to the team were entrusted to the team leaders, thus increasing the total effort allocated to project management. Such an argument cannot rebut the committee’s assessment, which, irrespective of the distribution of management tasks among the other members of the team, criticised the consortium’s tender for not allocating the necessary efforts for the project manager, that role being considered ‘of paramount importance'. The importance of that role was clearly indicated in question 4 of the request for clarification. As regards the applicants’ unsupported allegation that the project management proposed in their tender was in line with best market practice, that has no bearing on that assessment by the committee.
88      Third, as regards the arguments based on a comparison of the assessment carried out in the present case and the number of ‘use cases’ required with the assessment of the consortium’s tender and the cases necessary for the second criterion of the Request for Quotation No 455, they should be rejected as inapplicable, in the same way as the considerations in paragraph 65 above. Moreover, the arguments relating to the allegedly too high efforts proposed by the successful tenderer are neither founded (see paragraph 86 above) nor relevant, since the consortium’s tender was rejected at the technical evaluation stage and, therefore, without having been compared with the selected tender. Even were it admissible, the complaint put forward for the first time in the reply and alleging discriminatory treatment of the consortium’s tender compared to the successful tender which had proposed an equivalent percentage of project management is irrelevant.
89      Fourth, the applicants submit that they have demonstrated that the proposed effort for project management was sufficient in their reply of 28 November 2014 (‘the first response’) to the request for clarification and in their letter of 16 December 2014 (‘the second response’) (see paragraphs 21 and 24 above ).
90      In their first response, the applicants stated the following:
‘[T]he project manager (PM1) is supported both by an experienced quality manager (PM2) for specific issues and a Technical Leader (Application Architect — AA) as described in our answer to Criterion [2] for day-to-day management issues and organisation …
PM1 will have 46-11-8.75 = 26.25 person-days left for project planning, execution, monitoring, controlling and closure activities of the project. As explained on page 2 on our response to criterion 2, the Technical Leader will act as the technical interface between the PM and the project team and will coordinate the implementation of the technical architecture. Furthermore, PM2 will undertake all quality related processes of the project: In this regard, the 26.25 person days of PM1 are adequate for the project management activities described in [question 4] points 4a and 4b [of the request for clarification].’
91      It should be noted that that calculation is based on the number of person-days proposed for management by the project manager of the first project, namely 46 person-days. In addition, the applicants deducted the 11 person-days estimated by them as adequate for the initial and monthly meetings required by the activities relating to the third criterion of Request for Quotation No 485. For those tasks, the Evaluation Committee estimated that 12 person-days would be required. The applicants also deducted 8.75 person-days estimated by them as sufficient for the weekly meetings on an allocation of 2 hours per meeting for the manager of the first project, since the manager of the second project and the person responsible for the technical aspects would assist him. In contrast, the Evaluation Committee had estimated that 20 person-days would be required for the management of the first project. Accordingly, the applicants consider that the balance of person-days (from the manager of the first project) for all other management tasks required for the project by the second and third criteria amounts to 26.25 person-days, whereas the committee estimates that to be 14 person-days.
92      In the letter of 16 December 2014, the applicants state that the total number of person-days for project management in their tender was 61 days (out of a total of 632 person-days for the total effort of the project). First, they claim that that tender was penalised for approaching the 10% threshold allowed for project management, even though it was in line with best practice. Second, they merely note that certain daily management tasks of a lower level would fall to the project team leaders, thus increasing the total effort allocated to project management.
93      It is clear that the evidence in the file relied on by the applicants cannot call into question the Evaluation Committee’s assessments. The applicants are unable to demonstrate a manifest error, in particular in view of the Commission’s broad discretion in this area (see the case-law cited in paragraph 35 above). In that regard, the Evaluation Committee clearly stated that it considered that the role of the project manager was essential and that the person-days allocated to that role by the consortium’s tender were insufficient, irrespective of the distribution of management tasks among other team members. It is therefore irrelevant that, as they claim in paragraph 33 of the reply, the applicants proposed a total of 69 person-days for project management. First, such a figure exceeds the 10% threshold allowed by the tender specifications and, second, that effort does not correspond to the assessment that management had to be concentrated in the role of the manager of the first project and was not to be shared amongst the team. In that regard, question 5 of the request for clarification concerned the choice of proposing two project managers instead of one and the means intended to reduce the coordination between the two. In any event, the other persons could not have alleviated the workload of the manager of the first project as regards the execution of the tasks related to overall project management.
94      Fifth, the applicants are wrong to claim, in the reply, that the Commission put forward for the first time in the defence considerations relating to the feasibility of the delivery of services. The sentence in question is taken from the Commission’s letter of 16 January 2015, where it states that ‘“one identical” proposed approach to assure the feasibility of the delivery could objectively not fit both projects, as it may not be well adapted to the implementation and the outputs of distinct projects, which is reflected in the score and comments of the applied award criteria’. That quotation, read in context, answers the applicants’ comments that they had proposed the same approach for the third criterion in the contested Requests for Quotations. Thus, by analogy, the Commission argues in its written submissions that the technical solutions for the second criterion are far from ‘identical’ and that the strategy of proposing the same solution for different Requests for Quotations ‘may not objectively fit two different projects and lead to discrepancies in the distribution of effort to team members such as the PM1.’ Moreover, the characterisation of the present complaint in the reply distorts those assessments which are not, in any event, relevant to the assessment of the second criterion and which, moreover, have already been confirmed, in essence, in paragraph 88 above.
95      In the light of the foregoing, all the arguments alleging a manifest error of assessment relating to project management should be rejected.
–       The arguments relating to the estimated timing of the project
96      The applicants reject the assessment that the proposal of carrying out the project activities in less than 25 days (as a minimum), as estimated in the technical annex, was not substantiated.
97      As the Commission states, the comments in the second contested decision must be read in the light of question No 7 in the request for clarification. That question covers the periods proposed in relation to the periods estimated for the various activities and tasks according to the Gantt chart provided in the tender, which proposed a sequential approach for tasks 1 to 9. In that regard, the Evaluation Committee indicated that, by following that approach, which contravened the specifications in the technical annex, completion of the project would require at least 250 working days, whereas only 225 working days were planned. Consequently, the Evaluation Committee asked the applicants to explain how the project could be carried out in 25 fewer working days.
98      First, the applicants submit that their proposal was justified in terms of the functionality (namely, the number of use cases) to be implemented and complementary activities (such as care, integration, implementation, etc.) of the Request for Quotation. In support of that assertion, they state that that approach was consistent with the ‘COCOMO 2’ methodology, which was part of their tender for Lot 4 and their framework contract. In particular, they refer to the part of that contract entitled ‘Question 5.5.3’ without specifying the relevant part of the fourteen-page document that could support their argument. It should be recalled, in that regard, that it is not for the Court either to seek or to identify in the annexes the pleas and arguments on which it may consider the action to be based, the annexes having a purely evidential and instrumental function, or to speculate about the reasoning and precise observations, both in fact and law, that underline the action (see, to that effect, judgment of 9 September 2010, Evropaïki Dynamiki v EMCDDA, T‑63/06, not published, EU:T:2010:368, paragraph 80).
99      In any event, it must be stated that this document (attached as Annex A.32 to the application) is of a very general nature. It explains how the ‘COCOMO 2’ methodology can be used to calculate the effort required for an IT project on the basis of historical data in order to provide accurate estimates, in particular as regards the expected productivity of team members. Accordingly, it does not address the specific ambiguity identified both in the request for clarification and in the second contested decision.
100    Second, the applicants claim that the commentary in the second contested decision as to the unjustified nature of their proposal to complete the activities 25 days before the estimated deadline in the technical annex goes against the ‘common practice’ of the EU institutions. Assuming that that argument constitutes a complaint alleging infringement of the principle of the protection of legitimate expectations, it is clear that the applicants do not identify either the practice in question or how the Commission’s conduct could have given rise to a legitimate expectation of being awarded the contract (see, to that effect, judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraphs 23 to 26 and the case-law cited). In fact, they merely indicate that the same approach (consisting of delivering the project 25 days early) was favourably considered by the Evaluation Committee for Requests for Quotation No 455, which included 55 use cases, therefore more than the 17 use cases here. That argument must be dismissed, and that put forward in the reply also, alleging inconsistency between the assessments for the contested Request for Quotations, on the basis of the considerations set out in paragraphs 64 and 88 above.
101    Third, in so far as the applicants take the view that they have substantiated the elements of their tender, the estimates in question must first of all be made clear. As the Commission explains, there is a distinction between, on the one hand, the number of working days proposed for a task and, on the other, the timing for the delivery of the overall project. It follows that the effort proposed differs from the project duration. In that regard, the proposed effort corresponds to the number of people involved multiplied by the number of days those people work (working days). In contrast, for the sequential approach to tasks proposed by the consortium (and which allegedly contravened the specifications in the technical annex), the addition of the number of working days devoted to each task was equal to the total duration of the project. It is clear from question 7 of the request for clarification that the commentary disputed in the present case concerned the effort in person-days and not the total duration of the contract. Therefore, the applicants’ arguments as to their proposal to complete the project in two months less than estimated in the technical annex are irrelevant to the present case.
102    Next, it should be noted that the Commission’s estimate of working days for each of tasks 1 to 9 is included in a table on page 8 of the technical annex. Since some overlap of tasks was expected, the mere addition of the days in the table is not relevant in the light of the clarifications in paragraph 101 above. The applicants note, in their reply of 28 November 2014, that ‘no major differences exist between the proposed durations and estimated durations in the technical annex.’ Nevertheless, the table produced in that respect indicates significant differences between the working days for all tasks: for tasks 1 to 6 and 8, the tender proposed between 2 and 20 days less per task, whereas for tasks 7 and 9, it proposed between 1 and 9 more days per task. As the Commission submits, certain tasks are carried out in two (or more) working weeks less than the estimated periods provided in the technical annex, which, according to the Commission, represents a final difference of 20% for those tasks. It is therefore wrong for the applicants to argue that the technical annex provides for a total duration of 220 days (and therefore not 25 additional days than those provided for by their tender). Since the estimate for the number of days for project management takes into account the overlap between the different tasks, which means the total duration of 220 working days, it does not correspond to the addition of the duration of each individual activity (the result of which would be more than 250 working days, namely 270 days).
103    Finally, the applicants are not in a position to provide convincing evidence to justify their estimates of delivering the project as referred to in question 7 of the request for clarification and in the second contested decision. First, the applicants maintain that the estimate of person-days produced in the technical annex constitutes an indication and not a condition to be fulfilled and that any deviation from that indication does not require an explanation. Suffice it to state that the contested comment covered the feasibility of the tender as a whole and that such an argument cannot therefore succeed. Second, the applicants assert in essence that, unlike an approach proposing overlaps between the tasks, their approach allowed team members to focus entirely on one task at a time and, therefore, the duration per task would not necessarily be that estimated by the Commission on the basis of the performance of several tasks at the same time. Such an unsubstantiated statement does not call into question the Evaluation Committee’s comments. As regards the reference, in the reply, to two new annexes demonstrating the use of the ‘COCOMO 2’ methodology in the consortium’s tender for the framework contract, reference should be made to paragraph 98 above, as those considerations are equally applicable in the present case.
104    In the light of the foregoing, all the arguments alleging a manifest error of assessment relating to the estimated periods for the project should be rejected.
–       The arguments relating to the overlapping of tasks
105    As regards the last contested element relating to the overlapping of tasks, the applicants consider that this was not compulsory. They state that they had proposed a sequential approach, since they considered that the overlapping of tasks was unnecessary and that that approach represented an improvement in this respect.
106    First of all, the technical annex stated that: ‘The tasks (tasks 1 to 9 in the following) should be overlapping to the degree permitted by the technical documentation of Section 2 and in view of attaining the project objectives by the end of 2015.’ It should be noted that the word ‘overlapping’ appears in bold. In order to determine whether that requirement can be understood as being merely optional, it should be read in the light of question 6 in the request for clarification. That question asked for explanations as to why, in its tender, the consortium did not propose overlapping tasks 1 to 9 in its tender, despite the instruction to that effect contained in the technical annex (which was reproduced in its entirety). The Evaluation Committee asked the applicants to explain why, in their response to the second criterion, they had chosen to introduce practically no overlap. Moreover, the committee had commented on the sequential nature of the approach, including a long and single critical path of 10 months, which, in its view, would pose a significant project risk. Consequently, the applicants could not be unaware of the importance of the overlaps for the Evaluation Committee and could not claim that the key objective was timely delivery and that any overlap had to be envisaged only for that purpose.
107    Similar considerations apply as regards the argument that the Evaluation Committee was unaware that the consortium’s offer would allow the project to be completed well before the deadline. As is clear from question 6 of the request for clarification, the period for completing the project was not the only consideration underlying the Evaluation Committee’s assessment of the consortium’s offer, in that the committee also indicated that the overlapping of tasks was a less risky approach to the project. In that regard, the argument that the overlapping of tasks 2 and 4 would require the involvement of additional resources, whether well founded or not, is irrelevant.
108    Next, it must be observed that the applicants raise a different argument in the reply, where they claim that the results of each task are used as input in the following subsequent task, so that the execution of parallel tasks is not possible or optimal in the present case. It is clear that that argument is not supported by any evidence and must therefore be rejected.
109    For the sake of completeness, it should be noted that the technical annex explicitly provided for the overlapping of tasks 2 and 4, whereas other tasks were clearly linked. Task 5, for example, focused on the evolution of the ‘IM’ application, carried out in task 3, and provided for the implementation of a mechanism for data exchange which could be fully or partially replaced on the basis of the results of task 4, which implied that the latter task could be undertaken independently. Consequently, the applicants are wrong to take the view that the specifications were drafted in such a way as to merely promote the overlapping of tasks 4 and 5. Even if the applicants were correct in maintaining that overlapping of tasks would result from the repetition of certain activities, it should be noted that the technical annex anticipated, in respect of task 5, the replacement of certain elements as a result of the completion of task 4, for which parallel work was clearly expected.
110    Finally, the applicants contradict themselves in arguing that their tender contained only one critical path, by their subsequent argument that they claimed to have proposed overlapping of certain tasks where this was possible, as depicted in their Gantt chart. As the Commission argues, the activities set out in the reply do not relate to tasks 1 to 9 but are, in reality, small elements in the context of each task.
111    In the light of the foregoing, it is necessary to reject all the applicants’ arguments alleging a manifest error of assessment relating to the overlapping of tasks.
112    It follows that the applicants have not shown that the evaluation of the second criterion and, therefore, the score of 15 out of 30 points obtained on that basis, were vitiated by a manifest error of assessment.
113    Consequently, the main complaint raised in the context of the second plea in law must be dismissed and, therefore, the application for annulment of the second contested decision as a whole.
2.     The claim for damages
114    By the third head of claim, the applicants request that the General Court should order the Commission to pay them damages. They seek the sum of EUR 12 000, which represents 10% of the value of the contract or an amount evaluated ex aequo et bono, which corresponds to the loss of opportunity to perform the contract for Request for Quotation No 485. According to the applicants, the manifest errors of assessment committed by the Commission in the context of that Request for Quotation, as well as the infringement of the Financial Regulation and Implementing Regulation, deprived them of at least four additional points in the evaluation of their tender, which would have been enough for them to obtain the contract. Because that contract was implemented in its entirety and a new procedure would not reproduce the same requirements, the applicants’ loss of opportunity is certain and caused them actual and serious damage.
115    The Commission contends that the claim for damages is unfounded and that the amount sought is in any case unjustified.
116    The Court must, therefore, consider whether the conditions giving rise to the Union’s non-contractual liability are fulfilled.
117    According to settled case-law, for the EU to incur non-contractual liability under the second paragraph of Article 340 TFEU presupposes a combination of conditions as regards the unlawfulness of the conduct complained of by the institution, the reality of the harm and the existence of a causal link between that conduct and the alleged harm (judgments of 11 July 1996, International Procurement Services v Commission, Case T‑175/94, EU:T:1996:102, paragraph 44, and of 11 July 1997, Oleifici Italiani v Commission, T‑267/94, EU:T:1997:113, paragraph 20).
118    If one of those conditions is not satisfied, the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, judgment of 15 September 1994, KYDEP v Council and Commission, Case C‑146/91, EU:C:1994:329, paragraphs 19 and 81).
119    It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the European Union have been satisfied in the present case.
120    It is to be observed that the application for damages is based on the same unlawfulness as that put forward in support of the application for annulment of the second contested decision.
121    The applicants have neither proved, nor provided the General Court with evidence which would enable it to conclude, with any degree of certainty, that its tender ought to have been admitted to the stage of the comparative evaluation of the tenders. Since all the arguments put forward by the applicants to demonstrate the unlawfulness of the decision rejecting their tender for the Request for Quotation No 485 have been examined and rejected, the claim for damages in respect of that Request for Quotation must, in accordance with the case-law cited in paragraph 118 above, be rejected as unfounded.
122    It follows that the claim for damages must be rejected in its entirety.
123    It follows from all the foregoing that the first contested decision must be annulled and the action dismissed as to the remainder.
Costs
124    The applicants maintain that the Commission should be ordered to pay the costs, irrespective of whether the Court allows its action or dismisses it. They claim to have been forced to bring an action on account of the Commission’s incorrect evaluation and the failure to state reasons.
125    The Commission contends that it has not unreasonably or vexatiously caused the applicant to incur costs and that that request should therefore be dismissed.
126    It should be noted that the applicants do not state in what way the costs incurred in the present proceedings are unreasonable or vexatious within the meaning of Article 135(2) of the Rules of Procedure of the General Court.
127    In addition, it must be found that the Commission provided the applicants with the information necessary to bring their action, likewise the General Court to carry out its review.
128    Under Article 134(3) of the Rules of Procedure, where the parties succeed on some and fail on other heads, they are to be ordered to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. Since the applicants succeed in the action for annulment in respect of the first contested decision, but are unsuccessful in the action in respect of the second contested decision and in the action for non-contractual liability it is a fair assessment of the circumstances of the case to order the parties each to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Annuls the decision of the European Commission, contained in the letter of 8 December 2014, rejecting the tender submitted by European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE for the Request for Quotation with reference DESIS III‑000455-6000494078-REQ-01, development of an interactive module, in the context of Lot No 4 of the Call for Tenders DIGIT/R2/PO/2013/029;
2.      Dismisses the action as to the remainder;
3.      Orders each of the parties to bear its own costs.
Frimodt Nielsen
Collins
Valančius
Delivered in open court in Luxembourg on 2 February 2017.
E. Coulon
V. Tomljenović
Registrar
President
Table of contents
Background to the dispute
1.  Request for Quotation No 455
2.  Request for Quotation No 485
Procedure and forms of order sought
Law
1.  The claim for annulment
I. The single plea relating to Request for Quotation No 455 alleging infringement of the obligation to state reasons
II. The pleas in law relating to Request for Quotation No 485
The first plea in law and the plea raised in the alternative in the context of the second plea, alleging infringement of the obligation to state reasons
–  The arguments comparing the reasoning provided in the first and second contested decisions
–  The subsidiary complaint relating to the reasoning in the Evaluation Committee’s comments concerning the second criterion
The principal claim raised in the context of the second plea in law, alleging the existence of manifest errors of assessment
–  The arguments relating to the project management
–  The arguments relating to the estimated timing of the project
–  The arguments relating to the overlapping of tasks
2.  The claim for damages
Costs
* Language of the case: English.