JUDGMENT OF THE GENERAL COURT (Third Chamber)
4 October 2018 (*)
(Public service contracts — Tender procedure — Request for services that were split into two lots — Management consultancy services — Maintenance and updating of statistical tools and resources — Rejection of the tender submitted by a tenderer — Award criteria — Transparency — Equal treatment — Manifest error of assessment — Non-contractual liability)
In Case T‑914/16,
Proof IT SIA, established in Riga (Latvia), represented by J. Jerņeva and D. Pāvila, lawyers,
applicant,
v
European Institute for Gender Equality (EIGE), represented by J. Stuyck, V. Ost and M.Vanderstraeten, lawyers,
defendant,
APPLICATION, first, under Article 263 TFEU for annulment of EIGE’s decision, communicated to the applicant by the letter with reference EIGE/VL/mpD/2016/594 of 14 October 2016, rejecting the tender submitted by the applicant in the context of both lots relating to invitation to tender EIGE/2016/OPER/01 entitled ‘Framework contract on maintenance and update of EIGE’s gender statistics tools and resources’ and awarding the framework contract to another tenderer and, second, under Article 268 TFEU seeking compensation for the harm allegedly suffered by the applicant in respect of loss of opportunity or loss of the contract itself,
THE GENERAL COURT (Third Chamber),
composed of S. Frimodt Nielsen, President, V. Kreuschitz and N. Półtorak (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        The applicant, Proof IT SIA, is an undertaking operating in the information technology sector.
2        The European Institute for Gender Equality (EIGE) was established by Regulation (EC) No 1922/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a European Institute for Gender equality (OJ 2006 L 403, p. 9). It has its seat in Vilnius (Lithuania).
3        As set out in Article 2 of Regulation No 1922/2006, the objectives of EIGE are to contribute to and strengthen the promotion of gender equality, including gender mainstreaming in all EU policies and the resulting national policies, and the fight against discrimination based on sex, and to raise Union citizens’ awareness of gender equality by providing technical assistance to the EU institutions, in particular the European Commission, and the authorities of the Member States.
4        Under Article 5 of Regulation No 1922/2006, EIGE has legal personality. In particular, it may acquire or dispose of movable or immovable property and may be a party to legal proceedings.
5        Furthermore, as set out in Article 4(5) of Regulation No 1922/2006, EIGE ‘may enter into contractual relations, in particular subcontracting arrangements, with other organisations, in order to accomplish any tasks which it may entrust to them’.
6        By a contract notice of 21 June 2016, published in the Supplement to the Official Journal of the European Union (OJ 2016/S 118-209527), EIGE launched a call for tenders, under reference EIGE/2016/OPER/01, for the award of a framework contract of four years’ duration to a single operator, divided into two lots and entitled ‘Framework contract for maintenance and update of EIGE’s gender statistics tools and resources’ (‘the framework contract’).
7        Point 4.1 of the tender specifications, annexed to the invitation to tender, provided that a single framework contract was expected to be signed following completion of the procurement procedure, and a framework service contract per lot was to be awarded for the provision of the services of Lot 1 and Lot 2. The subject of the framework contract was for:
–        Lot 1 — Maintenance, development and updating of statistical data and metadata of EIGE’s gender statistics database; monitoring of its usability and relevance; and the production of reports upon request to support the dissemination process;
–        Lot 2 — Maintenance, development and updating of statistical data and metadata under the entry point of women and men in decision-making positions of EIGE’s gender statistics database and the production of related reports.
8        Under point 4.4 of the tender specifications, the framework contract was for a maximum amount of EUR 1 600 000.
9        As set out at point 3.3.1 of the tender specifications, the contract was to be awarded to the most economically advantageous offer on the basis of the quality/price ratio, in accordance with the formula F = Q × 1000/P, where F is the final score for tender X, Q is the total quality score (out of 100) for all criteria of tender X and P is the price of tender X.
10      The tenderer obtaining the highest score was to be awarded the contract subject to compliance with the condition relating to absence of conflict of interest and with other requirements linked to exclusion criteria.
11      The following table concerning the award criteria and sub-criteria and their weighting is set out at point 3.2 of the tender specifications:
Criteria number
Criteria description
Maximum points per criterion
Minimum required score per criterion
1
Project management:
- Understanding of the objectives of the contract
- Organisation of the project team
- Work Plan
25
8
9
8
13
2
Project methodology and tools:
- Clear and appropriate methodological approach, including sound methodology, quality assurance and quality control plan for delivering the expected results
- Clear and appropriate security technologies that will be implemented in the proposed solution
35
30
5
17
3
Risk management during the contract implementation:
- Clear and appropriate management of requests for changes
- Clear and appropriate management of conflicting requirements
- Clear and appropriate strategy for working under pressure
- Clear and appropriate management of any other risk envisaged
20
5
5
5
5
10
4
Key performance indicators:
-A comprehensive and adequate list of Key Performance Indicators (KPI) for evaluating the quality of the deliverables in accordance with EIGE’s work.
-A comprehensive and adequate list of KPI’s for evaluating the implementation of the contract in line with EIGE’s annual calendar and needs.
20
10
10
10
12      Point 3.2 of the tender specifications provides in addition that tenders scoring either below the minimum score required per criterion or below 70 out of a total of 100 points will be rejected and will not be considered for the next step of the evaluation.
13      After the launch of the call for tenders and during the period for submission of tenders, EIGE replied to several requests for clarification of the tender specifications. However, none of those requests for clarification concerned the interpretation of the award criteria.
14      On 5 August 2016, in response to the contract notice, the applicant submitted its tender for Lot 1 and Lot 2.
15      On 16 August 2016, EIGE appointed a first evaluation committee which carried out an evaluation of the tenders.
16      By letter of 19 September 2016 (‘the letter of 19 September 2016’), EIGE informed the applicant that its tender had not been accepted because it ‘did not present the required minimum quality level for Criterion 3 for Lot 1 and Lot 2’. Since the applicant did not obtain the minimum required score of 10 out of 20 points for award criterion 3 following the technical evaluation, its financial offer was not evaluated.
17      That day, in decisions EIGE/VL/InD/2016/525 and EIGE/VL/InD/2016/526 (together, ‘the first decision’), EIGE awarded the contract for Lot 1 and Lot 2 to the successful tenderer.
18      By letter of 21 September 2016, the applicant asked EIGE to provide information regarding the name of the successful tenderer and the characteristics and relative advantages of the successful tender.
19      By letter of 28 September 2016, the applicant made observations and objections against the evaluation of its tender. It observed that, when the points given by the evaluation committee to its tender for each of the sub-criteria of criterion 3 were correctly added together, it became apparent that its tender reached the minimum score required under that criterion for Lot 1 and Lot 2, and that therefore it had been wrongly rejected.
20      In that letter, the applicant requested EIGE to reply to its letter of 21 September 2016, to disclose the specific methodology for the evaluation of the tender, including the weighting factors for the sub-criteria of each award criterion, to refrain from signing the contract, to re-evaluate its tender and to reconsider the initial decision.
21      EIGE considered the applicant’s observations and found miscalculations and clerical errors in the letter of 19 September 2016.
22      On 5 October 2016, EIGE adopted a suspension decision by which it decided to abstain from signing the contracts for both lots and to appoint a new evaluation committee (‘the second evaluation committee’) to carry out a new evaluation procedure in respect of all the tenders received.
23      The same day, EIGE informed the applicant that its observations would be considered and that a final decision would be taken after a full analysis of the situation. In the same letter, EIGE confirmed that the sub-criteria set out in the tender specifications had been applied by the evaluation committee without any alteration.
24      By letter of 14 October 2016 (‘the letter of 14 October 2016’), EIGE informed the applicant that, following the new evaluation conducted by the second evaluation committee, its tender ‘did not present the required minimum quality level for Criterion 3 for Lot 1 and Lot 2’.
25      Since the applicant’s tender did not reach the minimum score of 10 points out of 20 for Criterion 3 during the technical evaluation, its financial offer was not examined and was therefore rejected. However, the financial offers of the other two tenderers were the subject of a financial evaluation and were ranked according to the formula referred to in the tender specifications.
26      On the same day, by Decisions EIGE/VL/mpD/2016/591 and EIGE/VL/mpD/2016/593, EIGE approved the evaluation report and awarded the framework contract for the two lots to the successful tenderer.
27      By letter of 18 October 2016, the applicant asked EIGE to provide information regarding the name of the successful tenderer and the characteristics and relative advantages of the successful tender. EIGE provided the applicant with the relevant information by letter of 20 October 2016.
28      By letter of 24 October 2016, the applicant filed its observations and objections to the letter of 14 October 2016.
29      On 7 November 2016, the applicant’s representatives made their observations orally during a meeting that took place in Vilnius between EIGE’s representatives and the applicant’s representatives.
30      The second evaluation committee considered the applicant’s observations and provided EIGE with a detailed analysis of those observations.
31      By letter of 10 November 2016, EIGE rejected the applicant’s objections and noted the following:
–        the letter of 19 September 2016, by which the first decision was notified to the applicant, contained material errors: ‘by mistake the grading provided in the notification letter sent to [the applicant] was different from that approved by the evaluation committee in the original evaluation report signed by the first evaluation committee’;
–        a decision had been made to appoint a new evaluation committee to carry out a new evaluation procedure in respect of all the tenders;
–        during the first and second tender evaluations, the methodology described in the tender specifications was followed, the weighting of the criteria and sub-criteria was not altered and ‘both the evaluation committees acting in line with the rules and principles of public procurement interpreted the award criteria in the same way throughout the procedure’.
Procedure and forms of order sought
32      By application lodged at the Court Registry on 27 December 2016, the applicant brought the present action.
33      EIGE submitted its defence on 15 June 2017.
34      By letter registered at the Court Registry on 15 March 2017, the applicant requested that the confidentiality of certain annexes to the application that were said to contain trade secrets be preserved vis-à-vis the public.
35      The applicant did not lodge a reply within the prescribed period.
36      The parties did not lodge a request for a hearing pursuant to Article 106 of the Rules of Procedure of the General Court within the prescribed period.
37      The Court (Third Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.
38      The applicant claims that the Court should:
–        annul EIGE’s decision, which was notified to it by letter of 14 October 2016, rejecting its tender and awarding the framework contract to the successful tenderer (‘the contested decision’);
–        order EIGE to pay it damages for loss of opportunity or for loss of the contract itself in the amount of EUR 128 480;
–        order EIGE to pay the costs.
39      EIGE contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
The application for annulment
40      In support of the application for annulment, the applicant relies on four pleas in law alleging, first, breach of the principles of equal treatment and transparency, on the ground that EIGE did not interpret the award criteria in the same way throughout the procurement procedure; second, breach of the principles of equal treatment and transparency, on the ground that, by entirely re-evaluating its offer, EIGE acted arbitrarily giving rise to concerns of favouritism; third, breach of the principles of equal treatment and transparency, on the ground that the award criteria were imprecise, which had the effect of conferring an unrestricted freedom of choice on EIGE for awarding the contract in question; and fourth, the existence of manifest errors in the assessment of its tender, the correction of which would have changed the outcome of the procurement procedure, in that its offer would not have been rejected and in that it would have been awarded the contract.
The first plea in law, alleging breach of the principles of equal treatment and transparency, on the ground that EIGE did not interpret the award criteria in the same way throughout the procurement procedure
41      In support of the first plea, the applicant submits, first, that EIGE did not interpret the award criteria in the same way throughout the procurement procedure, thus breaching the principles of equal treatment and transparency, which are fundamental principles of EU law and which are also enshrined in Article 102 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), as amended in particular by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1), which applied from 1 January 2016 (‘the Financial Regulation’). In that regard, the applicant notes that, according to settled case-law, the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure.
42      In the present case, according to the applicant, it is obvious that the first and second evaluation committees interpreted the award criteria and sub-criteria in a substantially different manner. That is apparent, first, from the different scores that the applicant’s tender received for each criterion according to the extracts from the evaluation reports supporting the first decision and the contested decision, and, second, from the differences in the reasoning for awarding the scores in question to the applicant’s tender, as is apparent from the extracts from those evaluation reports.
43      The applicant adds that the absence of methodology or guidance facilitated the breach of the principles of equal treatment and transparency, because EIGE was not able to ensure that the two evaluation committees interpreted the award criteria in the same manner. Therefore, EIGE failed to comply with the obligation to ensure, at each stage of the procedure, respect for the principle of equal treatment and, thereby, equality of opportunity for all the tenderers.
44      Consequently, according to the applicant, the circumstances of this case are similar to those in the case which gave rise to the judgment of 18 November 2010, Commission v Ireland (C‑226/09, EU:C:2010:697), where the weighting of the criteria was altered after an initial evaluation of the tenders, which the Court of Justice held was incompatible with the principles of equal treatment and transparency. In particular, by analogy with the solution adopted in that judgment, it is not necessary to demonstrate that a tenderer has been discriminated against, since it is sufficient to note, in that regard, that, at the time the alteration was made, it could not be ruled out that such an effect may occur. Furthermore, according to the applicant, the circumstances giving rise to the present case should be distinguished from those giving rise to the judgment of 24 November 2005, ATI EAC e Viaggi di Maio and Others (C‑331/04, ‘the ATI judgment’, EU:C:2005:718), because, in the present case, the change in interpretation of the award criteria took place after the opening of the tenders and after their initial review.
45      EIGE argues, at the outset, that, in the present case, there were two separate tender procedures, so that the contested decision must be regarded as a withdrawal of the first decision, which has, accordingly, disappeared with retroactive effect from the legal order of the Union. Since the applicant’s action concerns only the contested decision, namely, the decision notified to the applicant by letter of 14 October 2016, the applicant’s claims relating to the first decision are inadmissible.
46      As to the substance, EIGE disputes that there was a breach of the principles of equal treatment and transparency.
Admissibility
47      As regards the admissibility, disputed by EIGE, of the applicant’s claims concerning the first decision, it is common ground that, by its action, the applicant seeks the annulment of the contested decision, which was notified to it by letter of 14 October 2016. It is also common ground that, in its arguments in support of the first plea, the applicant refers several times to the letter of 19 September 2016, by which EIGE informed it of the first decision and of the fact that it had not attained the minimum threshold required for award criterion 3.
48      However, those references to the first decision are made to support the arguments put forward by the applicant in support of the first plea, alleging breach of the principles of equal treatment and transparency and, therefore, in order to challenge the contested decision. In particular, those arguments compare the two decisions in order to show that the award criteria and sub-criteria were interpreted in a substantially different manner during the procurement procedure, thus breaching the principles of equal treatment and transparency.
49      Therefore, EIGE’s plea of inadmissibility must be rejected.
Substance
50      Relying on a supposed analogy between the circumstances of the present case and those of the judgment of 18 November 2010, Commission v Ireland (C‑226/09, EU:C:2010:697), the applicant complains, in essence, that EIGE, breached the principles of equal treatment and transparency, in that it did not interpret the award criteria in the same way throughout the procurement procedure. In particular, according to the applicant, the breach of those principles, which was facilitated by the lack of methodology or guidelines, is clear from the extracts from the evaluation reports supporting the first decision and the contested decision and, in particular, the different scores which, according to those extracts, were awarded to the applicant’s tender in respect of each award criterion and the differences in the reasoning for which the scores in question were awarded.
51      As a preliminary point, it should be noted that EIGE’s public procurement is subject to compliance with conditions set out under Title V of its financial rules adopted by the Management Board on 16 January 2014.
52      Article 85(1) of those financial rules provides that Title V of the Financial Regulation and Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1), as amended by Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7) are, subject to Article 86, to apply to procurement.
53      Procurement procedures organised by EIGE are therefore subject to Articles 101 to 120 of the Financial Regulation and Articles 121 to 172 of Delegated Regulation No 1268/2012, as amended.
54      In particular, under Article 102(1) of the Financial Regulation, ‘all public contracts financed in whole or in part by the budget shall respect the principles of transparency, proportionality, equal treatment and non-discrimination’.
55      In order to ensure compliance with the principles of transparency, equal treatment and non-discrimination, Article 105(2) of the Financial Regulation requires the contracting authority to specify, in the procurement documents, ‘the applicable exclusion, selection and award criteria’.
56      Therefore, the contracting authority is required to ensure at each stage of a tendering procedure that the principle of equal treatment and, thereby, equality of opportunity for all the tenderers is observed. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions. Further, it follows from that principle that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed (see judgment of 24 November 2005, ATI, C‑331/04, EU:C:2005:718, paragraph 22 and the case-law cited).
57      The case-law also shows that the principle of equal treatment implies an obligation of transparency so that it is possible to verify that that principle has been complied with (judgments of 18 June 2002, HI, C‑92/00, EU:C:2002:379, paragraph 45, and of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 91).
58      In particular, in the context of public procurement, the principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the procurement procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 111).
59      The principle of transparency therefore implies that all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a procurement procedure in order, first, to enable all reasonably well-informed tenderers exercising ordinary care to understand their precise scope and to interpret them in the same manner and, second, to enable the contracting authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question (judgment of 12 March 2008, Evropaïki Dynamiki v Commission, T‑345/03, EU:T:2008:67, paragraph 145).
60      Furthermore, the Court of Justice has already held that observance of the principles of equal treatment and transparency in tender procedures implied an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure (judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 92).
61      As far as the award criteria themselves are concerned, it is a fortiori clear that they must not be amended in any way during the tender procedure (see judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 93 and the case-law cited). Furthermore, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention (judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 38).
62      In the light of the considerations set out at paragraphs 51 to 61 above, it is appropriate to exclude, in the present case, a breach of the principles of equal treatment and transparency.
63      In the first place, all the tenderers were on an equal footing when their tenders were assessed. All the tenders submitted in the context of the call for tenders at issue were reassessed by the second evaluation committee, without exception.
64      In the second place, no derogation from the requirements in the tender specifications, and in particular the award criteria, took place to the advantage of any tenderer. It is apparent from the report of the second evaluation committee that all the award criteria and sub-criteria, as defined by the tender specifications, were repeated without any alteration favouring any one tenderer. Therefore, all the tenderers were treated equally, the same award criteria, known from the publication of the tender specifications, applying to all of them.
65      In the third place, contrary to what the applicant claims, the circumstances of this case are not analogous to those of the case which gave rise to the judgment of 18 November 2010, Commission v Ireland (C‑226/09, EU:C:2010:697), which concerned an alteration to the weighting of the award criteria after an initial stage during which members of the evaluation committee reviewed the tenders submitted on an individual basis before that committee’s first meeting as a collegiate body.
66      In the present case, during the procurement procedure at issue, having noted errors in the letter of 19 September 2016, EIGE decided to adopt a suspension decision and to re-evaluate all the tenders, a procedure which it entrusted to a new evaluation committee. Therefore, in the present case, there were two separate evaluations, carried out by two separate evaluation committees.
67      Thus, the differences between the first evaluation committee’s report and that of the second committee concerning both the scores awarded on the basis of the award criteria and sub-criteria and the arguments advanced in order to justify those scores are merely the consequence of there being two successive evaluation committees with different compositions. It is apparent from the evaluation reports and the documents produced by EIGE that the second evaluation committee was not composed of the same members as the first committee.
68      In those circumstances, it is only natural for a tender evaluation carried out by persons other than those who constituted the first committee to lead to different results. That does not prove, however, that one of the tenderers was discriminated against, since all the tenders were re-evaluated by the second evaluation committee (see paragraph 63 above).
69      Furthermore, in that regard, the Court of Justice has already held that an evaluation committee must be able to have some leeway in carrying out its task and thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (judgment of 21 July 2011, Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 35).
70      In the fourth place, as regards the argument that the present case should be distinguished from that which gave rise to the judgment of 24 November 2005, ATI (C‑331/04, EU:C:2005:718), on the ground that the alleged change in the interpretation of the award criteria took place after the opening of tenders and after their first evaluation, whereas in the abovementioned case, it took place before the opening of tenders, the following should be noted.
71      It is true that factual differences exist between the two cases, namely, the fact that in the case which gave rise to the judgment of 24 November 2005, ATI (C‑331/04, EU:C:2005:718), the evaluation committee accorded, after the expiry of the deadline for the submission of tenders and before the envelopes were opened, specific weight to the subheadings of an award criterion established in advance, by dividing among those subheadings the points awarded in respect of that criterion by the contracting authority at the time when the tender specifications or the contract notice was prepared. However, none of the three conditions laid down by the Court of Justice in the abovementioned case was infringed by EIGE and its evaluation committee in the present case. It is apparent from the second evaluation committee’s report that it did not base its assessment and analysis either on tender award criteria other than those set out in the tender specifications, or on the basis of factors which, if they had been known at the time the tenders were prepared, could have influenced that preparation, or by taking into account matters which could be discriminatory against one of the tenderers.
72      In the fifth place, as regards the argument that the lack of methodology or guidelines facilitated the breach of the principles of equal treatment and transparency, as EIGE could not ensure that the two evaluation committees interpreted the award criteria in the same way, it should be pointed out that the Court of Justice has already held that there was no obligation on the contracting authority to bring to the attention of potential tenderers, by publication in the contract notice or in the tender specifications, the method of evaluation applied by the contracting authority in order to specifically evaluate and rank the tenders in the light of the contract award criteria and of their relative weighting established in advance in the documentation relating to the contract in question (judgment of 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraphs 27 and 28).
73      As noted in paragraph 69 above, the Court of Justice has held that an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (see judgment of 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraph 29 and the case-law cited).
74      In the light of all the foregoing considerations, it must be held that, in the present case, all the tenderers were treated equally and the same award criteria, which were known by all the tenderers from the publication of the tender specifications, were applied by both evaluation committees without any alteration during the evaluation of the tenders.
75      Therefore, since no breach of the principles of equal treatment and transparency can be attributed to EIGE, the first plea must be rejected as unfounded.
The second plea in law, alleging breach of the principles of equal treatment and transparency, on the ground that, by re-evaluating the applicant’s tender in its entirety, EIGE acted arbitrarily
76      By its second plea alleging, like the first plea, breach of the principles of equal treatment and transparency, the applicant submits, in essence, that, by the decision to fully re-evaluate the tenders using a new evaluation committee, rather than correcting the arithmetical error in the letter of 19 September 2016 and acknowledging that its tender could be accepted as it had obtained the minimum score required in respect of award criterion 3, EIGE acted arbitrarily in a way which gave rise to concerns of favouritism.
77      Although the applicant acknowledges that, under Article 116 of the Financial Regulation, EIGE is entitled to take whatever measures are necessary to remedy errors or irregularities in the award procedure, it, maintains, however, that those measures must still observe the principles of equal treatment and transparency, ensuring that there is no risk of favouritism or arbitrariness on the part of the contracting authority.
78      EIGE disputes the applicant’s arguments.
79      First, it is apparent from a comparison of the letter of 19 September 2016 with the evaluation report issued by the first evaluation committee that, as regards award criterion 3, the applicant obtained an overall score lower than the minimum threshold required, namely, 7 points out of 20 for Lot 1 and 8 points out of 20 for Lot 2. Similarly, it follows from that comparison that the letter of 19 September 2016 and the first evaluation report are identical as regards the comments made in respect of the sub-criteria of award criterion 3.
80      On the other hand, there is a difference between the first evaluation report and the letter of 19 September 2016 as regards the score given to each award sub-criterion. In other words, it is clear from a comparison of those documents that EIGE clearly made a clerical error in respect of the points awarded for the various sub-criteria. In that letter, although it correctly stated, in accordance with the first evaluation report, the total points obtained by the applicant, it nonetheless referred, in respect of each sub-criterion of award criterion 3, to points differing from those that had been mentioned by the evaluation committee in its report.
81      However, given the similarities and differences which exist between the first evaluation report and the letter of 19 September 2016, and contrary to what the applicant claims, the error in the letter of 19 September 2016 cannot be characterised as a simple ‘arithmetical error’ made in the calculation of the score awarded to the applicant’s tender in respect of award criterion 3.
82      Therefore, EIGE could not disregard the existence of the evaluation report and carry out, as desired by the applicant, a recalculation of the marks. Such an approach would be tantamount to denying the value and content of the first evaluation committee’s report and calling into question the correctness of the procurement procedure, whilst casting doubt on the reliability of that procedure and of the evaluation committee.
83      Second, the approach taken by EIGE of re-evaluating all the tenders is favourable to the applicant. As EIGE points out, since the evaluation report cannot be ignored and as the marks cannot be recalculated in the applicant’s favour, the alternative approach would have been to correct the final score in accordance with the evaluation report and, therefore, in a manner unfavourable to the applicant.
84      Third, as EIGE notes, the decision that it adopted was also in accordance with Article 116(2) of the Financial Regulation, which provides that ‘where the procedure proves to have been subject to substantial errors, irregularities or fraud, the contracting authority shall suspend it and may take any necessary measures, including the cancellation of the procedure’.
85      The applicant’s argument that although EIGE is empowered under Article 116 of the Financial Regulation to take whatever measures are necessary to remedy errors or irregularities in the procurement procedure those measures must still observe the principles of equal treatment and transparency, cannot call that conclusion into question. In the present case, EIGE decided to subject all the tenders to a new evaluation procedure by a formal suspension decision which was notified to all the tenderers.
86      Therefore, no breach of the principles of transparency or of equal treatment can be attributed to EIGE in so far as it decided to correct the error made in applying Article 116(2) of the Financial Regulation. That conclusion is also supported by the fact that, as is apparent from the comparison of the evaluation reports issued by the two evaluation committees, following the second evaluation, the applicant’s tender obtained a final score higher than that awarded by the first evaluation committee, whereas the successful tender obtained a final score lower than the one it had obtained from the first evaluation committee.
87      In view of all the foregoing, contrary to what the applicant argues, in deciding to appoint a new committee responsible for re-evaluating the tenders rather than remedying the clerical error, EIGE did not act arbitrarily giving rise to fear of favouritism, but, on the contrary, acted in the applicant’s interest.
88      Accordingly, the second plea must be rejected as unfounded.
The third plea in law, alleging breach of the principles of equal treatment and transparency on the ground that the award criteria were imprecise
89      In support of the third plea, the applicant claims, in essence, breach of the principles of equal treatment and transparency on the ground that the award criteria were imprecise, vague and lacked clarity, which had the effect of conferring on EIGE an unrestricted freedom of choice as regards the award of the contract in question. It also complains that EIGE included, in the criticism of its tender, elements which were not apparent from the wording of the award criteria.
90      As a preliminary point, EIGE claims that the arguments advanced by the applicant are inadmissible on the basis of a lack of interest in bringing proceedings, in so far as they are directed against award criteria 1 and 2 of the tender specifications.
91      On the substance, EIGE disputes the applicant’s arguments.
92      As regards the question of admissibility raised by EIGE, it is necessary to refer to the considerations detailed in paragraph 185 below.
93      As regards the substance, it should be noted at the outset that the applicant’s assertion that the award criteria are vague, imprecise and lacking in clarity is a general assertion which is not supported by any concrete evidence. Nor does the applicant provide any concrete evidence to support the assertion that the alleged vague and imprecise nature of the award criteria conferred an unrestricted freedom of choice on EIGE in respect of the award of the contract in question.
94      Furthermore, the following information shows that the award criteria for the contract at issue (see the table reproduced in paragraph 11 above) were sufficiently precise and transparent and did not have the effect of conferring an unrestricted freedom of choice on EIGE in respect of the award of that contract.
95      In the first place, in accordance with Article 105(2) of the Financial Regulation, EIGE listed, at point 3.2 of the tender specifications, the technical award criteria which it intended to use with a view to awarding the contract to the most economically advantageous tender (see the table reproduced in paragraph 11 above). EIGE also set out, with the aid of a detailed table, the award sub-criteria chosen and the relative weighting that it intended to give to each of those sub-criteria in order to determine the most economically advantageous tender.
96      Furthermore, it is clear from the tender specifications that, in accordance with Article 110(4), third subparagraph, of the Financial Regulation, those award criteria are linked to the subject matter of the contract. That is clear from the wording of sub-criterion 1 of award criterion 1, concerning understanding of the objectives of the contract concerned.
97      In the second place, according to well-established case-law, the award criteria must be formulated, in the tender specifications or in the contract notice, in such a way as to allow all reasonably well-informed tenderers exercising ordinary care to interpret them in the same way. In that regard the Court of Justice stated that, in order to assess whether the tenderer concerned was in fact unable to understand the award criteria at issue or whether it should have understood them by applying the standard of a reasonably well-informed tenderer exercising ordinary care, it was necessary to take into account the fact that the tenderer concerned and the other tenderers were capable of submitting tenders and that the tenderer concerned, before submitting its tender, did not request clarification from the contracting authority (see, to that effect, judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraphs 54 to 56 and the case-law cited).
98      In the present case, as the award criteria were set out in the tender specifications, the applicant had knowledge of them from the time of publication of those specifications. However, as EIGE rightly observes, the applicant never sought further information from the contracting authority concerning the award criteria before submitting its tender and that was so despite the fact that the tender specifications gave it the opportunity to obtain additional information by sending an email request, an opportunity, moreover, that other tenderers made use of. In addition, two other tenderers were able to submit tenders without requesting further information concerning the award criteria.
99      Consequently, it is necessary to find that the award criteria were formulated, in the tender specifications, so as to allow all reasonably well-informed tenderers exercising ordinary care to understand their precise scope and interpret them in the same way and, therefore, to submit their tenders.
100    Lastly, as regards the argument put forward by the applicant that EIGE included, in the assessment of its tender, elements which were not apparent from the wording of the award criteria, in so far as, by that argument, it seeks to complain that EIGE had an unrestricted freedom of choice in awarding the contract at issue, it must be stated, at the outset, that the applicant has adduced no specific evidence to particularise or substantiate that claim. Furthermore, it is apparent from reading the second evaluation report that the evaluation committee limited itself to applying the award criteria set out in the tender specifications and referred to in the table reproduced in paragraph 11 above and applied no other criterion.
101    In the light of all of the foregoing considerations, the third plea in law must be rejected as unfounded.
The fourth plea in law, alleging manifest errors in the assessment of the applicant’s tender
102    In support of the fourth plea, the applicant maintains that many manifest errors were made by EIGE in the assessment of its tender, without which its tender should not have been rejected and the contract should have been awarded to it. The applicant disputes the evaluation of its tender under all the technical award criteria, listed in point 3.2 of the tender specifications.
103    EIGE disputes the merits of each of the applicant’s claims concerning the award criteria.
104    As a preliminary point, it should be recalled that, according to settled case-law, the contracting authority has a 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, and that the review by the Court must be 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 12 December 2012, Evropaïki Dynamiki v EFSA, T‑457/07, not published, EU:T:2012:671, paragraph 40 and the case-law cited).
The evaluation of sub-criterion 1 of award criterion 3, concerning clear and appropriate management of requests for changes in respect of Lot 1 and Lot 2
Evaluation report
105    As regards sub-criterion 1 of award criterion 3, the second evaluation committee awarded a score of 2 points out of 5 to the applicant’s tender in respect of the two lots. In its report, that committee noted the following regarding the technical quality of the applicant’s tender:
‘The tenderer proposes two steps in the change management — creating a document where all the changes would be registered with specific information, and establishing the Change Advisor Board that would support the process of decision-making regarding high impact changes. The latter initiative lacks definition of high vs. low impact change to ensure smooth work process while preventing overburden[ing] members of the Board. This part of the offer also does not sufficiently reflect the fact that the work under this tender is very broad, complex and heterogeneous and so would be the potential changes concerning different activities. These different types of changes would require adjusted approaches. From the offer, it is not convincing how this level of complexity will be dealt with.’
106    In the light of this extract, the applicant puts forward five complaints.
The first complaint
107    By its first complaint, the applicant submits that sub-criterion 1 of award criterion 3 is vague, because there is no guidance in the tender specifications as to what EIGE regards as a ‘clear and appropriate’ strategy for management of requests for change or according to what factors the weighting points were awarded.
108    EIGE disputes the applicant’s argument.
109    In that regard, it should be noted, in the first place, that, as noted in paragraph 98 above, the applicant never requested clarification from EIGE concerning the award criteria, including award criterion 3, before the submission of its tender, and that was so despite the fact that the tender specifications gave it the opportunity to obtain additional information by sending an email request, an opportunity which, moreover, other tenderers made use of.
110    In the second place, that sub-criterion is particularised, albeit succinctly, in point 2.4.4(h) of the tender specifications. As the applicant itself pointed out, it is apparent from point 2.4.4(h) of the tender specifications that, in order to fulfil sub-criterion 1 of award criterion 3, ‘[the] technical offer [had] to describe clearly the risk assessment and management process’. In particular, the tender specifications state that, to that end, the tenderer must at least ‘describe the strategy that will be followed and will cope with change requests coming from EIGE’.
111    The passage from the tender specifications referred to clearly defines the terms ‘clear and appropriate’, giving tenderers specific indications of what they could put forward to guarantee ‘clear and appropriate’ management of change requests. In particular, the stipulation that the tenderer was required to describe the strategy for ‘coping with change requests coming from EIGE’ clarifies what EIGE means by ‘appropriate’ management of change requests while giving an indication as to the factors which would be taken into account in awarding the weighting points provided in the tender specifications for the sub-criterion in question.
112    In the third place, as EIGE noted, the applicant could have based its proposal on known literature and its own vision of how the contract could be implemented and on several links and references provided in the tender specifications, referring to specific areas of EIGE’s gender statistics database and its areas of work, such as the Gender Equality Index, the Beijing Platform for Action or gender-based violence. Furthermore, it should be noted, in that regard, that in its tender the applicant prides itself on its experience in the field of data analysis and database management. It therefore had all the necessary information to enable it to submit a tender that adequately addressed the objectives and requirements of the contract as set out in the tender specifications.
113    Therefore, the applicant cannot rely on the alleged imprecise and vague nature of sub-criterion 1 of award criterion 3 in order to challenge the evaluation of its tender made by EIGE’s evaluation committee.
The second complaint
114    By its second complaint, the applicant claims that the criticism that its tender ‘lacks definition of high vs. low impact change’ is manifestly unfounded because the definition of high and low impact risks is set out in the section ‘Management of any other risks envisaged’ in respect of Lot 1 and Lot 2 of its tender.
115    EIGE disputes the applicant’s argument.
116    In that regard, it should be observed that, in the present case, the applicant structured its technical offer for Lot 1 and Lot 2 by following the list of award criteria and sub-criteria set out in the tender specifications (see the table reproduced in paragraph 11 above). In particular, in respect of award criterion 3, concerning risk management, the applicant structured its tender in four sections corresponding, in essence, to the four award sub-criteria.
117    Thus, the second evaluation committee’s criticism that the applicant’s tender ‘lacks definition of high vs low impact change’ is made in the light of the section ‘Management of change requests’, which is the first of the four sections of the applicant’s tender concerning award criterion 3.
118    However, it is clear from reading the applicant’s tender that that section contains no definition of changes having a high impact and those having a low impact and that the section ‘Management of any other risk envisaged’ in respect of the tender for Lot 1 and Lot 2 merely contains the definition of risk of low, medium and high impact, without specifying what type of risk, or what kind of impact is concerned.
119    Furthermore, it is clear that nothing in the tender indicates that what is set out in the section ‘Management of any other risks envisaged’ also applies to the section ‘Managing change requests’. Lastly, as each award sub-criterion had to be assessed separately, it was not for the second evaluation committee to take into account information provided in the context of other sections in order to determine the quality of the applicant’s tender.
The third complaint
120    By its third complaint, the applicant claims that the second evaluation committee’s criticism that the risk management strategy proposed is not suitable for the contract because of the level of complexity is not well founded, as there is no requirement in the tender specifications to use any specific risk management methodology or equivalent. It adds that the risk management methodology proposed is universal, used worldwide, and has been applied successfully under several similarly complex and heterogeneous projects, including in previous cooperation with EIGE.
121    EIGE disputes the applicant’s arguments.
122    First of all, it should be observed that the applicant’s assertion that the proposed risk management methodology is universal, used worldwide and has been applied successfully to several similarly complex and heterogeneous projects, including in previous cooperation with EIGE, is merely a general assertion, unsupported by any specific evidence. Next, it is clear that that assertion does not demonstrate that the assessment of the applicant’s tender by EIGE’s second evaluation committee is vitiated by a manifest error. Finally, a reading of the tender specifications shows that the applicant’s argument that those specifications do not require the use of a specific risk management methodology or its equivalent is also unfounded.
123    It is apparent from point 1.6 of the tender specifications, entitled ‘Methodology’, that, with regard to the two public contract lots in question, the tenderer must propose the most appropriate methodological approach in order to ensure the attainment of specific objectives, expected results, requested services, activities and tasks in a timely and cost-effective manner. It follows that the tender specifications give precise indications concerning the specific features that EIGE expected regarding the methodology that had to be set out by the tenderers.
124    Accordingly, it must be held that the second evaluation committee’s comments are justified. EIGE cannot therefore be criticised for any error of assessment.
The fourth complaint
125    By its fourth complaint, the applicant disputes, as unfounded, the second evaluation committee’s criticism that different types of changes require a tailor-made approach. As the tender was submitted with a view to the award of a framework contract, it is, according to the applicant, only possible to consider potential work orders and not possible to tailor the risk management strategy to specific needs. Furthermore, it argues that there is nothing in the tender to suggest that its risk management strategy precluded a tailor-made approach.
126    EIGE disputes the applicant’s arguments.
127    As regards the argument that nothing in the tender suggests that the applicant’s risk management strategy precludes a tailor-made approach, it should be noted, as did EIGE, that without a concrete and comprehensive description of how the applicant would take potential risks into account, there is no guarantee for EIGE that those risks would be dealt with during the implementation of the framework agreement, since EIGE cannot simply assume that the applicant’s strategy would also allow a tailor-made approach.
128    Furthermore, it is clear from point 2.4.4 of the tender specifications that lack of detail in a tender may lead to a negative evaluation of its technical quality. The tender’s level of detail thus carried significant weight in the evaluation of its technical quality.
129    Therefore, the applicant cannot usefully challenge the negative comments of the second evaluation committee.
The fifth complaint
130    By its fifth complaint, the applicant claims that certain positive aspects of its tender were not taken into account by the evaluation committee, namely, the fact that its tender contained a clear proposal for the information to be gathered for each change request, a sample of the actual spreadsheet detailing how it envisaged the work of the project manager with the list of changes and a description of the operational process setting out the change management process with the corresponding diagram of the decision-making process.
131    Furthermore, the applicant submits that it is impossible to infer from the extract of the evaluation report containing the assessment of the successful tender what relative advantages that tender presented in order to justify its score of 4 points out of 5 for Lot 1 and Lot 2.
132    EIGE disputes the applicant’s arguments.
133    First of all, it must be borne in mind that it is apparent from settled case-law that the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see, to that effect, judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited).
134    Next, it should be stated that the second evaluation committee’s report clearly draws attention to certain weaknesses in the applicant’s tender, which the contracting authority could not overlook.
135    Lastly, it is clear from the extract from the evaluation committee’s report containing the assessment of the successful tender that: ‘risks regarding request for changes are clearly assessed showing reliable strategy on how to process and deal with request for changes’. Therefore, as EIGE correctly points out and contrary to what is submitted by the applicant, the extract from the evaluation report clearly explains the advantages of the successful tender.
136    In those circumstances, no manifest error of assessment can be imputed to EIGE.
137    In the light of all the foregoing considerations, it must be concluded that the applicant’s claims do not establish that the assessment made by EIGE’s second evaluation committee was vitiated by a manifest error of assessment as regards sub-criterion 1 of award criterion 3.
Evaluation of sub-criterion 2 of award criterion 3 concerning clear and appropriate management of conflicting requirements in respect of Lot 1 and Lot 2
Evaluation report
138    As regards sub-criterion 2 of award criterion 3, the second evaluation committee awarded the applicant’s tender a score of 2 points out of 5 for both lots. In its report, that committee stated the following concerning the technical quality of the applicant’s tender:
‘Two types of conflicting requirements are described in the tender distinguished as due to the reason of the conflict and the senior consultant is assigned as responsible for conflicting requirements management. Still, the clear strategy for solving these conflicts with necessary steps is missing.’
139    As regards that extract, the applicant puts forward three complaints.
The first complaint
140    By its first complaint, the applicant reiterates the argument that that sub-criterion is vague because there is no guidance in the tender specifications as to what EIGE considers to be a ‘clear and appropriate’ strategy for management of conflicting requirements and according to what factors the weighting points are awarded.
141    EIGE disputes the applicant’s argument.
142    In that regard, it should be noted from the outset, as observed in paragraph 98 above, that the applicant never asked for clarification from EIGE in respect of the award criteria, including award criterion 3, before the submission of its tender, and that was so despite the fact that the tender specifications gave it the possibility to obtain additional information by sending an email request, a possibility, which, moreover, other tenderers made use of.
143    Furthermore, the argument put forward by the applicant cannot call into question the second evaluation committee’s assessment. Contrary to what it submits, the evaluation report does not criticise the applicant for the lack of a clear strategy but rather the lack of a strategy divided into stages enabling the resolution of conflicts which contradictory requirements might generate.
144    However, as noted by the applicant itself, the tender specifications at point 2.2.4(h) state that the technical offer has to describe clearly the risk assessment and management process. In particular, the tender specifications state that, to that end, the tenderer must describe at least ‘the process’ that will be followed and that will deal with conflicting requirements from EIGE. Therefore, point 2.2.4(h) of the tender specifications enables tenderers to understand that the proposed strategy must describe ‘the process’, or the procedure in stages, allowing them to deal with conflicting demands from EIGE.
145    It follows from the above that the first complaint must be rejected.
The second complaint
146    By its second complaint, the applicant claims that its tender contains a clear strategy with regard to various matters. First of all, the tender states that the applicant is determined to identify and manage stakeholder requirements. Next, it refers to an analysis process that deals in detail with requirement gathering and passing those requirements to the development teams. In addition, it states that the applicant is determined to inform the customer of any conflicting requirements received. Furthermore, it distinguishes two fundamentally different reasons for conflicting requirements. Lastly, the tender describes in approximately 400 words specific actions for solving each of the conflicting requirements.
147    EIGE disputes the applicant’s arguments.
148    In that regard, as the second evaluation committee noted (see paragraph 138 above), it is clear from analysis of the section ‘Clear and appropriate management of conflicting requirements’, in the applicant’s tender for Lot 1 and Lot 2, that the applicant envisages two kinds of conflicting requirements depending on the reason for the conflict, namely, conflict due to a lack of information and conflict due to differing views relating to the values of the organisation.
149    However, instead of proposing a strategy set out in stages, the applicant offers only a very general description of how to resolve the second type of conflict, while, as regards the first type of conflict, it merely proposes a solution which involves organising a meeting between experts. Therefore, the second evaluation committee cannot be criticised for any manifest error of assessment in that regard.
150    Furthermore, it is clear that, amongst all the elements listed by the applicant forming its tender (see paragraph 146 above), there is no detailed description of a procedure to follow for addressing EIGE’s conflicting requirements, as requested in the tender specifications. Therefore, those elements, although positive, are not sufficient to call into question the evaluation committee’s assessment noting the lack of a strategy set out in stages for addressing EIGE’s conflicting requirements. They also do not prove the existence of a manifest error in the second evaluation committee’s assessment.
The third complaint
151    By its third complaint, the applicant submits that the extract from the evaluation report containing the assessment of the successful tender does not explain why that tender obtained the maximum score under that sub-criterion for both lots. According to the applicant, it is clear from that extract that even the successful tender does not contain a clear strategy for resolving conflicting requirements, but rather a list of conflicts.
152    EIGE disputes the applicant’s arguments.
153    In that respect, it should be noted that the applicant’s submissions do not establish that the second evaluation committee’s assessment is vitiated by a manifest error of assessment as regards sub-criterion 2 of award criterion 3.
154    Contrary to what the applicant claims, in the extract from the evaluation report relating to the assessment of the successful tender, the second evaluation committee explains clearly why that tender obtained the maximum score under that sub-criterion for both lots.
155    In addition, in so far as, by its argument, the applicant seeks to rely on the fact that EIGE did not provide it with a detailed comparative analysis of its tender and of the successful tender, enabling it to understand what were, in the present case, the characteristics and advantages of that tender, it is sufficient to refer to the case-law set out in paragraph 133 above.
156    It follows that the third complaint must be rejected.
Evaluation of sub-criterion 3 of award criterion 3 concerning a clear and appropriate strategy for working under pressure, in respect of Lot 1 and Lot 2
Evaluation report
157    As regards sub-criterion 3 of award criterion 3, the second evaluation committee awarded the applicant a score of 2 points out of 5 for both lots. In its report, that committee stated the following about the technical quality of the applicant’s tender:
‘The tenderer does not foresee major risks with not complying with the final deadline. However, there are several deadlines in different activities set by the technical specifications, as well as ad hoc requests combined with regular and continuous activities and these need to be reflected in the tenderer’s approach (e.g. in allocation of human and financial resources and its flexibility).’
158    As regards Lot 2, in its report, the second evaluation committee added the following:
‘At the same time, the tenderer should foresee risks related to work with external collaborators in EU Member States as well as other countries within the data collection and should have a clear risk management strategy in this case or it should be clear how the SCRUM will be appropriated in this case.’
159    In the light of those extracts, the applicant puts forward four complaints.
The first complaint
160    By the first complaint, the applicant reiterates the argument that sub-criterion 3 of award criterion 3 is vague because there is no guidance in the tender specifications as to what EIGE regards as a ‘clear and appropriate’ strategy for working under pressure and according to what factors the weighting points are awarded.
161    EIGE disputes the applicant’s argument.
162    First of all, it should be recalled that, before the submission of its tender the applicant never requested clarifications from EIGE concerning the award criteria, including award criterion 3. Next, in its argument, the applicant does not explain in what respect the assessment of the second evaluation committee is vitiated by a manifest error. Finally, it should be noted that the tender specifications, at point 2.4.4(h), give details concerning sub-criterion 3, giving tenderers a clear indication of what they must describe in their tender. It is clear from that point in the tender specifications that the tenderer must describe ‘the strategy that will be followed and will cope with the work under pressure (e.g. tight deadline, unexpected scarcity of resources)’. In particular, the examples listed in parenthesis in that point give a clear indication of what EIGE considers to be an ‘appropriate strategy’.
163    Therefore, the applicant cannot rely on the argument that sub-criterion 3 of award criterion 3 is imprecise and vague in order to challenge the evaluation of its tender by EIGE’s second evaluation committee.
The second complaint
164    By the second complaint, the applicant disputes, as incorrect, the statement in the evaluation report that ‘there are several deadlines in different activities set by the technical specifications’, arguing that there are no specific deadlines for those activities, as point 1.4 of the tender specifications is specifically headed ‘Indicative range of activities, tasks and deliverables per lot’.
165    EIGE disputes the applicant’s argument.
166    In that regard, it is clear that the applicant’s argument is rebutted by the tender specifications which include, as EIGE rightly notes, an indicative timetable for different activities. In addition, as pointed out by the second evaluation committee, the tender specifications provide several deadlines and ad hoc requests, in addition to normal and ongoing activities, which tenderers must take into account and design their tenders accordingly. Their indicative nature does not prevent tenderers envisaging significant potential risks linked to exceeding the deadline.
167    It follows that there was no manifest error of assessment on the part of EIGE.
The third complaint
168    By its third complaint, the applicant argues that the additional criticism regarding Lot 2 that ‘the tenderer should foresee risks related to work with external collaborators’ is irrelevant in respect of the criterion concerning working under pressure. According to the applicant, there is nothing in the tender specifications to suggest that the tenderers should have proposed a methodology for working with external collaborators in EU Member States and other countries. Where appropriate, the applicant would address that issue in respect of each work order separately.
169    EIGE disputes the applicant’s argument.
170    In that regard, it should be noted, first, that, as regards Lot 2, the tender specifications envisage the performance of several activities the first of which is to maintain, develop and update the entry point of the existing database on women and men in decision-making positions. In particular, in order to perform that activity, the tenderer is required to collect statistics on women and men involved in decision-making from various reliable sources at the European and national levels, such as political institutions, national public administrations, EU institutions and agencies, statistical offices, social partners organisations and central banks, in 35 countries.
171    The performance of those activities involves working in cooperation with external partners in the EU Member States and other countries. Therefore, the applicant’s submission that there is nothing in the tender specifications suggesting that the tenderers should have proposed a methodology for working with external collaborators in the EU Member States and other countries cannot succeed.
172    Furthermore, in the light of the foregoing, the second evaluation committee’s criticism that ‘the tenderer should foresee risks related to work with external collaborators’ is not irrelevant in the context of sub-criterion 3. On the contrary, it appears justified, since the fact of working and having to coordinate with external collaborators may be a delaying factor in the work which may have a significant impact on compliance with deadlines and, therefore, be a source of significant pressure on workflow.
173    It follows from the foregoing that the third complaint must be rejected.
The fourth complaint
174    By the fourth complaint, the applicant observes that two positive aspects of its tender were not taken into consideration, namely, explanation of the reasons for which the risk of ‘work under pressure’ could be avoided as such and the 200-word description of the approach envisaged concerning the specific management tools that would be used if it was necessary to work under pressure.
175    EIGE argues that, while appreciating the positive aspects noted by the applicant, the negative aspects referred to by the second evaluation committee justify the score awarded to the applicant’s tender.
176    In that regard, it is clear that whilst, admittedly, the aspects mentioned by the applicant are positive aspects of its tender, the fact remains that that tender also presents the deficiencies identified by the second evaluation committee which justified the score awarded to it. Therefore, EIGE did not commit a manifest error of assessment in that regard.
177    It follows that the applicant has not established that the evaluation of its tender as regards sub-criterion 3 of award criterion 3 was vitiated by manifest errors of assessment.
The evaluation of sub-criterion 4 of criterion 3, concerning clear and appropriate management of any other risk envisaged
178    Without disputing the merits of the second evaluation committee’s remarks concerning sub-criterion 4 of award criterion 3, the applicant merely complains that that sub-criterion is vague, arguing that nothing in the tender specifications indicates what EIGE regards as ‘clear and appropriate’ management of any other risk envisaged or according to what factors the weighting points are awarded.
179    EIGE disputes the applicant’s argument.
180    That argument, which cannot prove that the second evaluation committee’s assessment is vitiated by a manifest error, must be rejected on the basis of the considerations set out in paragraph 98 above. As the applicant never asked EIGE for clarification in respect of the sub-criterion concerned before submitting its tender, despite the option of corresponding with EIGE on this point, the applicant cannot rely on that argument before the Court in order to call into question the evaluation committee’s assessment.
181    It follows from the above that the applicant has not established that the evaluation of its tender as regards sub-criterion 4 of award criterion 3 is vitiated by a manifest error of assessment.
The evaluation of award criteria 1 and 2
182    Under the fourth plea in law, alleging the existence of manifest errors committed by the second evaluation committee in the assessment of its tender, the applicant submits that several manifest errors exist which also relate to award criteria 1 and 2 of the tender specifications.
183    As a preliminary point, EIGE claims that the applicant’s arguments are inadmissible as it has no legal interest in advancing those arguments and, more generally, the third and fourth pleas in law, in so far as those pleas are directed against award criteria 1 and 2 of the tender specifications. As the applicant’s tender was rejected on the ground that it had not reached the minimum threshold of 10 points out of 20 in respect of award criterion 3, that fact is sufficient, according to EIGE, to justify the contested decision. Furthermore, it adds that the applicant has not proved what interest it might have in the annulment of the contested decision on the basis of award criteria 1 and 2.
184    On the substance, EIGE disputes that it made manifest errors of assessment in the evaluation of the applicant’s tender under award criteria 1 and 2.
185    In that regard, it is sufficient to note that, as the applicant has not established that the evaluation of its tender as regards award criterion 3 was vitiated by manifest errors of assessment, the arguments which it puts forward in support of the third and fourth pleas in law, alleging, respectively, a lack of clarity as regards award criteria 1 and 2 and manifest errors committed by the second evaluation committee in the assessment of those criteria, must be rejected as ineffective. Even if its score for those award criteria had been greater, that would not have affected the assessment of its tender under award criterion 3. Since the applicant failed to reach the minimum threshold required by the tender specifications for award criterion 3, the applicant’s tender had to be rejected.
186    Since all of the pleas in law put forward by the applicant have been rejected, the application for annulment of the contested decision must, as a consequence, be rejected.
The claim for damages
187    The applicant claims financial compensation, which it assesses at EUR 128 480, for the loss of opportunity suffered by it in the circumstances, that is the loss of the contract in question, caused by EIGE’s supposedly unlawful conduct.
188    In particular, the applicant bases the claim for damages on the same unlawful conduct as that relied on in support of the application for annulment of the contested decision and submits that that decision is vitiated by several instances of unlawful conduct, including breach of the principles of equal treatment of tenderers and transparency and manifest errors of assessment.
189    As regards the existence of a causal link between the unlawful conduct at issue and the damage allegedly suffered, the applicant submits that if EIGE had not rejected its tender in breach of the principles of equal treatment and transparency and on the basis of manifest errors of assessment, it should have been awarded the framework contract.
190    As regards the damage the applicant claims to have suffered, it argues that even taking into account the broad discretion enjoyed by EIGE with respect to the award of the contract at issue, the loss of opportunity that it suffered in the present case or even the loss of the contract itself, constitutes actual and certain damage in accordance with the case-law.
191    Lastly, the applicant submits that in circumstances such as those in the present case, in which the loss of opportunity is irremediable, it would be contrary to the right of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union for the EU judicature to refuse to acknowledge the applicant’s loss of such an opportunity or even the loss of the contract and compensation.
192    EIGE disputes the applicant’s arguments.
193    First, it should be recalled that, pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.
194    According to settled case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely, the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage pleaded. Where one of those conditions is not satisfied the action must be dismissed in its entirety, without there being any need to consider the other conditions (see judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraphs 39 to 42 and the case-law cited; of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 106 and 164 to 166 and the case-law cited; and of 15 October 2013, Evropaïki Dynamiki v Commission, T‑474/10, not published, EU:T:2013:528, paragraph 215 and the case-law cited).
195    Pursuant to Article 18(2) of Regulation No 1922/2006, EIGE must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or its servants in the performance of their duties. The principles set out in paragraph 194 above must be regarded as applicable to non-contractual liability incurred on account of unlawful conduct and damage caused by EIGE.
196    It is necessary, therefore, to consider whether those conditions are fulfilled in the present case.
197    In that regard, it should be noted that the applicant bases its claim for compensation on the same unlawful conduct as that relied on in support of its application for annulment of the contested decision.
198    In the present case, all the arguments which the applicant has put forward in support of its application for annulment in order to demonstrate the unlawfulness of the contested decision have been considered and rejected.
199    It follows that the applicant has failed to prove unlawful conduct on the part of EIGE.
200    The claim for damages must therefore be rejected without it being necessary to rule on the other conditions for non-contractual liability to be incurred by EIGE.
The request for confidential treatment
201    By letter registered at the Court Registry on 15 March 2017 (see paragraph 34 above), the applicant requested confidential treatment vis-à-vis the public of pages 68 to 233 of Annex A.2 and pages 275 to 277 of Annex A.11 to the application.
202    Those documents are, respectively, the technical offer and the financial offer submitted by the applicant in connection with the contract at issue.
203    In support of its application, the applicant submits, in essence, that pages 68 to 233 of Annex A.2 and pages 275 to 277 of Annex A.11 contain trade secrets so that their disclosure might reveal crucial economic, technical and financial information, which might reduce its competitiveness on the internal market for IT services and damage its commercial interests by causing it potential financial damage. Thus, such a disclosure would infringe its fundamental rights related to the protection of intellectual property within the European Union.
204    As regards Annex A.11, it should be noted at the outset that, since the applicant’s tender was rejected by EIGE before the stage of examination of the financial offers, no reference to that annex is made in the present judgment.
205    Concerning Annex A.2, namely, the applicant’s technical offer, it is clear that no reference to the content of that technical offer in the present judgment discloses crucial economic, technical and financial information containing the applicant’s trade secrets.
206    Therefore, there is no legitimate reason to allow the request for confidential treatment of pages 68 to 233 of Annex A.2 and pages 275 to 277 of Annex A.11 to the application made by the applicant.
207    In the light of all the foregoing, the action must be dismissed in its entirety.
Costs
208    Under Article 134(1) 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 the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EIGE.
On those grounds,
THE GENERAL COURT (Third Chamber),
hereby:
1.      Dismisses the action;
2.      Orders Proof IT SIA to pay the costs.
Frimodt Nielsen
Kreuschitz
Półtorak
Delivered in open court in Luxembourg on 4 October 2018.
E. Coulon
S. Frimodt Nielsen
Registrar
President
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
The application for annulment
The first plea in law, alleging breach of the principles of equal treatment and transparency, on the ground that EIGE did not interpret the award criteria in the same way throughout the procurement procedure
Admissibility
Substance
The second plea in law, alleging breach of the principles of equal treatment and transparency, on the ground that, by re-evaluating the applicant’s tender in its entirety, EIGE acted arbitrarily
The third plea in law, alleging breach of the principles of equal treatment and transparency on the ground that the award criteria were imprecise
The fourth plea in law, alleging manifest errors in the assessment of the applicant’s tender
The evaluation of sub-criterion 1 of award criterion 3, concerning clear and appropriate management of requests for changes in respect of Lot 1 and Lot 2
Evaluation report
The first complaint
The second complaint
The third complaint
The fourth complaint
The fifth complaint
Evaluation of sub-criterion 2 of award criterion 3 concerning clear and appropriate management of conflicting requirements in respect of Lot 1 and Lot 2
Evaluation report
The first complaint
The second complaint
The third complaint
Evaluation of sub-criterion 3 of award criterion 3 concerning a clear and appropriate strategy for working under pressure, in respect of Lot 1 and Lot 2
Evaluation report
The first complaint
The second complaint
The third complaint
The fourth complaint
The evaluation of sub-criterion 4 of criterion 3, concerning clear and appropriate management of any other risk envisaged
The evaluation of award criteria 1 and 2
The claim for damages
The request for confidential treatment
Costs
*      Language of the case: English.