JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
25 March 2015 (*)
(Public service contracts — Tendering procedure — Supply of IT services — Classification of a tenderer in second or third position in the cascade procedure — Obligation to state reasons — Manifest error of assessment — Non-contractual liability)
In Case T‑297/09,
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,
applicant,
v
European Aviation Safety Agency (EASA), represented by F. Kämpfe, acting as Agent, and by J. Stuyck, lawyer,
defendant,
APPLICATION, first, for annulment of EASA’s decisions to classify the applicant’s tenders in second or third position according to the cascade mechanism in call for tender EASA.2009.OP.02 relating to ‘ICT Services’ in the field of information technology and communications (OJ 2009/S 22-030588) and, second, for damages for the harm alleged to have been suffered on account of the tendering procedure in question,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 15 May 2014,
gives the following
Judgment
Legal context
1        The European Aviation Safety Agency (EASA) was established by Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1). At the material time, that regulation had been repealed and replaced by Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 repealing also Council Directive 91/670/EEC and Directive 2004/36/EC (OJ 2008 L 79, p. 1).
2        According to Article 74 of EASA’s Financial Regulation, in the version applicable at the material time, and Article 76 of its Implementing Rules, procurement by EASA was to be subject to the relevant provisions of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’) and in particular to those laid down in Title V of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1; ‘the Implementing Rules’).
3        Article 89(1) of the Financial Regulation provides:
‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination.’
4        Article 97 of the Financial Regulation provides:
‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating the content of the tenders shall be defined in advance and set out in the call for tender.
2. Contracts may be awarded by the automatic award procedure or by the best-value-for-money procedure.’
5        Article 100 of the Financial Regulation provides:
‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.
2. The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible 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.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
6        According to Article 138 of the Implementing Rules:
‘1. Contracts shall be awarded in one of the following two ways:
(a)      under the automatic award procedure, in which case the contract is awarded to the tender which, while being in order and satisfying the conditions laid down, quotes the lowest price;
(b)      under the best-value-for-money procedure.
2. The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.
3. The contracting authority shall specify, in the contract notice or in the specification or in the descriptive document, the weighting it will apply to each of the criteria for determining best value for money …’
7        Article 149 of the Implementing Rules provides:
‘2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.
3. … Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing … and all tenderers who have put in an admissible tender 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 100(2) of the Financial Regulation. The contracting authority shall reply within no more than 15 calendar days from receipt of the request.’
Background to the dispute
8        The applicant, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law, active in the field of information technology and communications, and in particular in the market of IT programs.
9        On 3 February 2009, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2009/S 22˗030588), EASA launched call for tenders EASA.2009.OP.02 for the supply of services in the field of information technology and communications, consisting of five lots (‘the call for tenders at issue’).
10      The contract notice provided that the IT services in question were to be divided into five lots:
–        lot 1: Web applications development and maintenance,
–        lot 2: Client-server applications, development and maintenance,
–        lot 3: System, database, and network administration,
–        lot 4: SAP maintenance and support,
–        lot 5: Enterprise content management (‘ECM’), enterprise records management, document management implementation, maintenance and support.
11      The contract notice and the tender specifications state that the multiple framework contracts are to be awarded for each lot to a maximum of three operators whose tenders offer the best value for money in terms of the criteria stated in the tender specifications. The tender specifications state that the duration of the framework contract is two years, renewable twice for one year, and that the total estimated value of purchases for the total period of the framework contract is EUR 16 100 000.
12      According to the tender specifications, each tenderer could submit bids for one or more lots. For each lot, tenderers were selected according to the ‘cascade mechanism’ (‘the cascade’).
13      The tender specifications stated, moreover, that the award procedure consisted of three stages, each one being eliminatory: first, the examination of the conditions for the exclusion of tenderers, second, the selection of tenderers and, third, the evaluation of the value for money of the tenders.
14      The evaluation of the tenders, in the third stage  was conducted in two successive phases, namely the evaluation of the technical bid, followed by the evaluation of the financial offer. The evaluation of the technical bid was based on the evaluation grid, set out in Section 4.1 of the tender specifications, specifying the award criteria and their weightings. Thus, it was possible to score up to 40 points under the first criterion, headed ‘Quality of proposed consultants’, but, in order to be considered technically suitable, the tenderer had to obtain at least 20 points. Under the second criterion, headed ‘Selection of consultants and replacement method’, it was possible to score up to 20 points, but in order to be considered technically suitable, the tenderer had to obtain at least 10 points. Under the third and fifth criteria, headed ‘Project management methodology’ and ‘Skills development’ respectively, it was possible to score up to 10 points, but, in order to be considered technically suitable, the tenderer had to obtain at least 5 points for each of those criteria. Under the fourth criterion, headed ‘Technical knowledge management’, it was possible to score up to 15 points, but, in order to be considered technically suitable, the tenderer had to obtain at least 7 points. Under the sixth criterion, headed ‘Overall quality of the proposal’, it was possible to score up to 5 points, but, in order to be considered technically suitable, the tenderer had to obtain at least 2 points. The grid indicated also that the tenderer had to obtain at least 60 points out of 100 for its final score.
15      The evaluation of the financial bid was effected by means of the final average price (‘the FAP’), calculated on the basis of the relative weighting of the average fixed price (namely, the prices of off-site missions calculated by the weighting factors per profile of each lot) and of the price of average times and means (namely, the prices of on-site missions calculated by the weighting factors per profile of each lot), the relevant formulae being set out in the tender specifications. It is provided that the contract would be awarded to the most economically advantageous tender established, for all lots, by weighing technical quality against price on a 60/40 basis.
16      On 9 March 2009, the deadline for the submission of tenders, the applicant tendered for lots 1, 2, 3 and 5.
1.     Lot 1
17      On 12 May 2009 EASA adopted the award decision for lot 1 and informed the tenderers of the result of the procedure. The applicant was informed that its bid had been placed second for the framework contract corresponding to lot 1.
18      By letter of 25 May 2009, EASA provided the applicant, following a request by it of 15 May 2009, with the names of the tenderers ranked in first and third positions, a table of the scores awarded for each award criterion to the applicant and the consortium ranked first and also the respective comments of the Evaluation Committee, together with the financial score awarded to the applicant’s tender (‘the information report for lot 1’). EASA also informed the applicant that there was nothing to justify providing it with the names of the members of the Evaluation Committee, a copy of the evaluation report or the financial bids of the successful tenderers, specifying the relevant regulatory provisions in that regard.
19      By letter of 26 May 2009 the applicant, in essence, informed EASA that, first, one of the members of the consortium ranked in first position for lot 1 had taken part in illegal activities and, second, that the other member of that consortium had been declared to be in serious breach of its contractual obligations in the context of an earlier contract with the European Chemicals Agency. According to the applicant, EASA was therefore required to exclude that consortium from the contract award procedure. In the same letter, the applicant claimed that the Evaluation Committee had made a number of manifest errors of assessment in the evaluation of its tenders and that the award decision was vitiated by an absence of reasoning. Lastly, the applicant reiterated its request to be informed of the names of the members of the Evaluation Committee.
20      On 6 July 2009 EASA communicated to the applicant a report stating, in particular, that none of the three chosen tenderers was in a situation of being excluded from the award of the contract in question and that no error had been made by the Evaluation Committee, and a framework contract for lot 1 for signature.
21      By letter of 7 July 2009 to EASA, the applicant contested the merits of EASA’s replies and invited it to reconsider its decision concerning lot 1, failing which it would bring an action before the General Court of the European Union.
22      On 27 July 2009 the applicant countersigned the framework contract for lot 1.
2.     Lot 2
23      By letter of 7 May 2009 EASA asked the applicant to extend its tenders for lots 2, 3 and 5, to which the applicant agreed, for a period of 40 days, namely until 20 July 2009.
24      On 6 July 2009 EASA adopted the award decision for lot 2. By letter of 8 July 2009 the applicant was informed that its tender had been ranked third for the framework contract corresponding to lot 2.
25      By letter of 14 July 2009, EASA provided the applicant, following a request by it of 9 July 2009, with the names and final results of the tenderers ranked in first and second positions according to the cascade, a table of the scores awarded to it for each award criterion and also the respective comments of the Evaluation Committee, together with the financial score awarded to the applicant’s tender (‘the information report for lot 2’). EASA also informed the applicant that there was nothing to justify providing it with the names of the members of the Evaluation Committee, a copy of the evaluation report or the financial bid of the successful tenderers, specifying the relevant regulatory provisions in that regard.
26      On 12 August 2009 EASA sent the applicant a framework contract for lot 2, which the applicant countersigned on 7 September 2009.
3.     Lot 3
27      On 10 July 2009 EASA adopted the award decision for lot 3. By letter of 13 July 2009 the applicant was informed that its tender had been ranked second for the framework contract corresponding to lot 3.
28      By letter of 20 July 2009, EASA provided the applicant, following a request by it of 14 July 2009, with the names and final results of the tenderers ranked in first and third positions according to the cascade, a table of the scores awarded to it for each award criterion and also the respective comments of the Evaluation Committee, together with the financial score awarded to the applicant’s tender (‘the information report for lot 3’). EASA also informed the applicant that there was nothing to justify providing it with the names of the members of the Evaluation Committee, a copy of the evaluation report or the financial bid of the successful tenderers, specifying the relevant regulatory provisions in that regard.
29      On 12 August 2009 EASA sent the applicant a framework contract for lot 3, which the applicant countersigned on 7 September 2009.
4.     Lot 5
30      On 14 July 2009 EASA adopted the award decision for lot 5. By letter of 15 July 2009 the applicant was informed that its tender had been ranked second for the framework contract corresponding to lot 5.
31      By letter of 20 July 2009, EASA provided the applicant, following a request by it of 15 July 2009, with the names and final results of the tenderers ranked in first and third positions according to the cascade, a table of the scores awarded to it for each award criterion and also the respective comments of the Evaluation Committee, together with the financial score awarded to the applicant’s tender (‘the information report for lot 5’).
32      On 12 August 2009 EASA sent the applicant a framework contract for lot 5, which the applicant countersigned on 7 September 2009.
Procedure and forms of order sought
33      By application lodged at the Court Registry on 22 July 2009, the applicant brought the present action.
34      Upon hearing the Report of the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, put written questions to the applicant, which replied within the period prescribed.
35      The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 15 May 2014.
36      The applicant claims that the Court should:
–        annul EASA’s decisions to select its tenders for lots 1, 3 and 5 as second in the cascade and, for its tender for lot 2, as third in the cascade (‘the contested decisions’), and all related decisions, including the decisions to award the contract to the tenderers placed first in the cascade for those lots;
–        order EASA to compensate the applicant for the harm suffered on account of the tendering procedure in question, evaluated at EUR 6 100 000;
–        order EASA to pay the costs, even if the action should be dismissed.
37      EASA contends that the Court should:
–        dismiss the application for annulment as inadmissible and, in any event, as unfounded;
–        dismiss the application for damages as inadmissible, or at least as unfounded;
–        order the applicant to pay the costs.
Law
1.     The application for annulment
38      The Court notes, as a preliminary point, that, by its first head of claim, the applicant is asking the Court to annul ‘EASA’s decisions to select [its] bids [as the second or third ranked tenderer] … [in respect of lots 1, 2, 3 and 5 of the call for tenders at issue], [which were] communicated to [it] by [four] separate letters dated 12 May 2009, 8 July 2009, 13 July 2009 and 15 July 2009 and all further related decisions of EASA including the one to award the contract to the successful contractors’.
39      The applicant specified at the hearing, in reply to a question put by the Court, that it was withdrawing its application for annulment of all further related decisions contained in its first head of claim; that head of claim concerned only the decisions to rank its tenders second or third in the cascade. It follows that this action relates only to the contested decisions. Accordingly, the scope of the present application for annulment must be restricted to an examination of the lawfulness of those decisions.
Admissibility
40      In the defence, EASA contends that the application for annulment is inadmissible on the ground, in essence, that the applicant has failed to show that it has an interest in bringing the action. First, as it is one of the tenderers to which framework contracts were awarded for the four lots, according to the cascade, it cannot be precluded that it will conclude specific contracts with EASA. Second, the applicant cannot challenge the award decisions, since it signed four framework contracts for the four lots in question and annulment of the contested decisions would serve no useful purpose for it.
41      According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the contested measure being annulled (judgments of 14 September 1995 in Antillean Rice Mills and Others v Commission, T‑480/93 and T‑483/93, ECR, EU:T:1995:162, paragraph 59; 25 March 1999 in Gencor v Commission, T‑102/96, ECR, EU:T:1999:65, paragraph 40; and 14 April 2005 in Sniace v Commission, T‑141/03, ECR, EU:T:2005:129, paragraph 25). That interest must be vested and present (judgment of 17 September 1992 in NBV and NVB v Commission, T‑138/89, ECR, EU:T:1992:95, paragraph 33) and is evaluated as at the date on which the action is brought (judgment of 16 December 1963 in Forges de Clabecq v High Authority, 14/63, ECR, EU:C:1963:60, p. 357, at 371, and judgment in Sniace v Commission, cited above, EU:T:2005:129, paragraph 25).
42      In the present case, as EASA observes, each framework contract is implemented by specific contracts concluded according to the cascade mechanism. According to Section 2.7.1 of the tender specifications, when more than one contractor is nominated, EASA determines the specifications of the services required and will first address its request to the contractor who has been ranked first. If this contractor is unable to meet any of the criteria, EASA will address the same request to the contractor who has been ranked second. This process will end with conclusion of a specific contract with one of the contractors who were ranked among the top three and who can meet all the specifications of the services. It follows that if the applicant had been ranked first according to the cascade, this might have secured an advantage for it and that its ranking in a lower position amounts to a significant loss of opportunity. Such a ranking decision therefore produces legal effects vis-à-vis the applicant.
43      Moreover, the fact that the framework contracts which are the subject of the call for tenders at issue have been signed and implemented does not call into question the applicant’s legal interest in bringing proceedings. It is settled case-law that, even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer’s being properly restored by the contracting authority to his original position or in prompting that authority to make suitable amendments in the future to the tendering procedure if that procedure is found to be incompatible with certain legal requirements (see, to that effect, judgments of 6 March 1979 in Simmenthal v Commission, 92/78, ECR, EU:C:1979:53, paragraph 32, and of 14 October 1999 in CAS Succhi di Frutta v Commission, T‑191/96 and T‑106/97, ECR, EU:T:1999:256, paragraph 63). In the present case, the applicant retains at least an interest in the tenderers’ being correctly ranked according to the cascade.
44      It follows from all the foregoing that the action is admissible.
Substance
45      During the hearing, the applicant withdrew the plea alleging breach of the principle of non-discrimination, of Article 93(1) and of Article 94 of the Financial Regulation, and of breach of the principle of sound administration, in its entirety. It also stated that its observations on the principle of effective judicial protection in the field of tendering procedures for the award of public contracts constituted only the context of its action.
46      By a line of argument entitled ‘Manifest errors of assessment [ —] failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee]), infringement of the principle of equal treatment, non[-] compliance of the first successful tenderer [with] the Tender specifications’, the applicant, in essence, submits, first, that EASA made manifest errors of assessment in the evaluation of its tender for each lot and, in the context of each lot, for each of the six award criteria and, second, claims that there was an insufficient statement of reasons. In its submission, the Evaluation Committee does not specify clearly what is not included in its tender or what is not set out in sufficient detail, or the number of points deducted in that regard with respect to its tender and on what grounds.
47      EASA disputes the applicant’s arguments. EASA relies, moreover, on a number of arguments, without attaching them to a specific plea, which seek to demonstrate that the applicant misused the administrative procedure and relied before the Court on numerous arguments that are manifestly unfounded.
48      The Court considers it appropriate, in the present case, to examine the line of argument as presented by the parties in their written pleadings, namely lot by lot.
Lot 1
–       Arguments of the parties
49      In the first place, the applicant disputes the Evaluation Committee’s assessment relating to award criterion 1 (‘Quality of the proposed consultants’), for which it obtained a score of 34.66 out of 40.
50      First of all, the applicant maintains that the Evaluation Committee did not explain the reasons why the consultants which the applicant proposed did not satisfy the tender specifications or why it deducted 15% from the maximum award points when there was no negative comment. Next, in its letter of 6 July 2009, EASA incorrectly concluded that the proposed consultants did not have sufficient knowledge of a number of technologies. Lastly, the Evaluation Committee did not identify what technologies the consultants lacked knowledge of or the consequences which that lack of knowledge had on the marks awarded.
51      In the second place, the applicant disputes the Evaluation Committee’s assessment of award criterion 2 (‘Selection of consultants and replacement method’), for which it obtained a score of 18 out of 20.
52      The applicant also disputes the Evaluation Committee’s comment indicating the lack of a retention policy and claims that it complied strictly with the tender specifications. First of all, those specifications did not require such a policy and the Committee therefore infringed Article 97(1) of the Financial Regulation, Article 138 of the Implementing Rules and the relevant case-law.
53      Next, the comment is unfounded, in that the applicant’s tender described its retention policy under Chapter ‘3.3.1.5 — Orientation programme’ and its retention measures and means under Chapter ‘3.4.1.1 Follow-up and support’. In addition, the Evaluation Committee failed to take account of the personnel evaluation form or the self-review form annexed to the latter document, which show the importance of the applicant’s retention policy. The applicant claims that the Evaluation Committee made a manifest error of assessment in that it acknowledged, moreover, that the applicant’s retention policy ‘[could] be found spread across various chapters of [its] tender’ but that that tender had not presented a retention policy as a separate process in connection with the selection and replacement method.
54      Furthermore, the Evaluation Committee ought to have excluded the tenderer ranked in first place according to the cascade, whose tender is in breach of the tender specifications in that it provides for EASA’s involvement in the selection of consultants. The applicant claims, moreover, that the positive comments made in relation to the successful bidder’s tender were not made in respect of the applicant’s own tender, although each of those comments referred to elements common to both tenders, resulting in a breach of the principle of equal treatment.
55      Lastly, the Evaluation Committee did not specify either the retention policy measures not covered by the applicant’s tender or what the other tenderers had proposed in addition or that was better. The Evaluation Committee has not supported its position either in response to the applicant’s observations in its letter of 26 May 2009 or by reference to the high marks awarded to the successful tenderer whose tender did not contain any ‘skill tests’ and was in breach of the tender specifications.
56      In the third place, the applicant disputes the Evaluation Committee’s assessment of award criterion 3 (‘Project management methodology’), for which it obtained 7.6 out of 10.
57      The applicant disputes the comments in the information report for lot 1, which stated that its tender was ‘[t]oo … focused on processes describing the SLA [service level agreement] and contract implementation’ and its project management approach was ‘generic and simplistic for development projects’; those comments are vague and fail to specify how the applicant did not observe the requirements laid down in the tender specifications. The applicant refers to numerous chapters in its tender which demonstrated a comprehensive approach to project management that cannot be described as simplistic or generic. The proposed project management approach, being based on the standard Prince2 project management methodology of the Office of Government Commerce (OGC), which is widely adopted internationally, cannot be described as simplistic. The Evaluation Committee thus made a manifest error of assessment.
58      In addition, the justification in EASA’s letter of 6 July 2009 is vague and incorrect. The defence contains a serous contradiction in that EASA claims that it positively took into consideration the applicant’s adherence to best practice project management methodology. The Evaluation Committee has not explained what needs were not covered by the applicant’s tender and has thus made an ‘error of reasoning’.
59      In the fourth place, the applicant disputes the Evaluation Committee’s assessment relating to award criterion 4 (‘Technical knowledge management’), for which it obtained 10.5 out of 15.
60      The applicant also challenges the comments in the information report for lot 1, according to which ‘some chapters [of its tender] are out of scope’ and there was an ‘[a]bsence of structure of information to input into the system’, which are too vague and fail to specify how it did not comply with the tender specifications, or the grounds on which it was awarded low marks.
61      First, the applicant maintains that Chapter 2.2.1.10 on voice conference and videoconference and Chapter 2.2.1.6 on the calendar, which were considered ‘out of the scope’ by the Evaluation Committee according to EASA’s letter of 6 July 2009, contain supplementary options which reinforce the implementation of the technical knowledge base in its tender. Its 20-page document, which complies with the tender specifications, cannot be considered too long or ‘inappropriate’.
62      Second, the applicant observes that the comment, in the letter of 6 July 2009, that ‘the description of how information about lessons learnt is structured enterprise-wide was not found to be usefully presented/articulated’ differs from that made by the Evaluation Committee in the information report for lot 1. The former comment is unfounded in that Chapters 2.1.1, 2.1.2 and 2.2.1 of the applicant’s tender detail the procedures for entering and accessing the data in the technical knowledge base.
63      The committee thus made manifest errors of assessment.
64      In the fifth place, the applicant disputes the Evaluation Committee’s assessment relating to award criterion 5 (‘Skills development’), for which it received a mark of 6.66 out of 10.
65      First of all, the applicant maintains that the Evaluation Committee did not justify its negative assessment or specify the requirements of the tender specifications not covered by its tender. Next, the detailed descriptions in its tender were assessed negatively, according to the letter of 6 July 2009, solely on the basis of their length. The Committee thus made a manifest error of assessment. Lastly, the Committee failed to appreciate the relevance of that tender, which contains numerous chapters explaining the skills development policy, including Chapters 1, 2.1 to 2.4, and 3 to 5, which describe the way in which skills development is achieved. The Committee thus made manifest errors of assessment.
66      In the sixth place, the applicant contests the Evaluation Committee’s assessment of award criterion 6 (‘Overall quality of the proposal’), for which it obtained 3.33 out of 5.
67      First, the applicant disputes the mark awarded to its tender, since there was no negative comment in the information report for lot 1. The criticisms of its tender in EASA’s letter of 6 July 2009 show that the Evaluation Committee had unlawfully altered the tender specifications after the tenders had been submitted and cannot remedy the failure to provide any reasons in that report.
68      Second, it is apparent from that letter that the committee had already taken account of the same negative comments in the context of award criteria 2 (namely, the response could be found spread across various chapters) and 3 (namely, the applicant had not fully understood the question). Apart from the fact that those comments are unfounded, the committee deducted points from the applicant twice on the basis of the same comments. That serious methodological error therefore gave rise to the grant of an additional advantage to the tenderer that had received the best marks under the preceding criteria.
69      EASA defends all the Evaluation Committee’s assessments relating to the applicant’s tender for lot 1.
–       Findings of the Court
70      As is apparent from its line of argument relating to lot 1, the applicant essentially bases its application for annulment on a plea alleging infringement of the obligation to state reasons and on a plea alleging the existence of manifest errors of assessment.
71      In the first place, it is appropriate to examine the applicant’s arguments relating to the decision’s statement of reasons to rank it second for lot 1.
72      It must be noted at the outset that the EU institutions have 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. 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 (judgments of 27 September 2002 in Tideland Signal v Commission, T‑211/02, ECR, EU:T:2002:232, paragraph 33, and 10 September 2008 in Evropaïki Dynamiki v Commission, T‑465/04, EU:T:2008:324. paragraph 45).
73      Moreover, where an institution has a broad discretion, respect for the rights guaranteed by the Union 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 verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; Evropaïki Dynamiki v Commission, paragraph 72 above, EU:T:2008:324, paragraph 54; and 20 May 2009 in VIP Car Solutions v Parliament, T‑89/07, ECR, EU:T:2009:163, paragraph 61).
74      It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154. paragraph 63 and the case-law cited).
75      As regards a decision rejecting the bid submitted by a tenderer in response to a public services contract, the obligation to state reasons is given concrete expression in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, from which it is apparent that a contracting authority meets its obligation to state reasons if it confines itself, first of all, to informing the unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and, subsequently, notifies tenderers who have made an admissible tender and who expressly so request of the characteristics and relative advantages of the successful tender and of the name of the tenderer to whom the contract is awarded, within 15 days from receipt of a request in writing (judgments in Evropaïki Dynamiki v Commission, paragraph 72 above, EU:T:2008:324. paragraph 47, and 17 October 2012 in Evropaïki Dynamiki v Court of Justice, T‑447/10, EU:T:2012:553, paragraphs 71 and 76).
76      This manner of proceeding satisfies the purpose of the obligation to state reasons, whereby the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (see judgments in Evropaïki Dynamiki v Commission, paragraph 72 above, EU:T:2008:324. paragraph 48 and the case-law cited, and Evropaïki Dynamiki v Court of Justice, paragraph 75 above, EU:T:2012:553, paragraph 72 and the case-law cited).
77      It should be pointed out in that regard that the scope of the statement of reasons cannot be assessed differently where the bid submitted by a tenderer, although not, strictly speaking, rejected, was not ranked first in the cascade, which is the case of the applicant in the context of lot 1 (see, to that effect, judgment of 5 October 2012 in Evropaïki Dynamiki v Commission, T‑591/08, EU:T:2012:522, paragraph 76).
78      Given that compliance with the duty to state reasons must be assessed on the basis of the information available to the applicant at the time the application was brought (judgment of 25 February 2003 in Strabag Benelux v Council, T‑183/00, ECR, EU:T:2003:36, paragraph 58), it is necessary to examine the applicant’s arguments in the light not only of the information report for lot 1 of 25 May 2009 (see paragraph 18 above), but also of the letter of 6 July 2009 relating to that lot sent to it by EASA in response to its express request (see paragraph 20 above).
79      In the present case, the Court notes that the method applied by EASA for the technical evaluation of the tenders was set out clearly in the tender specifications relating to the call for tenders at issue (see, in particular, the grid entitled ‘4.1 Technical evaluation’). Thus, it specified, for each lot, the various award criteria, their respective weighting in the evaluation, that is to say in the calculation of the total score, and the minimum and maximum number of points for each criterion (see paragraph 14 above).
80      First, as regards the information report for lot 1, EASA provided the applicant with the names of the tenderers ranked first and third in the cascade, the calculation of the value for money of the three tenders accepted in the cascade and the financial calculation together with the FAP of the applicant’s tender. EASA also provided, in a comparative table, the marks obtained during the technical evaluation, for each award criterion, by the applicant’s tender and by that of the tenderer ranked first and the Evaluation Committee’s comments on those tenders for each of those criteria. It is apparent more specifically from that table that the applicant obtained a total of 80.75 points out of 100 and the tenderer ranked first a total of 84 points out of 100.
81      Second, following the applicant’s letter of 26 May 2009, EASA provided it, by letter of 6 July 2009, with an additional report responding in particular to the applicant’s criticisms relating to the assessment of its tender by the Evaluation Committee for each award criterion.
82      A reading of the table contained in the information report for lot 1 shows that the applicant’s tender had obtained sufficient scores for each of the six award criteria set out in the tender specifications, namely 34.66 points out of 40 for the first award criterion ‘Quality of proposed consultants’, 18 points out of 20 for the second criterion ‘Selection of consultants and replacement method’, 7.6 points out of 10 for the third criterion ‘Project management methodology’, 10.5 points out of 15 for the fourth criterion ‘Technical knowledge management’, 6.66 points out of 10 for the fifth criterion ‘Skills development’ and 3.33 points out of 5 for the sixth criterion ‘Overall quality of the proposal’. However, those scores were, with the exception of those awarded in respect the first two award criteria, lower than those obtained by the tenderer whose bid was ranked first in the cascade, namely 32.4 points out of 40 for the first criterion, 17.3 points out of 20 for the second criterion, 8.5 points out of 10 for the third criterion, 13 points out of 15 for the fourth criterion, 8.3 points out of 10 for the fifth criterion and 4.5 points out of 5 for the sixth criterion.
83      That table also contained the specific comments from the Evaluation Committee on the applicant’s tender in relation to each of the first five award criteria and the specific comments from the Evaluation Committee on the bid of the tenderer ranked first according to the cascade for each of those award criteria. Thus, it was apparent from that table inter alia that the tender ranked first had certain advantages over the applicant’s tender in terms of technical knowledge tools and management, and as regards staff training procedures and methods.
84      Third, in its letter of 6 July 2009, EASA also provided the applicant with explanations on the Evaluation Committee’s comments relating to its tender for each award criterion. It is apparent from those explanations, in particular, that that Committee had considered that the applicant’s replies were not ‘properly structured and presented in an efficient/user-friendly manner, in the sections most relevant to the respective subject-matters/criteria’.
85      In the light of the foregoing, the Court finds that in those letters EASA did provide a sufficient statement of reasons as to why it did not rank the applicant’s tender first in the cascade and set out the characteristics and relative advantages of the bid of the tenderer ranked first (see, to that effect, judgment in Evropaïki Dynamiki v Commission, paragraph 77 above, EU:T:2012:522, paragraph 86 and the case-law cited). From the table contained in the information report for lot 1, the applicant could readily identify the specific reasons for the ranking of its tender and compare them with the proposals of the tenderer ranked first in the cascade. Furthermore, the specific comments for each of the six award criteria contained in that table provided the applicant with inter alia explanations about the aspects of its tender which EASA considered to be imperfect. Accordingly, the complaint alleging that the statement of reasons is vague and arbitrary cannot be upheld.
86      With respect to the applicant’s arguments of a general nature that the Evaluation Committee did not explain why it had not awarded 100% of the points to its tender whereas that tender had not been the subject of any negative comments (first and sixth criteria, paragraphs 50 and 67 above) or that it complied strictly with the tender specifications (second and fourth criteria, paragraphs 52 and 61 above) or had not specified the requirements of the tender specifications not covered by its tender (all six criteria, see in particular paragraphs 57, 60 and 65 above), they cannot succeed. EASA cannot be required to communicate to a tenderer whose bid has not been ranked first in the cascade, first, in addition to the reasons for the ranking of that 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 tender ranked first, a detailed comparative analysis of that tender and of the bid of a tenderer ranked in another position (see, to that effect, judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraph 21 and the case-law cited). Accordingly, the complaint alleging that the Committee did not specify the retention policy measures not covered by the applicant’s tender relating to criterion 2 must also be rejected (see paragraph 55 above).
87      Similarly, and contrary to what the applicant claims, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report, as requested by the applicant in its letter of 15 May 2009 (mentioned in paragraph 18 above) (see, to that effect, order of 20 September 2011 in Evropaïki Dynamiki v Commission, C‑561/10 P, EU:C:2011:598, paragraph 25).
88      That finding that the statement of reasons was sufficient cannot be invalidated by the applicant’s specific submissions relating to each of the six award criteria. In that regard, it should be borne in mind, first of all, that the right of access to information of an unsuccessful economic operator following a procedure for the award of a public contract serves to protect his legal position in relation to that procedure, in order to bring a possible action against the contracting authority’s decision, but it does not constitute a legal basis for formulating criticisms of every kind, which are not capable of affecting that legal position. Therefore, the General Court is not required to rule on such criticisms (judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, EU:C:2011:512, paragraph 47).
89      With respect to criterion 1, the argument that the Evaluation Committee did not explain the reasons why the applicant had not obtained maximum points even though no negative comments were made in respect of its tender cannot succeed. The mark awarded to the applicant (34.66 out of 40) is very good and higher than that of the tenderer ranked first (32.4 out of 40). It is apparent from the letter of 6 July 2009 that the committee had taken the view that the quality of the consultants proposed by the applicant was ‘very good’ but not perfect and that their knowledge was ‘good’ but not exceptional. It is therefore necessary to reject the applicant’s argument that the Evaluation Committee did not explain why it did not deserve the maximum number of points provided for by that award criterion. Indeed, it suffices that the reasoning followed by the authority which adopted the measure be disclosed in a clear and unequivocal fashion (see, to that effect, judgment in VIP Car Solutions v Parliament, paragraph 73 above, EU:T:2009:163, paragraph 60 and the case-law cited). That is so in the present case.
90      With respect to criterion 2, the argument that the Committee has not supported its position either in response to the applicant’s observations in its letter of 26 May 2009 or by reference to the high marks awarded to the successful tenderer whose tender did not contain any ‘skill tests’ and was in breach of the tender specifications is not aimed at demonstrating the inadequacy of the statement of reasons, but the possible incorrect nature of that statement. It will therefore be examined in the context of the second plea below.
91      With respect to criterion 3, the explanations provided by EASA for the first time, in the defence, according to which it positively took into consideration the applicant’s adherence to best practice project management methodology, cannot be taken into account for the purposes of the assessment of this plea. The obligation to state reasons must be assessed on the basis of the information available to the applicant at the time the application was brought. Accordingly, the alleged contradiction raised by the applicant (see paragraph 58 above) is inoperative. In any event, EASA provided the applicant with a sufficient statement of reasons in relation to the mark it obtained for criterion 3. According to the information report for lot 1, one of the (two) negative comments made about the applicant’s tender was that ‘[the project management approach was] generic and simplistic … for development projects’. By contrast, the (only) positive comment states that that tender was ‘based on best practices methodologies’. In its letter of 6 July 2009, the Evaluation Committee substantiated its evaluation, taking the view that the applicant’s approach ‘[was not] optimally assimilated and adapted to the specific needs of [EASA]’.
92      With respect to criterion 4, the alleged contradiction (see paragraph 62 above), according to which the comment, in the letter of 6 July 2009, that ‘the description of how information about lessons learnt is structured enterprise-wide was not found to be usefully presented/articulated’ differs from that made by the Evaluation Committee in the information report for lot 1 has no factual basis. According to one of the (two) negative comments relating to the applicant’s tender set out in the information report for lot 1, the Evaluation Committee considered that there was an ‘[a]bsence of structure of information to input into the system’. According to the letter of 6 July 2009, that comment was based on the fact that ‘the description of how information about lessons learnt is structured enterprise-wide was not found to be usefully presented/articulated’. It is clearly apparent from those comments that the committee considered that there was a problem linked to the structure of the information for the technical knowledge system. The applicant, which is active in the field of information technology and communications, could not fail to have noticed that problem.
93      With respect to criterion 5, the Court would point out that the applicant did not raise a specific complaint concerning the statement of reasons for the contested decision in that regard. The applicant merely put forward arguments of a general nature, which were already rejected in paragraph 86 above.
94      With respect to criterion 6, the Court shares EASA’s view that there was no need to provide detailed comments in the information report for lot 1 on the overall impression of the applicant’s tender. That criterion relates to an overall assessment of the presentation and quality of each tender. Problems of a general nature, such as the tender’s lack of structure or the fact that relevant information was often spread across various documents, which were noted by the Committee with respect to the other criteria, enable the applicant to understand the reasons underlying the mark awarded to it. The comment, in the letter of 6 July 2009, that this criterion ‘reflects the overall impression’ of the tender is not therefore intended to compensate for the inadequacy of the statement of reasons for the information report for lot 1 for the purposes of the case-law resulting from VIP Car Solutions v Parliament, paragraph 73 above (EU:T:2009:163, paragraphs 73 and 76 and the case-law cited).
95      With respect to lot 1, it must be concluded that the statement of reasons put forward by EASA enabled both the applicant to assert its rights before the Court and the Court to exercise its power of review. Accordingly, this plea must be rejected in so far as it concerns lot 1.
96      In the second place, it is necessary to examine the plea alleging the existence of manifest errors of assessment. In this plea, the applicant essentially contests the validity of the assessments by the Evaluation Committee in respect of each of the award criteria in relation to lot 1.
97      In that regard, it must be noted that the institutions have 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 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 paragraph 72 above).
98      It must also be noted that all the applicant’s complaints regarding the vague and laconic nature of some of the Evaluation Committee’s comments and the failure to communicate the characteristics and relative advantages of the tenders ranked higher than its tender were examined in the context of the first plea for annulment. The obligation to state reasons must be distinguished from the question whether the reasons given are sound, which goes to the substantive legality of the contested measure (see judgment in Evropaïki Dynamiki v Commission, paragraph 77 above, EU:T:2012:522, paragraph 157 and the case-law cited).
99      As regards the first award criterion, the tender specifications provide for the submission of the curricula vitae of three consultants per requested profile for each lot in respect of which the tenderer applies. In order to be considered technically suitable, the tenderer had to obtain at least 20 points out of a maximum of 40. The applicant obtained 34.66 out of 40, whereas the tender ranked first obtained 32.4 out of 40.
100    In the information report for lot 1, EASA stated the following about the response to that criterion in the applicant’s tender:
‘(+) Strong experience of project managers, (+) [Good] overall knowledge in different technologies.’
101    First, the applicant contests the deduction of 15% from the maximum award points when there was no negative comment. It must be stated that such a line of argument is not capable of demonstrating that a manifest error of assessment was made by EASA. It is apparent from Section 4.1 of the tender specifications that the Evaluation Committee was not required to award the maximum number of points for any given criterion, but that the quality of each technical bid would be evaluated according to the award criteria and the weighting indicated in the grid provided. It was on the basis of a comparative evaluation of the tenders that the contract was awarded to the tenders offering the best value for money and not on the basis of mere verification of the tenders’ conformity with the tender specifications.
102    Second, by its argument that the Evaluation Committee incorrectly concluded that the proposed consultants did not have sufficient knowledge of a number of technologies, the applicant contests the explanation contained in the letter of 6 July 2009.
103    That letter reads as follows:
‘The [Evaluation Committee] found that indeed the proposed consultants were the best compared to the consultants proposed by other tenderers, hence the best mark. However, the [Evaluation Committee] estimated that the overall quality of the proposed consultants was “very good” but not “perfect”. Knowledge in a variety of technologies was judged as “good” but not “exceptional”. This explains the final [mark] attributed which is not 100% of the award points.’
104    The applicant’s argument relates, in reality, to the fact that the Evaluation Committee did not award it maximum points in respect of that award criterion. It must be held that a mere unsubstantiated assertion that the consultants proposed not only fulfilled, but exceeded, the requirements laid down in the tender specifications, and displayed significant professional experience in a wide range of technologies and tools is not capable of demonstrating a manifest error of assessment.
105    The applicant’s argument must therefore be rejected.
106    With respect to the second award criterion, the tender specifications provide for the submission of a document describing the method of selecting and replacing consultants for EASA according to the requirements of those specifications. In order to be considered technically suitable, the tenderer had to obtain at least 10 points out of a maximum of 20. The applicant obtained 18 out of 20, whereas the tender ranked first obtained 17.3 out of 20.
107    In the information report for lot 1, EASA stated the following about the response to that criterion in the applicant’s bid:
‘(+) Maintain pool of resources/anticipation, (+) Complete process description in connection with the proposed EASA SLA, (-) Retention policy.’
108    The applicant submits (i) that a retention policy was not required by the tender specifications and (ii) that the Evaluation Committee did not examine the relevant parts of its tender.
109    First, the Court observes that the concept of retention policy is inherent in the definition of ‘Selection of consultants and replacement method’. Contrary to what the applicant claims, the tender specifications emphasise, in several places, the importance of staff continuity. In Section 2.8.3 of the tender specifications, relating to the extension of projects, EASA requires the contractor to inform it if a person is not available for the duration of that extension. Article II.1.7 of the framework contract, which is annexed to the tender specifications, provided for a specific procedure in that regard. In addition, under Section 2.8.1 of those specifications, in the context of ‘Times and Means orders’, EASA emphasises on four occasions the need to propose competent replacement staff. Similarly, the service level agreement (set out in Annex 8 to the tender specifications) requires the contractor to inform EASA of the staff replacement rate and of the corresponding procedure under the heading Service Performance Values. Lastly, the applicant contradicts its argument alleging the lack of relevance of that policy when it ‘agrees with the [Evaluation Committee] that the retention policy is not outside the scope of this [criterion], therefore the [a]pplicant rightfully presented in its tender its retention policy in connection with the procedure for the selection and replacement of experts’.
110    Second, the Court notes that the applicant obtained a very good mark for that criterion, exceeding that of the tenderer ranked first in the cascade. The only negative comment relating to its tender concerned its ‘retention policy’.
111    In that regard, in its letter of 6 July 2009, EASA states as follows:
‘The [Evaluation Committee] considered the retention policy duly related to the selection and replacement method since it constitutes a preventive measure before replacement. The [Evaluation Committee] did not consider this element as outside the scope of the question but on the contrary as an added value to this particular award criterion. Therefore it rewarded answers including a retention policy as a formal process. The [Evaluation Committee] estimated that a retention policy is not clearly described in your tender. Elements of an answer can be found spread across various chapters of European Dynamics’ tender as stated in your communication [of 26 May 2009], however your tender did not present a retention policy as a full[y]-fledge[d] process in connection with the selection and replacement method. Therefore, European Dynamics’ tender could not be awarded the additional points from which tenderers who had convincingly presented a retention policy in support of their selection and replacement method [benefited]. You will, however, have noted that this did not prevent European Dynamics from scoring very high on that criterion.’
112    By its reliance on various parts of its tender to demonstrate its retention policy, it must be held that the applicant confirms the correctness of the Evaluation Committee’s assessment that the elements of that policy were spread across various chapters. It must also be noted that the term ‘retention’ is not used in any of the parts cited by the applicant, namely Chapters ‘3.3.1.5 — Orientation programme’ and ‘3.4.1.1 Follow-up and support’, as well as the personnel evaluation form and the self-review form annexed to the latter document. Those ‘relevant’ parts of its tender (see paragraph 108 above) contain the broad ‘morale-building measures’ for employees and career development as part of a general staff maintenance policy. Accordingly, the applicant cannot deny that its tender did not include a retention policy as a stand-alone process. Consequently, no error may be alleged against EASA on account of the fact that the applicant’s tender could not be awarded the additional points from which tenderers who had convincingly presented a retention policy in support of their selection and replacement method benefited.
113    That conclusion cannot be called in question by the applicant’s argument that the bid of the tenderer ranked first is in breach of the tender specifications by providing for EASA’s involvement in the Selection of consultants. It should be noted that the applicant does not provide any relevant explanation in its pleadings of what, in the tender specifications, might demonstrate such a breach. The description of the cascade mechanism in Section 2.7.1 of those specifications, to which the applicant refers, contains no prohibition to that effect. It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function, or to speculate about the reasoning and precise observations, both in fact and law, that lie behind its action (see, to that effect, judgment of 9 September 2010 in Evropaïki Dynamiki v EMCDDA, T‑63/06, EU:T:2010:368, paragraph 80).
114    Moreover, the comparison drawn by the applicant (see paragraph 54 above) between the Evaluation Committee’s assessments relating to its response for criterion 2 and those relating to the response of the tenderer ranked first is irrelevant. The applicant may not infer a breach of equal treatment from the fact that the Evaluation Committee did not make the same positive comments about the applicant’s tender that it made about the bid of that other tenderer. Those comments related to different aspects of each response.
115    In the light of the foregoing, EASA did not commit a manifest error in its assessment of the applicant’s tender in relation to award criterion 2.
116    With respect to the third award criterion, the tender specifications required that each tenderer submit a document describing the project management methodology used by the company for projects relating to the activities of lot 1, namely Web applications development and maintenance. In order to be considered technically suitable, the tenderer had to obtain at least 5 points out of a maximum of 10. The applicant obtained 7.6 out of 10, whereas the tender ranked first obtained 8.5 out of 10.
117    In the information report for lot 1, EASA stated the following about the response to that criterion in the applicant’s bid:
‘(+) Based on best practices methodologies, (-) too … focused on processes describing the SLA and contract implementation, (-) Generic and simplistic [project management] approach for development projects.’
118    The applicant contests the last two assessments. It submits that the Evaluation Committee did not carry out a detailed examination of its tender and, thus, committed a manifest error of assessment.
119    It should be noted that, in its letter of 6 July 2009, EASA submitted the following additional observations on this criterion:
‘The [Evaluation Committee] estimated that the question was not fully understood or addressed in an optimally focused manner. Indeed, the first 90 pages (out of 107 pages), which described [the] contract and SLA management process, appeared not to be directly connected with, and possibly not even relevant to, the subject matter examined under this criterion. Regarding the “generic and simplistic” project management approach for development projects, the [Evaluation Committee] did not find the approach presented by European Dynamics optimally assimilated and adapted to the specific needs of [EASA].’
120    First, the applicant’s arguments relating to the contract management and the service level agreement according to which the Evaluation Committee had relied on vague and uncertain considerations pertain, in reality, to the statement of reasons for the contested decision (see paragraph 98 above). Those arguments were already rejected in the context of the first plea (see in particular paragraph 91 above).
121    Second, it must be noted that Chapter 6 ‘Project management processes — management of specific contracts’ relied upon by the applicant in the application is identified by it as its standard methodological approach for the management of IT projects. The applicant merely asserts that that approach is neither simplistic nor generic, since it had proposed a specific methodology, namely the OGC project method Prince2. In addition, it claims that its tender presented a management approach through various project stages, but it none the less fails to demonstrate that that methodology was adapted to the specific needs of EASA.
122    Lastly, the applicant asserts, referring to three headings and two subheadings of various chapters of its tender, but without indicating where they are to be found in the case-file, that it demonstrated a comprehensive approach to project management meeting the requirements of the tender specifications. As is clear from paragraph 113 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based. In any event, it is apparent from the table of contents (set out in Annex A2) that the applicant devotes most of its tender to its standard approach and that only the abovementioned Chapter 6 (of 10 pages) concerns the management of specific contracts.
123    In the light of all the foregoing, the applicant has not demonstrated that the Evaluation Committee’s comments are incorrect in respect of the third award criterion and, therefore, the existence of a manifest error of assessment in the evaluation of its tender.
124    With respect to the fourth award criterion, the tender specifications provide for the submission of a document explaining how technical knowledge management is performed by the tendering undertaking and, more particularly (i) the details of the existing technical knowledge management system or base, including its method of operation and (ii) if such a system does not exist, how the availability of information relevant to the technical knowledge for the services of lot 1 is guaranteed. In order to be considered technically suitable, the tenderer had to obtain at least 7 points out of a maximum of 15. The applicant obtained 10.5 out of 15, whereas the tender ranked first obtained 13 out of 15.
125    In the information report for lot 1, EASA stated the following about the response to that criterion in the applicant’s bid:
‘(+) [Knowledge Management] process exists, (+) Supported by an application, (+) Description of validation process, (-) Some chapters are out of scope, (-) Absence of structure of information to input into the system.’
126    The applicant contests the merits of those two criticisms, and of the additional explanations contained in the letter of 6 July 2009.
127    That letter reads as follows:
‘The [Evaluation Committee] agreed that the Chapter (2.2.1.10) is out of scope for the following reasons:- voice conference, video and voice calls, videoconference and chat are not a knowledge management system per se. Furthermore, the long description of the functionalities of the system was found inappropriate and further considered as out of scope (create a meeting, create recurring meeting, change a meeting, cancel a meeting, send meeting, reply [to] a meeting, track meeting). Finally, regarding the second negative comment, the description of how information about lessons learnt is structured enterprise-wide was not found to be usefully presented/articulated.’
128    First, the applicant maintains that Chapter 2.2.1.10 on voice conference and videoconference and Chapter 2.2.1.6 on the calendar contain supplementary options which reinforce the implementation of the technical knowledge base in its tender. Its 20-page document, which complies with the tender specifications, cannot be considered too long or ‘inappropriate’. The Court finds that the elements relied on by the applicant concern information transmission and not technical knowledge management — as required by the tender specifications. EASA cannot therefore be criticised for not having regarded them as a knowledge management system per se or as inappropriate in particular in the light of the first paragraph of point 4(3)(d) of the tender specifications, which required tenderers to describe how information is entered and accessed in the system, where information was stored, and how the quality of information was guaranteed. The applicant does not explain specifically, providing relevant examples, to what extent and how its tender fulfilled that requirement.
129    Second, it is also necessary to reject the applicant’s argument that its tender, including its length, complied with the tender specifications, for the reasons already stated in paragraph 101 above.
130    Third, the applicant contests the Evaluation Committee’s comment that ‘the description of how information about lessons learnt is structured enterprise-wide was not found to be usefully presented/articulated’. The Court considers, in that regard, that the general reference by the applicant to three chapters of its tender, namely Chapters 2.1.1, 2.1.2 and 2.2.1, does not constitute action that could lead the Court to find the existence of a manifest error made by the Evaluation Committee, in so far as that reference, which allegedly details the procedures for entering and accessing the data in the technical knowledge base, does not identify a succinct and relevant part of its tender permitting the conclusion that those elements were clearly presented.
131    With respect to the fifth award criterion, the tender specifications provide for the submission of a document explaining how skills are developed within the company, including the implementation of the training policy of the company’s staff to develop and maintain their skills. EASA requires tenderers to explain, in that document, how they guarantee that the consultants and temporary staff proposed have the necessary skills. In order to be considered technically suitable, the tenderer had to obtain at least 5 points out of a maximum of 10. The applicant obtained 6.66 out of 10, whereas the tender ranked first obtained 8.3 out of 10.
132    In the information report for lot 1, EASA stated the following about the response to that criterion in the applicant’s bid:
‘(+) Description covers the majority of the aspect, (-) [Description] [t]oo long and not to the point.’
133    First, the applicant’s argument that the detailed descriptions in its tender were assessed negatively solely on the basis of their length (see paragraph 65 above) has no factual basis. It is apparent from the information report for lot 1, and from the letter of 6 July 2009, that the Evaluation Committee considered the account on skills development not only too long but also, to a large extent, irrelevant. In the information report for lot 1, EASA states that the ‘[description is] [t]oo long and not to the point’, while, in the letter of 6 July 2009, EASA finds that ‘[t]he [Evaluation Committee] failed to see the relevance of lengthy descriptions of technical platforms and technical architectures that had in its view no connections whatsoever with the skills development policy (for example Chapter 5)’. Moreover, that latter reference demonstrates, contrary to what the applicant claims, that the Evaluation Committee took Chapter 5 into consideration.
134    Second, as regards the other chapters relied upon by the applicant to demonstrate that the Evaluation Committee had incorrectly evaluated its tender as regards that award criterion, namely Chapters 1, 2.1 to 2.4, and 3 to 5, it must be stated that a reading of those 65 pages of its tender permit the inference that EASA did not make a manifest error in finding that the material contained therein is too long and not entirely relevant. In that regard, it should be noted that the applicant merely made general reference to the various sections of its tender and did not put forward specific arguments to demonstrate the existence of a manifest error of assessment capable of vitiating EASA’s assessment on that point. That reference, which essentially consists of a summary of the table of contents set out in the relevant part of its tender, presupposes that the General Court constitutes a ‘second’ evaluation committee and that it might penalise each error or each lack of precision of the Evaluation Committee. However, in the context of the review of the manifest error of assessment alleged by the applicant, the General Court does not assume such a role (see, to that effect, judgment of 9 September 2011 in Evropaïki Dynamiki v Commission, T‑232/06, EU:T:2011:443, paragraph 190).
135    With respect to the sixth award criterion, the tender specifications do not include any specific requirement, but invite tenderers to submit comments or proposals on the terms of reference if they consider it necessary. In order to be considered technically suitable, the tenderer had to obtain at least 2 points out of a maximum of 5. The applicant obtained 3.33 out of 5, whereas the tender ranked first obtained 4.5 out of 5.
136    The information report for lot 1 does not contain any comments relating to the response to that criterion in the applicant’s bid. In the letter of 6 July 2009, EASA states as follows:
‘The [Evaluation Committee] has not added any comments for this criterion on all tenderers’ evaluations. This was agreed among the committee prior [to] starting the evaluation, as this criterion reflects the overall impression, which the committee had o[f] a tender. It is a common understanding that the global appreciation relies on the tenderer’s understanding of the questions, the succinct but complete, structured and focused/to the point/well[-]presented and articulated answers. European Dynamics’ tender was considered of good quality. The [Evaluation Committee] ablated some points because answers were in some cases spread across chapters. The [Evaluation Committee] experienced in some cases difficulties [in] assess[ing] the quality of the answer because [it] had to extract and compile information which was spread across many pages and chapters, instead of being properly structured and presented in an efficient/user[-]friendly manner, in the sections most relevant to the respective subject[-]matters/criteria.’
137    First, the applicant claims that by applying this criterion the Evaluation Committee altered the tender specifications after the tenders had been submitted (see paragraph 67 above). However, as is apparent from the foregoing considerations, that criterion relating to the overall quality of the proposal was set out clearly in the tender specifications with its weighting in the total evaluation and the minimum points necessary.
138    Second, the applicant submits that the Evaluation Committee had already taken account of the same negative comments in the context of award criteria 2 (namely, the response could be found spread across various chapters) and 3 (namely, the applicant had not fully understood the question) and therefore deducted points from the applicant twice on the basis of the same comments. As the General Court found in paragraph 94 above, this criterion, by its nature, constitutes an overall assessment of the applicant’s tender, including problems of a general nature relating to presentation or quality, and to the content of its tender. As the tenderer ranked first also received negative comments on the presentation of its tender, nothing indicates, contrary to what the applicant claims, that the Committee had not taken account of those negative comments as regards criterion 6. In any event, EASA had 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 (see paragraph 72 above).
139    Consequently, the applicant has not demonstrated that the mark awarded to its tender in respect of criterion 6 is manifestly incorrect or that EASA infringed the principle of equal treatment of tenderers.
140    In the light of the foregoing, with respect to lot 1, the plea alleging manifest errors of assessment must be rejected as unfounded.
Lot 2
141    In the context of a line of argument entitled ‘Manifest errors of assessment, failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee]), infringement of the principle of equal treatment’, the applicant essentially puts forward two pleas, the first alleging infringement of the obligation to state reasons, and the second alleging the existence of manifest errors of assessment.
142    In the context of the first plea, it should be recalled that, in accordance with the purpose of the obligation to state reasons laid down in Article 296 TFEU, the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgments of 14 July 1995 in Koyo Seiko v Council, T‑166/94, ECR, EU:T:1995:140, paragraph 103, and of 9 September 2010 in Evropaïki Dynamiki v Commission, T‑387/08, EU:T:2010:377, paragraph 38). For the award of public service contracts, the obligation to state reasons is given concrete expression in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, from which it is apparent that a contracting authority meets its obligation to state reasons if it confines itself, first of all, to informing the unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and, subsequently, notifies tenderers who expressly so request of the characteristics and relative advantages of the successful tender and of the name of the tenderer to whom the contract is awarded, within 15 days from receipt of a request in writing (see paragraph 75 above). It is in the light of those principles that it is appropriate to examine whether EASA complied with its obligation to state reasons in the context of lot 2.
143    In order to determine whether, in this instance, the requirements of the obligation to state reasons that is laid down by the Financial Regulation and the Implementing Regulation have been complied with, it is necessary to examine the information report for lot 2 (see paragraph 25 above). In view of the principle that that obligation to state reasons must be assessed on the basis of the information available to the applicant at the time the application was brought (see paragraph 78 above), the explanations provided by EASA for the first time during these proceedings, including the table of the scores awarded to the applicant’s tender and to the tender ranked first for that lot set out in the rejoinder, cannot be taken into account for the purposes of assessing whether that obligation has been complied with.
144    By the information report for lot 2, EASA provided the applicant with the names of the tenderers ranked first and second in the cascade, the calculation of the value for money of the three tenders accepted in the cascade, the scores obtained for each award criterion by the applicant’s tender in the form of a table, the Evaluation Committee’s comments on that tender as well as the FAP of that tender. EASA moreover specified that the applicant had obtained the best score of all the tenders for the technical evaluation, namely 80.70 points out of 100. Lastly, EASA specified that it could not provide any information on the technical and financial bids of the other tenderers accepted on account of the protection of commercial interests provided for in Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). It should be noted that EASA replied to the applicant’s written request to receive additional information about the reasons for the rejection of its tender within the maximum period of 15 calendar days from receipt of that request, as provided for in Article 149(2) of the Implementing Rules (see paragraph 25 above).
145    First, it is apparent from the table in the information report for lot 2 that the applicant’s tender had obtained high scores for each of the six award criteria set out in the tender specifications, namely 32.33 points out of 40 for the first award criterion ‘Quality of proposed consultants’, 17.5 points out of 20 for the second award criterion ‘Selection of consultants and replacement method’, 7.5 points out of 10 for the third award criterion ‘Project management methodology’, 11.625 points out of 15 for the fourth award criterion ‘Technical knowledge management’, 8.75 points out of 10 for the fifth award criterion ‘Skills development’ and 3 points out of 5 for the sixth criterion ‘Overall quality of the proposal’.
146    That table also contained the specific comments from the Evaluation Committee on the applicant’s tender in relation to each award criterion. That table shows that the Committee did not consider that the applicant’s tender was perfect, since it made both positive and negative comments for each of those criteria. As is apparent from Section 4.1 of the tender specifications (see paragraph 101 above), the Evaluation Committee was not required to award the maximum number of points for any given criterion. Consequently, for lot 2, maximum points were not awarded to any tender. In those circumstances, the Committee was not required to explain in greater detail why the applicant’s tender did not deserve the maximum number of points provided for in respect of those award criteria. In that regard, the Court finds that, in so far as the applicant’s arguments amount to requiring that EASA provide it with a detailed summary of how each detail of its tender was taken into account when the tender was evaluated technically, they cannot succeed (see the case-law cited in paragraph 86 above).
147    Second, the information report for lot 2 clearly shows that the applicant’s tender lost points in its final score on account of the weighting between the mark obtained for the technical evaluation and that obtained for the evaluation of its financial bid. As regards that financial evaluation, EASA stated that the applicant’s tender had obtained 87.74 points, leading to an FAP of EUR 503.60, which had resulted in its being ranked third for that evaluation. Consequently, in accordance with the weighting established in the tender specifications between technical quality and price of the tenders on a 60/40 basis, the tenderer ranked first in the cascade obtained a score of 86.248, the tenderer ranked second 84.629 and the applicant 83.408, and was therefore ranked third in the cascade.
148    It follows from the foregoing considerations that, by the information contained in the information report for lot 2, the applicant was able to understand that the main weakness of its tender lay in its price, which was significantly higher than the prices proposed by the tenders ranked first and second in the cascade.
149    However, the Court would point out that only a statement of reasons that sets out the matters of fact and law upon which EASA based its assessment would enable the applicant to assert its rights and the General Court to exercise its power of review (see, to that effect, judgment in Evropaïki Dynamiki v Court of Justice, paragraph 75 above, EU:T:2012:553, paragraph 92). In that regard, the Court observes that this plea, which alleges an inadequate statement of reasons, concerns an infringement of essential procedural requirements for the purposes of Article 296 TFEU (see, to that effect, judgments of 20 March 1959 in Nold v High Authority, 18/57, ECR, EU:C:1959:6, p. 52; 1 July 1986 in Usinor v Commission, 185/85, ECR, EU:C:1986:276, paragraph 19; and 28 January 2009 in Centro Studi Manieri v Council, T‑125/06, ECR, EU:T:2009:19, paragraph 58).
150    Thus, the Court finds that the information set out in the information report for lot 2 does not constitute in itself a sufficient statement of reasons, contrary to what EASA maintains. The comments and marks indicated in respect of the technical evaluation concerned only the applicant’s tender and did not enable it to compare directly its scores in respect of the technical evaluation with those awarded to the bid of the tenderer to whom the contract was awarded. It must be stated that no information in that regard on the characteristics and relative advantages of the successful tender appeared in the information report for lot 2. The fact that the applicant was ranked highest according to the technical evaluation cannot call that conclusion in question, since, in the present case, the applicant was entitled to know the elements on the basis of which EASA accepted the tender ranked first according to the cascade (see, to that effect, judgment in Evropaïki Dynamiki v Court of Justice, paragraph 75 above, EU:T:2012:553, paragraph 96). Moreover, at the hearing, EASA acknowledged in its oral submissions that, with respect to lot 2 and the other lots (apart from lot 1), it did not provide the applicant with that information on the relative advantages of the tender ranked first, since, according to EASA, it was clear that the applicant was going to bring an action before the General Court.
151    It must be concluded that EASA’s failure to provide information on the characteristics and relative advantages of the tender ranked first in the cascade constitutes, in the present case, an infringement of essential procedural requirements which must entail the annulment of the contested decision (see paragraph 149 above and see also, to that effect, judgment of 30 March 1995 in Parliament v Council, C‑65/93, ECR, EU:C:1995:91, paragraph 21), without its being necessary to rule on the other pleas and arguments put forward by the applicant in the context of lot 2.
Lot 3
152    In the context of a line of argument entitled ‘Manifest errors of assessment, failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee]), infringement of the principle of equal treatment’, the applicant bases its application for annulment of the contested decision in respect of lot 3 essentially on a plea alleging infringement of the obligation to state reasons and on a plea alleging the existence of manifest errors of assessment.
153    As regards the first plea, in order to determine whether the decision to rank the applicant second for lot 3 is reasoned to the requisite legal standard (see paragraph 142 above), it is necessary to examine the information report for that lot (see paragraph 28 above).
154    By the information report for lot 3, EASA provided the applicant with the names of the tenderers ranked first and third in the cascade, the calculation of the value for money of the three tenders accepted in the cascade, the scores obtained for each award criterion by the applicant’s tender, the Evaluation Committee’s comments in the form of a table and the score obtained for the financial evaluation. EASA moreover stated that that tender had been ranked fourth according to the technical evaluation and second according to the financial evaluation. Lastly, EASA specified that it could not provide any information on the technical and financial bids of the other tenderers accepted on account of the protection of commercial interests provided for in Article 4(2) of Regulation No 1049/2001. It should be noted that EASA replied to the applicant’s written request to receive additional information about the reasons for the rejection of its tender within the maximum period of 15 calendar days from receipt of that request, as provided for in Article 149(2) of the Implementing Rules (see paragraph 28 above).
155    First, it is apparent from the table in the information report for lot 3 that the applicant’s tender had obtained sufficient scores for each of the six award criteria set out in the tender specifications, namely 32 points out of 40 for the first award criterion ‘Quality of proposed consultants’, 16.5 points out of 20 for the second award criterion ‘Selection of consultants and replacement method’, 6.5 points out of 10 for the third award criterion ‘Project management methodology’, 10.5 points out of 15 for the fourth award criterion ‘Technical knowledge management’, 7 points out of 10 for the fifth award criterion ‘Skills development’ and 3.5 points out of 5 for the sixth criterion ‘Overall quality of the proposal’.
156    That table also contained the specific comments from the Evaluation Committee on the applicant’s tender in relation to each award criterion. That table shows that the committee did not consider the applicant’s tender perfect, since it made both positive and negative comments for each of those criteria.
157    Second, the information report for lot 3 clearly shows that the applicant’s tender lost points in its final score on account of the weighting between the mark obtained for the technical evaluation and that obtained for the evaluation of its financial bid. As regards that financial evaluation, EASA stated that the applicant’s tender had obtained 95.42 points, namely the second position. However, the applicant obtained only 76 points out of 100 for the technical evaluation, namely the fourth position. In accordance with the weighting established in the tender specifications, the tenderer ranked first in the cascade obtained a score of 91.80, the applicant, ranked second, 83.77, and the tenderer ranked third 83.50.
158    Third, in line with the considerations set out in paragraph 86 above, the Court must reject the applicant’s arguments of a general nature that the Evaluation Committee did not explain why it had not awarded 100% of the points to its tender whereas that tender complied strictly with the tender specifications (first and third criteria) or had not specified the requirements of the tender specifications not covered by the applicant’s tender (first, second, third and fourth criteria).
159    In the light of the foregoing considerations, the Court considers that, by the information report for lot 3, the applicant was able to understand the merits and deficiencies of its tender so far as concerned the technical evaluation.
160    However, it is necessary to examine whether the applicant had in its possession the matters of fact and law upon which EASA based its assessment enabling the applicant to assert its rights and the General Court to exercise its power of review (see the case-law cited in paragraph 149 above).
161    Thus, the Court finds that the information set out in the information report for lot 3 did not constitute in itself a sufficient statement of reasons, contrary to what EASA maintains. It is true that the applicant could have inferred from that information that the main weakness of its tender lay in the quality of its technical bid and that the technical evaluation had been decisive for the ranking of its tender in the cascade. Even a maximum score for its financial bid would not have enabled it to improve its ranking in the cascade. However, the comments and marks in respect of the technical evaluation in that report concerned only the applicant’s tender and did not enable the applicant to compare directly its scores in respect of the technical evaluation with those awarded to the bid of the tenderer to whom the contract was awarded. It must be stated that no information in that regard on the characteristics and relative advantages of the successful tender was provided to the applicant.
162    Consequently, it must be found that that non-compliance by EASA with the essential procedural requirements pertaining to the contested decision must lead to the annulment of that decision, without its being necessary to rule on the other arguments and pleas put forward by the applicant in the context of lot 3.
Lot 5
163    In the context of a line of argument entitled ‘Manifest errors of assessment, failure to state reasons (vague and unsubstantiated comments of the [Evaluation Committee]), infringement of the principle of equal treatment’, the applicant bases its application for annulment of the contested decision in respect of lot 5 essentially on a plea alleging infringement of the obligation to state reasons and on a plea alleging the existence of manifest errors of assessment.
164    As regards the first plea, in order to determine whether the decision to rank the applicant second for lot 5 is reasoned to the requisite legal standard (see paragraph 142 above), it is necessary to examine the information report for that lot (see paragraph 31 above).
165    By the information report for lot 5, EASA provided the applicant with the names of the tenderers ranked first and third in the cascade, the calculation of the value for money of the three tenders accepted in the cascade, the scores obtained for each award criterion by the applicant’s tender, the Evaluation Committee’s comments in the form of a table and the score obtained for the financial evaluation. EASA moreover stated that the applicant’s tender had been ranked fourth according to the technical evaluation and second according to the financial evaluation. It should be noted that EASA replied to the applicant’s written request to receive additional information about the reasons for the rejection of its tender within the maximum period of 15 calendar days from receipt of that request, as provided for in Article 149(2) of the Implementing Rules (see paragraph 31 above).
166    First, it is apparent from that table that the applicant’s tender had obtained sufficient scores for each of the six award criteria set out in the tender specifications, namely 34.33 points out of 40 for the first award criterion ‘Quality of proposed consultants’, 16 points out of 20 for the second award criterion ‘Selection of consultants and replacement method’, 6 points out of 10 for the third award criterion ‘Project management methodology’, 11.25 points out of 15 for the fourth award criterion ‘Technical knowledge management’, 8 points out of 10 for the fifth award criterion ‘Skills development’ and 2.75 points out of 5 for the sixth criterion ‘Overall quality of the proposal’.
167    That table also contained the specific comments from the Evaluation Committee on the applicant’s tender in relation to each award criterion. That table shows that the Committee did not consider that tender perfect, since it made both positive and negative comments for each of those criteria.
168    Second, the information report for lot 5 clearly shows that the applicant’s tender lost points in its final score on account of the weighting between the mark obtained for the technical evaluation and that obtained for the evaluation of its financial bid. As regards that financial evaluation, EASA stated that the applicant’s tender had obtained 89.93 points, namely the second position. However, the applicant obtained only 78.33 points out of 100 for the technical evaluation, namely the fourth position. In accordance with the weighting established in the tender specifications, the tenderer ranked first in the cascade obtained a score of 88.77, the applicant, ranked second, 82.97, and the tenderer ranked third 81.99.
169    Third, in line with the considerations set out in paragraph 86 above, the Court must reject the applicant’s arguments of a general nature that the Evaluation Committee did not explain why it had not awarded 100% of the points to its tender whereas that tender complied strictly with the tender specifications (third and fifth criteria) or had not specified which requirements were not covered by its tender (second and third criteria).
170    Fourth, as regards the applicant’s argument relating to criterion 3, according to which it is not able to understand how pages 53 to 58 of its tender which concern human resources replacement could be evaluated negatively by the Evaluation Committee, the information report for lot 5 clearly shows that that Committee identified those pages as concerning the process of selecting candidates and therefore as ‘out of scope’ for that criterion. It is clear that, by that argument, the applicant is in fact seeking to demonstrate the incorrectness of that assessment, which is the subject of the second plea.
171    Fifth, as regards criterion 4, it is apparent from the information report for lot 5 that the Committee did not base its negative comments solely on the length of the applicant’s tender, as the applicant submits, but on the fact that the tender contained information that was too detailed or irrelevant in relation to what was sought for that lot. Again, the applicant is in fact seeking to demonstrate the incorrectness of the contested decision, a complaint that is the subject of the second plea.
172    The same is true of the applicant’s argument that it does not understand on what grounds the description of its skills centre presented in respect of award criterion 5 was evaluated negatively. It is apparent from the information report for lot 5 that the Committee considered that description as being ‘out of scope’.
173    In the light of the foregoing considerations, the Court considers that, by the information report for lot 5, the applicant was able to understand the merits and deficiencies of its tender so far as concerned the technical evaluation.
174    However, it is necessary to examine whether the applicant had in its possession the matters of fact and law upon which EASA based its assessment enabling the applicant to assert its rights and the General Court to exercise its power of review (see the case-law cited in paragraph 149 above).
175    Thus, the Court finds that the information set out in the information report for lot 5 did not constitute in itself a sufficient statement of reasons, contrary to what EASA maintains. It is true that the applicant could have inferred from that information that the main weakness of its tender lay in the quality of its technical bid and that the technical evaluation had been decisive for the ranking of its tender in the cascade. Even a maximum score for its financial bid would not have enabled it to improve its ranking in the cascade. By contrast, the comments and marks in respect of the technical evaluation in that report concerned only the applicant’s tender and did not enable the applicant to compare directly its scores in respect of the technical evaluation with those awarded to the bid of the tenderer to whom the contract was awarded. It must be stated that no information in that regard on the characteristics and relative advantages of the successful tender was provided to the applicant.
176    Consequently, it must be found that that non-compliance by EASA with the essential procedural requirements pertaining to the contested decision must lead to the annulment of that decision, without its being necessary to rule on the other arguments and pleas put forward by the applicant in the context of lot 5.
177    In the light of the foregoing, the first plea, which supports the application for annulment in the context of lots 2, 3 and 5 of the call for tenders at issue, must be upheld. Accordingly, that application must be upheld, and the contested decisions which rank the applicant’s tenders third in the cascade for lot 2 and second in the cascade for lots 3 and 5 must be annulled.
2.     The application for damages
178    On the basis of Articles 235 EC and 288 EC, the applicant claims, in essence, that, should the Court find that EASA infringed the Financial Regulation and/or the principles of transparency and non-discrimination, it should be awarded financial compensation in the amount of EUR 6 100 000, corresponding to the gross profit which it would probably have derived from the public procurement procedure if it had been placed first according to the cascade.
179    Next, the applicant claims that the Evaluation Committee’s evaluation is based on multiple manifest errors of assessment and that the fundamental principles and rules governing public procurement were infringed by the awarding authority. The application for damages is therefore well founded.
180    In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 288 EC 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 complained of (judgments of 11 July 1996 in International Procurement Services v Commission, T‑175/94, ECR, EU:T:1996:102, paragraph 44; 16 October 1996 in Efisol v Commission, T‑336/94, ECR, EU:T:1996:148, paragraph 30; and 11 July 1997 in Oleifici Italiani v Commission, T‑267/94, ECR, EU:T:1997:113, paragraph 20).
181    Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (judgment of 15 September 1994 in KYDEP v Council and Commission, C‑146/91, ECR, EU:C:1994:329, paragraphs 19 and 81).
182    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.
183    It is also 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 contested decisions.
184    As regards lot 1, all the arguments the applicant put forward in order to demonstrate the unlawfulness of the contested decisions have been examined and rejected. In the light of the case-law cited in paragraph 181 above, it follows that the application for damages must be dismissed as unfounded inasmuch as it concerns lot 1.
185    As regards lots 2, 3 and 5, it is true that the contested decisions are vitiated by an inadequate statement of reasons and must be annulled for that reason. However, the inadequacy of the statement of reasons does not mean that the award of the contracts to the tenderers ranked higher in the cascade constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect, judgment of 25 February 2003 in Renco v Council, T‑4/01, ECR, EU:T:2003:37, paragraph 89). It follows that the application for damages in respect of the alleged harm suffered as a result of the contested decisions in the context of lots 2, 3 and 5 of the call for tenders at issue must be dismissed as unfounded in so far as it is based on the inadequate statement of reasons for those decisions.
186    It follows that the application for damages must be dismissed in its entirety.
Costs
187    The applicant requests that the Court order EASA to pay the costs even if it dismisses the action, pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure. It claims that it was forced to bring an action as a result of the incorrect evaluation carried out by EASA, the failure to state reasons and the lack of information on the relative merits of the tenderer ranked first in the cascade.
188    EASA contends that it has not unreasonably or vexatiously caused the applicant to incur costs such as those referred to in the second subparagraph of Article 87(3) of the Rules of Procedure and that that request should therefore be dismissed.
189    Under the first subparagraph of Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the General Court may order that the costs be shared or that each party bear its own costs.
190    As the action has been successful in part, the Court will make an equitable assessment of the circumstances of the case and hold that the applicant should bear 25% of its own costs and pay 25% of the costs incurred by EASA, and that EASA should bear 75% of its own costs and pay 75% of those incurred by the applicant.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Annuls the decision of the European Aviation Safety Agency (EASA) of 6 July 2009 ranking the tender submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE third in the cascade mechanism for lot 2 (client-server applications, development and maintenance) of call for tenders EASA.2009.OP.02;
2.      Annuls EASA’s decision of 10 July 2009 ranking the tender submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis second in the cascade mechanism for lot 3 (system, database, and network administration) of call for tenders EASA.2009.OP.02;
3.      Annuls EASA’s decision of 14 July 2009 ranking the tender submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis second in the cascade mechanism for lot 5 (enterprise content management (‘ECM’), enterprise records management, document management implementation, maintenance and support) of call for tenders EASA.2009.OP.02;
4.      Dismisses the action as to the remainder;
5.      Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis to bear 25% of its own costs and pay 25% of the costs incurred by EASA, and EASA to bear 75% of its own costs and pay 75% of those incurred by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis.
Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 25 March 2015.
[Signatures]
Table of contents
Legal context
Background to the dispute
1.  Lot 1
2.  Lot 2
3.  Lot 3
4.  Lot 5
Procedure and forms of order sought
Law
1.  The application for annulment
Admissibility
Substance
Lot 1
–  Arguments of the parties
–  Findings of the Court
Lot 2
Lot 3
Lot 5
2.  The application for damages
Costs
* Language of the case: English.