JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
12 July 2012 (*)
(Public service contracts – Frontex tendering procedures – Provision of informatics services – Rejection of a tender – Action for annulment – Admissibility – Obligation to state reasons – Award criteria – Manifest error of assessment – Non-contractual liability)
In Case T‑476/07,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), represented by S. Vuorensola, acting as Agent, and J. Stuyck and A.‑M. Vandromme, lawyers,
defendant,
APPLICATION, first, for the annulment of Frontex’s decision not to accept the tender submitted by the applicant in the open call for tenders Frontex/OP/47/2007 for ‘informatics services, hardware and software licences’ (OJ 2007/S 114-139890) and of the decision to award the contract to another tenderer and, secondly, for compensation,
THE GENERAL COURT (Fifth Chamber),
composed of V. Vadapalas, acting for the President, A. Popescu and K. O’Higgins (Rapporteur), Judges,
Registrar: J. Weychert, Administrator,
having regard to the written procedure and further to the hearing on 20 October 2011,
gives the following
Judgment
Background to the dispute
1        The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law, operating in the field of information technology and communications.
2        By contract notice of 16 June 2007, published in the Supplement to the Official Journal of the European Union (OJ 2007 S 114), under reference 2007/S 114-139890, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘Frontex’) launched a call for tenders for the provision of informatics services, hardware, and software licences, comprising eight lots. The deadline for submission of tenders was fixed at 23 July 2007.
3        The purpose of the call for tenders at issue was to conclude a framework agreement for the supply of informatics services, hardware, and software licences for a period of one year, renewable up to three times. In accordance with Article 97(2) 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’), the contract notice and the tendering specifications stipulated that the framework contract was to be awarded to the tender which offered the best value for money.
4        Section III of the tendering specifications for the call for tenders at issue, entitled ‘Exclusion/selection and award criteria’, stipulates that the evaluation procedure is to be carried out in three stages. Those stages are, first, the application of exclusion criteria to determine whether the tenderer is authorised to participate in the procedure (section 3.1 of the tendering specifications), secondly, the application of award criteria with the aim of determining whether the tenderer has the financial, economic, technical and professional capacity to perform the contract (section 3.2 of the tendering specifications) and, thirdly, the application of award criteria to identify the economically most advantageous tender (best ‘quality/price’ ratio) (section 3.3 of the tendering specifications).
5        It is also provided in section 3.3 of the tendering specifications that, at the technical evaluation stage, ‘points summarised for “products” and for each “services” category must be above 60% of the maximum for having a valid offer for each Lot’.
6        The part of section 3.3 of the tendering specifications relating to the calculation of award criteria provides that the tenderer must attain a score of 60% of the total points for each award criterion.
7        As set out in the tendering specifications, the technical evaluation stage for Lot 1, entitled ‘Information Systems’, is to be carried out in accordance with the following criteria:
–        ‘Quality of the Program Management Methodology proposed;
–        Quality of the Project Management Methodology proposed;
–        Reporting Procedure proposed for Monitoring by Frontex;
–        Maintenance proposal;
–        Proposal of Contract Management;
–        Proposal of Service Level Agreement (‘SLA’);
–        Composition of proposed team including replacement procedure;
–        Efficiency and Effectiveness of the proposed Hypothetical IT Solution.’
8        At the end of the first stage, all tenderers, including the applicant, were authorised to participate in the procedure.
9        By letter of 10 July 2007 addressed to Frontex, the applicant claimed that, in its call for tenders, Frontex imposed unreasonably the use of the technology of a specific supplier, namely Microsoft Corp., thereby infringing the applicable EU legislation in the field of public procurement and the Financial Regulation. In addition, the applicant requested an explanation as to why all experts had to hold official certifications issued by Microsoft or the equivalent. Finally the applicant asked Frontex to review its IT strategy and to ensure free and fair competition, on the one hand, and, on the other, to review the tendering specifications.
10      By letter of 12 July 2007 to Frontex, the applicant raised the point that the terms of reference of the tendering specifications were in conflict with the right of the tenderer to form consortia, with the result that small- and medium-sized enterprises were prevented from subcontracting.
11      By letter of 13 July 2007 to Frontex, the applicant pointed out another irregularity identified in the tendering specifications concerning the CVs and references of expert tenderers, in so far as they were subject to evaluation during both the selection stage and the award of the contract stage, whereas the CVs and the references for the project proposed could be evaluated only during the first of those stages.
12      By letter of 18 July 2007 to the applicant, Frontex informed the applicant that it had concluded a multi-year framework contract with Microsoft for the purchase of software licences for work stations and servers and for development platforms and that it wished to take advantage of such an investment in software tools. With regard to the question of the certification of experts, Frontex’s response was that it did not require a certificate to be issued by a particular supplier. With regard to the two further remarks concerning the content of the tendering specifications, Frontex pointed out that technical capacity was to be assessed at the level of the consortia and that CVs and project references were not evaluated for the purposes of technical evaluation.
13      On 19 July 2007, the applicant submitted a tender for Lot 1, entitled ‘Information Systems’.
14      By letter of 20 July 2007 to Frontex, the applicant maintained that it was apparent from the tendering specifications that the number of CVs submitted was to be taken into consideration when awarding the contract. To that effect, the applicant requested that Frontex modify the evaluation criterion concerning the number of CVs required in order to ensure a fair evaluation for all tenderers.
15      By letter of 3 October 2007, Frontex informed the applicant, first, that its tender had not been accepted as it had not reached the threshold of 60% for three of the criteria mentioned in paragraph 7 above and, secondly, that it had been eliminated from the further stages of the evaluation process (‘the contested decision’). For the quality of the program management methodology proposed, the applicant’s tender scored 5 out of 10 points, for the maintenance proposal it received 4.33 out of 10 points, and for the SLA proposal it scored 2.5 out of 5 points.
16      By letter and fax of 3 October 2007, the applicant requested from Frontex: (i) the scores awarded to its technical offer for each award criterion and the scores of the successful tenderer; (ii) the detailed content of the evaluation committee report and detailed explanations of the scores awarded to its tender; (iii) the name of the successful tenderer(s) and, if the successful tenderer(s) had partners or subcontractors, the names of those partners or subcontractors and the percentage of their shares; (iv) the successful tenderer’s financial offer and the comparison with the applicant’s offer.
17      By letter of 4 October 2007, Frontex responded to the applicant’s request for documents by enclosing with its letter, inter alia, a table of the scores given to the applicant’s tender and to that of the successful tenderers and a copy of the evaluation report which mentioned the names of the successful tenderers.
18      In response, by letter of 8 October 2007, the applicant first expressed its disagreement with the evaluation committee’s opinion and requested that Frontex not proceed with signing contracts before its appeal had been conclusively examined. Secondly, the applicant pointed out that the evaluation report provided by Frontex did not include sufficient information regarding its financial offer and, more particularly, did not specify the value of its tender in comparison with those from the two successful tenderers.
19      By letter of 12 October 2007, Frontex informed the applicant that it would not proceed with signing the contract for Lot 1 until it had received the applicant’s observations on the evaluation committee’s opinion. In the same letter, Frontex attached a table presenting the technical and financial standing of the applicant’s offer in comparison with that of the two successful tenderers.
20      By letter of 17 October 2007, the applicant submitted its comments on the evaluation committee’s report, arguing that its offer had not been studied in detail and that it had been the subject of errors of assessment. It also requested that the procurement procedure be suspended until its offer had been re-examined.
21      By letter of 14 November 2007, Frontex replied that, after having reviewed the evaluation carried out by the evaluation committee with regard to Lot 1, it had formed the view that the conclusions of that committee had to be confirmed. It pointed out that the applicant’s tender had not reached the threshold of 60% for three of the criteria mentioned in paragraph 7 above. As regards the criterion concerning the quality of the program management methodology proposed, it confirmed that the applicant’s tender had not proposed a sufficient level of definition of procedures. With regard to the maintenance proposal criterion, the applicant’s tender did not include an immediately adoptable concrete proposal for hardware maintenance. The same conclusion was drawn with regard to the criterion concerning the SLA proposal. Finally, Frontex took the view, like the evaluation committee, that the applicant’s tender had not reached the threshold of 60% with regard to the criterion concerning the hypothetical IT solution because it proposed an Enterprise Content Management (ECM) solution-based platform. According to Frontex, the procedure for reviewing the evaluation committee’s evaluation decision did not raise any new reasons that would justify an annulment of the procedure or an amendment of the decision awarding the tender for Lot 1. It therefore informed the applicant that there was no longer any reason to continue suspending the procurement procedure.
Procedure and forms of order sought
22      By application lodged at the Registry of the General Court on 13 December 2007, the applicant brought the present action.
23      By separate document lodged at the Court Registry on 27 March 2008, Frontex raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court.
24      By order of the General Court of 28 October 2008, consideration of the objection of inadmissibility was reserved for the final judgment and the costs were reserved.
25      Following a change in the composition of the Chambers of the General Court, the Judge‑Rapporteur was assigned to the Fifth Chamber, to which the present case has therefore been attributed.
26      On hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure. The parties presented oral argument and replied to questions put by the Court at the hearing on 20 October 2011.
27      The applicant claims that the Court should:
–        annul the contested decision;
–        order Frontex to pay to the applicant damages in the amount of EUR 500 000 in respect of the harm suffered by reason of the public tendering procedure in question;
–        order Frontex to pay the costs.
28      Frontex contends that the Court should:
–        dismiss the action for annulment as inadmissible or unfounded;
–        dismiss the application for compensation as inadmissible or unfounded;
–        order the applicant to pay the costs.
Law
1.     The application for annulment of the contested decision
Admissibility
29      It must be borne in mind that the Courts of the European Union are entitled to assess whether, in the circumstances of the particular case, the proper administration of justice justifies the dismissal of the action on the merits, without ruling on the objection of inadmissibility raised by the defendant (Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraphs 51 and 52; see also, to that effect, Case C‑233/02 France v Commission [2004] ECR I‑2759, paragraph 26, and judgment of 13 September 2006 in Joined Cases T-217/99, T‑222/01 and T‑321/00 Sinaga v Commission, not published in the ECR, paragraph 68).
30      In the circumstances of the present case, the Court takes the view that it is necessary, in the interests of procedural economy, to begin by examining the pleas put forward by the applicant, without first ruling on the objection of inadmissibility raised by Frontex, as the action is in any event unfounded for the reasons set out below.
Substance
31      In support of its action for annulment, the applicant puts forward three pleas in law. The first alleges a breach of the obligation to state reasons and of the principle of transparency; the second alleges the application of award criteria which were not included in the tendering specifications; and the third alleges the existence of manifest errors of assessment. Furthermore, the applicant puts forward three separate complaints concerning, first, the applicable legal provisions, secondly, the alleged inadequacy of legal protection and, finally, Frontex’s allegedly discriminatory practices.
The applicable legal provisions
32      The applicant points out that, in essence, it has based its application on Frontex’s financial regulation, which refers to the Financial Regulation and to Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (the ‘implementing rules’). The applicant also makes reference to the ninth recital in the preamble to the Frontex financial regulation of 16 December 2005, which states that the decision was made to implement Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54). According to the applicant, Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), which consolidated the abovementioned directives, must be applied to the present case.
33      Frontex contests the application of Directive 2004/18 to the present case.
34      It should be noted that public procurement by the EU institutions is subject to the provisions of Title V of Part 1 of the Financial Regulation, and to the provisions of Title V of Part 1 of the implementing rules.
35      Article 185(1) of the Financial Regulation provides that the European Commission is to adopt a framework financial regulation for the bodies set up by the Communities and having legal personality which actually receive grants charged to the EU budget.
36      According to Article 74(1) of Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework financial regulation for the bodies referred to in Article 185 of the Financial Regulation (OJ 2002 L 357, p. 72), in the version applicable at the material time:
‘As regards procurement, the relevant provisions of the … Financial Regulation and … [the implementing rules] … shall apply …’.
37      Moreover, under Article 32 of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing Frontex (OJ 2004 L 349, p. 1), the financial rules applicable to Frontex are to be adopted by the Management Board after consultation of the Commission. Frontex cannot depart from the framework financial regulation for the bodies referred to in Article 185 of the Financial Regulation, unless specifically required for its operation and with the Commission’s prior consent.
38      It follows that the procurement of services by Frontex, which is a body covered by Article 185 of the Financial Regulation, is subject to the provisions of Title V of Part 1 of the Financial Regulation and to those of Title V of the implementing rules as well to as the provisions of the Frontex financial regulation, which, moreover, did not depart from the framework financial regulation for the bodies covered by Article 185 of the Financial Regulation.
39      As regards the applicability of Directive 2004/18 to the present case, it must be pointed out that, under Article 6 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), and under Article 84 of Directive 2004/18, the Member States are the sole addressees of those directives.
40      However, it is apparent from Article 105 of the Financial Regulation that the directives on the coordination of procedures for the award of public service contracts, public supply contracts, and public works contracts apply to public procurement by the institutions of the EU on their own account only in respect of questions relating to the thresholds which determine the publication arrangements, the choice of procedures, and the corresponding time-limits (see, to that effect, judgment of 9 September 2010 in Case T-63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 35).
41      It follows that, even if it is necessary to refer to Directive 2004/18 as regards the thresholds applicable for the publication arrangements, the choice of procedures and the corresponding time-limits, the public procurement in question is, as regards all other aspects, subject to the abovementioned provisions of the Financial Regulation and the implementing rules.
The alleged insufficiency of judicial protection in procedures for the award of public contracts by the European institutions
42      The applicant claims, in essence, that the broad discretion of the contracting authority in the award of public contracts cannot exempt the European institutions from the obligation to provide a review procedure concerning the assessments of the evaluation committee in a procedure for the award of a public contract, as provided for by Directive 89/665. It states that the General Court’s review, limited to checking that there has been no serious and manifest error of assessment, does not allow rapid and effective judicial protection. According to the applicant, the principles of judicial protection enshrined in Directive 89/665, in particular the system of review of the reports of the evaluation committee, are binding on the European institutions.
43      It submits that the Frontex financial regulation does not refer to a procedure for reviewing the reports of the evaluation committee.
44      It adds, at the reply stage, that, in any event, even if the review system put in place by Frontex could be considered as a review procedure, Frontex breached the principles of transparency and equal treatment.
45      Frontex disputes the applicant’s arguments.
46      First, with regard to the scope of judicial review, it is settled case-law that the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a public contract by procurement and that review by the General Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, that the facts are correct, and that there is no manifest error of assessment or abuse of powers (see judgment of 3 March 2011 in Case T‑589/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 24 and the case‑law cited).
47      As regards the procedure for review of decisions contained in evaluation committee reports, it must be pointed out that, as the applicant states, neither the applicable provisions of the Financial Regulation and the implementing rules nor the Frontex financial regulation provide for a procedure for the re-evaluation of the evaluation committee’s report. If the view were to be taken that that lack of a review procedure constitutes an insufficiency of judicial protection for tenderers, it must be noted that it is a matter for the EU legislature alone to remedy any insufficiencies regarding the EU system of legal protection in procedures for the award of public contracts.
48      The procedures for review of evaluation committee decisions provided for in Member States and in Directive 89/665 cannot call into question, as has already been indicated in paragraphs 39 and 40 above, the fact that the directives on the coordination of procedures for the award of public service contracts, public supply contracts, and public works contracts apply to public procurement by the institutions of the European Union on their own account only in respect of certain questions relating to thresholds and not in respect of a review of the findings of the evaluation committee.
49      In any event, it must be pointed out that it is apparent from the letter of 14 November 2007 that Frontex carried out, following the request made by the applicant, an examination of the decision of the evaluation committee, confirming the rejection of the tender and setting out the reasons why scores lower than 60% were attributed for four of the award criteria.
50      As regards the complaint that, in any event, Frontex breached the principles of transparency and equal treatment in the re-evaluation procedure which it established, it must be held that such a complaint is out of time, since it was raised only at the reply stage. Under the first subparagraph of Article 48(2) of the Rules of Procedure, ‘[n]o new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure’.
51      Inasmuch as this complaint is not based on matters of law or of fact which came to light in the course of the procedure, and cannot be regarded as elaborating directly or by implication on a plea already put forward in the original application, it must be regarded as being ‘new’ within the meaning of the first subparagraph of Article 48(2) of the Rules of Procedure (see, to that effect, Joined Cases T‑189/95, T‑39/96 and T‑123/96 SGA v Commission [1999] ECR II‑3587, paragraph 46).
52      It follows that those complaints must be rejected in their entirety.
Complaint alleging discriminatory practices on the part of Frontex
53      It is necessary to reject as inadmissible the complaint put forward by the applicant, at the reply stage, according to which the practices of the contracting authority are discriminatory against small- and medium-sized businesses in that it chose IT tools before launching the call for tenders and in that it awarded more points to companies on the basis of the number of CVs of experts that the tenderers could attach to their respective offers. It follows from the combined provisions of Article 44(1)(c) and Article 48(2) of the Rules of Procedure that the application initiating proceedings must contain, inter alia, a summary of the pleas in law on which the application is based and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. The present complaint, however, which was first put forward by the applicant at the reply stage, does not satisfy those requirements and must, for that reason, be declared inadmissible.
The first plea in law, alleging a breach of the obligation to state reasons and of the principle of transparency
54      The applicant asserts that the contested decision and Frontex’s letters of 4 and 12 October 2007 informing it of the two better financial and technical offers of the tenderers for Lot 1 are inadequately reasoned inasmuch as Frontex did not specify the merits and characteristics of the successful tender. It takes the view that, since the evaluation report is the fundamental document of the evaluation procedure, it should have been provided with a copy of that evaluation report, and that the General Court should examine that evaluation report when evaluating the lawfulness of the contested decision.
55      The applicant also criticises Frontex on the ground that it did not give sufficient reasons for the scores received for the award criteria concerning the quality of the program management methodology proposed, the SLA proposal, and the efficiency and effectiveness of the proposed hypothetical IT solution. The applicant alleges, inter alia, that Frontex did not explain why the requirements of the tendering specifications had not been followed correctly and that Frontex failed to give reasons as to why the offer submitted by the successful tender was better than that of the applicant. It submits that the contested decision does not mention the score obtained for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution. In that respect, it states that it was only later that it was informed by Frontex that it had not passed the 60% threshold.
56      Frontex disputes the applicant’s arguments.
57      It must be pointed out that, pursuant to Article 100(2) of the Financial Regulation and Article 149(2) of the implementing rules, Frontex was under a duty to notify the applicant of the grounds on which its offer had been rejected and, the applicant having submitted an admissible tender, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract had been awarded, within no more than 15 calendar days from the date on which a written request was received.
58      Such a course of action is consistent with the duty to state reasons laid down in Article 253 EC, according to which 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 make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (Case T‑19/95 Adia interim v Commission [1996] ECR II-321, paragraph 32, and judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 49).
59      It should also be noted 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 Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited, and judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 49).
60      In the light of those elements, in order to determine whether Frontex fulfilled its obligation to state reasons under the Financial Regulation and the implementing rules, it is necessary to examine not only the contested decision but also the letter of 4 October 2007, sent by Frontex to the applicant in response to the latter’s request for further information on the decision awarding the contract at issue. It is also necessary to take into consideration all of the documents sent to the applicant, at its request, relating to the reasons for the rejection of its tender, namely Frontex’s letter of 12 October 2007 concerning the comparison of the two best technical and financial offers with those of the applicant and the letter of 14 November 2007 by which Frontex confirmed the findings of the evaluation committee with regard to rejection of the applicant’s tender.
61      Following the applicant’s written request of 3 October 2007, Frontex replied by letter of 4 October 2007, enclosing with its letter a first table showing, for each award criterion of Lot 1, the scores obtained by the successful tenderers and those obtained by the applicant, a collection of tables showing the scores and assessments of the evaluation committee with regard to the offers of the successful tenderers and that of the applicant, as well as the evaluation committee’s report.
62      It must be noted that the first table enabled the applicant to make a direct comparison of the scores awarded to it, and those obtained by the successful tenderers, for each award criterion set out in the tendering specifications. The second series of tables set out, for each award criterion, the conclusions relating to the offers of the successful tenderers and to that of the applicant, allowing the latter to compare the evaluation of its offer with those of the successful tenderers in relation to each award criterion. Moreover, the report of the evaluation committee allowed the applicant to know the identity of the other tenderers for the entire public supply contract for the provision of ‘informatics services, hardware, and software licences’.
63      In its letter of 12 October 2007, Frontex, at the applicant’s request, sent to the latter a document indicating the scores obtained by the successful tenderers for their technical offer and their financial offer as well as the scores obtained by the applicant.
64      In addition, at the request of the applicant, Frontex reviewed the assessment of the applicant’s offer carried out by the evaluation committee and, by letter of 14 November 2007, confirmed the conclusions of the latter. As regards the quality of the program management methodology proposed, it confirmed that the applicant’s tender had not proposed a sufficient level of definition of procedures. With regard to the maintenance proposal criterion, the applicant’s tender did not include an immediately adoptable concrete proposal for hardware maintenance. The same conclusion was drawn with regard to the criterion concerning the SLA proposal. Finally, it concluded that the applicant’s tender had not reached the required threshold for the criterion relating to the efficiency and effectiveness of the proposed hypothetical IT solution, since it proposed an ECM (Enterprise Content Management) solution-based platform.
65      Therefore, contrary to what is claimed by the applicant, the evaluations relating to the offer of the successful tenderers and the evaluation of the applicant’s offer were communicated to the latter, with the result that it was thus in a position not only to identify the specific reasons for the rejection of its tender, but also to compare the assessments of its tender with those relating to the offers of the successful tenderers.
66      As regards the report of the evaluation committee, it must be pointed out that Frontex was not required to send this to the applicant, since, under Article 100(2) of the Financial Regulation, the contracting authority is required to notify the unsuccessful tenderer only of those grounds on which his tender was rejected and, following a request in writing from that unsuccessful tenderer whose offer was admissible, of the characteristics and the relative advantages of the successful tender and of the name of the tenderer to whom the contract has been awarded. In any event, it must be held that the report of the evaluation committee was sent to the applicant by letter of 4 October 2007.
67      With regard to the grounds of rejection of the applicant’s offer, the letter of 4 October 2007 referred to the assessments of the evaluation committee in relation to each of the award criteria. It must be pointed out that the comments of the evaluation committee indicate both the strong and weak points of the applicant’s offer in relation to each of the evaluation criteria.
68      Hence, as regards the award criterion concerning the program management methodology proposed, for which the applicant was given a score of five out of ten, the assessment of the evaluation committee noted that the best practices of the Control objectives for information and related technology (CobiT) had been referred to as the general philosophy adapted to program management, ‘+ principles, - rules, - procedures’. As regards the criterion concerning the SLA proposal, the evaluation committee specified, inter alia, that the applicant’s offer applied the best practices of the Information technology infrastructure library (ITIL) to the Frontex environment, but that there were no hardware maintenance services proposed. The assessment given therefore allowed the applicant to understand the reasons for the scores which it received for each award criterion in so far as the strong and weak points of the applicant’s tender in relation to each of those criteria were set out.
69      The absence of specific reasons concerning compliance with the tendering specifications cannot be considered, in the present case, as a failure to give sufficient reasons, inasmuch as a tender may comply with the criteria of the tendering specifications without being evaluated as the best.
70      As regards the question of whether Frontex failed to state sufficient reasons regarding the score obtained for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution, inasmuch as that score does not appear in the contested decision, it must be pointed out that the statement of reasons for a decision rejecting an offer must be communicated to the tenderers concerned, in sufficient time, so that the unsuccessful tenderers have the opportunity efficiently to bring proceedings (see, by analogy, judgment of 17 February 2011 in Case C‑251/09 Commission v Cyprus, not published in the ECR, paragraph 58 and the case‑law cited).
71      In the present case, the score for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution was notified to the applicant on 4 October 2007, that is to say, the day after the letter setting out the reasons for the rejection of the applicant’s tender and, in accordance with Article 149(2) of the implementing rules, within 15 calendar days of reception of the applicant’s request.
72      In any event, any failure to state reasons would not have had any effect whatsoever on the lawfulness of the contested decision in the present case. A procedural irregularity will entail the annulment of a decision in whole or in part only if it is shown that, had it not been for that irregularity, the contested decision might have been different (see, to that effect, Case T‑345/03 Europaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 147 and the case-law cited). In the present case, Frontex specified in the contested decision that the applicant’s offer had been rejected because it had not achieved the minimum number of points in relation to three of the award criterion.
73      It must also be pointed out that the score and the assessments concerning the award criterion in question were notified to the applicant by Frontex’s letter of 4 October 2007. Although that letter does not contain the evaluation method used to award the score of 0.66 out of 5, it must be noted that the evaluation committee determined that the Mermig platform proposed did not provide all the required features, and specified the negative points for both the efficiency and effectiveness of the proposed hypothetical solution. In any event, Frontex was not required to specify its calculation method for the evaluation of one of the award criterion inasmuch as, as has been mentioned in paragraph 57 above, the contracting authority satisfies its obligation, under Article 100(2) of the Financial Regulation and Article 149 of the implementing rules, to provide reasons if it immediately notifies any unsuccessful tenderer of the reasons for its rejection of its tender and if it subsequently provides to tenderers who have submitted an admissible tender, and who make an express request, the characteristics and the relative advantages of the successful tender.
74      It must be noted, in the present case, that the tendering specifications specify, at pages 23 and 27, that this award criterion is scored out of 5 and that the highest note would be given for the best standard of efficiency and the best standard of effectiveness.
75      It follows from the foregoing that, in the contested decision, Frontex provided, to the requisite legal standard, reasons for the rejection of the applicant’s tender and for the relative advantages of the successful tender and satisfied the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(2) of the implementing rules.
76      In support of the present plea in law, the applicant also invokes an infringement of the principle of transparency. That principle is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 111).
77      In addition, the principle of transparency which informs the entire public procurement procedure requires that particular care should be taken, in the rejection of a tender, with respect to the statement of reasons (see, to that effect, judgment of 10 September 2008 in Case T‑59/05 Europaïki Dynamiki v Commission, not published in the ECR, paragraphs 134 and 135).
78      However, as indicated in paragraphs 57 to 72 above, the applicant was given sufficient reasons for the rejection of its tender. In any event, it is necessary to point out that the applicant has not raised any specific complaint in the context of this plea in law relating to a breach of the principle of transparency. Therefore, given the provisions of Article 44(1)(c) of the Rules of Procedure, the complaint alleging an infringement of the principle of transparency must be declared inadmissible.
79      Consequently, the first plea in law must be rejected as unfounded.
The second plea in law, alleging the application of evaluation criteria not included in the tendering specifications.
80      The applicant claims, in essence, that Frontex used evaluation criteria which were not set out in the tendering specifications of the call for tenders, in breach of Article 45 of the Frontex financial regulation.
81      Frontex disputes the applicant’s arguments.
82      In this respect, it must be noted that, under Article 97 of the Financial Regulation, the award criteria for evaluating the content of the tenders must be defined in advance and set out in the call for tenders. Article 121 of the regulation on the implementing rules of the Frontex financial regulation provides that the tendering specifications must refer to at least the award criteria and their relative weighting or, if necessary, the decreasing order of importance of those criteria if that is not indicated in the call for tenders.
83      It is thus necessary to examine whether or not the elements which the applicant claims were not taken into consideration constitute inseparable parts of the award criteria included in the tendering specifications.
The award criterion relating to the maintenance proposal
84      With regard to the criterion relating to the maintenance proposal for Lot 1, the applicant asserts that the evaluation committee penalised it for the lack of a hardware maintenance proposal even though, according to the tendering specifications, the Lot 1 contractor was not required to provide hardware maintenance directly. According to the applicant, maintenance is the responsibility of contractors of other lots, in accordance with the tendering specifications, which provide that the role of the Lot 1 contractor, as far as hardware is concerned, is to manage the timely performance of the maintenance and assistance services related to hardware products and ensure that they are provided by the contractors of the other lots, third parties, and subcontractors.
85      It adds that the roles and responsibilities of the personnel profiles requested in the tender specifications for Lot 1 did not request specific skills and qualifications for hardware maintenance. The only profile for which management qualifications in the field of hardware maintenance services were required was that of the program/project manager, who had to be able to monitor the work of the contractors of other lots.
86      The applicant submits that, in the part of its tender entitled ‘Services to be provided and maintenance proposal’, it provided a detailed presentation of the standards, methodologies and procedures to be applied for the maintenance of Lot 1 information systems, in accordance with the requirements of the tendering specifications.
87      Frontex asserts in reply that the requirement for hardware maintenance services for Lot 1, as well as the desired staff profiles, is expressly mentioned several times in the tendering specifications.
88      As a preliminary point, it must be noted that the third complaint, relating to the conformity of the applicant’s tender with the requirements of the tendering specifications, set out in paragraph 86 above, refers to a manifest error of assessment on the part of Frontex in assessing that tender. It will therefore be dealt with in the context of the third ground, alleging the existence of manifest errors of assessment.
89      First, it must be held that it follows expressly from the paragraph ‘Program management’ of the terms of reference of the tendering specifications that the contractor of Lot 1 must manage, organise, and oversee maintenance and assistance for hardware concerned by the IT services, even if the hardware assistance is delivered directly by suppliers of other lots of the call for tenders. It is also specifically required to carry out maintenance and assistance in relation to the IT solution developed.
90      It is also clear from the section of the tendering specifications relating to the calculation of the award criteria that, if, in their offer, the tenderers proposed basic, standard, and critical hardware maintenance services, as well as the same categories of services in relation to software, they would obtain the maximum score.
91      It follows that the contractor for Lot 1 must be responsible, not only for maintenance and assistance in relation to the IT solution which includes, inter alia, the supply of software services solutions such as intranet and data storage, but also for the maintenance of that software, which is closely linked to the maintenance of the hardware on which it is dependent. In the terms of reference of the tendering specifications, it is requested that the contractor for Lot 1 manage the maintenance and assistance in relation to the hardware of the IT services of the other lots, even if that contractor does not directly carry out the delivery of those services. That cannot, however, invalidate the fact that Frontex expects the contractor for Lot 1 to provide the best maintenance and assistance services in relation to solutions for software which cannot be completely disassociated from the hardware services on which they are dependent. The maintenance and assistance of the IT solution are closely linked to the maintenance of the IT hardware on which that solution depends.
92      Secondly, as regards the staff competent to carry out the hardware maintenance services, it must be held that it follows expressly from the terms of reference of the tendering specifications that the manager of the information system services program of Lot 1 must manage the maintenance and assistance in relation to hardware and software concerned by the services provided.
93      It follows that the requirement to provide assistance and ensure maintenance of the informatics services linked to the software and hardware itself was known to all of the tenderers for Lot 1. It therefore does not constitute a new criterion in relation to those contained in the tendering specifications.
94      Consequently, the complaints set out in paragraphs 80 and 81 above must be rejected as unfounded.
The award criterion relating to the SLA proposal
95      The applicant claims, in essence, that it was not expressly specified that the contractor of Lot 1 would be required to provide hardware assistance and maintenance of IT hardware in relation to services concerning the SLA proposal for Lot 1.
96      In that respect, it must be pointed out that the terms of reference of the tendering specifications are applicable, as regards Lot 1, to all of the award criteria for that lot and not solely to the award criterion relating to the maintenance proposal. In the light of paragraphs 84 to 89 above, the complaint set out in paragraph 91 above must therefore be rejected as unfounded.
The award criterion relating to the efficiency and effectiveness of the proposed hypothetical IT solution
97      The applicant claims, in essence, that in its offer it presented its own hypothetical IT solution on the basis of the Mermig platform, which constitutes a product of its choice. It claims, in that respect, that the tendering specifications do not require tenderers to carry out a comparison of the most effective IT tools with regard to the ECM/Document management systems (‘DMS’). The tenderers were therefore free to choose the solution which they considered to be the most appropriate for carrying out the hypothetical IT solution in an effective manner. However, the evaluation committee, in the view of the applicant, evaluated the applicant’s tender in the light of a new criterion which was not set out in the tendering specifications, namely that the proposed hypothetical IT solution must cover all the functionalities of all ECM/DMS systems on the market.
98      It also claims that no provision in the tendering specifications states that the score for that evaluation criterion would be calculated by multiplying the score awarded for effectiveness by that awarded for the efficiency of the services proposed. Moreover, no precise definition was given for the terms ‘effectiveness’ and ‘efficiency’.
99      The applicant also takes the view that Frontex’s argument that the evaluation committee rejected the Mermig platform because the tool proposed did not meet the demands of Lot 1, but of different lots, did not feature in the comments of the evaluation committee and is therefore a new criterion introduced to the tendering specifications.
100    In reply, Frontex contends that the tendering specifications were sufficiently clear and precise both with regard to the calculation of the efficiency and effectiveness of the solution to be proposed, and with regard to what was expected of the tenderers concerning the solution to a hypothetical scenario.
101    First, it must be pointed out that the tendering specifications set out a description of the hypothetical scenario that the tenderer for Lot 1 should propose (page 16):
‘1.      Frontex transmits and receives information and documents through secure channels to/from Partners (max 50). According to analyses done on the basis of this information influencing the Program of Work, Frontex decides to organize its operational activities as projects that manage money, people and technical equipments by planning, by tracking and by reporting. Frontex should give on-progress status of all activities to internal and external users. Frontex should facilitate the secure exchange of information among its Partners.
2.      Frontex Business Processes should be automated and the workflow of documents should allow the approval and the digital signature of the responsible.
3.      Frontex should allow secure role-based access to many kinds of information/documents and to all of its knowledge for internal and external authorised users by means of queries, browsing, chats, fora, virtual meetings, as well.
4.      Moreover, in the context of operational activities, the Frontex Headquarter should organize secure audio/video conferences by recording and archiving live sessions held among two, three or four places in Europe (places can be vessels on the sea, or lands without phone coverage, normal offices or with wireless/3G/satellite connection).
5.      Frontex wishes to implement a “Virtual and Paperless Office”.
6.      Frontex has 1 Headquarter, 50 Partners and 400 workplaces divided in two physically isolated networks.
7.      Frontex manages classified information’.
102    It was then specified that the activities of Frontex were described on its website and tenderers were requested to describe how the specialised products and services proposed in the context of Lot 1 could contribute to automating or governing efficiently and effectively the scenario or part of it.
103    The terms of reference specify, as regards Lot 1, that services and products for ECM/non-structured information paradigm solutions are excluded.
104    The tendering specifications also set out the total points for the award criterion in question as well as the calculation method which distinguishes between, on the one hand, the efficiency score of the hypothetical solution and, on the other, its effectiveness score.
105    The complaint that Frontex introduced a new criterion, by requiring tenderers to carry out a comparison of the most effective IT tools as regards the ECM/DMS systems and by requiring that the hypothetical IT solution should cover all the functionalities of all the ECM/DMS systems on the market, is unfounded. It must be held that it follows expressly from the terms of reference of the tendering specifications relating to Lot 1 that ‘the enterprise content management products and services (ECM or unstructured information paradigm) are excluded’ from the products and services that the tenderers should propose for Lot 1. The fact that the evaluation committee assessed the applicant’s ECM/DMS system and compared it to other software of the same type on the market cannot be considered as the introduction of a new criterion and cannot call into question the fact that the terms of reference of the tendering specifications specified that all ECM/DMS systems were excluded from the IT tools which could be proposed for Lot 1.
106    As regards the question of whether the evaluation committee introduced new criteria by not specifying the specific method of calculation of the score for the evaluation criterion in question, consisting in the multiplication of efficiency by effectiveness, it must be noted, as was mentioned in paragraph 104 above, that elements had been given as regards the method of calculation of that award criterion. Moreover, the fact that a precise scale of the calculation of the tenders with regard to that award criterion was not given cannot constitute a breach of the tendering specifications consisting in the introduction, by the contracting authority, of a new award criterion. The calculation used to arrive at a well defined score does not constitute an evaluation criterion of the proposed hypothetical IT solution, but rather a consequence of that evaluation.
107    As regards the complaint that the evaluation committee incorrectly assessed the Mermig platform proposed by the applicant to meet the award criterion relating to the efficiency and effectiveness of the hypothetical IT solution, it is necessary to analyse that complaint in the context of the third plea in law, inasmuch as it criticises the assessment of the applicant’s tender carried out by the evaluation committee.
108    It follows from all of the foregoing that the applicant has not shown that Frontex applied criteria which had not been set out in the tendering specifications or in the terms of reference.
109    Subject to the complaints mentioned in paragraphs 84 and 102 above, which will be examined in the context of the analysis of the third plea in law, the second plea in law must therefore be rejected as unfounded.
The third plea in law, alleging the existence of manifest errors of assessment
110    The applicant takes the view that Frontex committed manifest errors of assessment in the evaluation of its offer as regards the award criteria concerning the quality of the program management methodology proposed, the SLA proposal, and the efficiency and effectiveness of the proposed hypothetical IT solution. As indicated in paragraph 88 above, the applicant also claims that Frontex made a manifest error of assessment in relation to the criterion concerning the maintenance proposal.
111    It is necessary to examine, first, whether Frontex made a manifest error of assessment in evaluating the applicant’s offer as regards the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution.
112    According to settled case law, the contracting authority enjoys a broad margin of discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see, to that effect, Case 56/77 Agence européenne d'interims v Commission [1978] ECR I-2215, paragraph 20, and judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89 and the case law cited).
113    The applicant claims, in essence, that the evaluation committee erred in its evaluation of the hypothetical solution, ignored the content of its tender, and collected information from outside sources.
114    As regards the evaluation committee’s remark that the solution proposed by the applicant did not take into consideration the overall program management and lots synergy, the applicant claims that it presented a complete solution covering all of Frontex’s requirements, as specified in the hypothetical scenario of the tendering specifications. Contrary to Frontex’s submission, the applicant contends that its Mermig platform was not included in the products requested in Lot 6, but completely satisfied the requirements set out in Lot 1. Furthermore, the applicant claims that the evaluation committee erred in finding that the ECM/DMS platform which the applicant proposed did not manage all functionalities of the ECM/DMS systems on the market, while failing to state the functionalities which it did not cover, and nevertheless awarding points for that award criterion.
115    Frontex contends that the applicant obtained a score of 0.66 out of 5 for the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution because the Mermig platform which it proposed was an ECM/DMS solution which was excluded from the products and services to be provided for Lot 1.
116    In that respect, it must be pointed out that the evaluation committee assessed the applicant’s tender in respect of the abovementioned technical award criterion as follows:
‘Mermig Platform used (MPL License)
…
The software from Mermig, that you can download from the pages listed below, is licensed under the Mozilla Public License (MPL) and it is provided “as is”. We would like to stress that all Mermig software is without any warranty or some other kind of obligation. Of course, you may always contact us and ask for explanations or directions.
…
–        the proposed solution for automating the Scenario lies on the top of a proposed Mermig software platform chosen without any comparison with others on the market. Therefore, this platform overlaps other software lying in the highly specialised ECM/DMS market; in fact, that should be efficiently found only after an open competition;
–        this solution in Lot 1 doesn’t take into consideration the overall program management and lots synergy (i.e. with Lot 6);
–        the ECM/DMS Platform proposed doesn’t manage all the functionalities of the specialized ECM/DMS systems on the market.
–        the Information Security is managed without taking into deep consideration the EU Security Classification levels used for information. They are managed in the same network and only by means of different user rights. The scenario includes two physically separated networks; here they haven’t been used for isolating the classified information, as common practices in EU.
–        the secure A/V Conferencing System is not secured for internal conferencing by distinguishing the different users’ security clearances.’
117    Frontex also specified, at the time of the examination of the applicant’s offer, by letter of 14 November 2007, that the applicant’s offer had not reached the required threshold because the Mermig platform proposed used an ECM solution (see paragraphs 20 and 21 above).
118    While it is not expressly apparent from the reasons given for the assessment carried out by the evaluation committee that the low score obtained by the applicant for the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution resulted from the fact that the proposed solution was based on an ECM platform, Frontex did, at the time of the examination of the evaluation committee’s assessment, give the applicant that reason, and communicated it to the applicant by letter of 14 November 2007. That letter, in response to the applicant’s request for an examination of the assessment carried out by the evaluation committee, forms part of the body of documents sent to the applicant enabling it to understand the reasons why its tender had not been selected and, inter alia, the reasons why the required threshold of 60% for four of the technical award criteria had not been reached (see paragraph 64 above).
119    In addition, it is common ground that the Mermig platform is an IT tool that provides an ECM/DMS solution, which the applicant has acknowledged on several occasions, both in its letter of 17 October 2007, in which it challenges the assessment carried out by the evaluation committee, and in paragraphs 57, 73 and 74 of its application.
120    It follows expressly from the terms of reference, as indicated in paragraph 105 above, that ‘Services and Products for Enterprise Content Management Solutions (ECM, or the so-called Unstructured Information Paradigm) are excluded’ from Lot 1.
121    It follows that, contrary to what is claimed by the applicant, the proposed hypothetical solution was based on an IT tool which was not in accordance with the technical directions set out in the terms of reference of the tendering specifications.
122    Therefore, the evaluation committee did not commit a manifest error of assessment in awarding a very low score – 0.66 out of 5 – to the applicant’s offer for the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution, inasmuch as the ECM/DMS solution proposed by the applicant was expressly excluded by the terms of reference of the tendering specifications.
123    In addition, it is apparent from the tendering specifications that, as regards the technical award criterion at issue, the tenderers were required, in their offer, to propose IT tools to respond to a hypothetical situation defined by Frontex. The ECM/DMS systems proposed by the applicant to respond to the hypothetical solution in Lot 1 could not be considered pertinent, since they were already included in the informatics systems to be provided in Lot 6, expressly titled ‘ECM Systems’.
124    It follows that Frontex’s evaluation committee did not commit manifest errors of assessment in finding that the hypothetical solution proposed by the applicant, inasmuch as it was based on the Mermig platform – an ECM/DMS system – did not meet the requirements of the technical award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution.
125    It must also be pointed out that, as set out in the call for tenders, only those offers which obtained more than 60% of the points attributed for each of the technical award criteria were considered to be sufficient to continue the procurement procedure in question.
126    Accordingly, it is necessary to reject as inadmissible the complaints raised by the applicant, alleging manifest errors of assessment with regard to the three other award criteria for which the applicant’s offer did not receive the minimum number of points required, namely the quality of the program management methodology proposed, the maintenance proposal, and the SLA proposal.
127    Even if the applicant’s offer had obtained the maximum number of points for those other three award criteria, its offer could not have been selected, since it had not obtained the minimum required for the award criterion concerning the efficiency and effectiveness of the proposed hypothetical IT solution. Therefore, even if the manifest errors of assessment allegedly made in the evaluation of the three other award criteria had been found to have a basis in fact, that would not in any way have invalidated the lawfulness of Frontex’s decision to reject the offer submitted by the applicant.
128    Therefore, the third plea in law must also be rejected, as must also the complaints, raised in the context of the second plea in law, referred to in paragraphs 84 and 102 above.
129    In the light of all of the foregoing, the applicant’s application to have the contested decision annulled must be dismissed.
2.     The claim for damages
130    Frontex pleads that the claim for damages is inadmissible, arguing that that claim does not include elements that make it possible to identify the unlawful conduct, the nature and the amount of the damage, or the causal link between the unlawful conduct alleged and the damage allegedly suffered.
131    The applicant submits that its claim for damages is admissible. It argues that the contracting authority committed manifest errors in the assessment of its offer and infringed the rules and principles of the legislation applicable to public procurement. Such infringements of the rules of law, it contends, constitute a sufficiently serious breach of a superior rule of law. It claims that its loss consists in the estimated profit if the contract had been awarded to it and in the loss of revenue and costs incurred in responding to the call for tenders.
132    According to settled case-law, in order for the European Union to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; see also, to that effect, Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20).
133    If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 83; see also, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 19).
134    It follows from the Court’s findings relating to the application for annulment that the applicant has not adduced proof of unlawful conduct on the part of Frontex.
135    It follows that, as one of the three conditions subject to which the European Union may incur non-contractual liability has not been satisfied, the claim for damages must be rejected as unfounded, without it being necessary to rule on the admissibility of that claim.
Costs
136    The applicant requests that, even if it were to dismiss the action, the Court should order Frontex to pay the costs on the basis of the second subparagraph of Article 87(3) of the Rules of Procedure. It claims that it was forced to bring the present action by reason of the incorrect evaluation of its tender, the failure to state reasons and the failure to inform the applicant as to the merits of the successful tenderers. That, it submits, justifies an order requiring Frontex to bear the entirety of the costs relating to the present proceedings.
137    Frontex contests the applicant’s claim.
138    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the second subparagraph of Article 87(3) of those Rules, the Court may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.
139    In the present case, it has been established, with regard to the application for annulment of the contested decision, that the three grounds, alleging, respectively, the breach of the obligation to provide reasons and of the principle of transparency, the application of award criteria which were not included in the tendering specifications, and the existence of manifest errors of assessment, were unfounded. Furthermore, the applicant has provided no evidence to justify an order requiring Frontex to pay to it costs considered to be unreasonable or vexatious.
140    In consequence, the applicant having failed in its action, it must be ordered to pay the costs, including those reserved by the order of the General Court of 28 October 2008, in accordance with the form of order sought by Frontex.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), including those reserved by the order of the General Court of 28 October 2008.
Vadapalas
O’Higgins
Popescu
Delivered in open court in Luxembourg on 12 July 2012.
[Signatures]
* Language of the case: English.