62015CO0049
ORDER OF THE VICE-PRESIDENT OF THE COURT
5 June 2015 (
*1
)
‛Appeal — Order for interim measures — Public works contracts — Delegated Regulation (EU) No 1268/2012 — Call for tenders for the construction of a gas-turbine tri-generation power plant and associated maintenance — Tender amended after the opening of tenders — Rejection of the appellant’s tender — Inadmissibility — Error of law — None’
In Case C‑49/15 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 6 February 2015,
STC SpA, established in Forli (Italy), represented by A. Marelli and G. Delucca, avvocati,
appellant,
the other parties to the proceedings being:
European Commission, represented by L. Cappelletti, L. Di Paolo and F. Moro, acting as Agents,
defendant at first instance,
CPL Concordia Soc. coop., established in Concordia Sulla Secchia (Italy), represented by A. Penta, avvocato,
intervener at first instance,
THE VICE-PRESIDENT OF THE COURT,
After hearing the First Advocate General, M. Wathelet,
makes the following
Order
1
By its appeal STC SpA (‘STC’) seeks to have set aside the order of the President of the General Court of the European Union in STC v Commission (T‑355/14 R, EU:T:2014:1046 (‘the order under appeal’)) by which that court dismissed its application for interim measures concerning several decisions of the European Commission relating to the tendering procedure JRC IPR 2013 C04 0031 OC concerning the construction of a gas-turbine tri-generation power plant and associated maintenance on the site of the Joint Research Centre (JRC) at Ispra (OJ 2013/S 137-237146).
Legal context
2
Article 112 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), entitled ‘Principles of equal treatment and transparency’, reads as follows:
‘1.   While the procurement procedure is under way, all contacts between the contracting authority and candidates or tenderers shall satisfy conditions ensuring transparency and equal treatment. They shall not lead to amendment of the conditions of the contract or the terms of the original tender.
2.   The Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning detailed rules on the principles of equal treatment and transparency. Furthermore, the Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning the contact that is allowed between contracting authorities and tenderers during the contract award procedure, the minimum requirements of the written record of an evaluation and the minimum details of the decision taken by the contracting authority.’
3
Article 160 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 (OJ 2012 L 362, p. 1 (‘the delegated regulation’)), entitled ‘Contacts between contracting authorities and tenderers’, provides:
‘1.   Contact between the contracting authority and tenderers during the contract award procedure may take place, by way of exception, under the conditions set out in paragraphs 2 and 3.
…
3.   If, after the tenders have been opened, some clarification is required in connection with a tender, or if obvious clerical errors in the tender must be corrected, the contracting authority may contact the tenderer, although such contact may not lead to any alteration of the terms of the tender.
…’
Background to the proceedings, procedure before the judge hearing the application for interim measures and the order under appeal
4
The background to the proceedings was set out as follows in paragraphs 1 to 6 of the order under appeal:
‘1
On 17 July 2013, the European Commission published in the Official Journal of the European Union a call for tenders in accordance with the open procedure under reference JRC IPR 2013 C04 0031 OC concerning the construction of a gas-turbine tri-generation power plant and associated maintenance on the site at Ispra (Italy) of its Joint Research Centre (JRC). The time limits for the receipt of tenders and for the opening of tenders were fixed, after corrigenda published in the Official Journal on 15 and 21 November 2013 respectively. The document entitled “Administrative Annex” appearing in the invitation to tender specified that the award of the contract was based on the most economically advantageous tender determined on the basis of its total cost and its technical quality, that a maximum of 80 points could be attributed to the total cost of the offer and that a maximum of 20 points could be attributed to the quality of the technical offer.
2
An information meeting was held on 10 September 2013 on the site of the JRC at Ispra. In a reply to a question raised during the meeting, an error was reported in the document “Contractor’s Tender” at line 2.31 concerning the service “FULL MAINTENANCE of the turbine generator for a 24 month period following receipt of the plant”, in respect of which the quantity requested was two instead of four. On 17 September 2013 the file containing that document was re-published in its corrected version on the website of the JRC. A further error having been found after the meeting in that same document at line 2.18 in relation to the service “Installation of the electrical supply to the plant 1st lot (MMC and supply of all the equipment for the plant)”, for which the requested quantity was one instead of two, the file containing the document “Contractor’s Tender” was re-published on the website of JRC on 9 October 2013.
3
The tender of [STC] presented on 15 November 2013 included a “first tender” and two “alternative tenders”. The tender evaluation committee rejected the two alternative tenders because of their non-compliance with the specifications set out in the call for tenders. Regarding the first tender, it found that the technical offer of [STC] did not contain the detailed estimation schedule required at Chapter 12 of the technical specifications in the call for tenders and that [STC] had drafted its financial tender on a non-updated version of the document “Contractor’s Tender”. On 30 January 2014, the Commission sent a letter to [STC] asking it to supply a detailed estimation schedule, as was required in the technical specifications. Regarding the financial tender, it sent [STC], as an enclosure, a corrected version of the document “Contractor’s Tender” in which it repeated the unit prices proposed by [STC] and applied them, as corrected on 9 October 2013, to the requested quantities. It asked [STC] to confirm the calculations resulting from the transposition of the proposed unit prices in the corrected document “Contractor’s Tender”.
4
[STC] sent its reply by e-mail on 7 February 2014. As the tender evaluation committee took the view that the replies did not meet its expectations, the Commission informed STC, in a letter of 3 April 2014, that its offer had received a negative assessment. In that same letter [STC] was informed of the name of the successful tenderer, namely (CPL Concordia Soc. Coop (“CPL Concordia”)), the number of points that it had obtained and the possibility of obtaining information on the characteristics and relative merits of the successful tender.
5
In a letter of 11 April 2014, [STC] disputed the assessment of the tender evaluation committee regarding its technical tender and its financial tender. It also asked to have access to the appointment decisions for the tender evaluation committee, to the minutes of the assessment, to the requests for “supplementation” or “clarification” of the supporting documents and to the corresponding replies, to the grading for the award and to the points awarded to each of the tendering undertakings with the corresponding grounds for rejection or selection.
6
In its letter of 15 April 2014, the Commission reminded STC of the name of the successful tenderer, stated the comparative marks and the characteristics of the tender of (CPL Concordia) from a technical and financial point of view and sent it an extract from the report of the tender evaluation committee.’
5
By application lodged at the General Court Registry on 30 May 2014, STC brought an action seeking, first, the annulment of the decision of 3 April 2014 in which the Commission rejected the tender that it had submitted under the call for tenders JRC IPR 2013 C04 0031 OC, of the decision in which the Commission awarded the contract to CPL Concordia, of any other related prior or subsequent act including the actual decision approving the contract and the contract itself, and of the decision of the Commission refusing disclosure of the documents in the call for tenders (together ‘the contested decisions’) and, second, seeking an order that the Commission withdraw its decision and draw up and adopt any measure necessary to award it the contract or, in the alternative, if the loss cannot be made good, pay damages in respect of the damage suffered.
6
In a separate document lodged at the General Court Registry the same day, STC brought an application for interim measures in which, essentially, it claimed that the President of the General Court should:
—
order that the operation of the contested decisions be suspended;
—
permit full exercise of its right to access to the documents in the call for tenders by way of an interim measure, and
—
order the Commission to pay the costs.
7
In its observations on that application, the Commission contended that the President of the General Court should, in essence, dismiss the application for interim measures as partly inadmissible and entirely unfounded and reserve the costs. By order of 2 September 2014, the President of the General Court granted CPL Concordia leave to intervene in support of the Commission.
8
On 8 December 2014, in the order under appeal, the President of the General Court dismissed the application for interim measures on the ground that a prima facie case had not been established. Having analysed, at paragraphs 20 and 31 of the order under appeal, the second plea for annulment relating to the financial tender presented by STC, the President of the General Court held, at paragraph 32 of that order that it was not necessary to adjudicate on the other pleas for annulment since it appeared prima facie that the tender of STC had been rightly rejected with the result that that those other pleas could not establish the existence of a prima facie case.
Forms of order sought
9
STC claims, in essence, that the Court should:
—
set aside the order under appeal;
—
stay the implementation of the contested decisions, and
—
order the Commission to pay the costs.
10
The Commission contends that the Court should:
—
dismiss the appeal as inadmissible and, in any event, without substance in law;
—
in the alternative, dismiss the claim for interim measures, and
—
order STC to pay the costs incurred both in the appeal proceedings and in the proceedings before the General Court.
11
CPL Concordia contends that the Court should:
—
dismiss the appeal as manifestly inadmissible and manifestly unfounded;
—
uphold the order under appeal and the contested decisions, and
—
order STC to pay the costs.
The appeal
12
In support of its appeal STC relies on three grounds. Each of those grounds relates to the finding of the President of the General Court, at paragraph 31 of the order under appeal, that the second plea for annulment put forward before the General Court, concerning STC’s financial tender, did not permit a prima facie case to be established.
13
Furthermore, STC maintains that its appeal also relates to paragraphs 32 to 35 of the order under appeal, in which the President of the General Court set out the reasons why he took the view that the existence of a prima facie case based on the second plea for annulment having been rejected, it was not necessary to rule on the other pleas in law, that is to say, the first and third pleas for annulment, nor on the arguments of STC on urgency and the balance of interests.
14
It is first appropriate to consider the admissibility of that line of argument and then to consider the three grounds of appeal together.
Admissibility of the reasoning relating to urgency and the balancing of interests and the rejection of the arguments concerning establishment of a prima facie case under the first and third pleas for annulment raised before the General Court
15
Article 104(2) of the Rules of Procedure of the General Court provides that an application for interim measures shall state ‘the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for’. Thus, the judge hearing an application for interim relief may order suspension of operation of an act or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent. Where appropriate, the judge hearing such an application must also weigh up the interests involved (order in Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 35 and the case-law cited).
16
Moreover, it follows from settled case-law that, in accordance with Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of its Rules of Procedure, an appeal must indicate precisely the contested elements of the order or judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (order in Goldstein v Commission, C‑148/96 P(R), EU:C:1996:307, paragraphs 23 and 24 and the case-law cited, see also judgment in Nordspedizionieri di Danielis Livio and Others v Commission, C‑62/05 P, EU:C:2007:607, paragraph 55 and the case-law cited).
17
It follows from the case-law set out at paragraph 15 of the present order that the President of the General Court held correctly that the application for interim measures could be dismissed without examining the questions of urgency and the balance of interests since the condition relating to establishment of a prima facie case was not satisfied. Moreover, in so far as STC repeats in its appeal the arguments that it put forward before the General Court relating to those questions, those arguments must be dismissed as inadmissible in accordance with the case-law recalled at paragraph 16 of the present order.
18
Concerning the rejection of the arguments raised before the General Court relating to the establishment of a prima facie case under the first and third grounds for annulment, STC observes in its appeal that ‘the General Court considers that the alleged failure to establish a prima facie case relieves it of the obligation to rule on the other pleas for annulment’. That being the case, STC maintains that it ‘does not withdraw those pleas for annulment and maintains them in order to dispute the General Court’s decision not to examine them’ and ‘claims that they should be upheld by the judge hearing the application for interim measures, or, as the case may be, by the Court of Justice itself or by the General Court if the case is referred back to that court’. For that purpose, STC refers expressly to the arguments it advanced before the General Court in support of those pleas.
19
It should be noted at the outset that, contrary to what is maintained by STC, the President of the General Court rejected the arguments relating to the establishment of a prima facie case under the first and third pleas put forward before him.
20
Admittedly, the President of the General Court did not examine those arguments on the merits but he did none the less explain, at paragraph 32 of the order under appeal, why such an examination was not necessary observing that ‘the fact that the tender of STC was, prima facie, correctly rejected pursuant to the applicable legislation, would seem to preclude the possibility that the examination of the other pleas could establish the existence of a prima facie case.
21
By merely stating in its appeal that it opposed the relevant parts of the order under appeal and did not withdraw its pleas presented at first instance and by repeating the argument presented before the General Court, STC puts forward no plea or argument capable of calling into question the rejection by the President of the General Court of the arguments relating to the establishment of a prima facie case under the first and third pleas for annulment raised before the General Court. STC does not set out in its appeal why it alleges that the President of the General Court acted unlawfully in holding that the rejection of the arguments under the second plea for annulment was enough to justify the rejection of the analogous arguments under those other two pleas.
22
In those circumstances, in accordance with the case-law cited at paragraph 16 of the present order, that line of argument must be rejected as inadmissible.
The three grounds of appeal
Arguments of the parties
23
The first ground essentially alleges a distortion of facts relating to the nature of the obvious clerical error affecting the financial tender of STC and the failure by the President of the General Court to take into account a misuse of powers by the Commission. According to STC, the clerical error affecting its tender did not relate to the unit prices but to the required quantities of certain services since it had presented its tender on an obsolete version of the document entitled ‘Contractor’s Tender’. In those circumstances, the only correction possible would have been to invite STC itself to indicate the unit prices that it proposed having regard to the new quantities. It was not for the Commission to fill in the document ‘Contractor’s Offer’ in the place of STC and thereby to intervene in the determination of the total cost of the tender.
24
The second ground alleges that the President of the General Court erred in law as regards the fact that the tenderer and not the contracting authority had the right to amend the tenderer’s financial tender in order to correct an obvious clerical error affecting that tender. In view of the amendment by the Commission of the required quantities, STC ought to have had the opportunity to state a new unit price in relation to those quantities. According to STC, the unit prices proposed bound the tenderer only with regard to the quantities mentioned in the offer and it noted that it was the total cost of the offer that determined the number of points awarded under the financial tender.
25
The third ground alleges that the President of the General Court erred in law in that he held that the amendment by STC of the unit prices presented in its tender, following an amendment of the required quantities of certain services, was unlawful.
26
The Commission, supported by CPL Concordia, submits that the three grounds of appeal are inadmissible and, in any event, unfounded.
Findings of the Court
27
It should be borne in mind first of all that, as the President of the General Court observed at paragraph 23 of the order under appeal, Article 160(3) of the Delegated Regulation permits the correction of obvious clerical errors in the drafting of the tender at the stage after the tenders have been opened only on the initiative of the contracting authority and provided that this contact does not lead to any alteration in the terms of the tender. That provision was adopted pursuant to Article 112 of Regulation No 966/2012, paragraph 1 of which provides, inter alia, that such contacts are to satisfy conditions ensuring transparency and equal treatment.
28
Accordingly, the purpose of Article 160(3) of the Delegated Regulation is to allow the correction of clerical errors made by tenderers in their tenders, whilst preventing any contact between the contracting authority and a tenderer with a view to correcting such a clerical error from conferring an advantage on that tenderer, allowing it to modify that tender at a time when the other tenderers no longer have that option.
29
In the present case it is common ground that the Commission, in its letter of 30 January 2014, invited STC to amend its tender under that provision, to which, moreover, it referred in that letter.
30
It is also agreed that two errors were made in the document ‘Contractor’s Tender’, first published on 17 July 2013, at lines 2.18 and 2.31 relating to the required quantities of certain services. STC maintains, in particular, that it should have had the chance to amend, in its reply to the Commission’s letter of 30 January 2014, the unit prices proposed in its initial tender presented on 15 November 2013, so as to take account of those errors.
31
However, it was found at paragraph 2 of the order under appeal, and moreover STC does not dispute, that a corrected version of the file containing the document ‘Contractor’s Tender’ was published on the website of the JRC on 9 October 2013, that being more than a month before 15 November 2013, the deadline for the submission of tenders and the date of the actual presentation of STC’s tender.
32
The clerical errors that had to be corrected by STC in response to the letter of 30 January 2014 were not, therefore, errors as such made by the Commission in the initial drafting of the call for tenders, which were corrected in good time. It is apparent from the facts found in the order under appeal based on the evidence in the file and, in particular, paragraphs 2, 3 and 24 of that order, that the errors that had to be corrected were the result, rather, of the fact that STC had not taken account in its tender, submitted on 15 November 2013, of the amendments made on 9 October 2013 to the quantities required for the maintenance and for the installation of the electricity supply.
33
As the President of the General Court rightly observed at paragraph 24 of the order under appeal, STC, therefore, made clerical errors in the drafting of its tender, within the meaning of Article 160(3) of the Delegated Regulation, in so far as it used the incorrect quantities for those services mentioned in the initial call for tenders.
34
Admittedly, as STC argues, those errors relate to the required quantities of those services and not the proposed unit prices themselves. However, as the President of the General Court rightly observed in paragraphs 25 and 27 of the order under appeal, those errors have nevertheless had a direct impact on STC’s financial tender in so far as they have affected the calculation of the total cost of the tender based on those prices.
35
Since the President of the General Court, while observing that the errors requiring correction, made not by the contracting authority but by the tenderer, related to the required quantities of certain services, correctly identified their impact on the total cost of the tender, the arguments of STC, under the first ground of appeal and based on a distortion of the facts concerning the nature of the obvious clerical errors affecting the financial bid of STC, must be rejected.
36
Those arguments do not support the conclusion that those errors have been assessed, in the judgment under appeal, in a manner that distorts the material in the file.
37
For the rest, it is appropriate to consider together the arguments of STC, put forward under its first ground of appeal, alleging a failure to take account of a misuse of power by the Commission, and those advanced by STC under the second and third grounds of appeal. In all those submissions STC maintains, in essence, that the President of the General Court, erred in law in finding that the second plea for annulment advanced before him did not allow a prima facie case to be established notwithstanding the errors of law made by the Commission, which led it to a negative appraisal of its tender communicated to STC on 3 April 2014. Those errors concern the application in the present case of the procedure to be followed for correcting obvious clerical errors affecting a contractor’s tender.
38
In that regard, STC rightly contends in its first and second grounds of appeal that only a tenderer can determine the content of its tender. While Article 160(3) of the Delegated Regulation allows the contracting authority to initiate contact with a tenderer in order to allow him to correct his tender, it does not confer power on him to amend that tender on behalf of the tenderer.
39
In the present case, as the President of the General Court rightly held at paragraph 25 of the order under appeal, the Commission in fact made contact with STC in order to enable it to correct the obvious clerical errors that had been found, in accordance with Article 160(3) of the Delegated Regulation.
40
Indeed, as is apparent from paragraph 3 of the order under appeal, in its letter of 30 January 2014, the Commission sent STC the document entitled ‘Contractor’s Tender’ in an updated version including the unit prices and the total cost of the amended offer. However, since STC indicated in its e-mail of 7 February 2014 that it would not confirm the amendments proposed in that way and would instead maintain the total amount of its tender, thus altering the unit prices given initially, the Commission had formal notice of the position adopted by the tenderer. As the President of the General Court observed at paragraph 4 of the order under appeal, it is on the basis of that reply to its letter of 30 January 2014 that the Commission took its subsequent decision, set out in its letter of 3 April 2014, to reject the tender of STC as amended by the latter.
41
Clearly, in so doing the Commission had not amended the tender in the place of STC and, contrary to the arguments of STC, the President of the General Court did not hold in the order under appeal that such an amendment would have been lawful. As the President of the General Court held, at paragraph 25 of the order under appeal, prima facie the Commission had not acted in excess of its authority in making contact with a tenderer since it restricted itself to proposing a correction to STC of the quantities of certain services included in the tender.
42
In addition, STC alleges that the President of the General Court erred in law in relation to the assessment of the existence of a prima facie case regarding the question whether the Commission was entitled to reject the tender of STC on the ground that STC had altered the terms of its financial tender rather than correcting it.
43
In that respect it is appropriate to observe that, in accordance with what has been held at paragraph 28 of the present order, the correction of a clerical error made by a contractor in his tender under Article 160(3) of the Delegated Regulation must not permit him to alter that bid and thereby confer an undue advantage on him.
44
It follows that any modification of a financial tender which does not fall within the scope of a typographical correction of an obvious clerical error, or which does not follow automatically from such a correction, is not permitted under Article 160(3) of the Delegated Regulation. The contracting authority cannot, after the opening of tenders, give one tenderer the opportunity to alter the terms of his tender, otherwise the principle of equal treatment and the terms of that provision would be infringed.
45
According to STC, the correction of the unit prices noted in its e-mail of 7 February 2014 should have been allowed since it did not alter the total cost of its tender. However, the President of the General Court rightly observed at paragraph 27 of the order under appeal that the alterations made by STC in its e-mail amounted to a doubling of its total offer as regards the price for services, in respect of which the required quantities have been divided in two and, at paragraph 29 of that order, that the total cost of the tender was calculated automatically from the required quantities and the unit prices, those being the only ones that candidates had to mention in the document entitled ‘Contractor’s Tender’.
46
Having regard to those findings and taking account of what was held at paragraph 44 of the present order, the President of the General Court was also right to observe, at paragraph 28 of the order under appeal, in the context of his initial consideration of the existence of a prima facie case, that STC could not be given the opportunity, after the end of the period for submission of tenders, to revalue its unit prices in relation to the quantities requested and, at paragraph 29 of that order, that those prices appeared to constitute an essential parameter of the tender. A correction of STC’s tender altering the unit prices initially presented would have been liable to confer an unfair advantage in relation to the other tenderers and would have, therefore, been incompatible with Article 160(3) of the Delegated Regulation and the principle of equal treatment.
47
In those circumstances, the President of the General Court was right to hold, at paragraphs 25 and 30 of the order under appeal, that the only correction possible without an unlawful alteration of the offer appeared, prima facie, to consist of the application of the unit prices shown in the initial tender of 15 November 2013 to the new quantities required in the call for tenders, as amended on 9 October 2013. The President also correctly observed, at paragraphs 25 and 27 of the order under appeal, that the Commission had, prima facie, proceeded in a lawful manner in proposing that correction, in accordance with its powers, whilst STC, in wishing to maintain the total cost of its tender despite the alteration of the required quantities, had altered the terms of that tender.
48
It follows from the above that the argument of STC that it was entitled, contrary to the findings of the President of the General Court in the order under appeal, to correct the unit prices presented in its initial bid, as it did in its e-mail of 7 February 2014, cannot succeed.
49
Consequently, none of the grounds of appeal permit a conclusion that the President of the General Court erred in law in holding, on the basis of the arguments presented before him and without prejudice to the examination of the substance of the case, that the second plea for annulment did not permit the establishment of a prima facie case.
50
Consequently the appeal must be dismissed in its entirety without it being necessary to adjudicate on the admissibility of the claim of STC for the suspension of operation of the contested decisions. Although that claim was not put forward in the alternative, it must be held that it would only be relevant in the event of annulment of the order under appeal.
Costs
51
Article 184(2) of the Rules of Procedure of the Court of Justice provides that, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to the appeal procedure pursuant to Article 184(1) of those rules, any unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission and CPL Concordia have applied for costs against STC and it has been unsuccessful, it must be ordered to pay the costs incurred in the appeal proceedings.
On those grounds, the Vice-President of the Court hereby orders:
1.
The appeal is dismissed.
2.
STC SpA is ordered to pay the costs of the appeal.
[Signatures]
(
*1
)	Language of the case: Italian.