JUDGMENT OF THE GENERAL COURT (Second Chamber)
8 June 2022 (*)
(Public service contracts – Tender procedure – Provision of temporary agency workers for EASO – Rejection of a tenderer’s bid – Award of the contract to another tenderer – Equal treatment – Principle of transparency – Manifest error of assessment – Obligation to state reasons)
In Case T‑621/20,
EMCS ltd.,
established in Msida (Malta), represented by P. Kuypers and N. Groot, lawyers,
applicant,
v
European Union Agency for Asylum (EUAA),
represented by P. Eyckmans and J. van Heel, acting as Agents, and by V. Ost and M. Umbach, lawyers,
defendant,
APPLICATION, first, under Article 263 TFEU, for annulment of the decision of the European Asylum Support Office (EASO) of 23 July 2020, entitled ‘Call for tenders EASO/2020/789 Provision of Temporary Agency Workers for EASO in Malta’, rejecting the bid submitted by the applicant in the call for tenders and awarding the contract to another tenderer and, second, under Article 268 TFEU, for compensation of the damage allegedly suffered by the applicant on account of that decision,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović (Rapporteur), President, I. Nõmm and D. Kukovec, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 17 January 2022,
gives the following
Judgment
Background to the dispute
Contract
1        The European Asylum Support Office (EASO), which became the European Union Agency for Asylum (EUAA) on 19 January 2022, has a mandate to strengthen practical cooperation between Member States on asylum, to support Member States whose asylum systems are under particular pressure and to enhance the implementation of the Common European Asylum System.
2        In order to implement its mandate, EASO might use temporary staff for temporary assignments where there was a need for additional resources or for specialised tasks where it did not already have the necessary skills available.
3        In order to meet its fluctuating staff needs, EASO launched a call for tenders for framework contract EASO/2020/789 for services, the subject of which was the provision of temporary agency workers for EASO in Malta.
4        The contract notice was published on 15 May 2020 in the Supplement to the Official Journal of the European Union.
5        According to the draft framework contract published on the eTendering platform for access to online bids along with the tender documents, which include the contract notice, the administrative specifications and the technical specifications (‘the tender documents’), the contract was expected to have an initial duration of 12 months from its entry into force, and after that, to be automatically renewed three times for 12 months each time, unless one of the parties received formal notification to the contrary at least before the end of the ongoing duration.
6        The framework contract was established for a maximum duration of four years. The actual volumes to be ordered through specific contracts were not precisely determined in advance, but the tender specifications (including the administrative specifications and the technical specifications) provided for a formula to calculate a ceiling in the framework contract which could not be exceeded.
Procurement procedure
7        The procedure chosen for the award of the public contract at issue was the open procedure. The tender documents expressly stated that the framework contract was going to be awarded to the most economically advantageous tender on the basis of the criteria stated in the tender specifications.
8        The administrative specifications stated the following information concerning price:
‘For the purpose of the evaluation, the price taken into consideration is the one indicated in the financial proposal form (SSF 7) …. Tenderers must use this form to formulate their financial proposal for the contract and upload it in e-Submission under the step “Tender data” in the tab “Financial tender”.’
9        The technical specifications stated that the price was composed as follows:
‘The “total cost per month” shall be all-inclusive and cover (non-exhaustively):
1. The basic salary – Basic salary means the gross salary that is payable to the temporary agency worker/interim staff by the contractor excluding any remuneration for overtime, any form of bonus, any extra allowances, any remunerations in kind and commissions and all contributions which the contractor is legally mandated to pay on behalf of the interim staff.
…
2. The fee, which shall be a single all-inclusive monthly amount (except the administration fee for missions[’] management mentioned under [Section] 2.5), including:
1/      the contractor’s fee;
2/      all social security contributions, and other contributions and obligations legally mandated to the contractor and not the interim staff (including, but not limited to bonuses and allowances, etc.);
3/      costs related to leave, sick leave, maternity leave and other special leaves and any other associated costs or charges of any nature, such as unemployment benefits, indemnities and compensations.
Note: A separate administration fee for missions’ management shall be payable under the [framework contract] based on the fixed fee defined in Section 2.5 above.ʼ
10      The price structure was made clear in the financial proposal form annexed to the tender specifications.
11      In case tenderers wished to obtain clarifications on the tender documents, the invitation to tender indicated that they could submit requests for additional information to the contracting authority through the eTendering platform. However, the invitation to tender also stated that ‘the contracting authority is not bound to reply to requests for additional information received less than six working days before the time limit for receipt of tenders’. The contract notice indicated that tenders had to be received no later than 15.00 local time on Tuesday, 23 June 2020.
12      A number of questions were submitted within the prescribed period and answered by EASO. The questions and answers were the subject of a document drawn up in the form of a list of questions and answers relating to the call for tenders.
13      On 17 June 2020, the applicant, EMCS ltd., submitted a clarification request to EASO regarding the calculation of the fee charged by the contractor. On 19 June 2020, the applicant sent a message to EASO emphasising the significance of that issue.
14      EASO did not reply to that request, which was submitted less than six working days before the time limit for receipt of tenders.
15      The applicant submitted its tender on 22 June 2020.
16      Two tenders were submitted in total, one by the applicant and the other by a consortium.
17      During the process of evaluation of the bids, EASO noticed that the applicant had calculated the monthly fee charged by the contractor on the basis of the total time interim workers were assigned (including actual hours worked and statutory leave entitlement and public holidays), rather than based on the time actually worked by the worker each month.
18      Following that finding, EASO sent a letter to the applicant on 16 July 2020. In that letter, EASO explained that it had recalculated the fee on the basis of what the applicant had indicated in its technical proposal and asked the applicant to confirm the total amount under that proposal.
19      In an email dated 17 July 2020, the applicant confirmed the total amount resulting from that calculation.
20      The evaluation committee subsequently evaluated the tenders based on the award criteria described in the administrative specifications and ranked the applicant in second place, after the consortium. As regards, inter alia, the qualitative criteria, the consortium obtained a total of 80 points while the applicant obtained a total of 72.5 points.
21      On 23 July 2020, EASO approved the evaluation report, rejected the applicant’s tender and awarded the contract to the consortium (‘the contested decision’).
22      On 24 July 2020, the applicant was informed of the contested decision, including the technical evaluation of its tender.
Post-tender clarifications
23      On 24 July 2020, the applicant sent an email to EASO requesting to be informed of the name, characteristics and relative advantages of the successful tenderer. EASO replied on 28 July 2020, providing the name of the tenderer, the points awarded, per criterion, to the successful tender and the written assessments of the evaluation committee.
24      On 31 July 2020, the applicant submitted observations to EASO concerning the evaluation of its tender and asked EASO to reconsider its award decision. The observations submitted by the applicant related to the lack of clarity of the qualitative scoring, the correction of the applicant’s price after submission of its tender, the failure to take account of the applicant’s local presence and expertise, and the lack of technical questions submitted by the other tenderers.
25      On 7 August 2020, EASO sent a letter to the applicant, in which it provided responses to the observations the applicant had formulated in its letter of 31 July 2020. EASO considered that all its observations were unfounded and therefore refused to amend the contested decision.
26      On 9 August 2020, after having examined and rejected the applicant’s claims that EASO should issue a new call for tenders ‘with an improved tender specification’, EASO concluded the framework contract with the successful tenderer.
27      On 10 September 2020, the applicant sent a letter to EASO asking it to repeal the contested decision and to terminate the framework contract within two weeks of the date of its letter. In that letter, it alleged that EASO had unlawfully amended its tender, that EASO had not evaluated the tenders in accordance with the tender documents and that those documents were not sufficiently clear, precise and unequivocal.
28      By letter of 9 October 2020, EASO replied to the applicant rejecting all of its claims.
Procedure and forms of order sought
29      By application lodged at the Court Registry on 3 October 2020, the applicant brought the present action.
30      The defence, the reply and the rejoinder were lodged at the Court Registry on 19 December 2020, 9 March and 6 May 2021, respectively.
31      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUAA to pay the costs.
32      EUAA contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
33      The applicant relies on three pleas in law in support of its claim for annulment. The first alleges infringement of the principle of equal treatment and of the principle of transparency on account of the lack of clarity of the tender documents and the refusal to reply to the request for additional information. The second alleges infringement of the principle of equal treatment and the principle of transparency on account of the unlawful amendment of the applicant’s tender. The third alleges a manifest error of assessment and infringement of Article 170(3) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).
34      The applicant also submits an application for compensation for the damage which it claims to have suffered as a result of the loss of profit resulting from the failure to conclude a framework contract.
The claim for annulment
35      Since the first and second pleas allege infringement of the principle of equal treatment and of the principle of transparency, the Court considers it appropriate to examine them together.
The first and second pleas in law, alleging, in essence, infringement of the principle of equal treatment and of the principle of transparency
36      The applicant claims that EUAA failed to provide sufficiently clear tender documents and maintained that lack of clarity by refusing to respond to its request for additional information. In the light of that lack of clarity, EUAA was compelled to amend the applicant’s tender unlawfully after the tenders had been opened. According to the applicant, that conduct constitutes an infringement of the principles of equal treatment and of transparency. First, it complains that EUAA failed to provide sufficiently clear documents concerning the calculation of the fee which was to be part of the total cost per month and failed to reply to its request for additional information. An answer would have made it possible to clarify the issue relating to the calculation of the fee. Second, it complains that EUAA unlawfully amended its financial tender.
–       The first complaint, alleging infringement of the principle of equal treatment and of the principle of transparency on account of the lack of clarity of the tender documents and the refusal to reply to the request for additional information
37      According to the applicant, the tender documents could be interpreted in three different ways as regards the method of calculating the fee. However, two of those methods are more realistic. The first method consists of a monthly fee charged pro rata to the time that a temporary worker is assigned to EUAA in any given month, which time also includes any entitled leave. The second method is a fee calculated pro rata to the actual time worked at EUAA per month.
38      The applicant maintains that the first method should be the one used because, unlike the second method, it does not artificially inflate the overall budget of the procurement. However, in view of the lack of clarity of the tender documents, it states that it did not know which calculation method to apply.
39      Since the calculation of the fee is of fundamental importance to the financial tender, the applicant criticises EUAA for not having replied to its request for additional information in that regard. According to the applicant, that refusal to reply further accentuates EUAA’s infringement of the principles of equal treatment and of transparency.
40      EUAA disputes the applicant’s arguments. It submits, in essence, that the tender documents were sufficiently clear, that it was not required to answer the question relating to the financial tender and that the applicant should have submitted that question within the prescribed period, as a reasonably informed tenderer exercising ordinary care would have done. Moreover, it observes that the consortium had in fact understood how to calculate the fee. Similarly, the applicant had included, in its tender, two methods of calculation, one of which was the one requested in the tender documents, which indicates that it had in fact understood those tender documents. In addition, EUAA notes that the applicant had explicitly confirmed the application of its second calculation method when it had been questioned in that regard.
41      In the light of those considerations, EUAA adds that the failure to reply to the request for additional information ultimately had no impact on the applicant’s situation. The question whether it should have replied to the request for additional information is therefore irrelevant.
42      The Court has consistently held, in cases concerning public procurement, that the contracting authority is required to comply with the principle that tenderers should be treated equally (see judgment of 29 April 2004, Commission
v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 108 and the case-law cited).
43      It is also clear from the case-law that the abovementioned principle implies an obligation of transparency in order to permit verification that it has been complied with (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 109).
44      Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 110).
45      The principle of transparency which is its corollary 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 (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 111).
46      It should also be noted that Section 25.2 of Annex I to Regulation 2018/1046 provides as follows:
‘The contracting authority shall provide additional information linked to the procurement documents simultaneously and in writing to all interested economic operators as soon as possible.
The contracting authority shall not be bound to reply to requests for additional information made less than six working days before the deadline for receipt of tenders.’
47      In the light of the foregoing, it must be examined whether the lack of clarity to which the applicant refers and the refusal to reply to its request for additional information resulted in an infringement of the principles of equal treatment and of transparency, as described above.
48      At the outset, the arguments by which EUAA is alleged to have refused to reply to the request for additional information must be rejected. First of all, it is common ground between the parties that the applicant submitted its request late, that is to say, less than six working days before the deadline for the submission of tenders. It is in fact clear from the documents before the Court that the deadline for the submission of tenders was Tuesday, 23 June 2020 and that the applicant submitted its request for additional information on Wednesday, 17 June 2020. Next, it is clear from Section 25.2 of Annex I to Regulation 2018/1046 that the contracting authority ‘shall not be bound’ to reply to requests for additional information made less than six working days before the deadline for receipt of tenders. It follows that that prerogative is not subject to any condition or exception, but falls within the discretion of the contracting authority and that, consequently, the refusal to reply to a belated request for additional information cannot, in itself, constitute or contribute to an infringement of the principles of transparency and of equal treatment. At this stage of the procedure, an infringement of those principles can result only from a lack of clarity which was not resolved in the tender documents in question.
49      Accordingly, the applicant’s arguments that EUAA should have replied to its belated request for additional information must be rejected as unfounded.
50      As regards the tender documents, in the first place, it is clear from Section 3.4.8 of the technical specifications that ‘the contractor shall prepare the invoices based on the actual time worked by the interim staff as documented in the signed timesheets’. That section applies, as EUAA maintains, to the entire invoice which must be prepared by the contractor, and not only to the basic salary. The price that must be paid by EUAA under the contract in exchange for the contractor’s services therefore includes both the basic salary and the fee. This makes it possible to understand that those two components should not be calculated differently.
51      Likewise, it should be noted, in the second place, that there were other indications which enabled tenderers to understand that the basic salary and the fee had to be calculated pro rata to the actual time worked at EUAA. It is thus apparent from the technical specifications that ‘the duration of a normal working week is, in principle, forty (40) hours, i.e. eight (8) hours per day, from Monday to Friday’, that ‘all the rules shall apply pro rata’ to working time, that ‘absences for annual leave shall be paid in full as normal by the contractor and not charged to [EUAA]’ and that ‘any absence is considered by [EUAA] as an interruption of the service provided by the selected contractor and for this reason the related costs (including justified absence due to illness, injury leave and/or study) should not be charged to [EUAA]’. Similarly, it is clear from the documents before the Court that, in a reply to a question from the applicant, EUAA stated that ‘if the interim work[ed] [EUAA] pa[id], if not it [was] the financial responsibility of the contractor to pay [for] any absence (annual leave, sick leave and other special leaves)’.
52      In the third place, it must be stated that there is nothing in the tender documents which would make it possible to understand that the calculation of the basic salary and the fee had to be carried out on two different bases. If that were the case, EUAA should have made express provision to that effect. However, in the absence of such clarification, and in the light of the information set out above, it must be held that the tender documents were sufficiently clear and precise to enable the applicant to understand that the calculation of the fee had to be made on the pro rata basis to the actual time worked at EUAA per month.
53      In that regard it should be noted that the tender documents were sufficiently clear for the consortium to understand them to that effect (see, to that effect, order of 24 March 2015, Europower v Commission, T‑383/14 R, EU:T:2015:190, paragraph 24 (not published) and the case-law cited) and for the applicant to suspect that that calculation method should be applied, which is the reason why it stated it as an alternative in its tender.
54      In the light of the foregoing, it must be held that the tender documents, taken as a whole, enabled the applicant and the consortium to understand how the fee was to be calculated (see, to that effect, judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 127).
55      Since the tender documents made it possible to understand that the fee, like the basic salary, had to be calculated on the basis of the actual working time of temporary staff, all the tenderers were able to submit their tenders under equal conditions.
56      In addition, it must be stated, as EUAA has observed, that the applicant included in its tender two methods according to which it considered that it could calculate the fee. It proposed a method of calculating the fee based on the provision of workers, adding that ‘should [EUAA] prefer the fee component to be charged on the basis of hours worked, then the latter fee would need to be inflated to reflect the smaller base on which it [was] charged’ and that ‘specifically, the fee [needed] to be divided by 84% (i) as shown in the table below’. It therefore proposed, in its tender, a second method of calculating the fee.
57      The objective of that twofold proposal must be understood to the effect that, if EUAA considered that the first calculation method was incorrect, it could rely on the second calculation method. That is in fact what occurred. In an email of 16 July 2020, EUAA put a question to the applicant in the following terms:
‘We have recalculated the monthly fee per each category as indicated in your technical proposal (see attached Excel SSF 7), could you please confirm the total for evaluation is EUR …’
58      The applicant confirmed that calculation method by giving the following answer in an email of 17 July 2020:
‘Yes we confirm that the total for evaluation is EUR … based on the above recalculation.’
59      In the light of the foregoing, it must be held that, in addition to the fact that the tender documents were sufficiently clear in themselves, in any event, EUAA dispelled any doubt that the applicant could have as to the interpretation to be given to the method of calculating the fee. EUAA pragmatically ensured that the applicant had been able to submit its tender in accordance with what EUAA had laid down in the tender documents and, therefore, under the same conditions as the other tenderer, namely the consortium. It thus ensured that the principles of equal treatment and of transparency had been observed.
60      In the light of the foregoing, the first complaint must be rejected as unfounded.
–       The second complaint, alleging infringement of the principle of equal treatment and of the principle of transparency on account of an unlawful amendment of the applicant’s tender
61      The applicant maintains, in essence, that EUAA infringed the case-law according to which the contracting authority may ask tenderers in writing to clarify their tender without, however, requesting or accepting any amendment to the tender. By sending the request for clarification with a recalculation of the financial tender and taking into account the resulting amount, EUAA unlawfully amended the applicant’s financial tender. The applicant refers in that regard to the judgment of 29 March 2012, SAG ELV Slovensko and Others (C‑599/10, EU:C:2012:191).
62      EUAA disputes the applicant’s arguments. It states that the applicant was not, in fact, placed at a disadvantage by the correction of its tender, which, had that correction not taken place, would have had to be rejected. In any event, it is the correction of an obvious material error, which is not excluded either by the tender documents or by the judgment of 29 March 2012, SAG ELV Slovensko and Others (C‑599/10, EU:C:2012:191).
63      It must be held at the outset that the judgment of 29 March 2012, SAG ELV Slovensko and Others (C‑599/10, EU:C:2012:191), is not relevant in the present case, since it refers to a situation in which the data relating to a tenderer’s bid may exceptionally be ‘corrected’ or ‘supplemented’, inter alia following a request for clarification. In the light of the circumstances of the present case and, in particular, the fact that the alternative method used by EUAA was proposed exhaustively by the applicant itself in its tender, EUAA did not request a correction of the financial tender, but merely, after verification by the applicant, accepted one of the calculation methods already included in the tender. It is in fact clear from the exchanges between EUAA and the applicant, as set out in paragraphs 57 and 58 above, that EUAA merely ‘recalculated’ the financial tender ‘in accordance with’ what was stated in the technical proposal.
64      Accordingly, since it is the applicant itself which provided the alternative method of calculation in its tender and EUAA merely accepted it given that it corresponded to the criteria set out in the tender documents, the applicant cannot validly criticise EUAA for taking that method of calculation into account.
65      In that regard, the argument that EUAA infringed its own tender specifications, which indicated that the financial offer had to be stated in the ‘Excel SSF 7 document’, must be rejected. It must be held that a reading of the tender specifications does not permit the inference that EUAA was prohibited from taking account of the alternative method of calculation provided by the applicant. It is merely provided in the tender specifications that, in the event of a discrepancy between the total amount of the tender indicated in the relevant field of the e-Submission application and the amount stated in the uploaded financial offer, only the amount indicated in the financial offer is taken into account. However, no such discrepancy has been observed in the present case. Moreover, in the circumstances as described above, that is to say that the applicant expressly provided an alternative calculation method and accepted its use, it cannot claim that EUAA infringed its own tender specifications.
66      In the light of the foregoing, the second complaint must be rejected as unfounded and, accordingly, the first and second pleas in law must be rejected in their entirety.
The third plea in law, alleging a manifest error of assessment and infringement of Article 170(3) of Regulation 2018/1046
67      The applicant maintains, in essence, that EUAA infringed Article 170(3) of Regulation 2018/1046 and its obligation to state reasons by not explaining the relative advantages of the successful tender.
68      The applicant states, inter alia, that it was unable to identify, on the basis of the information provided in the additional statement of reasons of 28 July 2020, the respective strengths and weaknesses of its own bid compared to that of the consortium. It claims that it could not understand why its bid had not been successful in the call for tenders. It was not in a position to ascertain the reasons for that rejection in order to defend its rights.
69      The applicant observes that it had won the previous call for tenders, namely the call for tenders which had been launched by EUAA in 2015. The applicant is surprised that it has been awarded fewer points in the current call for tenders, whereas in the 2015 call for tenders, it was awarded many more points as regards the qualitative assessment. The applicant submits that the 2015 call for tenders and the current call for tenders are nearly identical as the criteria are almost the same. For the applicant, that difference of assessment between its 2015 tender and its current tender is evidence of a manifest error of assessment.
70      EUAA disputes the applicant’s arguments. As regards the alleged manifest error of assessment, it states that the applicant does not put forward any arguments in support of that claim.
71      With regard to the obligation to state reasons, EUAA maintains, in essence, that the reason why the consortium earned more points is not because the applicant’s tender was not satisfactory but rather because the consortium’s tender was particularly good and contained extra elements which made it superior. According to EUAA, it should therefore be held that, although the reasons provided were succinct, they satisfied the requirements laid down by the case-law, in that they enabled the applicant to understand the relative advantages of the tenders and why its tender had obtained a lower score than that of the consortium.
72      It should be borne in mind that EUAA, like the other institutions, has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The judicial review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons have been complied with, the facts have been accurately stated and there has been no manifest error of assessment or misuse of powers (judgments of 6 July 2005, TQ3 Travel Solutions Belgium v Commission, T‑148/04, EU:T:2005:274, paragraph 47, and of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 69; see also, to that effect, judgment of 23 November 1978, Agence européenne d’intérims v Commission, 56/77, EU:C:1978:208, paragraph 20).
73      Accordingly, the argument that the evaluation committee made a manifest error of assessment by departing from the evaluation as carried out during the 2015 procurement procedure must be rejected at the outset as unfounded.
74      In the first place, it must be stated that what was done by a different evaluation committee during an earlier public procurement procedure is not relevant in the evaluation of the tenders in the procedure at issue. It should also be noted that an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (judgment of 14 July 2016, TNS Dimarso, C‑6/15 P, EU:C:2016:555, paragraph 29).
75      In the second place, it must be held that the applicant does not put forward any other argument to support the complaint alleging a manifest error of assessment. On the contrary, in paragraph 89 of the reply, it accepts that, in the absence of an adequate statement of reasons on the part of EUAA, it can only conclude that the latter made a manifest error of assessment.
76      As regards the obligation to state reasons, it should be noted that, where an institution has a broad discretion, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union judicature verify whether the factual and legal elements upon which the exercise of the power of assessment depends were present (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 9 September 2010, Evropaïki Dynamiki v Commission, T‑387/08, not published, EU:T:2010:377, paragraph 31; and of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 70).
77      For the award of public service contracts, the obligation to state reasons is given concrete expression in Article 170(2) and (3)(a) of Regulation 2018/1046, from which it is apparent that a contracting authority meets its obligation to state reasons if it, first of all, merely informs unsuccessful tenderers of the reasons for the rejection of their requests for participation or their tenders and, subsequently, to notify tenderers who expressly so request of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract has been awarded (judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 71).
78      This manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 296 TFEU, whereby the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 72).
79      However, it is apparent from the case-law that the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited).
80      In addition, it should be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (judgment of 17 October 2012, Evropaïki Dynamiki
v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 73).
81      It is in the light of the abovementioned principles that it should be examined whether EUAA infringed its obligation to state reasons.
82      In order to determine whether, in the present case, the requirements of the obligation to state reasons laid down in Regulation 2018/1046 and its implementing rules have been satisfied, it is necessary to examine the contested decision, the letter of 28 July 2020, sent to the applicant following the request for additional information on the rejection of the tender, and the letter of 7 August 2020, sent in response to the applicant’s observations. It is clear from the case-law that, if the institution concerned sends a letter in response to a request seeking additional explanations concerning a decision before an action is brought, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate. The obligation to state reasons must in fact be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see, to that effect, judgment of 14 January 2015, Veloss International and Attimedia v Parliament, T‑667/11, not published, EU:T:2015:5, paragraph 56).
83      It is also necessary to examine the letter of 9 October 2020, sent by EUAA in response to a letter from the applicant requesting the annulment of the contested decision and the termination of the framework contract, even though it was sent to the applicant after the present action was brought and cannot therefore in itself satisfy the obligation to state reasons. It should be noted in that regard that explanations or clarifications capable of casting light on the wording of the contested act may be provided in the course of the proceedings. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the European Union judicature of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons which gave rise to its decision (see, to that effect, judgment of 26 September 2014, Evropaïki Dynamiki v Commission, T‑498/11, not published, EU:T:2014:831, paragraph 162).
84      In the present case, EUAA informed the applicant, in the contested decision, that its tender had been rejected. In that decision, it referred to the points that the applicant had obtained for each of the evaluation criteria and, under each point, it indicated the evaluation carried out by the evaluation committee in respect of the tender submitted by the applicant. EUAA also provided a table with the total number of points obtained and the applicant’s ranking. At the same time, it informed the applicant of the possibility of requesting additional information on the grounds for the rejection of its tender, in particular the characteristics and relative advantages of the successful tender and the name of the successful tenderer. EUAA also stated that certain details of that tender would be withheld where its release would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of public or private undertakings, or might distort fair competition between them.
85      The contested decision, although somewhat formulaic in nature, has been drafted in accordance with the provisions of Article 170(2) of Regulation 2018/1046. However, it must be observed that Article 170(3)(a) of that regulation also requires the contracting authority to inform each unsuccessful tenderer whose tender was admissible and who has made a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
86      Following the applicant’s request of 24 July 2020 for additional information on the contested decision, EUAA sent the letter of 28 July 2020 to the applicant.
87      In that letter, EUAA indicated the name of the successful tenderer and the contract value. EUAA also explained the points awarded to the successful tender and the evaluations which the evaluation committee had provided in the form of comments for each qualitative criterion in relation to that tender.
88      A reading of those evaluation comments makes it possible to understand the characteristics of the successful tender, but the relative advantages of that tender are not expressly mentioned therein.
89      However, as stated in paragraph 80 above, it is important to bear in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, 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. Similarly, it should be noted, as observed in paragraph 79 above, that EUAA was not bound, in the context of notification of the characteristics and relative advantages of the successful tender, to provide a detailed comparative analysis of that tender and of the applicant’s tender.
90      It must therefore be examined, in the light of the circumstances of the case and, in particular, the other information provided by EUAA, whether the latter has fulfilled its obligation to state reasons, in accordance with Article 170(3)(a) of Regulation 2018/1046.
91      In that regard, it must be held that a comparison of the evaluation of the applicant’s tender and of the successful tender highlights the differences between the two tenders. However, in the letter of 28 July 2020, EUAA did not explain that those differences could give rise to a different number of points. Nor does the letter of 7 August 2020 give any guidance in that regard. In that letter, EUAA confines itself, in essence, to explaining that it is not required to provide more information to the applicant.
92      However, it is apparent from the applicant’s letter of 10 September 2020 that it understood that the different aspects of the two tenders, as stated by the evaluation committee, gave rise to a difference in points. In that letter, the applicant in fact criticises EUAA for awarding additional points to the successful tender on account of aspects which were not included in its own tender. Accordingly, in that letter, as regards the first and fifth qualitative criteria, the applicant makes the following comments:
‘– Award criterion 1: quality control and risk mitigation have not been mentioned in the tender specifications, nonetheless [EUAA] specifically mentions this as a positive aspect in the evaluation of the bid of the consortium;
– Award criterion 5: the possibility to provide additional training on soft skills and technical skills is not mentioned in the tender specifications. Nonetheless, [EUAA] specifically mentions this as a positive aspect in the evaluation of the bid of the consortium.’
93      In that regard, it must be held that, despite the fact that EUAA had not expressly explained it, the applicant understood how the points were awarded in respect of each of the criteria and that it was able to assert its rights in respect of each of them.
94      This is, moreover, confirmed by the letter of 9 October 2020, which may be taken into account in the present case in accordance with the case-law cited in paragraph 83 above, given that it does not provide a new statement of reasons, but merely clarifies the information available to the applicant when the action was brought and on which it had had the opportunity to comment, as is apparent from the exchanges referred to in paragraphs 82 and 83 above. In addition, the applicant itself stated at the hearing that the letter of 9 October 2020 did not contain any new statement of reasons.
95      It follows from the letter of 9 October 2020 that EUAA considered that it could take into account the aspects referred to in the applicant’s letter of 10 September 2020, since the words ‘such as’ were used in the administrative specifications concerning criterion 1 and the words ‘including but not limited to’ were used in those specifications as regards criterion 5. Accordingly, EUAA’s reply of 9 October 2020 confirms that the applicant had in fact understood which were the relative advantages of the successful tender. That reasoning is also applicable to qualitative award criteria 2 to 4. A comparison of the comments relating to those criteria therefore makes it possible, as for criteria 1 and 5, to understand why the evaluation committee evaluated certain aspects of the consortium’s tender covered by criterion 2 more positively, which conferred more points to it than to the applicant’s tender, and why that committee awarded the same number of points to the two tenders for criteria 3 and 4. It should be added in that regard, as is clear from paragraph 92 above, that the slight difference in points attributed between the two tenders enabled the applicant to understand that the different aspects of the consortium’s tender, as noted by the evaluation committee, gave rise to additional points.
96      Accordingly, it must be concluded that, even if it had been preferable to highlight more explicitly the relative advantages of the successful tender, EUAA fulfilled its obligation to state reasons given that the applicant was in a position to understand why the consortium’s tender had obtained more points than its own, as concluded in paragraphs 92 to 95 above.
97      In the light of the foregoing, the third plea in law must be rejected as unfounded.
The claim for damages
98      The applicant asks the Court to order EUAA to pay compensation for the damage suffered by it as a result of the loss of profit resulting from the loss of the framework contract at issue.
99      The applicant submits that the three conditions for the European Union to incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, for the unlawful conduct of its institutions are satisfied in the present case.
100    EUAA disputes the applicant’s arguments. It contends, in essence, that none of the three conditions for the European Union to incur non-contractual liability is satisfied.
101    According to settled case-law, in order for the European Union to incur non-contractual liability, a number of conditions must be met: the conduct of the institutions must be unlawful; there must be real and certain damage; and a direct causal link must exist between the conduct of the institution concerned and the alleged damage (judgments of 29 September 1982, Oleifici Mediterranei v EEC, 26/81, EU:C:1982:318, paragraph 16, and of 9 July 1999, New Europe Consulting and Brown v Commission, T‑231/97, EU:T:1999:146, paragraph 29).
102    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 such liability (judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81, and of 10 December 2009, Antwerpse Bouwwerken v Commission, T‑195/08, EU:T:2009:491, paragraph 91).
103    It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the European Union have been satisfied.
104    It must be observed that the application for damages is based on the same unlawful conduct as that relied on in support of the application for annulment of the contested decision.
105    Since all the pleas relied on in support of the claim for annulment have been rejected, the applicant has not adduced evidence of unlawful conduct on the part of EUAA.
106    Consequently, since the condition relating to the unlawfulness of the conduct for which EUAA is criticised has not been satisfied, that finding is sufficient, in the present case, for the application for damages to be dismissed as unfounded.
107    It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
108    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
109    Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUAA.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders EMCS ltd. to pay the costs.
Tomljenović
Nõmm
Kukovec
Delivered in open court in Luxembourg on 8 June 2022.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.