JUDGMENT OF THE GENERAL COURT (Second Chamber)
17 July 2024 (*)
(Public supply contracts – Tendering procedure – Communication and event organisation services – Rejection of the tender – Irregular tender – Failure to supply the information required as a condition for participating in the procedure – Article 141(1)(b) of Regulation (EU, Euratom) 2018/1046 – Change in the method of transmission of certain information – Infringement of the tender specifications – Manifest error of assessment)
In Case T‑338/23,
Next Media Project, SLU, established in Barcelona (Spain), represented by R. Simar, lawyer,
applicant,
v
European Fisheries Control Agency (EFCA),
represented by S. Steele, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and W. Valasidis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
having regard to the order of 9 August 2023, Next Media Project v EFCA
(T‑338/23 R, not published, EU:T:2023:467),
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Next Media Project, SLU, seeks the annulment of the decision of the European Fisheries Control Agency (EFCA) of 8 June 2023 excluding the applicant from the award procedure in the tendering procedure EFCA/2022/OP/0004 ‘Communication services (Lot 1)’ and ‘Event organisation services (Lot 2)’ (‘the contested decision’).
Background to the dispute
2        On 20 December 2022, EFCA launched the call for tenders under reference EFCA/2022/OP/0004 for the provision of ‘Communication services’ and ‘Event organisation services’, which were the subject of Lot 1 and Lot 2, respectively.
3        Article 3.4 of the administrative specifications of the call for tenders at issue (‘the administrative specifications’) provided that, in order to award the contract, the contracting authority would take into account the most economically advantageous tender, on the basis of the award criteria ‘Price’ (weighted at 40%) and ‘Quality’ (weighted at 60%).
4        As regards Lot No 1, the award criterion ‘Quality’, which is the subject of Article 3.4.2 of the administrative specifications, was divided into several sub-criteria, including sub-criterion No 4, entitled ‘“Electronic samples” adaptation to EFCA corporate identity’. That sub-criterion provided that the tenders submitted by the tenderers were to be evaluated on the basis of two electronic samples designed for the general public, namely an animated video file of 10 to 15 seconds, in GIF or MP4 format, and a proposal for an interactive map in HTML format (‘the electronic samples’). It also stated that the electronic samples had to be submitted in a single document in ZIP format and electronically only on the e-Submission platform.
5        On 18 January 2023, EFCA informed all tenderers, by means of Corrigendum No 1, not to use the MP4 format for the first of the electronic samples, namely the animated video file of 10 to 15 seconds, in GIF or MP4 format.
6        On 26 January 2023, in view of the technical difficulties encountered by the tenderers in uploading the electronic samples via the e-Submission platform, EFCA adopted Corrigendum No 2 informing them that the electronic samples had to be sent via email to the email address ‘Procurement-np@efca.europa.eu’ and without a password (‘Corrigendum No 2’).
7        On the same day, EFCA replied to a written question put by the applicant, expressly referring to Corrigendum No 2 and stating that the electronic samples had to be provided electronically via email to the email address referred to in paragraph 6 above.
8        By Corrigendum No 3, EFCA informed tenderers that the initial deadline provided for the submission of tenders had been extended to 13 February 2023.
9        On 13 February 2023, the applicant submitted its tender for Lot 1 using the e‑Submission platform, including a hyperlink enabling the electronic samples to be downloaded.
10      By the contested decision, EFCA informed the applicant that it had been excluded from the award procedure in accordance with Article 141(1) 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), because its tender did not comply with the administrative specifications. It found, in essence, that, since the applicant had sent a hyperlink enabling the electronic samples to be downloaded instead of submitting them by email, as was required by Corrigendum No 2, the applicant had not supplied the information required as a condition for participating in the tendering procedure at issue and had infringed the requirements of the call for tenders. EFCA added that, since the tender opening committee had received the electronic samples only at the time when they were downloaded during the opening of the tenders and, therefore, after the deadline for their submission, it could not guarantee either the integrity of the original electronic samples or the date and time of their receipt.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EFCA to pay the costs.
12      EFCA contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those relating to Case T‑338/23 R.
Law
13      In support of the action, the applicant relies on a single plea in law, which is divided into four parts, alleging, first, infringement of points 12.2 and 29.3 of Annex I to Regulation 2018/1046, second, infringement of Article 3.4.2 of the administrative specifications, third, breach of the duties of diligence and meticulousness and, fourth, a manifest error of assessment.
Admissibility of the third and fourth parts of the single plea
14      EFCA contends that the third and fourth parts of the single plea are inadmissible, on the ground that, as regards those parts, the application is, in essence, devoid of any supporting arguments, in breach of Article 76(d) of the Rules of Procedure of the General Court.
15      The applicant did not dispute that plea of inadmissibility notwithstanding the possibility of lodging a reply which had been granted to it by the Court.
16      Under Article 21 of the Statute of the Court of Justice and Article 76(d) of the Rules of Procedure, all applications must state the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and for the General Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on should be stated, at least in summary form, coherently and intelligibly in the application itself (see judgment of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 34 and the case-law cited).
17      As regards the third part of the single plea, alleging breach of the duties of diligence and meticulousness, it must be stated that the application does not contain any legal reasoning or argument in its support. Therefore, in so far as it concerns that part, the application does not meet the minimum requirements of Article 76(d) of the Rules of Procedure enabling the Court to exercise its power of review and EFCA to provide its defence (see, to that effect, judgment of 24 May 2012, MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraph 282).
18      Accordingly, the third part of the single plea must be rejected as being inadmissible.
19      As regards the fourth part of the single plea, alleging a manifest error of assessment, it must be held that, in the application, the applicant put forward arguments seeking to demonstrate, in essence, that EFCA had made such an error in taking the view that the transmission of a hyperlink enabling the electronic samples to be downloaded constituted a failure to supply the information required as a condition for participating in the tendering procedure within the meaning of point (b) of the first subparagraph of Article 141(1) of Regulation 2018/1046 and, therefore, that its tender was vitiated by an irregularity within the meaning of point 12.2 of Annex I to that regulation. In that regard, the applicant claimed, inter alia, that the administrative specifications did not require the electronic samples to be sent by email and that sending them by means of such a hyperlink ensured the integrity of the tender and compliance with the deadline for the submission of tenders.
20      It must be stated that that line of argument, although succinct, is set out in a sufficiently clear manner in the application and enabled EFCA to submit its defence. It also enables the Court to rule on the action, without any other supporting information.
21      Accordingly, the plea of inadmissibility raised by EFCA against the fourth part of the single plea must be rejected.
Merits of the first, second and fourth parts of the single plea
22      In support of the single plea, the applicant claims that, by taking the view that the transmission of a hyperlink enabling the electronic samples to be downloaded constituted a failure to supply the information required as a condition for participating in the tendering procedure within the meaning of point (b) of the first subparagraph of Article 141(1) of Regulation 2018/1046 and, therefore, by rejecting its tender as being irregular, EFCA infringed points 12.2 and 29.3 of Annex I to that regulation, infringed Article 3.4.2 of the administrative specifications and made a manifest error of assessment.
23      In essence, the applicant submits that point (b) of the first subparagraph of Article 141(1) of Regulation 2018/1046 is not relevant in the present case, since it submitted the electronic samples required by Article 3.4.2 of the administrative specifications by means of a hyperlink enabling them to be downloaded, even if that hyperlink constitutes a method of transmission different from that provided for in Corrigendum No 2.
24      According to the applicant, the transmission of electronic samples other than by email was not prohibited by the requirements of the call for tenders and could not result in ‘its tender being disqualified’.
25      In addition, the applicant maintains that the fact that it sent a hyperlink enabling the electronic samples to be downloaded did not prejudice the integrity of its tender. It takes the view, moreover, that, when the tenders were opened, EFCA expressly took the view that that tender complied with the deadline set for its submission and that it did not raise any problems of integrity, even though it had informed EFCA that those samples had not been sent by email.
26      EFCA disputes the applicant’s arguments.
27      As a preliminary point, Article 141 of Regulation 2018/1046, entitled ‘Rejection from an award procedure’, provides, in point (b) of the first subparagraph of paragraph 1 thereof, that the authorising officer responsible is to reject from an award procedure a participant who has misrepresented the information required as a condition for participating in the procedure or has failed to supply that information.
28      Under point 12.2 of Annex I to Regulation 2018/1046:
‘A tender shall be considered irregular in any of the following cases: (a) when it does not comply with the minimum requirements specified in the procurement documents; (b) when it does not comply with the requirements for submission set out in Article 168(3) [of that regulation]; (c) when the tenderer is rejected under point (b) or (c) of the first subparagraph of Article 141(1) [of that regulation]; (d) when the contracting authority has declared the tender to be abnormally low.’
29      In addition, Article 160 of Regulation 2018/1046, entitled ‘Principles applicable to contracts and scope’, provides, in paragraph 1 thereof, that ‘all contracts financed in whole or in part by the [general] budget [of the European Union] shall respect the principles of transparency, proportionality, equal treatment and non-discrimination’.
30      Furthermore, as regards the relevant provisions of the administrative specifications, it should be noted that, in accordance with Article 3.4.2 of the administrative specifications, the electronic samples had to be submitted in order to enable the contracting authority to evaluate the quality of the tender.
31      In addition, it is apparent from Article 4.2 of the administrative specifications that the technical tender for each of the lots awarded to the best tenderer had to contain all the information necessary to assess compliance with the technical provisions and the award criteria.
32      It is thus apparent from a combined reading of Articles 3.4.2 and 4.2 of the administrative specifications that the electronic samples had to be submitted at the same time as the remainder of the technical tender in so far as they made it possible to assess the tender in the light of the non-financial award criteria.
33      In addition, Article 3.4.2 of the administrative specifications, as amended by Corrigendum No 2, provided that ‘the [electronic samples] [had to] be sent electronically via e-mail’.
34      Corrigendum No 2 therefore contained a precise, clear and unambiguous indication of how tenderers had to send the electronic samples. The use of the English word ‘shall’ in that corrigendum merely underlines the unconditional nature of such an indication, since that word is usually used in the legal context to express an obligation (see, to that effect, judgment of 1 March 2018, Poland v Commission, T‑402/15, EU:T:2018:107, paragraph 68).
35      In the first part, the applicant nevertheless disputes the existence of an obligation to send the electronic samples exclusively by email on the ground that it is not a minimum requirement within the meaning of point 12.2(a) of Annex I to Regulation 2018/1046, since that formality was not provided for ‘under penalty of nullity’.
36      In that regard, it is sufficient to note that the applicant’s tender was not considered as being irregular because of a failure to comply with a minimum requirement specified in the call for tenders (situation referred to in point 12.2(a) of Annex I to Regulation 2018/1046), but because of the failure to supply the information required as a condition for participating in the call for tenders (situation referred to in point 12.2(c) of that annex) (see paragraph 28 above).
37      Furthermore, in support of the second part of the single plea, the applicant claims, in essence, that the administrative specifications do not penalise failure to produce the electronic samples by email and that Annex I to the administrative specifications would penalise, by rejecting the tender, solely failure to send the technical tender via the e-Submission platform.
38      In that regard, it should be borne in mind that the methods of transmitting the electronic samples were the subject of a specific provision in the administrative specifications, namely Article 3.2.4 of the administrative specifications.
39      Although in its original version, Article 3.2.4 of the administrative specifications provided that the electronic samples had to be sent via the e-Submission platform, EFCA subsequently adopted Corrigendum No 2 by which it informed tenderers that those samples had to be sent by email to the email address ‘Procurement-np@efca.europa.eu’ in order to resolve the technical problem encountered by the tenderers when uploading those samples via that platform (see paragraph 6 above) at the same time as ensuring that that new method of transmission guarantees compliance with the deadline for submission of the tender and the integrity of the documents submitted by tenderers.
40      In contrast, as regards the methods of transmitting the technical tender, point 2 of Annex I to the administrative specifications stipulated that that tender had to be sent via the e-Submission platform, failing which it would be rejected. That provision remained unchanged notwithstanding the adoption of Corrigendum No 2.
41      It follows that, by adopting Corrigendum No 2, EFCA amended only the method of transmission to be used for the electronic samples and not the method to be used for the remaining part of the technical tender. Nonetheless, it did not leave open the possibility for tenderers to opt for another method of transmitting those samples which, as is apparent from paragraph 32 above, had to be submitted at the same time as that remaining part. It cannot therefore be inferred that failure to comply with the requirement to send those samples by email to the email address ‘Procurement-np@efca.europa.eu’ could not be penalised by excluding a tenderer from an award procedure.
42      In addition, it should be noted, first, that the applicant does not dispute that it was aware of Corrigendum No 2, or that EFCA replied to a written question put by it by expressly referring to that corrigendum and by indicating to it that the electronic samples had to be provided electronically by means of an email to the email address ‘Procurement-np@efca.europa.eu’. Secondly, the applicant does not claim to have submitted observations on EFCA’s reply to its written question.
43      Therefore, the applicant’s argument that the transmission of the electronic samples other than by email could not result in ‘its tender being disqualified’ must be rejected.
44      In addition, accepting the applicant’s argument that the transmission of a hyperlink enabling the electronic samples to be downloaded instead of sending them by email should not have resulted in ‘its tender being disqualified’, would, in the present case, result in a breach of the principle of equal treatment vis-à-vis the other tenderers who submitted a tender in the procurement procedure at issue. That approach would mean that the applicant, which did not meet the requirements imposed by Corrigendum No 2, would be treated in the same way as the other tenderers which complied with the administrative specifications, as amended by Corrigendum No 2, by sending those samples by email (see, to that effect and by analogy, judgment of 30 April 2014, Euris Consult v Parliament, T‑637/11, EU:T:2014:237, paragraph 109).
45      In the light of all the foregoing, in deciding not to follow the requirements imposed by Corrigendum No 2 and to send only a hyperlink enabling the electronic samples to be downloaded, the applicant did not comply with a clear, precise and unconditional requirement of the call for tenders imposed on all tenderers who had decided to submit a tender in the tendering procedure in the present case (see, to that effect and by analogy, judgment of 30 April 2014, Euris Consult v Parliament, T‑637/11, EU:T:2014:237, paragraph 77).
46      It follows that, in so far as sub-criterion No 4, set out in Article 3.4.2 of the administrative specifications, provided that the tenders submitted by the tenderers were to be evaluated on the basis of the electronic samples and that they were not submitted in accordance with the requirements of those provisions, EFCA rightly found that the applicant had failed to supply the information required as a condition for participating in the call for tenders within the meaning of point (b) of the first subparagraph of Article 141(1) of Regulation 2018/1046. According to point 12.2(c) of Annex I to that regulation, that requirement constitutes a ground for irregularity of the applicant’s tender.
47      Accordingly, the applicant cannot rely on an infringement of Article 3.4.2 of the administrative specifications by EFCA.
48      In the light of all the foregoing, the applicant is wrong to claim that point (b) of the first subparagraph of Article 141(1) of Regulation 2018/1046 is not relevant in the present case and that EFCA infringed Article 3.4.2 of the administrative specifications and points 12.2 and 29.3 of Annex I to that regulation.
49      The first and second parts of the single plea must therefore be rejected.
50      Lastly, in support of the fourth part of the single plea, alleging a manifest error of assessment, the applicant puts forward the argument that the transmission of a link enabling the electronic samples to be downloaded did not have the effect of prejudicing the integrity of its tender on the grounds, first, that the minutes relating to the opening of the tenders stated that the tender was ‘in order’ and, secondly, that those samples had not been altered since that tender had been submitted.
51      In that regard, first, it is apparent from the minutes relating to the opening of the tenders that the tender opening committee merely verified that the deadline for the submission of tenders, the integrity of the tenders and their confidentiality had been complied with.
52      By contrast, it is not apparent from the minutes relating to the opening of the tenders, or from other documents in the case file, that the tender opening committee checked whether the method of transmission of the electronic samples complied with the requirements of the call for tenders and validated the method of transmission chosen by the applicant.
53      Moreover, given that the transmission of a hyperlink enabling the electronic samples to be downloaded was not the method of transmission provided for in Corrigendum No 2, EFCA was not required either to verify the integrity of those samples or to accept them.
54      Secondly, even if, after the submission of its tender, the applicant had not altered the electronic samples accessible from the hyperlink transmitted, this cannot demonstrate that EFCA made a manifest error in finding (i) that the transmission of a hyperlink enabling the electronic samples to be downloaded constituted a failure to supply the information required as a condition for participating in the tendering procedure within the meaning of point (b) of the first subparagraph of Article 141(1) of Regulation 2018/1046 and, accordingly, (ii) that the applicant’s tender was vitiated by an irregularity within the meaning of point 12.2 of Annex I to that regulation.
55      As EFCA explained, the hyperlink transmitted, enabling the electronic samples to be downloaded, refers to a cloud storage service which enables users to save files online and to share them with third parties without sending large attachments. In its view, until the time when they were downloaded by the tender opening committee, the electronic samples were on an online server which was not under its control and which, therefore, did not enable it to guarantee that there would be no alteration to the documents at issue after the expiry of the deadline for the submission of tenders, which is not disputed.
56      It follows that the fourth part of the single plea must be rejected.
57      In the light of all the foregoing considerations, none of the parts relied on in support of the single plea can be upheld.
58      The action must therefore be dismissed in its entirety.
Costs
59      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
60      Since the applicant has been unsuccessful, in accordance with the form of order sought by EFCA, it must be ordered to bear its own costs and to pay those incurred by EFCA in the present case and in Case T‑338/23 R.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Next Media Project, SLU, to bear its own costs and to pay those incurred by the European Fisheries Control Agency (EFCA), including in Case T‑338/23 R.
Marcoulli
Schwarcz
Valasidis
Delivered in open court in Luxembourg on 17 July 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.