62020TJ0546_RES
Case T‑546/20
Sopra Steria Benelux SA
and
Unisys Belgium SA
v
European Commission
Judgment of the General Court (Fifth Chamber), 1 December 2021
(Public service contracts – Tendering procedure – Specification, Development, Maintenance and Support of DG Taxation and Customs Union (TAXUD) IT Platforms – Rejection of the tender submitted by a tenderer and decision to award the contract to another tenderer – Obligation to state reasons – Abnormally low tender)
EU public contracts – Conclusion of a contract by tender – Discretion of the institutions – Judicial review – Limits
(see paragraph 32)
Acts of the institutions – Statement of reasons – Obligation – Scope – Assessment of the duty to state reasons by reference to the circumstances of the case – Need to specify all the relevant facts and points of law – Lack
(Art. 296, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c))
(see paragraphs 34-37)
Acts of the institutions – Statement of reasons – Obligation – Scope – Assessment of the duty to state reasons by reference to the circumstances of the case – Decision, in the procedure for the award of a public service contract, not to accept a tender – Obligation to communicate, following a written request, the characteristics and relative advantages of the successful tender, the price paid or contract value, as well as the name of the tenderer
(Art. 296 TFEU; European Parliament and Council Regulation 2018/1046, Art. 170 and Annex I)
(see paragraphs 38-40)
EU public contracts – Conclusion of a contract by tender – Abnormally low tender – Obligation of the contracting authority to consult the tenderer – Examination by the contracting authority as to whether the tender is abnormally low – Factors to be taken into account
(European Parliament and Council Regulation 2018/1046, Annex I)
(see paragraphs 44-49)
EU public contracts – Conclusion of a contract by tender – Abnormally low tender – Obligation to state reasons – Scope – Express request of the unsuccessful tenderer – Obligation to state reasons – Scope
(European Parliament and Council Regulation 2018/1046, Art. 170(3), and Annex I)
(see paragraphs 50-54, 60, 65)
Résumé
On 6 December 2019, the European Commission published a contract notice for the procurement of services to cover the specification, development, maintenance and third level support of Directorate General (DG) Taxation and Customs Union (TAXUD) IT platforms, divided into two lots. (
1
)
On 27 February 2020, the applicants, Sopra Steria Benelux SA and Unisys Belgium SA, submitted a joint tender as a consortium.
By decision of 2 July 2020, the Commission informed the applicants of the rejection of their tender submitted for Lot A, on the ground that it was not the most economically advantageous tender, and of the award of the contract to another tenderer. The applicants brought an action before the General Court for annulment of that decision.
By its judgment, the Court upheld the action brought by the applicants and annulled the decision of 2 July 2020 relating to Lot A on the ground that it was not supported by a sufficient statement of reasons, in so far as it did not state the reasons for considering that the successful tender did not appear to be abnormally low. In addition, it provides details on the scope of the obligation to state reasons with regard to unsuccessful tenderers who make an express request, where the contracting authority considered that the successful bid did not appear abnormally low.
Findings of the Court
After having recalled the settled case-law concerning the obligation to state reasons for the administration and the right to effective judicial protection, the Court finds, in the first place, that EU rules on public procurement provide for reasoning in two stages in respect of unsuccessful tenderers. (
2
) First of all, the contracting authority informs all unsuccessful tenderers of the rejection of their tender and of the grounds on which the decision was taken. Next, where an unsuccessful tenderer who is not in an exclusion situation and satisfies the selection criteria and makes a request in writing, the contracting authority communicates, as soon as possible and in any case within 15 days of receipt of that request, information on the characteristics and the relative advantages of the successful tender, the price paid or contract value and the name of the successful tenderer. (
3
) Disclosure of reasons in two stages is consistent with the purpose of the duty to state reasons, which, on the one hand, consists in making the persons concerned aware of the reasons for the measure and, thereby, enabling them to defend their rights and, on the other, enabling the EU judicature to exercise its power of review.
In the second place, with regard to the scope of the obligation to state reasons on the part of the contracting authority where it considers that the successful tender does not appear to be abnormally low, the Court points out, first, that the assessment of the existence of abnormally low tenders is made in two stages. In the first stage, the contracting authority determines whether the price or costs proposed in a tender appears to be abnormally low. (
4
) Thus, the contracting authority need only determine whether the tenders submitted contain evidence such as to arouse suspicion that they might be abnormally low. If the tenders submitted do not appear to be abnormally low, the contracting authority may continue with the evaluation of the tenders and the contract award procedure. By contrast, if there is evidence which arouses suspicion that a tender might be abnormally low, the contracting authority must, in the second stage, check the constituent elements of the tender in order to satisfy itself that it is not abnormally low. Where it carries out such a check, the contracting authority must give the tenderer which submitted that tender the opportunity to set out the reasons why it considers that its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low and, if that is the case, it must reject the tender.
Lastly, the Court finds that the obligation to state reasons on the part of the contracting authority, where it considers that the successful tender does not appear to be abnormally low, is limited. This is explained, in particular, by the fact that the contracting authority carries out, in the first stage, only a prima facie assessment as to whether the tender is abnormally low. To require the contracting authority to set out in detail the reasons why a tender does not appear to be abnormally low would amount to not taking into account the distinction between the two stages of the assessment. In particular, where a contracting authority selects a tender, it is not required to expressly indicate, in response to a request for a statement of reasons, (
5
) the reasons why the successful tender did not appear to be abnormally low. It results implicitly but necessarily from the fact that it accepted a tender that the contracting authority considered there to be no evidence that the tender was abnormally low. By contrast, those reasons must be brought to the attention of the unsuccessful tenderer who made an express request, since a statement of reasons in that regard informs the unsuccessful tenderer of an essential aspect of the characteristics and relative merits of the tender accepted. In addition, it is not sufficient for the contracting authority merely to state that the successful tender in the course of a contract award procedure is not abnormally low, nor for it merely to maintain that that was considered not to be the case.
Lastly, the Court notes that, where, first, there is a substantial difference between the price proposed by the unsuccessful tenderer and that proposed by the successful tenderer – the only tenders submitted – and, secondly, the price of the unsuccessful tender is the only point of comparison establishing evidence that the tender accepted may be considered abnormally low, the contracting authority must provide the unsuccessful tenderer which so requests with sufficient information to make it possible to understand the reasons why the successful tender did not appear abnormally low and to potentially challenge the merits of that assessment.
(
1
)	Lot A, entitled ‘Evolution services for the CCN/CSI Platform’, and Lot B, entitled ‘Evolution services for the CCN2(ng), SPEED2(ng), CDCO/TSOAP and SSV Platforms’
(
2
)	Article 170 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; ‘the Financial Regulation’) and paragraph 31 of Annex 1 thereto.
(
3
)	Article 170(3) of the Financial Regulation and paragraph 31.2 of the Annex thereto.
(
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)	Paragraph 23.1 of Annex I to the Financial Regulation.
(
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)	The request for a statement of reasons is submitted pursuant to Article 170(3) of the Financial Regulation.