Case T‑637/11
Euris Consult Ltd
v
European Parliament
(Public service contracts — Tender procedure — Provision of translation services into Maltese — Rules relating to the procedure for the submission of tenders — Rejection of a tenderer’s bid — Failure to comply with the rules on submission designed to ensure the confidentiality of the contents of tenders before opening — Plea of inapplicability — Proportionality — Equal treatment — Rights of the defence — Obligation to state reasons — Article 41 of the Charter of Fundamental Rights of the European Union — Article 98(1) of Regulation (EC, Euratom) No 1605/2002 — Article 143 of Regulation (EC, Euratom) No 2342/2002)
Summary — Judgment of the General Court (Sixth Chamber), 30 April 2014
1.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate the grounds for rejection and to supply, on request, further information in that regard
(Art. 296, second para., TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3))
2.      EU public contracts — Tender procedure — Submission of tenders and requests to participate — Establishment of rules for the transmission and submission of tenders — No breach of the principle of proportionality — No obligation to hear a tenderer before rejecting a tender not complying with the rules laid down in the call for tenders
(Council Regulation No 1605/2002, Art. 98(1); Commission Regulation No 2342/2002, Arts 143(3), and 145)
3.      EU public contracts — Tender procedure — Duty to comply with the principle of equal treatment of tenderers — Scope
(Council Regulation No 1605/2002, Art. 89(1))
1.      See the text of the decision.
(see paras 31-33, 37)
2.      The general principle of proportionality is not breached by Article 143(3) of Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, concerning the rules for submitting tenders in an award procedure. The obligation set out in Article 143(3) to submit the tender in a double envelope enables the confidentiality of tenders to be deemed to be guaranteed where such tenders are found by the tender opening committee to be under double cover in envelopes that are sealed and intact. That rule thus contributes to legal certainty by ruling out any risk of arbitrary assessment during the opening of the tenders, at an insignificant marginal cost in terms of financial and technical resources, given the overall costs involved in the preparation of a tender.
Moreover, the principle of proportionality can apply only in cases where the author of the contested act has a discretion. That does not apply where a tender is submitted that does not comply with the requirements of Article 143(3) of Regulation No 2342/2002. Article 145 of Regulation No 2342/2002 prohibits the opening of tenders which do not comply with the requirements of Article 143. It follows from this that the awarding authority cannot open such a tender without infringing Article 145.
In addition, there is no provision in Regulations Nos 1605/2002 and 2342/2002 that requires the contracting authority to seek the views of a tenderer before rejecting his tender for failure to adhere to the formal requirements laid down by the contract documentation, compliance with which is essential. Likewise, in so far as a decision rejecting a tender that does not comply with the formal requirements with which tenderers have to comply precisely set out in the call for tenders is not founded on any consideration of fact or of law of which the tenderer could reasonably have been unaware, it cannot validly be maintained that the awarding authority is obliged to hear it before adopting such a decision. Moreover, where the awarding authority is compelled to reject a tender that does not comply with the formal requirements set out in the call for tenders, the possibility for the tenderer to submit observations cannot have the slightest influence on the outcome of its tender.
(see paras 84, 85, 99, 101, 117, 119, 120)
3.      The general principle of equal treatment, in respect of which Article 89(1) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities constitutes an implementing rule in relation to public procurement, is intended to apply as between tenderers participating in a given procurement procedure. Therefore, a tenderer which has not complied with the requirement in the call for tenders that it submit its tender under double cover in sealed envelopes cannot benefit from the same treatment as that accorded to other tenderers in the procedure, as it is not in a situation comparable to that of the other tenderers. In that regard, even if that tenderer did send other tenders in circumstances that are equally irregular in the context of other award procedures, it cannot, by invoking the principle of equality, claim the benefit of an illegality.
(see paras 109, 110)