JUDGMENT OF THE GENERAL COURT (Second Chamber)
26 September 2014 (*)
(Public service contracts — Tender procedure — Renovation of a website — Rejection of a tenderer’s tender — Award of contract to another tenderer — Action for annulment — Obligation to state reasons — Award criteria — Manifest errors of assessment — Claim for damages)
In Case T‑498/11,
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, M. Dermitzakis and N. Theologou, lawyers,
applicant,
v
European Commission, represented by S. Delaude and F. Moro, acting as Agents, assisted by P. Wytinck and T. Ruys, lawyers,
defendant,
APPLICATION (i) for annulment of the decision of the Publications Office of the European Union rejecting the tender submitted by the applicant concerning a supply of services relating to the revamping of the website of the European Anti‑Fraud Office (OLAF) and of the decision to award the contract to another tenderer, and (ii) for damages,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 18 March 2014,
gives the following
Judgment
Background to the dispute
1        By contract notice published on 10 June 2009 in the Supplement to the Official Journal of the European Union (OJ 2009/S 109-156511), the Publications Office of the European Union (PO) issued Call for Tenders No 10224 for the ‘[p]rovision of electronic publications’ (‘call for tenders No 10224’) containing 6 lots.
2        In accordance with section 1.2 of the specifications attached to call for tenders No 10224, ‘competitive multiple framework contracts’ were to be concluded, for lots 1-5, in the form of separate but identical contracts with up to eight economic operators per lot (depending on the number of tenderers meeting the award criteria). Specific contracts, which implemented the ‘competitive multiple framework contracts’, were to be awarded on the basis of ‘mini competitions’ between the selected ‘framework contractors’.
3        On 20 July 2009, the applicant, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, submitted a tender for five lots including lot No 1.
4        By letter dated 29 October 2009, the PO informed the applicant that its tender concerning lot No 1, entitled ‘Electronic publishing based on Documentum CWCMS (Corporate Web Content Management System) platform’ and relating to the building and updating of websites using the abovementioned content management software for the European Commission, had been successful.
5        On 2 December 2009, the applicant was one of eight undertakings/consortia that signed ‘Competitive Multiple Framework Service Contract No 10224 — Lot 1’.
6        On 19 May 2011, the PO sent to all the framework contractors invitation to specific tender No 10369 relating to the ‘revamping of the European Anti-Fraud Office website’ (‘invitation to specific tender No 10369’). The nature of the services to be provided was described as follows in section 3 of the technical specifications attached to invitation to specific tender No 10369 (‘the technical specifications’):
‘The work will consist of fine-tuning and implementing a new website structure, creating a new layout and interface design, and adding new functionalities. Part of the content will be new, whereas part of it will be migrated from the existing website.’
7        Section 2.7.3 of the specifications annexed to call for tenders No 10224 sets out, in relation to specific tenders, three technical award criteria which are as follows:
–        criterion No 1: ‘Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)’, with a maximum of 10 points to be awarded and a minimum of 5 points that must be obtained;
–        criterion No 2: ‘Quality and relevance of the Tenderer’s technical proposal for the Specific Tender’, with a maximum of 70 points to be awarded and a minimum of 35 points that must be obtained;
–        criterion No 3: ‘Creativity of the proposed solutions’, with a maximum of 20 points to be awarded and a minimum of 10 points that must be obtained.
8        Section 4.1 of invitation to specific tender No 10369 contained a list of sub‑criteria relating to technical award criterion No 2.
9        Section 2.7.3 of the specifications attached to call for tenders No 10224 and section 4 of invitation to specific tender No 10369, entitled ‘Assessment of the specific tenders and award of the specific contract’, stated that the assessment of the tenders submitted to invitation to specific tender No 10369 was to take place in three stages, namely the technical evaluation, the financial evaluation and the final evaluation: (i) the result of the technical evaluation was to be made up of the sum of the points obtained as a result of the evaluation of criteria Nos 1, 2 and 3; (ii) only those tenders which obtained at least half the points for each criterion and a total score of at least 65 points were to be admitted to take part in the financial evaluation; (iii) only those tenders which passed those stages were to be considered for the final evaluation, following which the contract was to be awarded to the tender presenting the best value-for-money.
10      Section 4.3 of invitation to specific tender No 10369, entitled ‘Final evaluation’, further stated that, in order to determine the tender presenting the best value‑for‑money, quality and price were to be given an equal 50% weighting in order to arrive at the final result, according to a formula which was also to take into account the number of points obtained by the tender which obtained the maximum number of points in terms of quality, and the price of the tender putting forward the lowest price. In relation to that last comparative aspect, only the tenders which reached the stage of the final evaluation were to be considered.
11      On 14 June 2011, the applicant submitted a tender in response to invitation to specific tender No 10369.
12      By letter of 7 July 2011, the PO informed the applicant that its tender had not been successful as it did not receive a sufficient number of points during the technical assessment phase, that is 62 points instead of the 65 points required as a minimum with regard to all of the award criteria, and informed it of the name of the successful tenderer, the number of points obtained by that tenderer’s tender during the technical assessment phase, that is 89 points, and the assessment of its value‑for-money, in this case 100, given a financial tender amounting to EUR 131 125.90.
13      By letter of 8 July 2011, the applicant called upon the PO to provide it with, inter alia, the following information: the scores awarded in each technical award criterion for both its tender and the successful tenderer’s tender; a detailed analysis of the strong and weak points of both its tender and the successful tenderer’s tender with an explanation of the relative advantages and the additional or better services offered by the successful tenderer in comparison to its tender; and a detailed copy of the evaluation report.
14      By letter of 14 July 2011, the PO replied to the applicant and provided it with a table listing the applicant’s scores as well as those of the successful tenderer in relation to each criterion during the technical assessment phase. It is stated that the applicant and the successful tenderer received, for award criteria Nos 1, 2 and 3, the scores 5, 44 and 13 (that is a total of 62 points) and the scores 10, 62 and 17 (that is a total of 89 points) respectively. The PO also sent the applicant a seven page extract from the evaluation report containing comments, per criterion and sub-criterion, on the strengths and weaknesses of the applicant’s tender and the successful tender, as well as the score awarded per criterion and sub-criterion. The PO informed the applicant that some information, disclosure of which would be contrary to the public interest, might affect the successful tenderer’s legitimate business interests (that is information relating to the proposed technical solution), or might distort fair competition between the undertakings concerned, had been removed. The PO further stated that no subcontracting was envisaged by the successful tenderer for the project concerned and that the information concerning the names of the evaluation committee members could not be disclosed during the procedure.
15      By letter of 22 July 2011, the applicant complained that the PO had disclosed very limited information and stated that numerous manifest errors vitiated the evaluation committee’s assessment.
16      By letter of 16 August 2011, the PO informed the applicant that the award decision remained unchanged and that it could not disclose any further information concerning the evaluation of the successful tender pursuant to Article 100 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1, the ‘Financial Regulation’) and Article 149 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1, the ‘Regulation laying down detailed rules’), as amended. The PO stated that those provisions prevented the disclosure of information where such disclosure would hinder application of the law, be contrary to the public interest or harm the legitimate business interests of public or private undertakings, or distort fair competition between those undertakings.
Procedure and forms of order sought
17      By application lodged at the Registry of the Court on 16 September 2011, the applicant brought the present action.
18      The applicant claims that the Court should:
–        annul the PO’s decision to reject the tender submitted by the applicant in response to the invitation to take part in specific tender procedure No 10369, notified by letter of 7 July 2011, and all the related decisions of the PO, in particular the decision to award the public contract at issue to the successful tenderer and selected contractor;
–        order the PO to pay the applicant the sum of EUR 31 977 on account of the loss suffered as a result of the tendering procedure at issue;
–        order the PO to pay the applicant damages suffered on account of the loss of opportunity and damage to its reputation and credibility in the amount of EUR 20 000;
–        order the PO to pay all costs and expenses incurred by the applicant in connection with the present action.
19      The Commission contends that the Court should:
–        declare the action for annulment unfounded in its entirety;
–        declare the action for damages unfounded;
–        order the applicant to pay the costs.
20      On hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure in the present case and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put one question in writing to the Commission. The Commission responded within the time allowed.
21      The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 18 March 2014.
22      In reply to questions put by the Court, the applicant clarified a number of points in its written pleadings, formal note of which was taken in the minutes of the hearing.
23      First, the applicant stated that its claim for damages and costs were directed at the Commission, in accordance with Article 13(2) of Decision 2009/496/EC, Euratom of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions of 26 June 2009 on the organisation and operation of the PO (OJ 2009 L 168, p. 41), as amended, which provides that any legal action within the areas of competence of the PO is to be brought against the Commission.
24      Secondly, the applicant stated that it was withdrawing its head of claim seeking annulment of all the related decisions of the PO and that it was therefore seeking no more than annulment of the decision to reject its tender and annulment of the decision to award the contract to the successful tenderer.
25      Thirdly, the applicant conceded that the parts of its written pleadings entitled ‘Context of the case’ and ‘Introduction’ did not include specific complaints against the tender procedure and the decisions at issue in the present case and that, inasmuch as the Court had responded to similar arguments in its judgments of 20 September 2011 in Case T‑298/09 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 74, of 12 December 2012 in Case T‑457/07 Evropaïki Dynamiki v EFSA, not published in the ECR, paragraphs 39 and 40, and of 24 April 2013 in Case T‑32/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 24 to 31, those parts no longer required a response from the Court.
Law
The application for annulment
26      According to settled case-law, and as the applicant admitted at the hearing, since its tender was rejected at the end of the technical assessment phase for not having obtained the number of points required in order to proceed to the subsequent stages, the admissibility of its application for annulment of the decision to award the contract to the successful tenderer is conditional upon the annulment of the decision rejecting its tender, so that it is necessary to examine, first, the lawfulness of that latter decision (‘the contested decision’) (see, to that effect, Case T‑8/09 Dredging International and Ondernemingen Jan de Nul v EMSA [2011] ECR II‑6123, paragraphs 133 to 137; judgment of 22 May 2012 in Case T‑17/09 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 117 to 120; and Case T‑415/10 Nexans France v Joint Undertaking Fusion for Energy [2013] ECR, paragraphs 53 to 58).
27      The applicant essentially puts forward three pleas in law as grounds for annulment: (i) infringement of the obligation to state reasons laid down in Article 100(2) of the Financial Regulation; (ii) infringement of the specifications, Article 97 of the Financial Regulation and Article 138 of the Regulation laying down detailed rules; and (iii) introduction of new award criteria and the existence of manifest errors of assessment.
The first plea, alleging infringement of the obligation to state reasons
28      The applicant asserts that it emerges from the case-law concerning the contracting authority’s obligation to state reasons that the scope thereof depends on the circumstances of each case, certain cases requiring, as in the present case, a statement of reasons that is more precise and detailed. It states, in that regard, that the tendering procedure at issue related to a complex IT contract, that the successful tenderer’s financial tender was more than double the applicant’s financial tender and that if the applicant had obtained just three additional points it would have been the successful tenderer. The disclosure of selected parts of the evaluation report or the provision of summaries do not allow the applicant to understand what the successful tenderer offered more or better than it and the reasons for the rejection of the applicant’s tender. The detailed arguments on the scoring of the applicant’s tender and that of the successful tenderer, set out in the applicant’s letter of 22 July 2011, were altogether ignored by the PO in its letter of 16 August 2011.
29      It should be borne in mind that where, as in the present case, the institutions, bodies, offices or agencies of the European Union have a broad power of appraisal, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide an adequate statement of reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends are present (see, to that effect, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 54; and Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 61).
30      According to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. 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 or who are entitled to seek its annulment may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
31      In the case of a decision rejecting the tender submitted by a tenderer in response to a call for tenders, the specific rules which determine the scope of the statement of reasons that it must contain are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Regulation laying down detailed rules.
32      Under Article 100(2) of the Financial Regulation:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make 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.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
33      Article 149(3) of the Regulation laying down detailed rules provides:
‘…
The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request.’
34      It should also be pointed out that, if the institution concerned sends a letter in response to a request from an applicant seeking additional explanations concerning a decision before an action is brought but after the date laid down in Article 149(3) of the Regulation laying down detailed rules, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate (judgment of 9 September 2010 in Case T‑387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 36, and Case T‑298/09 Evropaïki Dynamiki v Commission, paragraph 25 above, paragraph 31). The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings. If the applicant, before bringing an action, asks the institution concerned for additional explanations about a decision, it cannot ask the Court not to take them into consideration when determining whether the statement of reasons is adequate; however, the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons (Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 58, and Case T‑4/01 Renco v Council [2003] ECR II‑171, paragraph 96).
35      It is in the light of those principles that it is necessary to analyse the elements relied on by the applicant within the context of the plea alleging infringement of the obligation to state reasons, namely (i) the disclosure of information relating to the successful tenderer, (ii) the reasons for the evaluation committee’s comments on the applicant’s tender and that of the successful tenderer and (iii) the PO’s response to the applicants’ arguments contained in the letter of 22 July 2011.
–       The disclosure of elements relating to the successful tenderer
36      The applicant argues that the Commission cannot arbitrarily refrain from disclosing certain information relating to the successful tenderer simply by invoking the second subparagraph of Article 100(2) of the Financial Regulation, without any justification as to its application in the specific case. The applicant requests that the Court require the Commission to demonstrate which information concerning the successful tenderer could be considered confidential and how the successful tenderer could be harmed by such disclosure within the meaning of that article. The applicant states that the full copy of the evaluation report and that of the successful tenderer’s tender are documents which are ‘required so as to shed light to the evaluation procedure followed’.
37      First, the Commission considers that that complaint must be considered inadmissible because it was not raised in the application.
38      It is apparent from Article 48(2) of the Rules of Procedure that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure. However, a complaint which may be regarded as amplifying a submission put forward previously, whether directly or by implication, in the originating application, and which is closely connected therewith, will be declared admissible (Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II‑1443, paragraphs 198 and 199).
39      In the present case, it is common ground that, in the originating application, the applicant invoked an infringement of the obligation to state reasons, as laid down by Article 100(2) of the Financial Regulation, a provision cited in the document at issue.
40      Even if the applicant did not expressly refer to the second subparagraph of Article 100(2) of the Financial Regulation, in the application it touched on the issue of the statement of reasons from the point of view of the information relating to the successful tender by drawing attention to the need for the contracting authority to disclose the characteristics and relative merits and by claiming that the contracting authority should not be considered as released from its duty to state reasons when it refuses to disclose a full copy of the evaluation report to the tenderers who submit such a request. In addition, the applicant criticised the fact that, in its letter of 14 July 2011, the PO had ‘disclosed certain elements selectively’.
41      It must therefore be held that the complaint mentioned in paragraph 36 above, which was submitted by the applicant for the first time at the stage of the reply, constitutes an amplification of the plea set out in the application, alleging infringement of the obligation to state reasons.
42      Secondly, as regards the substantive assessment of the complaint, it should be recalled that, under the third subparagraph of Article 149(3) of the Regulation laying down detailed rules, unsuccessful tenderers may request additional information about the reasons for their rejection in writing, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation.
43      It follows from those provisions that, in order to fulfil its obligation to state reasons, the PO was required to communicate to the applicant the reasons for the rejection of its tender, the characteristics and relative merits of the successful tender, and the name of the successful tenderer (order of 29 November 2011 in Case C‑235/11 P Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 46). By contrast, it does not follow from those provisions or from the judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, not published in the ECR, which was relied on by the applicant, that the PO was required to provide the applicant with a complete copy of the evaluation report (see, to that effect, order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 25).
44      As pointed out in paragraphs 12 to 16 above, by its letters of 7 and 14 July and 16 August 2011, the PO informed the applicant that its tender had not been successful because it had not received a sufficient number of points during the technical assessment phase, and informed it of the name of the successful tenderer, the number of points obtained by that tenderer’s tender during the technical assessment phase, the amount of its financial tender and the assessment of its value-for-money, as well as a table listing the scores awarded to the applicant and to the successful tenderer in relation to each criterion during the technical assessment phase and a seven page extract from the evaluation report containing comments, per criterion and sub-criterion, on the strengths and weaknesses of the applicant’s tender and the successful tender, as well as the score awarded per criterion and sub-criterion. In addition, the PO twice informed the applicant that some information, disclosure of which would be contrary to the public interest, might affect the successful tenderer’s legitimate business interests (that is information relating to the proposed technical solution), or might distort fair competition between the undertakings concerned, could not be disclosed to it and had been removed in accordance with the relevant provisions of the Financial Regulation and the Regulation laying down detailed rules.
45      It is thus apparent that the PO fulfilled its obligation to state reasons since the letters of 7 and 14 July and 16 August 2011 contain all the information required under Article 100(2) of the Financial Regulation and the third subparagraph of Article 149(3) of the Regulation laying down detailed rules, regardless of the fact that the wording of those letters was stereotypical in nature as regards the reasons for the removal of some information (see, to that effect, judgment of 24 April 2012 in Case T‑554/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 141). Such wording is permissible in light of the fact that it may be impossible to state the reasons precisely justifying the confidentiality of each of the pieces of information concerned without disclosing them and therefore negating the effectiveness of the second subparagraph of Article 100(2) of the Financial Regulation.
46      In any event, it should be noted that, in the present case, the contested decision is not based on a comparison of the various tenderers’ tenders, but on the fact that the applicant’s tender did not obtain the minimum number of points required during the application of the technical award criteria and sub-criteria (see, to that effect, judgments of 12 November 2008 in Case T‑406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 106 to 108, and of 9 September 2010 in Case T‑387/08 Evropaïki Dynamiki v Commission, paragraph 34 above, paragraphs 63 to 66, upheld on appeal by order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 43 above, paragraph 28).
47      As set out in the call for tenders, tenders which did not obtain, during the technical assessment phase, at least half the points for each criterion and 65 points in total with reference to the award criteria and sub-criteria could not subsequently be the subject of an examination seeking to determine the tender presenting the best value-for-money.
48      Accordingly, the applicant’s tender was eliminated because it failed to attain the minimum threshold of points required and not as a result of a comparison with the other tenders and, in particular, with the successful tenderer’s tender during the final assessment phase.
49      The information concerning the successful tenderer which was communicated by the PO was therefore sufficient in the present case in the light of the relevant requirements.
50      In those circumstances, there is no need to order the production of the successful tenderer’s tender or the full copy of the evaluation report requested by the applicant.
–       The statement of reasons for the evaluation committee’s comments on the applicant’s tender and that of the successful tenderer
51      It must be noted that, in addition to general complaints concerning the statement of reasons provided by the evaluation committee in order to reject its tender, as set out in paragraph 28 above, the applicant sets out more specific complaints of insufficient clarity of some comments of that committee concerning its tender and that of the successful tenderer.
52      First, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning technical award criterion No 1, entitled ‘Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)’ and given a score of 5 out of 10, that committee made one positive comment, namely ‘+ corresponds to the specifications from a technical point of view’, whilst noting the following negative elements:
‘- not concise and not good readable (e.g. missing spaces between paragraphs);
- table of contents provided but subsections are missing;
- contains quotations from the technical specifications (e.g. p. 23-24, pt. 6.3.3), which do not provide any added value.’
53      As regards the tender which was ultimately successful, the part of the evaluation report dealing with the technical evaluation under criterion No 1 identifies five positive comments, one of which is partially blacked out, namely ‘+ Commission activities …’. The other four comments read as follows:
‘+ well-tailored to the specifications, from both a technical and a communicative point of view;
+ well-written document;
+ the document explains in an “economic” way the proposed solution;
+ pleasant typography and layout makes reading easy and helps the reader to concentrate on the content.’
54      The applicant claims that the evaluation committee:
–        does not justify why its tender was allegedly ‘not concise’ or lacked ‘spaces between paragraphs’, and does not provide any explanation as to what does not comply with the specifications;
–        made a general comment on the existence of quotations taken from the technical specifications not providing any added value, without explaining in detail what was allegedly missing or wrong; failed to mention if the successful tenderer offered such ‘added value’ or how its tender compared to the applicant’s tender; and did not disclose the relative merits of the successful tenderer.
55      It must be noted that the comments ‘not concise’ and ‘not good readable’ are clear and understandable and that the second is, moreover, explained by the details ‘e.g. missing spaces between paragraphs’ and ‘Table of contents provided but subsections are missing’. Like the comment ‘Contains quotations from the technical specifications (e.g. p. 23-24, pt. 6.3.3), which do not provide any added value’, those details are based on substantive findings which leave no doubt as to the meaning of their terms.
56      In addition, the evaluation committee’s observation concerning the existence of quotations taken from the technical specifications not providing any added value must be considered together with the terms of the following passage in section 4.1 of invitation to specific tender No 10369:
‘Since assessment of the tenders will focus on the quality of the proposed services, tenders [will] elaborate on all points addressed by these specifications in order to score as many points as possible. The mere repetition of mandatory requirements set out in these specifications, without going into details or without giving any added value, will only result in a very low score.’
57      The communication of the evaluation committee’s comments relating to the successful tender, accompanied by the score obtained by that tender, allowed the applicant to know the characteristics and relative merits of that tender and to compare the scores awarded as regards criterion No 1, regardless of the fact that a particular aspect of the applicant’s tender — the reproduction of part of the tender documents — gave rise to specific comments from the evaluation committee with no equivalent in the assessment of the successful tender.
58      It must also be noted that, in the context of the communication of the characteristics and relative merits of the successful tender, the contracting authority cannot be required to undertake a detailed comparative analysis of the successful tender and the unsuccessful tender (order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 43 above, paragraph 27).
59      In those circumstances, it must be held that the assessment of technical award criterion No 1 is reasoned to the requisite legal standard.
60      Secondly, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.1, entitled ‘Accuracy of the project planning, including breakdown, milestones, time delays, etc.’ and given a score of 7 out of 10, that committee’s report includes one positive comment and two negative comments:
‘+ the planning respects the limitations laid out in the technical specifications;
- breakdown of tasks not very detailed;
- planning put unnecessary pressure on author to provide content already in week 5 (this is followed by a period of 55 days of migration preparation and another 22 days of content migration).’
61      The applicant states that the evaluation committee indicates that the breakdown of tasks presented ‘is not very detailed’, but fails to explain why, and claims that such a comment was not of such a kind as to enable it to understand the rejection of its tender and the Court to exercise its review.
62      It should be observed that Article 100(2) of the Financial Regulation does not require the contracting authority to communicate to an unsuccessful tenderer, 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 (order of 29 November 2011 in Case C‑235/11 P Evropaïki Dynamiki v Commission, paragraph 43 above, paragraph 50).
63      Article 100(2) of the Financial Regulation does not preclude as a matter of principle a contracting authority from performing its obligation to state reasons by means of succinct comments on the successful and the rejected tender, in so far as they are sufficiently precise to enable the applicant to ascertain the matters of fact and law on the basis of which the contracting authority rejected its tenders and accepted those of other tenderers (see, to that effect, judgment of 17 October 2012 in Case T‑447/10 Evropaïki Dynamiki v Court of Justice, not published in the ECR, paragraphs 95 and 96).
64      In the present case, it must be stated that the first negative aspect of the applicant’s tender found by the evaluation committee took the form of a succinct but explicit comment on the inadequacy of explanations relating to a clearly identified parameter of the issue of project planning.
65      As for the other award criteria and sub-criteria, it was for the applicant to provide sufficient indications on the taking account and satisfaction of sub-criterion No 2.1. The Court observes that all the tenderers had been duly informed of the need to be precise in drawing up their tenders both by the very wording of that sub-criterion and by the terms of section 4.1 of invitation to specific tender No 10369 (see paragraph 56 above), and that the evaluation committee’s assessment concerning the successful tender, which was given a score of 9 out of 10, included, inter alia, the following positive comment: ‘detailed breakdown of tasks’.
66      The second negative comment, noted in paragraph 60 above, is also explicit and has not indeed been the subject of any criticism by the applicant in this respect, which permits the conclusion that the evaluation committee’s assessment is, on any view, reasoned to the requisite legal standard so far as concerns sub-criterion No 2.1 (see, to that effect, Case T‑457/07 Evropaïki Dynamiki v EFSA, paragraph 25 above, paragraph 54).
67      Thirdly, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.2 ‘Quality of the indicative wireframe(s), including intuitive navigation’, given a score of 9 out of 15, that committee’s report includes two positive comments and three negative comments:
‘+ wireframe quality good (p. 5);
- but no added value (similar to the current page and to the example given in the Technical Specifications);
+ picks up elements of the project objectives;
- the proposal of the legal section is “rigid” and does not provide ideas to make the page more user-friendly;
- report fraud button not requested for this page or other pages (only for the home page).’
68      The successful tender, which obtained 13 out of 15 points, was the subject of the following comments:
‘+ very good wireframes;
+ takes a flexible approach to the proposal of information architecture, it is open for …;
+ includes a brief analysis of the type of content on this specific site (topical, task‑oriented) and of the authors[‘] specific needs;
+ picks up many elements of the project objectives;
- deviates from the requirement of the Specifications, e.g.; wireframe “Legislation…”: the left navigation menu is missing (p. 2-10), “Contacts” should be in the top banner, report fraud button not requested for this page or other pages (only for the home page).’
69      The applicant maintains that the negative elements concerning its tender amount to vague and arbitrary comments and that the evaluation committee awarded the successful tenderer’s tender an almost perfect score (13 points out of a maximum of 15) although the comments made indicate that that tender ‘deviates from the requirement of the specifications’, which reveals an unexplained intrinsic contradiction.
70      It should be noted, however, that the evaluation committee described with sufficient precision the weak points of the applicant’s tender within the framework of an explicit and reasoned comparison between (i) the solution proposed by the applicant for the page relating to legal aspects and (ii) the corresponding page of the original site and the page provided as an example in the technical specifications. It must also be stated that the applicant’s argument deliberately conceals the many positive comments of which the successful tenderer’s tender was the subject, which are capable of dismissing any complaint of inadequate or contradictory reasoning as regards the relative merits of the successful tender.
71      In those circumstances, it must be held that the assessment of technical award sub‑criterion No 2.2 is reasoned to the requisite legal standard.
72      Fourthly, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.3 ‘Quality of two indicative mock-ups, including accurate look and feel’, given a score of 7 out of 15, that committee’s report includes three positive comments and five negative comments:
‘+ 3 tabs for press releases;
+ mock-up is appealing although
- mock-up does not communicate strong visual identity of OLAF;
+ includes a proposal for a new Report fraud banner;
- lacks a creative approach;
- no clear distinction between type of content on home page (e.g. same colour + column width for headlines and section boxes)
- redundant information (p. 6: “Welcome to OLAF…”);
- the design does not provide a good colour scheme.’
73      The successful tender, which obtained 14 out of 15 points, was the subject of the following comments:
‘+ font reference interesting;
+ good general graphic presentation (but not innovative);
+ mock-up is appealing and unique;
+ matches the visual identity of OLAF;
+ proposal makes use of colour and other graphical elements to highlight important information … and to group content;
+ includes a visual identity for the OAFCN;
+ includes a proposal for a new Report fraud banner;
+ the layout varies the width of columns making the proposal “lively” and user friendly by giving indications to the visitors;
- top banner incomplete (Contacts missing).’
74      The applicant claims that the negative elements concerning its tender amount to vague and generic comments and that the evaluation committee did not state why the successful tenderer’s tender was considered better.
75      It follows, however, from a simple reading of the abovementioned comments that the complaint raised by the applicant is unfounded.
76      Whilst the statement that the proposed mock-up does not communicate strong visual identity of the European Anti-Fraud Office (OLAF) and lacks creativity reflects the result of the evaluation committee’s assessment, that committee clearly provided facts justifying that assessment, namely the lack of clarity in the distinction of contents, the lack of a good colour scheme and the mentioning of redundant information.
77      The evaluation committee also provided numerous and precise indications sufficiently clarifying the characteristics and merits of the successful tender, as mentioned in paragraph 73 above, bearing in mind that, in the context of the notification of the characteristics and relative merits of the successful tender, the contracting authority cannot be required to undertake a detailed comparative analysis of the successful tender and the unsuccessful tender (see the case-law cited in paragraph 58 above).
78      In those circumstances, it must be held that the assessment of technical award sub‑criterion No 2.3 is reasoned to the requisite legal standard.
79      Fifthly, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.6 ‘Quality of the described development methodology and quality assurance, including analysis, documentation, performance testing, continuous integration, source control, software/tools to be used’, given a score of 8 out of 10, that committee’s report includes two positive comments and one negative comment:
‘+ well described but
- the point about testing should have more details;
+ both automatic and manual testing mentioned.’
80      The applicant claims that the only negative element concerning its tender is not reasoned.
81      It is sufficient to observe that, although the negative comment made is brief, it is sufficiently explicit in that it relates to a specific aspect of the evaluation, namely ‘performance testing’, which is expressly mentioned in the description of sub‑criterion No 2.6 and the equivocal nature of which is not alleged by the applicant.
82      The applicant’s complaint must therefore be rejected in the light of the case-law set out in paragraphs 62 and 63 above, since the assessment of award sub-criterion No 2.6 is reasoned to the requisite legal standard.
83      Sixthly, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.7 ‘Presentation of the long term vision, interoperability, sustainability and potential reusability’, given a score of 4 out of 5, that committee’s report includes two comments:
‘+ all the requested elements are well described;
- sometimes quite general — describing the terms (interoperability, sustainability, and reusability) rather than giving concrete suggestions for this project.’
84      The applicant maintains that the only negative element concerning its tender amounts to a vague comment that the Commission attempts to justify a posteriori by evoking a repetition of the requirements in the technical specifications but without providing a single example.
85      It follows, however, from a simple reading of the comment in question that the evaluation committee made an explicit criticism of the applicant’s tender, namely that it adopted an approach which is too descriptive of the various elements making up sub-criterion No 2.7 and characterised by the generality of the presentation and above all a lack of practical suggestions with a view to ensuring interoperability, sustainability and potential reusability.
86      In the light of that precise substantive finding applied to a clearly defined sub‑criterion, no infringement of Article 100(2) of the Financial Regulation can be validly alleged by the applicant so far as concerns the reasoning of the assessment of that sub-criterion.
87      The Commission’s claim that the applicant merely repeated the requirements set out in the technical specifications does not constitute a new ground, as the applicant alleges, but an equivalent expression of the negative element connected with the lack of concrete suggestions as regards sub-criterion No 2.7.
88      Seventhly, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning technical award criterion No 3 ‘Creativity of the proposed solutions’, given a score of 13 out of 20, that committee’s report includes the following comment:
‘The website design offers a traditional and rather bland presentation. Mock-ups and wireframes are “correct” but the proposed improvements for the structure and the look and feel are neither convincing nor appealing.’
89      The applicant claims that the negative elements concerning its tender are subjective and vague.
90      It should be remembered that the subject-matter of the contract at issue is the revamping of the OLAF website. According to section 3 of the technical specifications, ‘[t]he work will consist of fine-tuning and implementing a new website structure, creating a new layout and interface design, and adding new functionalities’.
91      The objective sought by the contracting authority is to enable better visibility of OLAF’s activities by the definition of a unique visual identity (section 5.1 of the technical specifications).
92      In the specific context mentioned above, the set of qualifiers used — ‘traditional and rather bland’, ‘correct’ and ‘neither convincing nor appealing’ — has a specific meaning and is fully understandable by a company specialising in the information and communications technology sector, as the applicant describes itself.
93      In addition, as the Commission rightly notes, the assessment of the ‘creativity of the proposed solutions’ cannot be narrowed down to a strictly factual analysis and the wording of Article 138(2) of the Regulation laying down detailed rules, with the mention of ‘aesthetic and functional characteristics’, confirms that the assessment of competing tenders must go beyond the verification of specific facts or formalities. It is common ground that the qualitative assessment of the tenders proposed by the tenderers necessarily includes the expression of preferences from the evaluation committee.
94      It should also be observed that the comment relating to award criterion No 3, which concerns the issue of the ‘creativity of the proposed solutions’ applied to the revamping of a website in its different aspects (structure, content, functionalities), makes express reference to the wireframes and mock-ups proposed and must therefore be read in conjunction with the comments relating to sub-criteria Nos 2.2 and 2.3.
95      It follows from all of the foregoing considerations that the evaluation committee reasoned its assessment of the abovementioned criteria and sub-criteria to the requisite legal standard. The Court observes that the applicant has made no criticism with regard to sub-criteria Nos 2.4 and 2.5 and that the evaluation report actually includes explicit comments relating to them such as to enable the applicant to understand the evaluation committee’s assessment and the Court to exercise its review.
96      It should be noted that that conclusion of sufficient reasoning for all of the award criteria and sub-criteria, based on an individual analysis of the assessments made by the evaluation committee of the applicant’s tender and that of the successful tenderer, cannot be invalidated by the applicant’s general assertions of the allegedly complex nature of the contract concerned.
97      The same is true of the applicant’s assertions relating to the low number of points which were lacking in order to reach the financial evaluation of the tenders stage and the fact that the successful tenderer’s financial tender was more than double the applicant’s financial tender.
98      The reference to Case T‑300/07 Evropaïki Dynamiki v Commission [2010] ECR II‑4521 is, in this respect, irrelevant because the specific circumstances which resulted in the finding that inadequate reasons were given for the decision rejecting the applicant’s tender in that case are not present here.
99      In the case giving rise to that judgment, the score allocated to the applicant’s tender exceeded the minimum number of points required both for the award criteria as a whole and for each single award criteria and, in order to determine the most economically advantageous tender, the Commission then examined the financial proposals of the tenderers, including that of the applicant, which was lower than that of the tenderer finally selected.
100    However, in the present case, it is common ground that the score allocated to the applicant’s tender did not exceed the minimum number of points required for the award criteria as a whole, which did not allow it to reach the financial evaluation stage.
101    In addition, as regards the conditions to be satisfied in order to comply with the obligation to state reasons, the Commission stated that the evaluation committee members did not see the financial tenders until the technical evaluation phase was completed. Whilst contesting that statement, the applicant has failed to adduce evidence to the contrary. The fact, relied on by the applicant, that the technical tender and the financial tender were sent as attachments to the same non‑encrypted e-mail is not in itself capable of calling into question the Commission’s statement that the evaluation committee members did not see the financial tenders until the technical evaluation phase was completed, because the opening committee — the only one knowing the financial tenders — and the evaluation committee consist of different persons.
–       The PO’s response to the applicants’ arguments contained in the letter of 22 July 2011
102    As regards the applicant’s complaint that its detailed arguments on the scoring of its tender and that of the successful tenderer, contained in a letter of 22 July 2011, were altogether ignored by the PO in its letter of 16 August 2011, it must be found that the contracting authority did not in fact reply in detail to the applicant’s objections.
103    However, that cannot be held against the PO because, having stated the reasons for the contested decision in accordance with Article 100(2) of the Financial Regulation, it was not under an obligation to reply (judgment of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 78, and Case T‑554/08 Evropaïki Dynamiki v Commission, paragraph 45 above, paragraph 150). Furthermore, that fact cannot call in question, of itself, the legality of the contested decision (see, to that effect and by analogy, Case T‑30/04 Sena v EASA [2005] ECR-SC I‑A‑113 and II‑519, paragraph 95; Case T‑250/05 Evropaïki Dynamiki v Commission, paragraph 78; and judgment of 1 July 2008 in Case T‑211/07 AWWW v Eurofound, not published in the ECR, paragraph 43).
104    It follows from all of the foregoing considerations that the plea alleging infringement of the obligation to state reasons must be rejected.
The second plea, alleging infringement of the specifications, Article 97 of the Financial Regulation and Article 138 of the Regulation laying down detailed rules
105    The applicant claims that technical award criterion No 1, as interpreted by the evaluation committee, does not at all seek to identify the tender which is economically the most advantageous, since several of the comments explaining the reason for the low scores received by the applicant in relation to that criterion concern the presentation of the tender and not its content. The applicant states that it fails to understand how elements of a purely formalistic character related to the presentation of tenders can be lawfully considered in identifying the economically most advantageous tender, especially in the very specific technical context of an IT task (i.e. revamping a website), when they are not defined in the technical specifications and follow subjective criteria introduced a posteriori ‘pour les besoins de la cause’. Even if, quod non, such a criterion could be deemed appropriate in identifying the economically most advantageous tender, the way it was applied and assessed by the evaluation committee could not lead to the identification of that tender, since the evaluation committee based its decision on subjective and arbitrary assessments. The applicant considers that such an assessment of the tender is directly contrary to Article 97 of the Financial Regulation and Article 138 of the Regulation laying down detailed rules, since such criteria cannot form part of the award procedure.
106    It should be recalled that Article 97 of the Financial Regulation provides as follows:
‘1. Contracts shall be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 93, 94 and 96(2)(a) has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders.
2. Contracts shall be awarded by the automatic award procedure or by the best value-for-money procedure.’
107    It is apparent from section 2.7.3 of the specifications annexed to call for tenders No 10224 and from section 4.3 of invitation to specific tender No 10369 that the method used to award the contract at issue was the best value-for-money procedure.
108    According to Article 138(2) of the Regulation laying down detailed rules, the tender offering the best value-for-money is to be the one with the best price‑quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability completion or delivery times, after-sales service and technical assistance.
109    Although, as is shown by the use of the expression ‘such as’, Article 138(2) of the Regulation laying down detailed rules does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities at the award stage and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria designed to identify the tender offering the best value-for-money (see Case T‑457/07 Evropaïki Dynamiki v EFSA, paragraph 25 above, paragraph 67 and the case-law cited).
110    It should be recalled that, according to the case-law, the criteria adopted by the awarding authority in order to identify the tender which offers the best value‑for‑money need not necessarily be quantitative or related solely to prices. Even if award criteria which are not expressed in quantitative terms are included in the tendering specifications, they may be applied objectively and uniformly in order to compare the tenders and are clearly relevant for identifying the most economically advantageous tender (see, to that effect, Renco v Council, paragraph 34 above, paragraphs 67 and 68, and Case T‑70/05 Evropaïki Dynamiki v EMSA [2010] ECR II‑313, paragraph 132).
111    As the Commission rightly notes, the fact that the award criteria do not necessarily have to be of a purely economic nature follows from the very wording of Article 138(2) of the Regulation laying down detailed rules, since that provision refers expressly to factors such as technical merit and especially aesthetic and functional characteristics.
112    In the present case, section 2.7.3 of the specifications annexed to call for tenders No 10224 and section 4.1 of invitation to specific tender No 10369 stated, in a precise and unequivocal manner, the technical award criteria and sub-criteria, including criterion No 1 entitled ‘Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)’.
113    By means of technical award criterion No 1, the contracting authority expressly drew the attention of potential tenderers to the importance of a clear, concise and structured presentation of their tenders in order to allow it to assess, in optimum conditions, the content of those tenders and their capacity to satisfy the requirements of the technical specifications. It is undeniable that the formal and stylistic presentation of a tender necessarily has an impact, either positive or negative, on the level of comprehension, and thus the evaluation of that tender by the body having the task of examining it (judgment of 23 November 2011 in Case T‑514/09 bpost v Commission, not published in the ECR, paragraph 55).
114    Not only can the presentation of a tender not be strictly dissociated from its content, but it is also important to point out that, contrary to the applicant’s claims, the criterion in question is fully justified by the subject of the contract, namely the revamping of the OLAF website.
115    Factors such as clarity, concision and structuring constitute relevant indicators within the context of a contract aimed at the development of a communication tool designed to ensure a ‘look’ which is unique to an institution and, consequently, better visibility of its activities according to the terms of section 5.1 of the technical specifications.
116    As regards the complaint relating to the application of technical award criterion No 1 and, in particular, the claim that in implementing that criterion, new criteria were introduced a posteriori and for reasons of expediency, they do not fall within the legality of the criteria itself and will be examined within the context of the third plea for annulment, relating specifically to the introduction of new award criteria and the existence of manifest errors of assessment.
117    It follows from the foregoing considerations that the plea alleging infringement of the specifications, Article 97 of the Financial Regulation and Article 138 of the Regulation laying down detailed rules must be rejected.
The third plea, relating to the introduction of new award criteria and the existence of manifest errors of assessment
118    In its third plea, the applicant pleads the introduction of new award criteria and the existence of manifest errors of assessment.
119    As a preliminary point, it must be observed that, in accordance with Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination and that the principle of transparency, which is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority, 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 tendering specifications (Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 111).
120    Where a contract is to be awarded by the best value-for-money procedure, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the Regulation laying down detailed rules, the contracting authority must define and specify in the tender specifications the award criteria enabling evaluation of the content of tenders. In addition, those criteria must, in accordance with Article 138(2) of the Regulation laying down detailed rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value-for-money. Those provisions seek to ensure compliance with the principles of equal treatment and transparency at the stage of evaluation of tenders with a view to award of the contract (see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92).
121    Consequently, in order to ensure compliance with the principles of equal treatment and transparency, potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the tender offering the best value-for-money and, if possible, their relative importance, when they prepare their tenders. It follows that a contracting authority cannot apply, in respect of the award criteria, sub-criteria which it has not previously brought to the tenderers’ attention (judgment of 21 July 2011 in Case C‑252/10 P Evropaïki Dynamiki v EMSA, not published in the ECR, paragraphs 30 and 31).
122    It is important to point out that the Court of Justice has not established a total and absolute ban on contracting authorities’ specifying in more detail a criterion previously brought to the tenderers’ attention and giving it weighting (Case C‑252/10 P Evropaïki Dynamiki v EMSA, paragraph 121 above, paragraph 32).
123    Finally, it should be recalled that the contracting authority enjoys a broad power of appraisal with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 147; and Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 47).
124    The complaints raised by the applicant should be examined in the light of the foregoing considerations.
–       Technical award criterion No 1 ‘Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)’
125    The applicant claims that the first two negative comments of the evaluation committee with regard to criterion No 1, namely ‘not concise and not good readable (e.g. missing spaces between paragraphs)’ and ‘table of contents provided but subsections are missing’, relate to requirements which are not mentioned in the specifications and therefore introduce new sub-criteria pour les besoins de la cause.
126    The applicant claims that the negative comments of the evaluation committee on the formal presentation and structure of its tender are totally unfounded in so far as it was in full compliance with what was requested in the technical specifications. The applicant asserts that while the specifications prohibit a mere repetition of its wording without details and added value, they do not prohibit a repetition of the specification for unavoidable practical reasons. The evaluation committee erred in looking only at the use of certain terms included in the technical specifications, whilst failing to consider whether the added value offered by each tenderer was directly related to the subject-matter of the tender. The applicant claims that the evaluation committee made a manifest error of assessment in awarding to the successful tenderer the maximum score for criterion No 1, without explaining the partially masked positive comment ‘+ Commission activities …’ even though the comments of the committee concerning sub‑criterion No 2.1 indicate an imperfect presentation of the tender.
127    It should be remembered that, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning technical award criterion No 1, entitled ‘Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)’ and given a score of 5 out of 10, the committee made one positive comment, namely ‘+ corresponds to the specifications from a technical point of view’, whilst noting the following negative elements:
‘- not concise and not good readable (e.g. missing spaces between paragraphs);
- table of contents provided but subsections are missing;
- contains quotations from the technical specifications (e.g. p. 23-24, pt. 6.3.3), which do not provide any added value.’
128    As regards the successful tenderer’s tender, the evaluation committee made the following comments for award criterion No 1:
‘+ well-tailored to the specifications, from both a technical and a communicative point of view;
+ well-written document;
+ the document explains in an “economic” way the proposed solution;
+ pleasant typography and layout makes reading easy and helps the reader to concentrate on the content.
+ Commission activities …’
129    The assessment of the evaluation committee’s evaluation of technical award criterion No 1 involves also considering some passages of invitation to specific tender No 10369 which explain that criterion by defining, with a high degree of precision, various formal requirements relating to the tenders to be submitted by the tenderers.
130    Section 3.5 of invitation to specific tender No 10369 thus provides that the tenders must be ‘perfectly legible, so that there can be no doubt as to words and figures’.
131    Section 4.1 of the same document, entitled ‘Technical evaluation’, states, inter alia, the following:
‘The Tenderer shall provide a document of maximum 25 pages, A4 format, font Times New Roman size 12, max 3000 characters with spaces (all inclusive — including for example headers and footers) per page presenting its technical offer.
The Tenderer’s offer shall respect the order, numbering and heading as listed below.
It shall contain:
1. Project planning including breakdown, milestones, time delays, etc.
2. Indicative wireframe(s), including intuitive navigation,
3. Two indicative mock-ups, including accurate look and feel,
4. Solutions for the requested functionalities,
5. Solution for handling multiple languages, including maintenance of URLs in English,
6. Development methodology and quality assurance, including analysis, documentation, performance testing, continuous integration, source control, software/tools to be used,
7. Presentation of the long term vision, interoperability, sustainability and potential reusability.’
132    As a preliminary point, the applicant’s criticism regarding the lack of explanations of the partially masked comment ‘+ Commission activities …’ relating to the successful tenderer’s tender must be dismissed since it has been held in paragraph 45 above that the PO fulfilled its obligations under Article 100(2) of the Financial Regulation and the third subparagraph of Article 149(3) of the Regulation laying down detailed rules.
133    First, as regards the applicant’s complaint relating to the introduction of new assessment criteria a posteriori and ‘pour les besoins de la cause’, it should be noted, first of all, as does the Commission, that the fact that all the negative comments do not necessarily literally mirror an explicit requirement of the technical specifications cannot automatically mean that the contracting authority introduced new criteria a posteriori. Next, as regards the claim that the assessment of the applicant’s tender with regard to technical award criterion No 1 reflects such an a posteriori introduction of new requirements, it is sufficient to recall the wording of that criterion, entitled ‘Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)’, to find that that complaint is lacking any foundation.
134    Although that wording, just like sections 3.5 and 4.1 of invitation to specific tender No 10369 (see paragraphs 130 and 131 above), does not refer expressly to the presence of spaces between paragraphs or subsections in the table of contents provided, those aspects are linked, logically and directly, to the clarity of the proposal. The comments relating to the absence of spaces between paragraphs or subsections in the table of contents provided merely substantiate the critical assessment of the overall quality of the applicant’s tender and its score of 5/10.
135    Secondly, as regards the allegation of the existence of manifest errors of assessment, it should be noted, as a preliminary point, that, as the Commission points out, the applicant’s argument is based on the wrong assumption that the mere fulfilment of the technical requirements laid down in the technical specifications (for example, concerning font size or maximum length) should always ensure that the maximum score is awarded.
136    First of all, the applicant does not put forward any evidence to show that the comment that its tender was ‘not concise’, which establishes the failure to fulfil the first qualitative characteristic of the tender required and mentioned in the actual title of technical award criterion No 1 [Overall quality and relevance of the Tenderer’s response to the Specific Tender (concise, clear, well structured)], is manifestly wrong.
137    Next, as regards the evaluation committee’s criticisms with regard to the concision and readability of the tender, it must be noted that a mere formal examination of the applicant’s tender allows the finding that, although the document in question is highly structured with the use of numbered headings and subheadings, formatted in bold or in italics, and of bulleted lists and includes titles for each inserted diagram as well as footnotes for references to internet sites, the text as a whole is very dense, sometimes with a lack of space between paragraphs, which makes reading difficult.
138    Furthermore, the highly structured approach is not to be found in the table of contents of the applicant’s tender, which merely reproduces the structure imposed for each tender by section 4.1 of the invitation to specific tender No 10369 (see paragraph 131 above).
139    As regards the comment ‘contains quotations from the technical specifications (e.g. p. 23-24, pt. 6.3.3), which do not provide any added value’, it follows from the applicant’s written pleadings that it does not dispute the fact that it reproduced quotations from the technical specifications in section 6.3.3 of its tender, entitled ‘Communication — Meetings and Reports’, and even in section 6.3.5 concerning invoicing, which was referred to by the Commission by way of further example.
140    By contrast, the applicant claims that section 6.3.3 of its tender was presented in full compliance with ‘what was requested in the [technical specifications]’. The applicant also claims that that section concerned secondary aspects in relation to the technical solution proposed, namely meetings and activity reports, and that it is ‘absurd’ to penalise the use of words used by the technical specifications, since they are necessary to describe the technical solution proposed in response to the requirements of the technical specifications.
141    First, it must be stated that the applicant in fact repeated, in section 6.3.3 of its tender, certain parts of sections 9 and 10 of the technical specifications concerning the designation by the contracting party of a project manager, the drawing up of activity reports, their wording and their periodicity, the holding of meetings, their procedures with the drawing up of an agenda and of minutes and the taking into account of possible comments from the Commission on those minutes, technical procedures designed to ensure the optimal conduct of the implementation of the project, the mere repetition of which in the tender does not give any added value.
142    That last finding also applies to the wording of section 6.3.5 of the applicant’s tender concerning the procedures for invoicing, which essentially reproduces the requirements set out in section 11 of the technical specifications.
143    It is necessary to recall the explicit wording of the following passage from section 4.1 of invitation to specific tender No 10369:
‘Since assessment of the tenders will focus on the quality of the proposed services, tenders should elaborate on all points addressed by these specifications in order to score as many points as possible. The mere repetition of mandatory requirements set out in these specifications, without going into details or without giving any added value, will only result in a very low score.’
144    The finding of no added value of the explanations contained in sections 6.3.3 and 6.3.5 of the applicant’s tender is not invalidated by the alleged — but unproven — ‘secondary’ nature of those aspects of the tender.
145    In addition, the applicant’s complaint concerning the fact that its tender was penalised because it used technical terminology contained in the technical specifications, although the prohibition of such use is absurd, must be dismissed since the committee did not penalise the applicant’s tender because it used the technical terminology of the technical specifications, but because it reproduced quotations from the technical specifications, the mere repetition of which does not give any added value.
146    Secondly, as regards the applicant’s claim that section 6.3.3 of its tender, which described the meetings and reports to be envisaged within the context of the implementation of the project, ‘was presented in full compliance to what was requested in the [technical specifications]’, it should be noted again that, as has already been stated in paragraph 135 above, the argument that the mere fulfilment of technical and/or formal requirements laid down in the specifications should always ensure that the maximum score is awarded cannot be accepted, especially because the tenderers’ attention had been clearly drawn to the fact that the evaluation of the tenders would focus on the ‘quality of the proposed services’.
147    In any event, the applicant cannot reasonably claim that the developments in section 6.3.3 of its tender were presented ‘in full compliance’ with the requirements of the technical specifications.
148    It is important to point out in this regard that, for the structure imposed on each tender by section 4.1 of invitation to specific tender No 10369 (see paragraph 131 above), it was provided that the first section had to be given over to ‘[p]roject planning including breakdown, milestones, time delays, etc.’.
149    The applicant drew up section 1 of its tender in accordance with that requirement and, in that section, it inter alia inserted a table mentioning the relevant information concerning the communication of the agenda and the minutes of the meetings as well as the activity reports.
150    Section 6.3.3 of the applicant’s tender does not correspond to the structure imposed by the contracting authority. It is inserted in section 6.3 entitled ‘Project Management’, which follows on from section 6.2 on ‘Quality Assurance’ and precedes section 6.4 relating to ‘Software Tools to be used’. Whereas, in their title and insertion in the text of the tender, those last two sections correspond very exactly to the requirements of invitation to specific tender No 10369, the same is not true of section 6.3 and its subdivisions 6.3.3 and 6.3.5. It is also significant that, in section 6.3.3 of the applicant’s tender, there is an express reference to the information provided in section 1.2.
151    Thirdly, within the framework of its argument seeking to establish the existence of a manifest error in the assessment of its tender, the applicant criticises the evaluation of the successful tenderer’s tender as regards, in particular, its clarity.
152    It is important to note that, in the light of the unanimously positive assessments of its tender so far as concerns award criterion No 1, the successful tenderer’s tender obtained the maximum score of 10/10 under that criterion, that is, double the points awarded to the applicant.
153    However, as the applicant remarks, the evaluation committee made the following comment within the context of its assessment of the successful tenderer’s tender in the light of sub-criterion No 2.1 ‘Accuracy of the project planning, including breakdown, milestones, time delays, etc.’:
‘[C]hart very difficult to read (PDF saved in low resolution which makes it difficult to see details in the Gantt chart even when magnified).’
154    It should be noted that such a negative comment is linked with the presentation of the tender taken into account with award criterion No 1 and, specifically, with one of the qualitative characteristics of the tender, namely clarity. The successful tenderer’s tender therefore obtained the maximum score for that criterion notwithstanding the finding that an important chart required to explain the planning of the project was imperfect, and even though section 3.5 of invitation to specific tender No 10369 requires that tenders be ‘perfectly legible, so that there can be no doubt as to words and figures’.
155    However, even if the assessment of the successful tenderer’s tender in the light of technical award criterion No 1 were capable of being vitiated by an error in that regard, it should be recalled that, in the present case, the applicant’s tender was eliminated on the ground that, after the technical assessment phase, the minimum threshold of points required in order to advance to the subsequent evaluation stages had not been reached, and not as a result of a comparison with the other tenders and, in particular, with the successful tenderer’s tender (see paragraphs 46 to 48 above and the case-law cited).
156    The fact that, in accordance with Article 100(2) of the Financial Regulation and Article 149(3) of the Regulation laying down detailed rules, the PO communicated to the applicant information on the characteristics and relative advantages of the successful tender does not necessarily mean that the technical evaluation conducted by the evaluation committee was carried out on the basis of a comparative analysis of the competing tenders (see, to that effect, Dredging International and Ondernemingen Jan de Nul v EMSA, paragraph 26 above, paragraphs 102 to 108).
157    In any event, the applicant’s argument is irrelevant since it merely alleges error in the assessment of the successful tenderer’s tender without producing evidence to show that, in the absence of that alleged error, its own tender would have received more points (see, to that effect and by analogy, Case T‑554/08 Evropaïki Dynamiki v Commission, paragraph 45 above, paragraphs 113 to 115).
158    It follows from the foregoing considerations that it is not shown that the assessment of the applicant’s tender in the light of technical award criterion No 1 and therefore the score of 5 out of 10 obtained on that basis are vitiated by a manifest error.
–       Technical award sub-criterion No 2.1 ‘Accuracy of the project planning, including breakdown, milestones, time delays, etc.’
159    The applicant observes that the evaluation committee awarded the successful tenderer 9 points out of 10 with regard to technical award sub-criterion No 2.1 even though that tenderer’s project plan and its details were unreadable and requests, in this respect, the Court to order the submission of the Gantt chart. It states that the first negative comment concerning its tender is vague and mistaken, since it included in its tender, and in particular in its proposed Gantt chart, a detailed breakdown of tasks concerning all the relevant items of the specifications. The second negative comment is also unfounded because it emerges from the applicant’s tender that the author had two weeks (weeks 5 and 6) to provide an overview or draft of the new content it wished to integrate to the new website and another 45 days (until the end of week 16) to finalise the content to be migrated into the new system.
160    It should be recalled that, in respect of the evaluation committee’s assessment concerning the applicant’s tender and relating to sub-criterion No 2.1 ‘Accuracy of the project planning, including breakdown, milestones, time delays, etc.’, given a score of 7 out of 10, that committee’s report includes a positive comment and two negative comments:
‘+ the planning respects the limitations laid out in the technical specifications;
- breakdown of tasks not very detailed;
- planning put unnecessary pressure on author to provide content already in week 5 (this is followed by a period of 55 days of migration preparation and another 22 days of content migration).’
161    As regards the first negative comment, the Commission has stated that, in relation to the other tenders received, section 1.1 of the applicant’s tender entitled ‘Work breakdown structure’ was comparatively less detailed, in particular so far as concerns the website design, and that, moreover, the Gantt chart found in section 1.2 of that tender did not show workflows for certain features, such as the OLAF anti-fraud communicators network or the ‘mobile version’.
162    It should be recalled in that regard that explanations or clarifications capable of casting light on the wording of the contested act may, as in the present case, be provided in the course of the proceedings (see, to that effect, Joined Cases 36/59, 37/59, 38/59 and 40/59 Präsident and Others v High Authority [1960] ECR 423, at p. 440; Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I‑865, paragraph 11, and the Opinion of Advocate General Léger in that case, ECR I‑867, point 24). The Court of Justice has held that 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 underlying its decision (see, to that effect, Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 61).
163    It should be noted that a mere formal examination of the applicant’s tender indicates that section 1.1 amounts to the announcement, in addition to the general package ‘Project Management’, of seven work packages, including package 3 relating to the website design, which is followed by a quite brief and rather descriptive comment.
164    In response to the negative comment made by the evaluation committee, the applicant has merely made peremptory statements as to the satisfactory nature of the wording of its tender in the light of the requirements of the tender documentation, stating, inter alia, that it had ‘allocated an entire work package covering all the aspects defined by the [technical specifications]’ so far as concerns the website design, without even indicating the part of the tender concerned.
165    The applicant has also criticised the fact that the evaluation committee had subtracted only one point from the maximum score so far as concerns the successful tenderer’s tender, although the details of the Gantt chart included in that tender were, it claims, ‘unreadable’, but does not establish a link with the evaluation of its own tender in the light of the sub-criterion in question.
166    It is thus apparent that, in accordance with what has been stated in paragraphs 155 to 157 above, the Court must reject the applicant’s argument, which merely highlights an excessively favourable score given to the successful tenderer’s tender in the light of the comments on that tender and does not make any link with the assessment of its own tender in the light of award sub-criterion No 2.1.
167    On the basis of those findings, it may be held that evidence of the manifestly erroneous nature of the negative comment in question has not been produced. In those circumstances, there is no need to order the submission of the Gantt chart contained in the successful tenderer’s tender.
168    Lastly, it should be noted that the applicant claims that the Gantt chart found in section 1.2 of its tender contains all the required workflows as defined by the tender documentation. The applicant adds that ‘the OLAF anti-fraud communicators network is part of the “events calendar” feature presented in [detail in] section 8 of [its] tender, whereas the mobile version is part of the graphical proposal feature presented in detail in section 6.1.2 “Graphical User Interface” of [its] tender’.
169    It must be observed that, besides the fact that the applicant’s observations do not concern the wording of section 1.2 of its tender, which ought to have included the information concerned, that tender does not include a section 8 and that the examination of its section 6.1.2 does not indicate, a priori, the presence of information concerning a version for a mobile device.
170    As for the second negative comment (see paragraph 160 above), the applicant does not dispute that the intervention of the author (OLAF) was required from week 5 for the provision of the content to be transferred to the new website, but claims that that stage did not mark the end of all involvement of that body, which allegedly had until the end of week 16 to finalise that content.
171    It should be noted that those claims of the applicant are not supported by the Gantt chart in section 1.2 of its tender.
172    The first left-hand column of that chart mentions the work packages defined by the applicant in section 1.1 of its tender and, in particular, package 4 entitled ‘Content Integration’ to be carried out between 30 September 2011 and 17 January 2012, that is over 77 days, and including three items, only one of which refers to OLAF.
173    As the Commission pointed out in the defence (without being contradicted by the applicant), in the applicant’s Gantt chart, OLAF is mentioned in parenthesis after each task where its intervention is needed. For the submission of the content to be transferred to the new website, OLAF’s involvement is mentioned under the heading ‘New content collection (OLAF)’ for the period from 30 September 2011 to 13 October 2011 — that being during weeks 5 and 6 — but not for the subsequent tasks related to content integration.
174    The other two indications set out under work package 4 concern the preparation of the migration from 30 September 2011 to 16 December 2011 (55 days), then the migration of the content from 19 December 2011 to 17 January 2012 (22 days), without any mention of OLAF.
175    It should be stated that, in the reply, the applicant did not refer to the Gantt chart, but quoted a passage from section 4.1 of its tender according to which, ‘regarding content, the tenderer will migrate the existing content to be pointed out by OLAF as well as integrate new content to be handed over by OLAF during the course of the project’.
176    That sentence does not contain any information ratione temporis and merely refers in general terms to the action relating to the content of the website, and does not permit the inference, having regard to its evident lack of clarity, that OLAF in fact had 45 days, after the submission of the content to be transferred to the new website, to finalise that content.
177    Accordingly, the committee was entitled, without committing a manifest error of assessment, to evaluate the specific part of the applicant’s tender given over to technical award sub-criterion No 2.1 without seeking potentially relevant information in other parts of the tender at issue (see, to that effect, Case T‑457/07 Evropaïki Dynamiki v EFSA, paragraph 25 above, paragraph 161), which moreover was not available, and to conclude that the ‘planning put unnecessary pressure on [the] author to provide content already in week 5’.
178    It follows that it has not been demonstrated that the assessment of the applicant’s tender in the light of technical award sub-criterion No 2.1 and therefore the score of 7 out of 10 obtained on that basis were vitiated by a manifest error.
–       Technical award sub-criterion No 2.2 ‘Quality of the indicative wireframe(s), including intuitive navigation’
179    The applicant claims that the negative considerations concerning its tender in the light of technical award sub-criterion No 2.2 amount to incorrect comments. In response to the comment that the proposed wireframe was ‘similar to the current page and to the example given in the [t]echnical [s]pecifications’, the applicant claims that its proposal contained many improvements providing strong added value. It claims that it is apparent from the new OLAF internet website implemented by the successful tenderer that (i) the applicant’s proposal offered better content-grouping and elements-highlighting than the implemented solution of the successful tenderer and that (ii) the ‘report fraud button’ is present on each page of the website, corresponding to the applicant’s proposal and the aims of the specifications.
180    It should be recalled that, in respect of the evaluation committee’s assessment concerning the applicant’s tender and relating to sub-criterion No 2.2 ‘Quality of the indicative wireframe(s), including intuitive navigation’, given a score of 9 out of 15, that committee’s report includes two positive comments and three negative comments:
‘+ wireframe quality good (p. 5);
- but no added value (similar to the current page and to the example given in the [t]echnical [s]pecifications);
+ picks up elements of the project objectives;
- the proposal of the legal section is “rigid” and does not provide ideas to make the page more user-friendly;
- report fraud button not requested for this page or other pages (only for the home page).’
181    As a preliminary point, it should be noted that the applicant’s argument is, in particular, based on a comparison of its tender with the new OLAF website.
182    However, as the Commission rightly states, the evaluation committee’s technical evaluation was conducted on the basis of the tenders submitted and the validity of that evaluation as well as the subsequent decision to reject the applicant’s tender cannot be affected by the subsequent implementation of the contract which is the subject of the tendering procedure at issue. In other words, a comparison of the applicant’s tender with the current OLAF website is irrelevant for the purposes of the resolution of the present dispute.
183    First, it should be noted that the first negative assessment of the committee is based on another comparison, namely that between (i) the page proposed by the applicant as figure No 3 of its tender and (ii) the corresponding page of the existing OLAF website and the example provided in the technical specifications, the similarity of which precluded, according to the committee, any added value.
184    The applicant has not produced the page relating to the legal aspects in the original OLAF website in support of its argument seeking to establish the existence of a manifest error of assessment. By contrast, the technical specifications attached to invitation to specific tender No 10369 are set out in Annex 2 to the defence and contain section 6.2 entitled ‘Graphical proposal’, which includes an example — in this case of the page relating to the reporting of fraud — and sets out the 12 factors to be taken into account by the contractor for the creation of a page.
185    The fact remains that the page proposed by the applicant as figure No 3 of its tender presents an obvious similarity with the example provided in the technical specifications, for example so far as concerns, using the applicant’s own words highlighting the characteristics of its proposal, the page title, largely differentiated from the sub-headings, the existence of sub-headings which clearly stand out from the page’s content and provide a quick overview of the available information thus enhancing their ‘scanability’, and a content box at the top of the main or middle column to highlight certain topics.
186    Secondly, as regards the second negative assessment according to which ‘the proposal of the legal section is “rigid” and does not provide ideas to make the page more user-friendly’, it should be noted that the applicant has asserted that the ‘Legal Aspects’ page of its tender presented the content in a very compact view by means of expanding/collapsing headed sub-headings providing a concrete solution for the grouping of that content, increased ‘scanability’ of contents and scrolling minimisation, with the length of the page thus being significantly reduced.
187    The applicant also asserts that, in the ‘Legal Background’ page of the old OLAF website, the full content was displayed on screen, in contrast to the proposed solution.
188    The actual technical solutions proposed by the applicant appear to be capable of contradicting the committee’s negative comment that the applicant’s proposal did not present ‘ideas’ to make the page concerned more user-friendly.
189    In its written pleadings, the Commission acknowledges that the applicant’s proposal contained a number of improvements, such as the reduction of scrolling and the collapsible/expandable headed sections, which were, it claims, taken into account in the committee’s positive comments, but states that the committee did not consider those factors as ‘sufficient … to improve the user-friendliness of the webpage’, given that it would not be easy for the user to quickly scan the page, which would make it difficult to find what he or she is looking for.
190    That last remark as to the inadequacy of the solutions proposed with regard to an improvement in user-friendliness, that is to say ease of use, cannot be reconciled with the committee’s strict and unequivocal comment that there was a lack of such solutions and therefore a lack of added value in the applicant’s proposal.
191    In those circumstances, it must be held that the comment of the evaluation committee appears manifestly excessive.
192    Thirdly, as regards the third negative comment concerning the report fraud button (see paragraph 180 above), the applicant states that it was indeed present on the home page and on several secondary pages, and even on ‘every page’, but that it was ‘precisely the correct suggestion of the [technical specifications]’ and that, in any event, the evaluation committee failed to perceive that that suggestion encouraged cooperation between users and OLAF, which is a goal included within the project objectives of the technical specifications.
193    It should be noted that the applicant refers here to two pages of the technical specifications attached to invitation to specific tender No 10369 describing OLAF’s mission and the objectives of the project, and thus fails to mention section 6.2 of that document, which provides that the contractor must create a ‘How to report fraud’ banner linked to the section with that title, that requirement being stated in point 10 under section 6.2 by the indication that, on the home page, the main content area should include that banner.
194    It is thus apparent that the applicant’s tender did not satisfy the requirements of the technical specifications and that the comment of the committee at issue was therefore not manifestly erroneous. In the context of the contracting authority’s wide margin of discretion, the committee in question was entitled to find that the non-compliance with the specific requirement of the technical specifications relating to the report fraud banner constituted a negative factor.
195    Fourthly, as regards the applicant’s argument seeking to dispute the score obtained by the successful tenderer’s tender in respect of sub-criterion No 2.2 and to establish the existence of a manifest error in the assessment of that tender, in accordance with what has already been stated in paragraphs 155 to 157 and 166 above the Court must reject that argument, which merely points to a score given to the successful tenderer’s tender that is excessively favourable in the light of the comments on that tender, and which does not make any link with the assessment of the applicant’s tender in the light of award sub-criterion No 2.2.
196    As a result of the examination of the assessment of the applicant’s tender in the light of technical award sub-criterion No 2.2, it must be held that, even if the second negative comment could be classified as manifestly erroneous (see paragraph 191 above), it is not shown that the other two negative comments are vitiated by manifest errors. Therefore, a finding that those two negative comments are well founded is sufficient to hold that the evaluation of technical award sub‑criterion No 2.2 and therefore the score of 9 out of 15 awarded to the applicant’s tender in respect of that criterion, far from being based just on a single incorrect comment, is also based on other comments which are free from manifest errors of assessment (see, to that effect, Case T‑50/05 Evropaïki Dynamiki v Commission [2010] ECR II‑1071, paragraph 166, and Case T‑457/07 Evropaïki Dynamiki v EFSA, paragraph 25 above, paragraphs 234 and 259), with the incorrect comment therefore being part of a broader evaluation including several other criteria which were rightly taken into account by the contracting authority.
197    In those circumstances, it must be concluded that the assessment of the applicant’s tender in the light of technical award sub-criterion No 2.2 and therefore the score of 9 out of 15 obtained on that basis are not vitiated by a manifest error.
–       Technical award sub-criterion No 2.3 ‘Quality of two indicative mock-ups, including accurate look and feel’
198    The applicant claims that its mock-up does communicate a strong visual identity of OLAF, in strict compliance with the technical specifications, practices in the market and the guidelines of the Commission in this field. The negative comment ‘redundant information (p. 6: “Welcome to OLAF...”)’ is associated with editorial/content services which did not fall within the technical specifications and therefore should not be evaluated under sub-criterion No 2.3. The applicant further claims that the comment that the design does not provide a good colour scheme is wrong in so far as its proposal was founded on (scientific) principles with regard to colour theory and on Web Content Accessibility Guidelines of the Web Accessibility Initiative. The new OLAF internet website presents the same number of elements as appear in the graphic charter in the applicant’s tender, except for the colour orange which was added by the applicant; the new website itself does not comply with the requirements of the Commission mentioned in its written pleadings as it contains only shades of blue.
199    As regards the evaluation committee’s assessment of the applicant’s tender and concerning sub-criterion No 2.3 ‘Quality of two indicative mock-ups, including accurate look and feel’, given a score of 7 out of 15, that committee’s report includes three positive comments and five negative comments:
‘+ 3 tabs for press releases;
+ mock-up is appealing although
- mock-up does not communicate strong visual identity of OLAF;
+ includes a proposal for a new Report fraud banner;
- lacks a creative approach;
- no clear distinction between type of content on home page (e.g. same colour + column width for headlines and section boxes);
- redundant information (p. 6: “Welcome to OLAF …”);
- the design does not provide a good colour scheme.’
200    First, it should be noted that part of the applicant’s argument is again based on the comparison of its tender with the current OLAF website, which is supposed to show, by itself, the existence of a manifest error in the assessment of that tender.
201    However, for the reasons already stated in paragraph 182 above, that comparison is irrelevant for the purposes of resolving the present dispute; the Court notes that the Commission has also referred to a change in OLAF’s graphical charter since the award of the contract and the necessary subsequent adaptation of the website.
202    Secondly, it must be stated that an examination of the mock-up of the home page produced by the applicant in fact reveals a lack of clarity in the distinction between the types of content, which are not made clear by the use of bright colours or by gradients of colours as in the graphic charter annexed to the technical specifications, which defines the visual identity of OLAF inter alia through the ‘us[e of] bright colours’.
203    As the Commission rightly points out, the general impression given by that home page is that of a bland and relatively vague body, the elements making up the page not standing out with enough sharpness because of a lack of contrast effect; that is also such as to impair the user-friendliness of the website.
204    The theoretical considerations put forward by the applicant as to the use, in its tender, of colour consistent both ‘with colour theory principles’, as indicated in the colour wheel found in Annex 34 to the application, and ‘with accessibility/usability requirements’ stated in the guidelines followed by the Commission, only one of the colours proposed — the colour orange — presenting a better contrast ratio than that adopted in OLAF’s graphic charter, are not capable of reversing the abovementioned specific conclusion based on the overall visual appearance of the home page.
205    Nor does the applicant refer in its argument to specific evidence showing the use, in the mock-ups submitted, of the discretion afforded to the tenderers with regard to OLAF’s graphic charter for the main content area of a page (see point 10 under section 6.2 of the technical specifications), and therefore the use of a sufficient creative approach.
206    Thirdly, the applicant’s claim that the negative comment ‘redundant information (p. 6: “Welcome to OLAF …”)’ is associated with editorial/content services which did not fall within the technical specifications and therefore should not be evaluated under sub-criterion No 2.3 fails to have regard to the broad scope of that sub-criterion. That sub-criterion concerned the assessment of the ‘quality’ of the mock-ups proposed and, in particular, their ‘accurate look and feel’.
207    It should be pointed out in this regard that the entry ‘welcome to OLAF’ does not appear in the content inventory included in Annex 1 to the technical specifications.
208    Within the context of a call for tenders specifically concerning a contract for the ‘revamping’ of a website and the broad discretion of the evaluation committee, that committee was entitled to take the view that the abovementioned entry on the home page of the OLAF website was redundant.
209    It follows that the applicant has not shown that the evaluation of technical award sub-criterion No 2.3 and therefore the score of 7 out of 15 obtained on that basis were vitiated by a manifest error.
–       Technical award sub-criterion No 2.4 ‘Quality of the proposed solutions for the requested functionalities’
210    The applicant asserts that it is paradoxical that the positive comments concerning its tender led to the award of a score of only 5 out of 10. In relation to the comments on the absence of information regarding a mobile version and search engine, the applicant states that the specifications do not require a description of those two elements as part of the specific features of the new website: the only relevant requirement was for the Cascade Style Sheets to be compatible for mobile access, which the applicant clearly explained in its tender, and all the necessary information regarding the search engine appeared in section 2 of its tender. As regards the negative comment ‘Google calendar offer should be avoided (CWCMS tool exists)’, the applicant states that the list of the officially supported applications to be integrated with the CWCMS tool (Corporate Web Content Management System), which can be found online, contains no calendar control module. The Commission’s reference to an XSL tool is irrelevant, since that tool is not a service that can be used to create a functionality.
211    As regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.4 ‘Quality of the proposed solutions for the requested functionalities’, given a score of 5 out of 10, that committee’s report includes two positive comments and three negative comments:
‘+ good general comments;
+ technical description of the functionalities;
- no information on the mobile version;
- no information about search engine (basic search);
- Google calendar offer should be avoided (CWCMS tool exists).’
212    First, the applicant states that its tender received only half of the possible points although it was the subject of two positive comments, and that the paradox arising from such a situation demonstrates the existence of a manifest error of assessment and bias of the evaluation committee to its detriment.
213    It suffices to state that that argument proceeds from a partial reading of the evaluation report in the sense that it omits the reality of three negative comments which were taken into account, with the positive elements, for determining the score objected to, which precludes any allegedly ‘paradoxical’ nature of the evaluation of the applicant’s tender.
214    Secondly, whilst it is true that section 6.7 of the technical specifications does not mention access to the OLAF website for mobile devices, that functionality is clearly part — which the applicant does not dispute — of the list of requirements referred to in section 6.2 of the technical specifications, which refers, in subparagraph (e), to ‘separate CSS (Cascading Style Sheets) for mobile access and printing for all pages’.
215    The applicant claims that it explained in its tender, on six occasions at least, the use of the proposed Cascading Style Sheets which represent all the ways of visualising the website, including standard web, mobile and other clients. However, as the Commission points out, on none of the pages of the applicant’s tender to which it refers is there any reference to access to the OLAF website for mobile devices; the mere mention of the use of the Cascading Style Sheets technique is inadequate in this respect.
216    Thirdly, the basic in-site search functionality is explicitly required in subparagraph (e) of section 6.1.3 of the technical specifications, which the applicant accepts whilst claiming that it clearly proposed that functionality in its tender.
217    It is sufficient, however, to state that the applicant merely referred (i) to section 2 of its tender and to the proposed mock-up corresponding to figure 3, in which only an image of the search box appears, and (ii) to page 21 of the tender which includes section 6.1.7 entitled ‘Search Engine Optimisation’, without stating how the information contained in that section could be relevant in order to explain what search engine and what underlying technology the applicant intended to use.
218    Fourthly, as regards the negative comment ‘Google calendar offer should be avoided (CWCMS tool exists)’, it is not disputed that section 6.4 of the technical specifications, entitled ‘Technical requirements’, asks tenderers to ‘follow the IPG (Information Providers Guide) rules of the Europa website’ and to ‘reuse existing solutions when possible rather than developing customised ones (e.g. DIGIT’s Flexible platform)’, those requirements being based, as the Commission states, according to the Information Providers Guide, on considerable continuity, accuracy and privacy risks linked to the use of third party tools and services, which is therefore prohibited on Europa websites.
219    In section 4.3.1 of its tender, entitled ‘Events Calendar’, the applicant stated that ‘Europa’s Interactive Services do not offer an Events/Calendar management component, therefore the [t]enderer is suggesting integrating the new [OLAF] website with the free service of Google Calendar’.
220    In support of the negative comment made by the evaluation committee, the Commission has noted that, contrary to other tenderers, the applicant had not taken into account the fact that a CWCMS tool, notably a ‘dynamic calendar’ solution based on AJAX (Asynchronous JavaScript and XML) technology, did in fact exist within the Information Providers Guide.
221    It is important to point out that, in the reply, the applicant has not disputed the existence of the abovementioned CWCMS tool, but has called into question its technical efficiency for the creation of the Calendar functionality, which, it claims, would involve the implementation of an external service.
222    However, the evaluation committee’s negative comment at issue, which falls within the broad power of appraisal of the contracting authority in the award of contracts, particularly in a highly technical field as in the present case, is linked to the very existence of the IT tool in question, which is not disputed.
223    In those circumstances, the evaluation committee was entitled to take the view, without making a manifest error, that, having regard to the existence of an IT tool compatible with the requirements of the technical specifications, the reliance on a third party operator’s tool was not appropriate.
224    It follows that the applicant has not shown that the evaluation of award sub‑criterion No 2.4 and therefore the score of 5 out of 10 obtained on that basis were vitiated by a manifest error.
225    For the sake of completeness, even if the negative comment linked to the use of the ‘Google calendar’ service were to be considered to be manifestly erroneous, the finding that the comments relating to the absence of information on a version for mobile devices and on the basic search engine were valid would suffice for it to be concluded that the evaluation of technical award sub-criterion No 2.4 and therefore the score of 5 out of 10 awarded to the applicant’s tender on that basis are not vitiated by a manifest error.
–       Technical award sub-criterion No 2.5 ‘Quality of the proposed solution for handling multiple languages’
226    The applicant claims to have fully satisfied this criterion, for which its tender did not receive the maximum score, by proposing a language-selection dropdown list in the top right of the OLAF banner and an automatic recognition of the language of the user when opening the website in section 5 of its tender.
227    It should be noted that, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.5 ‘Quality of the proposed solution for handling multiple languages’, given a score of 4 out of 5, that committee’s report includes two comments: one positive, the other negative:
‘+ acceptable proposal, includes description of the functionalities of Documentum;
- does not explain which mechanisms will be used to decide language version.’
228    Section 6.5, subparagraph (c), of the technical specifications, relating to ‘Linguistic requirements’, clearly states that ‘[f]or visitors coming from EU countries the browser should open the website by default in their specific language’, in other words, without users having to use the desired language‑selection menu at the outset. That section also provides that English will be the chosen language for visitors not coming from the EU.
229    First, the applicant claims that the evaluation committee wrongly penalised its tender, on the basis of an alleged failure to indicate how a user may switch from one language to another, even though the graphical proposal integrated into its tender clearly showed the language-selection dropdown list in the header.
230    That claim is entirely irrelevant since the presence of a dropdown list to choose between the different languages on the graphical model does not explain how the applicant intended to meet the technical requirements set out in paragraph 228 above.
231    Secondly, the applicant highlights a passage from its tender, found in section 5 entitled ‘Solution for handling multiple languages’, according to which ‘[t]he [t]enderer will exploit the CWCMS mechanisms in place in order to allow visitors from EU countries to visit the OLAF website in their specific language whereas switching to the English language for all other visitors’.
232    Contrary to what the applicant claims, that extract is not capable of showing the existence of a manifest error in the assessment of sub-criterion No 2.5 since it does not contain any description of a technical mechanism leading to the required functionality, but merely refers, in a paraphrase of subparagraph (c) of section 6.5 of the technical specifications, to that functionality.
233    It follows that the applicant has not shown that the evaluation of award sub‑criterion No 2.5 and therefore the score of 4 out of 5 obtained on that basis were vitiated by a manifest error.
–       Technical award sub-criterion No 2.6 ‘Quality of the described development methodology and quality assurance, including analysis, documentation, performance testing, continuous integration, source control, software/tools to be used’
234    The applicant claims that the only negative comment on its tender with regard to technical award sub-criterion No 2.6, namely ‘- the point about testing should have more details’, is unfounded since it follows from section 6.2 of its tender that it committed to offer the full service in accordance with the guidelines of the Commission’s own Information Providers Guide. In addition, since the applicant’s tender has more positive comments than the successful tender, it should normally deserve a higher score.
235    It should be noted that, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.6 ‘Quality of the described development methodology and quality assurance, including analysis, documentation, performance testing, continuous integration, source control, software/tools to be used’, given a score of 8 out of 10, that committee’s report includes two positive comments and a negative comment:
‘+ well described but
- the point about testing should have more details;
+ both automatic and manual testing mentioned.’
236    First, it must be stated that the applicant’s argument relating to the comparison of the number of positive comments of which its tender and that of the successful tenderer were the subject is based on a false premiss.
237    It is clear from the extract from the evaluation report that the applicant’s tender was the subject of two positive comments, like that of the successful tenderer, and not of three as incorrectly stated in the defence, a fact which the Commission acknowledges in the rejoinder.
238    Secondly, the applicant highlights a passage from its tender, found in section 6.2 entitled ‘Quality Assurance’, according to which ‘[a]t the [v]alidation and [c]ompliance, tests conducted for the site’s pages will include the degree of compliance with the applicable standards (e.g. IPG guidelines, W3C standards, WAI guidelines) and other recommendations’ and ‘[f]ull compliance is the general aim’.
239    Contrary to what the applicant claims, that extract is not capable of showing the existence of a manifest error in the assessment of sub-criterion No 2.6 since it is the expression of a general and abstract commitment to comply with the applicable standards, with a general reference to them but without any details regarding the nature of the checks envisaged.
240    It should be remembered that, in section 4.1 of invitation to specific tender No 10369, the Commission drew the tenderers’ attention to the need, in order to obtain the maximum number of points under each of the technical award criteria and sub-criteria, to set out in detail the characteristics of their tenders for the purposes of meeting the requirements of the tender documentation and of enabling the evaluation committee to assess the added value of those tenders.
241    It follows that the applicant has not shown that the evaluation of award sub‑criterion No 2.6 and therefore the score of 8 out of 10 obtained on that basis were vitiated by a manifest error.
–       Technical award sub-criterion No 2.7 ‘Presentation of the long term vision, interoperability, sustainability and potential reusability’
242    The applicant notes that, notwithstanding a tender which complies with only one of four requirements, the successful tenderer obtained 4 points out of a maximum of 5, which is the same number of points that the evaluation committee awarded the applicant’s tender whilst acknowledging that ‘all the requested elements [were] well described’. The applicant states that its tender was fully compliant with the specifications in the sense that it presented detailed suggestions and solutions on achieving all interoperability, sustainability and reusability needs of the project. Consequently, a manifest error of assessment was committed and a discriminatory treatment of the applicant was applied by the evaluation committee.
243    It should be noted that, as regards the evaluation committee’s assessment relating to the applicant’s tender and concerning sub-criterion No 2.7 ‘Presentation of the long term vision, interoperability, sustainability and potential reusability’, given a score of 4 out of 5, that committee’s report includes two comments:
‘+ all the requested elements are well described;
- sometimes quite general — describing the terms (interoperability, sustainability, and reusability) rather than giving concrete suggestions for this project.’
244    First, it must be stated that the applicant merely repeated, in the application, passages from section 7 of its tender deemed to show the existence of detailed suggestions and solutions on achieving all interoperability, sustainability and reusability needs of the project.
245    However, it is important to note that the applicant is required to produce specific evidence showing that the committee’s criticisms of its tender are manifestly incorrect and that the score awarded on the basis of sub-criterion No 2.7 is for that reason manifestly unjustified (see, to that effect, Case T‑457/07 Evropaïki Dynamiki v EFSA, paragraph 25 above, paragraph 248).
246    A mere reference to certain passages of the tender, without other explanations, is not such as to satisfy the abovementioned burden of proof.
247    In any event, an examination of the supposedly relevant passages of the tender and even of section 7 in its entirety indicates that the presentation of the parameters referred to in sub-criterion No 2.7 was descriptive in approach, in the form, primarily, of a mention of the technical benefits expected from the use of the Documentum CWCMS platform and the Information Providers Guide which the contractor had to use in accordance with section 3 and subparagraph (b) of section 6.4 of the technical specifications.
248    Secondly, as regards the claim of ‘bias’ in favour of the successful tenderer or of ‘discriminatory treatment’ allegedly suffered by the applicant, it must be observed that it is part of the challenge to the score obtained by that tenderer’s tender and of an argument designed to show the existence of a manifest error in the assessment of that tender.
249    The applicant’s argument, which merely points to an excessively favourable score given to the successful tenderer’s tender in the light of the comments of which that tender was the subject, and which does not make any link with the assessment of its own tender in the light of award sub-criterion No 2.7, cannot succeed, in accordance with what has already been stated in paragraphs 155 to 157, 166 and 195 above.
250    It follows that the applicant has not shown that the evaluation of award sub‑criterion No 2.7 and therefore the score of 4 out of 5 obtained on that basis were vitiated by a manifest error.
–       Technical award criterion No 3 ‘Creativity of the proposed solutions’
251    The applicant argues that the negative comments concerning its tender in the light of technical award criterion No 3 contradict the comments provided under other criteria. All the aspects related to the creativity of the website proposed by the applicant as well as its innovative suggestions are fully described and justified in detail in section 3 of the tender. The allegedly ‘traditional and rather bland’ presentation of the solutions proposed by the applicant contains, moreover, remarkable similarities to the website created by the successful tenderer.
252    As regards the evaluation committee’s assessment relating to the applicant’s tender and concerning criterion No 3 ‘Creativity of the proposed solutions’, given a score of 13 out of 20, that committee’s report includes the following comment:
‘The website design offers a traditional and rather bland presentation. Mock-ups and wireframes are “correct” but the proposed improvements for the structure and the look and feel are neither convincing nor appealing.’
253    First, it is again necessary to reject the applicant’s argument based on the comparison between its tender and the current OLAF website, bearing in mind that the execution of the contract in question can have no bearing on the validity of the technical evaluation, by the evaluation committee, of the initial tenders on the basis of the technical specifications (see also paragraphs 181, 182, 200 and 201 above).
254    Secondly, the applicant claims that there is a contradiction in the comments of the evaluation committee and notes, in this respect, that the mock-up is described as ‘appealing’ within the context of the assessment of sub-criterion No 2.3, whereas, so far as concerns criterion No 3, that committee states that ‘[m]ock-ups and wireframes are “correct” but [that] the proposed improvements for the structure and the look and feel are neither convincing nor appealing’.
255    Apart from the fact that the description as appealing does not apply to the same concept in the two situations, that is to say to the mock-up in itself for sub‑criterion No 2.3 and the proposed improvements for the structure and the look and feel for criterion No 3, it should be noted that the evaluation committee clearly emphasised, as regards that sub-criterion, a lack of creative approach of the applicant’s proposal (see paragraph 199 above). Likewise, that committee highlighted the lack of added value for the wireframe provided in the applicant’s tender (figure No 3) within the context of the assessment of sub-criterion No 2.2 (see paragraph 180 above). Even though it has been held in paragraphs 191 and 196 above that the comment that the wireframe proposed by the applicant was entirely lacking in added value appeared excessive, the committee clearly found an inadequacy in the improvements proposed by the applicant.
256    It is thus apparent that the evaluation of the applicant’s tender in the light of criterion No 3 does not reveal any inconsistency with the assessments of other criteria.
257    Thirdly, the applicant claims that the evaluation committee’s comment concerning criterion No 3 is entirely unfounded, but, in order to justify its claim, it merely makes a reference to section 3 of its tender, without seeking to demonstrate how, concretely and specifically, that part of its tender should have led to a higher score than that obtained under that criterion.
258    It follows that the applicant has not shown that the evaluation of award criteria No 3 and therefore the score of 13 out of 20 obtained on that basis were vitiated by a manifest error.
259    It follows from the above considerations that the third plea must be dismissed, as must, therefore, the application for annulment of the decision rejecting the applicant’s tender as a whole.
260    In accordance with what has been stated in paragraph 26 above, it is not necessary to examine the application for annulment of the decision to award the contract to the successful tenderer, since that application is inadmissible in the absence of annulment of the decision rejecting the applicant’s tender.
261    It follows that the action for annulment must be dismissed in its entirety.
The claim for damages
262    By its second and third heads of claim (paragraph 18 above), the applicant requests the Court to order that the Commission pay it damages. First, it requests a sum of EUR 31 977, which corresponds to the loss of income, in respect of the ‘damages suffered on account of the tendering procedure in question’, namely the loss of the contract, and, in the alternative, in respect of the loss of opportunity to perform the contract in question and to conclude the other specific contracts under the framework contract. Secondly, the applicant requests a sum of EUR 20 000 for the ‘loss of opportunity’ and damage suffered to its reputation and credibility.
263    Under the second paragraph of Article 340 TFEU, the Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
264    According to established case-law, non-contractual liability on the part of the European Union is incurred under the second paragraph of Article 340 TFEU if a set of conditions is fulfilled, namely the unlawfulness of the conduct alleged against the institution, the fact of damage and the existence of a causal link between the conduct in question and the damage complained of. It follows that the European Union’s liability may be incurred only if all those conditions are satisfied (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44). 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 (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraphs 19 and 81, and Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37).
265    In the present case, first, it has been found that the applicant is not justified in claiming that the decision rejecting its tender is unlawful (see paragraph 259 above). Consequently, the claim for damages must be dismissed in that it is based on the alleged unlawfulness vitiating that decision and it is unnecessary to consider the other conditions for non-contractual liability (see, to that effect, Nexans France v Joint Undertaking Fusion for Energy, paragraph 26 above, paragraph 182).
266    Secondly, as regards the extent of the liability that the Commission might incur on account of the award decision, the legality of which was not assessed in the context of the examination of the claims for annulment (see paragraph 260 above), it is appropriate to consider whether a causal link may be established between the heads of damage alleged by the applicant and that decision (see, to that effect, Nexans France v Joint Undertaking Fusion for Energy, paragraph 26 above, paragraph 183).
267    In that regard, as it follows from the examination of the legality of the decision rejecting the applicant’s tender that the applicant could not claim that the contract should have been awarded to it, since its tender was excluded at the technical evaluation stage, no causal link can be established between the various heads of damage alleged by the applicant and the decision to award the contract to the successful tenderer.
268    It follows from the foregoing considerations that the claims for damages must be dismissed and, consequently, the action must be dismissed in its entirety.
Costs
269    Under Article 87(2) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.
Martins Ribeiro
Gervasoni
Madise
Delivered in open court in Luxembourg on 26 September 2014.
[Signatures]
* Language of the case: English.