JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
8 December 2011 (*)
(Public service contracts – Tendering procedure – Provision of information technology services relating to the hosting, management, enhancement, promotion and maintenance of an internet portal – Rejection of a tender and award of the contract to another tenderer – Selection criteria – Award criteria – Non‑contractual liability)
In Case T‑39/08,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
European Commission, represented by E. Manhaeve and N. Bambara, acting as Agents, assisted by J. Stuyck, lawyer,
defendant,
APPLICATION, first, for annulment of the Commission Decision of 12 November 2007 rejecting the tender submitted by the applicant in open call for tenders EAC/04/07 relating to the hosting, management, enhancement, promotion and maintenance of the European Commission’s internet portal on eLearning (elearningeuropa.info) (OJ 2007, S 87) and awarding the contract to another tenderer and, second, for damages,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot (Rapporteur), President, M. E. Martins Ribeiro and H. Kanninen, Judges,
Registrar: K. Pochéc, Administrator,
having regard to the written procedure and further to the hearing on 24 March 2011,
gives the following
Judgment
Background to the dispute
1        The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law, active in the field of information technology and communications.
2        By a notice of 5 May 2007, published in the Supplement to the Official Journal of the European Union (OJ 2007, S 87) under reference 2007/S 87‑105977, the Commission of the European Communities launched open call for tenders EAC/04/07 relating to the hosting, management, enhancement, promotion and maintenance of the [Commission’s] internet portal on eLearning (‘the contract in question’).
3        The deadline for submission of tenders was 5 July 2007.
4        By e-mail of 5 July 2007, the Directorate-General (DG) for Education and Culture informed the applicant that, owing to delays in publishing the answers to the latest questions relating to the call for tenders and in order to enable all potential tenderers to take account of those answers, it had decided to extend the deadline for submission of tenders to 9 July 2007.
5        On 9 July 2007 the applicant submitted its tender in response to the call for tenders referred to above.
6        By letter of 12 November 2007 (‘the contested decision’) DG ‘Education and Culture’ informed the applicant that its tender had not been accepted and gave the reasons for that rejection. It also stated the name of the successful tenderer, the price of the successful tender and how it compared with the applicant’s tender, and specified that the contract would not be signed with the successful tenderer for a period of fourteen calendar days from the day following the date on which the letter was sent.
Procedure and forms of order sought
7        By application lodged at the Registry of the Court on 22 January 2008, the applicant brought the present action.
8        Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing on 24 March 2011.
9        The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to produce a copy of the evaluation committee’s report in full, including the relative advantages of the successful tender and a copy of that tender;
–        order the Commission to pay the applicant damages for the loss sustained as a result of the contract being awarded to another tenderer, in the amount of EUR 441 564.50;
–        order the Commission to pay the costs, even if the action is dismissed.
10      The Commission contends that the Court should:
–        dismiss the action for annulment;
–        declare the action for damages inadmissible or, in the alternative, unfounded;
–        order the applicant to pay the costs.
Law
The application for annulment
11      In support of its application for annulment, the applicant raises, in essence, four pleas in law. The first plea alleges infringement of the obligation to state reasons and of the principle of transparency. The second plea alleges breach 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), as amended, (‘the Financial Regulation’) and 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), as amended (‘the Implementing Rules’). The third plea alleges that the Commission made manifest errors of assessment in its evaluation of the applicant’s tender. The fourth plea alleges infringement of the principle of non-discrimination between tenderers.
12      The second plea will be examined first.
13      This plea is divided into three parts. The first part alleges that during the award phase of the contract in question the Commission applied criteria that had not been communicated to tenderers in advance, in breach of Article 98 of the Financial Regulation and Article 146 of the Implementing Rules. The second part alleges that the criteria for awarding the contract in question were divided into sub-criteria to which the Commission accorded a weighting that was not communicated to the tenderers in advance, infringing the principle of transparency. The third part alleges that during the award phase of the contract at issue the tenders were evaluated by reference to criteria that may be used only during the phase of selecting tenderers, in breach of Article 97 of the Financial Regulation and Article 138 of the Implementing Rules.
14      The third part of that plea will be considered first.
15      The applicant argues that the Commission breached Article 97(1) of the Financial Regulation and Article 138(2) of the Implementing Rules by, as the heading of the award criterion set out at point 10.1.3 of the tender specifications shows, taking into account the tenderers’ experience in the fields covered by that contract during the award phase of the contract in question, even though that experience could be taken into account only during the phase of selecting tenderers.
16      The Commission responds that it had the right to take the tenderers’ experience into account during both the phase of selecting those tenderers and the award phase of the contract in question. First, the conciseness of Article 97 and the fact that the list of award criteria in Article 138(2) of the Implementing Rules is not exhaustive gives the Commission a broad discretion in assessing the factors to be taken into account for the purpose of awarding a contract following a call for tenders. Secondly, it submits that it examined different aspects of the tenders at each phase. It thus argues that, during the selection phase, the tenderers’ experience in the fields covered by the contract in question was evaluated, whereas, during the award phase, the quality of the human resources that the tenderers intended to allocate to performing the contract was evaluated.
17      It should be recalled that under Article 97(1) of the Financial Regulation ‘[c]ontracts 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) [of that regulation] has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders’.
18      It follows that a distinction must be drawn between selection criteria and award criteria. Indeed, the examination of the tenderers’ capacity to perform the contract and the award of the contract are two distinct procedures and are governed by different rules (see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 15 and 16; Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 26; and Case C‑199/07 Commission v Greece [2009] ECR I‑10669, paragraph 51).
19      The tenderers’ capacity to perform the contract is to be checked by the authority awarding the contract in accordance with the selection criteria, that is to say, the criteria of economic and financial capacity and of technical capacity referred to in Articles 136 and 137 of the Implementing Rules (see, by analogy, Beentjes, paragraph 18 above, paragraph 17; Lianakis and Others, paragraph 18 above, paragraph 27; and Commission v Greece, paragraph 18 above, paragraph 52).
20      By contrast, the award of the contract is based on the criteria set out in Article 97(2) of the Financial Regulation, namely the lowest price when the contract is awarded by the automatic award procedure, or the tender offering the best value for money, pursuant to Article 138(2) of the Implementing Rules (see, by analogy, Beentjees, paragraph 18 above, paragraph 18; Lianakis and Others, paragraph 18 above, paragraph 28; and Commission v Greece, paragraph 18 above, paragraph 53). Under the latter provision, the tender offering the best value for money is 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.
21      However, although, as is shown by the use of the expression ‘such as’, Article 138(2) of the Implementing Rules does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities in the award phase 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 aimed at identifying the tender offering the best value for money (see, by analogy, Beentjees, paragraph 18 above, paragraph 19; Lianakis and Others, paragraph 18 above, paragraph 29; and Commission v Greece, paragraph 18 above, paragraph 54).
22      Therefore, award criteria cannot include criteria that are not aimed at identifying the tender offering the best value for money, but are instead essentially linked to the evaluation of the tenderers’ technical and professional capacity to perform the contract in question (see, by analogy, Lianakis and Others, paragraph 18 above, paragraph 30; and Commission v Greece, paragraph 18 above, paragraph 55).
23      In particular, a criterion based on the tenderers’ experience concerns the tenderers’ ability to perform a contract and therefore does not constitute an ‘award criterion’ for the purposes of Article 138 of the Implementing Rules (see, by analogy, Lianakis and Others, paragraph 18 above, paragraph 31; and Commission v Greece, paragraph 18 above, paragraph 56).
24      Moreover, where a contract is awarded on the basis of the tender offering the best value for money, the quality of the tenders must be evaluated on the basis of the tenders themselves and not on the basis of selection criteria, such as the technical or professional capacity of the tenderers, which were checked at the selection stage and which cannot be taken into account again for the purpose of comparing the tenders (judgments in Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraph 158; Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 86; and judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 101; see, to that effect, Beentjes, paragraph 18 above, paragraph 15).
25      In the present case, it is clear from point 10 of the tender specifications that the contract was to be awarded to the bid offering the best value for money.
26      It should be noted that, as the Commission rightly maintains, the tenderers’ experience in the fields covered by the contract in question was taken into account in the evaluation, during the selection phase, of the tenderers’ technical and professional capacity. Indeed, under point 9.2 of the tender specifications, tenderers were to have, in particular, ‘significant experience in hosting of web services and in the development, running and maintenance of portals and databases’ (point 9.2.1.1 of the tender specifications), ‘a team with the knowledge of the education and training sector and the language abilities necessary to carry out the work required’ (point 9.2.1.2 of the tender specifications) and ‘experience in projects requiring high quality editorial work’ (point 9.2.1.3 of the tender specifications).
27      In that regard, it is not disputed that the economic, financial, professional and technical capacity of the applicant was positively evaluated by reference to the selection criteria during the selection phase.
28      The applicant’s tender was consequently examined in the award phase of the contract in question.
29      One of the qualitative award criteria that the Commission applied, set out at point 10.1.3 of the tender specifications, is ‘[t]he experience of the Tenderer in similar large international and multilingual projects as well as in the fields of education and training’. It follows from that point that in order to satisfy that criterion, the tenders had to contain ‘a summary of services provided by the Tenderer relevant to the contract along with a list of the web addresses of any relevant sites managed by the Tenderer.’
30      The contested decision stated that the applicant’s tender received 25 points out of 30 for that criterion, while that of the successful tenderer received 29 points out of 30, and that the evaluation committee considered that the applicant ‘was very experienced in providing web services for the European Commission, however was not specialised in the area of education and training or eLearning’.
31      The applicant argues that the Commission, in applying the criterion set out at point 10.1.3 of the tender specifications, took into account the tenderers’ experience in the fields covered by the contract in question during the award phase of that contract, even though it was entitled to take that criterion into account only during the phase of selecting tenderers.
32      It must therefore be determined whether the Commission was entitled to reject the applicant’s tender and award the contract in question on the basis, inter alia, of the criterion set out at point 10.1.3 of the tender specifications, which is ‘[t]he experience of the Tenderer in similar large international and multilingual projects as well as in the fields of education and training’.
33      It should be noted that the Commission, as it correctly maintains, evaluated the quality of the human resources proposed by the tenderers during the award phase of the contract in question. As is clear from the tender specifications, the award criterion set out at point 10.1.2 was intended to evaluate ‘[t]he quality and adequacy of the proposed technical and organisational arrangements, including the appropriateness of the staff to the tasks which are proposed for them’. In order to evaluate the tenders by reference to that criterion, tenderers were in particular asked to provide ‘the CVs of the staff proposed by the Tenderer, together with specifications of the role to be performed by each member of staff’. In that regard, the assessment of the applicant’s tender in the contested decision states that the list of CVs provided by the applicant showed the quality of the team members and their international experience, but the roles and functions of the content management team were not sufficiently clear.
34      However, as the very wording of point 10.1.3 of the tender specifications shows, during the award phase the Commission evaluated the tenders on the basis of the tenderers’ experience in the fields covered by the contract in question, relying on a summary of the services provided and the websites managed by the tenderers.
35      That finding is confirmed by the Commission’s assessment in the contested decision that the applicant was very experienced in providing web services for the Commission, but was not, however, specialised in the area of education and training or eLearning.
36      At paragraph 93 of the defence, the Commission also justifies its assessment by arguing that the applicant proved in its tender that it provides a very wide range of computer and web-based services, but that of the 134 examples that it cited, only four relate to fields relevant to the contract in question.
37      Therefore, contrary to its contention, the Commission evaluated the tenderers’ experience in the fields covered by the contract in question not only during the selection phase, but also during the award phase.
38      It follows from the foregoing that in applying the criterion set out at point 10.1.3 of the tender specifications during the award phase, the Commission did not evaluate the quality of the tenders solely on the basis of the tenders themselves, but also by reference to the tenderers’ experience in the fields covered by the contract.
39      As is clear from the principles recalled at paragraphs 22 to 24 above, a criterion based on the tenderers’ experience concerns their technical and professional capacity to perform the contract in question and cannot therefore be aimed at identifying the tender offering the best value for money within the meaning of Article 97(2) of the Financial Regulation and Article 138(2) of the Implementing Rules.
40      Therefore, the Commission was not entitled to base the award of the contract in question on the criterion of the tenderers’ experience in the fields covered by the contract in question.
41      It should be added that, as is clear from the criteria at points 9.2.1.1, 9.2.1.2 and 9.2.1.3 of the tender specifications, reproduced at paragraph 26 above, the applicant’s experience in the fields covered by the contract in question had already been evaluated during the selection phase, under technical and professional capacity. As follows from the case-law cited at paragraph 24 above, it could not therefore be taken into account again for the purposes of comparing the tenders during the award phase.
42      Consequently, it must be held that, by having rejected the applicant’s tender and awarded the contract to another tenderer at the end of the award phase of the contract in question on the basis, inter alia, of a criterion which was not capable of constituting an award criterion for the purposes of Article 97(1) of the Financial Regulation and Article 138(2) of the Implementing Rules, the Commission infringed those provisions.
43      Consequently, the contested decision must be annulled, there being no need to rule on the other parts of the present plea, the other pleas or on the application for measures of organisation of procedure.
The application for damages
44      The applicant seeks an order, on the basis of Articles 235 EC and 288 EC, requiring the Commission to pay the sum of EUR 441 564.50 by way of compensation for the loss caused by the contested decision, which corresponds to the estimated gross profit that it would have made from performing the contract in question had it been awarded that contract.
45      According to settled case-law, the European Union’s non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct by its institutions is dependent on the coincidence of a series of conditions: the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between the conduct alleged and the damage complained of (Case 153/73 Holtz & Willemsen v Council and Commission [1974] ECR 675, paragraph 7; Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its entirety without it being necessary to examine the other preconditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81).
46      The condition relating to damage requires that the damage for which compensation is sought be actual and certain, which it is for the applicant to prove (Case C‑243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 27, and judgment of 16 July 2009 in Case C‑481/07 P SELEX Sistemi Integrati v Commission, not published in the ECR, paragraph 36). It is for the applicant to adduce conclusive proof as to the existence and extent of the damage it alleges (Case C‑362/95 Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 31, and SELEX Sistemi Integrati v Commission, paragraph 36).
47      In that regard, it follows from the case-law that the action in support of which damage resulting from loss of profit is claimed must be dismissed, because the damage at issue is not real and existing, but future and hypothetical. Indeed, the success of such an action presupposes that, in the absence of the unlawful conduct alleged against the Commission, the tenderer whose tender was rejected was entitled to be awarded the contract. However, even if the evaluation committee proposed to award that tenderer the contract, the contracting authority is not bound by the evaluation committee’s proposal but has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (see, to that effect, Case T‑13/96 TEAM v Commission [1998] ECR II‑4073, paragraph 76 and the case-law cited, and Case T‑160/03 AFCon Management Consultants and Others v Commission [2005] ECR II‑981, paragraph 113).
48      In the present case, the damage claimed by the applicant is the loss of profit following the award of the contract to another tenderer.
49      Since such damage is not real and certain, the application for damages must be dismissed.
Costs
50      Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
51      As the Commission has been unsuccessful, inasmuch as the contested decision has been annulled, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Annuls the Commission Decision of 12 November 2007 rejecting the tender submitted by the Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in open call for tenders EAC/04/07 relating to the hosting, management, enhancement, promotion and maintenance of the European Commission’s internet portal on eLearning (elearningeuropa.info), and awarding the contract to another tenderer;
2.      Dismisses the application for damages;
3.      Orders the Commission to bear its own costs and to pay those incurred by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis.
Truchot
Martins Ribeiro
Kanninen
Delivered in open court in Luxembourg on 8 December 2011.
[Signatures]
* Language of the case: English.