JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
20 October 2011 (*)
(Public service contracts – Tendering procedure – Provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council – Rejection of a tender – Obligation to state the reasons on which a decision is based)
In Case T­‑57/09,
Alfastar Benelux SA, established in Ixelles (Belgium), represented by N. Keramidas, lawyer,
applicant,
v
Council of the European Union, represented by M. Balta, M. Vitsentzatos and M. Robert, acting as Agents,
defendant,
APPLICATION, first, for annulment of the Council’s decision of 1 December 2008 to reject the tender submitted by the Alfastar-Siemens consortium, composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council (OJ 2008/S 91‑122796) and to award the contract to another tenderer and, secondly, for damages,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 13 April 2011,
gives the following
Judgment
Background to the dispute
1        By a contract notice of 10 May 2008, published in the Supplement to the Official Journal of the European Union (OJ 2008 S 91) under reference 2008/S 91‑122796, the Council of the European Union launched Call for Tenders UCA‑218-07 (‘Technical maintenance – helpdesk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council’).
2        The contract award procedure took the form of a restricted procedure. Under that procedure all economic operators were entitled to apply to take part, but only those candidates which met the selection criteria and which received a written invitation to tender were entitled to submit a tender.
3        On 12 June 2008, the applicant, Alfastar Benelux SA, and Siemens IT Solutions and Services SA (‘the Alfastar-Siemens consortium’) applied to take part jointly in the contract award procedure.
4        By letter dated 8 August 2008, the contracting authority invited the Alfastar‑Siemens consortium to submit a tender.
5        On 3 October 2008, the Alfastar-Siemens consortium submitted a tender.
6        On 1 December 2008, the Council sent the Alfastar-Siemens consortium a decision informing it that the contract had been awarded to another tenderer and that it had therefore not been awarded to the Alfastar-Siemens consortium (‘the contested decision’).
7        On 3 December 2008, the Alfastar-Siemens consortium requested inter alia further information from the Council, which, by letter of 10 December 2008, sent it information on the scores the consortium had obtained and those obtained by the successful tenderer.
8        By letter dated 12 December 2008 and by fax of 15 December 2008, the Alfastar‑Siemens consortium requested the Council to re-examine its tender and that submitted by the successful tenderer, claiming that the result of the evaluation was incorrect.
9        On 18 December 2008, the Council replied to the Alfastar-Siemens consortium that the tenders would not be re-examined.
Procedure and forms of order sought
10      By application lodged at the Registry of the Court on 9 February 2009, the applicant brought the present action.
11      By separate document lodged at the Court Registry on 25 May 2009, the Council raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court.
12      On 21 August 2009, the applicant submitted observations on the plea of inadmissibility raised by the Council.
13      On 22 October 2009, the Court (Fifth Chamber) made an order reserving its decision on the plea of inadmissibility for the final judgment and reserving the costs.
14      As a result of the changes to the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was consequently allocated.
15      Upon hearing the report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure.
16      The parties presented oral argument and replied to the questions put by the Court at the hearing, which took place on 13 April 2011.
17      The applicant claims that the Court should:
–        reject the plea of inadmissibility in its entirety and consider the substance of the case;
–        annul the contested decision;
–        order the Council to pay the applicant damages in the amount of EUR 2 937 902 or a proportion of that amount according to the ‘date of annulment’ of the contested decision;
–        order the Council to pay the costs, even if the application is dismissed.
18      The Council contends that the Court should:
–        declare the application for annulment of the contested decision and the claim for damages inadmissible;
–        in the alternative, dismiss the application for annulment as unfounded;
–        also in the alternative, dismiss the claim for damages as unfounded, or, failing that, limit it to an amount resulting from the application of established case-law;
–        order the applicant to bear the costs.
19      In the rejoinder, the Council stated that, in the light of the Court’s judgment in Case T‑50/05 Evropaïki Dynamiki v Commission [2010] ECR II‑0000, paragraphs 38 to 41, in which the Court accepted that a member of a consortium was entitled to challenge the contracting authority’s decision not to select the tender submitted by that consortium and to award the contract at issue to another tenderer, it was withdrawing its plea of inadmissibility. At the hearing, the Council confirmed that it withdrew its plea of inadmissibility with regard to both the application for annulment and the claim for damages.
Law
The claim for annulment
20      The applicant raises four pleas in law in support of its claim for annulment. The first plea alleges manifest errors of assessment. The second plea alleges infringement of the principles of equal treatment and transparency. The third plea relates to the existence of inconsistencies and inaccurate information in the call for tenders. The fourth plea alleges infringement of the obligation to state reasons.
21      It is appropriate to consider first of all the fourth plea, alleging infringement of the obligation to state reasons.
22      The applicant claims that the Council infringed 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’), 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 Implementing Rules’), and Article 41 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). In that regard it points out that, in response to its request of 3 December 2008 seeking further information, the Council, in its letter of 10 December 2008, sent it a table containing the scores received by the Alfastar-Siemens consortium and those received by the successful tenderer. The applicant also claims that that letter does not include any other extracts from the evaluation report, that there are no comments in it on the bids of the two tenderers, and that therefore it does not contain enough information about the advantages of the bid submitted by the successful tenderer.
23      The Council considers that it did give adequate reasons for its decision, relying in that regard on the case-law. It points out that the applicant was given the name of the successful tenderer and, in the form of a table, the scores received by that tenderer and those received by the Alfastar-Siemens consortium for each technical award criterion, together with a comparison of their financial offers, and the applicant was reminded that, according to point 14 of the tendering specifications, the intention was to award the contract to the tenderer offering the most economically advantageous tender. It considers that its replies, combined with the very precise and detailed drafting of the tendering and technical specifications, further allowed the applicant to identify immediately any alleged weak points in the evaluation procedure, to discuss them with the Council and to challenge them before the Court.
24      As a preliminary point, it should be noted that where, as in the present case, the European Union institutions have broad powers 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 adequate reasons for its decisions. Only in this way can the European Union judicature verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (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).
25      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, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
26      Also, the specific rules regarding the statement of reasons for decisions rejecting bids submitted by tenderers during a procurement procedure and awarding the contract to another tenderer that are applicable in the present case are laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
27      It is clear from those provisions, and from this Court’s case-law, that the European Union institutions fulfil their obligation to state reasons if they confine themselves first to informing unsuccessful tenderers immediately of the reasons for the rejection of their tenders and then, subsequently, if expressly requested to do so, provide to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected and the name of the successful tenderer, within 15 calendar days from the receipt of a written request (see, to that effect, Case T‑465/04 Evropaïki Dynamiki v Commission, cited in paragraph 24 above, paragraph 47).
28      Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights, and, on the other, to enable the Court to exercise its power of review (Case T‑465/04 Evropaïki Dynamiki v Commission, cited in paragraph 24 above, paragraph 48).
29      Moreover, if the institution concerned sends a letter in response to a request from an applicant for additional explanations concerning a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. Observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought (VIP Car Solutions v Parliament, cited in paragraph 24 above, paragraph 73).
30      The applicant’s arguments must be examined in the light of those considerations.
31      In order to determine in the present case whether the requirement to state reasons laid down in the Financial Regulation and the Implementing Rules is met, it is necessary to consider the content of the contested decision and of the letter of 10 December 2008, sent to the applicant by the Council in reply to the applicant’s letter of 3 December 2008 requesting a copy of the evaluation report and a meeting in order to obtain an appropriate evaluation of the tender submitted by the Alfastar-Siemens consortium. It must be stated that the applicant’s letter undoubtedly constitutes a request in writing, within the meaning of Article 149(3) of the Implementing Rules, for additional information about the reasons for the rejection of the consortium’s bid and about the characteristics and relative merits of the successful tenderer’s bid.
32      The report drawn up by the committee evaluating the tenders, which was annexed to the defence and therefore sent after the application was lodged, cannot be taken into account when considering the statement of reasons for the contested decision. In the light of the case-law cited in paragraph 29 above, that report cannot be regarded as information available to the applicant at the time the action was lodged.
33      In the contested decision, the Council informed the Alfastar-Siemens consortium that the tender it had submitted had not been selected since it did not offer the best quality/price ratio.
34      After the applicant made its request in writing on 3 December 2008, the Council replied to it by letter of 10 December 2008, observing that point 14 of the tendering specifications stated that the contract would be awarded to the most economically advantageous tender, giving the name of the successful tenderer and attaching the following table:
35      Thus the reasons relating to the evaluation of the Alfastar-Siemens consortium’s bid and those relating to the successful tenderer’s bid are given merely in the form of a table showing the scores obtained by the two tenderers in respect of each award criterion, the result of the evaluation of each tenderer’s bid, and the final result assigned to them by applying the formula appearing in point 14 of the tendering specifications in order to determine the best quality/price ratio.
36      It is, therefore, clear that by acting in this way, the Council did not correctly comply with its obligation to state reasons, since its letter of 10 December 2008 does not meet the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
37      There is not even a brief comment on the Alfastar-Siemens consortium’s bid or the successful tenderer’s bid, in either the contested decision or the letter of 10 December 2008, accompanying the table containing the scores awarded in respect of each award criterion, which would enable the applicant to understand the reasons why the consortium’s bid was not selected.
38      The table annexed to the letter of 10 December 2008 allowed the applicant to make a direct comparison, in respect of each technical award criterion, between the scores awarded to the Alfastar-Siemens consortium and those obtained by the successful tenderer, which constitutes some information. However, in the absence of any comments explaining the reasons why the Council considered that the tender submitted by the Alfastar-Siemens consortium was less satisfactory than that submitted by the successful tenderer, the applicant is not in a position to know the reasons for the contested decision. Such details would appear to be essential in the present case in order that the applicant may be in a position to understand, in addition to the figures provided by the Council, the reasons why the Alfastar‑Siemens consortium’s bid was considered to have a quality/price ratio that was less good than that of the successful tenderer. In that regard, it should be noted that in another case the presence of such comments constituted one of the factors taken into account by the Court of Justice and the General Court in order to consider that the contracting authority had met its obligations as regards the statement of reasons (see, to that effect, Case C‑­476/08 P Evropaïki Dynamiki v Commission [2009] ECR II‑0000, paragraphs 26 to 29, upholding the judgment of 10 September 2008 in Case T­‑59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 126 to 129).
39      Thus, merely providing the scores awarded in respect of the various award criteria was too abstract a form of reasoning to enable the applicant to determine the specific reasons which led the contracting authority to decide, in the exercise of its broad discretion, that the bid submitted by the successful tenderer was better from the quality point of view than that submitted by the Alfastar-Siemens consortium.
40      Furthermore, in the absence of explanatory comments on the abovementioned bids, the scores awarded by the contracting authority, as set out in the table, represented merely the outcome of the evaluation conducted by the committee evaluating the tenders and not the evaluation itself or a brief summary of that evaluation. In the absence of information concerning the evaluation itself, it must be held that the applicant was not in a position in the present case to understand the various scores which the contracting authority awarded to the Alfastar‑Siemens consortium’s tender in respect of the different technical award criteria.
41      Nor, for all those reasons, is the Court in a position properly to review the lawfulness of the contested decision and determine in particular whether that decision contains a manifest error of assessment.
42      In those circumstances, it must be held that the contested decision is flawed by inadequate reasoning. In that regard, the Council does not plead or, a fortiori, demonstrate that there are any exceptional circumstances that would justify clarification of the reasons for the contested decision after the present action was brought.
43      The decision of 1 December 2008 must therefore be annulled, without there being any need to adjudicate on the other pleas put forward by the applicant.
The claim for damages
44      As a preliminary point, it should be stated that the only head of damage claimed by the applicant and for which it seeks compensation is the loss of the public contract; it is not claiming damages in respect of the costs it incurred in taking part in the tender procedure.
45      In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (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). If any of those conditions is not satisfied, the application must be dismissed in its entirety without its being necessary to examine the other conditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81).
46      It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the Community have been satisfied.
47      It should be noted that the claim for damages is based on the same pleas of unlawfulness as those put forward in support of the claim for annulment of the contested decision.
48      As has already been noted in the context of the claim for annulment of the contested decision, that decision is flawed by inadequate reasoning and must therefore be annulled.
49      It is clear, however, that, even if the Council did not give adequate reasons for the contested decision, that does not mean that the award of the contract to the successful tenderer constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect, Case T‑4/01 Renco v Council [2003] ECR II‑171, paragraph 89). Indeed, there is no ground for concluding that the Council would have awarded the contract in question to the applicant if that decision had been adequately reasoned.
50      It follows that the claim for damages in respect of the alleged damage suffered as a result of the contested decision must, in so far as it is based on the inadequate reasoning of that decision, be rejected as unfounded.
51      In so far as the claim is based on the allegations of unlawfulness made by the applicant in the context of the other pleas put forward in support of the claim for annulment of the contested decision, the Court is not in a position to consider whether the conditions are met in the present case for the Council to incur non‑contractual liability. First, it necessarily follows from the considerations put forward above concerning the inadequate reasoning for the contested decision that the Court is not in a position to consider the merits of the other allegations of unlawfulness made by the applicant that might give rise to liability on the part of the Council. Second, the fact that the report of the evaluation committee appears as an annex to the Council’s pleadings does not make it possible to establish whether there was unlawful conduct on the part of the Council, since it is not apparent from the parties’ pleadings that the contracting authority agreed with everything in that report. Thus, a claim for annulment based on the allegations of unlawfulness made in the context of pleas of manifest errors of assessment and infringement of the principle of equal treatment and the obligation of transparency can be examined, if necessary, only in the light of the grounds of the decision which replaces the contested decision, following the latter’s annulment by the Court.
52      It is clear from the foregoing that the claim for damages appears to be premature and must be rejected on that ground (see, to that effect, Case T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, paragraphs 49 and 50, and Case T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, paragraphs 95 and 101).
53      It follows that the claim for damages must be rejected in its entirety.
Costs
54      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.
55      Since the applicant has applied for costs and the Council has essentially been unsuccessful, the latter must be ordered to pay the costs
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Annuls the Council’s decision of 1 December 2008 to reject the tender submitted by the consortium composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer;
2.      Dismisses the claim for damages;
3.      Orders the Council of the European Union to pay the costs.
Dittrich
Wiszniewska-Białecka
Prek
Delivered in open court in Luxembourg on 20 October 2011.
[Signatures]
* Language of the case: English.