JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
1 February 2018 (*)
[Text rectified by order of 2 March 2018]
(Public supply contracts — Tender procedure — Provisions of information technology (IT) services for the applications of the ECHA — Rejection of an offer by a tenderer — Award criteria — Obligation to state reasons — Manifest errors of assessment — Non-contractual liability)
In Case T‑477/15,
European Dynamics Luxembourg SA, established in Luxembourg (Luxembourg),
European Dynamics Belgium SA, established in Brussels (Belgium),
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
represented by M. Sfyri, D. Papadopoulou and C.-N. Dede, lawyers,
applicants,
v
European Chemicals Agency (ECHA), represented initially by E. Maurage, W. Broere and M. Heikkilä, and subsequently by W. Broere and M. Heikkilä, acting as Agents, and by J. Stuyck and A.M. Vandromme, lawyers,
defendant,
APPLICATION, first, under Article 263 TFEU, for annulment of the decisions notified to the applicants by letter of 25 June 2015, by which the European Chemicals Agency (ECHA) rejected their tender for the award of contract No ECHA/2014/86 for the provision of IT services for the IT applications of ECHA and awarded that contract to another bidder and, secondly, under Article 268 TFEU, for compensation for the damage which the applicants allegedly suffered.
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, E. Bieliūnas and A. Marcoulli (Rapporteur), Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure and further to the hearing on 31 May 2017,
gives the following
Judgment
Background to the dispute
1        By a contract notice published on 28 November 2014, the European Chemicals Agency (ECHA) launched the call for tenders ECHA/2014/86 for the award of a framework contract for the ‘provision of IT services for the IT applications of ECHA, including C&L inventory, C&L platform, dissemination, eChem portal, portal dashboard, and other related IT systems’.
2        The framework contract was to be awarded to the most economically advantageous tender following a restricted procedure. That tender was to be decided 60% in the light of its technical merit and 40% in the light of the price of the services.
3        The assessment, out of 60 points, of the technical merit of the tenders was based on three award criteria. The first, entitled ‘Scenario’, with a maximum of 35 points, sought to assess the quality and completeness of the Service Delivery Plan proposed for the scenario set out in the tender specifications. That first criterion was divided into three subcriteria. The second criterion, entitled ‘Delivery of Services’, scored out of 15 points, sought to assess the quality and completeness of the proposal for the delivery of the services in terms of service, staff and contract management. The third criterion, entitled ‘Security’ scored out of 10 points, concerned the quality and completeness of the security proposal.
4        The assessment of the offers as regards price consisted of attributing the maximum number of points, namely 40, to the offer whose price was the lowest, while the other offers were marked by the application of a mathematical formula which integrated the price of each offer.
5        The first and third applicants, European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, united in the form of a consortium (‘the European Dynamics consortium’), submitted a request to participate in the procedure by letter of 2 January 2015. In their request those companies made known their intention to subcontract part of the contract to the second applicant, European Dynamics Belgium SA.
6        The European Dynamics consortium, having been selected to participate in the second phase of the restricted procedure, was provided with the tender specifications relating to the market in question. It submitted its tender on 5 May 2015.
7        By letter of 25 June 2015, ECHA informed European Dynamics Luxembourg, as the representative of the European Dynamics consortium, that the latter’s bid had not been successful and that the Agency had decided to award the contract to another consortium. The ECHA attached to its letter the excerpt from the evaluation committee’s report for the rejected tender.
8        By letter of the same day, European Dynamics Luxembourg, as the representative of the European Dynamics consortium, asked the ECHA to send it the scores received in respect of each award criterion by the winning tender, the excerpt from the evaluation committee’s report concerning the winning tender, the relative advantages of that tender, the points awarded in respect of the criterion of price and the rank of the tender submitted by the European Dynamics consortium among the other tenderers.
9        By letter of 26 June 2015, the ECHA informed European Dynamics Luxembourg, as the representative of the European Dynamics consortium, that the latter’s tender had been ranked second and enclosed the excerpt from the evaluation committee’s report which it had requested.
10      By letter of 29 June 2015, the applicants informed the ECHA that in their opinion the evaluation was vitiated by a number of errors. They also noted that the contract had been awarded to a consortium including a company that thereby became a quasi-monopoly supplier of IT services within the ECHA, despite its failure to deliver an earlier contract and even though the price of the applicants’ tender was 29% lower than that of the winning tender. Therefore, the applicants invited the ECHA to review the evaluation of the tenders.
11      By letter of 1 July 2015, the ECHA asked the applicants to provide more specific information concerning the alleged errors in the evaluation of the tenders.
12      In response to the ECHA’s request, the applicants, in a letter of 3 July 2015, listed all the errors of assessment they had noted.
13      By letter of 31 July 2015, the ECHA confirmed to the applicants its decision to award the contract to the winning consortium and expanded upon some of the evaluation committee’s comments challenged by the applicants.
Procedure and forms of order sought
14      By application lodged with the Court Registry on 20 August 2015, the applicants brought the present action.
15      On 5 November 2015, the ECHA submitted its defence.
16      The reply was lodged at the Court Registry on 22 December 2015. The rejoinder was lodged at the Registry on 16 February 2016.
17      On 18 April 2016, pursuant to Article 27(3) and (4) of the Rules of Procedure of the General Court, the case was attributed to a new Judge-Rapporteur, in the interests of the proper administration of justice.
18      Acting on a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure.
19      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 31 May 2017.
20      The applicants claim that the Court should:
–        annul the award decision, notified by letter of 25 June 2015, by which the ECHA informed them that the tender submitted by European Dynamics consortium was rejected and the contract awarded to another consortium;
–        order the ECHA to pay them EUR 520 000 by way of compensation for the damage they suffered due to the loss of opportunity to be awarded the contract;
–        order the ECHA to pay the costs and to reimburse any other costs or expenses incurred in connection with this application, even if the latter is rejected.
21      The ECHA contends that the Court should:
–        dismiss the application as unfounded;
–        order the applicants to pay the costs.
Law
The claim for annulment
22      As a preliminary matter, first, it is necessary to observe that, since the claims for annulment are admissible in that they are submitted by unsuccessful tenderers, namely European Dynamics Luxembourg and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis, it is not necessary, for reasons of procedural economy, to examine their admissibility inasmuch as they are submitted by European Dynamics Belgium, which, as noted in paragraph 5 above, was not a member of the European Dynamics consortium whose tender was rejected, but a potential subcontractor of that consortium (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 19, see also, to that effect, the judgment of 19 January 2012, Xeda International and Pace International v Commission, T‑71/10, not published, EU:T:2012:18, paragraphs 60 and 61 and the case-law cited).
23      Second, it must be observed that, in their first form of order sought set out in paragraph 20 above, the applicants must be regarded as seeking the annulment of the decisions, made known to them by the letter of 25 June 2015, by which the ECHA, first, rejected the tender submitted by the European Dynamics consortium and, second, decided to award the contract to another consortium.
24      Given the close link between the decision to reject the tender submitted by the European Dynamics Consortium and the contract award decision, and since the applicants’ arguments essentially refer to the first of those decisions, the Court considers it appropriate first of all to examine the lawfulness of that decision (see, to that effect, the judgment of 8 July 2015, European Dynamics Luxembourg and Others v Commission, T‑536/11, EU:T:2015:476, paragraph 30).
25      In support of the form of order sought the applicants put forward four pleas in law. The first plea in law alleges the failure adequately to state reasons for the decision rejecting the tender submitted by the European Dynamics consortium. By their second plea, the applicants claim that the ECHA committed multiple and manifest errors in its assessment of the tender submitted by the European Dynamics consortium and the winning tender. The third plea, set out in the reply, must be construed as alleging failures affecting the formula of the financial evaluation of the tenders contained in the tender specifications. By their fourth plea, the applicants criticise the ECHA for having recourse to award criteria that were not referred to in the tender specifications, in breach inter alia of the provisions of Article 110(1) and Article 113 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1, ‘the Financial Regulation’), and of Article 138(3) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1, ‘the Delegated Regulation’).
The first plea in law, alleging the inadequate statement of reasons
26      The applicants submit that the decision to reject the tender submitted by the European Dynamics consortium was not supported by an adequate statement of reasons in that the ECHA has not communicated the relative advantages of the winning tender, which are not clear from a comparison of the two extracts from the evaluation committee’s report on the European Dynamics consortium’s tender and the winning tender.
27      According to the applicants, certain of the strong points of the winning tender identified in the evaluation committee’s report also featured in the tender proposed by the European Dynamics consortium, but were, wrongly, not taken into consideration by that committee.
28      By way of example, as regards the third subcriterion, entitled ‘Application Management’, of the first award criterion entitled ‘Scenario’, the applicants submit that the offer by the European Dynamics consortium included, just as the winning tender did, the availability of a large pool of experts. It also made provision for the ECHA to set trigger values for indicators and the possibility of introducing a system of direct communication with other ECHA contractors. However, regarding the subcriterion in question, that tender received a score of 8.5 points out of 15, whereas the winning tender was awarded a score of 14 points out of 15. The applicants argue from this that comparison of the extracts from the evaluation reports does not enable them to understand the actual advantages of the winning tender. The same is true, according to the applicants, for the second award criterion, ‘Delivery of Services’, concerning the communication model, which was presented as a strong point in the winning tender even though it also appeared in the tender submitted by the European Dynamics consortium.
29      According to the applicants, in view of the ECHA’s budgetary difficulties and its past experience with one of the member companies of the winning consortium, the obligation to state reasons for the scores attributed having regard to the technical criteria was all the more important given that the winning consortium had proposed a price that was substantially higher than that in the European Dynamic consortium’s tender.
30      The ECHA disputes the merits of that plea.
31      To the extent that the applicants submit, as set out in paragraphs 27 and 28 above, that the ECHA did not communicate the relative advantages of the winning tender to them because those advantages, as shown in the two extracts from the evaluation committee reports, are not proven, it is necessary to recall that, according to settled case-law, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are well founded, which goes to the substantive legality of the contested measure (see the judgment of 22 May 2012, Evropaïki Dynamiki v Commission, T‑17/09, not published, EU:T:2012:243, paragraph 40 and the case-law cited). In the present case, by their arguments, the applicants allege a failure to provide reasons only in respect of the decision to reject the tender submitted by the European Dynamics consortium, which it is appropriate to examine as follows.
32      In that regard, it should be noted that, where, as in the present case, the institutions, bodies or agencies of the European Union have, in their capacity as contracting authorities, 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 adequate reasons for its decisions. Only in this way can the European Union courts determine whether the factual and legal elements upon which the exercise of the discretion depends were present (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 20 May 2009, VIP Car Solutions v Parliament, T‑89/07, EU:T:2009:163, paragraph 61).
33      In the light of the obligation to state reasons laid down in the second paragraph of Article 296 TFEU, the author of the measure must disclose its reasoning 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. In addition, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations (see, to that effect, judgment of 21 February 2013, Evropaïki Dynamiki v Commission, T‑9/10, not published, EU:T:2013:88, paragraphs 25 and 26 and the case-law cited).
34      In matters of public procurement, the provisions of the first paragraph of Article 113(2) of the Financial Regulation, in the version before its amendment by Regulation (EU, Euratom) 2015/1929 of the European Parliament and the Council, of 28 October 2015, amending regulation No 966/2012 (OJ 2015 L 286, p. 1) and the third paragraph of Article 161(3) of the Delegated Regulation, in the version before its amendment by Commission Delegated Regulation (EU) 2015/2463 of 30 October 2015 (OJ 2015 L 342, p. 7) to which Article 85 of the ECHA’s Financial Regulation refers, sets out the conditions under which the contracting authority satisfies its obligation to state reasons towards tenderers. That is the case if it merely informs any eliminated tenderer immediately of the reasons for rejection of its tender and then provides any tenderer who has made an admissible tender with the characteristics and relative advantages of the tender selected and the name of the successful tenderer, within 15 days of the date on which an express written request is received (see, to that effect, judgments of 9 September 2010, Evropaïki Dynamiki v EMCDDA, T‑63/06, not published, EU:T:2010:368, paragraph 111 and the case-law cited, and 12 December 2012, Evropaïki Dynamiki v EFSA, T‑457/07, not published, EU:T:2012:671, paragraph 45).
35      It also follows from the case-law that, although it is apparent from the provisions referred to in paragraph 34 above that an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract, the content of a third letter may also be taken into account when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the tenderer whose bid was ranked in first position. However, the grounds set out in such a letter must not undermine the statement of reasons provided in the first two letters (judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v EIT, T‑481/14, not published, EU:T:2016:498, paragraph 82).
36      Such a manner of proceeding satisfies the purpose of the obligation to state reasons enshrined in the second paragraph of Article 296 TFEU, according to which the reasoning followed by the author of the act 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 supervisory jurisdiction (see the judgment of 12 December 2012, Evropaïki Dynamiki v EFSA, T‑457/07, not published, EU:T:2012:671, paragraph 46 and the case-law cited).
37      It is also apparent from the case-law that the contracting authority cannot be required 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 and, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (judgment of 4 October 2012, Evropaïki Dynamiki v Commission, Case C‑629/11 P, not published, EU:C:2012:617, paragraph 21).
38      In the present case, it must first be held that, contrary to what is implied by the applicants, the ECHA is under no heightened obligation to state reasons as a result of its financial situation or previous contractual relations with one of the members of the winning consortium.
39      Second, in order to determine whether the ECHA complied with the obligation to state reasons, it is necessary to examine the letter of 25 June 2015 informing the applicants of the rejection of the tender submitted by the European Dynamics consortium and the award of the contract to another consortium, to which part of the evaluation committee’s report on the rejected offer was attached. It is also necessary to examine the letter of 26 June 2015 sent to the applicants, within the time period laid down by Article 161(2) of the Delegated Regulation, in response to their request of 25 June 2015 seeking additional information regarding the winning tender and the ranking of tenders. By that letter, the ECHA informed the applicants that the five tenders were placed on the merit list and that the tender submitted by European Dynamics consortium was ranked second. The ECHA also sent them the part of the evaluation report concerning the winning tender. It may finally be possible, within the limits set out in paragraph 35 above, to take into account the letter dated 31 July 2015 by which the ECHA gave details of some of the evaluation committee’s comments.
40      In that regard, it must be noted that the excerpts from the evaluation committee’s report communicated to the applicants are a table setting out, for the tender submitted by the European Dynamics consortium and the successful tender, the points attributed with regard to each technical criteria, the score obtained as regards the price criterion and the score obtained in the final evaluation. Those excerpts also include the indication of the points awarded in respect of each of the subcriteria comprising the first award criteria. They set out, over many pages, the comments that accompanied each of the scores given under the criteria and subcriteria.
41      In the light of the information thus sent to the applicants, it appears that they were in a position to compare directly, in respect of the various criteria and subcriteria evaluated, the scores awarded to the tender submitted by the European Dynamics consortium with those awarded to the winning tender, such that they were able to identify the respective strengths and weaknesses of those two tenders (see, to that effect, the judgment of 2 December 2015, European Dynamics Luxembourg SA and Evropaïki Dynamiki v European Joint Undertaking for ITER and the Development of Fusion Energy, T‑553/13, not published, EU:T:2015:918, paragraph 48 and the case-law cited). In addition, whilst the assessment of the quality of the tender was decisive in the award of the contact in question, the applicants were placed in a position, by the detailed comments that accompanied the scores, of being able to understand the reason why, on the technical criteria, the tender submitted by the European Dynamics consortium obtained a lower score than the winning tender.
42      In particular, the comments of the evaluation committee on the assessment of the winning tender with respect to the subcriteria ‘Application Management’ under the first award criteria, and the second award criteria, set out in paragraphs 22 and 25 of the application respectively, are sufficiently clear and precise to enable the applicants to understand on which specific points the ECHA regarded the winning tender as better, under the abovementioned criteria, than the tender submitted by the European Dynamics consortium.
43      In that regard, as stated in paragraph 37 above, the ECHA was not required to carry out a detailed comparative analysis of the two tenders at issue. In those circumstances, the complaint cannot be made against it that it did not give details as to why the positive points observed in the winning tender were missing for the tender submitted by the European Dynamics consortium.
44      It follows from all the foregoing that the plea alleging the failure adequately to state the reasons for the rejection of the tender submitted by the European Dynamics consortium must be rejected.
The second plea in law, alleging manifest errors of assessment
45      The applicants submit that the ECHA committed many manifest errors of assessment in the evaluation of the tenders. They therefore dispute the validity of certain assessments made by the evaluation committee on the tender submitted by the European Dynamics consortium and the winning tender in respect of each of the subcriteria of the first technical award criterion concerning quality and completeness of the service delivery plan proposed for the scenario.
46      The ECHA maintains that this plea is unfounded.
47      As a preliminary observation, it should be noted that the ECHA, in the same way as other bodies or offices of the European Union, has a broad discretion 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 must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no serious or manifest error of assessment or misuse of powers (see, to that effect, the judgment of 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 75 and the case-law cited).
–       The first subcriterion: ‘Takeover’
48      The applicants dispute two negative comments made by the evaluation committee regarding the tender submitted by the European Dynamics consortium with regard to the subcriterion ‘Takeover’. As regards, first, the criticism by that committee regarding the failure to provide sufficient tactical or technical details relating, inter alia, to the setup and configuration of the incident detection tool and alert process, the applicants submit that it is arbitrary. According to the applicants, such a description was not required by the tender specifications, which were silent on that point, and concerned a trivial detail that the restriction on the size of the tender did not allow to be covered. As regards, second, the comment on the insufficiently specific approach taken in the tender submitted by the European Dynamics consortium, inter alia in terms of the possibility for improvements and reusability, the applicants submit that it is erroneous, vague, abusive and unfounded since the tender was complete, in accordance with the tender specifications and of necessity condensed.
49      In that regard, first, it must be recalled that, under the first award subcriterion, the European Dynamics consortium received a score of 3.5 out of 5 points, whilst the winning tender received the maximum score.
50      Next, the argument relating to the vagueness of the second comment in question raises, in fact, the question of whether adequate reasons were given for the decision to reject the tender submitted by the European Dynamics consortium. However, the plea alleging the failure adequately to state reasons has already been rejected.
51      Furthermore, it must be recalled that the award criteria sought to identify the economically most advantageous offer, according to the provisions of Article 110(2) of the Financial Regulation, in the version applicable at the material time. The evaluation committee was thus required to carry out an evaluation of the offers against each of the criteria and not merely to verify whether the offers conformed with the tender specifications (see, to that effect, the judgment of 15 March 2012, Evropaïki Dynamiki v Commission, T‑236/09, not published, EU:T:2012:127, paragraph 98). In the present case, the tender specifications clearly required, in point 2.3.2, that the bids respond to all of the points referred to in Annex 7.4 concerning the technical specifications, and that offers deviating from those specifications would be rejected. In that regard, it was made clear that the mere restating of the information written down in the tender specifications, without further elaboration, would be penalised. The technical specifications also required that the technical offers must be set out in three documents, namely a document for each technical award criterion and that it was possible for the tenderer to set out, in addition to the essential information, any other information that they judged to be relevant. The size of each of those documents was however restricted to a certain number of pages.
52      In those circumstances, while the tenderers were required to cover all the points referred to in the tender specifications, failing which their offer would be rejected, they were free, within the size limitation laid down in the tender specifications, as to the level of detail of their offer for each of the points referred to above, and to give any clarifications or additional information that they wished.
53      It follows that the fact that the tender submitted by the European Dynamics consortium contained all of the details required by the tender specifications, assuming that were proven, is not capable of establishing that the evaluation committee’s criticism as to the absence, in that offer, of certain information that it deemed relevant was erroneous.
54      Furthermore, since the restriction on the size of the bid prescribed in the tender specifications applied equally to all of the tenderers, the applicants have not shown that it was materially impossible to cover, in European Dynamics consortium’s tender, details other than those required by the tender specifications.
55      As regards, more specifically, the first contested comment, it must be noted that it concerns the lack of sufficient tactical or technical details in the tender submitted by the European Dynamics consortium, the reference made by the evaluation committee to the incident detection tool and alert process being merely an illustration of that insufficiency. First, by restricting themselves to picking out, by way of example, an extract of that offer without supporting their argument with specific elements, the applicants have not proven that that offer contained all the relevant details with respect to the takeover of services. Second, while it is common ground that the elements connected with incident detection and alert process are matters of detail, the applicants do not justify from the minor nature of such elements, which, as has already been held, are merely examples of details that, according to the evaluation committee, would have contributed to improving the quality of the tender. Therefore, the applicants have not established that the contested comment is vitiated by a manifest error of assessment.
56      As regards the second disputed comment, it must be noted that it criticised the European Dynamics consortium’s tender for having set out too abstract an approach to the services sought. The evaluation committee cites, by way of example, proposals for improvements or re-use which are, indeed, referred to in that offer, but are not specifically illustrated. That lack of illustration is not contested by the applicants. Having regard to the findings in paragraphs 52 and 53 above, the mere fact that the tender specifications did not prescribe to tenderers that they must illustrate their proposal is not capable of establishing that the comment in question by the evaluation committee is vitiated by a manifest error of assessment.
57      In view of all the foregoing, it must be held that the ECHA did not commit a manifest error of assessment in the evaluation of the tender submitted by the European Dynamics consortium in respect of the first sub-criterion of the first technical award criteria.
–       The second award subcriterion: ‘Development, Support and Maintenance’
58      The applicants contest the evaluation committee’s criticism concerning the second award subcriterion, in respect of which the tender submitted by the European Dynamics consortium obtained a score of 12 points out of a maximum of 15, whereas the winning tender obtained a score of 14.5 points.
59      By their first complaint, the applicants submit that the evaluation committee relied on an error in the table on page 32 of the tender submitted by the European Dynamics consortium that wrongly states that only certain members of the ‘Scrum’ team would take part in ‘sprint’ planning meetings. That clerical error was obvious, according to the applicants, since page 25 of the tender clearly stated that the Scrum team was to take part in all such meetings. In any event, since the table on page 32 of the tender envisages on-site meetings or video-conferencing for sprint planning, the applicants maintain that participation by members of the team was assured. Next, they consider that the comment by the evaluation committee criticising the absence of certain important members of the Scrum team from those meetings on the ground that it would be likely to result in inefficiencies is vitiated by a manifest error of assessment.
60      In that regard, it must be observed that the European Dynamics consortium’s technical offer described, in point 4.2, the methods and tools required for the scenario. In point 4.2.2 the offer stated that the organisational schema for software development would be based on the Scrum approach. It presented the framework for that approach in terms of the organisation of the team and the work. On that point, it can be stated that, while in general that presentation dealt with the sprint planning meetings phase, it did not, contrary to the applicants’ submissions, contain any details as to the planning meetings or their participants. Some such details are found on page 32 of the bid, at point 4.5.2.1 entitled ‘meetings’ which includes a table setting out all of the meetings envisaged, including sprint planning meetings. It is clear from that table that only certain members of the Scrum team would participate in the latter meetings, which could be organised on-site or by way of video-conferences.
61      Therefore, no contradiction is apparent from a combined reading of the information on pages 25 and 32 of the tender submitted by the European Dynamics consortium. Thus the ECHA could reasonably understand that certain members of the Scrum team would not participate in the meetings in question, at least when they were organised on its premises. The applicants therefore can neither submit that the table on page 32 was affected by an obvious typographical error nor assert the possible organisation of video-conference meetings in order to establish the manifest error of assessment alleged. It follows that the first complaint must be rejected.
62      By their second complaint, the applicants submit that the evaluation committee wrongly found that the methodology proposed in the tender submitted by the European Dynamics consortium was excessively formalistic in respect, inter alia, of the review of draft documents, which would not facilitate quick cycles. According to the applicants, the methodology proposed was in accordance with the Agile method required by the tender specifications and corresponded to the means of cooperation required by the ECHA itself in the performance of the previous framework contract. That method of cooperation would facilitate quick cycles through rapid interactions between the parties.
63      In that regard, it must first of all be noted that the finding of excessive formality in the methodology proposed by the European Dynamics consortium, which was judged, in addition, to be very mature and professional, is a general finding by the evaluation committee, the revision procedure of the documentation having mentioned only by way of example. On that point, the committee restricted itself to observing that the methodology proposed did not necessarily facilitate quick cycles
64      Next, it is common ground that the Agile method of delivering projects, referred to in the tender specifications, implied ‘frequent deliveries’, namely a continuous collaboration with the client. However, the applicants have not established, nor do they even submit, that respecting that method, even if it were proven, implied having recourse to the specific procedure described in the European Dynamics consortium offer. Thus, while the proposed methodology complied with the Agile method, offering certain guarantees in terms of the responsiveness of the service provider, that fact alone was not capable of excluding the existence of offers providing a better standard of collaboration.
65      Furthermore, since the requirements of the tender specification of the call for tenders at issue cannot be compared to those specified for any other past or future call for tenders, the fact that the cooperation method criticised by the evaluation committee was used in a previous public contract, even if proven, is not cable of vitiating the comment in question.
66      Finally, having regard to the very nuanced wording of the contested comment, referred to in paragraph 62 above, the fact that the methodology proposed in terms of review of the documentation could, according to the unproven assertion by the applicants, facilitate quick cycles using a very fluid approach to communication is insufficient to establish a manifest error of assessment.
67      By its third complaint, the applicants submit that the evaluation committee’s comment that the tender submitted by the European Dynamics consortium referred to the participation of the ECHA’s business analysts in the working groups even though such participation was not envisaged by the scenario described in the tender specifications is unfounded. According to the applicants, the tender specifications do not exclude the participation of business analysts, at least in non-technical activities. That was the case during the performance of the previous framework contract. Furthermore, the criticism made in the ECHA letter dated 31 July 2015, that the tender submitted by the European Dynamics consortium should have focused more on work with ECHA business users, is new and based on erroneous facts since that tender includes, according to the applicants, a detailed description of the involvement of such users.
68      In the first place, it must be recalled that the object of the first award criterion was the quality and completeness of the service delivery plan proposed for the scenario, namely the working hypothesis described in pages 38 to 43 of the tender specifications. That scenario identified the personnel who, within the ECHA, would participate in the works, namely a project manager, an application delivery service manager, a service manager, a product manager, a contract manager, a test manager, business users and other support personnel, including an architecture focal point.
69      It is clear from that list that, contrary to the applicants’ allegations, even if the scenario did not exclude the participation of other persons of the ECHA for support, no role was explicitly attributed to business analysts. The fact that the tender specifications referred on several occasions to the role of business analysts does not call that conclusion into question, which specifically refers to the scenario proposed by the ECHA.
70      Furthermore, as the ECHA points out, the European Dynamics consortium’s tender itself presented the ECHA’s team, in point 4.5.1.1, by referring to the profiles as stated in the list for the scenario and by excluding any other support role, with the exception of the architecture focal point. However, it is common ground that the response to the scenario proposed by that consortium assigned a significant role to the business analyst of the ECHA, who was required, amongst other things, to participate in sprint planning and review meetings.
71      In those circumstances, and without it being necessary to make distinctions according to the nature of the assigned tasks, the evaluation committee was fully entitled to find that the European Dynamics consortium’s tender made express reference to the ECHA’s business analysts whereas that profile fell outside the scenario.
72      In the second place, as regards the ECHA’s observation in its letter of 31 July 2015, that the tender submitted by the European Dynamics consortium could have focused more on work with business users, it must be held that that does not alter, a posteriori, the position of the evaluation committee but explains it. According to the ECHA, the tasks attributed to business analysts in that offer should have been entrusted, according to the scenario imposed, to business users. That is why, in the comment in question, the ECHA noted that the role of the latter would have merited further consideration. In those circumstances, and even though it is not contested that the European Dynamics consortium’s tender included certain considerations regarding the role of the ECHA’s business users, the applicants’ arguments putting forward information that appears in that tender regarding the involvement of those users is insufficient to establish that the comment at issue is vitiated by a manifest error of assessment.
73      By their fourth complaint, the applicants contest the comment by the evaluation committee criticising the absence, in the tender submitted by the European Dynamics consortium, of a dashboard for the test report sample. They submit that that reservation concerns only the formal presentation of that report and, since the required format was a single page, it would not have been appropriate to present the same information in two different ways. In their reply, the applicants submit that the tender submitted by the European Dynamics consortium included, in any event, the information sought in the form of a dashboard.
74      First of all, it must be noted that, by the comment at issue, the evaluation committee, after having noted the quality of the samples provided by the European Dynamics consortium for the business requirements and the release notes, stated that the test report sample could have been improved if it had been produced in a dashboard format.
75      Next, it is clear from the requirements of the tender specifications that the tenderers must produce a sample, on one page, of a test report that is representative of the content of reports that would be sent during the performance of the framework contract. The tenderers were not required to follow particular method for presenting the sample test report.
76      However, the freedom offered to tenderers as to the mode of presenting a sample test report does not establish that the evaluation committee’s comment at issue was manifestly erroneous. That committee could validly consider that presenting the content of the test reports in a dashboard format would improve their readability.
77      In that regard, the texts and the screenshots presenting the sample test report in the tender submitted by the European Dynamics consortium cannot be equated with a dashboard. Therefore, the applicants’ submission that the evaluation committee failed to take account of the dashboard that was included in that offer is not well founded.
78      By their fifth complaint, the applicants submit that the tender submitted by the European Dynamics consortium clearly defined the roles and responsibilities of each member of the team in the context of the scenario envisaged. Therefore the evaluation committee’s comment regarding that lack of a clear boundary between the roles and activities of each person within the group is unfounded.
79      On that point, it must be observed that the comment at issue does not concern the insufficient description of each profile, but the insufficient identification of the roles of each person with regard to the different activities of analysis and testing. In that regard, it must be held that the tender submitted by the European Dynamics consortium identified eight profiles principally required for the analysis activities, of which seven were included in the ten profiles principally required for the work of testing. While it is common ground that, as the applicants emphasise, recourse to several profiles during specific phases means that a number of activities are undertaken simultaneously, it remains the case that the evaluation committee could validly consider that the detail of the tasks attributed to each profile, within the same activity, was not sufficiently detailed. On that point, by submitting merely that a more detailed description depended on other details relating to the needs and characteristics of the project, without producing any evidence to that effect, the applicants have not proven that the evaluation committee committed a manifest error of assessment.
80      Finally, by their sixth complaint, the applicants contest the evaluation committee’s comment that the release and deployment of management was not sufficiently developed with concrete examples showing that the tenderer will impose the necessary level of supervision to guarantee good quality. They submit that such examples would have been redundant because the tender submitted by the European Dynamics consortium was clear, the evaluation committee having moreover recognised that it conformed with the ITIL (Information technology infrastructure library) recommendations. They also contend that their tender did not provide only broad principles of management in accordance with the ITIL methodology but also described the concrete, specific activities that would be carried out.
81      It must be noted that, in pages 26 and 27, the tender submitted by the European Dynamics consortium describes the ITIL methodology as regards the examples of release and deployment of management. Contrary to the applicants’ submissions, the evaluation committee did not confirm that the offer was in conformity with the ITIL methodology, but merely observed that the European Dynamics consortium asserted that it conformed with that methodology. Accordingly, and even though the ITIL methodology is internationally recognised, the development, in the tender, of examples illustrating the specific operation of that methodology cannot be regarded as superfluous. In that regard, the description of the various activities carried out at each of the stages of release and deployment management do not constitute concrete examples that the evaluation committee complained were lacking. Therefore, the sixth complaint must be rejected.
82      In view of all the foregoing considerations, the applicants have not established that the ECHA committed a manifest error of assessment in its evaluation under the second sub-criterion for the award of the contract.
–       The third award subcriterion: ‘Application Management’
83      The applicants contest a number of the comments made by the evaluation committee concerning the last subcriterion of the first award criterion, in respect of which the European Dynamics consortium’s bid obtained a score of 8.5 points out of 15, whereas the winning tender obtained a score of 14 points.
84      In the first place, the applicants contest the evaluation committee’s comment that the description, in the tender submitted by the European Dynamics consortium, of how the service would function in practice was insufficient. Such a comment is, according to the applicants, incorrect having regard to all the details set out in the tender, which covered all of the items referred to in the tender specifications and set out all the necessary elements for the approach to implementation in practice.
85      In that regard, it must first of all be recalled that, in accordance with the case-law referred to in paragraph 51 above, it was on the basis of an evaluation of the tenders carried out by the evaluation committee that the contract was awarded to the tenders offering the best value for money and not on the basis of mere verification of conformity with the tender specifications. By the disputed comment, the evaluation committee did not put the completeness of the tender submitted by the European Dynamics consortium in issue, but the content of the details it contained which it regarded as insufficiently precise. In those circumstances, the applicants cannot usefully submit that the offer covered all of the items referred to in the tender specifications in order to establish the manifest error of assessment alleged.
86      Next, by restricting itself to making general references to various points of the European Dynamics consortium’s tender, the applicants, who bear the burden of proof, do not establish that the ECHA’s assessment as to the insufficiently specific nature of the approach set out in that offer is manifestly incorrect (see, to that effect, the judgment of 9 September 2010, Evropaïki Dynamiki v Commission, T‑300/07, EU:T:2010:372, paragraph 92).
87      In the second place, the applicants contest the evaluation committee’s comment as to the European Dynamics consortium’s failure to understand that incidents resulting from issues at infrastructure or at network level must be reported to the responsible third party and not solely to the ECHA. The applicants submit that that criticism, which is based on irrelevant extracts from that consortium’s tender, arises from an incorrect interpretation of that tender, which provides for direct communications with responsible third parties, without excluding any direct interaction with the ECHA, in accordance with the requirements of the tender specifications. The applicants also contend that that comment shows the biased attitude of the evaluation committee.
88      In that regard, it is necessary, first, to recall that for the reasons already set out in paragraphs 52 and 53 above, the argument that the tender submitted by the European Dynamics consortium complies with the tender specifications is ineffective.
89      Next, it must be stated that Annex 7.4 setting out the technical specifications of the tender specifications stipulates, in point 2.13, that the ECHA’s contractor must develops a close collaboration with third parties, such as those responsible for the network, in particular in the event of a breakdown in functioning. It is also specified that three options may be envisaged according to which the ECHA acts as a total or partial intermediary between the contractor and the third party, or the contractor deals directly with the third party.
90      As regards the incident management, set out in points 3.3.1 and 3.3.2 of the tender submitted by the European Dynamics consortium, the tender states that, if an incident is due to a problem with the network, the contractor will alert the ECHA. That part of the tender, dedicated to incident management, makes no mention of a possible communication between the contractor and the network provider. It is true that, in point 4.1 on the ‘boundaries of responsibility’, the tender states that, in the event that the contractor identifies a third party responsible for the problem, it may contact him directly, by informing the ECHA or adopting a hybrid approach. However, having regard to the earlier details in the offer specifically relating to the tenderer’s choice in respect of incident management for the scenario envisaged, the applicants’ submission that by analysing the European Dynamics consortium’s tender with regard to those details, without taking into account the more general elements on the subject of ‘boundaries of responsibility’, the ECHA carried out a manifestly incorrect analysis is not well founded. For the same reasons, the applicants cannot usefully rely on the details set out in the tender in respect of the second award criterion.
91      In those circumstances, contrary to applicants’ submission, the analysis made by the ECHA does not reveal a biased attitude on its part.
92      Finally, the clerical error in the evaluation report as to the reference to pages of Annex 7.4 of the tender specifications relating to cooperation with the ECHA and third parties, which was moreover rectified by the applicants themselves in their letter of 3 July 2015, is not capable of establishing that there was a manifest error of assessment by the ECHA.
93      In the third place, the applicants contest the comment by which the evaluation committee considered that, while the tasks and tools referred to in page 18 of the tender submitted by the European Dynamics consortium were appropriate for the ECHA’s technological environment, that consortium set out insufficient detail as to work stream 3, ‘Application Management’, implying that it had not correctly understood that that work stream and work stream 2, ‘Application development, maintenance and support’, were conceptually separate. The applicants submit that the tender submitted by the European Dynamics consortium gives sufficient detail of the work stream 3 and that it strives to make a very clear distinction between the two work streams, which demonstrates the perfect understanding of those work streams.
94      In that regard, first, it must be noted that the applicants restrict themselves to stating, without producing any evidence in support of their allegation, that the European Dynamic consortium’s tender pay sufficient attention to the work stream of application management.
95      Secondly, as the applicants submit, the tender submitted by the European Dynamics consortium refers, in point 3 in respect of the work stream, to each of the three work streams of the scenario envisaged by the tender specifications. Those work streams correspond to three types of activities identified by the ECHA, inter alia for the purposes of assessing the first award criterion, each of the work streams corresponding to a subcriterion. Furthermore, the European Dynamics consortium’s tender contains, in point 4.1.4, a note stating that it is important to be clear as to the services which are provided in the context of application management, namely work stream 3, that is to say regarding what they do and do not include, that note being followed by a brief description of the activities at issue included in work stream 3. In that regard, the details set out in the offer merely repeated, in essence, the requirements of points 2.16, 4 and 5 of Annex 7.4 of the tender specifications.
96      It follows from the foregoing that the mere fact that the European Dynamics consortium’s tender, as regards the first award criteria, was presented in a way that distinguished between the three work streams envisaged by the tender specification was insufficient to establish that the evaluation committee’s comment as to the inadequate understanding of the distinction between work streams 2 and 3 was vitiated by a manifest error of assessment.
97      Thirdly, as regards the tools proposed in the context of activities relating to application management, it must be observed, as the ECHA has done, that the tender submitted by the European Dynamics consortium merely repeated all of the tools listed by way of example in point 5.4 of Annex 7.4 of the tender specifications. In those circumstances, and without it being necessary to assess whether that offer could usefully have distinguished between the tools according to their principal use in work stream 2 or 3, the applicants’ submission that the evaluation committee’s assessment as to the inadequate understanding of work stream 3 was manifestly incorrect is not well founded.
98      In the fourth place, the applicants contest the comment relating to the process of handling incidents, which was judged, by the evaluation committee, to be too focused on documentation to the detriment of operational efficiency. According to the evaluation committee, the quality of the European Dynamics consortium’s tender could have been improved by setting out various examples of incidents that could be immediately resolved by the contractor without the systematic prior approval by the ECHA or by the institution of a procedure for handling such incidents.
99      In that regard, the applicants submit, first, that the approach proposed in the tender submitted by the European Dynamics consortium would not affect the operational efficiency of the incident management process in any way, all the more so since the schema proposed had been used by the ECHA in the performance of the previous framework contract and, second, taking into account the maximum size imposed by the tender specifications, illustrating elements that were perfectly clear in the tender by giving examples was not relevant.
100    First, the applicants’ argument that procedure of approval by the ECHA for the resolution of incidents proposed in the European Dynamics consortium’s tender would require minimal effort on the EHCA’s part, contrary to the assessment made by the evaluation committee, is insufficient to amount to a manifest error of assessment by that committee. The ECHA was fully entitled to consider that resolution of incidents without a procedure, even a flexible one, of prior approval would be more effective and faster than the procedure proposed in the European Dynamics consortium’s tender. Furthermore, as has already been stated in paragraph 65 above, the argument based on the fact that the system of incident management proposed in the tender had been used by the ECHA in the previous framework contract, even if it were proven, is ineffective.
101    Secondly, the applicants’ argument that the limitation on the size of the tender prevented the European Dynamics consortium from being able to set out examples, which moreover were not useful since they would have provided no added-value to that tender, is irrelevant. As has already been held, it was for the consortium to make the effort, required of all the tenderers, to present its offer in the clearest possible way within the limitation on the number of pages permitted by the tender specifications. Furthermore, contrary to the applicants’ allegations, setting out various examples could assist in illustrating more practically the type of incidents with pre-approved solutions which could have been resolved quickly by the contractor without systematic prior approval from the ECHA.
102    In the fifth place, the applicants dispute the comment relating to the insufficient description and definition of actual software and practicalities of service delivery. According to the applicants, that comment is vague and incorrect since the tender submitted by the European Dynamics consortium is complete on that point and includes all the details required. It also contradicts another assessment by the evaluation committee acknowledging that the tools proposed are adequate.
103    In that regard, first, the argument relating to the vagueness of the comment in question raises, in fact, the question of whether adequate reasons were given for the decision to reject the tender submitted by the European Dynamics consortium. However, the plea alleging the failure adequately to state reasons has already been rejected.
104    Second, it must be observed that, for the purposes of establishing that the tender submitted by the European Dynamics consortium included all the details required concerning actual software, the applicants reproduce an extract from that offer which lists the access control and monitoring tools of the applications. However, first, as has been stated in paragraph 97 above, the content of the offer on that point merely reproduced the indicative list of those tools as it appears in point 5.4 of Annex 7.4 to the tender specifications. Second, failing any specific argument by the applicants, those details appear to be devoid of any connection with the disputed comment, which refers to the insufficient description of the current version of the software. It also follows that the argument alleging the contradiction between the disputed comment and the assessment by the evaluation committee that the tools proposed in the offer were adequate for the implementation of the services is not relevant having regard to the difference in their purposes.
105    Thirdly, for the reasons already set out in paragraph 86 above, by merely reproducing various passages contained in the tender submitted by the European Dynamic consortium, the applicants, who bear the burden of proof, do not establish that the ECHA’s assessment as to the insufficiently specific nature of the approach set out in the offer is manifestly incorrect.
106    In the sixth place, the applicants submit that the evaluation of the winning tender is vitiated by a manifest error of assessment. Whilst the evaluation committee penalised the tender submitted by the European Dynamics consortium for using the latter standards, it assessed favourably the winning tender in respect of the treatment of change requests and incident management even though they were based on the use of a version of the ITIL methodology which had been obsolete for eight years. That lack of awareness as to the evolution of methods both by the winning tenderer and the evaluation committee casts doubt, first, on the professionalism of the successful tenderer and, second, on the quality of the work of evaluation of the tenders carried out by the EHCA. The applicants add that, to the extent that the winning tender included numerous examples, other fundamental elements must have been lacking due to the limitation on the size of the tender imposed by the tender specification. Lastly, according to the applicants, the winning tender may contain extracts from their own libraries.
107    In that regard, first, it must be held that the evaluation committee observed, in similar terms, that both the successful tender and the European Dynamic consortium’s tender proposed a system of incident and problem management that conformed to the ITIL methodology. The applicants are therefore not correct in submitting that the latter offer was penalised for its recourse to the most recent methodology.
108    Secondly, the tender specifications required, at page 37, that the procedure proposed by the tenderers as regards the management of problems and incident should be based on the standard ITIL methodology or its equivalent, without additional details. Thus, by the comments made regarding the tender submitted by the European Dynamics consortium and the winning tender, it must be held that the evaluation committee merely observed that those offers satisfied one of the requirements of the tender specification.
109    Thirdly, it may be observed that the ITIL methodology is a compilation of good practice and that that repository, of which a new version — ITIL v3 — was created in 2007, was updated in 2011. In that regard, even if the winning tender referred to a non-updated version of the ITIL v3 methodology, the applicants do not establish that it would have become obsolete, since, moreover, as referred to in paragraph 108 above, the tender specifications did not require that the tenderers propose a process certified to conform with that methodology, but merely that the process is based on that methodology.
110    Fourthly, to the extent that the evaluation committee restricted itself to finding that the tender submitted by the European Dynamics consortium and the successful tender conformed with the ITIL methodology standards, that finding in itself cannot be regarded as demonstrating either inadequate knowledge on the part of the members of the committee, nor a serious failing in its work. In addition, the fact that that committee stated in its evaluation that the winning tender conformed to the ITIL v3 methodology as regards the system of incident and problem management is insufficient to establish that that offer referred specifically to that version of the repository. In any event, even if it were proven, the single reference by that tender to the ITIL v3 methodology is not, in itself, capable of establishing the lack of professionalism on the part of the successful tenderer alleged by the applicants.
111    Fifthly, the applicants cannot infer from the presence of numerous examples in the successful tenderer’s bid that it necessarily omitted several fundamental elements due to the limitation on the number of pages of the tender.
112    Finally, as regards the suspicions of breach of their intellectual property rights, the applicants have produced no concrete evidence in support of their allegations. Accordingly, that argument must be rejected.
113    Having regard to the foregoing, the second plea in law must be rejected.
The third plea in law, alleging failures affecting the formula of the financial evaluation of the tenders
114    The applicants contend that the formula of the financial evaluation of the tenders did not make it possible to identify the lowest tender. They base their contention on statements in the ECHA’s defence, according to which, since the actual price depends on the number of man/days effectively used, the tender submitted by the European Dynamics consortium is not necessarily the lowest in terms of price. The applicants conclude from this that the formula of the financial evaluation of the tenders does not provide accurate results and that in the absence of rules in the tender specifications to impede a contractor from overcharging, and given the fact that variants can arise during the execution of the contract, the call for tenders is irregular.
115    The ECHA maintains that this plea is unfounded.
116    In that regard, it must be observed that the tender specifications clearly stipulated, in point 3.1.4.2, that the financial evaluation would be based on the estimated total cost of the contract determined having regard to an evaluation of the consumption of services by the ECHA, over four years, namely the maximum duration of the framework contract. The total estimated costs of each offer corresponded to the sum of three prices, namely, first, the total price estimated for application management services determined having regard to the monthly price fixed by each tenderer, according to the degree of availability of the agents and number of agents required; secondly, the fixed price corresponding to the cost of implementation of security measures and controls; and, thirdly, the total price of the profiles determined having regard to the daily price fixed by the tenderers according to the profiles of the agents and their appointment on and off-site and the corresponding number of days required.
117    Recourse to such an evaluation method cannot, in itself, be challenged by the applicants since, in the context of a contract made up of unit prices, it seeks to ensure the comparability of the offers by calculating a global price for the contract. Furthermore, the applicants do not establish, or even submit, that the hypotheses of the orders for services envisaged by the ECHA are unrepresentative of its needs.
118    Moreover, as regards the applicants’ assertion that the tender specification does not contain rules that might dissuade a contractor from overcharging, it must be observed, first, that the prices proposed by the tenderers were given a score, under the criteria relating to price, up to a maximum of 40% of the overall score. Second, while the applicants must be regarded as submitting that the ECHA’s contractor could, in the course of the contract, depart from the prices stated in its offer, they produce no concrete arguments in support of their allegation.
119    Finally, as regards the applicants’ argument that the tender specification authorised ‘variants’ during the performance of the contract, it must be recalled that the procedure at issue leads to the award of a framework contract that will govern a series of contracts to be concluded with the ECHA covering services the quantity of which was not definitively fixed. In those circumstances, and given that the applicants have not explained the implications of their argument, it must be rejected.
120    Consequently, the third plea in law must be rejected, without it being necessary to rule on its admissibility, disputed at the hearing by the ECHA.
The fourth plea in law, alleging the introduction of new award criteria during the procedure
121    The applicants claim, in the alternative, that by penalising the tender submitted by the European Dynamics consortium on the ground that it did not contain a sufficient number of examples, although it is in line with the tender specifications, the ECHA introduced a new criterion that was not included in the tender specifications. In so doing it was in breach of Article 110(1) and Article 113 of the Financial Regulation and Article 138(3) of the Delegated Regulation. In its reply, the applicants also criticise the ECHA for having evaluated the tenders against an unpublished criterion, namely the tenderer’s choice as to what information to include in the tender. They also refer to the possibility that the ECHA had based its evaluation on a horizontal criterion of the tenderer’s general understanding of the tender specifications.
122    Article 110(1) and Article 113(1) of the Financial Regulation, and Article 138(3) of the Delegated Regulation, in the versions of those regulations applicable at the material time, provide that the contracting authority must define, in documents relating to the call for tenders, the award criteria on the basis of which they will decide to whom the contract is to be awarded.
123    Those provisions seek to ensure compliance with the principles of equal treatment and transparency, enshrined in Article 102 of the Financial Regulation, in the version applicable at the material time, in particular at the stage of the selection of tenders with a view to award of the contract.
124    According to settled case-law, the principle of equal treatment implies inter alia, in the field of public procurement, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being evaluated by the contracting authority. That means, more specifically, that the award criteria must be formulated, in the tender specifications or the contract notice, in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way and that, when the tenders are being evaluated, those criteria are to be applied in an objective and uniform manner to all tenderers (see the judgment of 10 October 2012, Evropaïki Dynamiki v Commission, T‑247/09, not published, EU:T:2012:533, paragraphs 67 and 68, and the case-law cited).
125    The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It 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 (see the judgment of 10 October 2012, Evropaïki Dynamiki v Commission, T‑247/09, not published, EU:T:2012:533, paragraph 69 and the case-law cited).
126    Those provisions leave to the contracting authority the choice of the award criteria against which the tenders will be evaluated. In that regard, it must be recalled that the case-law cited in paragraph 47 above, according to which the contracting authority has a wide discretion with regard to the factors to take into for the purpose of deciding to award a contract following an invitation to tender, and that Court will carry out only a limited review in that regard (see, to that effect, the judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑698/14, not published, EU:T:2016:476, paragraph 89).
127    The fourth plea in law must be examined in the light of the provisions and principles set out above.
128    As a preliminary matter, having regard to the observations submitted by the ECHA at the hearing, it must be clarified that that plea in law was expressly raised in the application, and the applicants substantiated it with new arguments at the stage of the reply. Therefore its admissibility cannot be contested.
129    In the first place, it must be recalled that the fact that the content of the tender submitted by the European Dynamics consortium complied with the tender specifications does not mean that the negative assessments made by the evaluation committee on that tender resulted from the introduction of new award criteria, which were not mentioned in the documents relating to the call for tenders.
130    The same is true of the fact that all the negative comments did not necessarily correspond literally to one explicit requirement of the technical specifications (see, to that effect, the judgment of 26 September 2014, Evropaïki Dynamiki v Commission, T‑498/11, not published, EU:T:2014:831, paragraph 133). In that regard, it must be recalled that an evaluation committee must be able to have some leeway in carrying out its task. Accordingly, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (judgment of 21 July 2011, Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 35).
131    In the second place, contrary to the applicants’ submissions, the comments by the evaluation committee regarding insufficient examples illustrating more concretely the proposal for service delivery for the scenario contained in the tender submitted by the European Dynamics consortium does not mean that that committee took into account an award criterion that was not set out in the tender specifications. On the contrary, as the ECHA submits, the presence of examples may be capable of reflecting the tenderer’s proper understanding of the services sought. Similarly, the selection, by the tenderers, of the information and detail included in the tender shows the understanding by the latter of the services sought. Hence, the comments relating to insufficient examples or details in the tender submitted by the European Dynamics consortium are indissociably linked to the assessment of the award criteria (see, to that effect, the judgment of 12 December 2012, Evropaïki Dynamiki v EFSA, T‑457/07, not published, EU:T:2012:671, paragraph 122). They do not therefore reveal the existence of additional award criteria.
132    In the third place, it is clear from the evaluation committee’s report that the value of the tenders was indeed evaluated with regard to the technical criteria referred to in the tender specifications. The fact that, as the ECHA states in its defence, the points relating to each of the criteria and sub-criteria defined in the tender specifications were awarded after completion of an evaluation of the whole of the technical offer submitted by each tenderer cannot call that finding into question. Therefore, even if the objection were validly made, the argument that the ECHA considered that the general understanding of the tender specification was a more important criteria than the criteria made public must be rejected.
133    It follows that the fourth plea in law and, therefore, the forms of order in respect of annulment in so far as they are directed against the decision rejecting the tender submitted by the European Dynamics consortium, must be rejected.
134    With respect to the action for annulment of the decisions awarding the contract to the successful tenderer, it must be rejected failing a specific plea in law in its regard, following the dismissal of the action for annulment of the decision to reject the tender submitted by the European Dynamics consortium, to which it is closely connected (see, to that effect, the judgments of 8 July 2015, European Dynamics Luxembourg and Others v Commission, T‑536/11, EU:T:2015:476, paragraph 378).
The claims for damages
135    The applicants seek damages as compensation for the loss of opportunity of being awarded the contract at issue, resulting from the alleged serious breach of the Financial Regulation and the applicable rules, resulting from both the failure to state reasons and the numerous manifest errors of assessment committed by the ECHA. They consider the amount of their loss to be the lump sum of EUR 520 000, corresponding to 10% of the value of the contract.
136    The ECHA refers to the conditions of the contract which exclude any compensation and submits that the conditions for it to have liability are not met.
137    Under the second paragraph of Article 340 TFEU, ‘in the case of non-contractual liability, the Union shall, 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’.
138    In accordance with the case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (judgments of 11 July 1997, Oleifici Italiani v Commission, T‑267/94, EU:T:1997:113, paragraph 20, and of 9 September 2008, MyTravel v Commission, T‑212/03, EU:T:2008:315, paragraph 35). The condition of unlawful conduct of the EU institutions requires that there be a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, the judgment of 9 September 2008, MyTravel v Commission, T‑212/03, EU:T:2008:315, paragraph 29).
139    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 for non-contractual liability (judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81, and of 10 December 2009, Antwerpse Bouwwerken v Commission, T‑195/08, EU:T:2009:491, paragraph 91).
140    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 European Union have been satisfied.
141    In the present case, as the applicants confirmed at the hearing, the claim for damages was based on the unlawful conduct alleged under the first and second pleas in law made in support of the application for annulment, relating to the alleged failure adequately to state reasons and the manifest errors of assessment respectively.
142    Those two pleas in law and, more generally, all of the pleas submitted by the applicants in support of their application for annulment were examined by the Court and rejected as unfounded.
143    In addition, it may be observed that, since European Dynamics Belgium did not participate as a tenderer in the tender procedure at issue, it does not justify how it suffered the prejudice alleged in support of the claim for damages, namely loss of a chance to be awarded the contract.
144    Consequently, the claim for damages and, therefore, the action in its entirety must be dismissed as unfounded.
Costs
145    Under Article 134(1) 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. As the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the ECHA.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      [As rectified by order of 2 March 2018] Orders European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear their own costs and those incurred by the European Chemicals Agency (ECHA).
Tomljenović
Bieliūnas
Marcoulli
Delivered in open court in Luxembourg on 1 February 2018.
E. Coulon
Registrar
President
* Language of the case: English.