Order of the General Court (Ninth Chamber) of 16 May 2018 –

Argus Security Projects v Commission and EUBAM Libya

(Case T‑206/17)

(Action for annulment — Public service contracts — Competitive negotiated procedure — Supply of security services as part of the European Union Integrated Border Management Assistance Mission in Libya — Rejection of one tenderer’s bid and award of the contract to another tenderer — Circumstances subsequent to the award of the tender — Substantial change in the original terms of the contract — Action manifestly lacking any foundation in law)

1. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure — Action against a decision, in a procedure for award of a public contract, not to accept a tender and to award the contract to another tenderer — Grounds of challenge — Grounds based on information of which the contracting authority was not aware at the time of adoption of the decision — Not included (Art. 263 TFEU) (see paras 26, 27)

2. Actions for annulment — Judgment annulling a measure — Effects — Obligation to implement — Reopening of the procedure at the stage at which the irregularity was found to have occurred — Lawfulness (Art. 266 TFEU) (see para. 29)

3. Actions for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Retroactive effect of annulment — Obligation to ensure that the annulled measure is not replaced by a measure affected by the same iregularity (Art. 266 TFEU) (see paras 30, 31)

4. European Union public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see paras 42, 52)

5. European Union public contracts — Tender procedure — Award of contracts — Award criteria — Method of assessment — Discretion of the awarding authority (see para. 53)

6. European Union public contracts — Tender procedure — Award of contracts — Compliance of a tender with instructions to tenderers — Negative assessment of a tender by the awarding authority — Factor capable of establishing the introduction of new award criteria — Not included (European Parliament and Council Regulation No 966/2012; Commission Regulation No 1268/2012) (see para. 58)

7. European Union public contracts — Tender procedure — Applicability of the principles laid down or identified under directives concerning the award of public contracts for works, supply and services — Condition — Comparability of those rules or principles with provisions applicable to EU public contracts (see para. 63)

8. European Union public contracts — Tender procedure — Substantial amendments made to the provisions of a public contract during its period of validity — Consequences — Creation of a new autonomous contract that should be subject to a new contract award procedure — Bearing on the legality of a decision rejecting the bid of a tenderer — None (European Parliament and Council Regulation No 966/2012, Art. 116(1)) (see paras 64-67)

Re:

Application based on Article 263 TFEU seeking annulment of the decision of EUBAM Libya of 24 January 2017 not to accept the tender submitted by the applicant for the award, by means of a competitive negotiated procedure, of the contract relating to security services as part of EUBAM Libya for integrated border management in Libya (EUBAM-13-020 contract) and to award the contract to Garda World Ltd.

Operative part

1. Dismisses the application;