Keywords

Summary



Keywords

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a procedure for the award of a public service contract not to accept a tender

(Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a procedure for the award of a public service contract not to accept a tender

(Council Regulation No 1605/2002, Art. 100(2))

3. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link

(Art. 288, second para., EC)

Summary

1. 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. Therefore, in so far as, during a Community procurement procedure, it is following a comparison with the other bids, and in particular the successful tenderer’s bid, that the Commission has decided not to accept the bid submitted by the applicant undertaking, the Commission does not correctly fulfil its obligation to state reasons where the information provided by the Commission, at the request of the applicant undertaking, concerning the characteristics and relative advantages of the tender selected consist merely of a table indicating, on the one hand, the scores obtained by the applicant undertaking and by the successful tenderer for the qualitative award criteria and, on the other hand, the final ratio obtained by applying the formula in the tender specifications in order to determine the best quality/price ratio and do not therefore contain even a brief comment on the successful tenderer’s bid.

In particular, the elements of the assessment of the quality of the successful tenderer’s bid as regards the qualitative award criteria are all the more necessary where, despite the fact that the successful tenderer offered a price that was higher than that offered by the applicant undertaking, the Commission considered that the successful tenderer’s bid offered the best quality/price ratio.

(see paras 46, 49, 67, 69-73)

2. During a Community procurement procedure, the Commission’s obligation to state reasons does not, under the principle of transparency, require it to disclose the report of the evaluation committee or a copy of the successful tenderer’s bid. Article 100(2) of the Financial Regulation provides merely that the contracting authority, when requested in writing, is to disclose the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded, within 15 days of receipt of a written request.

(see para. 127)

3. Where, during a Community procurement procedure, a Commission decision eliminating a tenderer is vitiated by defective reasoning and must therefore be annulled, 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 undertaking as the eliminated tenderers. Indeed, there is no ground for concluding that the Commission would have awarded the contract in question to that undertaking if the decision in question had been adequately reasoned. Moreover, in so far as a claim for damages is based on other pleas that were not considered in the context of the claim for annulment, it is premature and must be rejected on that ground. Since the annulled decision contains inadequate reasons, the Court is not in a position to examine whether that decision is the result of a manifest error of assessment or infringement of the principles of equal treatment and transparency. An application for annulment based on those pleas can only, if necessary, be considered in the light of the grounds of the decision that replaces the decision annulled by the Court.

(see paras 143-144, 146)