Case T‑126/13

Direct Way

and

Directway Worldwide

v

European Parliament

‛Public service contracts — Tendering procedure — Transport for Members of the European Parliament — Decision declaring unsuccessful and closing the tendering procedure and initiating a negotiated procedure — Award of the contract to another tenderer — Equal treatment — Substantial change in the original terms of the contract’

Summary — Judgment of the General Court (Sixth Chamber), 29 October 2015

European Union public contracts — Tendering 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

European Union public contracts — Tendering procedure — Award of contracts — Recourse to a negotiated procedure after closure of an open procedure — Award of the contract to a tenderer which submitted a tender at a higher price than that proposed by an unsuccessful tenderer under the open procedure — No infringement of the principle of equal treatment of tenderers

Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action against a decision which has been implemented — Action of a tenderer, in a public contract award procedure, against an award decision implemented in favour of another tenderer — Admissibility

Actions for annulment — Time-limits — Point from which time starts to run — Date of notification of the decision — Day on which a measure came to the knowledge of the applicant — Measure communicated by email

Actions for annulment — Time-limits — Point from which time starts to run — Date of publication — Day on which a measure came to the knowledge of the applicant — Subsidiary matter — Publication of a contract award notice containing brief information not enabling an unsuccessful tenderer to exercise its right of action — Such publication not constituting the date on which time begins to run for the purposes of bringing an action

Actions for annulment — Time-limits — Point from which time starts to run — Decision neither published nor notified to the applicant — Precise knowledge of the content and reasons — Duty to request the whole text of the decision within a reasonable time once its existence is known

See the text of the decision. (see paras 22-24)

Only a measure whose legal effects are binding on the applicants and are capable of affecting their interests by bringing about a distinct in their legal position is an act or decision which may form the subject-matter of an action for annulment within the meaning of Article 263 TFEU. In that regard, as a general rule, a decision to organise a tender procedure has no adverse effects, since it does no more than give to interested parties the possibility of taking part in the procedure and submitting a tender. Thus, where the applicants have participated in a negotiated procedure, the decision to initiate that procedure cannot have adversely affected them. Furthermore, although the negotiated procedure can be initiated only in specific circumstances, such as where irregular or unacceptable tenders have been submitted in response to an open procedure which has been completed, provided for in Article 127(1)(a) of Regulation No 2342/2002, laying down detailed rules for the implementation of Regulation No 1605/2002, the fact remains that it constitutes an autonomous procedure distinct from any other tendering procedure and, in particular, from the open procedure, within the meaning of Article 91 of Regulation No 1605/2002, on the Financial Regulation applicable to the general budget of the European Communities. (see paras 26-28)

See the text of the decision. (see para. 30)

It is clear from the wording of the sixth paragraph of Article 263 TFEU that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the period prescribed for initiating proceedings, is subsidiary to the criteria of publication or notification of the measure. In the case of a decision to award a public contract which has not been published in the Official Journal of the European Union or on the internet, where the institution concerned merely publishes a contract award notice containing brief information that does not enable an unsuccessful tenderer effectively to exercise its right to bring proceedings before the EU judicature, the publication date of that notice cannot constitute the date on which time begins to run for the purposes of bringing an action for annulment. In those circumstances, it is appropriate to refer to the date on which the applicant became aware of the contested act, namely the time at which he had precise knowledge of the content and the grounds of the act in question, in such a way as to be able effectively to exercise his right of action. (see paras 31, 34, 35)

A decision is properly notified, for the purposes of the sixth paragraph of Article 263 TFEU, where it is communicated to the person to whom it is addressed and the latter is put in a position to become acquainted with it, which means that valid notification can be effected by email. The same reasoning may be applied as regards a communication of an institution by email and registered letter. However, sending an email does not necessarily guarantee that it is actually received by the person to whom it is addressed. An email may not reach him for technical reasons. Furthermore, even where an email actually reaches the person to whom it is addressed, it may not be received on the day on which it was sent. (see paras 37, 38)

See the text of the decision. (see paras 42, 44)

The period for bringing an action laid down in the sixth paragraph of Article 263 TFEU is a matter of public interest and the strict application of EU rules on procedural time limits serves the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. In those circumstances, to accept that an applicant could, in an action for annulment of a decision, rely on irregularities in respect of an earlier act, annulment of which he could have sought, would make it possible indirectly to challenge earlier decisions which were not contested within the period for bringing proceedings prescribed in Article 263 TFEU, thereby circumventing that time limit. (see paras 57, 58)

See the text of the decision. (see paras 62-65)

The fact that the contracting authority has accepted a tender in the context of a negotiated procedure at a slightly higher price than that previously proposed by an unsuccessful tenderer in an open procedure cannot constitute an infringement of the principle of equal treatment of tenderers for a public contract. In the first place, although the negotiated procedure may be initiated by the contracting authority only in specific situations, such as where irregular or unacceptable offers have been submitted in response to an open procedure which has been completed, provided for in Article 127(1)(a) of Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (‘the Implementing Rules’), the fact none the less remains that it is an autonomous procedure, distinct from any other contract award procedure and, in particular, from the open procedure. In that regard, it is not possible to compare the price proposed by the applicants during the open procedure with the price proposed by the successful tenderers during the negotiated procedure, as the two procedures are distinct. In the second place, on the assumption that the applicants’ situation during the open procedure could be regarded as comparable to the successful tenderer’s situation during the negotiated procedure, quod non, in the context of an award made according to the most economically advantageous tender, price is only one of the four award criteria. Consequently, the contracting authority is at liberty to award the contract to a tenderer proposing a high price, but whose tender is of higher quality, in the light of the other award criteria specified. (see paras 67, 69, 72)

Neither Article 127(1)(a) nor Article 130 of the Implementing Rules suggests that the price proposed by one of the tenderers in the open procedure must be regarded as an original term of the contract that must not be substantially altered. On the contrary, Article 130 of the Implementing Rules permits the view that the original terms of the contract include, in particular, the exclusion and selection criteria, the award criteria and their weighting, and also the technical specifications. Moreover, it would be illogical to take the view that the price proposed by the applicants in the open procedure must be regarded as a maximum threshold that cannot be exceeded in a distinct procedure, in particular where the contract is awarded to the most economically advantageous tender, namely, following an evaluation also relating to quality criteria and therefore not limited to the price proposed. (see paras 88, 89)

Even though the directives concerning the award of public service contracts are not applicable to public contracts concluded by the EU administration, the rules or principles laid down in or derived from those directives can be relied on as against that administration when they themselves simply appear to the specific expression of fundamental rules of the Treaty and of general principles of law which are directly applicable to the EU administration. That is not the case with the provisions of Directive 92/50, relating to the coordination of procedures for the award of public service contracts, concerning the alteration of a public contract during its currency by the contracting authority, those provisions not being comparable to Article 127(1)(a) of the Implementing Rules. Therefore, a judgment of the Court of Justice interpreting Directive 92/50 is of no relevance. (see paras 91, 92)