Case T‑299/11

(publication by extracts)

European Dynamics Luxembourg SA and Others

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

‛Public service contracts — Tendering procedure — Supplies of external service provision for programme and project management and technical consultancy in the field of information technologies — Ranking of a tenderer in the cascade procedure — Award criteria — Equal opportunities — Transparency — Manifest error of assessment — Obligation to state reasons — Non-contractual liability — Loss of an opportunity’

Summary — Judgment of the General Court (Fourth Chamber), 7 October 2015

Non-contractual liability — Conditions — Causal link — Damage resulting, for a tenderer, from the loss of a contract under a tender procedure — Decision of an institution to award the contract vitiated by an infringement of the principles of equal opportunity and transparency and by manifest errors of assessment — Existence of a causal link

Act of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer — No obligation on the contracting authority to provide a detailed analysis of the tender accepted and the tender of the unsuccessful tenderer — Account taken, by way of reasoning, of the replies of an institution to the requests of a discarded tenderer — Limits

European Union public contracts — Tender procedure — Duty to comply with the principles of equal treatment of tenderers — Need to ensure equal opportunities and comply with the principle of transparency — Scope — Weighting of subcriteria within an award criterion not provided for in the tender specifications or communicated in advance to tenderers — Not permissible

In accordance with the principle of equal treatment, the contracting authority is required to ensure, at each stage of a tendering procedure, that equal treatment is observed and, in consequence, that all tenderers enjoy equal opportunities. Similarly, the principle of equal treatment means that tenderers must be on an equal footing both when they prepare their tenders and when those tenders are 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. In addition, the principle of transparency, which is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority, 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 contract notice or tender specifications in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner and, second, to enable the contracting authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question. In those circumstances, the contracting authority cannot apply a weighting of sub-criteria which it has not previously brought to the tenderers’ attention. Thus, by carrying out a weighting of the various sub-criteria within that award criterion which is not provided for by the tender specifications or communicated in advance to the tenderers, the contracting authority breaches, to the detriment of the unsuccessful tenderers, the principles of equal opportunities and transparency. (see paras 44, 48, 53)

See the text of the decision. (see para. 58)

There is a failure to provide reasons, for the purposes of the second paragraph of Article 296 TFEU, read in conjunction with Article 100(2) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (‘the General Financial Regulation’), where, by reason of lack of precision in the tender specifications and a brief and vague judgment of the committee for evaluating tenders, it is impossible for both an unsuccessful tenderer and the EU judicature to verify the plausibility of a criticism put forward by the contracting authority regarding the inclusion of a senior project manager and a project manager and, thus, to rule on whether it is vitiated by a manifest error of assessment. (see paras 85, 86)

Simple factual or calculation errors, which are not capable of affecting the outcome of a procedure, cannot justify the annulment of the contested act. (see para. 107)

Under the first paragraph of Article 100(2) of the General Financial Regulation, the contracting authority cannot be required to communicate to a tenderer who was unsuccessful, first, in addition to the reasons for the rejection of its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of the notification of the characteristics and relative merits of the successful tender, a detailed comparative analysis of the successful tender and that of the unsuccessful tenderer. Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report. The EU judicature nevertheless verifies whether the method applied by the contracting authority for the technical evaluation of the tenders is clearly set out in the tender specifications including the various award criteria, their respective weighting in the evaluation, that is to say in the calculation of the total score, and the minimum and maximum number of points for each criterion. Moreover, where the contracting authority sends a letter following a request for additional information about an award decision before an action is brought, but after the date laid down in Article 149(3) of Regulation No 2342/2002 laying down detailed rules for the implementation of the General Financial Regulation (‘the Implementing Rules’), that letter may also be taken into account in order to examine whether the reasoning in the particular case was sufficient. The requirement to state reasons must be assessed in the light of the information which an applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement. (see paras 129, 130)

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 set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between the alleged conduct and the damage complained of. In the case of a public contract award decision vitiated by various failures to state reasons, it is not possible to recognise the existence of a causal link between those failures to state reasons and the damage allegedly suffered by an unsuccessful tenderer, since failure to state reasons is not capable as such of entailing liability on the part of the Union, in particular because it is not such as to demonstrate that, were that failure not present, the contract could or even should have been awarded to the applicant. However, as regards the causal link between the substantive unlawful conduct found, namely the breach of the principles of equal opportunity and transparency and manifest errors of assessment, on the one hand, and the loss of an opportunity, on the other hand, the contracting authority cannot merely contend that, in view of its broad discretion as a contracting authority, it was not obliged to award the contract to the applicant. It must be held that, in the case of substantive unlawful conduct committed by the contracting authority as part of individual and comparative assessments of the bids of the tenderers, such unlawful conduct was likely to affect the applicant’s opportunity to be ranked in first or second position in the cascade mechanism. That is particularly true of a comparative assessment of those tenders under an award criterion in the context of which the contracting authority was guided by a manifestly erroneous reading of the tender specifications. (see paras 140-144)

In the case of an action by an unsuccessful tenderer seeking compensation for damage allegedly suffered through loss of opportunity to be awarded a contract, even taking into account the broad discretion of the contracting authority to award the contract at issue, the loss of opportunity suffered by the applicant constitutes an actual and certain harm. In that regard, in a situation in which, at the conclusion of the proceedings before the General Court, there is a significant risk that the contract at issue will already have been performed in full, the very failure by the EU judicature to acknowledge the loss of such an opportunity and the need to grant compensation in that regard would be contrary to the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union. In such a situation, the retroactive annulment of an award decision no longer provides any benefit to the unsuccessful tenderer, meaning that the loss of opportunity is irremediable. Moreover, it should be borne in mind that, because of the conditions governing interlocutory proceedings before the President of the General Court, the tenderer whose bid has been evaluated and unlawfully rejected is, in practice, only rarely able to obtain suspension of the operation of such a decision. As regards the extent of the compensation for damage related to the loss of an opportunity, account must be taken of the estimated value of the contract at issue, as stated in the contract notice, of the probability of success of the applicant’s bid, of the duration of the contract concluded with the successful tenderer, of the net profit which the applicant could have obtained during the performance of the contract, and of the profits otherwise realised by the applicant from not being awarded the contract at issue in order to avoid it being overcompensated. In addition, in order to determine the total amount that may be awarded as compensation in respect of the loss of an opportunity, it is necessary to multiply the established net profit by the probability of success. (see paras 144, 145, 149-154)

Where the EU judicature is not able, in the light of the evidence on the file, to rule definitively on the amount of compensation that the Union must pay to an applicant for loss of an opportunity, it is appropriate, for reasons of economy of procedure, to give an initial interlocutory ruling on the liability of the Union. The determination of the amounts of compensation resulting from the unlawful conduct of the Union is thus deferred to a later stage, either by mutual agreement of the parties, or by the Court in the absence of such an agreement. (see para. 147)