Case T‑556/11

(publication by extracts)

European Dynamics Luxembourg SA and Others

v

European Union Intellectual Property Office

‛Public service contracts — Tendering procedure — Software development and maintenance services — Rejection of a tenderer’s bid — Classification of a tenderer in the cascade procedure — Grounds for exclusion — Conflict of interest — Equal treatment — Duty of diligence — Award criteria — Manifest error of assessment — Duty to state reasons — Non-contractual liability — Loss of opportunity’

Summary — Judgment of the General Court (Fourth Chamber), 27 April 2016

Actions for annulment — Action against a decision, in the procedure for award of a public service contract, not to accept a tender — Decision to award the contract closely linked to the decision to allocate the contract — Dismissal of the application for annulment of the award decision entailing dismissal of the application for annulment of the allocation decision

Acts 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 — Use in the calculation of the tenderers’score of a formula allowing deduction of points for certain award sub-criteria and their allocation to other tenders — Awarding authority not explaining the correlation between the negative assessments of a tender and the deductions of points made — Not permissible

Acts 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 on the awarding authority to notify, on written request, the characteristics and relative advantages of the tender accepted and the name of the successful tenderer — No obligation to provide a detailed summary as how every detail of the rejected tender was taken into account for assessment purposes, or a detailed comparative analysis of the accepted tender and the unsuccessful tender

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Plea based on illegality of the technical award criteria of a public contract and based on an argument referring to an annex to the application — Admissibility — Conditions

In the matter of the award of public contracts, the existence of structural links between two companies, one of which took part in the drafting of the tender specifications and the other took part in the tendering procedure for the public contract in question, is, in principle, capable of causing a conflict of interest within the meaning of Article 94(a) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities. However, the risk of a conflict of interest appears to be less significant when the company or companies responsible for the preparation of the tender specifications are not themselves part of the tenderer consortium, but are merely members of the same group of undertakings as that to which the company that is a member of the consortium also belongs. In that regard, the mere finding of a relationship of control between a parent company and its various subsidiaries is not sufficient for the awarding authority to be able automatically to exclude one of those companies from the tendering procedure, without checking whether that relationship actually impacted on its conduct in the context of that procedure. The same also applies, a fortiori, to the finding that certain preparatory work was carried out by a company belonging to a group of undertakings, another company of which is taking part, as a member of a tendering consortium, in the tendering procedure, since the latter company must be allowed to demonstrate that that situation involves no risk whatsoever for competition between tenderers. Moreover, for as long as the tendering procedure is still ongoing and no contract has yet been awarded or signed in the context thereof, a conflict of interests alleged as a cause of exclusion cannot apply, that conflict being still uncertain and hypothetical. For a tenderer to be in a conflict of interest situation, the purported conflict of interest must have affected the timing or outcome of the tendering procedure. (see paras 43, 45, 57)

In the matter of the award of public contracts, the existence of a conflict of interest must lead the awarding authority to exclude the tenderer concerned, where that approach is the only measure available to avoid an infringement of the principles of equal treatment and transparency, which are binding in any procedure for the award of a public contract, that is to say, where no less restrictive measures exist in order to ensure compliance with those principles. A conflict of interest is, objectively and in itself, a serious irregularity without there being any need to qualify it by having regard to the intentions of the parties concerned and whether they were acting in good or bad faith. (see para. 46)

According to the first subparagraph of Article 134(3) of Regulation No 2342/2002, laying down the rules for implementing Regulation No 1605/2002, at the end of the tendering procedure, namely before the contract is awarded, the successful tenderer is expected to submit ‘a recent extract from the judicial record or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of origin or provenance’ showing that none of the grounds for exclusion within the meaning of Article 93(1)(a), (b) or (e) of Regulation No 1605/2002 is met. That evidence cannot be replaced by a sworn or solemn declaration made by the interested party before a judicial or administrative authority, a notary or a qualified professional body in his country of origin or provenance. In those circumstances, where the awarding authority contents itself with a solemn declaration by way of proof of absence of the cause of exclusion referred to in Article 93(1)(e) of Regulation No 1605/2002 whereas the tender specifications establish an express obligation to produce specific proof in that regard, non-compliance with which must lead to the exclusion of the tenderer concerned, that awarding authority clearly breaches its duty of diligence in investigating the existence, in particular, of the ground for exclusion laid down in the tender specifications and in Article 93(1)(e) of that Regulation. Accordingly, it infringes those provisions and the principle of equal treatment between tenderers which require, in accordance with the duty to exclude laid down in the tender specifications, the exclusion of the tenderer concerned. (see paras 71, 76, 77)

Under Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, and Article 44(1)(c) of the 1991 Rules of Procedure of the General Court, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to consistent case-law it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. In that regard, concerning a plea based on several manifest errors of assessment which relate to the various award criteria and sub-criteria for awarding a public contract, where the latter are of a technical nature, the question whether the essential elements of fact and law on which the various complaints are based, are apparent — at least briefly or summarily, but coherently and intelligibly — from the wording of the application itself can be decided only in the context of an assessment of the merits of each of those complaints. In the case of a plea based on an argument referring to an annex to the application, such an assessment alone is capable of determining whether either the considerations expounded in the annex to the application merely support and supplement the body of the application on specific issues, inter alia, by references to specific passages in that annex, or, with respect to some of those complaints, a general reference has been made to the disclosure in that annex which does not offset the lack of key arguments in fact and in law which must be set out in the application itself. In those circumstances, rather than declaring such a plea inadmissible, it is appropriate to reserve the examination of the admissibility of the considerations set out in an annex to the application and to proceed to the assessment of the merits of the various complaints raised in the context of the said plea, alleging manifest errors of assessment with regard to the application of the technical award criteria, while recognising that that assessment must be based, primarily, on the arguments of fact and law set out in the application itself. (see paras 83-88)

The wording of an award criterion in the context of a procedure for awarding a public contract must be sufficiently clear, precise and unambiguous to enable all reasonably informed tenderers exercising ordinary care to interpret them in the same way and to place the awarding authority in a position to apply them objectively and uniformly by checking whether their tenders meet the requirements of the said criterion. However, where, in an action against the decision of the awarding authority to reject a tender, the tenderer does not expressly and directly call into question the vagueness or lack of clarity of that award criterion, the EU judicature is not entitled to raise of its own motion the legality as such of that criterion and must restrict its review to the express arguments put forward by the said tenderer. (see paras 101, 102)

Where the reasons given in support of the decision to reject a tender prevent both the tenderer and the EU judicature from making an assessment of the merits of the awarding authority’s evaluation in that regard, that assessment is vitiated by inadequate reasoning that the EU judicature must raise of its own motion as a matter of public policy and that the awarding authority may no longer remedy in the course of the proceedings. (see para. 145)

In the matter of the award of public contracts, for the awarding authority to list a posteriori the award sub-criteria in the evaluation report constituting the qualitative assessment of the tenders is manifestly contrary to settled case-law to the effect that, in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers be aware of all the features to be taken into account by the awarding authority in identifying the economically most advantageous offer, and, if possible, of their relative importance, when they prepare their tenders and that, accordingly, a awarding authority cannot apply, in respect of the award criteria, sub-criteria which it has not previously brought to the tenderers’ attention. (see para. 193)

In the matter of the award of public contracts, a tenderer is entitled to challenge indirectly the lawfulness of the financial assessment formula used in the tender specifications and used by the awarding authority in the course of the comparative assessment of the tenders. With respect to the substantive legality of the choice of the disputed financial assessment formula, the awarding authority has a broad discretion as to the choice, content and implementation of the relevant award criteria related to the contract at issue, including those the purpose of which is to determine the most economically advantageous tender, those criteria having to correspond to the nature, purpose and specific characteristics of that market and to serve as best they can the targeted needs and objectives pursued by the awarding authority. (see para. 215)

See the text of the decision. (see paras 240, 241, 244, 245, 257)

Although, in principle, the awarding authority has a broad discretion as to the choice of prioritised award criteria and points to be awarded in respect of the different criteria and sub-criteria and is not required to provide the unsuccessful tenderer with a detailed summary of how each detail of its tender was taken into account for the evaluation thereof, the fact remains that, in the event that the awarding authority made such a choice, the EU judicature must be able to verify, on the basis of the tender specifications and statement of reasons of the award decision, the respective weight of the different technical award criteria and sub-criteria in the assessment, that is to say, in the calculation of the total score, and the minimum and maximum number of points for each of those criteria or sub-criteria. Moreover, when the awarding authority annexes specific assessments as to the manner in which the tender in question fulfils or otherwise those criteria and sub-criteria, which are clearly relevant to the overall score of the tender, the duty to state reasons necessarily includes the need to explain how, in particular, negative assessments gave rise to the deduction of points. Compliance with that requirement is all the more necessary given that the possible deduction of net points in respect of certain sub-criteria or sub-points automatically results, under the formula applied by the awarding authority, in the increase in the number of gross points to be allocated to the successful tenderers’ tenders in respect of their technical quality. In other words, it is in a tenderer’s interest to know how points were deducted for each of the sub-criteria and sub-points in respect of which the evaluation report contains a negative assessment in order to be in a position to argue that, given the manifestly erroneous nature of that assessment, that deduction — entailing a corresponding increase in points in favour of the other tenderers — was not justified. In that regard, even where a tenderer’s bid is awarded, in respect of its technical quality, the maximum gross point score, it retains, under the principle of effective judicial protection referred to in Article 47 of the Charter of Fundamental Rights of the European Union, which is intrinsically linked to the duty to state reasons, an interest in knowing the extent to which the negative assessments put forward by the awarding authority have resulted in a deduction of net points whose scope and justification could be decisive in the context of the review of the lawfulness of both individual and comparative assessment of tenders. (see paras 250, 251, 253)

See the text of the decision. (see para. 261)

In order for the European Union to incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon. Those principles apply mutatis mutandis to the non-contractual liability incurred by the European Union within the meaning of that provision, as a result of the unlawful conduct and damage caused by one of its bodies, such as EUIPO, for which the latter is liable under Article 118(3) of Regulation No 207/2009 on the Community trade mark. (see para. 264)

With regard to the non-contractual liability of the EU in the matter of the award of public contracts and the existence of a causal link between the illegality committed and the damage allegedly suffered, where the decision to reject a tender is vitiated by various shortcomings in the statement of reasons, that illegality is not capable as such of rendering the EU liable because it is not capable of showing that, had the reasoning not been inadequate, the contract could, or should, have been awarded to the applicant. However, as regards the causal link between the substantive illegalities found, namely the infringement of the principle of equal treatment of tenderers and the manifest errors of assessment, on the one hand, and the loss of opportunity, on the other, the institution concerned cannot merely claim that, in view of its broad discretion as a awarding authority, it was not obliged to sign a framework contract with the applicant. Where the infringement of the principle of equal treatment of tenderers, in conjunction with that of Article 93(1)(e) of the Regulation No 1605/2002 and the manifest errors of assessment made by the awarding authority in the context of the individual assessment of the applicant’s bid have necessarily affected the latter’s chance of being ranked higher in the cascade procedure and of becoming, at least, the third successful tenderer, it follows that, even taking account of the awarding authority’s broad discretion with respect to the award of the contract at issue, the loss of opportunity suffered by the applicant constitutes actual and certain damage. Furthermore, in a situation in which, at the end of the proceedings before the EU judicature, there is a significant risk that the contract at issue has already been implemented in full, the very lack of acknowledgment by the EU judicature of the loss of such an opportunity and the need to grant compensation in that regard is 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 does not provide the unsuccessful tenderer with any advantage, with the result that it is apparent that the loss of opportunity is irremediable. Moreover, because of the conditions governing interlocutory proceedings before the President of the General Court, the tenderer whose tender was assessed and unlawfully rejected is, in practice, only rarely able to obtain suspension of the operation of such a decision. (see paras 265, 266, 268-271)