Case T-688/13: Action brought on 24 December 2013 — Deloitte Consulting v Commission
Date: 2013-12-24
Institutions: General Court
Subjects: administrative transparency, award of contract, conflict of interest, invitation to tender, lawyer








C_2014093EN.01002303.xml










29.3.2014   


EN


Official Journal of the European Union


C 93/23





Action brought on 24 December 2013 — Deloitte Consulting v Commission
(Case T-688/13)
2014/C 93/41
Language of the case: English

Parties


Applicant: Deloitte Consulting CVBA (Diegem, Belgium) (represented by: K. De hornois and N. Korogiannakis, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






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Annul the Decision of the Defendant to select the tender of the Applicant as fourth cascade contractor in the context of the Call for Tenders DIGIT/R2/PO/2013/004 ABC III — Information and Communication Technology Advice, Benchmarking and Consulting Services (Lot 2) communicated to the Applicant by a letter dated 15 October 2013 and to award the contract to the consortia PWC-EVERIS as first contractor, KPMG-TRASYS-KURT SALMON as second contractor and CGI Accenture as third contractor;










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Annul at least the attacked Decision for as much as it did not exclude the first cascade contractor PWC-EVERIS for having included information on its financial offer within its technical offer;










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Order the Defendant to pay the Applicant’s damages suffered for loss of the contract or alternatively for loss of opportunity on account of the tendering procedure in question;










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Order the Defendant to pay the Applicant’s legal costs and expenses incurred in connection with this Application.





Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.






1.


First plea in law, alleging infringement of the obligation to state reasons and non-disclosure of the relative merits of the successful tenderers — art. 113 par. 2 of the Financial Regulation and of Article 161 par. 2 and 3 of the Delegated Regulation and infringement of an essential procedural requirement- of the principle of the right to an effective remedy;






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Although the subject matter of the tender being of high technical complexity and strategic importance, the content of the extracts of the Evaluation Report are short, superficial, simplistic, lacking indication of the strong and weak points of the evaluated tenders, limited to ‘qualifications’ without describing at all the substance of the answer. For some of the sub-criteria there is absolutely no motivation explaining the scores of the tenderers whereas the comments of the Evaluation Committee are often inconsistent with the scores awarded to the different tenderers. The deficiencies of the motivation of the attacked Decision impede the judicial review of the contested Decision, infringing the principle of the right to an effective remedy.














2.


Second plea in law, alleging infringement of the obligation to use clear award criteria, based on which the contract can be awarded objectively; Violation of the distinction between selection criteria and award criteria;






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The Technical Specifications consist of a considerable amount of vague sub-criteria. Hence, well informed and normally diligent tenderers are not able to interpret the specific award criterion. There is no clear indication on what would constitute a good or less good approach nor is there a qualitative element demonstrating which indicators could lead to a better or worse result. Furthermore, the Evaluation report contains a reference to selection criteria, which have been used to evaluate the technical proposal of the tenderers.














3.


Third plea in law, alleging non-compliance with the provisions of the tender specifications. Infringement of the principles of Transparency and Good Administration — Infringement of the Instructions to the tenders — reference of price within the technical offer;






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One of the winning tenderers revealed important financial elements in the technical section of the tender, leading to the latter being inadmissible, since it infringed specific provisions of the Tender Specifications as well as the principle of non-discrimination and the Guidebook for Public Procurement of DIGIT that applies to the current case.














4.


Fourth plea in law, alleging infringement of Article 107 (1a) of the Financial Regulation and of section 5.2.3.2. of the Tender Specifications — a conflict of interest;






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Following article 107 of the Financial Regulation, the Defendant should assess whether the tenderers are subject to a conflict of interest during the procurement procedure for the framework contract, contrary to the case-by-case assessment during the execution of the framework contract that the Defendant privileges in this case. Any tenderer who was subject to a conflict of interest, as described during the award procedure, should have been excluded before the award of the framework contract and not, as the Defendant privileges itself in this case, on a case-by-case basis during the execution of the contract. Section 5.2.3.2. of the Tender Specifications is a requirement even more stringent than the conflict of interest as defined in article 107 of the Financial Regulation. Based on the above, the Defendant should have rejected some of the winning tenderers.