Contents
Judgment of the General Court (Fourth Chamber)7 October 2015note(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)In Case T‑299/11,European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),European Dynamics Belgium SA, established in Brussels (Belgium),represented initially by N. Korogiannakis and M. Dermitzakis, and subsequently by I. Ampazis, lawyers,vOffice for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by N. Bambara and M. Paolacci, acting as Agents, and P. Wytinck and B. Hoorelbeke, lawyers,THE GENERAL COURT (Fourth Chamber),composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written procedure and further to the hearing on 21 January 2015,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
Background to the dispute
1The applicants, European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE and European Dynamics Belgium SA, are active in the area of information technology and communications and regularly participate in calls for tenders issued by various EU institutions and bodies, including the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
2By contract notice of 28 August 2010, OHIM published a call for tenders in the Supplement to the Official Journal of the European Union (OJ 2010/S 167-255574), with reference AO/021/10, entitled ‘External service provision for programme and project management and technical consultancy in the field of information technologies’, in response to which the first applicant submitted a bid on 11 October 2010. The contract to be awarded concerned the provision of external services related to the management of programmes and projects in the field of information technologies, as well as the provision of technical consultancy related to all types of information systems in all technological areas.…
4Under point II.1.4 of the contract notice, the procurement contract concerned the award of framework contracts for a maximum duration of four years with a maximum of three service providers. In that regard, Point 14.2 of the tender specifications (Annex I to the tender documentation) stated that those framework contracts had to be concluded in accordance with the ‘cascade’ mechanism. Under that mechanism, if the first-ranked tenderer is unable to provide the services required, OHIM will turn to the second-ranked tenderer, and so on and so forth. Furthermore, under point IV.2 of the contract notice, the contract had to be awarded to the most economically advantageous tender.
5In respect of the technical evaluation, the tender specifications required the tenderers to set out ‘the tasks and activities to be performed to manage and successfully achieve the project presented in Work Hypothesis No 1’. Under that work hypothesis, set out in Annex 18 to the tender specifications, OHIM intended to set up a ‘project to build an information system’.
6To that end, Point 13.3 of the tender specifications set out five award criteria which are as follows:— ‘[Award] Criterion 1: based on its methodology and experience, the tenderer must present the tasks and activities he/she would perform in terms of project management. This includes in particular (but not exclusively):a. Progress control [that is to say checking the progress of the work];b. Issue management process;c. Change management process;d. Escalations;e. Lessons learnt programme;f. Communications plan;g. Deliverable acceptance procedures(maximum 40 points with a minimum threshold of 20 points);— [Award] Criterion 2: based on its methodology and experience, the tenderer must present the tasks and activities he would perform in terms of technical consultancy. This could include in particular (but not exclusively), activities such as:a. Architecture assessment;b. Performance analysis;c. Security assessment;d. Integration with other systems(maximum 30 points with a minimum threshold of 10 points);— [Award] Criterion 3: the estimated effort allocated to each task and activity of the project management (10 points);— [Award] Criterion 4: the estimated effort allocated to each task and activity of the technical consultancy (10 points);— [Award] Criterion 5: the planning of the execution of all these tasks and activities (using Microsoft Project or equivalent programme) (10 points).’…
8By letter of 28 March 2011, OHIM informed the applicants of the outcome of the tendering procedure AO/029/10 (‘the award decision’) and notified them that the first applicant’s bid had been ranked third, positioning it in the cascade system as a reserve contractor.…
11By letter of 11 April 2011, OHIM disclosed to the first applicant the names of the other successful tenderers which had been ranked first and second, which were, respectively, first, Consortium Unisys SLU and Charles Oakes & Co. Sàrl, with the subcontractor Unisys Belgium SA, and, second, ETIQ Consortium (by everis and Trasys). That letter also included a table stating the scores obtained by each successful tenderer for the various technical quality criteria.
12The table concerned is the following:
13In addition, in that letter OHIM set out the reasons why it had awarded the first applicant’s bid the number of points set out in the last column of the abovementioned table for each of the relevant technical quality criteria. As regards the first applicant’s third, fourth and fifth requests (see paragraph 10 above), OHIM stated that, pursuant to the guidelines on public access to documents concerning public procurement procedures, it was not allowed to disclose the evaluation report, the names of the members of the Evaluation Committee or the financial bids of the other successful tenderers.…
19By joint letter of 18 April 2011, the applicants informed OHIM that the vague and generic statement of reasons given in the latter’s letter of 11 April 2011 was inadequate and did not allow them to exercise their rights. Furthermore, they repeated their request that, inter alia, the financial bids of the other successful tenderers and a full copy of the evaluation report be sent to them. Moreover, the applicants gave detailed reasons, in relation to each of OHIM’s evaluations of the different technical quality criteria of their bid, as to why, in their view, the contracting authority’s assessment was deficient and incorrect, and even vitiated by manifest errors of assessment. Lastly, the applicants invited OHIM to review the outcome of its assessment, to provide them with detailed reasons for its decisions and to correct the manifest errors of assessment identified.
20By letter of 29 April 2011, OHIM sent the applicants a table containing the scores that had been awarded to their financial bid and to the bids of the other successful tenderers.| Criterion 1 (60) | Criterion 2 (40) | Sum Points (100) | Finance PointsETIQ Consortium (by everis and Trasys) | 60,00 | 35,59 | 95,59 | 100,00European Dynamics | 40,00 | 40,00 | 80,00 | 83,69Consortium Unisys SLU and Charles Oakes & Co. Sàrl | 34,14 | 38,61 | 72,75 | 76,11Furthermore, as regards the assessment of the technical award criteria, OHIM informed the applicants that it would provide them with a complete answer in the following working days.…
22By letter of 2 May 2011, sent by fax dated 12 May 2011, OHIM essentially repeated its assessments contained in its letter of 11 April 2011 as regards the evaluation of the technical quality of the first applicant’s bid.…
28By letter of 13 May 2011, the applicants challenged OHIM’s approach and stated that it was now obliged to bring an action before the General Court.
Qualitative criteria | Consortium Unisys | ETIQ Consortium | European DynamicsQuality criteria 1 (40) | 40,00 | 21,88 | 22,81Quality criteria 2 (30) | 28,00 | 20,00 | 24,50Quality criteria 3 (10) | 10 | 6 | 4Quality criteria 4 (10) | 6 | 6 | 8Quality criteria 5 (10) | 7 | 7 | 8Sum of points (100) | 91,00 | 60,88 | 67,31Total technical points | 99,86 | 66,80 | 73,87
Procedure and forms of order sought
29By application lodged at the Court Registry on 6 June 2011, the applicants brought the present action.
30After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was, consequently, assigned.
31Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure.
32At the hearing held on 21 January 2015, the parties presented their oral arguments and answered the questions asked by the Court.
33At the hearing, the applicants withdrew, first, their fourth plea, alleging breach, inter alia, of the principle of equal treatment, of Articles 93(1)(f), 94 and 96 of Council Regulation (CE, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the General Financial Regulation’), as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1), and of Articles 133 and 134 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of [the General Financial] Regulation (OJ 2002 L 357, p. 1; ‘the Implementing Rules’), and, second, their head of claim relating to compensation for damage in respect of loss of the reasonably expected profit. In addition, as regards the order of 12 September 2013 in European Dynamics Luxembourg and Others v OHIM (T‑556/11, ECR, EU:T:2013:514), OHIM withdrew its plea of inadmissibility directed against the applications for annulment and for compensation. Formal notice of those withdrawals was taken in the minutes of the hearing.
34The applicants claim that the Court should:— annul the award decision, notified to them by means of the letter of 28 March 2011, ranking their bid third in the cascade mechanism;— annul all other related decisions of OHIM, including those awarding the contract in question to the tenderers ranked first and second in the cascade mechanism;— order OHIM to pay compensation of EUR 650000 for the harm suffered by the applicants due to the loss of an opportunity and the damage to their reputation and credibility;— order OHIM to pay the costs.
35OHIM contends that the Court should:— dismiss the action as unfounded;— order the applicants to pay the costs.
Law
1.The application for annulment
Summary of the grounds for annulment
36In support of their application for annulment, the applicants put forward, after withdrawing the fourth plea (see paragraph 33 above), three pleas in law.
37By their first plea, the applicants claim that OHIM infringed the first subparagraph of Article 100(2) of the General Financial Regulation and Article 149 of the Implementing Rules and the obligation to state reasons, within the meaning of the second paragraph of Article 296 TFEU, by refusing to provide an adequate explanation or justification for the award decision.
38By their second plea, the applicants allege an ‘infringement of the tender specifications’, in so far as OHIM applied, to their detriment, new award criteria not included in those tender specifications.
39By their third plea, the applicants complain that OHIM committed several manifest errors of assessment.
40The Court considers it appropriate to assess, first, the second plea, then, the third plea and, finally, the first plea.
The second plea in law alleging infringement of the requirements set out in the tender specifications
41In that plea, the applicants challenge, in particular, the comparative analysis, in respect of the first award criterion, of their bid compared to the other successful tenderers’ bids, which the contracting authority set out in its letter of 2 May 2011. In that letter, it is stated in that regard, in particular, that ‘… the offers [of the other successful tenderers] with very good or excellent Criterion 1 presented “very good use of the Prince2 framework, by explaining first the framework” and then defining the way in which it would be cited at OHIM, so that the offers contain both theoretical and practical aspects of the use of the Prince2 framework’. Moreover, in that same letter, those bids ‘identified change management and communication as the two most essential tasks for the success of the project’ (see paragraph 23 above).
42According to the applicants, in essence, that assessment by the contracting authority is not supported in the tender specifications and is based on elements, including the Prince2 methodology, which were not brought to the tenderers’ attention in good time. Nor is it clear from the tender specifications that the two sub-criteria ‘change management’ and ‘communication’ were, in OHIM’s view, the ‘most essential’. Accordingly, the contracting authority introduced, a posteriori, a new criterion and gave a new weighting to those sub-criteria.
43OHM considers that this plea in law is based on an erroneous reading of its letter of 2 May 2011, which does not show that new award criteria were introduced. First, OHIM recalls that, by virtue of the first award criterion, the tenderers were invited to describe the tasks and activities that they would carry out in respect of project management. Prince2 is one of several available methodologies which the applicants themselves choose for that purpose. Second, the fact that it was mentioned that the best bids ‘identified change management and communications as the two most essential tasks for the success of the project’ does not amount to the introduction of a new award criterion or the application of a weighting factor established a posteriori, as the tender specifications made it clear that the tenderers had to describe the tasks and the activities that they would carry out in respect of project management, including the change management process and communications plans. No specific score was linked to those two sub-criteria and OHIM simply confirmed that the other successful tenderers had correctly understood that change management and communication were the two most essential tasks.
44It must be recalled that, 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. This 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 (judgment of 17 February 2011 in Commission v Cyprus, C‑251/09, EU:C:2011:84, paragraphs 39 and 40; see also, to that effect, judgment of 25 October 2012, Astrim and Elyo Italia v Commission, T‑216/09, EU:T:2012:574, paragraphs 35 and 36 and the case-law cited). 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 (see to that effect, judgments in Astrim and Elyo Italia v Commission, EU:T:2012:574, paragraph 37, and of 16 September 2013 in Spain v Commission, T‑402/06, ECR, EU:T:2013:445, paragraph 67 and the case-law cited).
45As regards the first complaint alleging that OHIM applied an award criterion not provided for in the tender specifications, it is certainly true that the Prince2 methodology or framework is not expressly mentioned in those specifications, since the first award criterion requires, in particular, that ‘the tenderer must present the tasks and activities he/she would perform in terms of project management’. However, first, it is clear from the first applicant’s bid that the methodology that was proposed is ‘based on the widely adopted internationally OGC best practice project method Prince2 and is used to describe an approach to projects within the ITIL context’ and that that method ‘will be the dominant methodology to be applied in the project’. Second, it is undisputed that the bids of the other successful tenderers were also based on the Prince2 methodology, which allowed the contracting authority to conduct the comparative analysis referred to in paragraph 41 above.
46In those circumstances, the applicants’ complaint that OHIM established a posteriori a new award criterion, namely the Prince2 methodology, which was neither provided for in the tender specifications nor disclosed, in good time, to the tenderers cannot be accepted. OHIM’s assessment of the first applicant’s bid was clearly guided by the criterion ‘based on its methodology and experience’, which is not affected by the fact that, in the case of that bid and that of the bids from other successful tenderers, that methodology precisely matched that of Prince2. On the contrary, that fact in itself demonstrates that all the successful tenderers had been well aware that the first award criterion allowed them to base their bids on that methodology. Accordingly, the contracting authority cannot be criticised for having compared the bids concerned in terms of the criteria of that methodology, which could only facilitate the comparison of their respective qualities and foster the objectivity of the comparative assessment. Finally, the requirements of that award criterion must be clearly distinguished from point 2.3 of Annex II to the tender specifications according to which ‘[t]he methodology used by the OHIM for project management is a customisation of Prince2’ in respect of which it is clearly stated that it ‘will be made available to the contractor [only] at the beginning of the framework contract’, meaning that it could not be a model to which tenders should be adapted.
47Accordingly, the first complaint must be rejected as unfounded.
48As regards the second complaint, the Court finds that the applicants rightly argue that the contracting authority indeed gave to the sub-criteria ‘change management’ and ‘communication’ a more significant weight than the other criteria set out in the first award criterion. The reasons unambiguously set out in OHIM’s letter of 2 May 2011, according to which the bids from the other successful tenderers ‘identified change management and communication as the two most essential tasks for the success of the project’, cannot be understood otherwise. It demonstrates that the contracting authority endorsed the approach proposed by the other successful tenderers on the basis of a weighting of those sub-criteria which is not clear from the wording of the first award criterion. Given the case-law cited in paragraph 44 above, the contracting authority cannot apply a weighting of sub-criteria which it has not previously brought to the tenderers’ attention (see, to that effect, judgment of 24 January 2008 in Lianakis and Others, C‑532/06, ECR, EU:C:2008:40, paragraph 38).
49In that regard, first, it should be noted that the ‘change management’ and ‘communications plan’ comprised only two sub-criteria among a set of seven sub-criteria which were listed at the same level and on a non-exclusive basis under the first award criterion, namely, progress control, issue management process, change management process, escalations, lessons learnt programme, communications plan and deliverable acceptance procedures, and in respect of which the contracting authority intended to award a maximum number of 40 points (see paragraph 5 above). Nor is it apparent from the wording of that criterion or other relevant parts of the tender specifications that the contracting authority intended, where appropriate and for specific undisclosed reasons, to afford a different weight to those sub-criteria for the presentation of the project presented in Work Hypothesis No 1, or even to assign, when evaluating the bids submitted in the light of the first award criterion, higher or lower scores depending on whether those bids focused on either one or the other of those sub-criteria. That is particularly so, in respect of the sub-criteria ‘change management’ and ‘communications plan’, in respect of which it was not stated in the tender specifications that the contracting authority considered that they represented ‘the two most essential tasks for the success of the project’.
50Second, in accordance with the general explanations, in the tender specifications, of the requirements which have to be fulfilled by the tenderers, those tenderers were invited to present ‘the tasks and activities to be executed to manage and successfully achieve the project presented in Work Hypothesis No 1’ which were set out in Annex 18 to the tender specifications and covered the establishment by OHIM of a ‘project to build an information system’. As a result, the description in the bids submitted of the tasks and the activities related to the various sub-criteria under the first award criterion referred necessarily to that project which was by definition the same for all tenderers.
51In those circumstances, the phrase ‘identified change management and communication as the two most essential tasks for the success of the project’ can be understood only as comprising an absolute and general value judgment on the particular importance of the sub-criteria ‘change management’ and ‘communications plan’ (‘the most essential’) as part of the project envisaged by OHIM under Work Hypothesis No 1 (‘for the success of the project’), of which the bids of the other successful tenderers would have taken account, and, conversely, as a criticism of the first applicant’s bid for failing to have followed an approach similar to that proposed by those successful tenderers to that end.
52In that regard, OHIM is not justified in claiming, in essence, that the reasoning referred to above should be understood as a value judgment on the sufficient quality of the bids of the other successful tenderers which was based on the identification of two specific sub-criteria, namely ‘change management’ and ‘communications’, since that judgment is not severable from a specifically abstract and preliminary upgrading of the sub-criteria as compared to the other five sub-criteria listed in the first award criterion. Moreover, if only for the reasons set out in paragraphs 48 to 51 above, it does not appear credible that the contracting authority failed to assign a specific number of points from the total of 40 points available to the various sub-criteria which were referred to therein (see also paragraphs 93 and 94 below).
53Thus, it must be concluded that the negative comparative judgment made by the contracting authority on the first applicant’s bid on that point has no support in the wording of the first award criterion. In particular, the weighting underlying that judgment did not appear to be sufficiently clear, precise and unequivocal from that criterion to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner. By applying, contrary to the requirements arising from the case-law cited in paragraphs 44 and 48 above, a weighting of the various sub-criteria within that award criterion which was not provided for by the tender specifications or communicated in advance to the tenderers, OHIM therefore breached, to the detriment of the applicants, the principles of equal opportunities and transparency.
54Consequently, the second complaint must be upheld.
55Accordingly, the second plea must be, in part, rejected and, in part, upheld.
The third plea in law, alleging manifest errors of assessment
Preliminary observations
56The applicants submit that the incomplete information provided by OHIM contains numerous serious and manifest errors of assessment, without which the first applicant’s bid could have been ranked first in the ‘cascade’ mechanism. According to them, those errors vitiate the contracting authority’s assessment of each award criterion laid down in the tender specifications. In that context, the applicants challenge, in particular, the negative comments set out in OHIM’s letters of 11 April and 2 May 2011.
57As regards the contracting authority’s assessment in respect of the first award criterion, the applicants put forward 11 complaints which must be assessed, hereafter, either individually or — when they overlap — in combination. In that regard, it should be recalled that that award criterion required the tenderer to present ‘the tasks and activities he/she would perform in terms of project management’, which was to include, specifically, but not exclusively, 7 sub-criteria, namely progress control, issue management process, change management process, escalations, lessons learnt programme, communications plan and deliverable acceptance procedures (see paragraph 5 above).
58Moreover, it should be pointed out that the contracting authority has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 23 November 2011 in bpost v Commission, T‑514/09, EU:T:2011:689, paragraph 121 and the case-law cited).
The alleged manifest errors of assessment relating to the first award criterion
…
–The sixth complaint
81By its sixth complaint, the applicants dispute OHIM’s assessment that there was no need for a programme manager, a senior project manager and a project manager for each project. Having regard to the requirements of Work Hypothesis No 1, in Chapters 2 and 4 of their bid the applicants presented and justified their proposal to set up a project office, which included a programme manager and a senior project manager, based on their experience, as required by the tender specifications.
82It should be recalled that, in its letter of 11 April 2011, OHIM pointed out that ‘[t]here is no need for a programme, a senior project and a project manager for every project as stated in the offer [of the applicants]’. In its pleadings before the Court, OHIM confirmed that it would be wrong for the applicants to assume that OHIM ran all of its projects under the same programme, which led them to propose a solution with a programme manager, a senior project manager and a project manager for each project. However, the limited size and scope of the project to be used as an example, namely Work Hypothesis No 1, did not justify the use of those three profiles.
83In that regard, it should be noted that it follows from the general description, in the tender specifications, of the requirements to be met by tenderers that they were supposed to present ‘the tasks and activities to be executed to manage and successfully achieve the project presented in Work Hypothesis No 1’. In addition, Work Hypothesis No 1, as set out in Annex 18 to the tender specifications merely outlined a single ‘project to build an information system’ and not a programme encompassing various projects of that type, such that the contracting authority was entitled to criticise the applicants’ proposal for a programme manager.
84However, it is not apparent from the tender specifications, as clearly and precisely as required under the case-law cited in paragraph 44 above, in particular from the first award criterion and the definition of Work Hypothesis No 1, that OHIM intended to invite tenderers to submit a solution which did not encompass the profiles of the senior project manager and project manager, as proposed by the applicants. Similarly, OHIM failed to explain the reasons for which the proposal of such profiles would be incompatible with Work Hypothesis No 1. Finally, unlike the defence that it advanced against the first to fifth complaints, OHIM has not contended that, on that point, the applicants departed from the Prince2 methodology. Given the lack of precision of the tender specifications in that regard, it must be recalled that the applicants were free, under the first award criterion, to present the tasks and activities to be carried out in the area of project management based on their own methodology and experience.
85Given, in particular, that lack of precision in the tender specifications and the brief and vague judgment of the Evaluation Committee, it is impossible for both the applicants and the Court to verify the plausibility of the criticism advanced 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.
86In those circumstances it must be concluded that there was a failure to provide reasons, on that point, for the purposes of the second paragraph of Article 296 TFEU, read in conjunction with Article 100(2) of the General Financial Regulation (see paragraphs 125 to 135 below).
–The eighth complaint
87By the eighth complaint, the applicants challenge the final comment of the Evaluation Committee under the first award criterion, according to which ‘[t]he whole offer [of the first applicant] is very operational instead of strategic and focuses on a different kind of project manager [from that envisaged by OHIM]’. That comment is arbitrary and not substantiated by the tender specifications. The first applicant’s bid satisfies all of the requirements of the tender specifications and best practices in the field of project management, namely Prince2. In that regard, the applicants refer to point 4.1.1 of their bid, entitled ‘Organisation structure’ proposing a unified central structure in which all the project, including independent projects, such as that referred to by Work Hypothesis No 1, and programme projects, will be directed, managed, controlled and monitored by the project office. The programme manager is a member of the project office and has an overall view while exercising general control over all of the projects and programmes carried out under the framework contract in order to ensure their effective, smooth and appropriate management. Therefore, by penalising the first applicant’s bid on the basis of a requirement not stipulated in the tender specifications, namely the fact that ‘OHIM [has] run all of its projects under the same programme’, OHIM committed a manifest error of assessment.
88In the proceedings, OHIM merely put forward, in that regard, the argument set out in paragraph 82 above. In line with the findings set out in paragraph 84 above, it must be noted that, in the absence of sufficiently clear and precise criteria set out in the tender specifications, the final comment of the Evaluation Committee, especially the vague criticism alleging that OHIM envisaged a ‘different kind of project manager’ is not comprehensible, so that neither the applicants nor the Court can verify whether it is plausible and therefore the question as to whether or not this criticism is vitiated by a manifest error of assessment. This is all the more so given that, by virtue of the first award criterion, tenderers were supposed to present the tasks and activities to be performed for project management, based on their own methodology and their own experience and therefore not on the basis of any possible OHIM practice or experience, which was not described in the tender specifications.
89In those circumstances, it must be held that there was a failure to provide reasons, on that point, for the purposes of the second paragraph of Article 296 TFEU, read in conjunction with Article 100(2) of the General Financial Regulation (see paragraphs 125 to 135 below).
–The 9th to 11th complaints
90By the 9th to 11th complaints, the applicants challenge, in essence, the allegedly missing, evasive and vague response of OHIM in its letter of 2 May 2011, in particular regarding the scoring and comparative evaluation of their bid, under the first award criterion, compared to the bids of other successful tenderers. OHIM merely states, in a vague way, that the two other bids were considered better because they presented both ‘theoretical and practical aspects of the use of the Prince2 framework’ and ‘identified change management and communication as the two most essential tasks for the success of the project’. However, in points 2.1.1 and 2.1.2 of their bid, the applicants also presented the theoretical and practical aspects of the Prince2 project management methodology and provided a detailed proposal for the change management and communication tasks applied in the case of OHIM’s project. Furthermore, in points 2.2 to 2.11 of their bid, the applicants gave a detailed explanation of the practical aspects of the use of their Prince2-based methodological approach for the management of the project and the performance of the project management tasks under Work Hypothesis No 1. Likewise, point 2.5 of that bid contains a detailed description of the approach to be followed for change management and in points 2.10 and 2.8 of their bid the applicants’ proposed communications plan and escalation procedures are presented, without OHIM having explained what is allegedly missing or how the content of the other bids is better in this respect (9th complaint). Furthermore, the first award criterion did not require the tenderers to specify the importance of the proposed project management tasks, which is contrary to best practices and well-established methodologies at international level. In any event, the applicants presented a very well-defined, coherent and neatly structured project management methodology, according to which all project management processes, activities and tasks are essential for the successful completion of that project (10th complaint). Finally, OHIM does not give reasons for the very low score of 22.81 points awarded to the first applicant’s bid for the first award criterion, whereas the successful tenderer ranked first was awarded the maximum score of 40 points (11th complaint).
91It is appropriate to refer, first, to the considerations set out in paragraphs 48 to 53 above in response to the second plea, alleging that the negative comparative judgment of the first applicant’s bid according to which the bids of the other successful tenderers ‘identified change management and communication as the two most essential tasks for the success of the project’ is vitiated by a breach of the principles of equal opportunities and transparency, in so far as that judgment has no support in the wording of the first award criterion and, therefore, applies a weighting, not communicated in advance to the tenderers, of the various sub-criteria within that award criterion. It necessarily follows that the judgment lacks plausibility and is also vitiated by a manifest error of assessment in the weighting of those sub-criteria.
92Thereafter, during the proceedings, OHIM did not consider it appropriate to take a position on the detailed arguments of the applicants, or on how the Evaluation Committee had reached an aggregate score of 22.81 out of a total of 40 points in relation to the first applicant’s bid, as stated in OHIM’s letter of 2 May 2011. Nevertheless, at the hearing, in response to a specific question from the Court, OHIM, in essence, explained that, in the present case, when assessing the first applicant’s bid, the evaluators did not use a mathematical formula that resulted in the deduction of certain points by sub-criterion or for certain negative comments, but rather awarded an overall score for the general quality of the entire section of the bid relating to the first award criterion. In that regard, awarding a score to two decimal places (22.81) is due to the fact that the bids were evaluated by several evaluators whose initial scores added together were subsequently divided by the number of those evaluators.
93The Court considers that those explanations, which were not set out in OHIM’s letter of 2 May 2011, are late and also implausible. In that regard, due to the lack of precision in the tender specifications regarding the actual weighting of the various sub-criteria within the first award criterion and of documentary evidence submitted by OHIM for that purpose, the Court must reject as not credible OHIM’s argument that the evaluators did not link the award of certain points to those sub-criteria which were listed under that award criterion and by virtue of which tenderers could reach a maximum of 40 points. Next, as the applicants argued at the hearing, it does not appear to be any more credible that the evaluators did not use a mathematical formula or at least awarded fractions of points by sub-criterion for the purpose of evaluating tenders with regard to that award criterion. Even assuming that the aggregated evaluations are divided by the total number of evaluators, as claimed by OHIM, in the absence of such a mathematical approach or an allocation of fractions of points by sub-criterion, it would not have been possible to come to an aggregate score to two decimal places. Therefore, OHIM’s argument according to which it gave an overall score for the entire section of the first applicant’s bid relating to the first award criterion cannot succeed.
94It must be noted that OHIM’s letter of 2 May 2011 does not provide any relevant explanation in this regard. The letter does no more than state in a vague manner that ‘the offers [of the other successful tenderers] with very good or excellent criterion 1 presented “very good use of the Prince2 framework, by explaining first the framework” and then defining use of it to be made at … OHIM, so that the offers contain both theoretical and practical aspects of the use of the Prince2 framework’. In addition, OHIM simply notes in that letter that those bids ‘identified change management and communication as the two most essential tasks for the success of the project’ in order to conclude that ‘by comparison, the Evaluation Committee found the proposals of higher quality than the offer from [the applicants]’. In the light of those inaccurate and incomplete evaluation findings outlined in that letter, which cover only some of the sub-criteria of the first award criterion and fail to specify the precise score that the contracting authority planned to give each of those sub-criteria and the silence of the tender specifications regarding the weighting of the sub-criteria in aggregate, neither the applicants nor the Court are in a position to understand how the contracting authority awarded, when carrying out its individual and comparative evaluations of the tenders submitted, the points available under the first award criterion and its various sub-criteria.
95Consequently, apart from the finding of manifest error of assessment referred to in paragraph 91 above, the Court is unable to reach a conclusion as to whether or not such manifest errors exist in that regard, precisely because the award decision fails to provide sufficient reasons for the purposes of the second paragraph of Article 296 TFEU, read in conjunction with the first subparagraph of Article 100(2) of the General Financial Regulation (see paragraphs 125 to 135 below).
–Interim conclusion
96In the light of all the foregoing considerations, subject to the assessment of the first plea, alleging several failures to state reasons, the ninth complaint of the present branch of the third plea, related to the first award criterion, must be upheld as regards the manifest error of assessment found in paragraph 91 above and that branch must be rejected, as to the remainder, as unfounded.
The alleged manifest errors of assessment linked to the second award criterion
97The applicants dispute the negative assessment of their bid under the second award criterion, as set out in the letter of 11 April 2011, according to which ‘[e]xamples of deliverables for the case study are missing: daily log, configuration item record, highlight reports’. In support of that branch, first, they argue, in essence, that OHIM did not reply to any of their detailed observations on this point in their letter of 18 April 2011. The tender specifications did not require any such example, but required only that tenderers present the tasks and activities which would have to be performed in the area of technical consultancy. Second, in point 6.2 of their bid, the applicants provided examples of the forms and templates used for each deliverable, which OHIM accepted in the end. Those templates are exhaustive and sufficiently detailed in that they have the structure, the sections and the exact content of the services to be provided under the hypothetical scenario outlined in the tender specifications. Third, in its letter of 2 May 2011, OHIM did not explain in what respect the other successful tenderers had displayed very good examples of deliverables, or why the quality of their bids had been considered to be higher than those of the applicants. The elements referred to by OHIM are not deliverables linked to the provision of technical consultancy services, but are project management-related deliverables proposed by the Prince2 methodology. At the hearing, the applicants added that, as stated in the rejoinder, as part of the evaluation of the bids under the second award criterion, OHIM judged as positive the submission, by other tenderers, of samples of previous projects, which would, first, introduce subsequently a new sub-criterion and, second, mix, illegally, the selection criterion relating to experience with the award criterion at issue. However, it clearly follows from point 11 of the tender specifications, entitled ‘Submission of samples’ that ‘the submission of a tender is not subject to submitting any samples’.
98OHIM replies that the word ‘examples’ used in the letter of 11 April 2011 must be interpreted as meaning, in essence, ‘giving a presentation’ of the proposed services. In that regard, the tender specifications required tenderers to describe how the tasks and activities would be performed and, therefore, to give an appropriate presentation of the services, supported by samples of those services provided on the basis of Work Hypothesis No 1. The negative comment relating to the fact that the first applicant’s bid contained only five ‘blank samples’ proves in itself, OHIM submits, that the quality was lower and that the applicants were aware of the need to include in their bid samples of services. Unlike the samples submitted by the other tenderers, including Accenture, which obtained the maximum score on this point, the blank samples submitted by the applicants were not adapted to Work Hypothesis No 1. At the hearing, OHIM stated that, in doing so, it did not evaluate the past experience of tenderers, but only took account of the fact that the samples submitted of the deliverables had added value in that they demonstrated that those tenderers had understood OHIM’s requirements and what was needed.
99It should be recalled, first, that, on the one hand, the second award criterion provided that ‘based on its methodology and experience, the tenderer must present the tasks and activities he would perform in terms of technical consultancy. This could include in particular (but not exclusively), activities such as: [an] Architecture assessment; [a] Performance analysis; [a] Security assessment; [and an] Integration with other systems’ and that, on the other hand, the first applicant’s bid obtained 24.5 out of a total of 30 points under that award criterion, while the other successful tenderers were awarded 28 and 20 points respectively.
100It is clear, then, that the criticism contained in OHIM’s letter of 11 April 2011, according to which the first applicant’s bid did not present any ‘[e]xamples of deliverables for the case study …’, is based on undisputed facts, given that the applicants did no more than submit blank samples or simple empty templates which were attached to point 6.2 of their bid.
101Nevertheless, it is not apparent from the tender specifications and, in particular, the second award criterion, that the tenderers were expected to submit ‘[e]xamples of deliverables for the case study’ or that such a submission was likely to be considered by the contracting authority as having added value, as OHIM claims in the course of the proceedings. On the contrary, as argued by the applicants, point 11 of the tender specifications, entitled ‘Submission of samples’ clearly provided that ‘[t]he submission of a tender is not subject to submitting any samples’. In that respect, the Court must reject as not credible OHIM’s argument according to which the word ‘examples’ used in the letter of 11 April 2011 must be interpreted as meaning, in essence, ‘giving a presentation’ of the proposed services, since the negative comment ‘[e]xamples of deliverables for the case study are missing …’ can only be understood in the sense that, according to the contracting authority, the applicants had failed to present such examples. Moreover, the reasons why the contracting authority considered that the first applicant’s bid offered an inadequate submission of the elements relating to the ‘daily log, configuration item record, highlight reports’, does not emerge with sufficient precision from that letter.
102Those findings are sufficient for the Court to hold that the negative comments outlined in OHIM’s letter of 11 April 2011 are not supported in the tender specifications and, therefore, are vitiated by a manifest error of assessment, without there being any need to examine the other complaints raised by the applicants in that context.
103Accordingly, the branch of the present plea relating to the assessment of the first applicant’s bid under the second award criterion must be upheld.
The alleged manifest errors of assessment relating to the third award criterion
104It should be recalled that the third award criterion required the tenderers to determine the ‘estimated effort allocated to each task and activity of the project management’ and that, in that respect, the first applicant’s bid was awarded only 4 points out of a total of 10 points. In support of that score, OHIM stated in its letter of 11 April 2011, as regards the negative aspects that ‘[t]here is no need for a programme manager for a project when this project is not attached to a programme (that was the case of Work Hypothesis No 1)[; t]oo many layers of overhead are present[; t]he estimated effort allocated to project management corresponds to 24% of the overall effort of the project presented in Work Hypothesis No 1’. In its letter of 2 May 2011, OHIM further stated that ‘better proposals did not include effort allocated to any programme manager and justified this accordingly’ and ‘[b]y comparison, the Evaluation Committee [had] preferred this approach and [had] better rated it’.…
107As regards, first, the calculation error or the assessment of the facts regarding the estimated effort allocated to programme management, namely 12% instead of 24%, it should be noted that, already during the tendering procedure, OHIM had recognised the existence of that error and, during the proceedings, produced an internal note of 24 April 2011, presenting alternative calculations supporting the finding that, even without the calculation error or in the event that the maximum of 10 points had been awarded to the first applicant’s bid, it would have been ranked third in the cascade mechanism. Such 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, to that effect, judgments of 19 October 2005 in Freistaat Thüringen v Commission, T‑318/00, ECR, EU:T:2005:363, paragraph 191 and the case-law cited, and 19 March 2010 Evropaïki Dynamiki v Commission, T‑50/05, ECR, EU:T:2010:101, paragraph 159).
108Consequently, that undisputed factual error cannot give rise to a finding of unlawfulness justifying the annulment of the award decision.…
111Consequently, the complaints directed against the assessment of the contracting authority with regard to the third award criterion must be rejected in their entirety.…
Conclusion on the third plea in law
121It follows from all the foregoing considerations that, subject to the assessment of the first plea, alleging several failures to state reasons, the Court must uphold, first, the ninth complaint in the first branch, related to the first award criterion in respect of the manifest error of assessment found in paragraph 91 above and, second, the second branch, related to the second award criterion, in its entirety (see paragraphs 97 to 103 above), and must reject the third plea as to the remainder.
The first plea, alleging failures to state reasons
122By their first plea, the applicants allege several infringements of Article 100(2) of the General Financial Regulation, Article 149 of the Implementing Rules and of the obligation to state reasons within the meaning of the second paragraph of Article 296 TFEU.
123In that context, the applicants ask the Court to order OHIM to produce the complete and non-confidential versions of bids from the other successful tenderers and the full evaluation report, including the comments relating to those bids. Furthermore, the applicants claim, in essence, that the extracts of the evaluation report relating to the assessment of their bid are, because of the incomplete and vague nature of those extracts, vitiated by several failures to state reasons preventing them from exercising their rights and making it impossible, at least in part, for the Court to review the legality of the award decision. This is particularly true as regards the incomplete and inadequate reasons set out in OHIM’s letter of 2 May 2011, which were held to justify the comparative evaluation of the first applicant’s bid in relation to those of the other successful tenderers.
124OHIM disputes those arguments and contends that the Court should reject the applicants’ request for measures of organisation of procedure or measures of inquiry.
125In that regard, it should be noted that, where, as in the present case, the institutions, bodies or agencies of the European Union have, in their capacity as contracting authorities, a broad power of appraisal, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; 20 May 2009 VIP Car Solutions v Parliament, T‑89/07, ECR, EU:T:2009:163, paragraph 61; and 12 December 2012 Evropaïki Dynamiki v EFSA, T‑457/07, EU:T:2012:671, paragraph 42).
126In the light of the obligation to state reasons laid down in the second paragraph of Article 296 TFEU, the author of the measure must disclose its reasoning in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review. In addition those 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 (see judgment of 21 February 2013 in Evropaïki Dynamiki v Commission, T‑9/10, EU:T:2013:88, paragraphs 25 and 26 and the case-law cited). Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question of whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 22 May 2012 in Evropaïki Dynamiki v Commission, T‑17/09, EU:T:2012:243, paragraph 40 and the case-law cited).
127In the area of public procurement, the first subparagraph of Article 100(2) of the General Financial Regulation and Article 149(3) of the Implementing Rules sets out the conditions under which the contracting authority fulfils its obligation to provide reasoning to the tenderers.
128Accordingly, under the first subparagraph of Article 100(2) of the General Financial Regulation, ‘[t]he contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded’.
129In that regard, according to settled case-law, under that provision, 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 (judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraphs 21 to 23; orders of 20 September 2011 in Evropaïki Dynamiki v Commission, C‑561/10 P, EU:C:2011:598, paragraph 27, and 29 November 2011 Evropaïki Dynamiki v Commission, C‑235/11 P, EU:C:2011:791, paragraphs 50 and 51). 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 (see, to that effect, judgment in Evropaïki Dynamiki v Commission, EU:C:2012:617, paragraph 29).
130It is also stated, in the case-law, that 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 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, to that effect, judgment in Evropaïki Dynamiki v Commission, cited in paragraph 126 above, EU:T:2013:88, paragraphs 27 and 28 and the case-law cited).
131As a preliminary point, it should be noted that, under the case-law cited in paragraph 129 above, the contracting authority is not obliged to provide the unsuccessful tenderer access to the full version of the tender of the successful tenderer awarded the contract at issue or the complete version of the evaluation report. In this instance, in the light of the parties’ written pleadings, the evidence placed on the file and the results of the hearing, the Court considers that it has sufficient information to rule on the present case (see, to that effect, judgment of 16 November 2006 in Peróxidos Orgánicos v Commission, T‑120/04, ECR, EU:T:2006:350, paragraph 80), so that there is no case for granting the applicants’ request for measures of organisation of procedure or measures of inquiry (see, to that effect, judgment of 24 September 2009 in Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P and C‑137/07 P, ECR, EU:C:2009:576, paragraph 319, and order of 10 June 2010 in Thomson Sales Europe v Commission, C‑498/09 P, EU:C:2010:338, paragraph 138).
132Next, as regards the reasons put forward a posteriori by OHIM, namely in its letters of 11 April and 2 May 2011, it is not disputed that those letters constitute, in themselves, an additional statement of reasons for the award decision, under the first subparagraph of Article 100(2) of the General Financial Regulation and Article 149(3) of the Implementing Rules, which the Court is entitled to take into consideration. In any event, even if OHIM’s letter of 2 May 2011 was sent to the applicants by fax of 12 May 2011, that is to say after the expiry of the period laid down by Article 149(3) of the Implementing Rules, calculated from when the applicants made their first request on 30 March 2011, that letter can be taken into account when reviewing whether the reasons for the award decision were sufficient (see the case-law cited in paragraph 130 above).
133It therefore remains to be established whether and to what extent those letters are vitiated by failures to state reasons, precisely on the ground that they do not enable the applicants to ascertain the reasons for the measure in order to exercise their rights or enable the EU judicature to exercise its review of the lawfulness of the substance of the decision.
134In that regard, it should be recalled that, in the context of the assessment of the 3rd plea, as regards the 6th and 8th to 11th complaints relating to the 1st award criterion and the branch relating to the 4th award criterion, the Court is unable to carry out an examination of the lawfulness of the substance of the award decision in so far as it is based on the individual and comparative assessment of tenders in the light of the technical award criteria at issue. The contested assessments were essential and necessary reasons for the proper understanding of the requirements resulting from the tender specifications, including the relative weight of certain sub-criteria, and the contracting authority’s individual and comparative evaluation of the tenders in that regard (see paragraphs 81 to 86, 87 to 89 and 90 to 95 above).
135It follows from this that the award decision is vitiated by several failures to state reasons within the meaning of Article 100(2) of the General Financial Regulation, read in conjunction with the second paragraph of Article 296 TFEU and that the first plea must be upheld.
Conclusion on the application for annulment
136In the light of all the foregoing, as a result of the errors of substance and form committed by OHIM, as found in relation to the first to third pleas, the award decision must be annulled in full, including in so far as it ranks the other successful tenderers in first and second position in the cascade mechanism (see the second indent of paragraph 34 above).
2.The claim for compensation
137As regards the claim for compensation, it should be recalled that, at the hearing, the applicants limited the scope of that claim by withdrawing their head of claim relating to compensation for damage in respect of loss of the reasonably expected profit, which was noted in the minutes of the hearing (see paragraph 33 above). In so doing, the applicants stated that they did not want to obtain compensation for the loss of the contract at issue, but only compensation for the loss of an opportunity to enter into that contract as the successful tenderer ranked first, which is therefore distinct from the loss of the contract itself (see, to that effect, judgments of 21 May 2008 in Belfass v Council, T‑495/04, ECR, EU:T:2008:160, paragraph 124, and 20 September 2011 Evropaïki Dynamiki v EIB, T‑461/08, ECR, EU:T:2011:494, paragraph 210), and also compensation for the non-material damage to their reputation and credibility.
138According to the applicants, in essence, the award of damages in the form of compensation is necessary due to the ‘definitive’ nature of the refusal to award them the contract in question, since it is likely that the contract will have been performed in full by the time that the final judgment, bringing the proceedings to an end, is handed down. Even if the Court were to annul the award decision and OHIM were to organise a new call for tenders, the ‘competitive’ conditions for the award of the contract in question would no longer be the same, which would amount to certain loss of an opportunity and would cause serious harm to the applicants. Thus, by signing a contract with the other successful tenderers, OHIM created an irrevocable factual situation, resulting in the definitive and irremediable loss of the opportunity of the applicants being awarded the contract. That loss represents quantifiable damage — as an economic value can be put on it, notwithstanding the uncertainty as to its exact quantification — which the applicants estimate at EUR 650000 in the present case, taking into consideration the value of the contract, the complexity of the technical issues and the prestige of the contracting authority. Against that background, the applicants dispute the argument that the initial contract period of one year and its possible extension for three years, as well as OHIM’s discretion to assign specific orders to the contractor, affect the causal link between the unlawful conduct of the contracting authority and the harm suffered. In any event, compliance with the fundamental principle of effective judicial protection requires the loss sustained by an aggrieved tenderer to be compensated in full.
139OHIM disputes those arguments and, in particular, the amount of compensation claimed in respect of loss of an opportunity and harm to the reputation and credibility of the applicants, the existence of such harm and, given the broad discretion of the contracting authority, the causal link between the alleged unlawful conduct and that harm, on the one hand, and the damage allegedly suffered, on the other hand.
140In accordance with the case-law, 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 that conduct and the damage complained of (see judgment of 15 October 2013 in Evropaïki Dynamiki v Commission, T‑474/10, EU:T:2013:528, paragraph 215 and the case-law cited).
141In that regard, it should be recalled that the claim for damages is based on the same unlawful conduct as that relied on in support of the application for annulment of the award decision and that the latter is vitiated by various instances of substantive unlawful conduct, including a breach of the principles of equal opportunities and transparency (see paragraph 53 above), manifest errors of assessment (see paragraphs 96, 102 and 121 above), and several failures to state reasons (see paragraphs 86, 89, 95, 134 and 135 above).
142However, as regards the existence of a causal link between those instances of unlawful conduct of substance and form and the damage allegedly suffered, it is settled case-law that a failure to state reasons is not likely as such as to entail liability on the part of the European 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 (see, to that effect, judgments of 20 October 2011 in Alfastar Benelux v Council, T‑57/09, EU:T:2011:609, paragraph 49; 17 October 2012 Evropaïki Dynamiki v Court of Justice, T‑447/10, EU:T:2012:553, paragraph 123; and 14 January 2015 Veloss International and Attimedia v Parliament, T‑667/11, EU:T:2015:5, paragraph 72).
143Therefore, in the present case, a causal link cannot be held to exist between the several failures to state reasons found and the harm invoked by the applicants.
144However, 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, OHIM cannot merely contend that, in view of its broad discretion as a contracting authority, it was not obliged to sign the framework contract with the applicants (see, to that effect, judgment in Evropaïki Dynamiki v EIB, cited in paragraph 137 above, EU:T:2011:494, paragraph 211). In the present case, it must be held that the substantive unlawful conduct committed by the contracting authority as part of individual and comparative assessments of the bids of the successful tenderers were likely to affect the first applicant’s opportunity to be ranked in first or second position in the cascade mechanism. This is particularly true given the comparative assessment of those tenders under the first award criterion under which OHIM was guided by a manifestly erroneous reading of the tender specifications and by virtue of which the first applicant’s bid received only 22.81 points out of a total of 40 points. It results from this moreover that, even taking into account the broad discretion of the contracting authority to award the contract at issue, the loss of opportunity suffered in the present case by the first applicant constitutes an actual and certain harm within the meaning of the case-law (see, to that effect and by analogy, judgment of 9 November 2006 in Agraz and Others v Commission, C‑243/05 P, ECR, EU:C:2006:708, paragraphs 26 to 42; Opinion of Advocate General Cruz Villalón in Giordano v Commission, C‑611/12 P, ECR, EU:C:2014:195, paragraph 61; and judgment in Evropaïki Dynamiki v EIB, cited in paragraph 137 above, EU:T:2011:494, paragraphs 66 and 67). In the present case, the mere fact that the first applicant was ranked third in the cascade mechanism and was thus accepted as a potential contractor, renders the premiss that the contracting authority could not be in a position to award it the contract in question implausible.
145Moreover, as the applicants rightly argue, in a situation like the present one, in which, at the end of the proceedings before the Court, there is a significant risk that the contract at issue has already 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 (order of 23 April 2015 in Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), ECR, EU:C:2015:275; order of 4 February 2014 in Serco Belgium and Others v Commission, T‑644/13 R, ECR, EU:T:2014:57, paragraph 18 et seq.).
146Therefore, the Court considers that, in the present case, it is necessary to compensate the first applicant in respect of the loss of an opportunity given that the award decision, even in the event of its annulment with retroactive effect, has in practice definitively nullified the possibility for it to have its bid ranked higher and therefore its chance of being awarded specific implementation agreements within the implementation part of a framework contract.
147However, as regards the extent of the compensation for damage related to the loss of an opportunity, estimated by the applicants at EUR 650000, the Court is not able, at this stage of the proceedings, in the light of the evidence on the file, to rule definitively on the amount of compensation that the European Union must pay to the first applicant. In view of the fact that it is not yet possible to assess the harm, it is therefore appropriate, for reasons of economy of procedure, to give an initial interlocutory ruling on the liability of the European Union. The determination of the amounts of compensation resulting from OHIM’s unlawful conduct is deferred to a later stage, either by mutual agreement of the parties, or by the Court in the absence of such an agreement (see, to that effect, judgment of 16 September 2013 in ATC and Others v Commission, T‑333/10, ECR, EU:T:2013:451, paragraph 199 and the case-law cited).
148However, to that end, in the present case, both the parties and the Court are required to take into account the following aspects.
149First, it should be borne in mind that the estimated value of the contract at issue, as found in the contract notice, is EUR 13000000, excluding tax, for the maximum period for the implementation of the framework contract of four years and that, therefore, the value in obtaining the framework contract for the first year is at least EUR 3250000.
150Second, it is necessary to determine the probability of success of the first applicant’s bid, namely the chance of it being ranked first or second in the cascade mechanism had the various instances of substantive unlawful conduct committed by OHIM during the tendering procedure not occurred. In that respect, account must be taken of the fact that the technical and financial bids of the first applicant were each ranked second (see the tables set out in paragraphs 12 and 20 above) and that according to the calculation method set out in point 13.5 of the tender specifications, the weighting of those bids for the award of the contract in question was 50/50.
151Third, account must be taken of the fact that the framework contract is awarded and signed only for an initial period of one year and that it is not certain that that contract will be renewed by OHIM for the subsequent three years (see point 14.3 of the tender specifications and point 1.2.5 of the draft framework contract). Moreover an evaluation must be made of the probability that the first contractor is capable of meeting the requirements of the various purchase orders issued by the contracting authority both during the first year of the performance of the framework contract and during subsequent years where the contract is renewed. It follows that it is necessary to adjust the probability of success by reference to the lack of certainty that the framework contract will be renewed and the possible inability of that contractor to fulfil those purchase orders.
152Fourth, it is necessary to determine the loss for which compensation may be awarded by taking into account the net profit which the first applicant could have obtained during the performance of the framework contract. In that regard, it must be recalled that the applicants claimed that, during the financial year 2006, in respect of commercial projects, the first applicant had realised a net profit of 10.33%.
153Fifth, it is necessary to deduct the profits otherwise realised by the first applicant from not being awarded the contract at issue in order to avoid it being overcompensated.
154Sixth, 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.
155Finally, concerning the alleged harm to the reputation and credibility of the applicants, suffice it to note that it is clear from the case-law that the possible annulment by the Court of the award decision is, in principle, sufficient to repair the damage caused by that harm to reputation (see, to that effect, order of 20 September 2005 in Deloitte Business Advisory v Commission, T‑195/05 R, ECR, EU:T:2005:330, paragraph 126), without there being any need to rule on whether the ranking, where it is not justified, of the first applicant’s bid in third position according to the cascade mechanism instead of first or second position constitutes such harm.
156In the light of all the foregoing, the applicants’ claim for compensation must be upheld in so far as it seeks compensation for the loss of an opportunity and must be rejected as to the remainder.
157As regards the amount that may be awarded as compensation in respect of the loss of an opportunity, the parties are required, subject to any later decision of the Court, to reach agreement on that amount in the light of the foregoing considerations and inform the Court, within three months from the date of delivery of the present judgment, of the amount to be paid, arrived at by agreement, failing which they are to send it a statement of their views with supporting figures within the same period (see, to that effect, judgment in ATC and Others v Commission, cited in paragraph 147 above, EU:T:2013:451, paragraph 101).
Costs
158The costs must be reserved.
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:
1.Annuls the decision of OHIM adopted in the context of the open call for tenders AO/021/10, entitled ‘External service provision for programme and project management and technical consultancy in the field of information technologies’, and notified to European Dynamics Luxembourg SA by letter of 28 March 2011, to rank the latter’s bid in third position in the ‘cascade’ mechanism for the purposes of awarding a framework contract and to rank the bids of Consortium Unisys SLU and Charles Oakes & Co. Sàrl, on the one hand, and of ETIQ Consortium (by everis and Trasys), on the other hand, in first and second positions respectively;
2.Orders the European Union to pay compensation for the harm suffered by European Dynamics Luxembourg for the loss of an opportunity to be awarded the framework contract as the contractor ranked first in the cascade;
3.Dismisses the claim for compensation as to the remainder;
4.Orders the parties to inform the Court, within three months from the date of delivery of the present judgment, of the amount of compensation arrived at by agreement;
5.Orders that, in the absence of agreement, the parties shall transmit to the Court, within the same period, a statement of their views with supporting figures;
6.Reserves the costs.
Delivered in open court in Luxembourg on 7 October 2015.
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