Transtec v European Commission (T-228/18)

Contents

Judgment of the General Court (Ninth Chamber)16 May 2019^note(Public service contracts — Tender procedure — Framework contract for the provision of services — Services to third countries benefiting from external aid — Rejection of a tenderer’s bid and award of the contract to other tenderers — Allegations of grave professional misconduct against a tenderer — No final judgment or final administrative decision establishing grave professional misconduct — Conditions for referral to the panel referred to in Article 108 of the Financial Regulation — Abnormally low tenders — Obligation to state reasons — Taking into account of a letter sent by the awarding authority after the action had been brought — Right to an effective remedy — Standstill period for bringing an action against the award decision — Equal treatment — Principle of non-discrimination — Articles 105a, 106, 108, 113 and 118 of the Financial Regulation — Non-contractual liability)In Case T‑228/18,Transtec, established in Brussels (Belgium), represented by L. Levi and N. Flandin, lawyers,vEuropean Commission, represented by A. Aresu and J. Estrada de Solà, acting as Agents,THE GENERAL COURT (Ninth Chamber),composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,Registrar: M. Marescaux, Administrator,having regard to the written part of the procedure and further to the hearing on 13 February 2019,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…

Procedure and forms of order sought

18By application lodged at the Court Registry on 5 April 2018, the applicant brought the present action, accompanied, in a separate document, by an application for the omission of certain information vis-à-vis the public.

19By separate document lodged at the Court Registry on the same date and registered as Case T‑228/18 R, the applicant brought an application for interim measures, pursuant to Articles 278 and 279 TFEU, in which it, in essence, requested that the President of the General Court suspend the operation of the contested decision or order that the Commission provisionally include it, with the consortium of which it was the leader, among the tenderers selected for Lot No 3.

20By order of 17 May 2018, Transtec v Commission (T‑228/18 R, not published, EU:T:2018:281), the President of the General Court dismissed the application for interim measures and reserved the costs. Following that order, the Commission initiated the procedure for the signature of the ten framework contracts relating to Lot No 3.

21In the meantime, by letter of 26 April 2018, pursuant to Article 84(1) and Article 85(3) of the Rules of Procedure of the General Court, the applicant had submitted a new plea in law and had offered evidence. On the same day, by separate document, in accordance with Article 66 of the Rules of Procedure, it had made an application for the content of certain documents annexed to that letter of 26 April 2018 not to be cited in the documents relating to the present case to which the public has access.

22On 18 June 2018 the Commission lodged its defence, in which it also submitted its observations on the offer of evidence and the new plea in law submitted by the applicant.

23On 4 September 2018 the applicant lodged its reply.

24On 17 October 2018 the Commission lodged its rejoinder.

25Acting on a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral part of the procedure.

26The parties presented oral argument and answered the questions put to them by the Court at the hearing on 13 February 2019.

27The applicant claims that the Court should:– annul the contested decision;– order the production of certain documents by way of measures of organisation of procedure;– order the Commission to pay damages as compensation for the harm it has suffered;– order the Commission to pay all the costs.

28The Commission contends that the Court should:– dismiss the application for annulment;– dismiss the claim for damages if it is deemed ancillary, or declare that it is inadmissible if it is deemed to be independent;– order the applicant to pay the costs, including those related to the interlocutory proceedings.

29The Commission also contends that there is no longer any need to rule on the request for measures of organisation of procedure since the subject matter thereof is the same as the letter of 27 March 2018, to which a response was given by letter of 13 April 2018.

Law…

Substance

The claims for annulment…

–The first plea in law

42The applicant claims that the Commission infringed Article 106(2) of the Financial Regulation and point 4 of the Instructions to tenderers, which refers to Section 2.3.3 of the Practical Guide to contract procedures for EU external actions, the provisions of which are similar to Article 106(2) of the Financial Regulation, on the ground that it did not exclude one of the successful tenderers. According to the applicant, the contracting authority is required, where it is informed, during the tendering procedure, of alleged grave professional misconduct by a tenderer, to verify that information and, if that grave misconduct is established to the requisite legal standard, to exclude the tenderer in question from the procedure.

43In the present case, the successful company at issue had been accused by United Kingdom authorities of ‘embezzlement and questionable awards of public contracts’.

44In support of its assertions, the applicant submits three documents that it had already sent to the Commission, namely an extract from the Media Team blog of the Department for International Development (DFID, United Kingdom) of the United Kingdom Government and two ministerial responses to questions raised by members of the United Kingdom Parliament which show that the DFID and the Foreign and Commonwealth Office (FCO, United Kingdom) had not concluded any new contracts with the successful company at issue. On the basis of the information in those documents and on account of an investigation by the United Kingdom authorities, that company was not awarded any new contracts by the United Kingdom authorities in 2017.

45The applicant submits that it is clear from the documents mentioned in paragraph 44 above that, when the successful company at issue completed the form entitled Declaration on honour on exclusion criteria and selection criteria, included in the tender documents and provided for in point 4 of the Instructions to tenderers, it failed to make any reference to the fact that it was the subject of accusations by the United Kingdom authorities. That omission is capable of being misleading and therefore the Commission, by accepting its declaration on honour and by not excluding from the contract the consortium to which that company belonged, infringed point 4 of the Instructions to tenderers and Article 106 of the Financial Regulation.

46The Commission disputes the applicant’s arguments.

47In the first place, it should be recalled that, in accordance with Article 106(1) of the Financial Regulation, the ‘contracting authority shall exclude an economic operator from participating in procurement procedures governed by this Regulation where … it has been established by a final judgment or a final administrative decision that the economic operator is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the economic operator belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibility where such conduct denotes wrongful intent or gross negligence’.

48In the present case, the parties admitted, at the hearing, that, at the time of the procedure for the award of the contract in question, no final judgment or final administrative decision, within the meaning of Article 106(1)(c) of the Financial Regulation, existed regarding the successful company at issue.

49In the second place, the first subparagraph of Article 106(2) of the Financial Regulation stipulates that ‘in the absence of a final judgment or, where applicable, a final administrative decision in the cases referred to in point … (c) … of paragraph 1, …, the contracting authority shall exclude an economic operator on the basis of a preliminary classification in law of a conduct referred to [therein], having regard to established facts or other findings contained in the recommendation of the panel referred to in Article 108’.

50In that respect, with regard to the panel referred to in Article 108 of the Financial Regulation, entitled ‘The early detection and exclusion system’, the wording of Article 105a of that regulation, entitled ‘Protection of the Union’s financial interests by means of detection of risks and imposition of administrative sanctions’, must be recalled.

51The first subparagraph of Article 105a(1) of the Financial Regulation provides that ‘in order to protect the Union’s financial interests, the Commission shall set up and operate an early detection and exclusion system’. In accordance with the second subparagraph of Article 105a(1) of the Financial Regulation, the purpose of such a system is to facilitate ‘(a) the early detection of risks threatening the Union’s financial interests’ and ‘(b) the exclusion of an economic operator which is in one of the exclusion situations listed in Article 106(1)’. The second subparagraph of Article 105a(2) of the Financial Regulation provides that ‘… in the situations referred to in Article 106(2), the contracting authority shall refer the case to the panel referred to in Article 108 in order to ensure a centralised assessment of those situations’ and that, ‘in such cases, the contracting authority shall take its decision based on a preliminary classification in law, having regard to a recommendation of the panel’.

52As regards referring the case to the panel referred to in Article 108 of the Financial Regulation, it is clear from Article 108(2)(b) and (c) that, in cases of presumed grave professional misconduct, irregularity, fraud, corruption or serious breach of contract, the early detection of risks threatening the Union’s financial interests, as referred to in point (a) of Article 105a(1) of that regulation, must be based on the transmission of information to the Commission by an authorising officer of the Commission, of a European office set up by the Commission or of an executive agency, or even by an EU institution, body or agency.

53It follows from all the abovementioned provisions that, in the absence of a final judgment or a final administrative decision regarding a tenderer, a contracting authority must, where it has sufficient evidence to establish a presumption that that tenderer is guilty, inter alia, of grave professional misconduct, refer the case to the panel referred to in Article 108 of the Financial Regulation in order for that panel to issue a recommendation containing, where appropriate, a preliminary classification in law of the facts at issue.

54In that regard, contrary to what the Commission argued at the hearing, the referral of the case to the panel referred to in Article 108 of the Financial Regulation, on the basis of first subparagraph of Article 106(2) of that regulation, does not presuppose that a final judgment or a final administrative decision already exists. In accordance with Article 105a(2) of the Financial Regulation, read in conjunction with the first subparagraph of Article 106(2) of that regulation, the contracting authority is to refer the case to the panel in the absence of a judgment or a decision of that kind, where it finds that a possible financial irregularity, provided for inter alia in Article 106(1)(c) of the Financial Regulation, is likely to create ‘risks threatening the Union’s financial interests’ within the meaning of point (a) of the second subparagraph of Article 105a(1) of that regulation. That is the purpose of the early detection and exclusion system. The contracting authority must nevertheless assess, before referring the case to the panel referred to in Article 108 of the Financial Regulation, whether such a risk exists and, if so, if it is likely to threaten the financial interests of the European Union.

55Thus, at this stage it must be ascertained whether the Commission, as the contracting authority, was required, in the particular circumstances of the present case, to refer the case to the panel referred to in Article 108 of the Financial Regulation, on the ground that it could have found that it had sufficient evidence that the conduct of the successful company at issue was such as to constitute grave professional misconduct threatening the financial interests of the European Union, as is alleged, in essence, by the applicant.

56In that regard, the documents deemed admissible, which the applicant submitted in order to demonstrate that the successful company at issue had been accused by the United Kingdom authorities of ‘embezzlement and questionable awards of public contracts’ are those mentioned in paragraph 44 above, namely an extract from the DFID Media Team blog and two ministerial responses to questions raised by members of the United Kingdom Parliament.

57First, the extract from the DFID Media Team blog, dated 4 December 2017, states that, in December 2016, the successful company at issue was the subject of allegations that it had falsified submissions to the IDC and made use of improperly obtained DFID documents. That extract states that, since that date, the successful company at issue has voluntarily withdrawn from DFID procurement procedures. Secondly, the ministerial responses, dated 13 September and 13 December 2017, note, respectively, that the DFID had not awarded a public contract to the successful company at issue since March 2017 and that the FCO had not awarded it a public contract in 2017.

58As pointed out by the Commission, those documents merely report the fact that the successful company at issue had been the subject of ‘allegations’, the origin of which is not specified, concerning irregularities in the award of public contracts in the United Kingdom, without specifying further the circumstances in which those irregularities arose.

59Thus, the documents submitted by the applicant in support of its first plea are not sufficient to establish that the conduct of the successful company at issue was such as to constitute grave professional misconduct threatening the financial interests of the European Union. It follows that, in the particular circumstances of the present case, the Commission was not required to refer the case to the panel referred to in Article 108 of the Financial Regulation and therefore it cannot be accused of having infringed the first subparagraph of Article 106(2) of the Financial Regulation.

60In the third place, the documents provided by the applicant also do not demonstrate that the declaration on honour supplied by the successful company at issue was misleading. In that regard, it should be pointed out that point 4 of the Instructions to tenderers stated that all tenderers had to, first, sign a sworn declaration that they were not in one of the exclusion situations listed in Section 2.3.3 of the Practical Guide to contract procedures for EU external actions and, secondly, provide evidence that they did not fall under any of the exclusion criteria. However, it is clear from examining the list in point I(1)(g)(ii) of the declaration on honour form that the exclusion criteria it contained were, in essence, identical to those contained in the fourth subparagraph of Article 106(2) of the Financial Regulation. Therefore, that list and point 4 of the Instructions to tenderers must be read in the light of the fourth subparagraph of Article 106(2) of the Financial Regulation.

61As regards Article 106(2) of the Financial Regulation, since its fourth subparagraph contains a reference to its first subparagraph, both of those subparagraphs must be read together. In that regard, as noted in paragraph 59 above, the Commission was not required, in the present case, under the first subparagraph of Article 106(2) of the Financial Regulation, to refer the case to the panel referred to in Article 108 of that regulation. Thus, the applicant has not established that the acceptance, by the Commission, of the declaration on honour signed by the successful company at issue constituted an infringement of point 4 of the Instructions to tenderers, read in the light of Article 106(2) of the Financial Regulation.

62In the light of all the foregoing considerations, the first plea in law must be rejected as unfounded.…

–The third plea in law

89The applicant claims that, by the contested decision, the Commission merely informed it that it had not obtained the highest quality-price ratio in respect of Lot No 3 and sent it the scores awarded to the tenderers selected in the form of a table. However, according to the applicant, the contested decision contained no explanation of the system used to calculate the scores awarded to it. Therefore, it states that the Commission failed to comply with its obligation to state reasons and infringed Article 113(2) of the Financial Regulation and Article 161(1) of the implementing regulation.

90The Commission disputes that line of argument.

91In accordance with Article 41(2)(c) of the Charter, the administration is obliged to give reasons for its decisions. That obligation to state reasons means, according to settled case-law, that, in accordance with the second subparagraph of Article 296, the author of a measure must disclose in a clear and unequivocal fashion the reasoning underlying that measure so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 43).

92Moreover, the requirement to state reasons must be assessed by reference to the circumstances of the 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. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116).

93As far as public contracts concluded by institutions of the European Union are concerned, first, Article 113(2) of the Financial Regulation provides that the contracting authority must notify all tenderers, whose tenders are rejected, of the grounds on which the decision was taken. Secondly, under point (a) of the first subparagraph of Article 113(3), the contracting authority must inform each tenderer who does not meet any of the exclusion criteria and satisfies the selection criteria and who makes a request in writing, of the characteristics and relative advantages of the successful tender and the name of the tenderer. In that regard, Article 161(2) of the implementing regulation states that ‘the contracting authority shall communicate the information provided for in Article 113(3) of the Financial Regulation as soon as possible and in any case within 15 days of receipt of a request in writing’.

94Article 113(2) and (3) of the Financial Regulation and Article 161(2) of the implementing regulation therefore provide reasoning in two stages in respect of unsuccessful tenderers. The contracting authority first informs all unsuccessful tenderers that their tender has been rejected and the reasons for that rejection. Those reasons may be brief given that the unsuccessful tenderer has the opportunity to request more detailed reasoning. Secondly, under the same provisions, if an unsuccessful tenderer who does not meet any of the exclusion criteria and satisfies the selection criteria makes a request in writing, the contracting authority will inform it, as soon as possible and in any case within 15 days of receipt of that request, of the characteristics and relative advantages of the successful tender and the name of the tenderer (see judgment of 26 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑752/15, not published, EU:T:2018:233, paragraph 27 and the case-law cited).

95In that regard, the Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of the notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited). 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 (see judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 22 and the case-law cited).

96Lastly, it should be noted that, in principle, compliance with the obligation to state reasons must be assessed on the basis of the information available to the applicant at the time the application was brought (see, to that effect, judgment of 13 December 2013, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑165/12, EU:T:2013:646, paragraph 65 and the case-law cited).

97In the present case, at the time when it brought its action, on 5 April 2018, the applicant had only the contested decision, dated 26 March 2018, available to it as a document from the contracting authority and containing information on the rejection of its tender and the award of the contract to other tenderers, as well as the names of those tenderers.

98Therefore, it is true that, in accordance with the case-law recalled in paragraph 96 above, it is in the light of that decision alone that, in principle, it must be assessed whether the Commission complied with its obligation to state reasons.

99Nevertheless, it is also true that the legislature laid down, with regard to the reasoning for the decision by the contracting authority to reject a tender and award the contract to another tenderer, that such reasoning could be in two stages with, first, a summary of the reasons for the rejection of the tender and then, within 15 days of being expressly requested to do so by the unsuccessful tenderer, a description of the characteristics and relative advantages of the selected tender and the name of the successful tenderer (see paragraph 94 above).

100In the present case, by its letter of 27 March 2018, the applicant requested that the Commission inform it inter alia of the characteristics and relative advantages of the ten successful tenderers’ tenders. The Commission responded to the applicant’s request during the course of the present proceedings, by letter of 13 April 2018.

101First, it is important to note that the applicant brought the present action on 5 April 2018, thus before the expiry of the 15-day time limit given to the Commission to respond to the letter of 27 March 2018.

102Secondly, it is the applicant itself which, on 26 April 2018, produced the letter of 13 April 2018 in the present proceedings, pursuant to Article 85(3) of the Rules of Procedure. At the same time as offering that evidence, the applicant responded to the letter of 13 April 2018 by lodging additional pleadings to its application in which it expands on certain points raised in its application with regard to that letter and raises a new plea in law on the basis of Article 84(1) of the Rules of Procedure. The admissibility of those additional pleadings and that new plea in law has not been disputed by the Commission. Accordingly, those elements have been held to be admissible by the present judgment.

103In those circumstances, it is in the light of the contested decision, dated 26 March 2018, as supplemented by the letter of 13 April 2018, that it must be examined whether the Commission complied with its obligation to state reasons.

104In that regard, first of all, in the contested decision, the Commission informed the applicant that its tender relating to Lot No 3 had not been ranked among the top ten in the light of its quality-price ratio. The contested decision also included a comparative table which contained the scores awarded to the applicant, those awarded to the first successful tenderer and those awarded to the final successful tenderer. That table contained inter alia the scores awarded for the six items under the section ‘Overall Organisation and Methodology’, the overall technical score, the weighting of technical and financial scores and the overall score.

105Such information already enabled the applicant to establish that its tender had been ranked in eleventh position with regard to the financial score, but that that was not the case with regard to the technical score. The applicant was able to infer therefrom that the higher price of its tender, in relation to those of other tenderers, had played a decisive role in the rejection of that tender. Moreover, the disclosure of the scores for each of the items of the technical scoring enabled the applicant, albeit in an abstract way, to understand which elements of its tender had been deemed weaker by the contracting authority.

106Next, by its letter of 13 April 2018, the Commission sent the applicant, in the first place, a table containing the scores that it had been given and those of each of the ten successful tenderers with regard to the six items in the technical scoring. From reading that table, the applicant was able to ascertain that, in the technical offer, its tender was ranked eleventh with regard to the first item ‘Organisation and methodology’, which was the most important item since it was weighted at 35 points out of 100, and eighth with regard to the second item ‘Management team: profiles proposed’, which was the second most important item since it was weighted at 25 points out of 100.

107In the second place, that table regarding the technical scoring of tenders was supplemented by a comments section in which the evaluation committee’s position on each tender was briefly summarised.

108With regard more specifically to the applicant’s tender, the evaluation committee’s comments were as follows:‘Good overall management methodology – members of the team and members of the consortium have experience in [framework contracts] – theoretical presentation of the quality control methodology – integration of local experts – presence in all countries and regions[, but] insufficient information in order to ensure the availability of experts – little industry expertise in the management team – role, complementarity and added value of members of the consortium not clearly defined.’

109Thus, the evaluation committee’s comments, read in conjunction with the details of the scores awarded to the applicant and those obtained by each of the successful tenderers for each of the items in the technical scoring, makes it possible to understand why the Commission found that the applicant’s tender was less satisfactory than those selected. In its additional pleadings dated 26 April 2018, the applicant itself states that the comments ‘insufficient information in order to ensure the availability of experts’ and ‘little industry expertise in the management team’ ‘seem to correspond’ in its view to the items ‘Organisation and methodology’ and ‘Management team: profiles proposed’ respectively.

110In that regard, it should be noted that none of the successful tenderers was the subject of the same criticisms as those raised by the evaluation committee with regard to the applicant’s tender.

111First, as noted by the applicant, it is, admittedly, clear from the comments reflecting the evaluation committee’s position that that committee could have criticised some tenderers for ‘insufficient details regarding palliative measures in the event of experts being unavailable’ or even the ‘limited information about in-house expertise’. However, those criticisms do not concern the lack of sufficient information concerning the availability of experts per se. Secondly, with regard to the criticism of ‘little industry expertise in the management team’, raised in respect of the applicant’s tender, the applicant itself states in its application that ‘no comments have been made about the other tenderers on the subject of expertise in the management team’.

112Thus, contrary to the applicant’s suggestion, the fact that the other tenderers also received comments with regard to the negative aspects in their tenders is not capable of rendering the statement of reasons in the letter of 13 April 2018 inconsistent.

113The applicant was therefore able to understand, from reading the contested decision and the letter of 13 April 2018, the grounds upon which the technical offers were ranked. In that regard, as noted in paragraph 95 above, the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of the notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of its tender.

114Lastly, with regard to the financial evaluation of the tenders, the letter of 13 April 2018 contained a table containing the overall financial score, the overall technical score and the final scores obtained by the applicant and each of the ten successful tenders. According to that table, the successful tenderer that was ranked first in respect of the financial evaluation of its tender did not receive a total of 100 points, but rather 99.36.

115In that regard, as the Commission pointed out in its defence, in accordance with point 15.3 of the Instructions to tenderers, the total financial score was calculated by adding the four weighted scores for each experts’ category, mentioned in paragraph 6 above. Those four weighted scores were determined by dividing the lowest prices by the price of the tender under consideration and multiplying the ratio by 100. Thus, by applying that formula, a tenderer which has submitted the lowest overall offer without having submitted the lowest price for each of the experts’ categories could not be awarded an overall score of 100 out of 100.

116The applicant was therefore in a position to assume that that was the case here, where, as the Commission stated, the successful tenderer that was ranked first with regard to the financial score offered the lowest prices for experts’ categories I and III and for the administrative assistant, but offered the second lowest prices for experts’ category II. Therefore, since that successful tenderer’s offer was not the least expensive for each of those four categories, it could not obtain a total financial score of 100 out of 100.

117Since none of the arguments put forward by the applicant in support of its third plea in law is well founded, that plea must be rejected.…

Operative part

On those grounds,THE GENERAL COURT (Ninth Chamber)hereby:

1.Dismisses the action;

2.Orders Transtec to pay the costs, including those related to the interlocutory proceedings.

Delivered in open court in Luxembourg on 16 May 2019.