Instituto Cervantes v European Commission (T-376/21)

Contents

Judgment of the General Court (Third Chamber)14 June 2023^note(Public supply contracts — Tendering procedure — Provision of language training for the institutions, bodies and agencies of the European Union — Ranking of a tenderer in the cascade procedure — Obligation to state reasons — Documents in the tender accessible via a hypertext link — Manifest errors of assessment — Misuse of powers)In Case T‑376/21,Instituto Cervantes, established in Madrid (Spain), represented by E. van Nuffel d’Heynsbroeck, lawyer,supported byKingdom of Spain, represented by I. Herranz Elizalde, acting as Agent,vEuropean Commission, represented by M. Ilkova, acting as Agent,THE GENERAL COURT (Third Chamber),composed of F. Schalin, President, I. Nõmm and D. Kukovec (Rapporteur), Judges,Registrar: H. Eriksson, Administrator,having regard to the written part of the procedure,further to the hearing on 13 December 2022,gives the following

Judgment

1By its action under Article 263 TFEU, the applicant, Instituto Cervantes, seeks annulment of the decision of the European Commission of 19 April 2021 awarding Lot 3 (Spanish language) of the contract relating to Framework Contracts for Language Training for the Institutions, Bodies and Agencies of the European Union (HR/2020/OP/0014) in first place to the consortium CLL Centre de Langues-Allingua (‘the CLL consortium’) and in second place to the applicant (‘the contested decision’).

Background to the dispute

2On 20 November 2020, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2020/S, 227-555213) the Commission launched Open Call for Tenders HR/2020/OP/0014, entitled ‘Framework Contracts for Language Training for the Institutions, Bodies and Agencies of the European Union’. The contract was divided into eight lots, one of which was Lot 3, entitled ‘Language learning in Spanish’.

3According to the specifications for the tendering procedure at issue, the contracting authority would award the contract on the basis of the most economically advantageous tender, according to the award criteria of ‘Price’, with a weighting of 30%, and ‘Quality’, with an overall weighting of 70%.

4The ‘Quality’ award criterion consisted of two criteria: Criterion 1, entitled ‘Quality of the proposed courses’, and Criterion 2, entitled ‘Quality control and work monitoring’. The tender specifications provided, inter alia, that the maximum total quality score was 100 points.

5Each of the two criteria was divided into three sub-criteria which were, for their part, weighted as follows:Criterion 1: Quality of the proposed courses (70 points) | Criterion 2: Quality control and work monitoring (30 points)Sub-criterion 1.1: Content (30 points)Sub-criterion 1.2: Pedagogy (30 points)Sub-criterion 1.3: Online Platforms (10 points) | Sub-criterion 2.1: Method of staff selection (6 points)Sub-criterion 2.2: Quality control (15 points)Sub-criterion 2.3: Procedure management (9 points)

6The tender specifications also provided that tenders had to achieve at least the minimum score for each criterion and sub-criterion, that is to say, 70% of the points awarded for that criterion or sub-criterion. The tenders therefore had to achieve a total of at least 70 points out of 100.

7The rules on the submission of tenders, in the tender specifications, provided, inter alia, that tenders had to be submitted via the eSubmission application.

8Six tenderers, including the applicant, submitted tenders for Lot 3.

9On 10 March 2021, the evaluation report for the tenders was prepared in accordance with Article 168(4) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (‘the Financial Regulation’). The contractors proposed for Lot 3 were the CLL consortium, as first contractor in the cascade, and the applicant, as second contractor in the cascade.

10It is apparent from the tender specifications that the tenders were to be ranked according to the best price-quality ratio.

11According to the tender specifications, the contract was to be awarded to the two highest-ranked tenders which, first, complied with the minimum requirements specified in the procurement documents and were submitted by tenderers with access to the procurement procedure; secondly, were not in an exclusion situation; and, thirdly, fulfilled the selection criteria. The ranking would determine the sequence in which the contractors would be offered specific contracts during implementation of the framework contract.

12On 19 April 2021, pursuant to the recommendations of the evaluation committee (‘the Committee’), the Commission adopted the contested decision. The Commission accordingly awarded Lot 3 (Spanish language) of the contract relating to Framework Contracts for Language Training for the Institutions, Bodies and Agencies of the European Union (HR/2020/OP/0014) in first place to the CLL consortium and in second place to the applicant.

13On the same day, the Commission wrote to the applicant notifying it of its results in the procedure. The letter notified it in particular that its tender for a framework contract for Lot 3 had been successful and that it had been ranked second with a quality score of 82 points out of 100, a tender price of EUR 2670560 and a total score of 87.40 points out of 100. Annex 1 to that letter also indicated the reasons for the assessment of its tender in the light of the quality criteria set out in the tender specifications. Lastly, in that letter, the Commission stated that its decision could be appealed to the General Court and that it would apply the 10-day standstill period before signing the contract.

14On the same day, after receiving the notification letter, the applicant requested the Commission to inform it of the name, characteristics and advantages of the highest-ranked entity.

15By email of 26 April 2021, replying to that request, the Commission informed the applicant of the identity of the tenderer ranked first in the award of the framework agreement and of its quality score of 94 points out of 100, tender price (EUR 3469020) and total score of 88.89 points out of 100 in the evaluation.

17By email of 10 May 2021, in reply to a request of 1 May 2021 from the applicant, claiming that insufficient information had been provided in the light of the requirements of Article 170(3) of the Financial Regulation, the Commission disclosed the reasons for its assessment of CLL consortium’s tender in the light of the quality criteria. The evaluation grid for the tender of CLL consortium was attached to that email and reproduced the Committee’s comments for each of the award criteria and sub-criteria as they appeared in the tender specifications. In that email, the Commission also undertook to respect a new standstill period of 10 calendar days, from the day following that on which that reply was sent, before signing the framework agreement.

18By letter of 25 May 2021, the Commission furnished further explanations and referred to the information and explanations already sent, and indicated that the standstill period had now expired.

19In the procedure giving rise to the present dispute, the applicant submitted via the eSubmission platform certain documents which illustrated the technical proposal described in its tender, and which were accessible only via hypertext links incorporated in the tender. In the evaluation grid, provided on 19 April 2021, and in the emails of 10 and 25 May 2021 referred to above, the Commission informed the applicant that it had rejected those documents and had not evaluated them, on the ground that they were not compliant with the tender specifications and that there was a risk that the tender could be modified by means of those hypertext links after the deadline for the submission of tenders. Accordingly, the Commission found the documents that were accessible only via those hypertext links to be missing (‘the incomplete documentation’).

20On 7 June 2021, the Commission signed Framework Agreement HR/2020/OP/0014 – Lot 3 with the CLL consortium as first contractor in the cascade. On the same day, the Commission signed Framework Agreement HR/2020/OP/0014 – Lot 3 with the applicant as second contractor in the cascade.

Forms of order sought by the parties

21The applicant, supported by the Kingdom of Spain, claims that the General Court should:– annul the contested decision;– order the Commission to pay the costs.

22The Commission claims that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

Admissibility

23By a separate document lodged at the Registry of the Court on 29 September 2021, the Commission, pursuant to Article 130(1) of the Rules of Procedure of the General Court, raised a plea of inadmissibility on the ground that the action was out of time.

24The Commission contends that the period for bringing proceedings against the contested decision, which was notified to the applicant on 19 April 2021, expired on 29 June 2021, whereas the action was brought on 2 July 2021.

25The Commission disputes the applicant’s argument to the effect that, on the date on which the contested decision was notified, the applicant did not yet have sufficient information to bring its action.

26The Commission recalls, in this regard, that the period for instituting proceedings under the sixth paragraph of Article 263 TFEU is a matter of public interest, ensures legal clarity and certainty and prevents arbitrary treatment in the administration of justice.

27Relying on the order of 12 September 2013 in Ellinika Nafpigeia and 2. Hoern v Commission (C‑616/12 P, not published, EU:C:2013:884), the Commission submits, in particular, that it is apparent from the case-law that an alleged lack of clarity or insufficient statement of reasons for an act is a matter for the review of the legality of the act and does not serve to identify the time at which the period for instituting proceedings begins to run. It is also, it argues, apparent from that order that the time at which the period for instituting proceedings begins to run must be fixed objectively, on the basis of what is known from the decision as it was adopted, disregarding subjective factors such as statements about alleged defects vitiating the decision.

28The Commission thus disputes the applicant’s argument that the period for instituting proceedings cannot begin to run until the contracting authority has explained the reasons for its choice in an objectively intelligible manner.

29The applicant disputes the arguments raised by the Commission in relation to the plea of inadmissibility and claims that that plea should be rejected.

30It should be noted in this regard that, under the sixth paragraph of Article 263 TFEU, annulment proceedings are to be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

31It should be stated at the outset that the case-law invoked by the Commission in support of the plea of inadmissibility (see paragraph 27 above) is irrelevant, concerning as it does an action challenging a Commission letter on the recovery of State aid, because the rules applicable in tendering procedures follow an inherently different rationale from those relating to the recovery of State aid.

32According to consistent case-law, in the context of tendering procedures, the period laid down in the sixth paragraph of Article 263 TFEU for bringing proceedings to challenge a decision rejecting a tender or, as in the present case, a decision ranking that tender below first place, does not begin to run until the reasoned decision is notified, subject to the tenderer having made its request for a reasoned decision within a reasonable time after it was apprised of the rejection of its tender or, as in the present case, the fact that its tender was ranked below first place (see, to that effect, judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraph 107 and the case-law cited).

33Specifically, time does not begin to run for the purpose of bringing proceedings until the characteristics and advantages of the highest-ranked tender are communicated, whereas the information initially given about the rejection of the bid of the tenderer concerned did not contain any information about the higher-ranked tender (see, to that effect, judgment of 29 October 2015, Direct Way and Direct Way Worldwide v European Parliament, T‑126/13, EU:T:2015:819, paragraphs 34 to 36, and order of 15 November 2018, Intercontact Budapest v CdT, T‑809/17, not published, EU:T:2018:794, paragraphs 19 to 24).

34In order effectively to exercise the right to bring proceedings, an applicant requires a minimum amount of information so that it can determine any irregularity in how the contracting authority has made its choice or, if the information provided pursuant to a request is nevertheless incomplete, to raise a plea of failure to state reasons (see, to that effect, order of 15 November 2018, Intercontact Budapest v CdT, T‑809/17, not published, EU:T:2018:794, paragraph 25).

35In the present case, it should be noted that the contested decision, which was communicated to the applicant on 19 April 2021, merely informs it that its tender had been ranked second and gave the scores it had been awarded and the resulting evaluation of the tender (see paragraph 13 above). The contested decision does not, by contrast, contain any information about the tender ranked above the applicant’s tender or any statement of reasons suggesting why the applicant’s tender was ranked below it. Since the contested measure contains no information about the characteristics or advantages of the higher-ranked tender it could not, in accordance with the case-law cited in paragraphs 32 and 33 above, have triggered the period for bringing proceedings.

36The same is true of the letter of 26 April 2021, by which the Commission provided the applicant only with the name of the successful tenderer, its tender price, the score that it had obtained under the quality criteria and its final score.

37As can be seen from paragraphs 11 to 17 above, it was only in the email of 10 May 2021 that the applicant was given information about the evaluation of the qualities of the tender of the CLL consortium, thereby enabling it effectively to exercise its right to bring proceedings. The period therefore began to run on 10 May 2021.

38Accordingly, since the action was brought on 2 July 2021, it must be found to be admissible, and the plea of inadmissibility raised by the Commission must therefore be rejected.

Substance

39The applicant puts forward five pleas in law in support of its action.

40By its first plea in law, the applicant alleges that the Commission failed to state reasons in the contested decision, for the purposes of Article 170(3) of the Financial Regulation, because it was not possible to ascertain the relative advantages of the successful tender.

41By its second plea in law, the applicant claims that the Commission infringed Article 167(4) of the Financial Regulation by only comparing each tender separately against the tender specifications, instead of also comparing the tenders in terms of their technical aspects.

42By its third plea in law, the applicant alleges that the Commission made a manifest error of assessment by excluding the documents that were accessible via a hypertext link incorporated in the tender.

43The applicant then raises a fourth plea in law, in the alternative to the first plea. This plea is divided into three parts:– by the first part, it alleges a failure to state reasons in relation to the individual evaluation of its tender, since the correlation between the more than sufficiently positive comments and the score awarded is incomprehensible, and a manifest error of assessment because there is no rational correlation between the evaluation and the score awarded for Sub-criteria 1.1 and 1.2;– by the second part, it alleges a manifest error of assessment in that the Commission attached disproportionate importance to the incomplete nature of the documentation;– by the third part, it examines that allegedly disproportionate effect in the light of the principle of transparency and claims that the Commission retrospectively created a new evaluation rule.

44By its fifth and final plea in law, the applicant asserts that, by awarding all the lots to the same tenderer, that is to say, the CLL consortium, the Commission infringed the fundamental principles of procurement law (the opening of the markets to competition on the broadest possible basis, transparency and equality) and Article 160 and Article 167(3) of the Financial Regulation.

45The Court considers it appropriate, first of all, to examine the first plea in law together with the first part of the fourth plea, in that they concern the obligation to state reasons. It will then address the first, second and third parts of the fourth plea and then, in turn, the third, second and fifth pleas, which relate to whether the contested decision is well founded.

The first plea in law and the first part of the fourth plea: infringement of the obligation to state reasons

46By its first plea and the first part of its fourth plea, the applicant alleges that the Commission failed to provide sufficient reasons, for the purposes of Article 170(3) of the Financial Regulation, in respect of, first, its comparative analysis of the relative advantages of the tenders and, secondly, its individual analysis of the applicant’s tender. The applicant focuses on Criterion 1, ‘Quality of the proposed courses’, specifically the evaluations carried out under Sub-criteria 1.1, ‘Content’, and 1.2, ‘Pedagogy’.

47In the first place, by its first plea in law, the applicant criticises the Commission for the fact that the reasons provided do not identify clearly the characteristics and advantages of the CLL consortium’s tender because, on the one hand, the assessments of the CLL consortium’s tender and of the applicant’s tender reveal qualities that are, in the main, equivalent or very similar if not identical, or even superior in the applicant’s tender, whereas, in contrast, the applicant’s tender was awarded a score indicating significant differences in quality.

48In this regard, the reasons provided by the Commission do not, in the applicant’s view, show a significant lack of quality in respect of a substantial component of the criterion or cumulative qualitative shortcomings capable of justifying the barely satisfactory score given to the applicant’s tender. The fact that the Committee did not evaluate certain documents in its tender on the ground that they were made accessible by means of hypertext links likewise does not explain the significant discrepancy in scoring, since the statement to that effect in the evaluation grid does not appear as a distinguishing factor and concerns only limited aspects of the tender, that is to say, the content of the exercises.

49In the second place, given that the first part of the fourth plea in law alleges infringement of the obligation to state reasons, the applicant asserts that the very low score awarded for the sub-criteria in question appears to be inconsistent with the assessment of those sub-criteria considered in isolation, which is very largely positive for each of the components comprising those sub-criteria. In the reasons provided by the Commission no one specific qualitative shortcoming can be identified that would be capable of justifying a significant deduction of points.

50The applicant disputes that the incomplete nature of the documentation could have amounted to a qualitative shortcoming such as to explain the deduction of points. First, it notes that in respect of Sub-criterion 2.3 the assessment likewise refers to the incomplete nature of the documentation, in exactly the same terms as for Sub-criterion 1.1, but that for that sub-criterion the evaluation of the tender was marked down by only slightly more than one tenth of a point (to 8 points out of 9). Secondly, the applicant claims that in relation to Sub-criteria 1.1 and 1.2 the Commission treated the incomplete nature of the documentation as a particularly significant shortcoming which of itself justified assessing the tender negatively, since the Commission is unable to explain either why the incomplete nature of the documentation affected the other sub-criteria differently or the relative impact of the other weaknesses or negative factors on the scores for Sub-criteria 1.1 and 1.2.

51The applicant notes, in this regard, that the Commission’s evaluation was broken down into each of the components and sub-components described for each sub-criterion. Specifically, the incomplete nature of the documentation affected only one of the sub-components identified, for Sub-criterion 1.1 and for Sub-criterion 1.2, and therefore, according to the applicant, had only a marginal effect. The applicant considers that although the components and related sub-components under the sub-criteria were not weighted, that does not mean that they could be given a significantly different relative weight for the purposes of evaluating the tenders where that fact was not indicated in the procurement documents. Such a situation, moreover, would frustrate the tenderers’ legitimate expectations. However, the impact of the incomplete nature of the documentation remains impossible to determine because there is no way of ascertaining whether it affected all or only some of the components.

52The applicant also submits that, for Sub-criteria 1.3, 2.1, 2.2 and 2.3, the assessment of its tender was expressed in an equivalent or similar manner to the assessment given for Sub-criteria 1.1 and 1.2. In relation to those four sub-criteria, its tender was nevertheless awarded the maximum, or nearly the maximum, number of points.

53The Kingdom of Spain, intervening in support of the form of order sought by the applicant, concurs in full with its arguments.

54In relation to the first part of the fourth plea in law, the Kingdom of Spain submits, in addition, that it is impossible to know exactly why a particular number of points was deducted, because ‘certain documents’ were not evaluated.

55The Kingdom of Spain stresses that the lack of transparency, which has the effect of concealing the arbitrariness of the reasons given, lies in the fact that it is impossible to ascertain, first, which specific aspects of the documents forming part of the tender and accessible via hypertext links were not evaluated by the Commission; secondly, to what extent those aspects are absent from the tender submitted; and, thirdly, why the inability to access the content of the online exercises gave rise in practice to a forfeiture of points. In other words, the argument runs, it is impossible to know why the applicant was penalised by the deduction of 8 points under Sub-criterion 1.1 instead of, for example, 5 points or 12.

56The Commission refutes the arguments of both the applicant and the Kingdom of Spain and argues that the first plea in law and the first part of the fourth plea should be rejected.

57In this regard, it should be noted that, by its first plea, the applicant is claiming, in essence, that it is impossible to know on the basis of which specific factors of its technical proposal the tender of the CLL consortium was evaluated as being better than its own.

58In addition, given that the first part of the fourth plea alleges infringement of the obligation to state reasons, the applicant asserts that the link between the significant deduction of points and the rather positive assessment of its tender is unclear, in particular to what extent the incomplete nature of the documentation meant in practice that it lost points.

59The applicant and the Kingdom of Spain also maintain, in essence, that the failure to state sufficient reasons prevents any judicial review of the Commission’s evaluation.

60In this case, it falls to the Court to examine whether the reasons provided by the Commission are sufficient.

61It should be noted at the outset that it is common ground between the parties that each evaluation grid contains a statement of reasons. The applicant has, in this connection, acknowledged, in paragraph 11 of its reply, that it is indeed able to understand that its tender was judged to be of lower quality in respect of various award criteria.

–The allegation that it was impossible to know the relative advantages of the successful tender

62At the outset, it is necessary, first, to set out the case-law principles relating to the scope of the Commission’s obligation to state reasons in the field of the public procurement of services and, secondly, to determine whether the Commission applied those principles correctly in the present case.

63In this regard, it emerges from the Court’s case-law that where, as in the present case, the EU institutions enjoy a broad discretion, respect for the rights guaranteed by the EU legal order 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 (judgments of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 33, and of 10 February 2021, Sophia Group v Parliament, T‑578/19, not published, EU:T:2021:77, paragraph 162).

64By contrast, 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 notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (judgments of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 57; of 14 October 2020, Close and Cegelec v Parliament, C‑447/19 P, not published, EU:C:2020:826, paragraph 37; and of 6 October 2021, Global Translation Solutions v Commission, T‑404/20, not published, EU:T:2021:654, paragraph 126).

65As the Court noted in paragraph 50 of its judgment of 5 March 2019 in Eurosupport – Fineurop support v EIGE (T‑450/17, not published, EU:T:2019:137), the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments. The contracting authority cannot, however, be required to indicate both strengths and weaknesses. In particular, it can be inferred from paragraph 49 of the judgment of 15 October 2013 in European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530) that the Commission is not necessarily bound to produce specific adverse comments and it is sufficient that the unsuccessful tenderer is able to understand why the successful tender was superior to the unsuccessful tender.

66The EU Courts must thereby be able to verify, on the basis of the tender specifications and statement of reasons of the award decision, the respective weight of the different technical award criteria and sub-criteria in the assessment, that is to say, in the calculation of the total score, and the minimum and maximum number of points for each of those criteria or sub-criteria (see, to that effect, judgments of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraphs 21 and 29, and of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO, T‑556/11, EU:T:2016:248, paragraph 250).

67It has been held in particular that, where the tender specifications assign a specific weighted value to the sub-parts of the sub-criteria, the Commission must, in principle, explain how points are awarded at the level of those sub-parts (see, to that effect, judgments of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 29, and of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO, T‑556/11, EU:T:2016:248, paragraph 250).

68The Committee’s comments provided to an applicant must therefore, first, enable that applicant to infer how many points it obtained in comparison with the successful tenderer, broken down in each case by sub-criteria, and the weight of each sub-criterion in the overall evaluation and, secondly, make clear, for each award criterion, the sub-criteria on the basis of which the Commission found the bid of either the successful tenderer or that of the applicant in question to be the better bid (judgments of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraphs 21 and 29, and of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO, T‑556/11, EU:T:2016:248, paragraphs 250 and 251).

69In the light of the foregoing principles laid down in the case-law, it is necessary to examine whether the Commission has fulfilled its obligation to state reasons in the present case.

70In the first place, before analysing the evaluation grids, it is necessary to examine the relevant provisions of the tender specifications. The framework agreement at issue relates to language training for the institutions, bodies and agencies of the European Union. Under Criterion 1, ‘Quality of the proposed courses’, the specifications stated that the tenderer had to submit a description of a standard course designed for the contracting authority, on the basis of one case study. Quality would be evaluated on the basis of the quality sub-criteria, applied to the response to the case study which tenderers had to submit with their tenders.

71Sub-criterion 1.1, ‘Content’, included four sub-points, which the Committee had to take into account in the evaluation. The first sub-point, ‘A. Objectives’, concerned, inter alia, matters relating to the competencies covered by the course and the extent to which the objectives of the proposed course are linked to the specific competencies requirements. The second sub-point, ‘B. Target audience ‘, sought to determine the extent to which the proposed course addresses the needs of the specific audience. The third sub-point, ‘C. Organisation of the content’, related, in essence, to the apportionment of content into manageable units and the sequence and content of those units. The fourth and last sub-point, ‘D. Quality of the teaching materials’, related, in particular, to the extent to which the teaching materials correspond to the objectives, are designed for adults and are without errors. Each sub-point therefore contained a number of paragraphs, that is to say, components that had to be taken into account in the evaluation.

72Sub-criterion 1.2, ‘Pedagogy’, consisted of three descriptive sub-points. The first, entitled ‘A. Roles of teachers’, was intended to determine the positive characteristics of the teachers. The second, ‘B. Evaluation’, related in particular to the extent to which constructive feedback and continuous evaluation constitute part of the lesson. The last sub-criterion, ‘C. Methodology’, related to, inter alia, the extent to which the methodology is cooperative and communicative and promotes engagement with the language.

73The other criteria and sub-criteria, which are outside the scope of the present action, are, first, Sub-criterion 1.3, ‘Online Platforms’, relating to the functioning and ease of use of the online teaching platforms proposed by the tenderers and, secondly, Criterion 2, ‘Quality control and work monitoring’, which is divided into three sub-criteria: 2.1., ‘Method of staff selection’, 2.2., ‘Quality control’, and 2.3, ‘Procedure management’.

74In the second place, it is appropriate to examine the Commission’s letters of 19 April and 10 May 2021, which it sent to the applicant pursuant to the latter’s request for supplementary information about the rejection of its tender, in order to determine whether, in the light of the principles set out in paragraphs 62 to 68 above, the applicant was effectively able to understand the strengths and weaknesses of its tender and of the CLL consortium’s tender in respect of Sub-criteria 1.1 and 1.2.

75For, first of all, Sub-criterion 1.1, ‘Content’, the applicant obtained 22 points out of 30. The applicant’s tender is described as good and corresponding to expectations in most aspects. The CLL consortium obtained 28 points out of 30. Its tender is described as outstanding and as exceeding expectations in most aspects, including very important additional and relevant aspects.

76With regard to the course objectives, the Committee found the CLL consortium’s tender to be better than the applicant’s, given that it is described as containing a ‘very relevant list of sociocultural themes’. In relation to organisation of the content, the Committee found the CLL consortium’s tender to be superior, because it was offering a very good sequence of content, which included distance learning to consolidate and prepare for the face-to-face lessons. According to the Committee, the case study also ensured an ‘appropriate’ balance between instruction and practice. The Committee also noted that the case study included innovative features. The Committee stated that the course programme was very detailed and its structure very clear. Lastly, the Committee stated that the course model was very relevant. In respect of the quality of the teaching materials, by contrast, the Committee merely stated that those materials corresponded to the expectations of the contracting authority and contained an online component including ‘a lot’ of supplementary material.

77At the same time, the Committee stated that the applicant’s tender contained a relevant description of the different types of teaching materials and that the applicant was proposing an online manual and also providing access to a platform containing a number of materials. According to the Committee, the applicant also listed a number of digital tools to encourage self-learning. In respect of the other teaching materials, the Committee took the view that it could not evaluate the content of the electronic teaching materials in the applicant’s tender.

78The applicant’s tender is in fact described in more positive terms than that of the CLL consortium in relation to the target audience component, since the evaluation grid stated that the tender applied similar values to those of the target audience and was used to teach both specific topics and culture and civilisation topics. The applicant’s tender was found to be of lower quality in relation to organisation of the content, since it proposed a ‘brief but clear’ description of its content in relation to face-to-face lessons. The Committee also noted that the self-study content was not specified, and that it found some innovative features ‘here and there’. In respect, lastly, of the quality of teaching materials, the Committee stated that it had been unable to evaluate the content of the exercises, which were accessible via hypertext links. It nevertheless noted that the proposal contained a list of digital tools to encourage self-learning.

79As may be seen from paragraphs 75 to 78 above on Sub-criterion 1.1, ‘Content’, the Committee indicated both more positive aspects of the CLL consortium’s tender and weaknesses or shortcomings in the applicant’s tender.

80With regard to Sub-criterion 1.2, ‘Pedagogy’, it should be borne in mind that the applicant was awarded 21 points out of 30. Its tender is described as good and corresponding to expectations. The CLL consortium obtained 27 points out of 30. The CLL consortium’s tender is described as excellent and exceeding expectations in many aspects, and as also offering several important additional aspects.

81The Committee emphasised that the role of teachers was ‘particularly’ well defined and clear in the tender of the CLL consortium. Teachers would use direct and indirect strategies to help participants reach linguistic autonomy. Teachers would also create the relevant conditions for a safe learning experience. In relation to the evaluation component, according to the Committee, the CLL consortium ensured continuous evaluation ‘in a very professional way’ and defined ‘very well’ the evaluation methods, which were ‘very’ relevant and accurate.

82The Committee also stated that, in relation to evaluation, the applicant’s tender was superior as regards only one aspect, that is to say, the fact that the constant assessment and feedback in its tender ‘enable[d] the content to be adapted to the needs’ of the learners, in order to ‘guide and foster’ motivation and autonomy. The Committee nevertheless commented that the applicant’s tender defined the methods ‘succinctly’ and that the methods were merely ‘relevant and accurate’. The Committee also noted that the final summative evaluations and the criteria of the formative evaluations were presented in an online version and that it had not been able to evaluate them. The evaluations for the final component relating to methodology were identical, with the exception of the comment on the applicant’s tender that ‘the tender describes in full details the learning methods’.

83It must be stated that, although the evaluations for Sub-criteria 1.1 and 1.2 are succinct, it should be noted that, first, in the light of the case-law set out in paragraph 65 above, it can be seen that the tender of the CLL consortium contains a number of aspects that are superior to those of the applicant’s tender, set out in paragraphs 76 and 81 above. Secondly, the standard of quality of the applicant’s tender is knowable, and is lower. Thirdly, it must be borne in mind that the incomplete nature of the documentation, which relates to a key component of a language course, namely the exercises, is presented as a weakness in the applicant’s tender which led to a loss of points. The applicant’s argument that it is not in a position to know the relative advantages of the successful tender must therefore be rejected.

84The applicant’s argument to the effect that the Commission failed clearly to identify the exact technical proposal that justified the ‘excellent’ assessment and distinguished between the two tenders must also be rejected for the same reason.

85In this regard, since the Committee found the successful tender to be qualitatively superior on several points, the applicant’s argument that the incomplete nature of the documentation was the only reason why the Commission preferred the CLL consortium’s tender must also be rejected.

–The argument that the Commission was obliged to detail how the incomplete nature of the documentation affected the deduction of points

86Next, it is necessary to examine the first part of the fourth plea in law, relating to the inability of the applicant to ascertain the exact number of points deducted as a result of the incomplete nature of the documentation.

87In this regard, the case-law adduced by the applicant, established in the judgments of 5 March 2019, Yellow Window v EIGE (T‑439/17, not published, EU:T:2019:136, paragraphs 73 and 74) and of 5 March 2019, Eurosupport – Fineurop support v EIGE (T‑450/17, not published, EU:T:2019:137, paragraphs 49 and 50), must be rejected at the outset. According to that case-law, a correlation must exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. That case-law is irrelevant because it concerns specific circumstances which differ from those of the present case. It relates in particular to a situation in which the comments of the evaluation committee failed to indicate clearly whether the same shortcoming gave rise to the deduction of points under the specific criterion or sub-criterion for which marks were deducted, which is plainly not the situation in the present case, since there is a link between the incomplete nature of the documentation and the evaluation relating to it.

88For the same reasons, the case-law adduced by the applicant, established in the judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO (T‑556/11, EU:T:2016:248), must also be rejected. According to that case-law, the correlation between the specific negative comments and the deduction of points must be explained when the contracting authority, on the one hand, has specified in the terms of the procurement procedure the award criteria and sub-criteria that it will apply and the features or points that will be taken into consideration and, on the other, makes specific assessments as to the manner in which the tender fulfils those criteria or sub-criteria or proposes those features.

89That case-law likewise is irrelevant, because the factual circumstances that gave rise to it differ from those of the present case. In the present case, the contracting authority informed the applicant of all the points awarded to it, broken down by sub-criterion and accompanied by specific comments. In the earlier case, by contrast, the contracting authority had applied a mathematical formula by awarding fractions of points in respect of sub-criteria or sub-points and made specific negative assessments in that regard but did not, on the other hand, disclose the number of points, together with a breakdown by sub-criterion, obtained by the applicant and by the successful tenderers.

90In the present case, as the Commission correctly states in paragraphs 56 and 57 of its rejoinder, the tender specifications do not establish any weighting for the various components within the description of each sub-criterion, because these are not ‘sub-sub-criteria’ intended to be evaluated separately but are descriptive of the content of each sub-criterion. This means that, ultimately, it is not necessary to attach a specific weight to each positive or negative comment in the evaluation, but rather that the applicant is enabled to understand the reasons that led the Commission to award its tender the score given for each sub-criterion, which it was indeed able to do.

91It must therefore be found that the Committee indicated the relative advantages of the successful tender under each sub-criterion and that in the present case the Commission cannot be required to assign a specific weight to each positive or negative comment relating to certain descriptive sub-points.

–The argument that the Court is unable to review the evaluation

92Lastly, it is necessary to examine the applicant’s argument based in essence on the principles laid down in the case-law cited in paragraph 88 above and the argument of the Kingdom of Spain, as set out in paragraph 55 above, alleging that the Court is not in a position to carry out a review, in the light of the principle of effective judicial protection established in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

93In the first place, the Kingdom of Spain claims that the repeated, deliberate use of allegedly vague expressions such as ‘some parts of the content’ and ‘some elements of the tender’ and, more broadly, the overly brief statement of reasons preclude any review of the evaluation carried out by the Commission.

94In this regard, in view of the obligation on the EU Courts to review whether decisions of the institutions have been made arbitrarily, it cannot simply be argued that the applicant was able in practice to understand that the rejection of part of its tender precluded it from being awarded the public contract, as the Commission maintains, in essence, in its reply in respect of the first plea in law. On the contrary, the statement of reasons must be relevant and coherent so that the EU Courts are able to review whether it is well founded.

95First of all, it should be recalled that it was found in paragraph 83 above that the evaluations, succinct though they are, are not identical but contain clear and unambiguous differences, which indicate the relative advantages of the successful tender.

96Secondly, the appreciable difference between the scores awarded to the technical tenders, that is to say a 12-point difference, likewise does not militate in favour of a stricter obligation to state reasons, as such an obligation is apparent from the judgments of 17 September 2015, Ricoh Belgium v Council (T‑691/13, not published, EU:T:2015:641, paragraph 63) and of 14 December 2017, European Dynamics Luxembourg and Evropaïki Dynamiki v Parliament (T‑164/15, not published, EU:T:2017:906, paragraph 50).

97Lastly, it should also be recalled that the former Article 113(2) of the Financial Regulation, which corresponds to the current Article 170(3) of the Financial Regulation, requires the contracting authority to provide the unsuccessful tenderer with the real reasons for the rejection of its tender. The statement of reasons provided must also reflect the actual conduct of the evaluation procedure. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down in the former Article 113(2) of the Financial Regulation (see, to that effect, judgments of 10 September 2008, Evropaïki Dynamiki v Court of Justice, T‑272/06, EU:T:2008:334, paragraphs 42 and 43 and the case-law cited, and of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 39).

98In this regard, the applicant and the Kingdom of Spain have not demonstrated that the statement of reasons did not reflect what actually took place during the evaluation procedure. It should also be borne in mind, as noted in paragraph 83 above, that the contested decision contains a statement of reasons identifying its true basis.

99The argument of the applicant and the Kingdom of Spain to the effect that the statement of reasons at issue prevents any judicial review must therefore be rejected.

100In the second place, noting that each sub-criterion is broken down into sub-points and sub-parts, the applicant claims that the Commission was not entitled to attribute a significantly different relative weight to one component of the tender for the purposes of evaluating the tenders where that particular weight had not been indicated in the tender specifications. The applicant suggests that by doing so the Commission frustrated the legitimate expectations of tenderers, with the effect that the particular weight given to one component of the tender was able to influence the evaluation of the tender even though that weight had not been indicated in those documents.

101First of all, the applicant’s argument that its legitimate expectations have been breached, in support of which it has provided no details or evidence, must be rejected at the outset.

102In a similar vein, as regards whether the Commission attached particular weight to one component of the tender with no prior indication in the tender specifications that it would do so, it is appropriate merely to note that the weight of a sub-point was not prescribed in the specifications at issue. The applicant therefore cannot claim that the Commission failed in its obligation to state reasons by not setting out the weight that it gave to one component of the tender. The sub-points referred to in the tender specifications provide only a descriptive indication of the aspects of the technical proposal that the Committee took into account in order to award an overall score, but not their particular weight within a sub-criterion. The argument alleging that the award of points at sub-point and sub-criterion level was not transparent must therefore be rejected.

103Similarly, even though the Commission implicitly acknowledged that the applicant’s position on that point is well founded, by asserting that the documents were important, although adding that the incomplete nature of the documentation did not have the same impact in relation to the other sub-criteria, it should be recalled that, according to the case-law cited in paragraph 64 above, the Commission cannot be required to explain how it evaluated each component of the tender.

104The first plea in law and the first part of the fourth plea, in so far as it alleges infringement of the obligation to state reasons, must therefore be rejected as unfounded.

The remainder of the fourth plea in law, alleging a manifest error of assessment on the ground that the link between the evaluation of Sub-criteria 1.1 and 1.2 and the score awarded is irrational, disproportionate and non-transparent

105In so far as the remainder of the first part of the fourth plea alleges a manifest error of assessment, the applicant claims that, as regards the Commission’s assessments under Sub-criteria 1.1 and 1.2, which were largely positive, there is no rational correlation between the evaluation and the score awarded.

106By the second part of the fourth plea, the applicant submits that the impact of the allegedly incomplete nature of the documentation on the score awarded for Sub-criteria 1.1 and 1.2 is disproportionate in relation to the terms used in the evaluation.

107On the one hand, the applicant argues that, on the basis of the terms used, the evaluation of its tender is in fact positive for each of the four sub-parts of Sub-criterion 1.1. On the other hand, it asserts that the score of 22 points out of 30 for the sub-criterion in question is barely above the 70% threshold, that is to say, the minimum quality requirement, despite the very largely positive assessments of the technical proposal, according to which the technical proposal would then exceed the minimum requirement.

108The sole ground for that discrepancy between the evaluation and the score awarded to that sub-criterion appears to be the incomplete nature of the documentation and the partial impact that it may have had on the verification of certain technical proposals. The applicant nevertheless states that it is unable to understand how the incomplete nature of the documentation could ultimately reduce high quality to satisfactory quality, since the incomplete nature of the documentation relates only to items which illustrate the technical proposal, which was, moreover, assessed positively in the evaluation of both sub-parts of Sub-criterion 1.1.

109The applicant then puts forward the same analysis in relation to Sub-criterion 1.2., the three components of which were also evaluated positively, only one of which was affected by the incomplete nature of the documentation. Although that incomplete nature could, technically, have an impact on one third of the weighting and even though the assessment of that component is very largely positive, the tender was nevertheless awarded 21 points out of 30, that is to say, the minimum threshold for a technical proposal to be, at the very most, satisfactory.

110By the third part of the fourth plea in law, the applicant argues that the Commission infringed the principle of transparency, because the specific importance attached to a component of the criterion affected by the incomplete nature of the documentation was not indicated in the procurement documents.

111As set out in paragraph 55 above, the Kingdom of Spain concurs with the applicant’s arguments relating to the remainder of the first part of the fourth plea.

112The Commission refutes those arguments and contends that the fourth plea in law should be rejected.

113In the present case, it should be noted as a preliminary point that the applicant has turned the first part of the fourth plea in law, which originally related to an infringement of the obligation to state reasons, into an allegation of a manifest error of assessment. In its application, the applicant argues that insufficient reasons were given for the rational correlation between the assessments and the score awarded. In its reply, by contrast, it submits that the lack of a coherent correlation between the assessment and the score awarded amounts to a manifest error of assessment. The applicant, indeed, confirmed that circumstance in response to a question put by the Court at the hearing.

114As regards the admissibility of this new line of argument relating to the first part of the fourth plea, raised in the context of the reply, it is necessary to examine whether it constitutes an amplification of a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected with that plea, for the purposes of Article 84(1) of the Rules of Procedure. According to the case-law, in order to be regarded as an amplification of a plea or of a head of claim previously advanced, a new argument must, in relation to the pleas or heads of claim initially set out in the application, present a sufficiently close connection with the pleas or heads of claim initially put forward in the application in order to be regarded as forming part of the normal evolution of debate in proceedings before the Court (see judgment of 13 July 2022, Delifruit v Commission, T‑629/20, EU:T:2022:448, paragraph 20 and the case-law cited).

115In the present case, the new argument is closely connected with the second part of the fourth plea in law, which relates to the correlation between the assessment and the award of points, and, broadly speaking, with the third plea, which also alleges a manifest error of assessment. It must therefore be regarded as admissible.

116With respect to the merits of the first part of the fourth plea, it should be borne in mind that it has been held in paragraph 83 above that the Commission had set out the relative advantages and characteristics of the CLL consortium’s tender and the shortcomings of the applicant’s tender. It has therefore been established that the incomplete nature of the documentation was not the only shortcoming justifying the loss of points in the evaluation of the applicant’s tender. Since the Commission referred to a number of shortcomings in the applicant’s tender, the deduction of points cannot be described as manifestly inconsistent with the shortcomings identified. The first part of the fourth plea in law must therefore be rejected in so far as it alleges a manifest error of assessment.

117Furthermore, in respect of the second and third parts of the fourth plea in law, as apparent from paragraph 90 above, the tender specifications did not indicate any specific weighting percentage for each sub-sub-criterion or for each component of a sub-criterion.

118The specific weight given to a component of the tender and the award of points for each sub-sub-criterion or each component of a sub-criterion fall within the broad discretion enjoyed by the Commission. The Court therefore cannot review the importance, as such, attached to particular components in relation to a sub-sub-criterion, but merely reviews whether a manifest error of assessment has been established. In the present case, the applicant has not demonstrated any such error, since it was found in paragraphs 83 and 90 above that the incomplete nature of the documentation identified by the Commission related to a significant component of a language course and could legitimately give rise to a deduction of points, and that the deduction of points has not been shown to be manifestly incorrect. The second and third parts of the fourth plea in law must therefore be rejected.

119Accordingly, the remainder of the fourth plea in law must be rejected in its entirety as unfounded.

The third plea in law: manifest error of assessment as a result of the exclusion of components of the tender that were accessible via a hypertext link

120By its third plea in law, the applicant alleges that the Commission committed a manifest error of assessment in rejecting the documents forming part of the tender that were accessible via a hypertext link.

121In the first place, the applicant claims that it was entitled to submit documents forming part of the tender and that were accessible via a hypertext link in the eSubmission application because, first, the relevant provision of the tender specifications contained no express prohibition on doing so and, secondly, using hypertext links gives a better picture of the functioning and full potential of the technical proposal.

122In the second place, given that, according to the applicant, the rule is not clear and it could reasonably assume that the document incorporated in the tender and accessible via a hypertext link would be taken into consideration, it argues that the Commission should have requested it to justify the procedure used and, if it saw fit, to make a supplementary submission.

123In that regard, first, the applicant takes the view that the risk that the tender could be modified, on the basis of which the Commission decided not to evaluate certain documents, was hypothetical. According to the applicant, it can be demonstrated by technical means that the documents were not modified, since they were all locked on the date on which they were submitted. The applicant believes that, in order effectively to exercise its discretion, the Commission should have verified whether the documents at issue had been modified, or questioned it as to the date on which the document accessible via the hypertext link had been submitted on the platform, by analogy with the provisions applicable to imprecise or incomplete tenders, instead of presuming bad faith on the part of the applicant. In that regard, the applicant cites the case-law according to which the contracting authority may ask to be provided with a document which ‘can be objectively shown’ to pre-date the deadline for submission of the tender.

124Secondly, the applicant notes that during a previous procurement procedure (HR/2020/OP/0004), relating to the organisation of language tests, in which it also participated and in which the prescriptions relating to submission of the tender documents were worded identically, the Committee responsible for evaluating the tenders for the Commission had allowed the use of hypertext links in the applicant’s tender. Since the decision awarding that contract was notified to the applicant before the deadline for submitting tenders for the contract at issue, the applicant considers that it could legitimately assume that the Commission would accept the hypertext link incorporated in the tender. By taking the opposite approach for awarding the present contract, the Commission, it submits, has therefore frustrated the applicant’s legitimate expectations and acted arbitrarily.

125The applicant also claims that the Commission’s argument in which it relies on the rules relating to the submission of tenders in order to justify the rejection of certain tender documents was raised a posteriori, since it was referred to for the first time in the letter of 25 May 2021.

126In the applicant’s view, that tender submission rule relating to use of the eSubmission application operates solely as a mechanism for excluding tenders, rather than documents forming part of the tender. The documents at issue are therefore subject not to those exclusionary provisions but to the requirements of the principle of equality.

127In order to show that the other tenderers made the same legitimate error, the applicant requests the Court to order the Commission to produce information about, first, the extent to which the other tenderers in Lot 3 and the other lots of the contract submitted documents by the same means as part of their tenders and, secondly, how the Commission dealt with that error in those evaluations.

128The applicant has also submitted in the case file screenshots of all the documents accessible via a hypertext link together with their properties.

129The Kingdom of Spain concurs with the applicant’s arguments and adds new points.

130In the first place, the Kingdom of Spain adduces fresh elements of fact when it asserts that the tender specifications contained no explicit or implied prohibition in respect of hypertext links.

131In that regard, first, given that elsewhere in the tender specifications the Commission contemplated the use of hypertext links, inter alia for accessing the authorisation given to the signatory of the tender and information contained in a document registered with an ISBN (International Standard Book Number) code, for example, the Kingdom of Spain believes that the Commission should have expressly excluded the use of such links to submit documents via the eSubmission application.

132Secondly, the Kingdom of Spain notes that the use of a hyperlink in a document submitted via the eSubmission application cannot be equated to a failure to submit a document, as attested in particular by the fact that the Commission gained access to the content of the documents accessible via hypertext links, even though it regarded them as ‘not submitted’.

133Thirdly, the Kingdom of Spain asserts that the Commission acted inconsistently and in contradiction to its own acts: (i) as a matter of course the Commission included dozens of hypertext links in the contract documents, but expresses surprise when the tenderers use the same means; (ii) the contracting authority’s objectives purportedly include making its ways of working fit for purpose and flexible, continuously improving and constantly harnessing the potential of networks; (iii) when evaluating Sub-criterion 1.3, the Commission in fact evaluated the platform after using a hypertext link, even though the online teaching platform in question was not hosted by the eSubmission application.

134In the second place, the Kingdom of Spain argues that the Commission infringed the right to be heard enshrined in Article 41(2)(a) of the Charter, since it failed to request the applicant to demonstrate that it had not modified its tender, and simply rejected the documents in question.

135The Commission refutes the arguments of the applicant and those of the Kingdom of Spain and submits that the third plea in law should be rejected.

136It should in this regard be noted that, by its third plea, the applicant is arguing, in essence, that it was entitled to submit certain documents forming part of its tender via hypertext links and that the Commission should have taken those documents into consideration.

137First, it is necessary to determine whether the applicant was entitled, in accordance with the tender specifications, to submit certain parts of its tender via hypertext links leading to a document accessible on a website under the control of the tenderer.

138The tender specifications provide on page 79 that ‘tenders are to be submitted via the eSubmission application according to the instructions laid down in the Invitation to tender letter and the eSubmission Quick Guide’. The specifications also state that the technical tender ‘must provide all the information needed’ to assess the compliance with the specifications and the award criteria.

139The fact that the contracting authority uses the verb ‘submit’ and the expression ‘via the eSubmission application’ means that, according to both wording and context, the ‘tender’ must be uploaded directly to the eSubmission platform, and that only documents for which that process was followed form part of the tender. It follows that the hypertext links, as presented in the applicant’s tender, were not permissible, because they did not comply with that aforementioned requirement laid down in the specifications. The Commission cannot therefore be criticised for not taking into account the documents obtained via the hypertext links in question.

140That approach is in line with the objective pursued by means of the eSubmission application of facilitating the submission of tenders via a secure application.

141Submission via that secure application also makes possible compliance with the principle of the equal treatment of tenderers established in Article 160(1) of the Financial Regulation, since it ensures that the contracting authority can retain control of the documents submitted to it. It therefore guards against any risk of documents being modified where they are accessible only via a hypertext link and therefore have not been uploaded directly in the eSubmission application.

142It should be noted in this context that a reasonably well-informed tenderer exercising ordinary care is in a position to know that it must submit its tender within the deadline given and that it can no longer modify the tender after that deadline has passed. Such a tenderer cannot therefore infer from the tender specifications in question that it is permissible to include hypertext links in its tender which lead to a document accessible on a website under its control. That approach is not permissible under the tender specifications and, in addition, does not ensure that the documents concerned cannot be modified after the deadline for submitting tenders has passed.

143Furthermore, since the applicant was not permitted to include hypertext links in its tender, the Commission was not obliged to verify whether the documents in question had been modified or to accept those documents.

144Moreover, and in any event, it should be noted that those documents were on a website under the control of the tenderer and that the evidence provided by the applicant seeks to demonstrate that the documents in question were not modified, not that they could not be modified. Specifically, neither the statements or screenshots of the properties of the documents submitted by the applicant, nor any reliance placed on the certificate adduced by the Kingdom of Spain in its pleadings are such as to demonstrate that the documents in question were under the control of the Commission and therefore could not be modified. The same is true of the evidence given by the applicant’s IT manager at the hearing, at which the applicant also stated that those documents could be modified but that any modification would have left a trace in its computer system.

145Furthermore, as regards the argument of the Kingdom of Spain, set out in paragraph 133 above, that the Commission acted inconsistently and in contradiction to its own acts, given that the applicant was awarded the maximum number of points under Sub-criterion 1.3, that alleged error by the Commission could not have any impact in the present case. It must also be noted that the applicant has not disputed that sub-criterion. That argument must therefore be rejected.

146Secondly, the finding set out in paragraph 143 above also cannot be brought into question by the applicant’s argument to the effect that this was a document the existence of which could be ‘objectively shown’ and that the Commission should therefore have asked it to resubmit the documents that were accessible via hypertext links.

147It should be noted in this respect that the judgment of 10 October 2013, Manova (C‑336/12, EU:C:2013:647), to which the applicant refers, relates to the fact that a tender may be corrected or amplified in order to make a mere clarification or to correct obvious clerical errors. The present case concerns not a clarification or correction of documents but a fresh submission of documents, which might, moreover, have been modified in the meantime. It is apparent from the case-law, in particular, that a tenderer is not generally permitted to supply documents that are required to be sent in accordance with the tender specification and which were not sent within the time limit for tenders to be submitted (judgment of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 36). In the light of that case-law, the Commission therefore had no obligation to ask the tenderer to resubmit the documents that had been made accessible via hypertext links.

148Thirdly, it is necessary to examine the applicant’s arguments alleging breach of its legitimate expectations. First of all, the applicant has not demonstrated that there were consistent assurances from the Commission that hypertext links could be used. In any event, an economic operator cannot rely on the principle of legitimate expectations where the assurances given are not consistent with the applicable rules (see judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 75 and the case-law cited, and judgment of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 81). The applicant’s arguments alleging breach of its legitimate expectations must therefore be rejected.

149Fourthly, as regards the alleged infringement of the right to be heard enshrined in Article 41(2)(a) of the Charter, which the Kingdom of Spain raised in its statement in intervention, it should be noted that the Charter also applies to procurement procedures (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 28 to 31). Tenderers must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. That right is safeguarded at the time when they submit their tenders, and by the fact that tenderers can request clarifications about the provisions of the tender specifications. The fact that no subsequent stage is envisaged in which to provide supplementary explanations, after the tenders have been evaluated, cannot therefore amount to an infringement of Article 41(2)(a) of the Charter. The argument relating to infringement of the right to be heard must therefore be rejected.

150In addition, as stated in paragraph 127 above, the applicant has requested the Court to order a measure of inquiry. That request should not be granted, because it is not necessary for resolution of the dispute, in accordance with Article 92(3) of the Rules of Procedure, as can be seen in particular from paragraphs 139 to 142 above. As regards the measure of inquiry requested by the Kingdom of Spain, by contrast, under Article 88 of the Rules of Procedure the Kingdom of Spain, as intervener, cannot make such a request, which is reserved for the main parties. That request must accordingly be refused.

151The third plea in law must therefore be rejected in its entirety as unfounded.

The second plea in law: infringement of Article 167(4) of the Financial Regulation

152By its second plea in law, the applicant criticises the Commission for infringing Article 167(4) of the Financial Regulation by failing to compare the tenders sent separately by the CLL consortium for certain lots with the competing tenders on the basis of quality criteria, that is to say, by comparing their technical proposals. According to the applicant, the Commission thus failed to exercise its discretion effectively.

153In this regard, the applicant observes that in the present case there is no difference between the assessments of the qualities of the CLL consortium’s tender for Lot 3 and that for Lot 4, whereas the first assessment related to Spanish and the second to French, and that those assessments were strictly identical, word for word and point for point, in relation to all the criteria. The applicant asserts that the Commission failed to compare the qualities or objective values of the CLL consortium’s tender with those of the competing tenders, in particular that of the applicant, in order to identify its characteristics and relative advantages, and failed to make clear in what respects the tender of the CLL consortium was better than that of the applicant.

154According to the applicant, that obligation to compare all the technical tenders submitted for a lot with each other is apparent, first, from recital 90 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) and, secondly, from Section 4.2 of the tender specifications, according to which, in the case of a tender submission for several lots, technical tenders had to be submitted for each lot individually as the evaluation would be performed separately. According to the applicant, the Commission’s approach also amounted in practice to removing the tenders from the field of competition. Lastly, the applicant invokes the case-law according to which there must be an effective comparison of the tenders.

155The applicant argues that, had that obligation been fulfilled, the relative value for the tender of the CLL consortium should necessarily have varied from lot to lot. Given that, (i) each of the CLL consortium’s technical tenders would initially have been evaluated separately for each lot and, (ii) the applicant’s tender, for Lot 3, was different from those submitted for the other lots, the assessment and the mark for the CLL consortium’s tender, both resulting from a comparison with the other tenders for each lot, should therefore vary from lot to lot. In any event, the assessment is also likely to have varied because the Committee was different for each lot.

156In this regard, the applicant refutes the argument by which the Commission claims that it assessed the CLL consortium’s tender uniformly in order to prevent any arbitrariness in its decision-making. The applicant asserts, in this context, that the work of the Committee has been distorted and that there is therefore an irregularity.

157The applicant accordingly requests the Court to order the Commission to produce, first, the methodology chosen by the Committee for the purpose of assessing the tenders and, secondly, the evaluations carried out by its members for all the lots of the CLL consortium’s tender and for the applicant’s tender.

158The Kingdom of Spain concurs with the applicant’s arguments. Furthermore, it too submits arguments relating to the comparative examination of the tenders, although from the perspective of the evaluation methodology used by the Commission when it evaluated Sub-criteria 1.1, 1.3 and 2.3 in the applicant’s tender. According to the Kingdom of Spain, that methodology was different, first, from the methodology used in relation to other sub-criteria and, secondly, from the methodology used to evaluate the same Sub-criteria 1.1, 1.2 and 2.3 for the tender of the CLL consortium.

159The Kingdom of Spain asserts, in this regard, that the Commission infringed the principles of non-discrimination and good administration. According to the Kingdom of Spain, the Commission, first, evaluated negatively certain components of the content of the applicant’s tender but did not evaluate the same components in the tender of the CLL consortium; and, secondly, it evaluated positively certain aspects of the CLL consortium’s tender but did not give an evaluation of the same aspects which also appear in the applicant’s tender.

160The Kingdom of Spain therefore requests the Court, under Article 85, read in conjunction with Article 88(2), of the Rules of Procedure, to order the Commission to produce, as evidence, the full evaluation of Sub-criteria 1.1 and 1.2 in the document corresponding to the qualitative evaluation of the tender of the CLL consortium, attached in Annex A.22 to the application, in order to demonstrate that the Commission evaluated specific digital tools submitted by the CLL consortium but did not evaluate the digital tools submitted by the applicant.

161The Commission refutes the arguments of the applicant and of the Kingdom of Spain and claims that the second plea in law should be rejected.

162It should be noted in this regard that, by its second plea, the applicant argues, in essence, that the Commission failed to discharge its obligation to compare the technical proposal of the CLL consortium with its own technical proposal, and the Kingdom of Spain claims that the Commission did not use the same methodology to evaluate certain sub-criteria in the applicant’s tender and in the tender submitted by the CLL consortium.

163In the first place, it is thus necessary to determine whether the contracting authority infringed Article 167(4) of the Financial Regulation given that it appears, in essence, that it compared the tenders with each other on the basis of their overall score which reflects the ‘best price-quality ratio’.

164At the outset, it should be noted that it is clear from the wording of Article 167(4) of the Financial Regulation that the contracting authority is required to determine the most economically advantageous tender by comparing, inter alia, the price-quality ratios of the respective tenders. That comparison involves comparing the technical characteristics of the tenders in the light of the criteria contained in the tender specifications.

165In the present case, there is nothing to suggest that the Commission did not comply with the requirement to identify the ‘most economically advantageous’ tender on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment, with a view to ensuring an objective comparison of the relative value of the tenders. The CLL consortium’s tender was evaluated by the Committee in the light of the technical award criteria contained in the tender specifications, as was the applicant’s tender.

166It should be noted in this regard that, contrary to the applicant’s assertion when it relies on the fact that the assessments for Lot 3 and Lot 4 are uniform, the circumstance that the tables for two different lots (French and Spanish) contain identical assessments does not in the slightest way prove that the Commission declined to compare the characteristics or objective values of the successful tender with those of the competing tenders in the two lots. The similarity in the Committee’s assessments for those two lots may be explained by the fact that they are lots relating to the same type of service contract and the fact that the content of the services proposed by the CLL consortium for each lot may be identical.

167In addition, it has been found in paragraph 83 above that the technical proposals in the competing tenders contained a number of differences, and it was therefore possible that they would give rise to different evaluations with regard to their ability to achieve the best price-quality ratio.

168It follows that the Commission cannot be criticised either for failing to compare the technical proposals or for not satisfying the requirements of Article 167(4) of the Financial Regulation when it compared the tenders.

169In the second place, it is necessary to examine the arguments of the Kingdom of Spain alleging that the applicant and the CLL consortium were treated differently as regards application of the methodology for evaluating their tenders.

170While bearing in mind that the evaluation grid does not need to be an exhaustive account of every detail of the technical tender that the Committee took into account, it is necessary to examine whether the Commission acted in a discriminatory manner when it evaluated the applicant’s tender and that of the CLL consortium.

171First, the Kingdom of Spain notes that the Commission did not evaluate the content of the exercises under Sub-criterion 1.1 in the tender of the CLL consortium, and evaluated only the sequence of that content, stating that the materials allocated to it corresponded to the expectations of the contracting authority. In relation to the applicant’s tender, moreover, according to the Kingdom of Spain, the Commission had a duty to evaluate the content of those exercises, but since it found, ultimately, that it could not evaluate the online exercises as a result of the risk of modification, it merely indicated that there was a relevant description of the different types of materials, but did not evaluate whether they corresponded to the expectations of the contracting authority.

172It should be noted in this respect that, when it evaluated the two tenders at issue, the Commission complied with the principle of equal treatment or non-discrimination. On the one hand, it evaluated the teaching materials in the tender of the CLL consortium whereas, on the other, it was not in a position to evaluate the content of those teaching materials in the applicant’s tender, because it had access to the content in question only via a hypertext link leading to a website under the control of the applicant, which posed a risk that the tender could be modified. These were not therefore two comparable situations that required to be treated equally.

173In addition, it is claimed that the Commission likewise did not specifically evaluate the content of the self-study in the tender of the CLL consortium whereas, in respect of the applicant’s tender, the Commission stated that the self-study content was not specified.

174It should be recalled in this respect, as noted in paragraphs 165 to 168 above, that the technical tenders were compared against the tender specifications and that the Commission compared the technical proposals. The Commission effectively found that the applicant’s tender contained a shortcoming in relation to self-study. It can in fact be found that the tender was evaluated as being of lower quality than that of the CLL consortium, because it did not specify the self-study. It follows that the Commission did not infringe Article 167(4) of the Financial Regulation in that respect.

175In addition, the Kingdom of Spain asserts that, under Sub-criterion 1.2, the Commission did not specifically assess the content of the final summative evaluations or the criteria of the formative evaluations in the CLL consortium’s tender, whereas for the applicant’s tender it gave a negative evaluation because it was unable to evaluate those aspects, which were available via hypertext links.

176It should be borne in mind in this regard that, since one of the tenders at issue contained certain information that was not given in the other, the Commission did not evaluate the two tenders in a discriminatory manner by indicating that information was missing in the applicant’s tender but did not comment more specifically on those aspects in the tender of the CLL consortium.

177Secondly, the Kingdom of Spain submits that, in the evaluation under Sub-criterion 1.2, the Commission evaluated the learning methods in the applicant’s tender but did not expressly evaluate that aspect when it evaluated the tender of the CLL consortium.

178That argument cannot succeed because, in reality, that circumstance amounts to treating the applicant even more favourably, and because it constitutes a positive comment on the applicant’s tender. It must therefore be found that there was no discriminatory treatment.

179Thirdly, in the context of the evaluation of Sub-criterion 1.1 in relation to activities and digital resources, the Commission, according to the Kingdom of Spain, referred to and evaluated the digital tools proposed in the tender of the CLL consortium, stating that the teaching materials met the expectations of the contracting authority. In its evaluation of the applicant’s tender, by contrast, it merely stated that the tender contained a list with many other digital tools that encouraged self-study, but did not refer to or evaluate them.

180In this regard, it must be held that that statement by the Commission about the digital tools in the applicant’s tender is in reality a positive comment equivalent to the statement about the CLL consortium’s tender. There was therefore no discriminatory treatment.

181Fourthly, in relation to the organisation of the content under Sub-criterion 1.1, the Kingdom of Spain asserts that the Commission had described the CLL consortium’s tender as being detailed and very clearly structured whereas, in relation to the applicant’s tender, which the Kingdom of Spain alleges also contained a detailed and clearly structured course programme, the qualitative evaluation for Sub-criterion 1.1 contains no reference to or evaluation of that programme.

182In this regard, it should be noted that, contrary to the Kingdom of Spain’s assertion, the Commission did indeed indicate that the applicant’s tender gave a short, but clear, description of its course content, which is a less positive comment than that for the tender of the CLL consortium. It must therefore be found that the Commission did in fact evaluate both tenders.

183In the light of the foregoing, it is clear that the two tenders at issue were not treated differently, because the differences, as described by the Kingdom of Spain, reflect the actual differences existing between those tenders.

184In addition, the applicant has requested the Court to order a measure of inquiry. That request should not be granted, because it is not necessary for a resolution of the dispute, in accordance with Article 92(3) of the Rules of Procedure, as can be seen in particular from paragraphs 168 to 183 above. As regards the Kingdom of Spain’s request for a measure of inquiry, by contrast, under Article 88 of the Rules of Procedure the Kingdom of Spain, as intervener, cannot make such a request, which is reserved for the main parties. That request cannot therefore be granted.

185Accordingly, the second plea in law must be rejected.

The fifth plea in law: infringement of the fundamental principles of public procurement law

186By its fifth plea, the applicant submits that, by awarding all the lots of the contract for language training to a single service provider, that is to say, the CLL consortium, the Commission disregarded the objective pursued by the public procurement legislation of achieving the widest possible opening-up of the markets of the EU institutions to competition and access to those markets by small and medium-sized undertakings.

187It recalls that it is apparent from the case-law of the General Court and the Court of Justice that the contracting authority may not artificially narrow down competition. That is, in its view, a legal obligation flowing from the general legal principles governing that authority.

188The applicant asserts that the discretion was exercised in practice in order to award all the lots of the contract to the CLL consortium.

189First, the applicant restates the argument put forward under the second plea in law, according to which the Commission failed to submit the tenders of the CLL consortium to a process of comparing them with the competing tenders, and thereby circumvented the procedure for awarding a public contract.

190Secondly, it claims that the Commission’s unusual practice of assessing the tenders of the CLL consortium uniformly and almost identically, awarding the maximum mark for two thirds of the criteria, indicates, by contrast, a failure to exercise discretion if not a neutralisation of the qualitative criteria.

191The applicant also asserts that the Commission’s current practice is to prevent contracts from being divided into lots and, where they are so divided, to award all the lots to a single operator. It draws attention specifically to the calls for tender for services for the organisation of language tests, which were awarded to a single operator; for services for the organisation of remotely delivered language tests, which were contained in a single lot; and for online language support services for the Erasmus+ programme, which likewise were not divided into different language lots. In the light of that circumstantial evidence, the applicant claims that the Commission is seeking increasingly to centralise all the services to meet its language requirements in a single provider.

192The Kingdom of Spain supports that plea in law relied upon by the applicant, from a more procedural perspective.

193In particular, the Kingdom of Spain asserts that the principle of good administration under Article 41 of the Charter, and the general principles of transparency and objectivity in the context of evaluating tenders in a public procurement procedure, require that the evaluation calling for value judgments must be carried out before and separately from the evaluations based on application of a mathematical formula.

194In this regard, the Kingdom of Spain takes the view that because an evaluation calling for value judgments (the evaluation of the technical tender) and an automatic evaluation (the evaluation of the financial tender) were carried out together, the Commission’s evaluation procedure means that the contracting authority may, in appearance at least, be tempted, albeit unconsciously, to tailor the evaluation based on value judgments in order to make it decisive.

195Since there is no guarantee that the technical tender was evaluated before and separately from the financial tender, and as the Commission has not specified the weighting given to each component of each sub-criterion, there may, according to the Kingdom of Spain, always be a suspicion that the contracting authority, albeit unconsciously, favoured the more expensive tender, even if only as a result of the widespread preconception that better-quality products are normally higher priced.

196The Commission, for its part, refutes the arguments of the applicant and the Kingdom of Spain and claims that the fifth plea in law should be rejected.

197It should be noted in this regard that, by its fifth plea in law, the applicant submits, in essence, that, by awarding all the lots of the contract for language training to a single service provider, that is to say, the CLL consortium, the Commission improperly implemented a practice as a result of which it disregarded the objective pursued by the public procurement legislation of achieving the widest possible opening-up of the markets of the EU institutions to competition.

198It should be borne in mind in this regard that, according to settled case-law, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated by the institution or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, to that effect, judgments of 15 May 2008, Spain v Council, C‑442/04, EU:C:2008:276, paragraph 49 and the case-law cited; of 8 July 1999, Vlaamse Televisie Maatschappij v Commission, T‑266/97, EU:T:1999:144, paragraph 131; and of 13 January 2004, Thermenhotel Stoiser Franz and Others v Commission, T‑158/99, EU:T:2004:2, paragraph 164).

199That is not the situation in the present case.

200In the first place, as regards the objective pursued by procurement procedures, it should be recalled that under Article 160(2) of the Financial Regulation all contracts are to be put out to competition on the broadest possible basis.

201Similarly, under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 110).

202In the light of the foregoing, a contracting authority cannot be precluded from awarding all the lots under a public contract to the same tenderer, provided that its tenders were the most economically advantageous in comparison with all the other tenderers and provided that the principle of equal treatment as between tenderers has been upheld, with the aim of ensuring healthy and effective competition between the participants in the procurement procedure in question.

203It must therefore be found that the applicant has not provided any evidence capable of substantiating its line of argument to the effect that the objective pursued by the procurement procedure at issue was not achieved.

204In the second place, the documents in the case file contain nothing whatsoever to suggest that the Commission pursued an aim other than that of evaluating the two tenders, in accordance with the powers conferred on it for that purpose. Nor has the applicant submitted any specific evidence demonstrating the slightest favouritism on the part of the Commission.

205In the third place, the applicant’s argument that the qualitative criteria were ‘neutralised’ should also be rejected. It cannot be presumed, without any evidence having been submitted in that respect, that the contracting authority acted in bad faith in assessing the tender.

206In the fourth place, the circumstantial evidence drawn from other tendering procedures and submitted by the applicant is manifestly irrelevant to the present dispute, since each procedure has its own characteristics.

207In the context of the present plea, the Kingdom of Spain asserts that the principle of good administration under Article 41 of the Charter requires the quality of the technical tender to be evaluated before evaluation of the price since, otherwise, the contracting authority could always be suspected of favouring the most expensive tender.

208In this regard, first, it should be noted that the Kingdom of Spain has not submitted any circumstantial or other evidence establishing that the Commission first of all evaluated the price and then evaluated the quality of the tenders, before, lastly, favouring the tender of the CLL consortium. Secondly, no obligation to evaluate the quality of the technical tender before evaluating the price emerges from either the Financial Regulation or the case-law. Thirdly, the Kingdom of Spain has not submitted any relevant evidence to show that the failure to evaluate the tenders in two steps resulted in an infringement of the principle of the equal treatment of tenderers.

209The argument alleging infringement of Article 41 of the Charter must likewise be rejected. It should, in this regard, be borne in mind that the requirement of impartiality within the meaning of that Article 41 is twofold. It encompasses, first, the subjective impartiality of the members of a body, in so far as no member of the body concerned may show bias or personal prejudice (impartiality which is presumed in the absence of evidence to the contrary), and, secondly, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the body concerned (see, by analogy, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 54, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155). In the present case it must be stated that the Kingdom of Spain (i) has not claimed that the members of the Committee were subjectively partial and (ii) has not shown that the absence of an obligation to evaluate the quality of the technical tender before the price, which, moreover, has not been contemplated by the EU legislature, resulted, inter alia, in an infringement of the principle of equal treatment in the present circumstances. It must therefore be found that the Kingdom of Spain has been unable to establish any legitimate doubt in that respect.

210The fifth plea in law must therefore likewise be rejected as unfounded.

211In the light of all of the foregoing considerations, the action must be dismissed in its entirety.

Costs

212Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

213Under Article 138(1) of the Rules of Procedure, Member States which have intervened in proceedings are to bear their own costs. The Kingdom of Spain must therefore bear its own costs.

Operative part

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

1.Dismisses the action;

2.Orders Instituto Cervantes to bear its own costs and to pay those of the European Commission;

3.Orders the Kingdom of Spain to bear its own costs.