| | 32004L0018: c3-41.2Reasons for rejecting and relative advantages    
| 32004L0018 - Classic (3rd generation) | Article 41.2 | 2. On request from the party concerned, the contracting authority shall as quickly as possible inform:
- any unsuccessful candidate of the reasons for the rejection of his application,
- any unsuccessful tenderer of the reasons for the rejection of his tender, including, for the cases referred to in Article 23, paragraphs 4 and 5, the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements,
- any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement.
The time taken may in no circumstances exceed 15 days from receipt of the written request. | | 32004L0017 - Utilities (3rd generation) | Article 49.2.1-2 | 2. On request from the party concerned, contracting entities shall, as soon as possible, inform:
- any unsuccessful candidate of the reasons for the rejection of his application,
- any unsuccessful tenderer of the reasons for the rejection of his tender, including, for the cases referred to in Article 34(4) and (5), the reasons for their decision of non-equivalence or their decision that the works, supplies or services do not meet the performance or functional requirements,
- any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement.
The time taken to do so may under no circumstances exceed 15 days from receipt of the written enquiry. | | 31993L0037 - Works (2nd generation) | Article 8.1 | Article 8
1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons for rejection of his application or his tender, and, in the case of a tender, the name of the successful tenderer. | | 31993L0036 - Goods (2nd generation) | Article 7.1 | Article 7
1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons of rejection of his application or his tender, and, in the case of a tender, the name of the successful tenderer. | | 31992L0050 - Services (2nd generation) | Article 12.1 | Article 12
1. The contracting authority shall, within fifteen days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests in writing of the reasons for rejection of his application or his tender, and, in the case of a tender, the name of the successful tenderer. | | 31997L0052 - Joint amendment of Classic (2nd generation) | Article 3.2=W8.1.1 + 2.2.=G7.1.1; 1.2=S12.1.1 | 2. Article 8 (1) and (2) shall be replaced by the following:
'1. The contracting authority shall, within 15 days of the date on which a written request is received, inform any eliminated candidate or tenderer of the reasons for rejection of this application or his tender, and, any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer.
2. Article 7 (1) and (2) shall be replaced by the following:
'1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer of the reasons for rejection of his application or his tender and any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer.
2. Article 7 (1) and (2) shall be replaced by the following:
'1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer of the reasons for rejection of his application or his tender and any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer. | | 31998L0004 - Amendment of Utilities (2nd generation) | Article 1.11=U41.4.1 | | 4. The contracting entities carrying out one of the activities mentioned in Annexes I, II, VII, VIII and IX shall, promptly after the date on which a written request is received, inform any eliminated candidate or tenderer of the reasons for rejection of his application or his tender and any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer. | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.8=W1-5a.1 | | 1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons for rejection of his application or his tender, and, in the case of a tender, the name of the successful tenderer. |
Selection and award| 32002R1605 - Community (4th generation) - Commission Q4 | Article 100.2 | 2. The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings. | | 32002R2342 - Implementation of Community (4th generation) - Commission M4 | Article 149.2 | | 2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation. | | 32005R1261 - First amendment of implementation of Community (4th generation) - Commission M4A1 | Article 1.32.a=M4-149.3.1-3 | (b) the following paragraph 3 is added:
3. In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or email, that their application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been accepted.
The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request. | | 32007R0478 -Third amendment of implementation of Community (4th generation) - Commission M4A3 | Article 1.65.b.i=M4-149.3.1 | (b) paragraph 3 is amended as follows:
(i) the first subparagraph is replaced by the following:
In the case of contracts awarded by the Community institutions on their own account, with a value equal to or more than the thresholds set in Article 158 and which are not excluded from the scope of Directive 2004/18/EC, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, by mail, fax or e-mail, that their application or tender has not been accepted, at either of the following stages:
(a) shortly after decisions have been taken on the basis of exclusion and selection criteria and before the award decision, in procurement procedures organised in two separate stages,
(b) as regards the award decisions and decisions to reject offers, as soon as possible after the award decision and within the following week at the latest.
In each case, the contracting authority shall indicate the reasons why the tender or application has not been accepted and the available legal remedies." |
Cancellation| 32002R1605 - Community (4th generation) - Commission Q4 | Article 101 | The contracting authority may, before the contract is signed, either abandon the procurement or cancel the award procedure without the candidates or tenderers being entitled to claim any compensation.
The decision must be substantiated and be brought to the attention of the candidates or tenderers. | | 32002R2342 - Implementation of Community (4th generation) - Commission M4 | Article 147.3.b | 3. The contracting authority shall then take its decision giving at least the following:
.....
(b) the names of the candidates or tenderers rejected and the reasons for their rejection; | | 32007R0478 - Fourth amendment of implementation of Community (4th generation) - Commission M4A4 | Article 1.64.b>M4-147.3.1.b | | (b) in paragraph 3, the following subparagraph is added: [changion 3.b into 3.1.b] | | 32002R2342 - Implementation of Community (4th generation) - Commission M4 | Article 149.1 | | 1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract, including the grounds for any decision not to award a contract for which there has been competitive tendering or to recommence the procedure. | | 32005R1261 - First amendment of implementation of Community (4th generation) - Commission M4A1 | Article 1.32.a=M4-149.1 | | 32. Article 149 is amended as follows: (a) paragraph 1 is replaced by the following: "1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure."; |
Legislation concerning national procurement of works| DLB-1410/07 - First codification of Third law on National Procurement (NPL2C1) | Article 15 | § 14. Udbyderen underretter hurtigst muligt alle tilbudsgivere, der har afgivet et licitationsbud eller et underhåndsbud, om, hvilken afgørelse der er truffet med hensyn til ordretildelingen, herunder i givet fald begrundelsen for at annullere en licitation eller indhente underhåndsbud.
Stk. 2. Ved begrænset licitation med prækvalifikation underretter udbyderen hurtigst muligt ansøgere om, hvorvidt de er blevet prækvalificeret. Efter anmodning underretter udbyderen endvidere en forbigået ansøger om begrundelsen for, at ansøgningen er blevet forkastet.
Stk. 3. Udbyderen underretter efter anmodning berørte tilbudsgivere om begrundelsen for at forkaste tilbuddet, jf. § 8, stk. 3, og § 12, stk. 6, såfremt en sådan begrundelse ikke allerede er givet i medfør af § 15, stk. 2.
§ 15. Når kriteriet er det økonomisk mest fordelagtige bud, gælder endvidere reglerne i stk. 2-4.
Stk. 2. Senest samtidig med, at der indledes forhandlinger efter § 11, underretter udbyderen berørte tilbudsgivere om en beslutning om ikke at indbyde dem til forhandlingerne og en begrundelse herfor.
Stk. 3. Efter afslutningen på forhandlinger efter § 11 underretter udbyderen hurtigst muligt tilbudsgivere, som udbyderen har forbeholdt sig at forhandle med, om det antagne tilbuds egenskaber og relative fordele.
Stk. 4. Hvis der ikke har været forhandlinger efter § 11, eller hvis tilbuddene er indhentet ved underhåndsbud, underretter udbyderen efter anmodning tilbudsgivere, som har overholdt udbudsbetingelserne, om det antagne tilbuds egenskaber og relative fordele. | | DL-338/05 - Third law on National Procurement (NPL3) | Article 15 | § 14. Udbyderen underretter hurtigst muligt alle tilbudsgivere, der har afgivet et licitationsbud eller et underhåndsbud, om, hvilken afgørelse der er truffet med hensyn til ordretildelingen, herunder i givet fald begrundelsen for at annullere en licitation eller indhente underhåndsbud.
Stk. 2. Ved begrænset licitation med prækvalifikation underretter udbyderen hurtigst muligt ansøgere om, hvorvidt de er blevet prækvalificeret. Efter anmodning underretter udbyderen endvidere en forbigået ansøger om begrundelsen for, at ansøgningen er blevet forkastet.
Stk. 3. Udbyderen underretter efter anmodning berørte tilbudsgivere om begrundelsen for at forkaste tilbuddet, jf. § 8, stk. 3, og § 12, stk. 6, såfremt en sådan begrundelse ikke allerede er givet i medfør af § 15, stk. 2.
§ 15. Når kriteriet er det økonomisk mest fordelagtige bud, gælder endvidere reglerne i stk. 2-4.
Stk. 2. Senest samtidig med, at der indledes forhandlinger efter § 11, underretter udbyderen berørte tilbudsgivere om en beslutning om ikke at indbyde dem til forhandlingerne og en begrundelse herfor.
Stk. 3. Efter afslutningen på forhandlinger efter § 11 underretter udbyderen hurtigst muligt tilbudsgivere, som udbyderen har forbeholdt sig at forhandle med, om det antagne tilbuds egenskaber og relative fordele.
Stk. 4. Hvis der ikke har været forhandlinger efter § 11, eller hvis tilbuddene er indhentet ved underhåndsbud, underretter udbyderen efter anmodning tilbudsgivere, som har overholdt udbudsbetingelserne, om det antagne tilbuds egenskaber og relative fordele. | | DL-450/01 - Second law on National Procurement (NPL2) | Article 12 | § 12. Udbyderen underretter hurtigst muligt tilbudsgivere, der har overholdt licitationsbetingelserne, om, hvilken afgørelse der er truffet med hensyn til ordretildelingen, herunder bl.a. begrundelsen for en eventuel annullering af licitationen.
Stk. 2. Når kriteriet er det økonomisk mest fordelagtige bud, underretter udbyderen endvidere efter anmodning tilbudsgivere, der har overholdt licitationsbetingelserne, om det antagne tilbuds egenskaber og relative fordele. | | DBK-595/02 - Second order under second law on National Procurement (NPL2BK2) | Article 14 | | § 14. Udbyder underretter hurtigst muligt tilbudsgiverne om, hvilken afgørelse der er truffet med hensyn til ordretildelingen. Når kriteriet er det økonomisk mest fordelagtige bud, underretter udbyderen endvidere efter anmodning tilbudsgivere om det antagne tilbuds egenskaber og relative fordele. |
Legislation concerning national procurement of supplies and services| DLB-1410/07 - First codification of Third law on National Procurement (NPL2C1) | Article 15d.2 | | Stk. 2. Udbyderen underretter hurtigst muligt alle tilbudsgivere, der har afgivet et bud, om, hvilken afgørelse der er truffet med hensyn til ordretildelingen, herunder i givet fald begrundelsen for at annullere proceduren. Efter anmodning underretter udbyderen tilbudsgiverne om begrundelsen for at forkaste tilbuddet. | | DL-572/07 - First amendment of Third law on National Procurement (NPL3A1) | Article 3.7=NPL3-15d.2 | 7. Efter § 15 indsættes som nyt afsnit:
.....
Stk. 2. Udbyderen underretter hurtigst muligt alle tilbudsgivere, der har afgivet et bud, om, hvilken afgørelse der er truffet med hensyn til ordretildelingen, herunder i givet fald begrundelsen for at annullere proceduren. Efter anmodning underretter udbyderen tilbudsgiverne om begrundelsen for at forkaste tilbuddet. |
| Case | Pte | Ref | Text | T-411/06
Sogelma | 114-121 | Q4-101
ECT-253-impl | 118 Under Article 101 of the Financial Regulation, the decision to cancel a procurement procedure must be substantiated and brought to the attention of the candidates or tenderers.
119 Furthermore, it is settled case-law that the statement of reasons for a decision must show clearly and unequivocally the reasoning of the institution which enacted the measure so as to inform the persons concerned of the justification for the contested measure and to enable the Community judicature to exercise its powers of review (see Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809, paragraph 39, and case-law cited).
120 However it is not necessary for the decision to give all the relevant factual and legal details. The adequacy of the statement of the reasons on which a decision is based may be assessed with regard not only to its wording but also to the context in which it was adopted and to all the legal rules governing the matter in question (Case T-471/93 Tiercé Ladbroke v Commission [1995] ECR II-2537, paragraph 33). It is sufficient for the decision to set out, in a concise but clear and relevant manner, the principal issues of law and of fact (Case 24/62 Germany v Commission [1963] ECR, p. 63, at p. 69).
121 It is in regard to those considerations that the Court must examine whether the EAR has given a sufficient statement of the reasons for the decision to cancel the tender procedure. | T-411/06
Sogelma | 122-126 | Q4-101
ECT-253-impl | 122 It must be recalled that the EAR stated, in the letter of 9 October 2006, that the contract award procedure had been cancelled due to the fact that none of the tenders received was technically compliant, and that the EAR added, in relation to the applicant’s tender, that it had been decided that the ‘Superintendent Survey Team’ did not satisfy the requirements in point 16(x) of the Procurement Notice and point 4.2(x) of the Instructions to tenderers.
123 The statement of reasons provided for the cancellation of the tender procedure, namely the fact that none of the tenders received was technically compliant, although succinct, is clear and unambiguous. The statement of reasons given to explain, more particularly, why the applicant’s offer did not comply, is also succinct, but again clear and unambiguous. The EAR referred to the points in the Procurement Notice and in the Instructions to tenderers which specify that the key personnel must have at least 10 years appropriate professional experience, and stated which member of the team proposed by the applicant did not satisfy that requirement.
124 In that regard, it must be noted that the applicant itself had stated, in the curriculum vitae of the person proposed for the post of ‘Superintendent Survey Team’ that that person had only five years professional experience. Consequently, it was unnecessary for the EAR to give further reasons for the conclusion that the applicant’s tender did not satisfy the technical requirements of the tender procedure. | T-411/06
Sogelma | 128-143 | Q4-101-impl
ECT-253-impl | 128 The applicant claims, in essence, that there is a contradiction between the statement of reasons for the decision to cancel the tender procedure provided in the letter of 9 October 2006 and that given in the letter of 14 December 2006, in so far as in the former the explanation for that decision was that no tender was technically compliant, whereas the explanation in the latter was that the technical requirements had been changed.
129 First, the Court must reject the applicant’s argument that reference should be made to the communication which is later in date, namely the letter of 14 December 2006, in order to assess the EAR’s conduct. The letter informing the applicant of the cancellation of the tender procedure is that of 9 October 2006, and accordingly that is the letter which should be referred to in order to assess whether the statement of reasons for the decision to cancel the tender procedure is illogical and contradictory.
130 The letter of 9 October 2006 is not, in itself, contradictory. Even though the EAR provided another explanation in the letter of 14 December 2006, that cannot alter the statement of reasons for the decision which was sent two months earlier. Any difference between those two letters cannot therefore entail a contradiction in the statement of reasons provided for the decision to cancel the tender procedure.
131 In any event, there is no contradiction between the reasons given for the decision to cancel the tender procedure in the letter of 9 October 2006 and those given in the letter of 14 December 2006.
132 It must be noted that the letter of 14 December 2006 refers expressly to the fact that the EAR evaluation committee found that none of the tenders received was technically compliant and states that that committee made no other remarks. That letter therefore confirms that the sole reason for the decision to cancel the tender procedure was that no tender was technically adequate.
133 While that letter also states that the EAR was exercising its right to cancel the tender procedure and to initiate a new procedure due to the fact that the technical conditions had been considerably changed, that sentence must be understood in context. It is in fact expressly stated in the heading to the letter of 14 December 2006 that it is a reply to the applicant’s letter of 13 November 2006. In that letter, the applicant had asked EAR to send to it a copy of the decision to cancel the tender procedure and the relevant minutes and also to take a reasoned decision on whether or not it would commence a negotiated procedure.
134 In that context, the sentence to the effect that the EAR was exercising its right to cancel the tender procedure and to initiate a new procedure due to the fact that the technical conditions had been considerably changed must be understood to mean that the EAR was explaining why it had decided to initiate a new procedure instead of commencing a negotiated procedure.
135 Furthermore, the applicant itself states, in its reply, that the new justification appears to have been put forward solely in order to respond to its request for recourse to a negotiated procedure. In that regard, it must be observed that a decision to cancel a tender procedure is distinct from a decision relating to the subsequent action to be taken, namely a decision not to award the contract, to have recourse to a negotiated procedure, or to organise a new tender procedure. It cannot be inferred from the fact that the EAR mentioned, in response to the request for recourse to a negotiated procedure, reasons other than those given to explain the cancellation of the tender procedure, that there is any contradiction in the statement of reasons.
136 Moreover, it must be noted that, once a tender procedure is cancelled, that procedure is at an end and the contracting authority is entirely at liberty to decide on what subsequent action to take. There is no provision which confers on an economic operator the right to have a negotiated procedure set in motion. The EAR was therefore not obliged to take a formal decision in relation to the applicant’s proposal that such a procedure should commence. The letter of 14 December 2006 is quite simply a reply to the applicant’s letter of 13 November 2006, in which it asked the EAR, inter alia, to take a reasoned decision on whether or not to initiate a negotiated procedure, which led the EAR to inform the applicant, in the interests of sound administration, why the EAR had decided to initiate a new tender procedure instead of a negotiated procedure.
137 The Court must also reject the applicant’s argument that the statement of reasons provided in the letter of 9 October 2006 is at variance with the fact that the applicant was subsequently awarded a public contract similar to that at issue in the present case. The statement of reasons provided in the letter of 9 October 2006 relates to the fact that the technical requirements of the tender procedure had not been complied with, a fact which the applicant moreover does not dispute, since it acknowledges that the ‘Superintendent Survey Team’ included in its tender did not possess the requisite professional experience. That reasoning does not imply that the applicant is incapable of carrying out such work.
138 As regards the applicant’s argument that the letter of 14 December 2006 shows that the real reason for the cancellation of the tender procedure was not the technical inadequacy of the tenders received but the alteration of the technical requirements, it is clear that this, in fact, does not relate to an error in the statement of reasons for the decision to cancel the tender procedure but rather challenges the truthfulness of that statement of reasons, which amounts in essence to contesting that decision as to its substance, alleging misuse of powers.
139 According to settled case-law, misuse of powers is defined as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69, and case-law cited).
140 In the present case, it has already been determined that there is no contradiction between the statement of reasons provided in the letter of 9 October 2006 and that provided in the letter of 14 December 2006.
141 In addition, the Commission correctly states that notice of the cancellation decision was given to the public in the Official Journal with the same statement of reasons as that provided in the letter of 9 October 2006 (OJ 2006, S 198). That statement of reasons reads as follows: ‘The tender process has been cancelled since none of the offers received was technically compliant’.
142 In those circumstances, it is impossible to infer from the subsequent conduct of the EAR that the real reason for the cancellation of the procedure was other than that set out in the letter of 9 October 2006.
143 It follows from the foregoing that the applicant’s claim for annulment of the decision to cancel the tender procedure must be dismissed as unfounded. | T-406/06
Evropaïki Dinamiki | 46-54 | Q4-100.2
M4A1-1.32.a=M4-149.3.1-3
ECT-253
Note that the text here refers to 149.2, and not to 149.3.1-3, as is the revised number under M4A1, but later correctly refers to 149.3.4 for the stand still provision. | 46 The applicant claims, on several occasions, that the contested decision must be regarded as failing to state adequate reasons. It claims, in the plea alleging that the relative merits of the successful tender were not disclosed, that the Commission informed it on 26 October 2006 merely of the successful tenderer’s identity and of the number of points it had received (88 out of 100), without stating the relative merits of the successful tender compared with the applicant’s tender, contrary to Article 100(2) of the Financial Regulation. In addition, in the course of its arguments alleging manifest errors of assessment, it claims that the Commission is attempting to justify the contested decision retrospectively, which leads to discrepancies, demonstrating, in the applicant’s view, the lack of reasoning behind the contested decision.
47 It must be borne in mind, first of all, that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I- 2481, paragraph 35).
48 In addition, pursuant to Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Regulation, the Commission was under a duty to notify the applicant of the grounds on which its offer was rejected and, the applicant having submitted an admissible tender, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded, within not more than 15 calendar days from the date on which a written request was received.
49 Such a course of action is consistent with the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (Case T-19/95 Adia interim v Commission [1996] ECR II-321, paragraph 32, and judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 68 and 69).
50 Moreover, the observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought (see Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 58, and Case T-4/01 Renco v Council [2003] ECR II-171, paragraph 96).
51 In the present case, it is accepted that the contested decision sets out the grounds on which the offer was rejected. Accordingly, by letter and fax of 19 October 2006, the Commission informed the applicant that its tender had been rejected at the award stage and reproduced the evaluation committee’s findings on each of the award criteria.
52 In addition, in response to a written request from the applicant, also dated 19 October 2006, the Commission, by letter of 26 October 2006, informed the applicant that it had been eliminated because the minimum points required for the ‘Project management and availability’ criterion had not been obtained. The Commission referred to the evaluation committee’s findings, giving the number of points obtained by the applicant for each award criterion. It also stated the name of the successful tenderer, the price that tenderer had offered for the contract and the number of points it had obtained.
53 Although it appears that the letter of 19 October 2006 notifying the applicant of the rejection of its tender reversed the titles of two of the award criteria, that reversal cannot, however, be regarded as a failure in the contested decision to give adequate reasons. In the light of the content of each of the assessments, the wording of the invitation to tender, the content of the letter of 26 October 2006 and the extract from the minutes of the evaluation committee sent to the applicant on 30 November 2006, the applicant was able to identify the specific reasons for the decision to reject its offer, so that that reversal is of no relevance in the present case.
54 Consequently, the argument alleging a failure to give a proper statement of reasons must be rejected. | T-406/06
Evropaïki Dinamiki | 99-104 | Q4-100.2
M4A1-1.32.a=M4-149.3.1-3 | 99 Pursuant to Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Regulation, the Commission had to notify the applicant of the grounds on which its offer was rejected and, the applicant having submitted an admissible tender, of the characteristics and relative advantages of the successful tender and the name of the successful tenderer within not more than 15 calendar days from the date on which a written request was received.
100 In this connection, the contracting authority fulfils its obligation to state reasons if it first informs eliminated tenderers immediately of the fact that their tender has been rejected by a simple unreasoned communication and then subsequently, if expressly requested to do so, informs tenderers of the relative characteristics and advantages of the successful tender and the name of the successful tenderer within 15 days of receipt of a written request (Strabag Benelux v Council, cited in paragraph 50 above, paragraph 54 et seq.).
101 In the present case, three award criteria were set out in the third part of the invitation to tender, entitled ‘Understanding’, ‘Project management and availability’ and ‘Methodology’, in addition to the exclusion and selection criteria. A points system was established for the evaluation of tenders in the light of each of those three award criteria. First, a minimum threshold was laid down for each criterion. Secondly, an overall minimum of 65 points was required. The tenders having obtained the minimum points required, considered to be technically satisfactory in the light of those criteria, were then examined in order to ascertain which tender provided the best value for money, by dividing the price by the total number of points.
102 By letter and fax of 19 October 2006, the Commission notified the applicant that its tender had been rejected at the award stage and informed the applicant of the evaluation committee’s findings for each of the award criteria.
103 In response to a written request from the applicant, also dated 19 October 2006, the Commission – by letter of 26 October 2006 received, according to the applicant, on 14 November 2006 – informed the applicant that it had been eliminated on the ground that it had not attained the minimum number of points required for the ‘Project management and availability’ criterion. The Commission reiterated the evaluation committee’s findings, stating the number of points obtained by the applicant in respect of each award criterion. It also stated the name of the successful tenderer, the price of its tender and the number of points it had obtained.
104 The applicant was therefore able not only to pinpoint the specific reasons for the rejection of its offer, namely that it had not attained the quality score required for the second award criterion (‘Project management and availability’), but also to compare its result (68 points out of 100) with that of the successful tenderer (88 points out of 100). Likewise, it was able to compare the price of the tender it had submitted with that offered by the successful tenderer. Furthermore, the general comments gave details on the aspects of its offer which were considered to be unsatisfactory by the Commission (see, to that effect, Evropaïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 75). | T-406/06
Evropaïki Dinamiki | 105-108 | Q4-100.2
M4A1-1.32.a=M4-149.3.1-3 | 105 The applicant objects that it was not able to compare its results with those of the other tenders and, in particular, with those of the successful tenderer, since it was not notified of the evaluation committee’s findings in its regard and of the details of the points obtained by the successful tenderer for each award criterion.
106 In the present case, the Court observes that the contested decision was not based on a comparison of the services of the various tenderers, but on the fact that the applicant’s tender did not obtain the minimum number of points required with regard to the second award criterion.
107 As provided in the invitation to tender, only the tenders which had obtained the minimum threshold of points were considered to be technically satisfactory in the light of those criteria, those tenders then being examined in order to ascertain which provided the best value for money.
108 As a result, the information communicated by the Commission was, in the present case, sufficient in the light of the relevant requirements. | T-406/06
Evropaïki Dinamiki | 109-111 | Q4-100.2
M4A1-1.32.a=M4-149.3.1-3 | 109 The argument alleging that the statement of reasons communicated to the unsuccessful tenderer was more detailed in Esedra v Commission, cited in paragraph 95 above, does not affect that finding, since the circumstances were different to those at issue in this case. In that case, the tender specifications did not set out, as regards the evaluation of the award criteria, either a minimum threshold or an elimination criterion (paragraphs 128 and 154) and the applicant’s excluded tender had therefore been compared to that of the successful tenderer (paragraph 191).
110 That is not the case in this instance, since the applicant’s tender was not eliminated following a comparison with the other tenders, in particular with that of the successful tenderer, but on the ground that it had not attained the threshold required in respect of one of the criteria.
111 Consequently, the Court takes the view that, in these particular circumstances, the obligation to communicate the characteristics and relative advantages of the successful offer, laid down in Article 100(2) of the Financial Regulation, was satisfied in this case. | T-406/06
Evropaïki Dinamiki | 112-120 | Q4-100.2
M4A1-1.32.a=M4-149.3.1-3
M4A1-1.32.a=M4-149.3.4
ECT-233-impl | 112 Furthermore, as regards the applicant’s arguments alleging that it did not receive the Commission’s letter of 26 October 2006 until 14 November 2006 and that the Commission should have delayed signing the contract, it must be stated that that argument also cannot be accepted.
113 The fourth subparagraph of Article 149(3) of the Implementing Rules provides: ‘The contracting authority may not sign the contract or framework contract with the successful tenderer until two calendar weeks have elapsed from the day after the simultaneous dispatch of the rejection and award decisions. If necessary it may suspend signing of the contract for additional examination if justified by the requests or comments made by unsuccessful tenderers or candidates during the two calendar weeks following the rejection or award decisions or any other relevant information received during that period. In that event all the candidates or tenderers shall be informed within three working days following the suspension decision.’
114 It is common ground that in the present case the applicant received notification of the rejection of its offer on 19 October 2006. That notification states that the contract would not be signed during the two calendar weeks following the day after the date on which that letter was posted.
115 The period of two calendar weeks, laid down by the fourth subparagraph of Article 149(3) of the Implementing Rules and which was drawn to the applicant’s attention by the Commission in its notification letter of 19 October 2006, therefore expired on 3 November 2006.
116 In this instance, since the contract was signed on 14 November 2006, that is, after the expiry of the period laid down by Article 149, the Commission complied with the applicable provisions.
117 In addition, it also follows from the fourth subparagraph of Article 149(3) of the Implementing Rules, that the option to suspend signing of the contract for additional examination is provided for only if the requests or comments of the rejected tenderers or candidates are made ‘during the two calendar weeks following the rejection or award decisions’ or if justified by any other relevant information received ‘during that period’.
118 That was not the case here, since the applicant did not make any requests or comments during that period, even though the time-limit of two calendar weeks was drawn to its attention by the Commission in its notification letter of 19 October 2006. The fact that the letter of 26 October 2006 was not sent to it by fax, but by post, and did not reach it until 14 November 2006 is irrelevant in this respect.
119 It follows from the foregoing that the second plea must be rejected.
120 As regards the application for annulment of the decision awarding the contract to a third party, it must be rejected as a consequence of the rejection of the application for annulment of the preceding decision with which it is closely connected (Case T-195/05 Deloitte Business Advisory v Commission [2007] ECR II-0000, paragraph 113). | T-406/06
Evropaïki Dinamiki | 123-127 | Q4-100.2 | 123 It must be pointed out, first, that the Commission was not required to disclose the evaluation committee’s report to the applicant, as part of the statement of reasons for the contested decision. Article 100(2) of the Financial Regulation provides only that, following a request in writing, the contracting authority is to notify those concerned of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded (Evropaïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 113).
124 Next, even if the applicant’s request were to be understood as a request for access to documents, it must be held that the applicant did not comply with the procedure, laid down in Article 6 et seq. of Regulation No 1049/2001, for applying for access to the evaluation committee report before bringing an action before the Court to challenge the refusal to produce it, which renders such a request inadmissible (Evropaïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 114).
125 Lastly, the Commission sent the applicant, by fax of 30 November 2006, a non-confidential version of an extract from the evaluation report. The Commission stated that it could not disclose the details concerning the other tenderers, which would harm their commercial interests.
126 Accordingly, having regard to the fact that the information in the file does not show any manifest error of assessment or infringement of the duty to provide a proper statement of reasons, the Court considers that, regardless of the legal basis relied upon by the applicant, it is not appropriate to order the Commission to produce the evaluation committee’s report in its entirety.
127 In the light of the foregoing, the application for annulment must be dismissed in its entirety. | T-272/06
Evropaïki Dinamiki | 27-45 | Q4-100.2
ECT-233-impl
ECT-253 | 27 It must be recalled at the outset that, in accordance with settled case-law, the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Court to exercise its power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22, and Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23).
28 Accordingly, the fact that a statement of reasons is lacking or inadequate, hindering that review of legality, constitutes a matter of public interest which may, and even must, be raised by the Community Court of its own motion (Case 18/57 Nold v High Authority [1959] ECR 41, at p. 52, and Case C-166/95 P Commission v Daffix, cited above, paragraph 24).
29 Although the applicant has not in the present case raised a failure to state reasons, the Court considers that, in the circumstances set out below, it must examine the question as to whether the Court of Justice has discharged the obligation upon it to state reasons.
30 It follows from the above summary of the pleas in law and arguments put forward by the applicant that the present action was formulated on the basis of information furnished by the Court of Justice in its letters of 3 and 23 August 2006, in response to the applicant’s request for the reasons upon which the decision was based in accordance with Article 100(2) of the Financial Regulation.
31 Thus, the pleas in law advanced against the contested decision are confined to putting in issue the way in which the references supplied by the applicant in accordance with the contract conditions were evaluated, these references being relevant only at the selection stage of the procedure. In other words, the present case has been brought upon a basis induced by the reasons given by the Court of Justice, to the effect that the applicant’s bid had been excluded at the end of the selection stage upon the ground that the bid had been placed in sixth position in accordance with the evaluation criteria for that phase of the procedure and that only five tenderers had been retained for consideration at the award phase.
32 However, the documents produced by the Court of Justice on foot of the measure of organisation of the procedure (see paragraph 15 above) show that the information given to the applicant in the letters of 20 July, 3 and 23 August 2006 was wrong and did not reflect the true basis upon which the decision to award the contract to the two successful tenderers had in fact been taken by the Court of Justice.
33 On the basis of the proofs which have been furnished to it, the Court finds that what happened during the course of the evaluation procedure was as follows:
– on 21 June the Informatics and New Technologies Division of the Court of Justice (‘the Informatics Division’) presented to the evaluation committee its report No 16/2006 on the call for tenders Ref. CJ AM 13/2004, containing an evaluation by reference to both the selection and the award criteria;
– the Informatics Division informed the evaluation committee that on the basis of this evaluation six tenderers including the applicant had received the minimum 70 points in the evaluation of the selection criteria stage. However, the applicant, with 70.1 points, was placed in sixth position. Accordingly, only the bids of the other five tenderers had been evaluated at the phase of the award criteria;
– in the evaluation of the bids by reference to the award criteria, the Informatics Division had placed the two tenderers who were subsequently successful in first and second position and recommended that the committee should award them the contract;
– at its meeting on 12 July 2006 the evaluation committee had considered the Informatics Division report but decided to postpone its decision on the award of the contract and to await additional information which it requested from the Informatics Division;
– on 18 July 2006, the Informatics Division furnished a supplementary report entitled ‘Addendum to Report No 16/2006’; this report, together with its annexes, clearly shows that the Informatics Division had carried out a new evaluation of the award criteria in order to take into account the applicant’s bid as well as the five bids which had previously been assessed;
– for the two categories of award criteria, the Informatics Division had placed the applicant’s bid in fourth position for quality (38.13 points out of 60) and in second place on price (39.18 points out of 40). On the combined quality/price criteria the applicant’s bid had been placed in fourth position with a total of 77.91 points out of 100;
– on 20 July 2006, the Court of Justice informed the two successful tenderers of the award of the contract and informed the applicant that its bid had been rejected.
34 The description of the conduct of the evaluation procedure as set out in the preceding paragraph does not establish that, on the one hand, the applicant’s bid had been rejected on the grounds that it had been placed in sixth position at the end of the selection stage or, on the other hand, that no technical and financial evaluation of the bid had been made.
35 The formal decision to award the contract to the two successful tenderers was in reality taken on the basis of the supplementary report of 18 July 2006, which includes an evaluation of all six bids which had attained 70 points at the selection stage, including that of the applicant. The applicant’s bid was not therefore rejected at the end of the selection stage but upon the basis that it had been placed in fourth position at the end of the award stage. Moreover, this fact was known to the Court of Justice when it sent its letter of 20 July 2006 to the applicant.
36 At the hearing the Court of Justice argued that the evaluation of the applicant’s bid by reference to the award criteria was merely an informal exercise designed to confirm the earlier decision to reject the bid at the selection phase. That argument cannot be accepted. The supplementary report of 18 July 2006 clearly shows that the bid had been fully evaluated at the award stage and had even been placed in second position on price. It was on the basis of that evaluation, which took into account the applicant’s bid, that the Court of Justice adopted its formal and definitive decision to award the contract to the two successful tenderers.
37 It is also apparent that, in formulating its present case, the applicant was induced into error by the description given of the evaluation of the references in the letters of 20 July and 3 and 23 August 2006. In particular this last letter suggests that the mark of 17.5 out of 35 points was attributable to the three factors cited at paragraph 10 above, including the fact that some of its references concerned activities which were carried out more than three years previously. The applicant, as is shown clearly in the application, interpreted this explanation to the effect that the references in question had not been taken into account in the evaluation of the selection criteria upon the ground that they covered work which had been commenced or finished on dates outside the relevant period, running from 1 January 2003 to 31 December 2005, even though the work was being performed during those years.
38 That interpretation was, in effect, further confirmed by the defence which, at paragraph 29, reads as follows: ‘First the applicant’s contention is misconceived in fact. Even though all the aforementioned references cover work carried out by the applicant or by the partner companies in a consortium during the past three years, it would have been contrary to the principles of transparency and equal treatment to take into account the work and activities which were carried out more than three years ago by the applicant. The [Court of Justice] indeed took into account the work carried out by the applicant or by the partner companies in a consortium during the past three years, excluding however the activities [relating to the projects “EUR-Lex”, “ESP5”, “Circa”, “SEI-JOS”, “IDA Tools”, “Stadium” and “Chopin”] which were anterior to this period.’
39 Although paragraph 29 of the defence is open to an interpretation to the effect that the references in question had been excluded from consideration only to the extent that they covered work performed outside the relevant period, the defence pleading did not correct the impression created by the letter of 23 August 2006. It was not until the Court of Justice, in its rejoinder, declared unequivocally that all of the references had been taken into account in respect of work performed during the relevant period that the applicant and the Court were able to understand that the meaning first given to the letter of 23 August 2006 was mistaken.
40 Moreover, it follows from the foregoing that the debate between the parties in the present case as to the validity of the evaluation of the references is in effect redundant in these circumstances, because the evaluation of the selection criteria is no longer relevant once the bid is admitted to the award stage. If the Court of Justice had informed the applicant of the fact that the limit of five tenderers at the outcome of the selection phase had not been applied and that its bid had been placed in fourth position at the end of the award stage, the present case might not have been brought, or, at the very least, would have been founded on a totally different basis.
41 As the applicant points out, Article 89(1) of the Financial Regulation requires that ‘all public contracts … comply with the principles of transparency, proportionality, equal treatment and nondiscrimination’. Moreover Article 100(2) of the regulation provides that ‘[t]he contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken.’
42 It is undeniable that this last provision requires every contracting authority to give a tenderer the true reasons for the rejection of its bid. Moreover, the reasons given must reflect the actual conduct of the evaluation procedure. In that connection it must be recalled that the reasons given for a decision which has adverse effect must be logically compatible with the decision as adopted (see, to that effect, Case 2/56 Geitling v High Authority [1957] ECR 3, at p. 16).
43 A statement of reasons which does not identify the true basis upon which a decision rejecting a bid has been taken and does not reflect faithfully the manner in which the rejected bid has been evaluated is not transparent and does not fulfil the obligation to state reasons in Article 100(2) of the Financial Regulation.
44 It follows from the above findings that the decision rejecting the applicant’s bid disregarded the obligation to state reasons and that in consequence it is necessary to annul that decision, as communicated to the applicant by the letter of 20 July 2006.
45 As regards the applicant’s claim for annulment of the decision awarding the contract to the two successful tenderers, the Court finds it impossible to judge whether it is well founded because, as the obligation to state reasons was disregarded, no examination of the evaluation of the award criteria could take place in the present action. | T-264/06
DC-Hadler Networks | 29-36 | Q4-100.2-impl
ECT-253 | 29 Conformément à une jurisprudence constante, la portée de l’obligation de motivation exigée par l’article 253 CE dépend de la nature de l’acte en cause et du contexte dans lequel il a été adopté. La motivation doit faire apparaître de manière claire et non équivoque le raisonnement de l’institution auteur de l’acte, de manière à permettre au juge communautaire d’exercer son contrôle et aux intéressés de connaître les justifications de la décision attaquée (voir arrêts de la Cour du 15 avril 1997, Irish Farmers Association e.a., C-22/94, Rec. p. I-1809, point 39, et du 10 mars 2005, Espagne/Conseil, C-342/03, Rec. p. I-1975, point 54, et la jurisprudence citée).
30 En l’espèce, la décision attaquée se fonde sur l’insuffisance de concurrence pour justifier l’annulation de la procédure de passation du marché. Dans sa lettre du 27 juillet 2006, la Commission a ensuite répondu à la requérante que la décision attaquée était fondée sur l’article 101 du règlement financier.
31 Dans sa défense, la Commission invoque comme motif de l’annulation de la procédure de passation du marché la dérogation à la règle d’origine accordée par ses propres services à la requérante. En outre, dans sa duplique, la Commission se réfère au contexte de l’adoption de la décision attaquée et allègue que la requérante aurait dû en déduire que le grief relatif à l’insuffisance de concurrence était fondé sur la dérogation qui lui avait été accordée dans l’application de la règle d’origine.
32 Si l’on peut attendre des personnes concernées par une décision un certain effort d’interprétation lorsque le sens du texte n’apparaît pas à la première lecture (arrêt du Tribunal du 12 décembre 1996, Rendo e.a./Commission, T-16/91, Rec. p. II-1827, point 46), il convient toutefois de constater que, en l’espèce, la requérante ne pouvait déduire de la notion de « concurrence insuffisante » que la raison pour laquelle la Commission avait décidé d’annuler la procédure de passation du marché était liée à la dérogation à la règle d’origine dont elle avait bénéficié.
33 Les services de la Commission ont accordé d’office cette dérogation à la requérante, avant de lui attribuer le marché. Dans la mesure où la décision attaquée était défavorable à la requérante, contrairement aux décisions antérieures sur la recevabilité de son offre et l’attribution du marché, alors même que le contexte de l’offre de la requérante était identique, il appartenait à la Commission de développer son raisonnement de manière explicite dans la décision attaquée ou dans sa lettre du 27 juillet 2006 (voir, par analogie, arrêt de la Cour du 26 novembre 1975, Groupement des fabricants de papiers peints de Belgique e.a./Commission, 73/74, Rec. p. 1491, point 31). La décision attaquée est donc entachée d’une insuffisance de motivation.
34 Le fait que la Commission ait fourni les raisons de cette décision en cours d’instance ne compense pas l’insuffisance de la motivation initiale de la décision attaquée. En effet, il est de jurisprudence constante que la motivation doit figurer dans le corps même de la décision et qu’elle ne peut être explicitée pour la première fois et a posteriori devant le juge, sauf circonstances exceptionnelles qui, en l’absence de toute urgence, ne sont pas réunies en l’espèce (voir, en ce sens, arrêts du Tribunal du 2 juillet 1992, Dansk Pelsdyravlerforening/Commission, T-61/89, Rec. p. II-1931, point 131, et du 15 septembre 1998, European Night Services e.a./Commission, T-374/94, T-375/94, T-384/94 et T-388/94, Rec. p. II-3141, point 95, et la jurisprudence citée).
35 La seule référence à l’insuffisance de concurrence ne peut donc pas constituer une motivation suffisante de la décision attaquée, dans la mesure où elle ne permet ni à la requérante de connaître ni au Tribunal de contrôler les raisons pour lesquelles la Commission a décidé de revenir sur sa décision d’attribuer le marché à la requérante.
36 Il résulte de l’ensemble des considérations qui précèdent que la décision attaquée doit être annulée pour violation des exigences de motivation requises par l’article 253 CE, sans qu’il y ait lieu d’examiner le second moyen d’annulation soulevé par la requérante. | T-125/06
Centro Studi Antonio Manieri | 57-63 | Q4-100.2-impl
ECT-253 | 57 As a preliminary point, in connection with the plea in question, the applicant is confusing infringement of the obligation to state reasons and manifest error of assessment. Although the heading of this plea refers to an infringement of the obligation to state reasons, the arguments put forward in that connection relate, instead, to the errors allegedly made by the Council in assessing the advantages entailed by a decision to have recourse to the services of the OIB.
58 It should be recalled that these are two distinct pleas in law that may be invoked in an application for annulment, The first, which relates to the fact that a statement of reasons is lacking or inadequate, constitutes an infringement of essential procedural requirements for the purposes of Article 253 EC and is a matter of public interest which must be raised by the Community judicature of its own motion (see Case C-166/99 P Commission v Daffix [1997] ECR I-983, paragraph 24, and the case-law cited). On the other hand, the second, which concerns the substantive legality of the decision in question, can be examined by the Community judicature only if it is raised by the applicant.
59 Consequently, it is necessary to rule on the arguments put forward in connection with the third plea by examining first of all those alleging infringement of the obligation to state reasons and, subsequently, those alleging manifest errors of assessment.
60 As regards any infringement of the duty to state reasons, according to established case-law, that duty depends on the type of document at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution in such a way, first, as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to verify whether or not the decision is well founded and, secondly, as to permit the Community judicature to exercise its power of review (Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16; Case T-217/01 Forum des migrants v Commission [2003] ECR II-1563, paragraph 68; and Case T-195/05 Deloitte Business Advisory v Commission [2007] ECR II-871, paragraph 45).
61 In the circumstances, the letter of 16 January 2006 expressly states that the tendering procedure had been abandoned as a result of the favourable evaluation of the proposal which the OIB had made to the Council. In that letter, the General Secretariat of the Council therefore informed the applicant that, as a result of the decision to entrust the management of the services in question to the OIB on the basis of the latter’s proposal, there was no longer any reason to continue with the tendering procedure. It follows that the letter of 16 January 2006 discloses in a clear and unequivocal fashion the reasoning followed by the Council in such a way, first, as to make the applicant aware of the reasons for the measure and thus enable it to defend its rights and to verify whether or not the decision was well founded and, secondly, to enable the Court to exercise its power of review. It follows that, in its decision to abandon the tendering procedure, the Council did not infringe the obligation to state reasons.
62 As regards the existence of any manifest errors of assessment, it must be borne in mind that an institution using the tendering procedure has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment (see judgment of 12 July 2007 in Case T-250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89, and the case-law cited). The applicant has not put forward any facts capable of establishing that the decision to abandon the tendering procedure was vitiated by a manifest error of assessment. With regard to the decision to have recourse to the services of the OIB and, in particular, the supposed advantages to be gained from such a decision, while the Council is of course required to justify its choice to the political authority and internal auditors, it is not required to demonstrate to a participant in a tendering procedure the advantages of the decision to perform the services in question by its own means. Such a decision is a matter of policy and thus within the Council’s discretion. It follows that the Court is not required in these proceedings to examine whether the decision to have recourse to the services of the OIB is justified economically and at institutional level.
63 The third plea must therefore be rejected as unfounded. | T-376/05
TEA-CEGOS | 47-49 | Q4-100.2-impl
ECT-253-impl | 47. First, as regards the complaint alleging a failure to state reasons, it should be stated that the reasons for which the Commission rejected the applicants' tenders can be clearly seen from the grounds of the contested decisions.
48. According to consistent case-law, the scope of the obligation to state reasons depends on the nature of the measure at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution, so as to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded, and so as to enable the Community judicature to exercise its power of review (Case C350/88 Delacre and Others v Commission [1990] ECR I395, paragraphs 15 and 16, and Case T217/01 Forum des migrants v Commission [2003] ECR II1563, paragraph 68).
49. In the present case, the contested decisions expressly mention that the tenders submitted by the two consortia infringed Article 13 of the procurement notice because the DIIS and the DIHR belonged to the same legal group, the evidence which enabled the Commission to make this finding also being set out in those decisions. In addition, it should be stressed that the contested decisions were adopted following a thorough review by the Commission, after the decisions of 18 July 2005 and after hearing the views of the applicants. The applicants were therefore aware of the Commission's questions as to the nature of the link between the two institutes and the Centre. In these circumstances, this complaint cannot be upheld. | T-250/05
Evropaïki Dynamiki | 68-77 | Q4-100.2
M4-149.2 | 68 In accordance with Article 100(2) of the Financial Regulation and Article 149(2) of the implementing rules, the Publications Office was required to notify the applicant of the grounds for rejecting its tender and, since its tender was admissible, the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded, within not more than fifteen calendar days from the date on which a written request was received.
69 Such a manner of proceeding satisfies the purpose of the duty to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (see, to that effect, Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 32).
70 It must be stated at the outset that Annex II to the draft contract, relating to the ‘special terms and conditions’ provided, in paragraph 5.3 thereof, that the contract would be awarded to the tenderer submitting the most economically advantageous bid, on the basis of two award criteria: first, the quality of the production process, assessed according to six specific criteria under which it was possible to obtain 120 points and, second, the assessment of the financial terms. Once the quality of the tenders had been assessed, companies which obtained the minimum score of 80 points in total and half of the possible points for each of the criteria would be classified according to the price proposed and the contract would be awarded to the lowest tender.
71 In the present case, the Publications Office first of all informed the applicant, by letter of 15 April 2005, that its tender had been unsuccessful in the call for tenders. That letter contained two standard phrases concerning the evaluation stage: ‘the tender did not achieve the necessary quality score’ and ‘the tender is not the most economically advantageous’. The Publications Office put a cross in the box opposite the first phrase. In that letter, the Publications Office added that the contract would be concluded with the Eutis consortium, whose tender had been considered to be the most economically advantageous, and that the applicant could obtain additional information on the grounds for the rejection of its tender.
72 In response to a written request by the applicant, also dated 15 April 2005, the Publications Office notified it, by letter of 19 April 2005, of the name of the successful tenderer and that of its subcontractor and the scores awarded in respect of each criterion for its technical offer and that of the successful tenderer, in the form of tables. The table relating to the applicant’s tender indicates that it obtained scores lower than the average possible score in respect of two of the evaluation criteria: 10.9 out of 25 as regards the fourth criterion ‘Quality of the proposed procedures and organisation to carry out the project (development and operation)’ and 13 out of 30 in respect of the sixth criterion ‘Quality of the outline of the proposed technical components (hardware, software and netware) for the TED website and its related services’. Furthermore, the table shows that the applicant obtained a total of 60.6 points out of 120.
73 That table was accompanied by six general comments: ‘methodology not well adapted’; ‘certain technical specifications are not taken into account’; ‘no information with regard to the CD-ROM’; ‘daily production does not seem realisable according to provided information on the procedures’; ‘the resources proposed for production are not appropriate’; ‘the offer does not meet the characteristics required in the specifications’.
74 At the same time, the table concerning the Eutis consortium indicated that it had obtained the average in respect of each of the award criteria, in particular 21.4 points for the fourth criterion and 25.1 points for the sixth criterion. Furthermore, the Eutis consortium obtained a total of 100.4 points.
75 Consequently, the Publications Office gave a sufficiently detailed statement of the reasons for which it had rejected the applicant’s tender and explained the characteristics and relative advantages of that of the successful tenderer (see, to that effect and by analogy, Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraphs 187 to 193; Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraphs 54 to 59; and Case T-4/01 Renco v Council [2003] ECR II-171, paragraphs 89 to 97). The applicant could immediately identify the precise reasons for the rejection of its tender, namely that it did not achieve the necessary quality score for two of the award criteria and for the overall quality of its tender. It could also compare, for each of the award criteria, its results with those of the successful tenderer. Moreover, the general comments gave details on the aspects of its tender which were considered to be unsatisfactory by the Publications Office.
76 Such reasoning therefore enables the applicant to defend its rights and the Court to exercise its power of review.
77 As regards the argument based on the entry into force of Commission Regulation No 1261/2005, which supplemented Article 149 of the implementing rules by adding a paragraph 3, it is sufficient to note that that regulation was not applicable at the material time. In any event, the applicant merely cites the text of Article 149(3), without stating how the Publications Office failed to comply with those new provisions. | | T-195/05-R Deloitte | 108-110 | Q4-100.2-impl
ECT-253-impl | 108. Fourthly, doubts must be raised at this stage as to the existence of the failure to state reasons for the decision rejecting the tender claimed by the applicant. According to settled case-law, the scope of the obligation to state reasons must be appropriate to the act at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution in such a way as to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the competent Community Court to exercise its power of review (Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I1719, paragraph 63; Joined Cases T-228/99 and T-233/99 Westdeutsche Landesbank Girozentrale v Commission [2003] ECR II435, paragraph 278; and Case T-109/01 Fleuren Compost v Commission [2004] ECR II-127, paragraph 119).
109. The reason stated for the decision rejecting the tender is the existence of a risk of a conflict of interest connected, first, with the grants received by certain members of Euphet and certain experts which it might use to perform the framework contract and, secondly, the inadequate guarantees provided by Euphet in this regard.
110. As regards the allegedly erroneous nature of the reason stating that Euphet failed to acknowledge the involvement of certain experts in the implementation of the programme of Community action in the field of public health, the applicant does not mention any passage in its tender where it specifically acknowledged, or even merely suggested, that certain experts whom it intended to use received Community grants in that field. | T-106/05-A
Evropaiki Dinamiki | 44-48 | Q4-100.2-impl
M4-147.3.b-impl | 44. As a preliminary point, it should be noted that the arguments alleging incorrect and insufficient reasons for the decision rejecting the tender amount essentially to a single argument alleging an error of assessment by the Commission and the unfounded nature of the decision rejecting the tender. Accordingly, those questions require not an analysis of the Commission's duty to give reasons, but an in-depth analysis of the substance of the decision rejecting the tender, and will therefore be dealt with in the analysis of the second part of this plea. The arguments set out above will be analysed in the context of the first part of the plea only to the extent that they can truly be understood as alleging infringement of the duty to give reasons.
45. In that regard, it should be noted that, according to established case-law, the duty to give reasons depends on the type of document at issue and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution in such a way, firstly, as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to verify whether or not the decision is well founded and, secondly, to permit the Community Court to exercise its supervisory jurisdiction (Case C350/88 Delacre and Others v Commission [1990] ECR I395, paragraphs 15 and 16, and Case T217/01 Forum des migrants v Commission [2003] ECR II1563, paragraph 68).
46. In the present case, the decision rejecting the tender expressly states that Euphet's tender was rejected because of the existence of a conflict of interest connected, on the one hand, to the subsidies received by the main members of Euphet and, on the other, to the inadequacy of the safeguards offered by Euphet in that regard.
47. The decision rejecting the tender therefore states clearly and unequivocally the Commission's reasoning, thus, firstly, making the persons concerned aware of the reasons for the measure so that they are able to defend their rights and verify whether or not the decision is well founded and, secondly, permitting the Court to exercise its supervisory jurisdiction.
48. It follows that the applicant's argument alleging lack of reasoning for the decision rejecting the tender cannot be accepted. Accordingly, the first part of the first plea must be rejected. | T-106/05-A
Evropaiki Dinamiki | 38-41 | Q4-100.2
M4-149
ECT-230 | 38 In that regard, it must be recalled, first of all, that, according to Article 100(2) of the Financial Regulation, the contracting authority is to notify all candidates whose applications are rejected of the grounds on which the decision was taken, and, under Article 149 of the implementing rules, it must as soon as possible inform candidates of decisions reached concerning the award of the contract.
39 In this case, it must be observed that the Delegation informed the applicant that its application had been rejected by a standard letter, the model for which is in Annex B8 of the Finance Guide for the external actions financed from the General Budget of the EC, sent by fax on 2 December 2004. The Delegation had ticked the box indicating that the application did not satisfy the criterion of technical capacity and that it was inferior to that of the applications which were accepted and stated, furthermore, that, out of 19 applications received following the publication of the contract notice, it had short-listed eight of them. As was stated in Article 21(3) of the contract notice, concerning the candidate’s technical capacity, the latter had to demonstrate ‘at least one project/reference of the execution of 6 of the 10 assignments listed under point 7 [of the contract notice] within the last three years’, relating to the description of the contract.
40 By that letter, the Commission did, therefore, notify the applicant in a sufficiently precise and unequivocal manner of its definitive decision to reject the application at issue and stated the reasons for that, in accordance with the provisions of the Financial Regulation and the implementing rules mentioned above. Furthermore, it is clear from the words used by the applicant in its letter of 8 December 2004, and the correspondence subsequently exchanged between it and the Delegation, that it had indeed identified the reasons for the decision to reject its application. There is no other possible explanation for the arguments set out in that letter as regards the fact that the decision to reject the application did not take account of all the projects and references set out in sections 5 and 6 of the application form with reference to the list of areas of technical assistance set out in point 7 of the contract notice.
41 Contrary to the applicant’s submissions, there is no doubt, therefore, that the letter at issue constitutes an act which brought about a distinct and immediate change in its legal position and which should, if necessary, have been challenged within the period provided for that purpose. Under the fifth paragraph of Article 230 EC, the period within which to institute an action for annulment is two months from the notification of the decision to the applicant, which in this case was 2 December 2004, and an additional 10 days on account of distance as provided for in Article 102(2) of the Rules of Procedure. The period for instituting an action for annulment against that decision therefore expired on 14 February 2005. Since the application was lodged on 22 February 2005, the action was brought out of time. | T-59/05
Evropaiki Dynamiki | 119 | Q4-100.2-impl | 119 As a preliminary point, the complaint put forward by the applicant, criticising the fact that the Commission omitted both to reply within the time-limits to the requests submitted to it by the applicant and to provide the clarification which was sought several times in writing by the applicant, does not fall within the scope of an analysis of the Commission’s obligation to state reasons, but within an analysis of the infringement of the principles of diligence and good administration as alleged by the applicant under its fourth and final plea in law. Consequently, this complaint will be examined only in the context of that plea in law (see paragraphs 142 to 150 below). | T-59/05
Evropaiki Dynamiki | 120-123 | Q4-100.2
M4-149.2 | 120 As regards the infringement, claimed by the applicant, of the obligation to state reasons as such, in that the Commission failed to communicate to it all the information requested on the reasons for rejection of its tender, it must be pointed out that, contrary to what is maintained by the applicant, the obligation on a contracting authority to state reasons for the rejection of a candidate’s tender does not, in this case, come within the scope of Directive 92/50. As stated in paragraphs 47 and 48 above, the relevant provisions which are applicable in this case are the Financial Regulation and the Implementing Rules and, more specifically, Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, which govern the obligation to state reasons incumbent on the competent institution in the context of a public procurement procedure.
121 It is clear from those provisions, and from settled case-law, that the Commission fulfils its obligation to state reasons if it confines itself, first, to informing unsuccessful tenderers immediately of the reasons for the rejection of their tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see, to that effect, Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 31, and Strabag Benelux v Council cited in paragraph 58 above, paragraph 54).
122 That manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure taken and thereby enable them to assert their rights, and, on the other, to enable the Court to exercise its supervisory jurisdiction (see Adia Interim v Commission, cited in paragraph 121 above, paragraph 32 and case-law cited; Strabag Benelux v Council, cited in paragraph 58 above, paragraph 55; and Renco v Council, cited in paragraph 58 above, paragraph 93).
123 Consequently, in order to determine whether, in this case, the Commission fulfilled its obligation to state reasons, the Court considers it necessary to examine the contested decision and also the letter of 10 December 2004, sent to the applicant in reply to its express request of 2 December 2004 seeking to obtain additional information on the decision to award the contract in question and on the rejection of its tender. | T-59/05
Evropaiki Dynamiki | 124-125+127-130 | Q4-100.2
M4-149.2 | 124 In the contested decision, the Commission confined itself, in accordance with Article 100(2) of the Financial Regulation, to disclosing the reasons why the applicant’s tender had been rejected, namely the fact that that tender did not offer the best value for money, the criterion on which the contract had been awarded. The Commission also informed the applicant of the possibility of requesting additional information on the reasons for the rejection of its tender.
125 As regards the letter of 10 December 2004 (see paragraph 28 above), it is necessary to observe, at the outset, that the Commission’s reply to the applicant’s written request of 2 December 2004 complied with the maximum period of 15 calendar days, from the date of receipt of that request, as laid down in Article 149(2) of the Implementing Rules.
.....
127 It is clear that, in that letter, the Commission stated to the requisite legal standard the reasons for the rejection of the applicant’s tender, by specifying the name of the candidate to which the contract had been awarded and that of its subcontractor, and also the advantages of the successful tender by comparison with that of the applicant in the light of the three qualitative award criteria established by the tender specifications. Indeed, the second table enabled the applicant to compare directly, on each qualitative criterion, the points which had been awarded to it with those obtained by the successful tenderer. In addition, the last table showed the result of the quality/price ratio calculation, for both the applicant’s tender and the successful tender, thereby enabling the applicant to identify immediately the reasons why its tender had not been chosen, namely the fact that it offered less value for money than that of the successful tenderer, because the latter offered a better quality/price ratio (see, to that effect, Esedra v Commission, cited in paragraph 101 above, paragraph 192; Strabag Benelux v Council, cited in paragraph 58 above, paragraph 57; cited in and Renco v Council, cited in paragraph 58 above, paragraph 95).
128 Furthermore, the letter of 10 December 2004 also revealed that the applicant’s tender had not been ranked, on any of the three qualitative criteria set out in the tender specifications, ahead of the successful tender. In addition, in the last table, it was indicated that, in the final ranking, the applicant’s tender was placed in fourth position.
129 Moreover, the general observations concerning the comparison of the applicant’s tender with that of the successful tenderer gave details of the factors in its tender which the Commission considered to be unsatisfactory.
130 Having regard to all of that information, it must be concluded that the Commission properly fulfilled its obligation to state reasons, as interpreted by the case-law, inasmuch as its letter of 10 December 2004 satisfied the requirements laid down by Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules. | T-59/05
Evropaiki Dynamiki | 131-135 | Q4-89.1
Q4-100.2
M4-149.2 | 131 Furthermore, the applicant’s claim that the evaluation committee report is relatively brief cannot invalidate the finding that the statement of reasons was sufficient.
132 While it is true that the evaluation committee report appears succinct, it remains the case that the information which it contains was sufficient to satisfy the obligation to state reasons in the terms laid down by the Community legislature and the case-law, since that information enabled both the applicant to assert its rights before the Court and the Court to exercise its supervisory jurisdiction. Indeed, the applicant, in its written pleadings, relied on information drawn from the extracts from the evaluation committee report which had been sent to it in the letter of 10 December 2004.
133 It follows that, while regrettable, the fact that the evaluation committee report was succinct, none the less cannot invalidate the conclusion that the Commission satisfactorily fulfilled, to the requisite legal standard, its obligation to state reasons.
134 Nevertheless, it is appropriate to point out that the principle of transparency which informs every public procurement procedure requires that particular care is taken, when a candidate’s tender is rejected, with the statement of reasons, and that is a consequence of the broad discretion enjoyed by the institutions in public procurement. It would be desirable, accordingly, that the contracting authority should ensure that any evaluation committee report issued in a tendering procedure be as substantial as possible, setting out in detail the reasoning which led to the proposal to award the contract to one specific tender and to reject, consequently, the tenders of other candidates. The fact that, as the Commission stated at the hearing, ‘a lot of work is done behind the scenes’ cannot release the contracting authority from the obligation, in conformity with the principle of transparency and the safeguards which limit its broad discretion, to take pains to ensure that all the factors on which it has based its decision are revealed.
135 For the same reasons, the Court considers that that it would be equally desirable that the institution concerned systematically should send to tenderers which have made a written request, within the meaning of Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules, a copy of the evaluation committee report from which, if necessary, confidential information has been removed. | T-59/05
Evropaiki Dynamiki | 136-137 | Q4-100.2
M4-149.2 | 136 Lastly, the sufficiency of the statement of reasons is not brought into question by the fact that in the letter dated 26 January 2005, and posted on 7 February 2005, the Commission provided, at the applicant’s express request, an even more detailed explanation concerning the evaluation of the applicant’s tender and the grounds for its rejection (see, to that effect, Strabag Benelux v Council, cited in paragraph 58 above, paragraph 57). After all, since the Commission had, to the requisite legal standard and in accordance with Article 100(2) of Financial Regulation and Article 149(2) of the Implementing Rules, stated the reasons for its decision to reject the applicant’s tender and to award the contract to the successful tenderer, the Commission was not under any obligation to reply to the applicant’s requests of 29 and 30 December 2004. Since that letter was sent to the applicant after the date on which the present action was brought by the applicant, it cannot be taken into consideration for the examination of this plea in law relating to the infringement of the obligation to state reasons. On the other hand, the Court considers that the letter must be examined under the fourth plea in law, which alleges infringement of the principles of diligence and good administration (see paragraphs 151 to 159 below).
137 Having regard to all of the foregoing, the third plea in law alleging an infringement of the obligation to state reasons must be rejected as being unfounded, since the applicant, on the basis of the information concerning the grounds for the rejection of its tender which were sent to it by the Commission, was in a position to assert its rights before the Court and the Court has been able to exercise its supervisory jurisdiction in respect of the legality of the contested decision. | T-465/04
Evropaïki Dinamiki | 46-50 | Q4-100.2
Q4-105
M4-149.2
ECT-253 | 46 As a preliminary point, contrary to what is claimed by the applicant, the provisions of Directive 92/50 – which, pursuant to Article 105 of the Financial Regulation, applies to public contracts awarded by the institutions of the Communities on their own account only in respect of matters relating to thresholds which determine the publication arrangements, the choice of procedures and the corresponding timelimits – are not those relevant to examination of whether the Commission has complied with its obligation to provide to the unsuccessful tenderer a statement of the reasons for rejection of its tender. As was stated in paragraph 1 above, the award of the contract at issue is, in fact, governed by the provisions of the Financial Regulation and of the Implementing Rules and, as regards the obligation to state reasons, specifically by Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.
47 It is clear from those articles, and from the case-law of the Court, that the Commission fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see, to that effect and by analogy, Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 31; Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraphs 188 and 189; and Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 54).
48 Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights; and, on the other, to enable the Court to exercise its supervisory jurisdiction (Adia Interim v Commission, cited in paragraph 47 above, paragraph 32; Esedra v Commission, paragraph 47 above, paragraph 190; and Strabag Benelux v Council, cited in paragraph 47 above, paragraph 55).
49 It is also important to bear in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63 and case-law cited).
50 Accordingly, in order to determine whether the requirement to state reasons laid down by the Financial Regulation and the Implementing Rules has been satisfied, the Court must examine not only the contested decision but also the letter of 18 October 2004, sent to the applicant in reply to its express request, which was made several times in its letters of 16 September, 11 and 19 October 2004, for additional information on the decision to award the contract at issue. | T-465/04
Evropaïki Dinamiki | 51-59 | Q4-100.2 | 51 First of all, in the contested decision, in accordance with Article 100(2) of the Financial Regulation, DG Fisheries confined itself to stating the reasons for rejection of the applicant’s tender. Those reasons relate to the composition and stability of the applicant’s team, the procedures proposed for the transfer of knowledge on completion of the project, and correspond, respectively, to the technical award criteria set out in section 2.6.2, (f), (h) and (j), of the tender specifications (see paragraph 8 above), and to the fact that the applicant’s tender did not offer the best value for money (section 2.6.4 of the tender specifications; see paragraph 8 above).
52 As regards the letter of 18 October 2004, sent on 22 October 2004, it must be noted at the outset that that reply of DG Fisheries to the applicant was approximately three weeks late in relation to the maximum period, laid down in Article 149(2) of the Implementing Rules, of 15 calendar days from the date of receipt of the applicant’s written request, which was first sent by fax and by mail on 16 September 2004. Although it is to be deplored and in fact cannot be justified, that delay does not, however, appear to have restricted the applicant’s opportunity to assert its rights before the Court and cannot, by itself, lead to the annulment of the contested decision. It is clear from the documents before the Court that the applicant has used all the information contained in that letter in order to bring the present action.
53 Next, it must be noted that DG Fisheries provided in that letter further details of the reasons for rejection of the applicant’s tender. DG Fisheries notified the applicant of the procedure followed on evaluation of tenders, the name of the successful tenderer and the fact that the latter’s tender had been selected because it represented the best value for money, and then stated, inter alia, the following: ‘However, the experience of the team in ColdFusion is a weakness. Furthermore the proposed team is made of 16 resources, that makes it oversized in relation to the DG requirements. The workload for transferring knowledge on completion of the project and the guarantee for team stability are weaknesses in the bid.’ Lastly, DG Fisheries notified the applicant of the marks obtained by the applicant’s tender and that of the successful tenderer on each of the technical evaluation criteria, and the result of the financial evaluation, in the form of tables (see paragraph 21 above).
54 While the contracting authority may initially confine itself to notifying the unsuccessful tenderer of the reasons for the rejection of its tender and is only subsequently required, in the event that the tenderer so requests in writing, to notify it of the characteristics and relative advantages of the successful tender, it must none the less be pointed out that, where, as in this case, the Commission has a broad discretion, respect for the rights safeguarded by the Community legal order in administrative procedures is of even greater fundamental importance. Those safeguards include, in particular, the duty of the Commission to state sufficient reasons for its decisions. Only in this way can the Community Courts verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14, and Case T-241/00 Le Canne v Commission [2002] ECR II-1251, paragraphs 53 and 54).
55 In the present case, taking account of the broad discretion enjoyed by the Commission and the extent of its obligation to provide a statement of reasons to the unsuccessful tenderer, it appears that the information contained in the contested decision and in the letter of 18 October 2004 is not entirely satisfactory. First, the reasons for rejection of the applicant’s tender are not clearly disclosed and, second, the characteristics and relative advantages of the successful tender are not adequately explained.
56 In fact, leaving aside the tables which indicate, on the one hand, the marks obtained by the applicant and by the successful tenderer in relation to the technical award criteria and, on the other hand, the final result calculated using the formula in section 2.6.4 of the tender specifications to determine the best value for money, the letter of 18 October 2004 does no more than mention in general terms the weaknesses of the applicant’s tender together with vague and terse remarks on the bid of the successful tenderer. As regards the latter bid, the letter merely states the following: ‘By comparison, the offer of [the successful tenderer] has been assessed as follows: “The bid is of good quality (3[rd]). There is no particular comment on the offer. The contractor capitalises on low daily rates that achieve the best value for money.”.’
57 In addition, as was stated in paragraph 52 above, the grounds for rejection of the tender which are set out in the contested decision, leaving aside that of the best value for money, related to the composition and stability of the team, and to the procedures proposed for the transfer knowledge on completion of the project, which correspond to the technical criteria defined in section 2.6.2, respectively (f), (h) and (j), of the tender specifications, and not to the technical criterion defined in section 2.6.2 (e), to which the letter of 18 October 2004 appears to refer when it mentions the weakness of the proposed team in ColdFusion technology. As regards the remark in the letter of 18 October 2004 on the size of the team, it is not clear whether that refers to the technical criterion defined in section 2.6.2 (f) of the tender specifications relating to composition of the team, alluded to in the contested decision. It follows that it is not possible to discern clearly the grounds for rejection of the tender by reading together the two letters of DG Fisheries which are supposed to satisfy the requirement that reasons be stated.
58 Moreover, the Commission itself has acknowledged, in its written pleadings and at the hearing, that the statement of reasons provided in those first two letters was not entirely satisfactory. The Commission, indeed, maintains that its reasoning was better explained in the following series of letters, which included those of 5 and 15 November 2004, (see, respectively, paragraphs 23 and 25 above), and that those should therefore also be taken into consideration to determine whether the Commission satisfied the requirement to state reasons, since the applicant used all the information in those letters in order to bring its action, although the Commission itself accepted, in paragraphs 20 and 23 of its defence, that the letter of 5 November 2004 might have caused confusion.
59 It must be borne in mind that, according to the case-law, when, as in this case, the institution concerned sends a letter, after a request from the applicant, before the bringing of an action but after the date laid down by Article 149(2) of the Implementing Rules, for additional explanations of a decision, that letter may also be taken into consideration when determining whether the statement of reasons concerned was adequate. The obligation to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought, with the qualification, however, that the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons (see, to that effect and by analogy, Case T-4/01 Renco v Council [2003] ECR II-171, paragraph 96, and Strabag Benelux v Council, cited in paragraph 48 above, paragraph 58). | T-465/04
Evropaïki Dinamiki | 60-61 | Q4-100.2 | 60 It is appropriate therefore to examine whether, by means of the letter of 5 November 2004 – supposed, according to the Commission’s own submission, to complement the statement of reasons contained in the letter of 18 October 2004 – DG Fisheries provided more detailed explanations, corresponding to those given in the last-mentioned letter, of the grounds properly associated with rejection of the applicant’s tender, although it is patent that the letter of 5 November 2004 adds nothing with regard to the characteristics and relative advantages of the successful tender. As regards the letter of 15 November 2004, suffice it to point out that it provides no additional explanation on those two matters and that it is, consequently, of no relevance for the purposes of assessing the statement of reasons.
61 In relation to the letter of 5 November 2004, it is clear that, contrary to what is claimed by the Commission, the explanations of the grounds for rejection of the applicant’s tender stated there not only do not fully correspond with those provided in its earlier letters, but bring to light serious and manifest inconsistencies when compared with those earlier letters. It must also be noted that, at the hearing, the Commission itself acknowledged, in reply to a question from the Court, that the three letters sent to the applicant in order to provide a better explanation of the grounds for rejection of its tender, namely the contested decision and the letters of 18 October and 5 November 2004, taken together, appear to be rather inconsistent, not to say contradictory. | T-465/04
Evropaïki Dinamiki | 62-66 | Q4-100.2 | 62 Firstly, DG Fisheries made its first reference to the weakness of the applicant’s team in ColdFusion technology in its letter of 18 October 2004 and then stated in its letter of 5 November 2004 that the team’s experience in that technology had been evaluated during the selection phase (see the criterion defined at section 2.5.3 (p) of the tender specifications, paragraph 8 above) and not the award phase. That claim was also repeated by the Commission in its defence and at the hearing.
63 It must be pointed out in this regard that DG Fisheries mentioned the question of the proposed team’s experience in reply to the applicant’s letter of 26 October 2004, in which the applicant stated the following: ‘Our team of experts covers in a very satisfactory manner all the thematic areas requested by DG Fisheries, including ColdFusion. Most of the proposed experts offer expertise in ColdFusion to various prestigious organisations, including the European Commission itself. We reject any reference to an alleged “weakness” in this or any other field of the requested expertise.’
64 It is therefore obvious that, contrary to the Commission’s apparent submission, when mentioning ColdFusion technology, the applicant was referring to the award criterion in section 2.6.2 (e) of the tender specifications (see paragraph 8 above), and not to the selection criterion in section 2.6.2 (p) of the tender specifications (concerning assessment of technical capacity in the selection phase, see paragraph 8 above), or, at the very least, that the applicant justifiably took the view that that award criterion was the one being referred to by DG Fisheries in its letter of 18 October 2004, when mention was made of the weakness of the applicant’s proposed team in relation to experience in ColdFusion technology. However, in its letter of 5 November 2004, DG Fisheries replied in the following terms: ‘Concerning criteria (p) in the technical selection, the appreciation of the technical team capacity in ColdFusion technology is based on the data you have provided in section 1.5.3.x.3 of your offer. The total of “points” for the whole team in ColdFusion has been added up (145 points) and divided by 1 600 points (the maximum 100*16 CV). The result is equal to 9.06%. The average result of this criterion for all competitors is 14.49% with a maximum of 21.5% and a minimum of 6.8%. Based on this result, the team is ranked 6th position. According to this ranking, the committee has considered your company to comparatively have a certain weakness in this technology. Please note that this assessment is part of the selection phase of the tenderers and does not relate to your offer in the context of the awarding phase. This appreciation does not prejudice … the quality mark and … the final result’.
65 It is true that, at the hearing, the Commission submitted for the first time that the evaluation committee had, when assessing the experience of the applicant’s proposed team in ColdFusion technology, confused the selection criteria and the award criteria. However, it remains the case that, even if the evaluation committee confused those criteria, which, as it happens, finds no support in any document before the Court, that did not deter the Commission, which, as contracting authority, took the final decision on the award of the contract, from referring in its letter of 18 October 2004 to the weakness of the applicant’s team in that technology, and from doing so in a letter which the Commission sent to the applicant in reply to the latter’s express request for the details of the grounds for rejection of its tender and the characteristics and relative advantages of the successful tender. In any event, it is impossible to understand why, at that stage of the procedure, DG Fisheries should have referred to a criterion, such as that relating to the technical capacity of the team, which had already been checked in the selection phase of the competition and which, consequently, ought not to have been again taken into account in the award phase.
66 Accordingly, the Court cannot determine whether the experience of the applicant’s proposed team, in particular in ColdFusion technology, was evaluated on the technical selection criterion in section 2.5.3 (p) of the tender specifications, as claimed by the Commission in the letter of 5 November 2004 and also in its written pleadings and at the hearing, or rather on the technical award criterion in section 2.6.2 (e) of the tender specifications, which seems to be implied in the letter of 18 October 2004 where reference is made to the weakness of the applicant’s team in that technology, and, if that is the case, whether the number of years of experience was the only factor taken into consideration by DG Fisheries when assessing the ‘technical merits of the team made available’ by the applicant. | T-465/04
Evropaïki Dinamiki | 67-71 | Q4-100.2 | 67 Secondly, in the letter of 18 October 2004 DG Fisheries states quite simply that the applicant’s proposed team was oversized in relation to its requirements, whereas, in the letter of 5 November 2004, again in reply to an argument put forward by the applicant in its letter of 26 October 2004, DG Fisheries claims that the remark on the number of the team’s resources was information for the evaluation committee based on the financial impact of the tender.
68 In the letter of 5 November 2004 DG Fisheries states, in particular, the following: ‘The remark about the number of resources in the team is based on a financial calculation. The cost of the team for the maximum contract period at the prices indicated in your bid is euros. In section 1.1, the DG has provided an estimation of euros for the complete contract period. The difference between the estimation and the forecast is 29.8%. This impact is the direct consequence of the daily rates provided in your bid. The observation that indicates “the team oversizes the expectation of the DG” was an information for the evaluation committee based on the financial impact.’
69 Moreover, at paragraph 23 of its defence, the Commission explained that that remark did not relate to any of the award criteria used by the evaluation committee, since the financial evaluation of all the tenders had been carried out on a basis of strict comparability, using the formula set out in paragraph 2.6.3 of the tender specifications. In relation to that formula, the Commission states: ‘the number of members proposed for a team is without relevance, since the same number of daily rates (corresponding to the various profiles required) is taken into account for each tenderer. In other words, there is an equalisation of the number of resources included in the calculation as regards each tenderer.’ That argument was also taken up by the Commission at the hearing. By contrast, in paragraph 17 of its defence, the Commission appears to adopt different reasoning when referring to the size of the team. The Commission asserts, firstly, that if the evaluation committee considered that the proposed team was oversized, that was not because the applicant submitted the maximum number of CVs, but because the applicant proposed that all 16 candidates should be members of its core team, and adds that, since the average size of teams proposed by other tenderers was 10.8 persons, the evaluation committee was entitled to judge that the applicant’s proposed team would be too large. At the hearing, notwithstanding repeated questions from the Court, the Commission was unable to offer a clear explanation of this point and finally admitted that such a comment should not have been made.
70 However, assuming it to be true that the remark concerning the overall cost of the applicant’s proposed team did not affect the financial evaluation of its tender, the fact still remains that DG Fisheries mentioned that factor in the letters sent to the applicant, when the question of the size of the team could come within the scope only of the award criterion in section 2.6.2 (f) of the tender specifications, a criterion on which the applicant’s tender had been ranked fourth, with a mark of 56 points out of 80. It is clear that that criterion was the one referred to by DG Fisheries in the contested decision, and in its letter of 18 October 2004, which complements the statement of reasons notified in the contested decision.
71 In the light of those considerations, the Court is unable to understand why DG Fisheries highlighted in its letter of 5 November 2004 the cost of the applicant’s proposed team, given that that letter was supposed to be a reply to the applicant’s letter of 26 October 2004, in which the applicant’s concern was the alleged error committed by the evaluation committee by judging that the team was oversized. In any event, having regard to all of the explanations given by the Commission, it is impossible to determine whether the assessment of the applicant’s proposed team as oversized was or was not one of the grounds which justified rejection of the applicant’s tender. | T-465/04
Evropaïki Dinamiki | 72-74 | Q4-100.2 | 72 In addition, it must be observed that the Commission’s arguments are no more consistent in relation to the individual assessment of the applicant’s tender made by the evaluation committee. It is clear from point 2.4.4.1 of the evaluation report that the committee, after recognising that the tender requirements were generally well understood by the applicant, that the breakdown of the workload was close to the DG’s expectations and that the tests, which were important for the DG, were well understood also, stated the following: ‘However, the tender remains weak in terms of the team’s experience and presents a relative weakness in ColdFusion. Furthermore, the proposed team is composed of 16 persons, which, in relation to the DG’s requirements, is an oversized team. If the tenderer were selected, the deployment of that large team would cause funding problems. Lastly, the stability of the team and the means of transferring knowledge on completion of the project are comparatively weak points of the tender … Notwithstanding an average mark for the technical evaluation, ranked 4th, with a significant difference from the top three offers, which is compensated by low daily rates, the tender is in 2nd position, which in the opinion of the committee members does not reflect its overall value. Although this tenderer is not the successful candidate in the call for tenders, it is brought to the attention of the authorising officer that, taking account of the company’s liabilities, the committee does not recommend use of the services of this supplier.’
73 It is accordingly obvious, notwithstanding what is claimed by the Commission, that the factors relating to the size and experience of the applicant’s proposed team in ColdFusion technology were taken into consideration by the evaluation committee in the award phase and not the selection phase, which explains why DG Fisheries initially referred to those factors among the grounds justifying rejection of the tender. In any event, if the Commission’s reasoning were to be followed, it would be clear that neither the weakness of the applicant’s tender as regards, in particular, experience in ColdFusion technology, nor the assessment of the proposed team as over-large would have justified rejection of the tender, which is manifestly contrary both to the statement of reasons provided by DG Fisheries in its first two letters and to the assessment of the evaluation committee, which was approved by DG Fisheries.
74 As regards the technical award criteria in section 2.6.2 (h) and (j) of the tender specifications relating, respectively, to the guarantees of stability of the team and to the procedures and methods for the transfer of knowledge on completion of the project, it is clear from the letter of 5 November 2004 that, while DG Fisheries on the one hand provided information which was more detailed as compared with that contained in the contested decision and in the letter of 18 October 2004, on the other hand it asserted that ‘the appreciation “is a weakness in the bid” doesn’t refer to these specific criteria in isolation, but is an overall appreciation compared to other criteria [(a), (b), (c), (d), (g), (i) and (k)] which are rated better in your offer.’ Not only had that explanation never been stated previously, but it is expressed so elliptically that it is no more helpful in enlightening the Court as to the full reasoning which led DG Fisheries to reject the applicant’s tender. | T-465/04
Evropaïki Dinamiki | 75-78 | Q4-100.2 | 75 Lastly, the Court cannot accept the submission of the Commission at the hearing, to the effect that the letter of 5 November 2004 is that in which the grounds justifying rejection of the tender may best be found. It must be pointed out that the Commission must fulfil its obligation to state reasons solely within a first letter which sets out the grounds for rejection of the bid of the unsuccessful tenderer and within a second letter which should, in reply to an express request from that tenderer, provide information on the characteristics and relative advantages of the tender of the candidate to whom the contract is to be awarded. Accordingly, an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract. The possible sending of a third letter, as has been explained in paragraph 60 above, can be taken into account only when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the successful tenderer, and not when, as in the present case, the Commission sets out other considerations which go so far as to undermine the statement of reasons provided in the first two letters. That is all the more valid when the intention of the third letter, sent in reply to the complaints of the unsuccessful tenderer, is merely to ‘correct errors’ contained in earlier letters, which, as admitted by the Commission at the hearing, was the position in this case.
76 In the light of the foregoing, the explanations contained in the letter of 5 November 2004 cannot be taken into consideration in determining whether DG Fisheries complied with its obligation to state reasons and the effect of those explanations, since they are inconsistent with the explanations provided earlier, is that the reasoning of DG Fisheries in relation to the grounds justifying rejection of the applicant’s tender becomes even more obscure and ambiguous.
77 The ambiguity of the statement of reasons for the contested decision, as emerges clearly when all of the letters sent by DG Fisheries are read together, has prevented both the applicant and the Court from establishing, with sufficient certainty, the reasons why the applicant’s tender was rejected.
78 Equally, because of the ambiguity caused by the contradictions in the various letters sent by DG Fisheries to the applicant and intended to explain the rejection of its tender, the Court is also unable to review the merits of the award of the contract in question to the successful tenderer. From the statement of reasons provided by the Commission it is impossible to identify, with sufficient certainty, the selected award criteria, in particular those relating to the size and experience of the proposed team, or to check how they have been applied, even in relation to the successful tenderer. | T-465/04
Evropaïki Dinamiki | 79-80 | Q4-100.2 | 79 It follows from the foregoing that the decision to reject the applicant’s tender and to award the contract to the successful tenderer is vitiated by a failure to provide a statement of reasons.
80 The contested decision must therefore be annulled, since the Commission has failed to fulfil its obligation under Article 100 of the Financial Regulation and Article 149 of the Implementing Rules to state reasons, and it is unnecessary to rule on the other pleas in law relied on by the applicant. | T-04/91
Renco | 89-97 | W2-8.1 | 89 As regards the alleged infringement of the duty to state reasons in this case, the Court points out that the claim for damages in the amount of EUR 26 063 000 lodged by the applicant (see paragraph 33 above) includes inter alia a claim for EUR 24 000 000 by way of compensation for the harm resulting from the loss of the chance of being awarded the contract in issue. It must be observed that, even if it were to be considered that the Council did not give adequate reasons for rejecting the applicant's tender, that does not mean that the award of the contract to De Waele constituted an error or that there is a causal link between that fact and the loss alleged by the applicant.
90 With regard to the Council's arguments set out in paragraph 57 above, the Court finds that the action brought by the applicant in Case T-205/00 sought the annulment of the Council's decision refusing to grant it access to the administrative file relating to the assessment of the tenders and was therefore brought against a decision other than the contested decision. That action, since the applicant has abandoned it, has no bearing on the present action.
91 As regards the applicant's argument set out in paragraph 54 above relating to the Belgian legal provisions on invitations to tender, the Court finds that the inclusion, in paragraph 26(a) of the contract documents, of the words `Belgian law is applicable to the contract' was intended to submit the eventual conclusion of the contract and the execution of the work to which it related to the relevant provisions of Belgian law. On the other hand, it does not cover the procedures prior to conclusion of the contract, which are governed exclusively by Directive 93/37. Consequently, it is necessary to determine the extent of the Council's duty to state reasons in respect of a tenderer who has not been successful in the award procedure under Article 8(1) of Directive 93/37, as amended by Directive 97/52.
92 It is apparent from this last provision and from the judgment in Adia interim v Commission, cited above, that the Council fulfils its obligation to state reasons if it first informs eliminated tenderers immediately of the fact that their tender has been rejected by a simple unreasoned communication and then subsequently, if expressly requested to do so, informs tenderers of the relative characteristics and advantages of the successful tender and the name of the successful tenderer within 15 days of receipt of a written request.
93 Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and Aida interim v Commission, cited above, paragraph 32).
94 Consequently, in order to determine whether the Council fulfilled its obligation to state reasons, the Court considers that it is necessary to examine the letter of 11 May 2000 sent to the applicant in response to its express request of 26 April 2000.
95 Clearly, in its letter of 11 May 2000, the Council gave a sufficiently detailed statement of the reasons for which it had rejected the applicant's tender and stated the characteristics and advantages of De Waele's tender. That letter clearly indicates the procedure which was followed to evaluate the tenders of the three tenderers and the fact that De Waele's tender was successful because it was the most economically advantageous. The Court considers that the applicant could immediately identify the specific reason for the rejection of its tender, namely the fact that it was economically less advantageous than that of De Waele. The Council added that the applicant's tender was not ranked higher than De Waele's for any of the eight criteria referred to in the contract documents.
96 In any event, and contrary to what the applicant claims (see paragraph 55 above), the Council's letter of 14 June 2000 may also be taken into consideration in order to examine whether the statement of reasons in this case was adequate, because the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought. If, as in the present case, the applicant, before bringing an action but after the date laid down by Article 8(1) of Directive 93/37, asks the institution concerned for additional explanations about a decision and receives those explanations, it cannot ask the Court not to take them into consideration when determining whether the statement of reasons is adequate; however, the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons, but that is not the position in this case. In its letter of 14 June 2000, the Council, supplementing its letter of 11 May 2000, provided explanations which were more detailed but which correspond to the explanations given in the letter of 11 May as regards the rejection of the applicant's tender. Moreover, the Court considers that the fact that fuller information was given in the letter of 14 June 2000 does not mean that the reasons stated in the letter of 11 May 2000 were inadequate.
97 It follows that the applicant cannot rely on the alleged infringement of the duty to state reasons. | T-183/00
Strabag | 54-59 | C2A1-3.2=W2-8.1.1
ECT-253 | 54 It is apparent from Article 8(1) of Directive 93/37, as amended by Directive 97/52, and from the judgment in Adia interim v Commission, cited above, that the Council fulfils its obligation to state reasons if it first informs eliminated tenderers immediately of the fact that their tender has been rejected by a simple unreasoned communication and then subsequently, if expressly requested to do so, informs tenderers of the relative characteristics and advantages of the successful tender and the name of the successful tenderer within 15 days of receipt of a written request.
55 Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and Aida interim v Commission, cited above, paragraph 32).
56 Consequently, in order to determine whether the Council fulfilled its obligation to state reasons, the Court considers that it is necessary to examine the letter of 11 May 2000 sent to the applicant in response to its express request of 26 April 2000 for a copy of the decision awarding the contract and for the reasons for the decision.
57 Clearly, in the letter of 11 May 2000 (see paragraph 14 above) the Council gave a sufficiently detailed statement of the reasons for which it had rejected the applicant's tender and stated the characteristics and advantages of De Waele's tender. That letter clearly indicates the procedure which was followed in evaluating the tenders of the three tenderers and the fact that De Waele's tender was successful because it was the most economically advantageous. The Court considers that the applicant could immediately identify the specific reason for the rejection of its tender, namely the level of its price in relation to that of De Waele. The adequacy of that statement of reasons is not affected by the fact that, on 4 July 2000, the Council provided, at the express request of the applicant, an even more detailed explanation of the evaluation of its tender.
58 In any event, and contrary to what the applicant claims (see paragraph 49 above), the duty to state reasons must be assessed in the light of the information available to the applicant at the time when the action was brought. If, as in the present case, the applicant, before bringing an action but after the date laid down by Article 8(1) of Directive 93/37, asks the institution concerned for additional explanations about a decision and receives those explanations, he cannot ask the Court not to take them into consideration when determining whether the statement of reasons is adequate; however, the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons, but that is not the position in this case.
59 It is apparent from the foregoing that the second plea, alleging infringement of the duty to state reasons, must be rejected. | T-169/00
Esedra | 188-190+192 | C2A1-1.2=S2-12.1
EC-253 | 188 Article 12(1) of Directive 92/50 provides as follows:
.....
189 Pursuant to the abovementioned provision, the Commission must, within 15 days of receipt of his request, inform an unsuccessful tenderer of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, except for information described as confidential.
190 This manner of proceedings satisfies the purpose of the obligation to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights; and, on the other, to enable the Court to exercise its power of review (see judgments in Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and in Adia Interim v Commission, cited above, paragraph 32).
.....
192 It must be found that, in the letter of 9 June 2000, the Commission gave a sufficiently detailed explanation of the reasons for which it rejected the applicant's tender by giving the name of the successful tenderer and the relative advantages of the tender selected by comparison with the applicant's tender with respect to the criteria laid down by the contract documents. That statement of reasons also has enabled the applicant to assert its rights and the Court to exercise its power of review. | T-19/95
Adia Interim | 31-36 | S2-12.1
ECT-229 [ex 190]
[For 31.s1:
M32-126] | 31 In this connection, the Court observes that Directive 92/50 is applicable in this case by virtue of Article 126 of Regulation No 3418/93, since the value of the contract in question exceeds the threshold laid down by Article 7(1) of that directive. However, it appears from Article 12(1) of Directive 92/50 that the institution concerned fulfils its obligation to state reasons if it first informs eliminated tenderers immediately of the fact that their tender has been rejected by a simple unreasoned communication provided it subsequently, if expressly requested to do so, furnishes them within 15 days with a reasoned explanation.
32 The Court considers that such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 190 of the Treaty, according to which the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights; and, on the other, to enable the Court to exercise its supervisory jurisdiction (Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103).
33 In this context, it must be emphasized that the fact that interested tenderers receive a reasoned decision only if they make an express request to that effect does not restrict their ability to assert their rights before the Court. The period for bringing proceedings laid down in the fifth paragraph of Article 173 of the Treaty does not in effect begin to run until the reasoned decision is notified, subject to the tenderer having made his request for a reasoned decision within a reasonable time after he was apprised of the rejection of his tender (see Case T-465/93 Consorzio Gruppo di Azione Locale "Murgia Messapica" v Commission [1994] ECR II-361, paragraph 29, and Joined Cases T-432/93, T-433/93 and T-434/93 Socurte and Others v Commission [1994] ECR II-503, paragraph 49).
34 Accordingly, in order to determine whether the Commission complied with its duty to state reasons, the Court takes the view that it is necessary to examine the letter dated 21 December 1994 sent to the applicant in response to its express request for an individual explanation.
35 In this regard, it is clear from that letter that the Commission did provide sufficiently detailed reasons for its rejection of the tender in question, because it confirmed that it satisfied all the formal requirements of the procedure but was considered to be less economically advantageous than the tenders of Ecco, Gregg and Manpower at the stage when the three award criteria were applied.
36 The sufficiency of that reasoning is borne out by the fact that ° as the applicant confirmed at the hearing ° when it was informed that its tender had been rejected in December 1994, it was able immediately to identify the precise reason for its rejection, to wit the presence of a systematic error in the calculation of the price. |
| Case | Pte | Ref | Text | N-081219
UAB Baltic Orthoservice | 1-2+K4 | C3-41.2 | Ad påstand 1
1. Indklagedes breve af 14. maj 2008 til klageren indeholder oplysning om det antagne tilbuds karakteristika og relative fordele samt navnet på den 1 8. tilbudsgiver, Sahva A/S, hvis tilbud var antaget, jf. Udbudsdirektivets artikel 41, stk. 2.
2. Påstanden tages derfor ikke til følge.
.....
K4. Klagen tages ikke til følge vedrørende påstand 1 og påstand 5.
[Påstand 1 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 41, stk. 2, 3. led, ved i sin skrivelse af 14. maj 2008 til klageren at have besvaret klagerens anmodning om en begrundelse efter artikel 41, stk. 2, 3. led, på en måde, der ikke opfyldte kravene i artikel 41, stk. 2, 3. led.] | N-081105
Brøndum | 13+K6 | C3-41.2 | Ad påstand 10
13. Efter indholdet af indklagedes skrivelser af 17. december 2007 og 8. januar 2008 opfylder disse skrivelser ikke de krav, som følger af Udbudsdirektivets artikel 41, stk. 2, 3. led, med hensyn til en fyldestgørende redegørelse for karakteristika og relative fordele ved tilbudet fra Carl Christensen og Co A/S. Klagenævnt tager derfor påstanden til følge.
.....
K6. Påstand 10 Indklagede har handlet i strid med udbudsdirektivets artikel 41, stk. 2, 3. led, ved ikke efter anmodning af 12. december 2007 at have givet klageren en fyldestgørende redegørelse for karakteristika og relative fordele ved tilbudet fra Carl Christensen og Co A/S. | N-080711
Labofa Munch | 9+K5-6 | C3-41.1-impl
C3-41.2-impl
FVL1-15.1-impl
KNL2-6.1.p3-impl | Ad påstand 10 og 11
9. Det følger af udbudsmaterialet, at præstation af dokumentation var et grundlæggende krav, hvis manglende opfyldelse medfører ukonditionsmæssighed og kassation. De tilbudsgivere, der fik kontrakten tildelt, opfyldte på en lang række punkter ikke kravene om dokumentation. Indklagede her derfor på væsentlige punkter groft tilsidesat udbudsreglerne, hvilket skal medføre annullation af beslutningen om at indgå kontrakten med de omhandlede tilbudsgivere. Ved afgørelsen er der lagt vægt på, at indklagede tildelte kontrakten og meddelte afslag samme dag, uden at oplyse, at indklagede havde tildelt kontrakten til tilbudsgivere, hvis tilbud var ukonditionsmæssige. Der er også lagt vægt på, at indklagede ved sin håndtering af udbuddet og klagerens begæring om aktindsigt udsatte sig for – og tog risikoen for - at eventuelle klagesager, herunder med påstand om annullation af beslutningen om ordretildeling først kunne fremkomme flere måneder efter ordretildelingen. Under disse omstændigheder er det af mindre betydning, at klageren først ca. 5 måneder efter at have fået aktindsigt indbragte sagen for Klagenævnet. Påstandene tages derfor til følge.
.....
K5. Påstand 10 Klagenævnet annullerer de indklagedes beslutning af 7. december 2006 om at indgå kontrakt med Kinnarps A/S.
K6. Påstand 11 Klagenævnet annullerer de indklagedes beslutning af 7. december 2006 om at indgå kontrakt med Jesper Office A/S. | N-070416
STB Byg | 12+K10 | NPL3-14.3 | Ad påstand 5
12. Da klagerens advokat anmodede om at få oplyst, på hvilke punkter klagerens tilbud skulle være ikke-konditionsmæssigt, henviste indklagedes rådgiver til det af klageren tagne forbehold. Indklagede opfyldte derfor begrundelsespligten i Tilbudslovens § 14, stk. 3, og Klagenævnet tager derfor ikke påstanden til følge.
.....
K10. Klagen tages ikke til følge vedrørende påstand 1, 5, 13 og 14.
[Påstand 5 Klagenævnet skal konstatere, at indklagede har handlet i strid med Tilbudslovens § 14, stk. 3, ved ikke efter klagerens anmodning herom at have underrettet klager om begrundelsen for ikke at tage klagerens tilbud i betragtning som konditionsmæssigt.] | N-070319
STB Byg | 7+K4 | NPL3-14.3 | Ad påstand 6
7. Idet det ikke er godtgjort, at klageren efter at have anmodet om begrundelsen for ikke at tage klagerens tilbud i betragtning modtog anden oplysning fra indklagede, end at klagerens tilbud var ikke-konditionsmæssigt, findes indklagede ikke at have opfyldt begrundelsespligten i Tilbudslovens § 14, stk. 3, og Klagenævnet tager derfor denne påstand til følge.
.....
K4. Ad påstand 6 Indklagede har handlet i strid med Tilbudslovens § 14, stk. 3, ved ikke efter klagerens anmodning herom at have underrettet klageren om begrundelsen for ikke at tage klagerens tilbud i betragtning som konditionsmæssigt. | N-070212
Dansk Høreeteknik | 24-27+K6 | C3-41.2
U3-49.2
C3-53.1-impl | Ad spørgsmål 10
24. I hvert fald i tilfælde, hvor tildelingskriteriet er det økonomisk mest fordelagtige bud, følger det af det EU-retlige gennemsigtighedsprincip, at udbyderen af et EU-udbud skal udforme en skriftlig tilbudsvurdering, der viser, hvorledes udbyderen er nået frem til tildelingsbeslutningen. Den skriftlige tilbudsvurdering skal kunne tjene som dokumentation i forbindelse med udbyderens oplysninger til forbigåede tilbudsgivere i medfør af Udbudsdirektivets artikel 41, stk. 2, eller Forsyningsvirksomhedsdirektivet artikel 49, stk. 2, og under en eventuelt efterfølgende klagesag eller retssag. Den skal derfor være udformet senest samtidig med tildelingsbeslutningen.
25. Indklagedes skriftlige tilbudsvurdering er ikke dateret og bærer præg af at være udfærdiget efter tildelingsbeslutningen. Tilbudsvurderingen henviser således til, at indklagede »efterfølgende« havde bedt Jens Winther om at udarbejde en skriftlig teknisk redegørelse, og indklagede sendte tilbudsvurderingen til klagerens advokat sammen med Jens Winthers redegørelser, der var dateret i november 2005, dvs. efter tildelingsbeslutningen. Heller ikke indklagedes opstilling over tilbudspriserne er dateret, og denne opstilling er først fremlagt ved den mundtlige forhandling for Klagenævnet.
26. Selvom Klagenævnet lægger til grund, at indklagedes skriftlige tilbudsvurdering giver et retvisende billede af, hvad indklagede lagde vægt på ved tildelingsbeslutningen, er der herefter en formodning for, at tilbudsvurderingen først er udfærdiget efter tildelingsbeslutningen, og denne formodning er ikke afkræftet.
27. Klagenævnet konstaterer på den anførte baggrund, at indklagede har overtrådt det EU-retlige gennemsigtighedsprincip som angivet i spørgssmålet.
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K6. Ad spørgsmål 10 Indklagede har handlet i strid med det EU-retlige gennemsigtighedsprincip ved ikke at have udformet en skriftlig tilbudsvurdering senest samtidig med tildelingsbeslutningen. | N-051215
Air Liquide Danmark | 10+K8 | G2-7.1 | 10. Ad påstand 13 Efter indholdet af de indklagedes skrivelse at 6. juni 2004 til klageren tages denne påstand til følge.
.....
K8. Påstand 13 De indklagede har handlet i strid med Indkøbsdirektivet artikel 7, stk. 1, og det EU-udbudsretlige gennemsigtighedsprincip ved ikke i sin skrivelse af 6. juni 2005 til klageren at have oplyst det antagne tilbuds egenskaber og relative fordele. | N-050408
Danske Arkitektvirksomheder | 9-12+K3 | C2A1-1.2=S2-12.1
S2-13.6.2
S2-15.3-impl | 9. Klagenævnet finder det bevist, at dommerkomitéen ved bedømmelsen af de fem modtagne forslag har evalueret hvert enkelt forslag i forhold til de bedømmelseskriterier, der var fastsat i udbudsbekendtgørelsen. Allerede af denne grund tages påstanden ikke til følge.
10. Klagenævnet finder endvidere anledning til at bemærke, at der ikke af Tjenesteydelsesdirektivets artikel 13 kan udledes en pligt for udbyderen af en projektkonkurrencen til at at sikre, at dommerkomitéen offentliggør en begrundelse for den vurdering af hvert enkelt forslag i forhold til hvert enkelt bedømmelseskriterium, som foretages i forbindelse med bedømmelsen af forslagene.
11. En forbigået tilbudsgiver vil således i tilknytning hertil kunne fremsætte skriftligt anmodning om oplysning om det antagne buds egenskaber og relative fordele samt navnet på den bydende, hvis bud er antaget. Udbyderen vil herefter skulle afgive oplysninger herom inden 15 dage, jf. Tjenesteydelsesdirektivets artikel 12. Denne bestemmelse finder også anvendelse, hvor der indgås kontrakt på baggrund af en projektkonkurrence.
12. Klagenævnet finder på denne baggrund, at den gennemgang af de modtagne forslag i generelle vendinger og beskrivelsen af fordelene ved vinderforslaget, som foretages i dommerkomitéens betænkning af 9. september 2004, opfylder de krav, som efter Tjenesteydelsesdirektivet og det EUudbudsretlige gennemsigtighedsprincip kan stilles til begrundelsen for dommerkomitéens afgørelse. Påstanden tages derfor ikke til følge.
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K3. Klagen tages ikke til følge vedrørende påstand 1, 4 og 5.
[Påstand 4 Klagenævnet skal konstatere, at indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 13 og det EU-udbudsretlige gennemsigtighedsprincip ved at tillade, at de enkelte tilbud i dommerkomitéens betænkning af 9. september 2004 ikke blev bedømt i forhold til de fastsatte bedømmelseskriterier og det afgivne honorartilbud.] | N-050309
A-1 Communication | 8-12+K4 | C2A1-1.2=S2-12.1
C2A1-1.2=S2-12.2-impl | 8. Klagenævnet lægger til grund, at indklagede kort efter mødet med klageren den 6. november 2002 besluttede ikke at tage klagerens tilbud i betragtning som følge af klagerens ordning vedrørende kørselsgodtgørelse til tolkene. Dette fremgår af Bjørn Rasmussens og Lotte Vendelbo Jensens forklaringer. Det fremgår også af, at indklagede ikke holdt et nyt møde med klageren i modsætning til med de øvrige tilbudsgivere (bortset fra Flygtningehjælpens tolkeservice, hvis tilbud indklagede som følge af tilbudsprisen ikke anså for relevant). Det fremgår desuden af, at klagerens tilbud ikke var medtaget i indklagedes efterfølgende opstilling af tilbudenes dækningsgrader for de såkaldt prioriterede sprog.
9. Klagerens brev af 11. april 2003 til indklagede måtte naturligt forstås som en forespørgsel om begrundelse for, at klageren ikke havde fået tildelt nogen del af den udbudte ydelse, og en forespørgsel af en sådan karakter må forstås som en anmodning i henhold til Tjenesteydelsesdirektivets artikel 12, stk.1. Det er ikke en betingelse, at forespørgslen er formuleret i overensstemmelse med artikel 12, stk. 1. Der kan ikke stilles krav om, at anmodninger i henhold til bestemmelsen skal være formuleret i overensstemmelse med den, idet bestemmelsen i så fald reelt ville miste sin betydning.
10. Klagerens brev af 11. april 2003 må således forstås som en anmodning i henhold til Tjenesteydelsesdirektivets artikel 12, stk. 1. Det var derfor en overtrædelse af artikel 12, stk. 1, at indklagede ikke efter modtagelsen af brevet gav klageren underretning om, at indklagede ikke havde taget klagerens tilbud i betragtning, med angivelse af begrundelsen herfor.
11. Påstanden tages herefter til følge.
12. Klagenævnet har ikke anledning til at tage stilling til, om indklagede overtrådte Tjenesteydelsesdirektivet ved, at indklagede ikke gav klageren underretning om beslutningen om ikke at tage klagerens tilbud i betragtning, straks efter at beslutningen var taget.
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K4. Indklagede har overtrådt Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke efter forespørgsel fra klageren at have oplyst, at indklagede havde besluttet ikke at tage klagerens tilbud i betragtning, med angivelse af begrundelse herfor. | N-050302
Pumpex | 10+K5 | NPL2-12.2 | 10. Det er ikke oplyst, at klageren før sagens indbringelse for Klagenævnet har anmodet indklagede om en redegørelse for det valgte tilbuds egenskaber og relative fordele, hvorfor påstanden ikke tages til følge.
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K5. Påstand 5 og 6 tages ikke til følge.
[Påstand 5 Klagenævnet skal konstatere, at indklagede har overtrådt Tilbudslovens § 12, stk. 2, ved ikke efter anmodning at have underrettet klageren om det antagne tilbuds egenskaber og relative fordele.] | N-041011
Iver C. Weilbach & Co. | 1-5+K1 | C2A1-1.2=S2-12.1 | 1. Klageren har som forbigået tilbudsgiver, der har afgivet et antageligt tilbud, i henhold til Tjenesteydelsesdirektivets artikel 12, stk. 1, krav på oplysning om egenskaber og de relative fordele ved det antagne tilbud efter skriftligt at have anmodet herom. Udbyderen skal som minimum oplyse, hvem der er indgået kontrakt med, og hvilke konkrete omstændigheder ved det valgte tilbud der medførte, at dette tilbud blev bedømt som bedre end den pågældende tilbudsgivers eget tilbud. Når tildelingskriteriet er fastsat som »det økonomisk mest fordelagtige bud«, skal udbyderen redegøre for, i forhold til hvilke underkriterier det antagne tilbud er bedre end den pågældende tilbudsgivers eget tilbud. Udbyderen har derimod ikke pligt til at give detaljerede oplysninger om det antagne tilbud og vurderingen af dette.
2.Indklagede har ved skrivelsen af 16. oktober 2003 til klageren alene oplyst, at valget af tilbudsgiver er sket ved vægtning af tilbudene som anført i udbudsbetingelserne for de fastsatte underkriterier, hvilket ikke opfylder kravet i Tjenesteydelsesdirektivets artikel 12, stk. 1.
3. Ved skrivelsen af 30. oktober 2003 har indklagede oplyst, at klagerens tilbud klart var bedre end de øvrige tilbud for så vidt angår underkriterium (2) »erfaring med markedet for de omhandlede produkter og distribution af disse «, underkriterium (3) »forsyningssikkerhed«, og underkriterium (4) »et net af forhandlere i ind- og udland«, men at tilbudet fra J. H. Schultz A/S for så vidt angår underkriterium (1) »samlet økonomisk tilbud (rabatsats)«, var væsentligt mere fordelagtigt for indklagede. Det, der er oplyst om underkriterium (4), svarer til, hvad der er anført i grundlaget for indklagedes beslutning om at indgå kontrakt med J. H. Schultz Information A/S. Dette var imidlertid ikke fuldstændigt overensstemmende med begrundelsen i skrivelsen af 30. oktober 2003, for så vidt angår underkriterium (3) og (4), idet J. H. Schultz Information A/S’ tilbud ved pointvægtningen opnåede en bedre placering end de øvrige tilbudsgivere vedrørende underkriterium (3), og ved vægtningen med hensyn til underkriterium (4) alene en minimalt ringere placering i forhold til klagerens tilbud.
4. Da den begrundelse, indklagede har givet i skrivelsen af 30. oktober 2003, således ikke er fuldt ud korrekt, finder Klagenævnet, at indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 12, stk. 1.
5. Påstanden tages med disse bemærkninger til følge.
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K1. Indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke i tilstrækkeligt omfang til klageren som tilbudsgiver at have givet fuldt ud korrekte og fyldestgørende oplysninger om egenskaberne og de relative fordele ved det antagne tilbud fra J. H. Schultz Information A/S, uanset at klageren skriftligt har anmodet herom. | N-041011
Iver C. Weilbach & Co. | 6+K2 | C2A1-1.2=S2-12.1 | 6. Da formålet med Tjenesteydelsesdirektivets artikel 12, stk. 1, navnlig er at sikre gennemsigtighed under udbudet, kan der alene stilles relativt få krav til tilbudsgiverens skriftlige anmodning om begrundelse. På denne baggrund finder Klagenævnet, at klagerens e-mail af 1. oktober 2003 opfylder skriftkravet i Tjenesteydelsesdirektivets artikel 12, stk. 1. Klageren anmodede ved denne e-mail indklagede om at få oplyst, »hvad der gjorde udslaget i valg af distributør af danske søkort«. Under henvisning til det ovennævnte formål med Tjenesteydelsesdirektivets artikel 12, stk. 1, må en sådan generelt formuleret anmodning om en begrundelse for valget af det antagne tilbud udløse en pligt for indklagede til at give oplysninger om egenskaberne og de relative fordele ved det antagne tilbud. Indklagede opfyldte som anført ad påstand 1 objektivt set denne forpligtelse ved sin skrivelse af 30. oktober 2003 til klagerens advokat, det vil sige 29 dage efter modtagelsen af den skriftlige anmodning om begrundelse. Påstanden tages derfor til følge.
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K2. Indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke inden 15 dage efter datoen for modtagelsen af klagerens skriftlige anmodning herom at have givet oplysninger om egenskaberne og de relative fordele ved det antagne tilbud fra J. H. Schultz Information A/S. | N-040902
BN Produkter Danmark | 4+K4 | C2A1-2.2=G2-7.1 | 4. Skrivelsen af 1. maj 2003 til indklagedes juridiske rådgiver, hvorved der blev anmodet om »at modtage nærmere redegørelse for pointberegningen vedr. tilbud på spande og minicontainere«, er ikke udformet så klart og præcist, at indklagede derved fik pligt til efter Indkøbsdirektivets artikel 7, stk. 1, at give klageren oplysninger om egenskaberne og de relative fordele ved tilbudet fra Joca A/S. Klagenævnet finder endvidere anledning til at bemærke, at indklagede ved skrivelsen af 26. maj 2003 med bilag til 2 3 4 19. klageren har givet de oplysninger, som er omfattet af pligten efter Indkøbsdirektivets artikel 7, stk. 1, såfremt klageren konkret havde været forpligtet efter artikel 7, stk. 1. Påstanden tages på denne baggrund ikke til følge.
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K4. Klagen tages ikke til følge vedrørende påstand 2, 3 og 4 og spørgsmål 7. | N-040323
Tolkeservice | 7-8+K1 | C2A1-1.2=S2-12.1 | 7. Den egentlige begrundelse for, at amtet ikke prækvalificerede klageren, var at amtet havde dårlige erfaringer med klageren. Det er en overtrædelse af Tjenesteydelsesdirektivets artikel 12, stk. 1, at amtet ikke oplyste klagerens advokat herom efter advokatens brev af 14. oktober 2003, i hvilket advokaten bad om en nærmere begrundelse for beslutningen om ikke at prækvalificere klageren.
8. Påstand 4 tages herefter til følge, dog med formulering som nedenfor.
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K1. Indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke efter anmodning fra klagerens advokat at have givet den rigtige begrundelse for indklagedes beslutning om ikke at prækvalificere klageren.
[Påstand 4 Klagenævnet skal konstatere, at indklagede har overtrådt Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke efter anmodning at have givet klageren den egentlige begrundelse for ikke at prækvalificere klageren, dvs. at klageren var særdeles godt kendt og bl.a. var uønsket på Skive Sygehus, idet klageren havde forsøgt at snyde med regningerne, ligesom sygesikringen havde haft uheldige oplevelser med klageren.] | N-030812
Skanska | 15+K5 | NPL2-12
NPL2BK2-14 | 15. Klagenævnet finder ikke anledning til at tage stilling til denne påstand.
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K5. Klagenævnet tager ikke stilling til påstandene 5, 6 og 7.
[Påstand 7 Klagenævnet skal konstatere, at Vejle Kommune har handlet i strid med tilbudslovens § 12 samt § 14 i Bekendtgørelse om indhentning af tilbud i bygge- og anlægssektoren (tilbudsbekendtgørelsen) ved ikke at have givet Skanska den korrekte begrundelse for ikke at antage Skanskas tilbud.] | N-021014
Informationsteknik Scandinavia | 14 | C2A1-2.2=G2-7.1-impl | 14. Det følger ikke – som klageren har anført – af Indkøbsdirektivets artikel 7, stk. 1, at en udbyder skal give en tilbudsgiver sådanne oplysninger, at den tilbudsgiver, hvis tilbud ikke er blevet antaget, ved at modtage begrundelsen bliver i stand til at vurdere lovligheden af udbyderens afgørelse af, hvilken tilbudsgiver der skal indgås kontrakt med. Det fremgår af artikel 7, stk. 1, at en ordregiver skal give en tilbudsgiver, hvis tilbud er taget i betragtning ved vurderingen af tilbudene på grundlag af tildelingskriteriet, men som ikke er blevet antaget som det tilbud, der skal danne grundlag for indgåelse af kontakt, oplysninger om »det antagne tilbuds egenskaber og relative fordele«. Da indklagede ved Kammeradvokatens skrivelse af 23. maj 2002 har opfyldt forpligtelsen efter artikel 7, stk. 1, tager Klagenævnet ikke denne påstand til følge.
[Påstand 4 Klagenævnet skal konstatere, at indklagede har handlet i strid med Indkøbsdirektivets artikel 7, stk. 1, ved ikke efter klagerens anmodning at have R1 3. givet klageren fyldestgørende oplysninger om egenskaberne ved tilbudet fra Dansk Video Center A/S.] | N-010427
Dansk Transport og Logistik | 13+K1 | C2A1-1.2=S2-12.1 | 13. Klagenævnet konstaterer i overensstemmelse med kommunens erkendelse, at kommunen har overtrådt Tjenesteydelsesdirektivet som beskrevet i påstanden.
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K1. Indklagede, Nykøbing Falster Kommune har overtrådt Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke inden den i denne bestemmelse foreskrevne frist efter anmodning at give tilbudsgiveren Renoflex A/S begrundelse i overensstemmelse med bestemmelsen for, at denne tilbudsgivers tilbud ikke var antaget.
[Sagsfremstillingen: Kommunen har erkendt rigtigheden af påstand 5, men har i øvrigt nedlagt påstand om, at klagen ikke tages til følge.
Påstand 5. Klagenævnet skal konstatere, at kommunen har overtrådt Tjenesteydelsesdirektivets artikel 12, stk. 1, ved ikke inden den i denne bestemmelse foreskrevne frist efter anmodning at give tilbudsgiveren Renoflex A/S begrundelse i overensstemmelse med bestemmelsen for, at denne tilbudsgivers tilbud ikke var antaget.] | N-001214
Renoflex | 1 | C2A1-1.2=S2-12.1 | 1. Den begrundelse indklagede, dels ved et afholdt møde, dels ved efterfølgende korrespondance, har meddelt klageren for beslutningen om at indgå kontrakt med Hans P. Olsens Vognmandsforretning A/S har været tilstrækkelig. Påstanden tages herefter ikke til følge.
[Påstand 1. Klagenævnet skal konstatere, at indklagede har handlet i strid med Tjenesteydelsesdirektivs artikel 12 ved ikke at give en fyldestgørende begrundelse for beslutningen om at indgå kontrakt med Hans P. Olsen Vognmandsforretning A/S.] | N-001009
DAPA | 7-8 | C2A1-1.2=S2-12.1-impl | 7. Klagenævnet har ikke fundet anledning til at vurdere, hvorvidt der i konsortiets anmodning om prækvalifikation manglede oplysninger vedrørende underentreprenøren K. I. Transport ApS. De indklagede henviste ikke i deres skrivelse af 31. maj 2000 til, at anmodningen fra konsortiet ikke indeholdt oplysninger om »faglige kvalifikationer på de ledende medarbejdere, der skal udføre tjenesteydelsen« (punkt D), uagtet dette forhold – sammen med det anførte under punkt B – begrundede, at de indklagede ikke tog anmodningen fra konsortiet i betragtning.
8. De indklagede anførte tværtimod den manglende tro og love-erklæring fra RPlus Recycling GmbH (punkt A) og den manglende oplysning om »kvalitetsstyringssystem « vedrørende DAPA ApS (punkt C), uagtet disse forhold ikke kunne begrunde, at anmodningen fra konsortiet ikke blev taget i betragtning. | N-991228
Skjortegrossisten | 6 | C2A1-2.2=G2-7.1-impl | 6. Indklagede burde i afslaget konkret have meddelt klageren, hvorfor tilbudet ikke kom i betragtning. Der burde som minimum være redegjort for om, og i givet fald hvorfor, afslag var meddelt som følge af ukonditionsmæssighed, f.eks. manglende opfyldelse af kravspecifikation, manglende kvalifikationer, f.eks., for få ansatte, eller manglende konkurrencedygtighed med fyldestgørende redegørelse for, hvorfor klagerens tilbud ikke var det økonomisk mest fordelagtige tilbud. | N-990308
Foreningen af Rådgivende Ingeniører | 7 | U2-na [U3-49.2.1-2] | 7. Kommunens skrivelse af 23. juni 1998 til ISC Rådgivende Ingeniører A/S indeholder ikke en dækkende redegørelse for, hvorfor denne tilbudsgiver ikke fik tildelt ordren. Efter indholdet af denne skrivelse må man tro, at denne tilbudsgivers tilbud er blevet bedømt på grundlag af tildelingskriterierne sammen med de andre tilbud, og at denne bedømmelse førte til, at dette tilbud ikke blev vurderet som det økonomisk mest fordelagtige. Den faktiske situation under udbudet var imidlertid, at kommunen efter at have modtaget svarene af 29. maj 1998 og 2. juni 1998 fra ISC Rådgivende Ingeniører A/S konkluderede, at tilbudet fra denne tilbudsgiver indeholdt forbehold vedrørende rådgiverkoordinatorens og byggelederens tilstedeværelse på kommunens projektkontor, og at disse forbehold var af en sådan beskaffenhed, at kommunen var berettiget og forpligtet til ikke at tage dette tilbud i betragtning. Kommunen har overtrådt EU–udbudsreglerne ved at give ISC Rådgivende Ingeniører A/S denne ukorrekte begrundelse. | N-990301
Enemærke & Petersen | 1 | W2-na [C3-2.noncom]
C2A1-3.2=W2-8.1 | 1. I henhold til Bygge– og anlægsdirektivets artikel 8, stk. 1, skal en udbyder efter anmodning inden 15 dage meddele bl.a. forbigåede tilbudsgivere begrundelsen for, at deres tilbud er forkastet. Heraf må følge, at hvis et tilbud er blevet forkastet, fordi det ikke er anset for konditionsmæssigt, må begrundelsen indeholde en henvisning til de konkrete forhold, der har bevirket vurderingen som ukonditionsmæssig, således at tilbudsgiveren får mulighed for at forholde sig til udbyderens vurdering. Den begrundelse, der blev givet i Rambølls brev af 20. januar 1998 til Enemærke & Petersen, indeholdt imidlertid ikke en angivelse af de konkrete forhold, der havde bevirket vurderingen som ukonditionsmæssig, og en sådan angivelse blev først meddelt Enemærke & Petersen ved fremlæggelsen for Klagenævnet i august 1998 af Rambølls og Domus’ notat af 20. januar 1998 og den senere fremlæggelse af Rambølls uddybende notat af 21. september 1998, dvs. længe efter udløbet af den 15–dages frist, der er fastsat i direktivets artikel 8, stk. 1. Boligforeningen har således overtrådt bestemmelsen, hvorfor der gives Enemærke & Petersen medhold i dette klagepunkt. | N-961009
ELFO | 5-6 | U2-na [U3-49.2.1-2]
ECT-249 [ex 189] | 5. Der har mellem parterne været enighed om, at det har påhvilet indklagede efterfølgende at give de virksomheder, som ikke blev prækvalificeret, en begrundelse for sin afgørelse. Klagerne har imidlertid gjort gældende, at den begrundelse, som indklagede gav i sin skrivelse af 15. februar 1996 ikke opfylder de krav med hensyn til detaljeringsgrad, som følger af almindelige EU-retlige regler vedrørende offentlige myndigheders pligt til at begrunde deres afgørelser. Den fortolkning af Forsyningsvirksomhedsdirektivets artikel 31, som Klagenævnet har lagt til grund for sin afgørelse vedrørende påstand 1, får betydning også ved Klagenævnets vurdering af, hvilke krav der kan stilles til en ordregivers begrundelse for, at en virksomhed alene på grund af en begrænsning af det antal virksomheder, der skal prækvalificeres, ikke er blevet prækvalificeret. Det er på denne baggrund Klagenævnets vurdering, at den begrundelse, som indklagede gav ved sin skrivelse af 15. februar 1996, opfylder de krav, der efter udbudsreglerne kan stilles til en ordregivende myndighed vedrørende afgørelser af denne beskaffenhed.
6. Klagenævnet tager derfor heller ikke klagernes påstand 2 til følge. |
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