T-19/95

JUDGMENT OF 8. 5.1996 — CASE T-19/95

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (Fourth Chamber) 8 May 1996 *

In Case T-19/95,

Adia Interim SA, a company incorporated under Belgian law, having its registered office in Brussels, represented by Vincent Thiry, of the Liège Bar, Christian Jacobs, Rechtsanwalt, Bremen, Hans Joachim Prieß and Klaus Heinemann, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Tom M. Gilliams, 47 Grand-Rue,

applicant,

ν

response to invitation to tender N o 94/21/IX. C.l on the supply of agency staff had been rejected, and for annulment of the Commission's decision, communicated to the applicant on 21 December 1994, awarding the contracts in question to the companies Ecco, Gregg and Manpower,

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Fourth Chamber),

composed of: K. Lenaerts, President, P. Lindh and J. D. Cooke, Judges,

Registrar: B. Pastor, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 February 1996,

gives the following

2 Point 15 of the invitation to tender specifies the criteria for the award of the con- tracts as follows:

'— coverage of the different job and language profiles;

— organization, customer service, flexibility;

— price'.

3 The price was to be calculated in accordance with the instructions laid down in the specifications. O n the basis of the reference pay scales set out by the Commission, tenderers had to establish for each type of service, first, net hourly wages; secondly, gross hourly wages; and thirdly, an hourly billing rate. The latter constituted the tender price.

4 Net and gross hourly wages were to be expressed in Belgian francs, whereas the billing rates had to be expressed in ecus. Gross hourly wages were calculated by applying to the net hourly wages the relevant Belgian social security and tax pro- visions. In order to convert the gross hourly wages into billing rates, the tenderers had to determine a coefficient reflecting all their costs, their profit margins and a Belgian franc/ecu conversion rate.

9 In order to evaluate the price criterion, the selection committee used the following formula: it granted maximum points (40) to the lowest tender and then deducted five points from the other tenders depending on the percentage by which they exceeded the lowest tender. Thus tenders up to 5% more expensive than the lowest tender were given 35 points; those between 5 and 10% more expensive 30 points; those between 10 and 15% more expensive 25 points and so on down to a mini­ mum of 10 points. Since the prices proposed by the applicant exceeded the lowest tender by more than 50%, its tender was given only 10 points for the price crite­ rion, and fell from second to tenth position.

II - 327

JUDGMENT OF 8. 5.1996 — CASE T-19/95

10 The three tenders accepted by the Commission each obtained 73 or 74 points. The applicant's tender received 58 points (28 for the criterion of job coverage and lan- guage profiles, 20 for organization, customer service and flexibility and 10 for the price criterion).

1 1 It is undisputed that the selection committee was aware that there was a calculation error in the applicant's tender. Its minutes of 3 November 1994 state that 'the ten- der of Adia, although the present main contractor, has obtained a poor mark because the billing rates it gave diverge excessively from the average for the other tenders. The difference — of more than 50% — found in Adia's tender is due to a systematic error in the calculation of the billing rates on the basis of the gross hourly wages.'

12 By letter dated 5 December 1994, the Commission informed the applicant that its tender had been rejected in the following terms:

The procedure applied by the tender selection committee was as follows:

1. The committee analysed each tender in the same non-discriminatory way. This means in particular that the fact that a particular company had already had a con­ tract with the Commission did not place it at a. de facto advantage over the other tenderers.

2. As stated in the specifications, only three tenders were to be accepted, and not six as had previously been the case.

3. 22 tenders were received by the deadline, of which the committee dealing with the opening of tenders found that two were not in order.

4. Two of the 20 remaining tenders did not satisfy the conditions for participating in the tender set out in point 6 of the specification.

II - 329

7. O n the basis of that assessment, the selection committee adopted the tenders which had obtained the most points as being the most economically advantageous ones. These were the tenders of the companies Ecco, Gregg and Manpower.

Accordingly, the outcome of the invitation to tender and the non-acceptance of the tender by your company resulted solely from a strict application of competitive criteria. However, this outcome does not detract from the satisfaction which the Commission has had in working with your company under the previous frame- work agreement.'

II - 330

ADIA INTERIM ν COMMISSION

Procedure and forms of order sought by the parties

15 It was in those circumstances that the applicant brought these proceedings by application lodged at the Registry of the Court of First Instance on 7 February 1995.

— in the alternative, dismiss the application as unfounded in its three pleas;

— order the applicant to pay the costs.

II-331

JUDGMENT OF 8. 5.1996 — CASE T-19/95

The claim for annulment

18 The applicant raises three pleas in support of its application. The first two pleas, raised in the application, allege breach of the duty to state reasons, on the one hand, and infringement of the principle of equal treatment together with manifest error of assessment, on the other. The third plea, raised in the reply, alleges infringement of the principle of sound administration, of essential procedural requirements and of the second paragraph of Article 99(h) of Commission Regulation (Euratom, ECSC, EC) N o 3418/93 of 9 December 1993 laying down detailed rules for the implementation of certain provisions of the Financial Regulation of 21 December 1977 (OJ 1993 L 315, p. 1).

II - 332

ADIA INTERIM ν COMMISSION

based on matters of law or of fact which come to light in the course of the pro­ cedure.

22 There are two limbs to the third plea. In the first limb, the applicant argues that the invitation to tender published in the Supplement to the Official Journal infringes Article 99 of Regulation N o 3418/93 on the ground that it does not con­ tain most of the particulars required by that provision. In the second limb, it argues that the second paragraph of Article 99(h) of Regulation N o 3418/93, read in the light of the principle of sound administration, obliged the Commission to contact it in order to clarify the terms of its tender.

23 As far as the first limb of this plea is concerned, the Court finds that the applicant could have had cognizance, before it brought its action, both of the invitation to tender, to which it responded, and of Regulation N o 3418/93, which was published in the Official Journal of 16 December 1993 (OJ 1993 L 315). It follows that the first limb of the plea is not based on matters which came to light in the course of the procedure within the meaning of Article 48(2) of the Rules of Procedure and so must be declared inadmissible.

24 As far as the second limb of the plea is concerned, the Court considers that it should be declared admissible inasmuch as it is based on a relevant matter of fact which came to light in the course of the procedure, namely the fact that the selec­ tion committee was aware of the existence of a systematic calculation error in the applicant's tender. Since, however, in this second limb of the third plea the appli­ cant merely reiterates an argument set out in its second plea, the Court will con­ sider it when it assesses the second plea.

26 The applicant considers that it follows from this that, in order to determine whether the Commission complied with its duty to state the reasons on which its decision was based, the Court should take account only of the reasons set forth in the letter of 5 December 1994 and not of those contained in the letter of 21 Decem- ber 1994, which was late. Since it is undisputed that the letter of 5 December 1994 contains no reasons whatsoever, the applicant considers that the Court must con- clude that there has been an infringement of Article 190 of the Treaty.

27 Secondly, the applicant argues that, in any event, the reasons set out in the letter of 21 December 1994 must be regarded as inadequate, since they do not enable the precise grounds on which its tender was rejected to be identified. While the invi- tation to tender and the specifications set out three precise award criteria, the appli- cant considers that the letter of 21 December 1994 makes no reference to these and is based merely on a general reference to ‘the more economically advantageous' tenders of the three successful companies.

II - 334

ADIA INTERIM ν COMMISSION

28 The Commission states in response that it is clear from Article 12(1) of Directive 92/50 that it is entitled to give a reasoned decision only to eliminated tenderers who make an express request to that effect. It considers that that provision is applicable in this case by virtue of Article 126 of Regulation N o 3418/93, which provides that the Council directives on contracts for public works, supplies and services are to be applicable to the award of contracts by the institutions whenever the amounts involved are greater than the amounts provided for in those directives.

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 super­ visory jurisdiction (Case T-166/94 Koyo Seiko ν Council [1995] E C R II-2129, para­ graph 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' ν Commission [1994] E C R II-361, paragraph 29, and Joined Cases T-432/93, T-433/93 and T-434/93 Socurte and Others ν Commis­ sion [1994] E C R 11-503, 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.

— Arguments of the parties

38 The applicant puts forward two separate arguments in support of this plea. First, it argues that, in order to guarantee compliance with the principles of equal treatment and sound administration, the Commission was itself obliged either to correct the error which it had found or to contact the applicant in order to enable it to correct the error. In this context, the applicant avers that it is clear from the documents produced by the Commission during the proceedings that, if the formula 'billed hourly rates = gross hourly wages χ 2.16: 39.5' had been correctly applied, it would have obtained at least sufficient points under the price criterion to be classed in joint third place. In addition, it draws the Court's attention to the wording of Arti­ cle 99(h) of Regulation N o 3418/93, which in its view, confirms that a contracting institution may take it upon itself to contact a tenderer in order to correct obvious clerical errors. Lastly, at the hearing, the applicant based an argument on Article 37 of Directive 92/50, from which it appears that a contracting authority is not enti­ tled to reject a tender which appears abnormally low without requesting particu­ lars in writing on its make-up. It adds moreover that the Commission made a man­ ifest error of assessment in awarding it points for its flexibility and customer service by comparison with the points which it awarded under those heads to Ecco.

II - 337

JUDGMENT OF 8. 5.1996 — CASE T-19/95

39 The Commission responds by stating in the first place that if it had corrected the applicant's tender, that in itself would have constituted an infringement of the prin- ciple of equal treatment. It considers that corrections of clerical errors may be envisaged only in so far as they have no discriminatory effect. However, in view of the key importance played by the tender price in assessing the tender, any correc- tion of the applicant's tender or any request made to it to submit a new tender would have been bound to infringe the principle of non-discrimination.

ADIA INTERIM ν COMMISSION

tenderer after the tenders have been opened is prohibited save, exceptionally, 'if some clarification is required in connection with a tender, or if obvious clerical errors contained in the tender must be corrected'. In those cases, the institution may take it upon itself to contact the tenderer.

44 The Court considers that it is clear from the precise terms of that provision that it empowers the institutions to contact tenderers in the exceptional, limited circum­ stances which it identifies. It follows that that provision cannot be interpreted as imposing a duty on the institutions to contact tenderers.

45 Next, it is necessary to enquire whether, in this case, that power might nevertheless have given rise to a duty on the part of the Commission by virtue of the superior principles of law invoked by the applicant (see paragraph 42, above) having regard to the fact that the calculation error in question was particularly obvious.

46 As to that, the Court considers it sufficient to observe that the systematic calcula­ tion error in question was not particularly obvious. Whilst the selection committee succeeded in attributing the error to the 'calculation of the billing rates on the basis of the gross hourly wages' (see paragraph 11, above), it was unable for all that to determine, on the basis solely of the applicant's tender, whether the error was a calculation error made in applying the formula presented by the applicant, as it has maintained before the Court; an error in determining the coefficient for converting the gross hourly wages into billing rates, which, according to the specifications, takes in all the tenderer's costs, its profit margin and the Belgian franc/ecu conver­ sion rate (see paragraph 4, above); or simply a clerical error.

48 The Court further notes that the applicant has neither shown nor even alleged that the Commission contacted, in the course of the procedure at issue, other tenderers who were in a comparable situation to its own in order to correct any errors in their tenders or to provide additional information. In this connection, the Court observes that it appears from Annexes 7(d) and 9 to the report to the C C A M that the selection committee used, as an assessment criterion, the clarity and precision of the tenders and penalized some tenders because they were insufficiently precise about the quality of the service which the tenderers undertook to provide. Yet, whilst those tenderers were in a situation comparable to that of the applicant in so far as they could have increased the value of their tenders if the Commission had taken it upon itself to contract them in order to obtain explanations, the Court finds that the report to the C C A M and the documents appended thereto do not mention any contact made by the Commission with tenderers, but confirm that the Commission strictly applied the conditions of the tendering procedure.

49 Lastly, the Court considers that the Commission did not commit a manifest error in assessing the applicant's organizational ability. In this regard, the Court recalls that the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious and manifest error (Case 56/77 Agence Européenne d'Intérims ν Commis­ sion [1978] E C R 2215, paragraph 20). In this case, the Court finds, with regard to the points awarded to the applicant for its customer service, that it is undisputed that the applicant's tender — unlike that of Ecco — made no reference to the qual­ ity of the customer service which it undertook to provide and hence the Commis­ sion made no manifest error of assessment in giving Ecco three points more than

Costs

53 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Com­ mission.

II - 341

JUDGMENT OF 8. 5.1996— CASE T-19/95

O n those grounds,

T H E C O U R T O F FIRST INSTANCE (Fourth Chamber)

Registrar President

II - 342