EU General Court rejects appeal against Commission contract award decision

Wednesday December 21st, 2011

Daradjeet Jagpal, Solicitor at Harper Macleod LLP

The EU General Court has rejected Greek company European Dynamics’ appeal against the rejection of its tender by the European Commission on the basis there had been no errors in the tender evaluation.

The European Commission issued a call for tenders for content interoperability technologies for European eGovernment services. European Dynamics was unsuccessful and brought an action before the EU General Court seeking the setting aside of the Commission’s rejection of its tender submission and its decision to award the contract to another tenderer.

The Court noted that the Commission can exercise a broad discretion when assessing the factors to be taken into account at the contract award stage, and that the Court must restrict itself to only considering whether the procurement rules have been complied with and verifying that there has been no manifest error in assessment or misuse of powers on the Commission’s part.

European Dynamics claimed the Commission had made manifest errors of assessment in evaluating its tender submission against the qualitative award criterion. The Court found that the Commission had not committed any such errors and was entitled to conclude that European Dynamics’ tender submission did not meet the tender specifications. In particular:

  • The fact that European Dynamics had complied with the tender specifications was not, of itself, enough to merit a mark above the threshold.
  • The Commission did not make an error of assessment where European Dynamics’ proposals in relation to one award criterion had been set out in parts of its tender submission which related to a different qualitative award criterion.
  • The Commission did not err in not considering appendices which did not relate to the criterion in question and for not taking into account selection criteria at the award stage.
  • While the Commission and European Dynamics disagreed on the management of guidelines on semantic interoperability, this related to European Dynamics’ proposal and not the evaluation of European Dynamics’ tender submission.
  • European Dynamics had not provided any evidence to suggest that the Commission’s internal review of the contract award was flawed.

European Dynamics also argued that the Commission had not provided any information in relation to the merits of the successful bid. The Court noted that the Commission was required to inform unsuccessful bidders of the reasons for rejection and the characteristics and relative advantages of the successful tender, together with the identity of the successful tenderer. The Court found that the Commission had met these requirements.

Finally, European Dynamics claimed that the Commission had misused its powers in assessing its tender submission, particularly because European Dynamics had formerly brought proceedings before the European Ombudsman and the courts. The Court found that European Dynamics had not submitted any evidence to demonstrate that the Commission had exercised its powers in this case for any purpose other than that for which they were granted and that the Commission had not exercised any bias when taking the contract award decision.

The decision is interesting and represents an endorsement, at the EU level, of decisions which national courts have issued in similar circumstances. It reinforces the message that the courts are reluctant to interfere with a contracting authority’s award decision unless it can be shown that the contracting authority made a manifest error in the application of the procurement rules and did not follow the procedures set out in the tender documentation when assessing tender submissions.

Daradjeet Jagpal is a solicitor at Harper Macleod LLP and can be contacted on daradjeet.jagpal@harpermacleod.co.uk

www.harpermacleod.co.uk

 

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