Judgment of the General Court (Seventh Chamber) of 15 March 2012 — Evropaïki Dynamiki v Commission
(Case T-236/09)
Public service contracts — Tendering procedure — External service provision for development, studies and support of information systems — Rejection of a tenderer’s bids — Duty to state reasons — Equal treatment — Transparency — Manifest error of assessment — Non-contractual liability
1. Public contracts of the European Union — Tender procedure — Period of validity of tenders — Purpose — Possibility of the tendering authority asking tenderers for an extension of validity — No obligation on tenderers to accept the request — No obligation on tenderers to accept the request — No obligation to annul the procedure in the event of refusal (Commission Regulation No 2342/2002, Art. 130(2)(c)) (see paras 37-40)
2. Public contracts of the European Union — Tender procedure — Award of contracts — Exclusion of tenderers seriously in default of their obligations under another contract — Condition — Tenderers having been subject to an administrative penalty under Article 96(1) of the Financial Regulation (Council Regulation No 1605/2002, Arts 93(1)(f), 94 and 96(1); Commission Regulation No 2342/2002, Art. 134b) (see paras 50-51)
3. Public contracts of the European Union — Tender procedure — Right for undertakings established in countries which are not signatories of the agreement on public contracts, or which use sub-contractors established in those countries, to participate in tendering procedures — Lawfulness (Council Regulation No 1605/2002, Arts 106 and 107) (see para. 55)
4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the award of a public contract, not to accept a tender — Assessment by reference to the circumstances of the particular case (Art. 253 EC; Council Regulation No 605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 76-80)
5. Public contracts of the European Union — Conclusion of a contract following a call for tenders — Discretion of the institutions — Decision requiring a complex technical assessment — Judicial review — Limits (see paras 88, 111)
6. Procedure — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Mere allegation not supported by factual or legal explanations — Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 114-115)
Re:
APPLICATION, first, for annulment of the Commission’s decisions of 27 March 2009 rejecting the applicant’s tenders for, respectively, lot 1, ‘On-site development expertise (intra muros)’, and lot 2, ‘Off-site development (extra muros)’, in Call for Tenders RTD-R4-2007-001 on external service provision for development, studies and support of information systems for the Commission (OJ 2007 S 238), and the decisions to award the lots to other tenderers and, second, for damages.
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and those incurred by the European Commission.
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