22.2.2014   

EN

Official Journal of the European Union

C 52/43

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declare the application admissible and well founded;

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annul the decision of the Council of 29 October 2013 not to award Lot 4 of the contract for the ‘Purchase or hire of black and white multifunction printers (MFP) and associated maintenance services in the buildings occupied by the General Secretariat of the Council of the European Union — Reference Number 2013/S 83-138901’ to Ricoh Belgium NV, but to another undertaking;

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order the defendant to pay the costs.

1.

First plea in law, alleging infringement of the principle of transparency under Articles 15 TFEU and 298 TFEU, as well as under Article 102(1) of Regulation No 966/2012. (1)

Specifically, although nothing in that regard was mentioned in the relevant specification, the (speed of the) applicant’s printers was tested by the defendant from the moment of their start-up, and not from the moment at which they operate most efficiently. The measurements and values in the applicant’s tender therefore differ from those that follow from the test results, which are ultimately lower and thus produce an unfavourable score. The applicant is unable to verify whether its competitor’s machines were tested under the same (unfavourable) conditions. Moreover, the defendant, after completion of the tests for that award sub-criterion (Criterion C ‘Technical evaluation of the equipment on the basis of tests’), established a calculation and score and presented these to the applicant. That score (namely 41.2%) differs from the score ultimately included in the contested decision (namely 38.61%).

2.

Second plea in law, alleging breach of the duty to state reasons following from Article 113(2) of Regulation No 966/2012 and Article 161(3) of Delegated Regulation No 1268/2012, (2) as well as breach of the duty in tender procedures to award the contract to the most economically advantageous tenderer, as follows from Article 110(2) of Regulation No 966/2012 and Article 149(1)(b) of Delegated Regulation No 1268/2012.

In the further clarification subsequently provided to the applicant, the defendant stated that it had initially made a mistake and that the test results should have been compared against the standards set out in the specifications (copying and printing at 100 per minute) and not against the standards in the tender submitted by the applicant (copying and printing at 110 per minute).

Although the defendant explained the alleged correction in the final score by stating that the test results had to be assessed against a lower standard (comparison at 100 instead of 110), the applicant appears, for some incomprehensible reason, totally (mathematically) illogically — and also without a single specific calculation or justification — to have suddenly obtained a lower score (38.61 points as opposed to 41.2 points, whereas a higher score of 44.3 points would have been expected for a comparison made against the specification standards).

In view of the very small overall difference between both tenderers for Lot 4, namely 90.81 points for the other undertaking as against 89.67 points for the applicant, on a correct calculation the applicant ought therefore to have been designated as the most economically advantageous tenderer.