Case T‑741/17

Trasys International EEIG
and
Axianseu — Digital Solutions SA

v

European Aviation Safety Agency

 Judgment of the General Court (Third Chamber), 10 September 2019

(Public service contracts — Tender procedure — IT application and infrastructure management services — Rejection of a tenderer’s offer and award of the contract to other tenderers — Obligation to state reasons — Assessment of the existence of abnormally low tenders — Characteristics and relative merits of the tenders accepted — Request for a statement of reasons from a tenderer who is not in an exclusion situation and whose tender is compliant with the procurement documents)

1.      European Union public contracts — Conclusion of a contract following a call for tenders — Abnormally low tender — Obligation of the contracting authority to hear from the tenderer — Examination by the awarding authority of the abnormally low character of the tender — Assessment in two stages — Elements to be taken into consideration

(Commission Regulation No 1268/2012, Arts. 151 and 276(4))

(see paragraphs 40, 42-46)

2.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative merits of the tender accepted and the name of the successful tenderer — Obligation to inform the unsuccessful tenderer, where there is evidence arousing an initial suspicion that a successful tenderer’s prices are abnormally low, of the reasons why such doubts were dispelled — Assessment having regard to information available to the applicant at the time the action was brought — Correction of an error of reasoning during the proceedings before the Court — Not permissible

(Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2) and (3)(a), as amended by Regulation 2015/1929)

(see paragraphs 48-54)

3.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Rejection based on the abnormally low character of the tender — No explanations supporting the decision — Unlawful

(Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2) and (3), as amended by Regulation 2015/1929; Commission Regulation No 1268/2012, Arts 151(1) and 161(2), as amended by Regulation 2015/2462)

(see paragraphs 57-59, 62-65, 69, 76, 88)

4.      European Union public contracts — Tender procedure — Decision not to accept a tender — Transparency in the context of the obligation to state reasons — Application coherent with Regulation No 1049/2001 regarding access to documents

(European Parliament and Council Regulations No 1049/2001 and No 966/2012, Art. 102 (1))

(see paragraph 84)

Résumé

In the judgment in Trasys International and Axianseu — Digital Solutions v EASA (T‑741/17), delivered on 10 September 2019, the General Court annulled the decision of the European Aviation Safety Agency (EASA) awarding a public contract, on the ground that its statement of reasons was inadequate as regards the reasons which led it to conclude that the successful tenders were not abnormally low.

In the present case, EASA rejected the tender submitted by Trasys International and Axianseu — Digital Solutions SA (‘the applicants’) in a call for tenders relating to a public services contract concerning IT application and infrastructure management in Cologne (Germany), and awarded that public contract to three other tenderers. The applicants disputed the result of the tender procedure and requested that EASA suspend the signing of the framework contract on the ground that the prices proposed by the successful tenderers must have been abnormally low, particularly in view of the fact that the services were to be provided in Cologne. The applicants criticised EASA for having failed sufficiently to state its position on that point in the statement of reasons for its decision. Indeed, EASA had merely disclosed certain documents of which large parts had been obscured, claiming that long sections of the evaluation report and of other documents on which its decision was based were confidential. Nevertheless, after the action was brought before the Court, EASA provided the European Ombudsman with a detailed, appropriate and more comprehensive response.

First, as regards the content of the statement of reasons, the Court pointed out that, in accordance with Article 113(3)(a) of the Financial Regulation, (1) if there is evidence likely to arouse suspicion of the existence of abnormally low tenders, (2) the contracting authority is required to inform the unsuccessful tenderer of the reasons why the tender it accepted does not appear to it to be abnormally low, if the unsuccessful tenderer has made an express request in that regard.

Second, as regards the time limit within which the statement of reasons must be provided, the Court pointed out that the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him. It stated that the explanation provided by EASA to the European Ombudsman could not be taken into account because, in the absence of exceptional circumstances, the question of whether the obligation to state reasons has been fulfilled must be assessed in the light of the information available to the applicant, at the latest, when the action was brought.

Third, in respect of the scope of the statement of reasons required as regards the assessment of the existence of abnormally low tenders, the Court held that the purpose of the obligation, under Article 296 TFEU, to state the reasons for an individual decision is, in addition to permitting review by the Courts, to disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to provide them with sufficient information to make it possible to determine whether the decision is vitiated by an error enabling its validity to be challenged.

In this case, the Court held that the information provided by EASA to the applicants was either irrelevant or incomplete. EASA could not rely the confidentiality of the documents in order to avoid its obligation to state reasons. Indeed, allowing access to the documents is not the only way to disclose the information required to establish that the statement of reasons was sufficient. The alleged confidentiality of certain documents does not prevent the contracting authority from rewording, in a more abstract manner, the reasons why it took the decision not to exclude the tenderers concerned from the procurement procedure on account of abnormally low prices. The Court considered that EASA should have taken into account both the principle of transparency and the principle of the protection of legitimate business interests of undertakings and fair competition, since those objectives must be reconciled with each other in order to ensure the coherent application of the Financial Regulation and of Regulation No 1049/2001. (3)

In its response to the European Ombudsman, EASA provided evidence that it was possible to give a more comprehensive statement of reasons without disclosing protected information or details. The Court found, therefore, that an adequate explanation could have been provided in due time, but was not provided within a reasonable period.

1      Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), as last amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1).

2      The assessment of the existence of abnormally low tenders is one of the factors that the contracting authority is required to verify according to Article 151 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), as amended by Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7).

3      Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).