Case T‑376/21

Instituto Cervantes

v

European Commission

Judgment of the General Court (Third Chamber), 14 June 2023

(Public supply contracts – Tendering procedure – Provision of language training for the institutions, bodies and agencies of the European Union – Ranking of a tenderer in the cascade procedure – Obligation to state reasons – Documents in the tender accessible via a hypertext link – Manifest errors of assessment – Misuse of powers)

1. Action for annulment – Time limits – Point from which time starts to run – Tendering procedure – Communication of characteristics and advantages of the highest-ranked tender – Condition – Request for a reasoned decision within a reasonable time

   (Art. 263, sixth paragraph, TFEU)

   (see paragraphs 32-34)

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 on the contracting authority to notify, on written request, the characteristics and relative advantages of the tender accepted and the name of the successful tenderer – Obligation to provide a detailed summary as to how every detail of the rejected tender was taken into account for assessment purposes, or a detailed comparative analysis of the accepted tender and the unsuccessful tender – None

   (Art. 296, second paragraph, TFEU)

   (see paragraphs 63-68)

3. Acts of the institutions – Statement of reasons – Obligation – Scope – Appreciable difference between the scores awarded to the technical tenders – Stricter obligation to state reasons – None – Obligation to provide reasons reflecting the actual conduct of the evaluation procedure – Included

   (Art. 296, second paragraph, TFEU; European Parliament and Council Regulation 2018/1046, Art. 113(2))

   (see paragraphs 96, 97)

4. European Union public contracts – Tendering procedure – Rules for submission of tenders – Obligation to upload the tender directly to the eSubmission platform – Guarantee that tenders are submitted via a secure application – Guarantee of compliance with the principle of equal treatment by ensuring that the contracting authority keeps control of the documents submitted – Possibility for a tenderer to include in its tender hypertext links leading to a document on a website under its control – Not permissible

   (see paragraphs 140-142)

5. European Union public contracts – Tendering procedure – Obligation to comply with the principle of equal treatment of tenderers – Scope – Possibility for tenderers to submit documents required which they have not sent within the time limit given for the submission of offers – Not permissible – Obligation on the Commission to ask a tenderer to resubmit the documents that had been made accessible via hypertext links – None

   (see paragraph 147)

Résumé

By a contract notice of 20 November 2020, the European Commission launched an open call for tenders relating to language training for the institutions, bodies and agencies of the European Union. The contract was divided into eight lots, including Lot 3, entitled ‘Language learning in Spanish’. According to the specifications for the tendering procedure at issue, the contracting authority would award the contract on the basis of the most economically advantageous tender. The rules on the submission of tenders, in the tender specifications, provided, inter alia, that tenders had to be submitted via the eSubmission application.

On 19 April 2021, pursuant to the recommendations of the evaluation committee, the Commission adopted the contested decision. It accordingly awarded Lot 3 (Spanish language) of the contract in first place to the consortium CLL Centre de Langues-Allingua (‘the CLL consortium’) and in second place to the applicant, Instituto Cervantes.

In the tendering procedure, the applicant had submitted via the eSubmission platform certain documents which illustrated the technical proposal described in its tender, and which were accessible only via hypertext links incorporated in the tender. In the tender evaluation grid, the Commission informed the applicant that it had rejected those documents and had not evaluated them, on the grounds that they were not compliant with the tender specifications and that there was a risk that the tender could be modified by means of those hypertext links after the deadline for the submission of tenders. The Commission accordingly found that the documents that were accessible only via those hypertext links were missing.

Hearing an action for annulment of the contested decision, which it has dismissed in its entirety, the General Court rules on the novel question of whether tenderers may use hypertext links to submit documents forming part of their tenders, where that method of communication was not provided for in the specifications, and on the consequences of such use at the stage of evaluating the tenders and awarding points.

Findings of the Court

In the first place, the Court rejects the pleas in law alleging breach of the duty to state reasons.

First, it dismisses the argument that it was impossible to ascertain the relative advantages of the successful tender. It finds that, although the evaluations for some of the sub-criteria are succinct, (i) it can be seen that the tender of the CLL consortium contains a number of aspects that are superior to those of the applicant’s tender; (ii) the standard of quality of the applicant’s tender is knowable, and is lower; (iii) it must be borne in mind that the incomplete documentation, which relates to a key component of a language course, namely the exercises, is presented as a weakness in the applicant’s tender which led to a loss of points. Similarly, since the incomplete documentation was not the only shortcoming that justified the loss of points in the evaluation of the applicant’s tender, the Court dismisses the argument alleging a manifest error of assessment relating to the lack of a coherent correlation between that assessment and the score awarded.

Second, the Court dismisses the complaint alleging that it was impossible to ascertain the exact number of points deducted as a result of the incomplete documentation. It finds that the tender specifications did not establish a weighting for the various components forming part of the description of each sub-criterion, because these were not ‘sub-sub-criteria’ intended to be evaluated separately but were descriptive of the content of each sub-criterion. Accordingly, it was not necessary to attach a specific weight to each positive or negative comment in the evaluation, but instead to ensure that the applicant could understand the reasons that led the Commission to award its tender the score given for each sub-criterion, which it was indeed able to do. The Court finds that the evaluation committee indicated the relative advantages of the successful tender under each sub-criterion and that in the present case the Commission cannot be required to assign a specific weight to each positive or negative comment relating to the various components within the description of each sub-criterion.

In the second place, the Court dismisses the plea in law alleging a manifest error of assessment resulting from the fact that the link between the evaluation of certain sub-criteria and the score awarded is irrational, disproportionate and non-transparent. Accordingly, in respect of the allegation that the principle of transparency was breached because the specific weight given to a component of the criterion affected by the incomplete documentation was not indicated in the contract documents, the Court observes that the incomplete documentation was not the only shortcoming justifying the loss of points. The deduction therefore cannot be described as manifestly inconsistent with the shortcomings identified.

Moreover, the specific importance attached to a component of the tender and the award of points for each sub-sub-criterion or each component of a sub-criterion fall within the broad discretion available to the Commission. The Court therefore cannot review the importance, as such, attached to particular components in relation to a sub-sub-criterion, and merely reviews whether a manifest error of assessment has been established. In the present case, the applicant has not demonstrated a manifest error of assessment, since the incomplete documentation identified by the Commission related to a significant component of a language course and could legitimately give rise to a deduction of points, while the deduction of points has not been shown to be manifestly incorrect.

In the third place, the Court dismisses the third plea, alleging a manifest error of assessment as a result of the exclusion of components of the tender that were accessible via a hypertext link.

According to the terms of the tender specifications, the ‘tender’ had to be uploaded directly to the eSubmission platform and only documents for which that process was followed formed part of the tender. In line with the objective pursued by means of the eSubmission application, of facilitating the submission of tenders via a secure application, the applicant was therefore not entitled to submit certain parts of its tender via hypertext links leading to a document accessible on a website under the control of the tenderer. The Commission cannot therefore be criticised for not taking into account the documents obtained via the hypertext links in question.

Moreover, the Court notes that submission via that secure application enables compliance with the principle of the equal treatment of tenderers since it ensures that the contracting authority can keep control of the documents submitted to it. It therefore guards against any risk of documents being modified where they are accessible only via a hypertext link and therefore have not been uploaded directly in the eSubmission application. The Court accordingly infers that a reasonably well-informed tenderer exercising ordinary care is, in that context, in a position to know that it must submit its tender within the deadline given and that it can no longer modify the tender after that deadline. Such a tenderer cannot therefore infer from the tender specifications in question that it is permissible to include in its tender hypertext links in its tender which lead to a document accessible on a website under its control.

Furthermore, since the applicant was not permitted to include hypertext links in its tender, the Commission was not obliged either to verify whether the documents in question had been modified or to accept those documents. In any event, those documents were on a website under the control of the tenderer and the evidence provided by the applicant seeks to demonstrate that the documents in question were not modified, not that they could not be modified.

Lastly, the argument alleging infringement of the right to be heard cannot succeed because, although tenderers must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision, that right is safeguarded at the time they submit their tenders, and by the fact that tenderers can request clarifications about the provisions of the tender specifications. The fact that no subsequent stage is envisaged in which to provide supplementary explanations, after the tenders have been evaluated, therefore cannot amount to an infringement of the right to be heard.

In the fourth place, the Court rejects the plea in law alleging, in essence, that the Commission failed to discharge its obligation to compare the technical proposal of the CLL consortium with the applicant’s technical proposal. There is in fact nothing to suggest that the Commission did not comply with the requirement to identify the ‘most economically advantageous’ tender on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment, with a view to ensuring an objective comparison of the relative value of the tenders. The CLL consortium’s tender was evaluated by the committee in the light of the technical award criteria contained in the tender specifications, as was the applicant’s tender.

In the fifth place, the Court dismisses the plea in law alleging, in essence, that by awarding all the lots of the contract for language training to a single service provider, that is to say, the CLL consortium, the Commission improperly implemented a practice as a result of which it disregarded the objective pursued by the public procurement legislation of achieving the widest possible opening up of the markets of the EU institutions to competition.

A contracting authority cannot be precluded from awarding all the lots under a public contract to the same tenderer, provided that its tenders were the most economically advantageous compared with all the other tenderers and provided the principle of equal treatment as between tenderers was upheld, with the aim of ensuring healthy and effective competition between the participants in the procurement procedure in question.

The Court also recalls that the requirement of impartiality is twofold. It encompasses, first, the subjective impartiality of the members of a body, in so far as no member of the body concerned may show bias or personal prejudice (impartiality which is presumed in the absence of evidence to the contrary), and, second, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the body concerned. In the present case, first, it has not been claimed that the members of the committee were biased and, second, it has not been shown that the absence of an obligation to evaluate the quality of the technical tender before the price resulted, inter alia, in a breach of the principle of equal treatment.