JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

8 October 2025 (*)

( Public supply contracts – Tendering procedure – IT Consultancy for EIB-specific Applications – Rejection of a tenderer’s bid – Abnormally low tender – Obligation to state reasons – Manifest error of assessment – Proportionality )

In Case T‑161/24,

NTT Data Belgique, established in Brussels (Belgium),

Sopra Steria PSF Luxembourg SA, established in Leudelange (Luxembourg),

UniSystems Luxembourg Sàrl, established in Bertrange (Luxembourg),

Netcompany – Intrasoft, established in Ixelles (Belgium),

represented by M. Troncoso Ferrer, L. Lence de Frutos and N. Korogiannakis, lawyers,

applicants,

v

European Investment Bank (EIB), represented by T. Gilliams, K. Carr, C. Solazzo and P. Alegria Torrellas, acting as Agents, and by H. Plancke and D. Degrande, lawyers,

defendant,

THE GENERAL COURT (Seventh Chamber),

composed, at the time of the deliberations, of K. Kowalik-Bańczyk, President, I. Dimitrakopoulos (Rapporteur) and B. Ricziová, Judges,

Registrar: P. Cullen, Administrator,

having regard to the order of 6 June 2024, NTT Data Belgique and Others v EIB (T‑161/24 R, not published, EU:T:2024:364),

having regard to the written part of the procedure,

further to the hearing on 15 May 2025,

gives the following

Judgment

1        By their action under Article 263 TFEU, the applicants, NTT Data Belgique, Sopra Steria PSF Luxembourg SA, UniSystems Luxembourg Sàrl and Netcompany – Intrasoft, seek annulment of the decision of the European Investment Bank (EIB) of 4 March 2024, by which it rejected the tender which the OMNIA consortium (‘the consortium’), formed by the applicants, had submitted in the public procurement procedure for the call for tenders under the reference CFT‑1699, entitled ‘IT Consultancy for EIB-specific applications (TAILOR)’ (‘the call for tenders CFT‑1699’), on the ground that the tender was abnormally low (‘the contested decision’).

 Background to the dispute and events subsequent to the bringing of the action

2        On 28 December 2022, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2022/S, 250-729581), the Commission issued the call for tenders CFT‑1699.

3        The purpose of the call for tenders CFT‑1699 was the award of a framework agreement to up to five successful tenderers for the provision of IT consultancy services. The duration of the framework agreement was set at four years, tacitly renewable up to two times for a one-year period, for a total of 72 months. The estimated value of the contract was EUR 195 000 000 net of value added tax (VAT).

4        On 3 April 2023, the consortium submitted a tender in the framework of the call for tenders CFT‑1699. The consortium was one of the 15 tenderers which submitted a tender for the framework agreement referred to in paragraph 3 above within the deadline.

5        On 1 September 2023, the EIB sent the consortium a request for clarifications concerning certain of the proposed prices (‘the request for clarifications’) on the ground that they appeared to be abnormally low. The EIB referred in the request, in essence, to the daily rates for the profiles quoted by the consortium, stating that it questioned the consortium’s ability, first, to source and provide the EIB with the required resources in terms of seniority levels, language and technical skills and, second, to provide the services at the various locations listed in the call for tenders, bearing in mind that the framework agreement did not guarantee any minimum volumes of service and that the rates quoted by the consortium were maximum rates. It also requested that the consortium provide it with certain specific items of information.

6        On 8 September 2023, the consortium replied to the request for clarifications.

7        On 4 March 2024, the EIB adopted the contested decision and notified it to the consortium. The decision stated that the explanations provided by the consortium on 8 September 2023 were inadequate and did not satisfactorily account for the low level of certain of the prices offered, thus rendering its tender unreliable and likely to impair the proper performance of call-off contracts under the framework agreement.

8        Subsequently, on 13 and 20 March 2024, the consortium sent two clarifying letters to the EIB, in particular asking it to reconsider its position and to annul the contested decision and, alternatively, to provide it with the reasons on which that decision was based. The EIB acknowledged receipt of both letters and indicated that it would reply to them in due course.

 Forms of order sought

9        The applicants claim that the Court should:

–        annul the contested decision;

–        order the EIB to pay the costs.

10      The EIB contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

 Preliminary observations

11      As a preliminary matter, it should be observed that when the EIB concludes public contracts for its own account, it is subject both to the relevant provisions of the FEU Treaty and the general principles of law and to the provisions of the EIB’s Corporate & Technical Assistance Procurement Guide – Guide for the procurement of services, supplies, works and concessions managed by the EIB (‘the EIB Procurement Guide’), as interpreted in the light of the principles which those provisions are intended to put into effect and, where appropriate, the provisions of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), to which point 5.1.3 of that guide refers, in particular Article 69(1) to (3) of that directive, relating to abnormally low tenders (see, by analogy, judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraph 93).

12      Article 69(1) to (3) of Directive 2014/24 provides as follows:

‘1.      Contracting authorities shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services.

2.      The explanations referred to in paragraph 1 may in particular relate to:

(a)      the economics of the manufacturing process, of the services provided or of the construction method;

(b)      the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the supply of the products or services or for the execution of the work;

(c)      the originality of the work, supplies or services proposed by the tenderer;

(d)      compliance with obligations referred to in Article 18(2);

(e)      compliance with obligations referred to in Article 71;

(f)      the possibility of the tenderer obtaining State aid.

3.      The contracting authority shall assess the information provided by consulting the tenderer. It may only reject the tender where the evidence supplied does not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph 2.

Contracting authorities shall reject the tender, where they have established that the tender is abnormally low because it does not comply with applicable obligations referred to in Article 18(2).’

13      As regards the assessment by the EIB of the existence of abnormally low tenders, it is made in two stages. In the first stage, the EIB determines whether the price or costs proposed in a tender ‘appear’ to be abnormally low. In that context, the EIB need only determine whether the tenders submitted contain evidence likely to arouse suspicion that they might be abnormally low. That is the case in particular where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price. In the second stage, if there is evidence which arouses suspicion that a tender may be abnormally low, the EIB must check the composition of the tender in order to ensure that it is not in fact abnormally low. Where it carries out that check, the EIB must give the tenderer concerned the opportunity to set out the reasons why it considers that its tender is not abnormally low. The EIB must then assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected (see, to that effect and by analogy, judgment of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission, T‑546/20, EU:T:2021:846, paragraphs 47 to 49 and the case-law cited).

14      It is essential that each tenderer suspected of submitting an abnormally low tender should have the opportunity effectively to state its point of view in that respect, by giving it the opportunity to supply all explanations as to the various elements of its tender at a time when it is aware not only of the fact that its tender has appeared abnormally low, but also of the precise points which have raised questions on the part of the contracting authority (see, to that effect, judgement of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 53). The assessment of that information and those explanations must be carried out in compliance with the principles of equal treatment and non-discrimination between tenderers, and the principles of transparency and proportionality (judgment of 10 September 2020, Tax-Fin-Lex, C‑367/19, EU:C:2020:685, paragraph 34).

 Substance

15      In support of their action, the applicants rely on three pleas in law, in essence alleging, first, a manifest error of assessment, second, infringement of the principle of proportionality and, third, infringement of the duty to state reasons and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

16      It is appropriate to examine the third plea, concerning the obligation to state reasons and Article 47 of the Charter, before the other pleas.

 The third plea, alleging infringement of the obligation to state reasons and of Article 47 of the Charter

17      According to the applicants, the contested decision does not provide a comprehensive explanation for its conclusion regarding the credibility of the on-site daily rates detailed in the consortium’s tender. In that regard, the applicants submit that the absence of any precise reasoning in the contested decision and, more specifically, of the reason why the evidence they submitted does not satisfactorily account for the costs included in the tender leads the consortium to try to conjecture what the EIB is accusing it of, which infringes the obligation to state reasons and also Article 47 of the Charter. According to the applicants, in order for a contracting authority to comply with the obligation to state reasons it must necessarily inform tenderers of the exact allegations against them. Accordingly, the EIB should have informed them, before adopting the contested decision, (i) of the profiles which it considered to be problematic and (ii) of the reasons for that assessment.

18      In that regard, the applicants add that the EIB failed to explain in its request for clarifications why it specifically considered the on-site rates they proposed to be abnormally low. Accordingly, the EIB infringed their rights of defence, enshrined in Article 47 of the Charter, since they were not in a position to show fully and effectively that the tender was genuine following the request for clarifications, since the latter lacked specific information.

19      In their reply, the applicants claim that they learned for the first time in the defence that the EIB had used a specific – purportedly objective and non-discriminatory – method to identify abnormally low tenders. They submit that that methodology had not been provided to the bidders before the submission of their tenders. They state that if the consortium had received such an argumentation or methodology before the adoption of the contested decision, it would have been in a position to express its concerns as to the validity of the methodology used by the EIB, to refute it, and to provide further justification in order ultimately to alter the assessment of the tender at issue. In that context, according to the applicants, the EIB also infringed the principles of foreseeability and legal certainty and disregarded the principles of transparency and equal treatment inasmuch as, according to the case-law, tenderers must be able to predict the requirements and assessment criteria in order to prepare their tenders accordingly. The applicants thus submit that the EIB does not clearly explain that methodology in the defence, presenting the elements that it took into account in order to conclude that the consortium’s tender was abnormally law in a confusing manner. They observe in that regard that the EIB, in its written pleadings before the Court, merely mentions ex post that it took certain factors into account, without explaining the points or weighting associated with those factors for concluding that a tender was abnormally low.

20      The EIB disputes the arguments put forward by the applicants.

21      As regards the obligation to state reasons, it should be observed, first, that the second paragraph of Article 296 TFEU provides that legal acts of the European Union are to state the reasons on which they are based and, second, that Article 41 of the Charter establishes the right to good administration and lays down, in paragraph 2(c) thereof, the obligation of the institutions, bodies, offices and agencies of the European Union to give reasons for their decisions.

22      According to settled case-law, that obligation to state reasons means that the authority adopting a measure must disclose in a clear and unequivocal fashion the reasoning underlying that measure so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013; Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 16 May 2019, Transtec v Commission, T‑228/18, EU:T:2019:336, paragraph 91).

23      The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the provisions of primary law referred to in paragraph 21 above must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116).

24      More specifically, as regards the obligation on a contracting authority to state reasons when it decides that a bidder’s tender should be rejected as abnormally low, the contracting authority is required, first, to carry out a detailed analysis of that tender in order to determine that it is in fact abnormally low and, second, to inform the unsuccessful tenderer of the broad outlines of that analysis (see, by analogy, judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium, C‑101/22 P, EU:C:2023:396, paragraph 82).

25      Any other interpretation would deprive the unsuccessful tenderer of its right to an effective remedy guaranteed in Article 47 of the Charter, inasmuch as it would be impossible for the tenderer to assess the merits of the contracting authority’s decision if the latter could merely state peremptorily and without putting forward any justification to the effect that the price of the rejected tender was abnormally low (see, by analogy, judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium, C‑101/22 P, EU:C:2023:396, paragraph 83).

26      In the present case, it should be observed that the EIB first examined whether it had received tenders which appeared to be abnormally low; it then asked the applicants to demonstrate that their tender was genuine by sending them the request for clarifications referred to in paragraph 5 above, and, lastly, after receiving the consortium’s response to that request, it assessed the information and clarifications that had been provided and found that the consortium had not adequately justified the ‘normality’ of the prices for certain profiles.

27      More specifically, the EIB, first of all, stated as follows in the request for clarifications of 1 September 2023:

‘…

According to public procurement law the EIB is required to investigate the prices proposed by an economic operator where they appear to be abnormally low. This is to ensure that (i) economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international provisions to that end and that (ii) the prices proposed includes all the costs generated by the technical aspects of the tender.

When reviewing your financial offer, the Evaluation Committee found that the daily rates for the profiles that you have quoted in Annex C – Pricing Form and consequently the total annual price scenario appear to be abnormally low. The Evaluation Committee, therefore, questions the feasibility to (i) source and provide to the EIB the resources with seniority levels, language and technical skills required in this call for tenders and (ii) to provide the services at the different service locations required in this call for tenders, in compliance with all the other EIB requirements specified in the procurement documents, while covering all the costs generated by [the] EIB’s technical requirements, given the fact the [f]ramework [a]greement does not guarantee any minimum volumes of service and the fact that the rates quoted in … Annex C – Pricing Form represent maximum rates (in accordance with Article 5 – Price of the Model [f]ramework [a]greement).

Therefore we ask you to provide the following:

…

(b) a detailed explanation of the economics of the provision of the services, or a description of any other exceptionally favourable conditions available to you for the supply of these services;

…

(f) a detailed breakdown of all the cost elements for each of the quoted rates and the relevant calculations supporting the explanations provided under points (b) – (e) above and explaining the feasibility to (i) source and provide to the EIB the resources with seniority levels, language and technical skills required in this call for tenders and (ii) to provide the services at the different service locations required in this call for tenders, in compliance with all the other EIB requirements specified in the procurement documents, while covering all the costs generated by EIB’s technical requirements, given the fact the [f]ramework [a]greement does not guarantee any minimum volumes of service and the fact that the rates quoted in … Annex C – Pricing Form represent maximum rates (in accordance with Article 5 – Price of the Model Framework Agreement).

Please note that your answers shall not lead to the modification of your tender.

…’

28      It is apparent from the content of the request for clarifications that the EIB found that the daily rates quoted by the consortium and, therefore, the total annual price scenario appeared to be abnormally low. In addition, the EIB expressed doubts as to the feasibility, first, of sourcing and providing the resources with the seniority levels and language and technical skills required and, second, of providing the services at the different locations specified in the call for tenders while covering all the costs generated by the EIB’s technical requirements.

29      In so doing, the EIB, by means of the request for clarifications, indicated to the applicants the key criteria for analysing whether the prices proposed were abnormally low, informed them of the reasons why their tender appeared to be abnormally low, and specified the aspects of the tender which prompted questions. More specifically, it is apparent from that request that the daily rates for the profiles required in the call for tenders appeared to be inappropriate in the light, first, of the qualities needed and, second, of the locations where the persons matching those profiles were to work. It must be observed in that regard that the EIB put sufficiently specific and detailed questions, divided into sub-categories, in order to enable the consortium to provide adequate justification for the prices proposed and to demonstrate that the tender was genuine. In that context, the EIB was not required to provide the applicants with the methodology that it had used as the basis for analysing their tender as apparently abnormally low and that it would use for assessing their responses.

30      Accordingly, it must be held, contrary to what is asserted by the applicants, that the EIB did not infringe their rights of defence or the principles of foreseeability, legal certainty, transparency and equal treatment during the administrative phase.

31      Furthermore, the abovementioned factors relating to the context in which the contested decision was adopted are also relevant for assessing whether the statement of reasons for that decision is sufficient, in accordance with the case-law principle referred to in paragraph 23 above.

32      In that regard, the grounds of the contested decision state as follows:

‘…

Your tender was rejected as being abnormally low, since the Evaluation Committee deemed your explanations provided on 8 September 2023 in response to [the] EIB’s request for clarifications of 1 September 2023 as inadequate and not satisfactorily accounting for the low level of prices offered, thus rendering your tender unreliable and likely to impair the proper performance of call-off contracts under the [f]ramework [a]greement.

In particular, while the Evaluation Committee was satisfied with the explanations [for] the requested elements (a), (c), (d) and (e) of its letter dated 1 September 2023, it concluded that the explanations [for] elements (b) and (f) did not satisfactorily account for the low level of the on-site daily rate (between EUR [confidential] (1) and EUR [confidential]) for several profiles (please see note 1 below) which account for 62% of the estimated volume of on-site daily rate services and 43% of the total estimated volume of all daily rate services provided to the tenderers in the financial scenario of Annex C (Pricing Form).

…

Note 1: DevOps Engineer (Junior, Intermediate, Senior and Specialist), Test Engineer (Intermediate, Senior and Specialist), UX/UI Designer (Intermediate, Senior and Specialist), Software Architect Senior, Software Engineer – JAVA (Intermediate, Senior and Specialist) and Project Manager (Junior and Intermediate).’

33      It is apparent from the content of the contested decision that the EIB found, in essence, that the level of the prices proposed by the consortium was not satisfactorily justified by the explanations it had provided. In that regard, the EIB stated, in the first place, that it had not received satisfactory explanations for the low level of the on-site daily rate (between EUR [confidential] and EUR [confidential]) for 16 specific profiles (set out in note 1 of that decision). In the second place, the EIB noted that those amounts concerned a significant volume of on-site daily rate services and of the total estimated volume of all daily rate services.

34      The EIB therefore provided reasons for the contested decision by referring, first, to the aspects of the consortium’s tender which it had considered to be abnormally low, having regard to the explanations provided by the consortium following the request for clarifications and, second, to their significance within that tender. Accordingly, it must be found that the grounds of that decision enabled the applicants to acquaint themselves with the essential elements that formed the basis for the EIB’s rejection of the consortium’s tender.

35      In that regard, it must be borne in mind that the EIB, in order to fulfil its obligation to state reasons, was not required either to specify all the relevant facts or to provide a specific and detailed analysis of the response that the consortium had given to the EIB’s request for clarifications, given that it was sufficient to inform the consortium of the broad outlines of its analysis, as stated in paragraph 24 above.

36      In the light of the foregoing, taking into account the circumstances of the present case, and in particular the content of the contested decision, the nature of the reasons set out in that decision and the context in which it was adopted, it must be held that the EIB did not infringe the obligation to state reasons laid down in Article 296 TFEU. Nor did it deprive the applicants of their right to an effective remedy guaranteed in Article 47 of the Charter.

37      Consequently, the third plea in law must be rejected as unfounded.

 The first plea, alleging a manifest error of assessment by the EIB and infringement of the principles of equal treatment, legal certainty and estoppel

38      The applicants submit in the first plea that the EIB committed a manifest error of assessment by rejecting the consortium’s tender on the ground that it was abnormally low. According to the applicants, the EIB departed from the case-law of the General Court in adopting the contested decision. Furthermore, they argue that the contested decision is inconsistent with the EIB’s practice in other similar procurement procedures carried out recently in which tenders that were almost identical were proposed and accepted.

39      In the first place, the applicants take the view that it is apparent from the consortium’s tender that it complies with all the applicable legislation and that the proposed daily rates cover all the costs incurred in the performance of the contract at issue. In particular, the applicants submit that the daily minimum rates offered are significantly higher than the legal minimum in the country where the services will be provided and that they will derive a substantial profit. Moreover, they argue that the EIB cannot rely on the low levels of daily rates or profit margins applied by a tenderer in order to reject a tender since, first, it is apparent from the documents that the contract is to be awarded to the tenderers which have submitted the most economically advantageous offer and, second, it would be interfering with the tenderers’ business model. According to the applicants, since their tender and their letters of 13 and 20 March 2024 demonstrated, first, that the consortium complied with all the applicable legislation and, second, that the tender covered all the costs incurred in the performance of the framework agreement, that tender could not be regarded as ‘abnormally low’ within the meaning of Article 69 of Directive 2014/24. Accordingly, the EIB committed a manifest error of assessment.

40      In the second place, the applicants observe that in 2023 the EIB awarded them a contract in another procurement procedure (‘INTEGER’), which concerned services similar to those of the procedure at issue and which had similar proposed maximum on-site daily rates for services in Luxembourg. In that context, they specify, first, that the on-site daily rates for INTEGER were similar to those proposed for tender CFT‑1699, except for two profiles (accounting for only a small proportion of on-site services) and, second, that the consortium offered higher rates for certain profiles in the call for tenders CFT‑1699 than for INTEGER. According to the applicants, the EIB therefore infringed the principles of equal treatment, legal certainty and estoppel (the principle of non venire contra factum proprium).

41      In their reply, the applicants submit that the EIB does not clearly explain in the defence its methodology for calculating the threshold below which a tender appeared to be abnormally low. According to the applicants, a tender should not be regarded as abnormally low solely on the basis of the EIB’s estimates or the average of other tenders, but must be evaluated in the light of the tenderer’s method and its ability to perform the contract effectively. They submit in that regard that the EIB did not take due account of the consortium’s circumstances in concluding that the total annual price scenario was lower than the EIB’s estimate and the average of the other tenders. Moreover, as regards the comparison of the daily rates offered by the consortium with those prevailing on the Luxembourg market, the applicants submit that the EIB’s use of the European Commission Benchmark and the annual Luxembourg salary guide published by recruitment consultancy Hays reflects an additional manifest error of assessment and that the EIB did not inform them that those documents would be a relevant factor to be taken into account in the preparation and assessment of tenders. In that regard, they submit that identifying an abnormally low offer requires a multidimensional analysis that goes beyond comparing the tender price with the market average and assert that the EIB has not proven that they would be unable to attract enough professionals willing to work on-site at the EIB headquarters in Luxembourg at levels of remuneration close to the minimum wage.

42      The EIB disputes the arguments put forward by the applicants.

43      It is apparent from Article 69(1) and (3) of Directive 2014/24, to which point 5.1.3 of the EIB Guide to procurement refers, that the contracting authority is to require a tenderer to explain the price or costs proposed in the tender where the latter appears to be abnormally low and that it may only reject the tender where the evidence supplied does not satisfactorily account for the low level of price or costs.

44      In that regard, while there is no definition of an abnormally low tender (see judgment of 10 October 2017, Solelec and Others v Parliament, T‑281/16, not published, EU:T:2017:711, paragraph 113 and the case-law cited), it is apparent from the case-law that the abnormally low nature of a tender must be assessed in relation to the service concerned. Thus, in the course of examining the abnormally low nature of a tender, the contracting authority may, for the purpose of ensuring healthy competition, take into consideration all the factors that are relevant in the light of that service (see judgment of 15 September 2022, Veridos, C‑669/20, EU:C:2022:684, paragraph 35 and the case-law cited).

45      According to the case-law, in the absence of a definition of the notion of an ‘abnormally low tender’, it falls to the contracting authority to determine the method used to identify abnormally low tenders, provided that that method is objective and non-discriminatory (see, to that effect, judgment of 19 October 2017, Agriconsulting Europe v Commission, C‑198/16 P, EU:C:2017:784, paragraph 55 and the case-law).

46      It should also be borne in mind that, according to settled case-law, the contracting authority has broad discretion with regard to the factors to be taken into account in order to decide whether a tender is abnormally low, and the Court’s review must be limited to verifying that the rules governing the procedure and statement of reasons have been complied with, that the facts are materially accurate, and that there has been no serious and manifest error of assessment or misuse of powers (see, to that effect, judgment of 20 March 2024, Westpole Belgium v Parliament, T‑640/22, not published, EU:T:2024:188, paragraph 110 and the case-law cited).

47      In addition, in order to establish that, in the assessment of the facts, the contracting authority committed an error so obvious as to justify annulment of the decision rejecting a contract tender as abnormally low, the evidence adduced by the applicant must be sufficient to render the assessments made in the decision at issue implausible. In other words, a plea alleging a manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see judgment of 20 March 2024, Westpole Belgium v Parliament, T‑640/22, not published, EU:T:2024:188, paragraph 111 and the case-law cited).

48      In the present case, it should first of all be observed that it is apparent from Annex 7c to the tender evaluation report of the EIB’s Evaluation Committee, entitled ‘Analysis of the abnormally low tenders – Omnia consortium’ (‘the evaluation report’), that the committee, on the basis of points 4.3.11.5 and 5.1.3 of the EIB Guide to procurement, carried out a detailed examination of the explanations received from the consortium in response to the request for clarifications.

49      The evaluation report sets out, in the first place, the method applied by the EIB for assessing tenders and, in the second place, a detailed analysis of the consortium’s tender and the explanations it had provided.

50      As regards the method adopted by the EIB for determining whether a tender appeared to be abnormally low, it consisted of identifying financial offers which were substantially lower than the EIB’s budget estimate (by more than 50%) and/or the other tenders submitted by the other bidders.

51      As regards the analysis of the consortium’s tender, the evaluation report includes a section entitled ‘Assessing the merits of the explanations provided by the tenderer’, in which the Evaluation Committee set out in detail the reasons which led it to find that the consortium’s answers to two questions raised in the request for clarifications did not provide an assurance that the consortium would be able to find highly qualified IT specialists on the competitive Luxembourg market.

52      It is apparent from the evaluation report that the total annual price submitted by the consortium was almost 65% lower than the EIB’s estimate and 47% below the average of the other tenders. More specifically, the Evaluation Committee found, first, that for 20 of the 36 on-site profiles the consortium had quoted very low on-site daily rates in its financial proposal, namely between EUR [confidential] and EUR [confidential]. Second, it considered that the evidence provided concerning at least 16 of the 20 on-site daily rates was not reliable. Third, the committee stated that the consortium had used only the minimum wage in Luxembourg as a reference to calculate the minimum daily price. In that regard, the Evaluation Committee based its assumptions on the remuneration of IT specialists working in Luxembourg on publicly available information, namely indicators provided by Eurostat; a benchmark study on remuneration published by the Commission on the eTendering platform; the Hays 2023 Luxembourg Salary Guide; and data available on websites such as ‘talent.com’ or ‘glassdoor.com’. On that basis, the report includes a detailed comparison in the form of a table of the on-site daily rates quoted by the consortium and the actual direct daily cost per profile based on the market conditions prevailing in Luxembourg.

53      According to the Evaluation Committee, a comparison of the rates for on-site services proposed by the consortium with the average rates offered by normally priced tenders showed that, for 16 out of the 36 profiles, the consortium’s rates were on average 70.1% lower. Those rates represented a substantial part of the framework agreement, namely 62% of the estimated volume of on-site daily rate services and 43% of the total estimated volume of all daily rate services entrusted to tenderers in the financial scenario of Annex C (Pricing Form). In addition, the Evaluation Committee also took into account the EIB’s previous experience in relation to IT service contracts and framework agreements, where similar profiles (necessary level of proficiency in English and availability to work on-site in Luxembourg) were also required. In the light of that experience, the committee found that profiles of that type were in short supply and that their on-site daily rates were on average 1.5 to 2.5 times higher than those proposed by the consortium.

54      In the light of all those considerations, the Evaluation Committee concluded that the consortium had relied on unrealistic assumptions to calculate the maximum on-site daily rates in question, thereby rendering its tender economically unviable.

55      In that regard, first, with respect to the applicants’ argument that the EIB did not apply an appropriate methodology for assessing which tenders were abnormally low, it should be observed that, in accordance with the settled case-law referred to in paragraphs 44 and 45 above, the method applied by the contracting authority to assess the merits of the justification for prices – whereby all the factors that are relevant in the light of the service in question may be taken into consideration – must be objective and non-discriminatory. The methodology applied by the EIB in the present case, as described in paragraph 50 above, satisfies that condition since it is in essence based on a comparison with the other tenders submitted in the context of the contract concerned (see, to that effect, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraphs 68 and 69) and with the budget estimated by the EIB in tender specifications (see, to that effect, judgment of 19 October 2017, Agriconsulting Europe v Commission, C‑198/16 P, EU:C:2017:784, paragraph 57).

56      Second, as regards the EIB’s findings in the contested decision concerning the low level of the proposed prices and of the on-site daily rate (between EUR [confidential] and EUR [confidential]) for the 16 profiles described in note 1 of that decision, it is necessary to reject the applicants’ argument made on the basis that the daily rates proposed in the consortium’s tender cover all the costs incurred since those rates are higher than the legal minimum wage of the country in which the services will be provided. Indeed, even if the proposed daily rates for the staff responsible for providing the services at issue are higher than the legal minimum wage, the level of those rates must be assessed in relation to income levels established for professional services that are comparable to those concerned by the call for tenders and not in relation to the legal minimum wage. In the present case the services required concern specialist IT services. By offering remuneration that could prove to be considerably lower than that prevailing on the market for that type of service, the consortium would face the risk of being unable to recruit the staff needed to perform the tasks required under the conditions proposed.

57      In that regard, it must be found that the applicants’ other arguments, concerning the quality and relevance of the statistical data relating to the conditions on the Luxembourg market and which were used by the EIB in its assessment referred to in paragraph 56 above, are not capable of challenging the EIB’s conclusion that the consortium’s tender was unreliable and likely to impair the proper performance of the contract. As observed in paragraph 52 above, it is clear from the evaluation report that the EIB based its assessment on reference indices published by Eurostat, the Commission and job-search and recruitment companies. Since those sources of information, as is apparent from that report, are all publicly available and the EIB used them only as a reference point while carrying out a concise and comprehensive assessment of the information which they contained, the EIB was not required to announce in advance that it would use those specific sources. In that context, it must be borne in mind that, according to the settled case-law set out in paragraph 44 above, the contracting authority may, for the purpose of ensuring healthy competition, take into consideration all the factors that are relevant in the light of the service at issue when it determines whether a tender is abnormally low.

58      In addition, it should be observed that the applicants do not dispute, in a sufficiently concrete and substantiated manner, the EIB’s findings in the contested decision that, having regard to the estimated volume of daily rate services, the 16 profiles specified in that decision represented a substantial part in terms of the performance of the contracts at issue, namely 62% of on-site daily rate services and 43% of all daily rate services.

59      Third, it is necessary to reject the applicants’ argument that the EIB, first, failed to comply with the condition set out in the documents that the contract was to be awarded to the tenderers who submitted the most economically advantageous tenders and, second, interfered with their business model. Such an argument is not relevant in a situation such as that in the present case, where a tender has been considered to be abnormally low, since the relevant question is whether the consortium’s tender made it possible to fulfil the tasks required by the call for tenders. A contracting authority must have the right to reject a tender if, in spite of the explanations provided by the tenderer, it considers that the latter will be unable to perform the contract in accordance with the proposed conditions.

60      Furthermore, it must be stated that the discrepancies identified by the Evaluation Committee, described in paragraphs 51 to 54 above, are objective and particularly significant. Consequently, and having regard to the foregoing considerations, the EIB’s conclusion that the consortium would not be able to source and provide it with the resources required to supply the services at the different sites, in accordance with the technical requirements, may be considered as valid since the arguments examined in the present plea and the evidence adduced by the applicants are not sufficient to render the assessments made in the contested decision implausible.

61      In addition, as regards the arguments made by the applicants with respect to the INTEGER procurement procedure, the following observations may be made.

62      First, it should be borne in mind that, according to the case-law referred to in paragraph 44 above, the assessment of whether a tender is abnormally low must be carried out in relation to the service concerned. The content of a tender must therefore be examined in the light of the call for tenders to which it responds, and not in the light of a previous call for tenders. In addition, the proportion of costs which appear to be abnormally low in the light of the total price offered in a tender may vary from one procurement procedure to another. Second, it should be observed, as does the EIB, that the profiles required in the two calls for tenders referred to were not identical. For example, in the INTEGER tender procedure the EIB sought, inter alia, the profiles of Business Analyst, Data Scientist, Data Engineer and Software Engineer – JAVASCRIPT, which were not required in the tender CFT‑1699. Third, it should also be noted, as has the EIB, that the value of each call for tenders differs to a considerable degree. More specifically, the estimated total value in the present case of the call for tenders CFT‑1699 is EUR 195 000 000 excluding VAT, while the total value of the INTEGER framework agreement was EUR 60 000 000 excluding VAT. There is therefore a significant difference between the two calls for tenders. Fourth, it should be observed that, in particular for certain senior profiles, the consortium proposed very different maximum daily rates. The maximum daily rate for on-site services for the profile of Test Engineer (senior) was EUR [confidential] in the INTEGER call for tenders, whereas it was EUR [confidential] for the call for tenders CFT‑1699. For the profile of Test Engineer (specialist), the rate was EUR [confidential] in the INTEGER tender procedure and EUR [confidential] in the call for tenders at issue in the present case.

63      It should be stated that the maximum daily rates for on-site services also differ for the other profile levels. For example, the Test Engineer (junior) profile rate was EUR [confidential] in the INTEGER tender procedure and EUR [confidential] for the call for tenders CFT‑1699. For the profile of Test Engineer (intermediate), the rate was EUR [confidential] in the INTEGER tender procedure and EUR [confidential] for the call for tenders CFT‑1699. The Project Manager (junior) profile had a rate of EUR [confidential] in the INTEGER tender procedure and EUR [confidential] in the call for tenders CFT‑1699. Lastly, for the profile of Project Manager (intermediate), the rate amounted to EUR [confidential] in the INTEGER tender procedure and EUR [confidential] for the call for tenders at issue in the present case.

64      It follows that, as far as certain profiles presented in the two abovementioned tender procedures were concerned, the costs submitted in the INTEGER tender procedure were relatively higher than those submitted in the tender procedure at issue in the present case (namely the profiles of Test Engineer (senior), Test Engineer (specialist), Test Engineer (junior), Test Engineer (intermediate), Project Manager (junior) and Project Manager (Intermediate). Although the difference in four cases was only EUR [confidential], in two others, concerning senior profiles, the costs submitted in the INTEGER tender procedure were substantially higher, namely EUR [confidential] and EUR [confidential] higher.

65      It therefore cannot be concluded, in the light of that comparison alone, that the EIB committed a manifest error of assessment in finding that the daily rates proposed by the applicants for certain profiles in the call for tenders at issue were too low, given that that call for tenders was in essence not comparable to the INTEGER call for tenders. Accordingly, there are also no grounds to consider that the EIB infringed the principles of equal treatment, legal certainty and estoppel.

66      In the light of the foregoing, and having regard to the broad discretion enjoyed by contracting authorities as regards the factors that must be taken into consideration in assessing whether a tender is abnormally low, and to the analysis set out in the evaluation report, it must thus be concluded that the EIB did not commit a manifest error of assessment by rejecting the consortium’s tender on the ground that it was abnormally low.

67      Consequently, the first plea must be rejected as unfounded.

 The second plea, alleging infringement of the principle of proportionality

68      The second plea alleges infringement of the principle of proportionality on the ground that it is disproportionate to exclude the tender based solely on the prices offered by the consortium. The second plea also alleges that the EIB does not appear to have taken into account other factors that are relevant in the light of the services provided under the contract to be concluded following the procurement procedure. According to the applicants, the EIB adopted a disproportionate and arbitrary measure in deciding to reject their tender solely on the ground that it allegedly failed to meet two of the six criteria set out in Article 69 of Directive 2014/24.

69      In that regard, the applicants submit, first, that a contracting authority may only in exceptional circumstances reject a tender as being abnormally low and, second, that, even if the evidence provided does not account for the low prices proposed, that authority is not obliged to reject the tender. The applicants argue that the EIB was satisfied with most of the evidence and explanations provided by the consortium regarding its compliance with its legal obligations. Since it was therefore not obliged to reject their tender under Article 69 of Directive 2014/24, the EIB could have chosen a less radical solution and not rejected that tender, in view of the other advantages it offered.

70      In that context, the applicants submit that the EIB erred in maintaining that the criteria set out in the list in Article 69 of Directive 2014/24 were cumulative and that the consortium had to prove that its tender met all of them.

71      The EIB disputes the arguments put forward by the applicants.

72      First of all, it should be borne in mind that, in accordance with settled case-law, the principle of proportionality, which is one of the general principles of EU law, requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 165 and the case-law cited).

73      In the present case, it should be observed in the first place that, as stated in paragraph 13 above, and contrary to what is claimed by the applicants, the EIB, after examining the relevant information and explanations provided by the tenderer concerned, is obliged to reject a tender which it considers to be abnormally low. In that regard, it must be observed, as the EIB has done, that the rejection of a tender as abnormally low depends on its intrinsic aspects, the context and the relevant explanations offered by the tenderer concerned, and not on the presence of purely exceptional circumstances.

74      In the second place, the fact that the applicants, in their view, provided satisfactory answers to most of the questions raised in the request for clarifications is irrelevant. It cannot be held that a contracting authority infringes the principle of proportionality where it finds, on the basis of all the evidence provided by a tenderer and without making a manifest error of assessment, that that tenderer will be unable to perform the contract on the basis of certain prices which represent a substantial part of the tender. In such a situation, contrary to what the applicants claim, the contracting authority cannot have recourse to another appropriate, less onerous measure.

75      In the third place, as regards the applicants’ complaint based on the premiss that the EIB required the consortium to prove that it fulfilled all the criteria referred to in Article 69(2) of Directive 2014/24, it must be observed that it is apparent from the wording of the request for clarifications cited in part in paragraph 27 above that the six questions, listed in points (a) to (f), put to the applicants by the EIB, referred only to certain of the situations described in Article 69(2) of Directive 2014/24 and to other factors relevant to the service at issue. Consequently, contrary to what the applicants claim, that request did not refer to all the elements set out in that article.

76      The other arguments put forward by the applicants in this plea concern, in essence, an alleged manifest error of assessment on the part of the EIB or an alleged failure to state reasons for the contested decision, which have been addressed and rejected in considering the first and third pleas, respectively, in paragraphs 11 to 37 and 43 to 67 above.

77      Having regard to the foregoing considerations, the second plea in law must be rejected and, therefore, the action in its entirety must be dismissed as unfounded.

 Costs

78      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

79      Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the EIB, including those relating to the proceedings for interim measures.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders NTT Data Belgique, Sopra Steria PSF Luxembourg SA, UniSystems Luxembourg Sàrl and Netcompany – Intrasoft to pay the costs, including those related to the proceedings for interim measures.

Delivered in open court in Luxembourg on 8 October 2025.

*      Language of the case: English.

1      Confidential information redacted.