The background to the complaint

1. The complaint concerns alleged errors made by the Commission in relation to a call for tenders. The complaint was made by a company (the complainant) that took part in Lot 1 of Call for tenders X (hereafter 'the Call'), which dealt with the supply of 46 steam-based waste treatment systems for the decontamination of potentially contaminated waste in Country B. The Call was launched by the Commission and managed by the Commission's Delegation in Country B. On 25 November 2009, the contract was awarded to another company, company A. On 29 December 2009, the Commission's Delegation in Country B informed the complainant (i) that its offer had been rejected and (ii) of the name of the selected tenderer. On several occasions, the complainant challenged the Commission Delegation's award decision, arguing that the selected company had no experience in the area of medical waste treatment. The Commission's Delegation confirmed its decision.

2. The complainant then turned to the Ombudsman.

The subject matter of the inquiry

3. The complainant alleged that the Delegation of the European Commission wrongly awarded Call for tenders X to a tenderer which had not fulfilled one of the required criteria in the Call. The criterion in question required all tenderers to have installed in an EU Member State at least five bio-hazardous waste treatment units per year in 2006, 2007 and 2008.

4. The complainant claimed that the Commission should cancel the award of the tender.

The inquiry

5. On 26 March 2010, the complainant addressed its concerns to the Ombudsman. On 5 May 2010, the Ombudsman opened an inquiry and forwarded the complaint to the Commission, which then sent its opinion to the Ombudsman on 7 October 2010. The opinion was forwarded to the complainant, who submitted observations on 8 November 2010.

6. When he opened his inquiry into the present complaint, the Ombudsman requested the Commission to allow his services to inspect the bid submitted by the successful tenderer. The inspection took place on 7 December 2010. On 16 December 2010, the complainant was informed of this inspection, and was provided with a copy of the inspection report.

The Ombudsman's analysis and conclusions

A. Alleged failure to fulfil one of the required criteria of the call for tenders and related claim

Arguments presented to the Ombudsman

7. The complainant explained that tenderers were required to submit references proving that they had installed at least five bio-hazardous waste treatment units per year in a Member State of the European Union in 2006, 2007 and 2008. It further stated that it is very active in the medical waste field, that it regularly participated in international tenders and that it had never met the selected tenderer. It recognised that the selected tenderer is well-known in the healthcare sterilization field, but argued that this was not the case for the waste sterilization field. It stated that this was confirmed by that company's website. The complainant claimed that the award decision should be cancelled.

8. In its opinion to the Ombudsman, the Commission explained that the Commission's Delegation in Country B had reconfirmed that the offer from the selected tenderer fully complied with all selection criteria given in Article 16 of the Procurement Notice, in particular the one referring to its technical capacity (the installation of at least five bio-hazardous waste treatment units per year during the last three years). The Delegation gave this information to the complainant on three occasions. The Commission did not see any reason that would justify cancelling the award decision.

9. In its observations, the complainant repeated that the selected tenderer was well known for providing sterilizers but not medical waste sterilizers.

The Ombudsman's assessment

10. The complaint relates to the Commission Delegation's comparative assessment of the various tenders, in particular compliance with one of the selection criteria. In such cases, the Ombudsman's review is limited to determining whether there were procedural errors or a manifest error of assessment. According to the Ombudsman's decision on complaint 1043/2000/GG, it is for the administration organising a call for tenders to assess whether the applicants fulfil the conditions laid down in a call for tenders. The Ombudsman must not substitute this assessment by his own, but only check to ensure that the administration's assessment is not manifestly unreasonable[1].

11. The Ombudsman notes the following provisions of the Implementing Rules of the Financial Regulation[2]:

"Article 135

...The selection criteria shall be applied in every procurement procedure for the purposes of assessing the financial, economic, technical and professional capacity of the candidate or the tenderer..."

"Article 137

1. Technical and professional capacity of economic operators shall be evaluated and verified in accordance with paragraphs 2 and 3. In procurement procedures for supplies requiring sitting or installation operations, services and/or works, such capacity shall be assessed with regard in particular to their know-how, efficiency, experience and reliability.

2. Evidence of the technical and professional capacity of economic operators may, depending on the nature, quantity or scale and purpose of the supplies, services or works to be provided, be furnished on the basis of one or more of the following documents:

...

(b) a list:

(i) of the principal services provided and supplies delivered in the past three years, with the sums, dates and recipients, public or private;"

12. The objective of the tender was to supply hospitals in Country B with 46 steam based waste treatment systems for the decontamination of potentially contaminated waste. According to the tender notice, the technical capacity of tenderers was checked through the following selection criterion: "the tenderer has carried out reference installations of at least five bio-hazardous waste treatment units per year during the last three years (2006, 2007 and 2008) in a Member State of the European Union or in a country or territory of the regions covered and/or authorised by the specific instruments applicable to the programme under which the contract is financed".

13. The Ombudsman's services inspected the Commission's file, in particular the Report of the Evaluation Committee, in order to evaluate whether the complainant’s argument was well-founded. This examination showed that the Evaluation Committee carefully checked that all tenders were technically compliant. This included checking if the tender bids referred to the installation of at least five bio-hazardous waste treatment units per year during the last three years. In this regard, and in accordance with Article 148 of the Implementing Rules[3], it addressed two clarification requests to the selected tenderer, asking it to specify certain elements of its tender. After examining the replies sent by the selected tenderer, it considered them to be satisfactory and its offer to be technically compliant. After reviewing the Evaluation Committee’s evaluation, the Ombudsman takes the view that the assessment of the tender submitted by the selected tenderer is not manifestly unreasonable.

14. The Ombudsman finds no maladministration as regards this allegation. He also concludes that the complainant's claim cannot be sustained.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by the Commission.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 28 July 2011

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[1] Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraph 95: "... it must be observed that the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review must be limited to verifying that there has been no serious and manifest error."

[2] Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p.1), modified by:

- Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 modifying Regulation No 2342/2002 of 23 December 2002 (OJ 2005 L 201, p.3);

- Commission Regulation (EC, Euratom) No 1248/2006 of 7 August 2006 modifying Regulation No 2342/2002 of 23 December 2002 (OJ 2006 L 227, p.3);

- Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 modifying Regulation No 2342/2002 of 23 December 2002 (OJ 2007 L 111, p.13).

[3] Article 148 of the Implementing Rules states the following: "If, after the tenders have been opened, some clarification is required in connection with a tender, or if obvious clerical errors in the tender must be corrected, the contracting authority may contact the tenderer, although such contact may not lead to any alteration of the terms of the tender."