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Compensation to an unsuccessful tenderer

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  • Case: 3000/2009/JF
    Opened on 03 Mar 2010 - Decision on 26 Jul 2012
  • Institution(s) concerned: European Commission
  • Field(s) of law: Environment, consumers and health protection
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB]
  • Subject matter(s): Award of tenders or grants
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Author: Yotakarn Saelee
Copyright: Stocklib © Yotakarn Saelee

Summary of the decision on complaint 3000/2009/JF (confidential) against the European Commission

The complainant, an engineering and environmental consultancy company based in Brussels, submitted a bid in response to an invitation to tender issued by the European Commission. Its bid was not selected. It then turned to the European Ombudsman, alleging, in sum, that the Commission's explanations for rejecting its bid were not convincing. The complainant requested that its bid be reassessed, or, if this was no longer possible, that it be granted appropriate compensation.

The Commission explained that, although the complainant's bid was slightly lower than that of the only other bidder to reach the award stage (the 'successful tenderer'), it did not represent the best value for money. In addition, the complainant had proposed a budget that did not appear to be sufficient to allow it successfully to perform the tasks, namely the organisation of a number of seminars on green public procurement. Indeed, the complainant's budget raised doubts as to whether it had understood those tasks at all. The successful tenderer duly identified the venues where the seminars would take place and proposed a budget compatible with their organisation.

The Ombudsman's inquiry revealed that, in accordance with the applicable rules, the formal decision regarding the Member States where the seminars would take place had to be made by the Commission at a later stage. However, in practice, those Member States were already known both to the Commission and to the successful tenderer, but not to the complainant. In light of the fact that the Commission did not inform the complainant about where the seminars would take place, the Ombudsman found that the Commission failed to ensure equal treatment of tenderers and that this undermined the complainant's chances of succeeding in the tender process. He therefore proposed a friendly solution to the Commission to the effect that it should compensate the complainant for the expenses it incurred in order to participate in the tender process. As a result, the Commission paid the complainant over EUR 10 000. The case was thus settled.