The background to the complaint

1. The complaint was submitted by the manager of a private company on its behalf.

2. On 8 October 2008, the Commission published the service procurement notice for a project entitled "Further development and strengthening of the public procurement system in Montenegro"[1] (the 'Project'). The procurement notice stipulated that "on the basis of the applications received, between 4-8 candidates will be invited to submit detailed tenders for the contract." The European Commission's Delegation to Montenegro (the 'Delegation') was the contracting authority, acting on behalf of the Montenegrin authorities.

3. The complainant submitted an application for the above procurement procedure. Subsequently, it found out that the Head of the evaluation panel dealing with the tenders was an EU official with whom it had had a professional conflict when applying for another EU project in Bulgaria.

4. On 28 November 2008, the complainant wrote to the Head of the Delegation concerning this matter. It requested that the official in question not be involved in the evaluation procedure.

5. The Delegation did not reply to the complainant's letter dated 28 November 2008.

6. On 5 December 2008, the Commission published the shortlist notice for the procurement procedure. The complainant's name was included on that list, and it was invited to submit a detailed tender offer, which it did.

7. On 19 February 2009, the complainant received a letter requesting a clarification of its tender offer. The letter was signed by the Chairman of the Evaluation Committee.

8. On 2 March 2009, the complainant wrote to the Delegation again. It stated that it had discovered that its tender offer had been eliminated during the technical evaluation. It was thus aware of this information before the official results had been published, which meant that the confidentiality of the evaluation proceedings had been compromised. The complainant therefore asked for its offer to be reviewed.

9. The complainant did not receive a reply to its letter dated 2 March 2009 or its subsequent reminder dated 21 April 2009.

10. On 25 May 2009, the Delegation informed the complainant by letter that its tender offer had not been successful and that the contract had been awarded to another company.

11. On 26 May 2009, the Delegation replied to the complainant's letters dated 2 March and 21 April 2009. It maintained the Evaluation Committee's decision to reject the complainant's tender offer.

12. On 5 June 2009, the complainant responded to the Delegation's letter dated 26 May 2009. It pointed out that it never received a reply to its letter dated 28 November 2008, in which it raised doubts regarding the impartiality and the objectivity of the Head of the evaluation panel, who subsequently became Chairman of the Evaluation Committee for the above procurement procedure.

13. By letter dated 7 July 2009, the Delegation informed the complainant that it would not cancel or reopen the evaluation procedure.

The subject matter of the inquiry

14. In its original complaint, the complainant put forward the following allegations and claim.

Allegations:

1. The Evaluation Committee failed to comply with the rules of impartiality and confidentiality for the above procurement.

2. The Evaluation Committee wrongly rejected its tender offer.

3. The Commission violated the principle of the presumption of innocence.

Claim:

In light of the doubts concerning the impartiality and correctness of the evaluation process, the whole tender evaluation process should be reviewed by a different evaluation committee.

15. In its observations on the Commission's opinion, the complainant submitted the following new allegation and new claim:

Allegation:

The Commission failed to reply to the request for access to the Evaluation Committee's report, which the complainant had in the meantime submitted to the Commission.

Claim:

The Commission should reply to that request and grant access to the requested evaluation report.

16. As regards the complainant's new allegation and claim outlined in paragraph 15 above, the Ombudsman decided not to include them in his present inquiry. This is because, by failing to submit a confirmatory application, as required by Article 7(2) of Regulation 1049/2001[2], the complainant did not make the necessary prior administrative approaches to the Commission.

The inquiry

17. On 21 July 2009, the Ombudsman opened an inquiry and asked the Commission to provide an opinion by 31 October 2009. On 15 December 2009, the Commission sent its opinion, which was forwarded to the complainant with an invitation to submit observations. The complainant submitted its observations on 28 January 2010.

18. On 6 April 2010, the Ombudsman asked the Commission for further information regarding certain aspects of the case. Following the Commission's requests for extensions of the deadline to reply, a reply to the Ombudsman's further inquiries was finally received on 7 October 2010.

19. The Commission's reply to the Ombudsman's request for further information was forwarded to the complainant. On 3 December 2010, the complainant submitted its observations.

20. On 9 December 2010, in accordance with Article 3 (2) of the Ombudsman's Statute[3], the Ombudsman's services carried out an inspection of the relevant documents on the Commission's file. The Commission considered the inspected documents to be confidential[4]. This meant that the public and the complainant could not have access to them.

21. On 19 January 2011, a copy of the report on the inspection of the files was forwarded to the complainant and the Commission.

22. On 28 January 2011, the Commission provided further information related to the report on the inspection of the files.

23. On 27 March and 3 May 2010, the Ombudsman's services contacted the complainant with a view to suggesting a possible friendly solution. The complainant rejected such possibility.

The Ombudsman's analysis and conclusions

A. Alleged failure to comply with the rules of impartiality and related claim

Arguments presented to the Ombudsman

24. The complainant questioned the impartiality of the person who acted as the Chairman of the Evaluation Committee. It argued that, due to previous conflicts it had had with the Chairman, the latter was not in a position to make an objective evaluation of its tender offer. The complainant informed the Commission of the possible conflict of interest well in advance, but the Chairman still took part in the evaluation.

25. In its opinion, the Commission pointed out that the actions of a chairman of an Evaluation Committee are governed by Article 52 of the Financial Regulation[5]. According to that Article, a chairman should not take any action that would bring his or her interest into conflict with those of the EU. In addition, the Commission explained that a chairman does not have the right to vote, nor to interfere with the evaluation process. Therefore, the decision to reject the complainant's tender offer was taken exclusively by the voting members of the Evaluation Committee. The Commission further pointed out that the composition of an evaluation committee is decided by the authorising officer through the sub-delegation of a contracting authority, and not by a chairman.

26. The Delegation carried out an inquiry in order to verify the complainant's allegation and, after the procurement procedure had ended, it examined the nature of the relations between the complainant and the Chairman of the Evaluation Committee. In this respect, the Delegation (i) requested the Chairman to provide a detailed written note describing the nature of his past professional relationship with the complainant during the time he worked for the Central Finance and Contracts Unit of the Ministry of Finance of Bulgaria ('CFCU') and, (ii) on 20 October 2009, it contacted the former Task Manager of the Commission's Delegation to Bulgaria who was in charge of the project in which the complainant was involved at the time the controversy arose between the Chairman and the complainant.

27. In a written note, the Chairman explained that, acting on behalf of the Bulgarian authorities, he had been partly in charge of a project involving one of the complainant's subsidiaries. The latter had failed to submit a final report within the contractual deadline and, as a result, part of the project concerned could not be implemented. This turn of events led to the Bulgarian authorities' having to finance that part from their own budget. The Chairman's involvement in the said project was limited to the normal tasks of a junior state official. The Contracting Authority, namely, the Bulgarian authorities, took all the management decisions.

28. The Commission further stated in its opinion that the Task Manager of the EC Delegation to Bulgaria provided "more detailed information" on the conflict between the Chairman of the Evaluation Committee and the complainant. Despite the fact that the Commission's Delegation to Bulgaria acted as a mediator, no friendly settlement could be achieved between the complainant and the CFCU in Bulgaria.

29. In light of the above, the EC Delegation to Montenegro held that (i) "the events in Bulgaria" discredited the good faith of the complainant and (ii) in view of those events, the CFCU in Bulgaria could have taken the necessary steps to have the complainant identified in the Early Warning System (EWS) of the Commission, and it could even have brought the complainant before a court of relevant jurisdiction.

30. Therefore, the EC Delegation to Montenegro concluded that there was no reason to doubt the impartiality of the Chairman of the Evaluation Committee. It also found that there were sufficient reasons to approve the evaluation report signed by the Chairman and to award the contract to the company which was selected by the Evaluation Committee.

31. Subsequent to the Ombudsman's inspection of the file, the Commission clarified in a letter dated 28 January 2011 that "the Delegation in Montenegro carried out an inquiry when alerted by the first complaint [of the complainant]. The different steps and interviews were recorded in minutes and notes. They all constitute the Delegation's report on its inquiry."

32. In its observations, the complainant argued that the Commission supported its assessment using the speculative allegations against the complainant and did not base itself on the available evidence. The complainant’s dispute with the CFCU in Bulgaria was not resolved at the time because the latter did not accept the Commission's conciliation proposal. The complainant added that, after the above dispute, the Chairman chaired an evaluation committee in another tender, where the complainant was disqualified for reasons similar to those raised in the present tender.

33. The complainant also stated that it was irrelevant that the Chairman did not have the power to vote because he could still exercise his influence. It further took the view that the Commission’s refusal to remove the Chairman from the Evaluation Committee immediately after being informed by the complainant that there might be a conflict of interest showed the Commission's lack of care in ensuring fair competition in connection with the tender in question. The Commission did not carry out an investigation into the alleged conflict of interest until after the Evaluation Committee had completed its work. The complainant considered that, once the Commission learned of the complainant's concerns, it should have assessed the facts and excluded the Chairman in order to ensure the fairness of the competition and the equal treatment of tenderers.

The Ombudsman's assessment

34. The Ombudsman first recalls that the Commission enjoys discretion when establishing a risk of a conflict of interest between a tenderer and a member of an evaluation committee. The General Court has held that, after discovering the conflict of interest, the Commission has some discretion when determining the measures which must be taken the subsequent stages of the procedure for the award of the tender[6]. Nevertheless, the Commission must act with due diligence and on the basis of all the relevant information when adopting its decision on the outcome of the procedure.

35. The Ombudsman will thus check (i) how the Commission proceeded to establish whether or not there was a risk of a conflict of interest between the complainant and the Chairman of the Evaluation Committee and (ii) whether or not the Commission committed a manifest error of assessment in concluding that there was no such risk.

36. As regards (i), the Commission had a number of measures at its disposal when verifying the existence of a risk. First, it could check the Declaration of impartiality and confidentiality which members of an evaluation committee in a procurement procedure must sign. In accordance with the relevant rules, the evaluation committee in a procurement procedure must act with impartiality[7]. For that purpose, all members of an evaluation committee in a procurement procedure have to sign a Declaration of impartiality and confidentiality. This obliges all evaluation committee members to inform the Commission of "facts or circumstances, past or present, or that could arise in the foreseeable future, which might call into question [a member's] independence in the eyes of any party"[8]. (emphasis added) Second, it could interrogate the Chairman and check the complainant's and Chairman's versions of the facts with its Delegation in Bulgaria. The Commission did both of the above.[9]

37. Nevertheless, it does not appear that the above steps were taken in due time. By letter dated 28 November 2008, the complainant informed the Commission of its "past controversial" relationship with the Chairman of the Evaluation Committee, and it expressed its doubts about the latter’s ability to assess its tender offer impartially[10]. However, on receipt of that letter, the Commission did not investigate what had occurred between the complainant and the Chairman of the Evaluation Committee. It would have been reasonable for the Commission to have investigated this alleged conflict of interests as soon as it became aware of it. Such an immediate investigation would have ruled out, with a reasonable degree of certainty, any possibility that the tender procedure had been unduly influenced, and thereby have prevented unjustified suspicion arising with regard to the actions of the evaluation committee.

38. The Commission carried out an investigation only after the evaluation of the tender offers had already been completed, and the contract in question had been awarded. It concluded that the principle of impartiality had not been breached.

39. It is regrettable that the Commission failed to act in due time. However, given that the evidence made available to the Ombudsman during his inspection of documents confirmed the Commission's above conclusion, the Ombudsman does not make a finding of maladministration in this respect. As regards (ii), on the basis of the inspected documents, the Ombudsman concluded that there was no reason to doubt that the Chairman acted independently and impartially. Therefore, the Ombudsman considers that no further inquiries into this aspect of the case are justified.

B. Alleged wrongful rejection of the tender offer

Arguments presented to the Ombudsman

40. The complainant contested the Evaluation Committee's decision to reject its tender offer. It argued that the technical award requirements, as laid down in the Terms of Reference (ToR), were wrongly interpreted. The complainant pointed out that the experts it proposed met all the requirements of the ToR. The complainant further stated that it had meanwhile learned that key expert 2 of the company which was awarded the contract had resigned after the contract was signed. It further pointed out that the reasons given for the resignation were not among those considered acceptable under the rules of the Practical Guide to Contract Procedures for External Actions ('PRAG'). The complainant concluded that this might explain why the procurement procedure was cancelled.

41. In its opinion, the Commission stated that two of the key experts proposed by the complainant did not meet the minimum requirements as regards general professional experience. The CV of key expert 1, who would have been team leader, failed (i) to show that she had expertise as a team leader and referred only to her experience as a project director, and (ii) to provide any reference to her experience as a policy advisor. As regards condition (i), the Commission stated that the responsibilities of a team leader and those of a project director are not the same. A team leader is usually located in the beneficiary country, managing a team of specialists and communicating directly with the project counterparts. A project director, although responsible for the overall implementation of the project on behalf of the contracting authority, works from home, possibly having to carry out several missions in the beneficiary country, but he or she does not have to manage a team of specialists in loco. As regards key expert 3, who would have been responsible for training and HR development, the Commission highlighted that he did not demonstrate that he had acquired at least five years' professional experience in an EU Member State or a candidate country. His experience was gained in Bosnia-Herzegovina, Kosovo and Montenegro.

42. The Commission underlined that it did not evaluate exactly to what extent the complainant's experts failed to satisfy the minimum requirements, since this might have led to a subjective and unequal treatment of the tenders.

43. The Commission acknowledged that the winning tenderer's key expert 2 was subsequently withdrawn. However, in accordance with the relevant rules, the winning tenderer proposed and appointed a new key expert who complied with the minimum criteria.

44. In its observations, the complainant added that, as regards its key expert 1, who would have been team leader, the Commission misinterpreted two conditions of the ToR. In this respect, it pointed out that, according to the ToR, key expert 1 was required to prove that he or she possessed (i) management expertise gained by participating in at least one project as a team leader, and (ii) experience in working in at least one EU funded technical assistance project. Instead, the Commission interpreted the above two conditions to mean that key expert 1 must have acted as team leader in an EU funded project (the complainant’s emphasis). The complainant added that the management capacities of key expert 1 were irrefutable and widely proven. The complainant further argued that key expert 1's CV clearly stated that she had been working as a government policy advisor.

45. As regards key expert 3, the complainant objected to the strict and rigid interpretation of the minimum requirements of the ToR. The complainant stated that such interpretation contravenes the provisions of the PRAG, "as the latter describes the profile of the ideal expert". The complainant argued that, although key expert 3 had not obtained his experience in an EU Member State or a candidate country, but rather in Bosnia-Herzegovina, Kosovo and Montenegro, his experience was nevertheless extremely relevant to the assignment[11]. The complainant went on to point out that the public procurement systems of the countries in which key expert 3 had worked are no less advanced than those of candidate countries.

46. As regards the withdrawal of the winning tenderer's key expert 2 at the beginning of the project, the complainant pointed out that the Commission normally forbids such practice because it changes the result of an evaluation process. The complainant explained that such practice gives grounds for suspecting that a contractor wishes to conceal the fact that experts are unavailable at the start date of an assignment.

The Ombudsman's assessment

47. The relevant provisions of the ToR for the procurement here concerned read as follows:

"Key expert 1: Team leader

General professional experience

- Management expertise gained through the participation in [a] minimum [of] one project as a team leader and including a team composed of subject specialists, supervising and coordinating activities in projects, ensuring good communication with the project counterparts, organising and overseeing administrative and logistics support

- Experience in at least one EU-funded technical assistance project is desirable, preferably in projects in an international context

- Previous experience in providing policy advice to government structures …

Key expert 3: Training and HR Development Expert

Specific professional experience

- At least 5 years of professional experience in HR Management

- Experience in organising and delivery training in public procurement in EU MS or candidate countries".

48. As regards key expert 1, the Commission clearly and convincingly explained the difference between a team leader and a project director, and how their tasks may differ. Since the ToR required an experienced team leader, the Ombudsman finds the Commission’s explanation in this respect to be reasonable.

49. As regards key expert 3, the Ombudsman notes that the ToR require any relevant professional experience to have been acquired before the tender offer is submitted. Reasonably, this rationae temporis condition applies not only to the required duration of the experience (five years at the time the tender offer is submitted), but also to the place where it was acquired. Some, or all five years of the experience gained must have been gained in a country which, during those five years, was either an EU Member State or a candidate country for accession to the EU. The Ombudsman therefore also finds the Commission’s explanation in this respect to be reasonable.

50. The Ombudsman further notes that the Commission did not evaluate the degree to which either of the two proposed, but ultimately unsuccessful, key expert candidates failed to satisfy the minimum requirements of the ToR, given that this could have led to subjective and unequal treatment of the tenders.

51. The Ombudsman finds the Commission’s above explanation to be reasonable and in line with the procedure governing a procurement procedure. Moreover, the complainant did not submit evidence to show that the Commission committed a manifest error of assessment when carrying out evaluations during its tender procedure.

52. As regards the complainant’s argument concerning the withdrawal of one of the winning tenderer's key experts, the Ombudsman notes that the Commission enjoys a discretionary power in this respect. Pursuant to PRAG, if the Commission gives its authorisation, experts may be replaced after the contract has been signed and if the qualifications and experience of the new expert are at least the equivalent of those of the replaced expert[12]. The complainant did not submit evidence to show that the replacement of one of the winning tenderer's experts breached the relevant rules.

53. In light of the above findings, the Ombudsman does not find an instance of maladministration as regards this allegation.

C. Alleged breach of confidentiality and of the principle of the presumption of innocence

Arguments presented to the Ombudsman

54. The complainant learned of the Evaluation Committee's final decision to reject its tender offer on the date the decision was adopted, but before it was officially published. On 2 March 2009, the complainant informed the Commission that the confidentiality of the evaluation procedure had been infringed. The Commission then accused the complainant of attempting to obtain confidential information by its own means, and stated that this contravened the ethics clauses in PRAG.

55. In its opinion, the Commission argued that the fact that the complainant found out about the decision to reject its tender offer before the evaluation procedure had been completed, and the results made public (the complainant’s letter was sent on 2 March 2009, and the award letter was not signed by the Delegation in Montenegro until 25 May 2009), clearly indicated that the complainant managed to obtain confidential information before the end of the procurement procedure. The Commission pointed out that this contravened the ethics clauses of PRAG[13], which read as follows "any attempt by a candidate, applicant or tenderer to obtain confidential information … during the process of examining, clarifying, evaluating and comparing tenders and applications will lead to the rejection of its candidacy, proposal or tender." It added that a "continued breach of the Ethics clauses of the Practical Guide to contract procedures for EC external actions may lead to the identification of the [complainant's] company [in] the Early Warning System of the European Commission and the former's subsequent exclusion from all contracts and grants financed by the Community budget for a maximum five years and, may give raise to additional administrative and/or financial penalties.[14]"

56. The Commission added that, if information had been leaked, the contracting authority should have been informed immediately and not after the tender offer had been rejected. Any other practice could be seen as a deliberate attempt to take advantage of the situation, and should be sanctioned appropriately as a breach of the ethics clauses[15]. Furthermore, the Commission stated that the complainant never replied to its request to provide information on how and from whom it obtained the confidential information. The Commission took the view that the statement "learned from different sources" does not relieve the complainant of its responsibility to respect common professional ethics.

57. In its observations, the complainant pointed out that, if the confidentiality of the procurement procedure had been infringed, it must have been due to the action of a member of the Evaluation Committee and not the complainant. The complainant also argued that it immediately informed the Commission about the leak of information. The complainant considered that the Commission should, in any event, be asked to provide relevant and objective evidence to support its accusation that the complainant infringed the ethics clauses of PRAG.

58. In reply to the Ombudsman's request for additional information, the Commission provided further details concerning the measures it took subsequent to receiving the complainant’s letter dated 2 March 2009. In this letter, the complainant informed the Commission that information had been leaked.

59. First, it stated that the leak could be "suggestive of favouritism for the benefit of the complainant". Moreover, the fact that the complainant acquired confidential information could indicate that a member of the Evaluation Committee might have been in contact with the complainant. After receiving the complainant's letter dated 2 March 2009, the respective Heads of the Delegation's Finance and Contract section and its Operations section organised a meeting with those members of the Evaluation Committee who were also Delegation employees. The two other members of the Evaluation Committee came from outside the Delegation: one from a framework contractor, and the other from the Montenegrin beneficiary institution. The Commission tried to find out how the complainant could have acquired the leaked confidential information. The Delegation concluded that it was impossible to find out which, if any, of the Evaluation Committee members may have breached his/her commitment of confidentiality.

60. The Commission added that, a few months before the tender evaluation was completed, the complainant concluded another contract with the beneficiary of the project, namely, the Montenegrin Public Procurement Agency. The representative of the beneficiary "had been in close contact with the complainant during the period of implementation of the said contract". However, the Commission could not draw any conclusions from this fact. The Chairman of the Evaluation Committee noted that "the representative of the beneficiary had initially decided to award 98 (out of a total of 100) points to the complainant's tender offer, a score by far the highest amongst the initial scores provided by the other members of the Committee and far higher than the scores he gave to the other offers received." Although this fact "raised some suspicion, no evidence and categorical conclusions with regard to the leak could be derived from that fact either". However, the Delegation contacted the National Montenegrin Coordinator for the Instrument for Pre-Accession Assistance (IPA[16]) and insisted that representatives of the local administration who participate in IPA tenders should be reminded of their commitments to impartiality and confidentiality.

61. Given that the complainant was not the successful tenderer, and was not nominated for the contract award, the Delegation concluded that, "although a breach of confidentiality may have occurred, it would not have prevented fair competition" and the procurement procedure did not, therefore, have to be cancelled. Finally, the Commission stated that the Delegation to Montenegro informed OLAF "about a potential irregularity with regard to the leak of information" during the procurement procedure.

62. In its observations on the Commission's reply to the Ombudsman's further inquiries, the complainant first pointed out that, in its view, the leak of information cannot be considered to be "suggestive of favouritism for its benefit". It reiterated that, as pointed out in its letter dated 2 March 2009, the information in question was "openly available in the market (not only to the complainant, but also to other bidders)". The complainant emphasised that (i) it had no direct contacts with the Contracting Authority or the Evaluation Committee from which it could have gained access to such information, and (ii) the Commission did not prove that it, that is, the compalinant, had breached the PRAG ethics clause, namely, the provisions of section 2.4.14 of PRAG.

63. Furthermore, the complainant considered that the Commission failed to take satisfactory measures upon receipt of its letter dated 2 March 2009. The complainant also criticised the fact that the Delegation to Montenegro did not inform OLAF earlier about the potential irregularity regarding the leaked information. The complainant also refuted the Commission's statement that "prior to the completion of the evaluation of the present tender, it [the complainant] entered into contracts with the Montenegrin Public Procurement Agency". In this respect, it emphasised that, prior to the tender in question, it had concluded a contract with the European Reconstruction Agency and the Delegation to Montenegro. The main local beneficiary of the contract was the Montenegrin Public Procurement Commission. The Montenegrin Public Procurement Agency became partially involved, as joint local beneficiary, at a latter stage of the project.

64. The complainant reiterated that it promptly informed the Delegation to Montenegro about the leak of information, and concluded by stating that, if there was a breach of confidentiality, the Commission should have invalidated the procurement procedure in question.

The Ombudsman's assessment

65. It is not disputed that a breach of confidentiality occurred in the present procurement procedure and that the complainant obtained confidential information concerning the outcome of the evaluation procedure before that procedure was completed and the official notifications were sent to all tenderers. The question arises whether the Commission took adequate measures to investigate the breach and whether it was justified to hold the complainant responsible for it.

66. The Ombudsman cannot agree with the complainant that the measures taken by the Commission to establish how the leak of information occurred were unsatisfactory. In the Ombudsman's view the Commission correctly heard its own officials involved in the selection and then warned national authorities. Moreover, the Commission rightly decided to inform OLAF.

67. The Ombudsman is, however, puzzled by the statements the Commission made in its letter to the complainant dated 26 May 2009 and in its opinion, where it suggested that (i) the complainant "attempted to obtain confidential information" during the evaluation procedure, and (ii) the fact that information was leaked could be "suggestive of favouritism for the benefit of the complainant". Moreover, it specifically referred to the fact that the "continued breach of the Ethics clauses of the PRAG may lead to the identification of the [complainant] [in] the Early Warning System of the European Commission and the former's subsequent exclusion from all contracts and grants financed by the Community budget." The Ombudsman considers that such statements should only be made if there is strong evidence to support them. This, however, is not the case in the present inquiry.

68. The Ombudsman points out that the Commission itself acknowledged that its inquiry failed to determine (i) the circumstances in which the leak of information took place and (ii) how the complainant became aware of such information. It thus cannot be excluded that the purportedly "leaked" information in question was indeed "openly available in the market (not only to the complainant only, but also to other bidders)", as pointed out by the complainant. Even if OLAF were to carry out a future investigation in order to clarify the source of the leak, at the time the Commission made its statements, no such investigation had been requested.

69. The Ombudsman considers that, by stating that the complainant breached confidentiality without providing proof to that effect, the Commission infringed the principle of the presumption of innocence. He takes the view that, in the absence of irrefutable evidence, the Commission cannot reasonably uphold its statement that the complainant attempted to obtain confidential information, which could lead to it being included in the Early Warning System and excluded from future contracts and grants financed by the EU budget. Likewise, the Ombudsman considers that the Commission's statement that the leak of information was "suggestive of favouritism for the benefit of the complainant" cannot be maintained unless supported by evidence to that effect. The Ombudsman therefore considers that the Commission's actions constitute an instance of maladministration.

70. As regards the implications of the above instance of maladministration, it cannot be inferred that the breach of confidentiality, whatever its source, adversely affected the evaluation procedure by preventing fair competition or implying that the outcome of the evaluation of tenders would have been different if the breach had not occurred[17]. Ultimately, the complainant lost the tender and, as stated in paragraphs 51-54 above, the reasons behind the Commission's decision not to select the complainant's tender appear to be reasonable.

71. Moreover, the complainant did not demonstrate that the statements in question could have an adverse effect on its reputation and public image. It did not argue that they could deter the complainant from participating in future calls for tender or diminish its trust in the objectivity and impartiality of the EU institutions.

72. The Ombudsman's Statute[18] foresees that, if he makes a finding of maladministration, he must try to encourage a friendly solution. In the present case, the complainant did not agree with the proposal. Therefore, the Ombudsman decides to close the case with a critical remark.

D. Conclusions

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

By stating that the complainant breached confidentiality, without providing proof to that effect, the Commission infringed the principle of the presumption of innocence. In the absence of irrefutable evidence, the Commission cannot reasonably uphold its statement that the complainant attempted to obtain confidential information, which could lead to it being included in the Early Warning System and excluded from future contracts and grants financed by the EU budget. Likewise, the Commission's statement that the leak of information was "suggestive of favouritism for the benefit of the complainant" cannot be maintained unless supported by evidence to that effect.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 12 August 2011

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[1] EuropeAid/126525/C/SER/ME

[2] 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.

[3] Article 3 (2) of the Ombudsman's Statute reads as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned."

[4] A copy of the inspection report listing the documents inspected by the Ombudsman services was sent to the complainant.

[5] Article 52 of the Financial Regulation reads as follows: "1. All financial actors and any other person involved in budget implementation, management, audit or control shall be prohibited from taking any action which may bring their own interests into conflict with those of the Communities. Should such a case arise, the person in question must refrain from such actions and refer the matter to the competent authority.

2. There is a conflict of interests where the impartial and objective exercise of the functions of a financial actor or other person, as referred to in paragraph 1, is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other shared interest with the beneficiary."

[6] Case T-160/03, AFCon Management Consultants v Commission [2005] ECR II-981, paragraphs 75-78.

[7] Section 2.8.2 of the Practical Guide to Contract Procedures for External Actions.

[8] Annex 4 to the Practical Guide to Contract Procedures for External Actions.

[9] The inspection of documents did not reveal that the Chairman of the Evaluation Committee informed the Commission of his past controversial relationship with the complainant after he found out that that it was one of the tenderers.

[10] He stated that “we (the Company) have strong reasons to believe that he (the chairman) would not be in a position to perform an objective and impartial evaluation of our tender”.

[11] The assignment was to provide technical assistance during the improvement of the public procurement system in Montenegro which subsequently became a candidate country for accession.

[12] Section 3.3.14 of the Practical Guide to Contract Procedures for External Actions.

[13] Section 2.4.14 of the Practical Guide to Contract Procedures for External Actions.

[14] Section 2.4.14 of the Practical Guide to Contract Procedures for External Actions.

[15] Section 2.4.14 of the Practical Guide to Contract Procedures for External Actions.

[16] The Instrument for Pre-Accession Assistance (IPA) offers assistance to countries involved in the accession process to the European Union (EU) for the period 2007-2013.

[17] Only an investigation carried out by OLAF would allow adequate conclusions to be drawn in this respect.

[18] Article 3(5) of the Statute of the Ombudsman provides that "as far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complainant".