THE BACKGROUND TO THE COMPLAINT

1. The European Development Funds (EDFs) were set up initially by means of an annex to the EEC Treaty and subsequently through successive agreements between Member States meeting in the Council of the European Union. The EDFs aim to finance the European Union's cooperation with the African, Caribbean and Pacific states ('ACP States'). To date, there have been nine consecutive EDFs. The agreement concerning the tenth EDF is currently in force.

2. The present complaint relates to (i) the eighth EDF, which followed the fourth ACP-EEC Convention signed at Lomé on 15 December 1989 ('the Lomé IV Convention'[1], later revised), and (ii) the ninth EDF, which followed the Partnership agreement signed in Cotonou on 23 June 2000 between the ACP States and the Community ('the Cotonou Agreement')[2]. In accordance with the relevant rules, commitments relating to previous EDFs, which were in force before the Cotonou Agreement, continue to be implemented.

3. The Lomé IV Convention[3] provides, in Article 316, that the European Commission must be represented in each ACP State by a delegate approved by the state or states concerned. Article 317 of the same Convention provides that this delegate shall have the necessary instructions and delegated powers to facilitate and expedite the preparation, appraisal and execution of projects and programmes under the EDF. Granted all the necessary back-up support to do so, the delegate shall, in close cooperation with the national authorising officer ('the NAO'), inter alia, participate and give assistance in the preparation of projects and programmes and in negotiating technical assistance contracts; participate in appraising projects and programmes; prepare financing proposals for accelerated procedures, direct-agreement contracts and contracts for emergency assistance, approve, before the NAO issues dossiers, the invitation-to-tender dossiers; be present at the opening of tenders and receive copies of them and of the results of their examination; approve the NAO's proposals for the different sorts of contracts; ensure that the projects and programmes financed from the resources of the EDF managed by the Commission are properly executed; and, in particular, make regular checks to see that operations are proceeding in accordance with the schedule laid down in the advance timetable contained in the financing decision.

4. Relatedly, Article 36 of Annex IV to the Cotonou Agreement refers to this delegate as the Head of the Delegation of the European Commission to the ACP state or states in question ('the Head of Delegation') and provides for him/her to participate in preparing tender dossiers; approve, before the NAO issues them, the local open invitations to tender; be present at the opening of tenders and informed about the results of their examination; approve the NAO's proposal for the placing of local open tenders; cooperate with the national authorities when evaluating operations regularly; and communicate to them all information and relevant documents on the procedures for implementing development finance cooperation, especially regarding appraisal and tender evaluation criteria.

5. The eighth and ninth EDFs cover two projects to which the present complaint refers, namely, CURESS I and CURESS II. Both Projects concern the conservation of a National Park in Chad. These Projects, financed by Community funds, were implemented by the Chadian Ministry of the Environment ('the MoE') and the Ministry of Finance and Informatics, originally the Chadian Ministry of Economy, Planning and Cooperation, acting as the Chadian National Coordinator for the aforementioned EDFs.

6. The technical assistance for CURESS I was carried out by the complainant, a consultancy firm, which won the tender for these services. Mr A was the individual expert and principal technical advisor who, acting on behalf of the National Coordinator, co-managed CURESS I, which started in 1989. At that time, he did not work for the complainant, but was engaged by the National Coordinator to work on its behalf.

7. In 2006, the Commission signed an agreement with the Chadian Government to launch a new project to create an institutional framework for the National Park and ultimately give it a legal personality. This new project, entitled CURESS II, was funded by the ninth EDF.

8. On 12 October 2006, the Commission's Delegation in Chad ('the Delegation') launched a tender for the technical assistance for CURESS II. The complainant submitted its bid, in which Mr A was indicated as its principal technical advisor.

9. The tender procedure comprised three consecutive stages: (i) the pre-selection; (ii) the appraisal of the pre-selected tenderers' technical offers and (iii) the appraisal of the financial offers of those pre-selected tenderers whose technical offers were awarded more than 80 points.

10. The Evaluation Committee for the pre-selection stage ('Evaluation Committee A') was composed of one representative from the MoE (Mr B) and one representative from the Delegation. Evaluation Committee A deliberated between 29 November and 5 December 2006 and short-listed, among others, the complainant's bid.

11. In parallel to the tender procedure for the long term contract under CURESS II, the Commission launched a special procedure to award a short-term contract for intermediary technical assistance to the National Park to be provided, during the period between the end of CURESS I and the beginning of CURESS II. On 16 February 2007, the complainant, who presented in its offer the same staff who worked for CURESS I, won the contract for the intermediary technical assistance. Its offer was assessed by the special Evaluation Committee ('Evaluation Committee B'), in which the MoE was represented by Mr Z.

12. At that point of time (on 20 and 27 February 2007), Mr B, together with four other officials of the MoE, sent an internal note to the Director responsible within the MoE for CURESS I and II, in which they criticised Mr A's performance during CURESS I.

13. On 28 February 2007, the Commission invited the short-listed bidders, including the complainant, to send their technical offers before 2 May 2007 and invited the National Coordinator and the MoE to propose their candidates for the definitive Evaluation Committee ('Evaluation Committee C'). The MoE again appointed Mr B.

14. Evaluation Committee C was established and ready for deliberations as from 2 May 2007.

15. The Commission and the National Coordinator were informed by the complainant that the presence of Mr B in Evaluation Committee C could result in a conflict of interest because of his stance towards Mr A. On 2 May 2007, the Commission sent a short e-mail to Mr A in this respect. The Contracting Authority and the Commission also asked the MoE whether it maintained its appointment of Mr B. On 10 May 2007, the MoE replied positively, pointing out that, on 3 May 2007, Mr B had signed the declaration of impartiality, like every other member of the Evaluation Committee.

16. On 14 and 15 May 2007, Evaluation Committee C (including Mr B as its member) decided that the tender should be awarded to another company. The complainant was informed that its application was unsuccessful on the grounds that the aforementioned Evaluation Committee awarded a mark of 68 out of 100 to the complainant's technical bid; the average mark required to progress to the next stage of the tender was 80 out of 100.

17. The complainant argued that its bid was unfairly assessed because of Mr B's presence in Evaluation Committee C and sent a letter to the Delegation in this respect. On 1 June 2007, the Delegation replied stating that it disagreed with the complainant's view.

18. On 6 December 2007, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

19. The complainant alleged that its offer in tender procedure EUROPEAID/124134/D/SER/TD was unfairly rejected because there was a conflict of interest between a member of the Evaluation Committee and the principal technical advisor included in the complainant's offer.

20. The complainant submitted the following claims.

1. The contract with the successful bidder should be annulled and a new tender procedure should be launched.
2. He should receive EUR 377 540 as compensation for the harm suffered.

21. As regards the second claim and pursuant to Article 2(4) of his Statute[4], the Ombudsman found that it was inadmissible because the complainant had not made any prior administrative approaches to the Commission concerning this matter. The Ombudsman informed the complainant of the above but stated, however, that if he were to find maladministration, he would consider whether payment of reasonable compensation to the complainant could be a possible solution.

THE INQUIRY

22. On 18 December 2007, the Ombudsman opened an inquiry regarding the complainant's allegation and above claim (1) and asked the Commission to send its opinion by 31 March 2008.

23. On 31 July 2008, the Commission sent its opinion[5]. The Ombudsman forwarded it to the complainant with an invitation to make observations, which he sent on 29 August 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. The alleged conflict of interest

Arguments presented to the Ombudsman

24. The complainant alleged that its offer in the tender procedure was unfairly rejected because there was a conflict of interest between a member of Evaluation Committee C (Mr B) and the principal technical advisor included in the complainant's offer (Mr A).

25. In support of its view, the complainant referred to the following facts:

(a) Mr B worked under CURESS I, whose manager was Mr A, but his performance was not good enough and he was dismissed.

(b) Shortly before Evaluation Committee C assessed the complainant's technical offer, Mr B sent two internal notes ('the notes of February 2007') to the Director responsible within the MoE for both CURESS I and CURESS II. In the said notes, Mr B heavily criticised Mr A, mainly for his treatment of "national managerial staff" during CURESS I.

26. Finally, the complainant took the view that the Commission was aware of the issues raised in (a) and (b) above (the complainant attached a copy of an e-mail dated 2 May 2002, in which an official from Commission's Directorate-General for External Relations (DG Relex) asked Mr A why Mr B had left CURESS I)[6] but failed to take appropriate action.

27. In its opinion, the Commission first referred to the definition of a conflict of interest, as provided in the Glossary of the EDF[7] and denied that there could be a conflict of interest in the present case because the assessment by Mr B as a member of the Evaluation Committee C was not "affected by his own interests or an event which could influence his capacity to provide a professional and objective opinion on tenderers." The Commission pointed out in this respect that:

(a) Mr B, as a member of Evaluation Committee C, signed the declaration of impartiality, in accordance with Article 3.3.2 of the Practical Guide[8];

(b) in the notes of February 2007, Mr B expressed his "professional opinion" and this fact alone is not sufficient to question the declaration of impartiality signed by him;

(c) the notes of February 2007 refer to the management of CURESS I and not "a precise event which occurred after the selection"; and

(d) Mr B was also a member of Evaluation Committee A, which decided in favour of the complainant in the pre-selection stage. No element indicated a potential conflict of interest during the subsequent deliberations of Evaluation Committee C.

28. The Commission also stated that it behaved appropriately in relation to the accusations concerning the conflict of interest, taking into account the view of its Chadian "partners". When it became aware of the accusations, the Commission examined the facts, as well as the notes of February 2007, and contacted the Ministry of the Environment on 3 May 2007[9] in order to check whether the latter "confirmed the presence of Mr B in Evaluation Committee C." On 10 May 2007, the Ministry informed the EC Delegation that "Mr B. [had] signed the declaration of confidentiality and would act accordingly", and "strongly maintained [its] choice."

29. Moreover, the Commission underlined that it considered the participation Evaluation Committee C of representatives of both the National Coordinator and the Ministry of the Environment who represented the views of these institutions to be very important. This was because the management of CURESS II had to be organised in such a way so as to strengthen the role of the central and local authorities.

30. The Commission further stated that the procedural rules were respected by Evaluation Committee C. Each evaluator assessed the applications in detail, the relevant marks were compared and, following discussions, the evaluators reviewed the marks awarded. The Commission referred to Article 2.8.3[10] (Responsibilities of the Evaluation Committee members) of the Practical Guide, pursuant to which the voting members of the Evaluation Committee have collective responsibility for decisions taken by it. The Commission put forward that the mark (68 points) awarded to the complainant's technical offer, was an average of the marks given by all three evaluators (including Mr B). However, even if the mark given by Mr B had not been taken into consideration, the marks of both remaining evaluators would have given an average of 77 points for the complainant, which was still less than the pass mark of 80 points necessary to advance to the final stage of the tender.

The Ombudsman's assessment

31. At the outset, the Ombudsman points out that, in accordance with Article 21 of Annex IV to Cotonou Agreement (Participation on equal terms), "the ACP States and the Commission shall take the necessary measures to ensure the widest possible participation on equal terms in invitations to tenders (...)"

32. In addition, Article 195 of the EC Treaty precludes the Ombudsman from dealing with allegations against institutions and bodies other than those of the Community. Therefore, he will not take a stance in the present inquiry on the Chadian authorities' position towards the accusations of a conflict of interests within Evaluation Committee C. He will only assess whether the Commission applied a sufficient degree of care and diligence when monitoring the appropriateness of the selected Evaluation Committee members by the national Chadian authorities, in order to ensure that the applicable rules were complied with by the latter. In this respect, and with reference to the legal background of the complaint as presented in paragraphs 1 to 4 above, the Ombudsman points out that all the Community external aid projects make incumbent upon the Commission an obligation and a duty of care that funds are spent in accordance with the applicable rules[11] and European standards. It is worth emphasising that the aforementioned standards include the principle of equal opportunities for all tenderers regardless of their nationality, as well as the principle of transparency[12]. In addition, it is important to point out that allegations of possible conflicts of interest between tenderers and members of evaluation committees require the institution involved to act[13].

The alleged conflict of interests

33. The Ombudsman understands that the definition of a conflict of interest, as provided in the Glossary of the EDF, to which the Commission referred in its opinion, applies to the members of evaluation committees by analogy. In terms of that definition, the conflict of interest may arise if there is:

"[any] event influencing the capacity of a candidate, tenderer, contractor or grant beneficiary to give an objective and impartial professional opinion, or preventing it, at any moment, from giving priority to the interests of the Contracting Authority. Any consideration relating to possible contracts in the future or conflict with other commitments, past or present, of a candidate, tenderer, contractor or grant beneficiary (...)"

34. The Ombudsman takes the view that, as a general rule, a conflict of interest may arise from a combination of circumstances which does not imply any fault on the part of the person concerned, but, nevertheless, casts objective doubts on his/her impartiality. It is worth recalling in this context that the European Court of Human Rights (ECHR), in its judgment Fey v Austria[14], which may apply by analogy to administrative procedures, pointed out the necessity of carrying out an objective test to verify whether there are such circumstances which could provoke legitimate and objective doubts on the part of the wider public that a conflict of interest could arise.

35. In the present case, the Commission did not contest that (i) Mr B, an official of the MoE, worked under CURESS I in 2004, which was managed on behalf of the National Coordinator by Mr A and that (ii) Mr B had to resign from the project because of his "incapacity to carry out his tasks and insufficient performance"[15].

36. These facts alone could provoke legitimate and objective doubts as to whether Mr B's subsequent capacity to deliver an objective and impartial professional opinion on the complainant's bid, in which Mr A was indicated as the complainant's principal technical advisor, was not affected.

37. Moreover, the subsequent notes of February 2007, of which Mr B was one of the authors, should be read exactly against the background points (i) and (ii) mentioned in paragraph 35 above. In one of the notes of 27 February 2007, Mr B (and others) stated precisely the following:

"We would like to take advantage of this occasion to specify the misdemeanours of Mr A., principal technical advisor of CURESS project, who behaves like a real colonial administrator towards all the senior executive and agents working on the project (...) There was constant tension between him and the project's national and international staff, to whom he never listened. Irritated by his racist behaviour, (...) as well as his incompetence, a lot of national staff resigned from the project (...)"[16]

38. In light of the above, the Ombudsman cannot agree with the Commission that the above statements represent the "professional opinion" of Mr B. The notes of February 2007 do not appear to reflect the position of the MoE concerning CURESS II, but rather Mr B's personal opinion on Mr A regarding the latter's duties under CURESS I. The Ombudsman is unaware of any facts which may suggest that the notes of February 2007 were issued pursuant to the instructions of the Contracting Authority or of the MoE.

39. Finally, the Ombudsman points out the fact that Mr B wrote the notes of February 2007 to his superiors at the MoE after the complainant was pre-selected by Evaluation Committee A and before Evaluation Committee C assessed the complainant's technical offer.

40. Provided that, as argued by the Commission, the evaluators had to represent the views of their institutions (in the case of Mr B, therefore, the view of the MoE, which wanted to change the technical assistance of CURESS II from that of CURESS I[17]), this timing may reasonably suggest that the aim of these notes was to influence the MoE's view of Mr A as the complainant's principal technical advisor.

41. The Ombudsman considers that the circumstances, as described in paragraphs 35, 36 and 37 above, could cast objective doubts on Mr B's impartiality. In these circumstances, the declaration of impartiality signed by Mr B is not sufficient to eliminate these doubts.

The Commission's actions when the possible conflict of interest came to light

42. According to the Practical Guide[18], the Commission has to approve the composition of the Evaluation Committee. The composition of the committee is deemed approved if the Commission does not object to it within five days from the date it receives the proposal.

43. In the present case, the MoE and the National Coordinator submitted their proposed candidates to be members of the Evaluation Committee on 2 May 2007. Starting from that date, the Commission had thus five working days to approve or reject the composition of the Evaluation Committee.

44. On the basis of the evidence available, it is not clear when the Commission was informed that there was a possible conflict of interest between Mr B and Mr A. It should be noted however that, on 2 May 2007, the Commission sent an e-mail to Mr A which reads as follows:

"(...) Concerning the Evaluation Committee meeting foreseen tomorrow, I have explained to [name of a colleague] the difficulty to have [Mr B] sign a letter of impartiality given that he had signed the letter to the Director in which he criticised the management relating to the ivory poaching. Could you inform me promptly of the reasons for his departure from CURESS, when this happened, and what kind of problems he encountered?"[19]

45. On the basis of the evidence available, the Ombudsman is unaware of the content and of the date of Mr A's reply. However, it is reasonable to consider that, given the further developments of the complaint, Mr A did not deny, in that reply, that Mr B was forced to leave CURESS 1 because of his insufficient performance, as stated in the letter of 14 December 2004 from the Head of CURESS I (Mr S.B.) to the Director of the Conservation for wildlife and protected areas.

46. Nevertheless, the Ombudsman notes that at that point of time, the Commission asked the MoE "whether it maintained [Mr B]'s appointment" and that, on 10 May 2007, the MoE replied that Mr B had signed the declaration of impartiality and upheld its decision to appoint Mr B as a member of the Evaluation Committee. As a result, the Commission approved the composition of Evaluation Committee C with Mr B as its member.

47. Even if the Ombudsman cannot exclude that the Commission had to take into account the MoE's strong support of Mr B, this cannot preclude the Commission from ensuring that it respects Community standards wherever the spending of Community funds are involved.

48. The Ombudsman is not convinced that the only actions which the Commission took and to which it referred in its opinion, that is, the e-mail to Mr A of 2 May 2007 and the letter to the MoE questioning whether it maintained its appointment of Mr B, were sufficient to eliminate the doubts concerning the Mr B's impartiality in the circumstances of the present case.

49. Moreover, the Commission did not demonstrate that such actions were the only ones at its disposal.

50. This was an instance of maladministration. Accordingly, the Ombudsman will make a critical remark below.

B. The complainants' claims

Arguments presented to the Ombudsman

51. The complainant claimed that the contract with the successful bidder should be annulled and a new tender procedure should be launched.

52. Moreover, the complainant claimed that it had lost the opportunity to be awarded and perform the contract covered by the tender procedure. In this context, it claimed that it should receive EUR 377 540 as compensation for the harm suffered. Pursuant to Article 2(4) of his Statute, the Ombudsman considered this claim to be inadmissible due to the lack of prior administrative approaches on the part of the complainant, but stated that if he were to conclude that the Commission's behaviour constituted an instance of maladministration, he would consider whether payment of reasonable compensation could be a possible solution.

53. In support of its claims, the complainant pointed out that, because of his negative attitude towards Mr A, Mr B could have influenced the remaining members of Evaluation Committee C against the complainant's tender.

54. The Commission stated that the complainant's claims were unfounded.

The Ombudsman's assessment

First claim

55. First, the Ombudsman points out that, even if he were to consider that, for reasons stated in paragraph 44 above, the circumstances of the present case could cast objective doubts on Mr B's impartiality, the complainant did not demonstrate that Mr B's performance as a member of Evaluation Committee C was in fact partial.

56. In addition, the Ombudsman recalls that the decisions of tender evaluation committees are collegial and there is no indication that the mark given by Mr B contributed decisively to the complainant's failure.

57. Finally, even if the complainant's argument that Mr B could have influenced the other members of Evaluation Committee C has its merits, it is still only a hypothetical argument and the complainant did not prove that this was the case.

58. In light of the above, the Ombudsman considers that the complainant's first claim cannot be sustained.

Second claim

59. The Ombudsman notes that, according to established case-law, if the Community is to incur non-contractual liability, it is necessary to provide evidence that (i) the conduct of which the Community is accused is illegal; (ii) the alleged damage is real; and (iii) there is a causal link between that conduct and the alleged damage[20].

60. In the present case, the Ombudsman considers that the complainant's damage relating to the loss of opportunity was not real and certain[21].

61. Even if the composition of Evaluation Committee C had been different and/or the marks it awarded to the complainant were higher and the complainant had been recommended by the said Committee, it is not certain that this contract would have been awarded to the complainant. It is also not certain whether it would be necessary to annul the entire procedure and launch a new tender, or whether this new tender would result in the complainant's success and the subsequent award of the contract to it. According to the case-law of the Community courts, which could apply by analogy, the Contracting Authority is not bound by an Evaluation Committee's proposal and has a broad discretion when assessing the factors to award a contract[22].

62. In light of the above, the Ombudsman concludes that the complainant's second claim cannot be sustained either.

C. Conclusions

On the basis of his inquiries into this complaint, the Ombudsman makes the following critical remark:

The Ombudsman is not convinced that the actions which the Commission took and to which it referred to in its opinion, that is, the e-mail to Mr A and the letter to the Ministry of the Environment, were sufficient to eliminate the objective doubts concerning Mr B's impartiality in the circumstances of the present case. Moreover, the Commission did not demonstrate that such actions were the only ones at its disposal. This was an instance of maladministration.

Given that the facts of the case relate to the specific events in the past, a friendly solution does not appear to be possible. The Ombudsman therefore closes the case.

As regards the complainant's claims, the Ombudsman concludes that they cannot be sustained.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 26 January 2009

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[1] See OJ 1991 L 229, p. 3.

[2] The Cotonou Agreement is available at: http://ec.europa.eu/development/geographical/cotonou/cotonoudoc_en.cfm.

[3] OJ 1991 L 229, p. 3.

[4] Article 2(4) Statute of the European Ombudsman reads as follows: "The complaint (...) must be preceded by the appropriate administrative approaches to the institutions and bodies concerned."

[5] The Commission sent four consecutive requests to extend the deadline for submitting its opinion, explaining that, due to the political situation in Chad, it encountered difficulties to collect the necessary information from its Delegation there.

[6] See, in particular, the following sentence (French original version):

"(...) En ce qui concerne le comité d'évaluation pour demain, j'ai expliqué à X la difficulté de faire signer une lettre d'impartialité de la part de [M. B.], étant donné qu'il avait signé le courrier au Directeur critiquant la gestion de l'ivoire...Pourrais-tu me dire rapidement quand et pourquoi il avait quitté le CURESS et quels étaient les problèmes rencontrés par lui ?"

[7] Glossary of terms - EDF - General Annexes A1 available at: http://ec.europa.eu/europeaid/work/procedures/implementation/practical_guide/index_en.htm

[8] Article 3.3.2. (Establishment of shortlist) reads as follows: "(...) All members of the Evaluation Committee are obliged to sign a Declaration of Impartiality and Confidentiality."

[9] The Ombudsman understands that the Commission means to refer to 3 May 2007 as the date of its contact with the MoE and not 3 June 2007, as stated in its opinion.

[10] Article 2.8.3 of the Guide "Responsibilities of the Evaluation Committee members" reads as follows:

"(...) The voting members of the Evaluation Committee have collective responsibility for decisions taken by the Committee."

[11] Notably the procurement rules laid down in Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement; (ii) the General Regulations for service, supply and work contracts financed by the EDF, annexed to the Decision 2/2002 of the ACP-EC Council of Ministers of 7 October 2002 regarding the implementation of Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement (the "General Regulations of Decision 2/2002"), OJ 2002 L 320; and, in the present case, (iii) contract procedures financed from the 9th European Development Fund.

[12] See, in this regard, Case C-496/99 P, Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 108 - 111.

"The Court has consistently held, in cases concerning public procurement, that the contracting authority is required to comply with the principle that tenderers should be treated equally (see, inter alia, Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 37, and Case C-315/01 GAT [2003] ECR I-6351, paragraph 73).

It is also clear from the case-law that the abovementioned principle implies an obligation of transparency in order to permit verification that it has been complied with (see, inter alia, Case C-92/00 HI [2002] ECR I-5553, paragraph 45, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 91).

Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions.

The principle of transparency which is its corollary is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract."

[13] Case T-160/03 AFCon Management Consultants and others v. Commission [2005] ECR II-981:

"After the discovery of a conflict of interests between a member of the evaluation committee and one of the tenderers, the Commission must act with due diligence and on the basis of all the relevant information when formulating and adopting its decision on the outcome of the procedure for the award of the tender at issue. That obligation derives in particular from the principles of sound administration and equal treatment (...) In that regard, where a conflict of interests between one of the tenderers and a member of the committee responsible for evaluating the tenders comes to light, the Commission has some discretion to determine the measures which must be taken in respect of the conduct of the subsequent stages of the procedure for the award of the tender."

[14] See ECHR (Chamber) judgment of 24 February 1993 on Application No. 14396/88, Fey c. Austria paragraphs 28-30.

[15] See, in this context, the letter of 14 December 2004 from the Head of project CURESS I to the Chadian Director for the Conservation of Wildlife and Protected Areas, which reads as follows:

"During the last four working years, the results of Mr B are well under what we were entitled to expect from a senior member of staff who has attended numerous training sessions." (Translation from the French original version).

[16] Translation from the French original version.

[17] In its letter to the complainant dated 1 June 2007, the Commission stated inter alia: (translation from the French original version):

"It is a fact that the Ministry of the Environment is critical towards CURESS and wished to change the service contractor after more than 6 years of collaboration."

[18] Point 2.8 1 of the Practical Guide reads as follows: "The Evaluation Committee (i.e., the Chairperson, the Secretary and the voting members) must be nominated on a personal basis by the Contracting Authority. The composition of the Evaluation Committee must be submitted for approval to the European Commission. The composition of the committee is deemed approved if after 5 working days, the European Commission has not 'made' any objections (...)"

[19] Translation from the French original version.

[20] See, in this regard, Case T-54/96, Oleifici Italiani SpA and Fratelli Rubino Industrie Olearie SpA v Commission [1998] ECR II-3377, paragraph 66:

"[a]ccording to consistent case-law, if the Community is to incur non-contractual liability, it is necessary to prove that a number of conditions regarding the illegality of the conduct of which the Community institutions are accused are met, that the alleged damage is real and that there is a causal link between that conduct and the alleged damage (Case T-184/95 Dorsch Consult v Council and Commission [1998] ECR II-667, paragraphs 59 and 60, and the case-law cited; Case T-168/94 Blackspur and Others [1995] ECR II-2627, paragraphs 38 and 40, and the case-law cited; and Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier Frères and Others v Council [1979] ECR 3091, paragraph 21), the burden of proving that such conditions are in fact met being borne by the applicants (Case T-185/94 Geotronics v Commission [1995] ECR II-2795, paragraph 39)."

[21] See, by analogy, Case T-54/96 Oleifici Italiani and Fratelli Rubino Industrie Olearie v Commission [1998] ECR II-3377, paragraph 66.

[22] Case T-13/96 TEAM v Commission [1998] ECR II-4073, paragraph 76.