Dear Mr H.,

On 6 September 2002 you made a complaint to the European Ombudsman concerning the decision of the European Foundation for the Improvement of Living and Working Conditions (hereinafter called "EUROFOUND") to reject the tender of the European Industrial Relations Observatory due to failure to comply with a formal requirement.

On 9 October 2002, I forwarded the complaint to the Director of EUROFOUND. On 14 October 2002 and 20 November 2002, you contacted the European Ombudsman Secretariat by phone about your complaint. On 25 November 2002, EUROFOUND sent its opinion and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant sent the tender of the European Industrial Relations Observatory (EIRO) in one sealed official Ministry of Labour envelope, which was sealed in a DHL courier plastic envelope. The tender arrived to the European Foundation for the Improvement of Living and Working Conditions (EUROFOUND) on time. EUROFOUND rejected the complainant's tender because it did not comply with a tender instruction according to which the tender must be submitted in a double sealed envelope.

The complainant complains about the decision of EUROFOUND to reject the tender of the EIRO due to failure to comply with a formal requirement. The complainant alleges that EUROFOUND was not entitled to reject the tender on this ground.

On 14 October 2002 and 20 November 2002, the complainant contacted the European Ombudsman Secretariat by phone about his complaint. The complainant confirmed that he had not fulfilled the condition of using two sealed envelopes, which had led to the rejection of his tender. However, he questioned whether the rule was reasonable and whether it should be applied strictly.

THE INQUIRY

EUROFOUND's opinion

In its opinion EUROFOUND made the following comments:

Although the tender procedure is not completed and contracts have not yet been awarded, EUROFOUND wishes to demonstrate that it has treated the complainant and all other bidders fairly. Accordingly, EUROFOUND examined their records, which confirm that the opening committee did not consider the bid from the complainant to be admissible because a second sealed envelope was not used.

It would appear that the only question at dispute was whether failure to comply with the requirement to submit tender bids in a sealed envelope within a second sealed envelope should be considered grounds for counting a bid inadmissible.

EUROFOUND follows the relevant EU regulations in respect of awarding service contracts. As the vademecum of the European Commission's Advisory Committee on Procurement and Contracts states:

To ensure confidentiality and avoid objections at a later stage, the specifications or the letter of invitation to tender must include the following clause: " Tenders must be placed inside two sealed envelopes. The inner envelope, addressed to the department indicated, should be marked 'invitation to tender - Not to be opened by the internal mail service'. If self-adhesive envelopes are to be used, they must be sealed with adhesive tape and the sender must sign across the tape seal."

The tender notice in the Official Journal was explicit in stating this requirement.

EUROFOUND ensures that it follows this, and other obligations, strictly, fairly and evenly. EUROFOUND understands the disappointment of the complainant, whom they have found a satisfactory contractor in the past, but EUROFOUND was obliged to be even handed in applying the relevant procedures.

The complainant's observations

The complainant appears not to have submitted any observations.

THE DECISION

1 Decision to reject the tender due to failure to submit the tender in a double envelope

1.1 The complainant complains about the decision of EUROFOUND to reject the tender of the European Industrial Relations Observatory due to failure to comply with a formal requirement. The formal requirement concerned a tender instruction according to which the tender must be submitted in a double sealed envelope. The complainant alleges that EUROFOUND was not entitled to reject the tender on this ground.

1.2 According to EUROFOUND, the opening committee did not consider the bid from the complainant to be admissible because a second sealed envelope was not used. EUROFOUND stated that it follows the relevant EU regulations in respect of awarding service contracts. According to the Vademecum of the European Commission's Advisory Committee on Procurement and Contracts the aim of the formal requirements is to ensure confidentiality and avoid objection at a later stage.

1.3 The Ombudsman observes that the tender notice 2002/S 127-098701 published in the Official Journal provided under point 10 (c) the following:

"Three copies of the tender must be submitted in a sealed envelope. This envelope must in a second sealed envelope. The envelopes must addressed as in paragraph 1 above and marked: "Invitation to Tender for the provision of services by EU national centers for EIRO: European Industrial Relations Observatory (project no. 0188) Tender from (institution name). To be opened by the Opening Committee only".

1.4 The Ombudsman considers that since the requirement in question was explicitly set out in the notice of tender, EUROFOUND was entitled to reject the complainant's tender bid on grounds that it failed to comply with the above requirement. Therefore, there appears to be no maladministration.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Foundation for the Improvement of Living and Working Conditions. The Ombudsman therefore closes the case.

The Director of EUROFOUND will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN