Dear Mr X.,

On 27 August 2001, you made a complaint to the European Ombudsman concerning alleged irregularities in the context of an invitation to tender concerning the external management of a service on the premises of the European Investment Bank, hereinafter called "the EIB".

On 23 October 2001, I forwarded the complaint to the President of the European Investment Bank. The EIB sent its opinion on 23 January 2002. I forwarded it to you with an invitation to make observations, which you sent on 5 April 2002. On 3 May 2002, I requested further information and forwarded your observations for a possible complementary opinion from the EIB. On 28 June 2002, the EIB sent the requested further information and its complementary opinion. I forwarded those to you with an invitation to make complementary observations, which you sent on 30 September 2002.

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

THE COMPLAINT

The complainant was responsible for the management of a service of the European Investment Bank, hereinafter called "the EIB", for several years under a service contract between the EIB and the complainant's company signed in 1994. The EIB extended the above mentioned service contract four times. In 2000, the EIB launched a market consultation for the external management of the service. The selected organisations were to submit a detailed tender according to the Terms of reference communicated to them in June 2000. On the basis of this market consultation the EIB launched in Autumn 2000 a restricted tender procedure. In October 2000, the EIB informed the complainant that his company had not been awarded the contract.

On 15 June 2001, the complainant wrote to the EIB requesting complementary information on the results of the tender procedure: number of organisations invited to submit a tender, number of tenderers, final ranking of the tenderers, and reasons for which the complainant's tender was not selected.

By letter of 12 July 2001 the EIB informed the complainant that eight organisations expressed interest in participating in the invitation for tender, that four organisations had participated, and gave the name of the organisation which was awarded the service contract. According to the EIB, the complainant's tender was fourth out of four organisations in ranking on the basis of the evaluation criteria as stipulated in the Terms of reference of the invitation for tender.

In his complaint to the Ombudsman, the complainant raises the following points concerning the tender procedure and the EIB's evaluation of the tenders:

Lack of transparency in the opening of the tenders in secret. Procedural irregularity, in that the EIB used a restricted instead of an open tender procedure; finalised the evaluation criteria after the opening of the tenders; and obliged the new service provider to recruit the existing staff of the old service. Discrimination in that the complainant's company was not invited to visit the premises. Lack of adequate statement of reasons in the decision to reject the complainant's tender. Partiality in that two members of the tender evaluation panel were partial against the complainant's company. The complainant refers on this point to two e-mail messages sent by members of the tender evaluation panel which, according to him, were hostile towards his company.

Furthermore, the complainant argues that by letter dated 25 September 2000 the EIB informed the tenderers that, "[L]e Concessionnaire doit obtenir les autorisations et l'agrément requis par la législation luxembourgoise préalablement au démarrage de l'exploitation". In addition, Article 13 of Draft Contract annexed to the invitation for tender provided that: "[L]e Concessionnaire déclare être en possession de toutes les autorisations nécessaires pour l'exécution du présent contrat et s'engage à en justifier la Banque. Il fournit en particulier la preuve de l'agrément gouvernemental...". According to the complainant, the winning organisation received the governmental authorisation only nine months after the entry into force of the contract.

In summary therefore, the complainant alleges that:

(1) the EIB's tender evaluation panel committed procedural and evaluation errors such as lack of transparency, discrimination and partiality;

(2) the EIB's decision to reject the complainant's tender was not supported by an adequate statement of reasons; and

(3) the winning candidate did not have compulsory governmental authorisation to run the service.

The complainant claims that the tender procedure should be cancelled and the award of the service contract declared void.

THE INQUIRY

The opinion of the European Investment Bank

The EIB made in its opinion, in summary, the following comments:

As regards the tender procedure, the EIB stated that it had applied rules based on Community Directives on tender procedures(1). The EIB argues that it had a choice between a restricted and open tender procedure and that it chose to use a restricted procedure. The opening of tenders was carried out following the handbook of internal procedures. The handbook provides that the members of the panel shall be present at the opening of the tenders. The members are representatives of the different services of the EIB and they should, if possible, represent different nationalities.

The EIB contested the complainant's allegation regarding the finalisation of the evaluation criteria after the opening of the tenders. All tenderers received in August 2000 the Terms of reference, which contained the evaluation criteria, the weighting and rules on how to obtain the maximum points. These criteria were respected and taken into account, as proven by the minutes of the meeting of the tender evaluation panel.

The EIB had no intention to discriminate against the complainant, when it stated that the complainant could be exempt from the collective visit of the premises. On the contrary, the complainant knew the quarters perfectly well having managed the service for several years. The exemption was merely intended as a suggestion to avoid an unnecessary visit. As the complainant clarified that he preferred to participate in the visit, he obviously was able to do so.

As to the alleged partiality of the tender evaluation panel, the EIB emphasised that the composition and number of members of the panel aimed at an impartial decision and each member was bound by the evaluation criteria in the Terms of reference. According to the EIB, the two e-mail messages cannot be considered as hostile towards the complainant's company.

As regards the alleged lack of adequate statement of reasons, the EIB informed the complainant's company of its ranking. According to the EIB, it is not customary to communicate all comments or evaluations during the meeting of the tender evaluation panel. The result of the tender evaluation panel is an adequate means to establish the ranking without specific comments. The EIB confirmed that the complainant's tender fulfilled all the necessary conditions and presented a team able to take up the functions from 1 January 2001. However, this aspect constituted only one of the evaluation criteria (weighting of 35 out of 100). Furthermore, the other tenderers also presented teams of good quality and the evaluation and final decision was up to the tender evaluation panel. The EIB annexed to its opinion a copy of the minutes of the tender evaluation panel and the completed evaluation grid which were forwarded to the complainant.

As regards the alleged obligation to recruit the existing staff, the EIB clarified that it had only informed the tenderers of the laws in force in Luxembourg regarding the obligation to recruit in part or in full the existing staff of the former service provider. This was done in order to inform all tenderers and, particularly, those not familiar with the Luxembourg legislation. According to the EIB the winning candidate is perfectly in order with the governmental authorisation. The EIB referred as proof to a letter from the responsible of Luxembourg dated 4 October 2001.

On the basis of the above, the EIB considered that the tender procedure was carried out in a transparent and honest manner respecting the rules on tender procedures and Luxembourg legislation.

The EIB was of the view that the complainant had had the possibility to make use of the appeals mechanisms within the framework of the Code of Good Administrative behaviour for the staff of the European Investment Bank in its relations with the public published in the Official Journal of the European Communities(2) and on the internet site of the EIB in all official languages of the European Union.

According to the EIB, the complaint was not justified and no elements justifying the cancelling of the award have been presented.

The complainant's observations

The complainant maintained his complaint. The complainant argued that other institutions invite tenderers to the opening of tenders and draft minutes of the meeting. The complainant presented a new allegation that the results of the restricted tender procedure were not published in the Official Journal and that therefore, the EIB's procedure was in contradiction with Article 16 (1) and Article 17 (3) of Directive 92/50/EEC of 18 June 1992. The complainant was of the view that the evaluation criteria applied by the EIB were vague and imprecise. Furthermore, the EIB's opinion did not contain the reasons for the rejection of the complainant's company.

As regards the alleged partiality of members of the tender evaluation panel, the complainant was of the view that the panel should have been composed of independent members of the personnel of the EIB with no particular knowledge of the management.

The complainant contested the statement made by the EIB concerning the recruitment in part or in full of the former staff of the service. According to him, the Luxembourg legislation does not contain any obligation for the winning candidate to recruit the existing staff.

The complainant restated his allegation that the winning candidate did not have compulsory governmental authorisation required from the tender candidates.

Further inquiries

After careful consideration of the EIB's opinion and the complainant's observations, it appeared that further inquiries were necessary.

On 3 May 2002, the Ombudsman requested information on why the tenderer who was awarded the contract did not provide the governmental authorisation prior to the execution of the contract as indicated in the EIB's letter of 25 September 2000 and in the draft contract attached as annex 3 to the tender dossier.

The complementary opinion of the European Investment Bank

On 28 June 2002, the EIB sent the requested information. According to the EIB, the requirement to provide a governmental authorisation was mentioned in the letter and in the draft contract primarily in order to ensure that all organisations submitting a tender were aware that the EIB's service was subject to Luxembourg legislation. The EIB had no prior experience of the detailed prerequisites for obtaining the permit since the relevant legislation had come into force after the Bank contracted initial operation of its service.

The winning tenderer sent a formal request to the relevant authorities on 21 December 2000 fully in accordance with the spirit of the EIB's requirement, although in fact arrangements regarding employment of staff could not be finalised until the contract between the EIB and the complainant's company had lapsed at the end of the year. It kept the EIB fully informed of its steps with the authorities including the visits to ministerial representatives during early months of 2001. Thus, the EIB learned that the Ministry was encountering difficulties with the the proposed manager of the service. The matter was resolved in June 2001. Ministerial representatives then made an inspection visit of the premises, and the permit was subsequently granted. The process of providing a governmental authorisation to an organisation not yet based in Luxembourg was perhaps an unusual one for the Luxembourg authorities and it therefore took time to settle. The EIB noted that the authorities did not order closure of the service in the interim. Moreover, coverage by all necessary insurances was obtained in anticipation of the situation being regularised in due course. The EIB maintained that there was no obligation to recruit existing staff. In order to provide as much information as possible to bidders, the EIB drew attention to prevailing legislation and possible implications to tenderers.

In its complementary opinion on the complainant's observations, the EIB maintained its original arguments. As regards the new allegation that the EIB's procedures were in contradiction with Directive 92/50/EEC, the EIB stated that for awards listed in annex 1B of Article 16(3) of Directive 92/50/EEC, such as the award in question, the obligation is to inform the tenderers. The EIB argued that it has duly informed all tenderers of the outcome with its standard procedures.

The complainant's complementary observations

The complainant maintained his complaint and argued that the composition of the tender evaluation panel was biased against his company and that the EIB favoured the winning organisation. The complainant was of the view that the winning organisation should have obtained the governmental authorisation before the beginning of the contract. According to the complainant, the statement that all tenderers presented technical teams of good quality was false on grounds that the EIB kept the existing staff.

THE DECISION

1 Alleged procedural and evaluation errors

1.1 The complainant alleges that the EIB's tender evaluation panel committed procedural and evaluation errors such as lack of transparency, discrimination and partiality in awarding a contract for external management of the service on its premises. Lack of transparency in the opening of the tenders in secret. Procedural irregularity, in that the EIB used a restricted instead of an open tender procedure; finalised the evaluation criteria after the opening of the tenders; and obliged the new service provider to recruit the existing staff. In his observations, the complainant presents a new allegation that by not publishing the results of the restricted tender procedure in the Official Journal, the EIB is in contradiction with Article 16 (1) and Article 17 (3) of Directive 92/50/EEC. Discrimination in that the complainant's company was not invited to visit the premises. Partiality in that the tender evaluation panel was biased against the complainant's company.

1.2 The EIB states that it applied rules based on Community Directives on tender procedures. The EIB argues that it had a choice between a restricted and open tender procedure and that it chose to use a restricted procedure. The opening of tenders was carried out following the handbook of internal procedures which provides that panel members representing various services of the EIB shall be present. All tenderers received in August 2000 the Terms of reference, which contained the evaluation criteria. Furthermore, the EIB argues that it had only informed the tenderers of the laws in force in Luxembourg regarding the obligation to recruit in part or in full the existing staff of the former service provider. This was done in order to inform all tenderers and, particularly, those not familiar with the Luxembourg legislation. As regards the allegation that the EIB's procedures were in contradiction with Directive 92/50/EEC, the EIB states that for awards listed in annex 1B of Article 16(3) of Directive 92/50/EEC, such as the present award, it had an obligation to inform the tenderers of the outcome, which it did in accordance with its standard procedures.

1.3 According to the EIB, it had no intention to discriminate against the complainant, when it underlined that the complainant could be exempt from the collective visit. On the contrary, the complainant knew the quarters perfectly well having managed the service for several years. The exemption was merely intended as a suggestion to avoid an unnecessary visit.

1.4 As to the alleged partiality of the tender evaluation panel, the EIB explains that it selects panel members in accordance with its own rules and guidelines, which are fully compatible with the provisions of the Directive. The EIB states that the composition and number of members of the Committee aimed at an impartial decision making and each member was bound by the evaluation criteria set in the Terms of reference.

The Ombudsman's findings

1.5 The Ombudsman firstly notes that the handbook of internal procedures of the EIB provides that the opening of tenders takes place in a meeting between the members of the tender evaluation panel and that minutes of the meeting will be drawn up. Therefore, by not inviting the tenderers to attend the opening of tenders the EIB appears to have respected its handbook of internal procedures. Secondly, the Ombudsman observes that under Community law on public procurement, the EIB appears to have been entitled to use the restricted procedure. Thirdly, the Ombudsman notes that the Terms of reference of August 2000 included four sections of evaluation criteria with individual weighting and rules on how to obtain the maximum points. The Ombudsman has found no evidence to indicate that the evaluation criteria were finalised after the opening of tenders. Moreover, the EIB's explanation as regards its obligation to inform tenderers appears reasonable.

1.6 As to the alleged discrimination, the Ombudsman finds that the EIB has provided a satisfactory explanation of the reasons why the complainant was not invited to visit the premises.

1.7 As regards the alleged partiality of the tender evaluation panel, the Ombudsman notes that the EIB has provided a detailed explanation of the procedure followed. The Ombudsman has examined the relevant documentation and the e-mails referred to by the complainant and considers, that they do not show bias by the panel against the complainant's company.

1.8 In these circumstances, the Ombudsman concludes that his inquiry has not revealed an instance of maladministration regarding these aspects of the case.

2 Alleged inadequacy of the statement of reasons of the EIB

2.1 The complainant alleges that the EIB's decision to reject the complainant's tender was not supported by an adequate statement of reasons.

2.2 The EIB argues that it informed the complainant of its ranking. Furthermore, in its opinion and complementary opinion the EIB confirmed that the complainant's tender fulfilled all the necessary conditions and presented a team able to take up the functions from 1 January 2001. However, according to the EIB this aspect constituted only one of the evaluation criteria (weighting of 35 out of 100) and the other tenderers also presented teams of good quality and the evaluation and final decision was up to the tender evaluation panel. The EIB annexed to its opinion a copy of the minutes of the evaluation meeting of the tender evaluation panel and a completed evaluation grid.

2.3 The Ombudsman observes that the EIB has informed the complainant of his company's ranking and forwarded to him copies of the minutes of the evaluation meeting of the tender evaluation panel with the completed evaluation grid. The Ombudsman takes the view that in the present case, the EIB has provided the complainant with adequate reasons which enable him to assess the tender evaluation panel's decision to award the contract to another organisation. Therefore, there appears to be no maladministration regarding this aspect of the case.

3 Alleged lack of compulsory governmental authorisation in order to run the service

3.1 The complainant alleges that the winning candidate did not have compulsory governmental authorisation in order to run the service. In a letter dated 25 September 2000 the EIB informed the tenderers that they needed to obtain the governmental authorisations required by the Luxembourg legislation before starting up the running of the service. This requirement was also underlined in Article 13 of Draft Contract annexed to the invitation for tender.

3.2 According to the EIB, the above mentioned condition was mentioned in the letter and in the Draft Contract primarily in order to ensure that all organisations submitting a tender were aware that the service of the EIB was subject to Luxembourg legislation. The EIB drew attention to prevailing legislation and possible implications to tenderers in order to provide as much information as possible. According to the EIB, the delay in obtaining the governmental authorisation was due to the fact that arrangements regarding employment of staff could not be finalised until the contract between the EIB and the complainant's company had lapsed at the end of the year 2000. Furthermore, the EIB was informed that the Luxembourg Ministry was encountering difficulties with the proposed manager. According to the EIB, the process of providing a governmental authorisation to run the service to an organisation not yet based in Luxembourg appeared to be unusual for the Luxembourg authorities and it therefore took time to settle. The EIB noted that the authorities did not order closure of the service in the interim. Moreover, coverage by all necessary insurances was obtained in anticipation of the situation being regularised in due course.

3.3 The Ombudsman notes that the EIB has provided a detailed explanation of the reasons why the winning tenderer who was awarded the contract did not provide the governmental authorisation prior to the execution of the contract. The Ombudsman is of the view that the explanation provided by the EIB appears reasonable. The Ombudsman has found no evidence of unlawful actions by the EIB. In these circumstances, the Ombudsman concludes that his inquiry has not revealed an instance of maladministration regarding this aspect of the case.

4 Claim that the tender procedure should be cancelled and the award of the service contract declared void

4.1 The complainant claims that the tender procedure should be cancelled and the award of the service contract declared void.

4.2 In the light of the findings of no maladministration in sections 1.1 to 3.3 the Ombudsman considers that the complainant's claims cannot be sustained.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Investment Bank. The Ombudsman therefore closes the case.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Council Directive 92/50/EEC of 18 June relating to the coordination of procedures for the award of public service contracts (services) Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (supply).

(2) Official Journal of the European Communities, C 17 of 19 January 2001.