THE BACKGROUND TO THE COMPLAINT

1. The complaint was submitted by the managing director of the company X on its behalf. It concerns the Commission's decision to exclude X from an international open tender procedure, launched by the Commission in February 2007[1]. The tender was for the supply of agricultural machinery, tools, consumables and spare parts to an Asian country.

2. X was one of the candidates admitted to the selection procedure. Its bid amounted to EUR 3 140 320.80.

3. The tender opening session took place at the Commission's premises in April 2007. In July 2007, the Evaluation Committee decided to invite X to clarify certain aspects of their bids. X provided the requested clarifications.

4. On 1 August 2007, the Evaluation Committee concluded its deliberations. It concluded that only Y, one of the candidates admitted to the selection procedure, complied with the relevant criteria, and therefore recommended that the contract should be offered to this company. Y was duly informed, and the contract was signed in early November 2007.

5. The Commission subsequently informed the complainant, by letter dated 12 November 2007, that it had been excluded from the tender. Specifically, the Commission stated that its tender did not fulfil the criterion concerning 'technical capacity', as outlined in Article 16(3)(a) of the Supply Procurement Notice. This provided that the tenderer had to have successfully completed, in the preceding three years, at least two similar contracts with a budget that was at least as high as that of the contract in question. The Commission stated that X "has carried out similar supply contracts over the past three years; however, none amounts to the value of this contract." It further informed the complainant that the contract had been awarded to the company Y.

6. In November 2007 and in December 2007, the complainant wrote to the Commission contesting the reason it had given for its exclusion.

7. The complainant argued that it had indeed carried out similar contracts over the preceding three years and that, as required by the Supply Procurement Notice, these contracts were of a similar value to the contract in question. It argued that it provided this information to the Commission already in April 2007. In this letter, the complainant stated the following:

"We hereby declare that our company has worked successfully on at least 2 projects, in the fields related to this contract in the past three years. In particular, in the year 2005 our company successfully fulfilled an EC funded contract for the supply to (...) of 93 sets of Z agricultural tractors, share ploughs, cultivators, agricultural trailers, spare parts, tool sets and lubricants, including on-site training.

With regard to the completion of at least 2 similar contracts with a budget of at least that of this contract, please also refer to the enclosed declaration issued by the agricultural tractors' manufacturer Z who authorised us to participate to this invitation to tender and will put their resources at our disposal".

8. The complainant submitted a copy of the above-mentioned declaration from Z addressed to the Commission. This declaration reads as follow:

"Dear Sirs,

this is to confirm that X (...) are duly authorised by us to submit an offer for agricultural tractors Z against your invitation to tender in subject.

In the event of the award of the contract to X, we undertake to select a suitably qualified service centre in (...) for guaranteeing the upkeep and repair of the agricultural tractors supplied and the rapid replenishment of spare parts.

We also hereby declare that we have successfully completed at least 2 similar contracts with a budget of approx. 4 million EUR, in the past three years."

9. On 11 December 2007, the Commission decided to suspend the execution of the contract awarded to Y pending the review process of the bid submitted by X. On 28 January 2008, the complainant was informed accordingly.

10. On 22 February 2008, the Commission confirmed its decision to exclude X from the relevant tender procedure and added some clarifications with respect to the letter dated 12 November 2007. With regard to the non-compliance of X's bid with Article 16(3)(a) of the Supply Procurement Notice, the Commission noted that tenderers can, in fact, rely upon other entities. This was also foreseen by Article 136(3) of the applicable Implementing Rules[2] of the Financial Regulation. The Commission took the view, however, that a mere declaration by Z that it had successfully completed two similar contracts with a budget of approximately four million euros in the past three years did not enable the Evaluation Committee to conclude that the requirement concerning technical capacity was fully satisfied.

11. The Commission then made additional points regarding certain perceived shortcomings in the complainant's bid. It stated that the warranty and after-sales services proposed by X in its bid did not satisfy the related requirements set out in the tender dossier. In accordance with point 11(3) of the Instructions to tenderers, the latter were requested to provide a "description of the organisation of the warranty tendered, which must be in accordance with the conditions laid down in Article 32 of the General Conditions including a list of companies in the respective destination providing after-sales service for the equipment offered." In this regard, the Commission noted that X confirmed in its bid that both a warranty and after-sales services would be provided for the tractors supplied. However, the Commission pointed out that no details were given on how X intended to provide the warranty service. In accordance with Article 32 of the Special Conditions "the Contractor should be able to guarantee adequate provision of the warranty services within a reasonable response time and details of how he intends to provide this service should be submitted as part of the tender bid."

12. In a further letter dated March 2008, the Commission reiterated its position concerning the exclusion of X and emphasised that the tender procedure had been followed correctly.

13. On 14 May 2008, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

14. On 27 May 2008, the Ombudsman opened an inquiry into the following allegation and claims.

Allegation:

The Commission erred in its decision to exclude X from the relevant tender.

In support of this allegation, the complainant submitted the following arguments:

(a) The reason provided by the Commission in its letter dated 12 November 2007 was unfounded.

(b) The Commission's letter dated 22 February 2008, in which it reviewed its original decision, relied on criteria contained in the Implementing Rules of the Financial Regulation[3], which were not present in the original Supply Procurement Notice or in any other documents concerning the tender.

(c) The Commission's letter dated 22 February 2008 wrongly applied the criteria referred to in point (b) above because the complainant's tender had clearly declared that all material to be supplied (and not only the tractors) would be covered by a warranty, that a full range of after-sales services would be provided and that a warranty and after-sales services would also be extended to the tractors sold in 2005.

Claims:

1. The Commission should provide fair compensation for the loss suffered by X as a result of the fact that it was not awarded the contract for the bid in question.
2. The Commission should also compensate X for the disadvantageous position that the company will be in with reference to new tenders that the Commission will launch concerning the Asian country.

THE INQUIRY

15. On 27 May 2008, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complainant's allegation and claims. The Commission submitted its opinion on 24 October 2008. It was forwarded to the complainant, which submitted observations on 28 November 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. The complainant's allegation that the Commission erred in its decision to exclude it from the tender

Arguments presented to the Ombudsman

16. In support of this allegation, the complainant argued that: (i) the reason provided by the Commission in its letter dated 12 November 2007 was unfounded; (ii) the Commission's letter dated 22 February 2008, in which it reviewed its original decision, relied on criteria contained in the Implementing Rules of the Financial Regulation, which were not present in the original Supply Procurement Notice or in any other documents concerning the tender, and (iii) the Commission's letter dated 22 February 2008 wrongly applied the criteria referred in point (ii) above because the complainant's tender had clearly declared that all material to be supplied (and not only the tractors) would be covered by a warranty, that a full range of after-sales services would be provided and that a warranty and after-sales services would also be extended to the tractors sold in 2005.

17. In its opinion, the Commission emphasised that Article 16(3)(a) of the Supply Procurement Notice provided that the tenderer should have "successfully completed at least 2 similar contracts with a budget of at least that of this contract in the past three years". For the purposes of verifying compliance with the requirement of sufficient technical capacity to undertake the contract, the tender dossier required applicants to fill in Part 6 of the Tender form ('Experience') with appropriate references concerning the relevant contracts they had executed in previous years. After assessing the offer submitted by X, the Evaluation Committee held that only one of the supply contracts that X had concluded in the previous years could be considered for the purpose of the tender in question. However, the said supply contract did not even amount to the value of X's offer.

18. The Commission pointed out that, as already indicated in its letter dated 22 February 2008, the declaration submitted by the tractor manufacturer Z simply stated that they had successfully completed at least two similar contracts with a budget of approximately EUR 4 million in the preceding three years. Although the Commission did not question the accuracy of the statement submitted by Z, it considered that the complainant failed to provide the institution with any substantive evidence on the technical capacity of this manufacturer prior to the submission of the present complaint. According to the Commission, something as objective as data concerning the company's experience could have been convincingly proven by a list of similar contracts.

19. The Commission emphasised that the tenderers' technical capacity in similar contracts was considered as a key requirement for ensuring the success of the project. The Evaluation Committee therefore paid special attention to the lists of contracts carried out by tenderers in the previous three years and concerning the delivery of similar supplies. The Commission specifically took into account the sums, dates and the public or private character of the recipients, in accordance with Article 137(2)(b)(i) of the Financial Regulation’s Implementing Rules[4].

20. Furthermore, the Commission recalled that, in accordance with Article 148(1) of the Implementing Rules, contacts between the Contracting Authority and tenderers may only take place by way of exception. As foreseen by Article 148(3), "if, after the tenders have been opened, some clarification is required in connection with a tender, or if obvious clerical errors in the tender must be corrected, the Contracting Authority may contact the tenderer, although such contact may not lead to any alteration of the terms of the tender". Moreover, the Instructions to Tenderers explicitly stated that "[t]enderers are expected to examine carefully and comply with all instructions, forms, contract provisions and specifications contained in this tender dossier. Failure to submit a tender containing all the required information and documentation within the deadline specified will lead to the rejection of the tender."

21. The Commission further stated that, in its offer, X declared to have provided satisfactory training in the framework of a previous and similar supply contract of agricultural equipment to the Asian country. However, the Evaluation Committee remarked that X's training proposal was extremely short and could, therefore, not be considered as an acceptable proposal. Despite the additional information on the toolkits, which X sent to the Evaluation Committee in July 2007, the latter still considered that the company did not fulfil the selection criteria regarding technical capacity.

22. The Commission acknowledged that its letter of 12 November 2007 did not go into detail regarding the reasons for its decision to exclude X's bid. It was rather a standard document aimed at providing unsuccessful candidates with general information about the examination of their bids. However, when requested by the complainant, the Commission provided it with more detailed information about the exclusion of X's bid.

23. Concerning the result of the review that the Evaluation Committee carried out on X's bid, the Commission recognised that the issue of training was not decisive enough to justify a rejection of an offer. The Commission admitted that it should have made this clear in its letter dated 22 February 2008. It apologised for having failed to do so.

24. The Commission added that the review of X's bid also revealed a further issue that regrettably went unnoticed during the Evaluation Committee's first assessment of the bid. This issue concerned the provision of a warranty and after-sales services proposed in X's bid. According to the Evaluation Committee, this provision did not satisfy the requirements set out in point 11(3) of the Instructions to tenderers, namely, that tenderers have to supply "a description of the organisation of the warranty tender, which must be in accordance with the conditions laid down in Article 32 of the General Conditions including a list of companies in the respective destinations providing after-sales services for the equipment offered … In the event of a Contractor citing the equipment manufacturer's official approved distributor in (...) as being the provider of the warranty services, a letter of agreement to undertake this responsibility must be provided by the said local distributor. This letter should be submitted as part of the tender bid."

25. With regard to the above, the Commission noted that, in its warranty and after-sales statement, X declared that Z's service centre in China would provide after-sales services for all the agricultural equipment to be supplied to the Asian country. Furthermore, X stated that, in the event it was awarded the contract, it would select, in conjunction with Z, a suitably qualified centre in the Asian country. In its bid, X included a declaration from Z in which the latter stated that, if the contract were awarded to X, it would select a suitably qualified service centre in the Asian country. This service centre would guarantee the upkeep and repair of the agricultural tractors supplied, and the rapid replacement of spare parts.

26. The Commission pointed out that, according to the declaration, Z would provide after-sales services for the tractors only. No mention was made of the fact that Z would provide a warranty for the other items of agricultural equipment. In light of this, the Commission took the view that, in addition to the technical capacity issue, the warranty and after-sales issue constituted a further valid reason for confirming the rejection of X's bid.

27. The Commission noted the complainant's argument that, in its letter dated 22 February 2007, the Commission relied on new criteria contained in the Implementing Rules of the Financial Regulation, which were not mentioned as the legal basis of the tender procedure in question in the Supply Procurement Notice or in any other relevant document. The Commission rejected this argument. It stated that its reasons for excluding the bid submitted by X had not changed as such. Rather, it provided the complainant with additional details and specifications concerning the exclusion which was already communicated to the complainant on 12 November 2007. The Commission did in fact refer to Article 136(3) of the Implementing Rules, and stated that, when tenderers rely on other entities, they must submit the required supporting information in order to comply with the requirements of the tender procedure. The Commission further noted that the content of the above-mentioned Article is identical to the content of Article 16, last paragraph, of the Supply Procurement Notice, and to the content of point 2.4.12.1.3. of the Practical Guide[5]. The Commission further put forward that the contract forecast notice explicitly referred to the Implementing Rules as the contract's legal basis.

28. In its observations, the complainant maintained its allegation that the Commission erred in its decision to exclude it from the tender. It also added the following points.

29. The complainant pointed out that Financial Regulation No 1605/2002 and its Implementing Rules, adopted by the Commission in December 2002, were indicated as the legal basis for the contract in the contract forecast notice. They were, however, subsequently left out in the Supply Procurement Notice published in February 2007, which indicated that the legal basis for the contract was Council Regulation No 1292/2006 on food-aid-policy and food-aid management and special operation in support of food-security[6].

30. Furthermore, the complainant put forward that there was a contradiction in the Commission's statements, made in its letter dated 12 November 2007 and in its opinion to the Ombudsman. In its letter, the Commission stated that X had carried out similar supply contracts over the preceding three years, but none amounted to the value of the contract in question. In its opinion, the Commission stated that the Evaluation Committee held that only one of the supply contracts that X had apparently concluded in the previous years could be considered for the purpose of the tender in question, although it did not even amount to the value of X's offer. According to the complainant, the Commission's statements were contradictory. The complainant emphasised that the amount of its bid was EUR 3 140 320.80 and that the previous similar contract carried out by it in 2005 amounted to EUR 3 300 766.32. The complainant further considered that the Commission should have analysed its technical capacity further. The complainant failed to understand why the Evaluation Committee, which asked to provide clarifications in July 2007 regarding its relationship with Z and regarding a tool kit mentioned in the bid, did not ask for clarifications concerning its technical capacity. This, in the complainant's view, was even less understandable, given that the contract was finally awarded to Y, which offered the same tractors as it did but at a much higher price.

31. With regard to the warranty and after-sales services, the complainant emphasised that, in its bid, it declared that all material supplied, and not only the tractors, would be covered by a warranty. It also outlined that a full range of after-sales services would be provided and that these would also extend to the tractors already sold in 2005.

Its proposal concerning the warranty and after-sales services reads as follows:

"We [X] declare that all offered supplies shall be new, unused, of the most recent models and incorporate all recent improvement in design and material. The supplies shall be free of defects in design, materials or workmanship. In accordance with Article 31 of the Special Conditions, the warranty shall remain valid for a period of one year after provisional acceptance. Warranty shall consist of the free repair and/or replacement of all parts which should be acknowledged by the manufacturer to be defective in design, materials and/or workmanship.

The tractors' manufacturer Z can currently ensure the provision of warranty and after-sales services through its service centres based in China. In the event of the award of the contract we undertake to select, in conjunction with Z, a suitably qualified centre in the Asian country. (Please also refer to the declaration from Z). The appointed service centre in the Asian country will receive adequate training at time of delivery of the supplies in the Asian country, and will ensure the provision of an after-sales service, guaranteeing an on-site support to the beneficiary's cooperative farms for the upkeep and repair of the equipment supplied and the rapid replenishment of spare parts. The appointed service will ensure also a proper maintenance of 93 Z tractors and agricultural implements supplied by us to the Asian country in the year 2005, against an EC funded contract."

32. The complainant maintained its claims.

The Ombudsman's assessment

33. The complaint basically concerns the European Commission's rejection of a bid submitted by X under an international open tender procedure for the supply of agricultural machinery, tools, consumables and spare parts to an Asian country.

34. The Ombudsman recalls that EU tenders are governed by a number of principles[7]. In the first place, the general principle of equal treatment, which is a general principle of EU law, also governs procedures for the award of public contracts[8]. According to this principle, tenderers must be in an equal position both when they formulate their tenders and when those tenders are being assessed by the contracting authority[9]. The principle of equal treatment of tenderers also implies an obligation of transparency in order to verify that this principle has been complied with[10]. The above requirement means, among other things, that the admissibility and award criteria stated, for example, in a tender notice, must be formulated in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way[11]. It also means that, when tenders are being assessed, the above-mentioned criteria must be applied objectively and uniformly to all tenderers. In this context, information made publicly available by a contracting authority to potential tenderers with regard to the interpretation and application of (i) the admissibility or award criteria, and (ii) rules of Community law which may reasonably be considered as having a bearing on the application of these criteria, is particularly important. Such information is in fact likely to affect the preparation and formulation of the tenders and is substantively relevant to the Community interest of ensuring that potential tenderers are able to compete on an equal basis.

35. Without prejudice to the above, the Commission has, however, a broad discretion in assessing the factors to be taken into account when deciding to award a contract following an invitation to tender. In addition, the courts' review "must be limited to verifying that there has been no serious and manifest error"[12].

36. The Ombudsman recalls that it is not his role to assess the admissibility of tenders and to substitute his judgment for that of the institution concerned as to whether a tender meets the applicable admissibility/eligibility criteria[13]. In the present case, the Ombudsman therefore examined whether the Commission provided valid and adequate grounds for its disputed decision.

37. On the basis of that examination, the Ombudsman concludes that the present complaint has not revealed an instance of maladministration corresponding to the complainant's allegation. The reasons for this conclusion are outlined below.

38. With regard to the complainant's first argument, namely, that the reason provided by the Commission in its letter dated 12 November 2007 was unfounded, the Ombudsman notes that the relevant selection criteria for the award of the international open tender procedure in question were set up in Article 16 of the Supply Procurement Notice, published in February 2006. With specific regard to the technical capacity, Article 16(3)(a) explicitly provided that the tenderer had to prove that it "ha[d] successfully completed at least 2 similar contracts with a budget of at least that of this contract in the past three years."

39. With regard to the Commission's conclusion that only one of the contracts[14] carried out in the preceding three years might be considered relevant for the procedure in question, the Ombudsman notes that the complainant's tender does not, in fact, contain any information that specifically and clearly contradicts that conclusion.

40. With regard to the issue of reliance on other operators - in this case Z - Article 16(3)(a) of the Supply Procurement Notice foresees that "an economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the Contracting Authority that it will have at its disposal the resources necessary for performance of the contract, for example by producing an undertaking on the part of those entities to place those resources at its disposal."

41. The same possibility for an economic operator to rely on the capacities of other entities was also foreseen, in the same terms, by point 2.4.12.1.3 of the Practical Guide for contract procedures financed from the EC general budget in the context of external actions and by Article 136(3) of the Implementing Rules of the Financial Regulation No 1605/2002.

42. X made use of this possibility and relied on the capacity of another entity, that is, the manufacturer Z[15]. X enclosed in its tender a declaration by Z stating that it had successfully completed at least two similar contracts with a budget of approximately EUR 4 million in the preceding three years. This statement was not supported, however, by any evidence that would have allowed the Commission to evaluate the technical capacity of this entity. In this regard, the Ombudsman notes that the relevant rules foresee a higher standard of evidence[16].

43. With regard to the second and third arguments submitted by the complainant, the Ombudsman notes that, in its observations, the latter stated that the Financial Regulation was not explicitly indicated in the Supply Procurement Notice, or in any other document, as the legal basis of the tender procedure in question. The Ombudsman understands that the complainant considered that the Commission should not have relied on the contents of the Financial Regulation when assessing its bid. In this regard, he notes that the Financial Regulation is the legal framework for all EU activity having a financial impact. The principles and the rules laid down by this Regulation have to be fully respected and cannot be disregarded, even in the absence of a specific reference to them. In light of this, the complainant’s argument that the Financial Regulation did not constitute the legal framework of the tender procedure in question, and should therefore not have been invoked by the Commission, cannot be sustained. The Ombudsman also notes that the complainant argued that, in the Commission's letter dated 22 February 2008, in which it reviewed its original decision to exclude X from the relevant procedure, the Commission relied on new criteria which had not been taken into account in its previous decision. The complainant specifically referred to the Commission's conclusion that it did not comply with one criterion concerning ancillary services, namely, the warranty and the after-sales services.

44. In the letter in question, the Commission stated that, in addition to the reason already communicated in the letter dated 12 November 2007[17], as a result of it had also concluded, following its examination of the Evaluation Committee's review of the complainant's bid, that X's technical offer was "not only considered not compliant with the selection criteria … of the Supply Procurement Notice, but also with one criterion concerning ancillary service."

45. In light of the above, it does not appear reasonable to conclude that the Commission changed the grounds, as such, for its decision communicated to the complainant in November 2007. Rather, it stated that a further selection criterion set up in the Supply Procurement Notice had not been fulfilled by X. In this respect, it is important to recall that a tenderer has to comply with all the selection and award criteria foreseen in the call for tenders and any other relevant documents. Failure to comply with only one of the selection and award criteria justify, in principle, the exclusion of a tenderer from the relevant procedure.

46. In light of this, and of the conclusion reached in paragraph 38 above, the Ombudsman does not consider it necessary to deal further with the complainant's argument that its bid complied with the requirement concerning ancillary services.

47. With regard to the point which the complainant submitted in its observations that the Commission should have further analysed its technical capacity, namely, by asking for clarifications concerning such technical capacity, the Ombudsman notes the following. From the information submitted by the complainant and by the Commission, it emerges that the institution asked the complainant to provide clarifications regarding its relationship with Z and regarding a tool kit mentioned in the bid. The Commission had, therefore, acted in accordance with the provision laid down in Article 148 of the Implementing Rules (see point 20 above).

48. In this regard, the Ombudsman notes that contacts between the Contracting Authority and tenderers may only take place by way of exception and such contacts should not lead to any alteration of the terms of the tender. This principle has been emphasised by the Court of Justice in its recent judgement in case Evropaïki Dynamiki[18], where the Court explicitly referred to Article 148 of the Implementing Rules. Furthermore, the Court stated that "that provision cannot be interpreted as meaning that, in the exceptional, limited circumstances which it identifies, it imposes a duty on the institutions to contact tenderers"[19]. However, according to the Court, the observance of the general principles of law "may give rise to an obligation on the contracting authority to contact a tenderer"[20]. But such an obligation exists only in very specific case, namely, "where the terms of a tender and its surrounding circumstances known to the contracting authority indicate that the ambiguity of the tender might be easily explained and resolved"[21].

49. Furthermore, the Ombudsman notes that the Instructions to Tenderers explicitly stated that "[t]enderers are expected to examine carefully and comply with all instructions, forms, contract provisions and specifications contained in this tender dossier. Failure to submit a tender containing all the required information and documentation within the deadline specified will lead to the rejection of the tender." Moreover, Article 137(2)(b)(i) of the Financial Regulation’s Implementing Rules foresees that evidence of the technical and professional capacity of economic operators may be provided, for example, by a list of the principal services provided and supplies delivered in the preceding three years, with the sums, date and recipients, public or private.

50. The Ombudsman notes that, in the present case, the complainant did not refer to any obvious clerical error in the tender, the correction of which could have been taken into account by the Evaluation Committee. It did not refer either to any ambiguity of the tender which could have been explained or resolved by providing further information to the Evaluation Committee. The reason why the Evaluation Committee excluded the complainant from the relevant procedure was its failure to comply with one of the selection and award criteria. The declaration by Z stating that it had successfully completed at least two similar contracts with a budget of approximately EUR 4 million in the preceding three years was not simply 'ambiguous', but entirely void of any evidence that would have allowed the Commission to evaluate the technical capacity of this entity on which the complainant relied. In view of these circumstances, the Ombudsman considers that the Evaluation Committee acted in accordance with its prerogatives when deciding to limit its request for clarifications to the issues related to X's relationship with Z and regarding a tool kit mentioned in the bid.

B. The complainant's claims

Taking into account his finding on the complainant's allegation, the Ombudsman considers that the complainant's claims cannot stand.

C. Conclusion

On the basis of his inquiries into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration corresponding to the complainant's allegation. Its claims cannot therefore stand.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 27 September 2010

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[1] http://ec.europa.eu/europaid/cgi/frame12.pl

[2] Commission Regulation (EC, EURATOM) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002, L 357, p.1.

[3] In its letter, the Commission stated that X's technical offer was not only considered noncompliant with the selection criteria foreseen by Article 16(3)(a) of the Supply Procurement Notice, but also with the criterion foreseen by Article 11(3) of the Instruction to tenderers concerning ancillary services.

[4] Article 137.2(b)(i) states that:

"Technical and professional capacity of economic operators shall be evaluated in accordance with paragraphs 2 and 3. In procurement procedures for supplies requiring sitting or installation operations, services and/or works, such capacity shall be assessed with regard in particular to their know-how, efficiency, experience and reliability.

2. Evidence of the technical and professional capacity of economic operators may, depending on the nature, quantity or scale and purpose of the supplies, services and works to be provided, be furnished on the basis of one of more of the following documents:

[…]

(b) a list:

(i) of the principal services provided and supplies delivered in the past three years, with the sums, date and recipients, public or private."

[5] Practical Guide for contract procedures financed from the EC general budget in the context of external action, version of 22 August 2006, applicable to EuropeAid/121542/C/S/KP.

[6] OJ 1996 L 166, pp. 1–11.

[7] These principles have also been outlined in the Ombudsman's previous decisions. See, for example, his decision on complaint 3693/2005/ID, paragraph 1.3, available at: http://www.ombudsman.europa.eu/cases/home.faces

[8] See Case C-57/01 Makedoniko Metro [2003] ECR I-1091, paragraph 69.

[9] See Case C-448/01 Evn and Wienstrom [2003] ECR I-14558, paragraph 47.

[10] See Case C-448/01 cited above, paragraph 49.

[11] See Case C-19/00 SIAC Construction [2001] ECR I-7725 paragraph 42.

[12] See Case T-169/00 Esedra v Commission [2002] ECR II-609, paragraph 95.

[13] See the Ombudsman's decision on complaint 3693/2005/ID, paragraph 1.2, available at: http://www.ombudsman.europa.eu/cases/home.faces

[14] Contract for the supply of 93 agricultural tractors, tools and inputs including spare parts to the DPRK. The value of this contract was EUR 3 300 766.32.

[15] As explicitly indicated by the complainant in its reply of 9 July 2007 to the Commission's request for clarifications, Z was not a subcontractor but a manufacturer. If the contract had been awarded to X, Z would have put its products at X's disposal.

[16] In accordance with paragraphs 2 and 3 of Article 137 of the Implementing Rules of the Financial Regulation No 1605/2002, evidence of the technical and professional capacity of economic operators may be furnished on the basis of one or more of the documents listed in point (b). Among the relevant documents, the economic operator is required to provide a list of "(i) the principal services provided and supplies delivered in the past three years, with the sums, dates and recipients, public or private, and (ii) the works carried out in the last five years, with the sums, dates and places". The list of the most important works shall be accompanied by certificates of satisfactory execution, specifying whether they have been carried out in a professional manner and have been fully completed.

[17] In this letter the Commission concluded that X’s bid did not comply with the selection criteria laid down in Article 16(3)(a) of the Supply Procurement Notice.

[18] See Case T-63/Evropaïki Dynamiki v. European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), not published yet.

[19] See Case T-63/06 cited above, paragraph 96.

[20] See Case T-63/06 cited above, paragraph 97.

[21] See Case T-63/06 cited above, paragraph 98.