Decision of the European Ombudsman on complaint 583/2003/GG against the European Commission

Strasbourg, 17 September 2003

Dear Mr G.,

On 27 March 2003, you lodged, on behalf of IMC Consulting Limited, a complaint against the European Commission concerning the award of a "Contract for Labour Market Restructuring, Croatia" (reference EuropeAid/114425/D/SV/HR).

On 22 April 2003, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 27 May 2003. I forwarded it to you on 5 June 2003 with an invitation to make observations, which you sent on 31 July 2003.

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

THE COMPLAINT

The complainant, a UK company, participated in a restricted tender procedure concerning the award of a "Contract for Labour Market Restructuring, Croatia" (reference EuropeAid/114425/D/SV/HR). By letter dated 27 January 2003 (and apparently sent on 4 February 2003), the European Commission’s Delegation to the Republic of Croatia (the "Delegation") informed the complainant that the contract had been awarded to it. The value of the contract amounted to € 898 745. In its letter, the Commission pointed out that the contract would be sent to the complainant for its signature following receipt within 15 calendar days of certain documents, including "a copy of the employers’ certificates or references of the key experts, proving the professional experience indicated in their CVs". The Commission added that if it received neither these documents nor any explanation within that period, it would consider the contract null and void. The complainant subsequently sent various documents to the Commission.

By letter dated 20 February 2003, the Delegation informed the complainant that a number of references was missing for one of the experts, Mr B., and that no references had been submitted for another expert, Mr D. The complainant thereupon provided further documents to the Commission.

On 10 March 2003, the Delegation wrote to the complainant to inform the latter that although it had repeatedly been asked to submit the complete evidence, the documents that had been handed in still failed to prove the professional experience of Mr D. The Delegation further expressed the view that no explanation had been offered as to why that evidence could not be submitted. It therefore informed the complainant that it considered the award notice that had been sent to the complainant "null and void".

On 19 March 2003, the complainant’s lawyer wrote to the Delegation in order to challenge this decision. In this letter, the complainant’s lawyer claimed that the documents submitted by the complainant had substantiated 27 years of highly relevant professional experience on the part of Mr D. and had clearly met the requirements set out in the Delegation’s letter of 27 January 2003. He also alleged that no reasons had been given as to why the information had been considered incomplete and that no action had been taken by the Delegation to raise any issues concerning the alleged incompleteness of the information with the complainant. The complainant’s lawyer expressed the view that the Delegation’s letter of 10 March 2003 was unclear, not in conformity with the principles of sound administration, lacking in reasons and a disproportionate response to the situation. He asked the Delegation to withdraw its letter of 10 March 2003 and to replace it, if necessary, by a further letter specifying in detail in which respect the information already provided by the complainant was deficient and giving a short but reasonable time period within which the complainant could provide this information.

In its reply of 20 March 2003, the Delegation confirmed its decision. The Delegation stressed that it had given the complainant two opportunities to provide the missing evidence and that its concern was to substantiate the experts’ professional experience as stated in their CVs through appropriate documentation, i.e. to get confirmation from former employers that the experts had actually performed the duties described in their CVs. A document merely stating employment records without specifying what the tasks performed by the expert had been was irrelevant to this end.

The complainant’s lawyer reiterated his client’s view in further letters of 21 and 24 March 2003. With the second letter, he submitted a summary of the data and information that had been supplied by the complainant to the Commission with regard to the CV of Mr D. By the time the present complaint was lodged with the Ombudsman on 27 March 2003, no reply had been sent to these letters.

In its complaint to the Ombudsman, the complainant alleges that by its letter of 10 March 2003, the Delegation failed to act in accordance with principles of sound administration and requirements to act reasonably and breached the procedural rules concerning the award procedure in question. The complainant stressed that the matter was urgent since there was a strong possibility that the contract could be awarded to another party in the near future.

THE INQUIRY

The Commission's opinion

The complaint was sent to the European Commission for its opinion on 22 April 2003. In view of the urgency of the matter, the Ombudsman asked the Commission to provide its opinion by 30 June 2003.

In its opinion submitted on 27 May 2003, the Commission made the following comments:

The complainant had been aware of the need to provide all documents supporting the key experts’ CVs since it had received the tender dossier. As a matter of fact, point 14 of the tender dossier’s "Instructions to tenderers" provided:

"The successful tenderer must also provide the following documents in the case of the key experts proposed:

-a copy of the diplomas mentioned in their CVs;

a copy of the employers’ certificates or references proving the professional experience indicated in their CVs.

If the successful tenderer fails to provide this documentary proof within 15 calendar days following the notification of award or if the successful tenderer is found to have provided false information, the award will be considered null and void. (…)"

In order to avoid costly and time-consuming work for all tenderers, the Commission never asks for these documents during the tender procedure. At this stage only CVs are required so that the evaluation can take place. However, the tenderers must be prepared to submit the evidence for what is claimed in the CVs if they are awarded the contract. This is a routine procedure for the award of contracts, which is well known to tenderers.

A number of documents were received from the complainant on 19 February 2003, but not a single document supporting the professional experience indicated in the CV of Mr D. By then, the Delegation had already enough grounds to consider the award null and void, but it decided to give the complainant a second opportunity, drawing its attention to the problem and extending the deadline until 5 March 2003.

On 5 March 2003, the Delegation received a set of documents from the complainant, including 26 pages referring to Mr D.’s experience. In most cases, the submitted documents were not employers’ certificates or references but statements signed by the consultant himself, supported by:

• a personal record;
• a letter referring to the retirement planned in 1990 (to prove experience between 1970 and 1990);
• a copy of a staff card;
• advice notes from the bank (to prove employment at the EC task force 1990-1991);
• copies of first pages of final reports referring to certain contracts (giving the numbers of these contracts but no names);
• copies of letters proposing contracts (no reference to names);
• copy of a front page and contents from a report prepared by Sheffield University (no reference to Mr D.); anda copy of a newspaper article.

The documents listed above had not been issued by an employer or did not give any references to Mr D. or did not make any reference to the scope of the work.

It was surprising that the complainant had failed to provide proof of Mr D.’s experience while it had no problems in doing so properly for the other experts in the team. Also, it had to be noted that according to the CV, Mr D.’s most recent and relevant experience had been acquired with EU institutions, which were used to deliver such certificates upon request.

The letters sent by the complainant’s lawyer on 21, 24 and 27 March 2003 asked whether the Commission intended to re-award the tender or cancel the tender procedure and whether it accepted that the complainant had submitted sufficient corroboration for Mr D.’s experience. The Commission could not disclose this type of information (results of tendering procedures) before the procedure was completed.

The Commission had demonstrated good will vis-à-vis the complainant by extending the deadline. However, it then had had no other choice but to declare the nullity of the award.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

The Commission’s list of the documentation the complainant had provided to substantiate Mr D.’s employment record and qualifications was not complete. There were other documents that were issued by his employer, did refer to Mr D. and did refer to the scope of work done, as set out in the summary enclosed with the letter of 24 March 2003. The conclusion drawn by the Commission was thus based on a false premise, thereby amounting to disingenuous reasoning. The Commission’s conclusion was also disputed as regards the inferences the Commission made concerning Mr D.’s "personal record" (as referred to by the Commission). This material was clearly an employer’s record.

THE DECISION

1 Allegedly incorrect withdrawal of an award of contract

1.1 The complainant, a UK company, participated in a restricted tender procedure concerning the award of a "Contract for Labour Market Restructuring, Croatia" (reference EuropeAid/114425/D/SV/HR). By letter sent on 4 February 2003, the European Commission’s Delegation to the Republic of Croatia informed the complainant that the contract had been awarded to it and asked the complainant to submit certain documents, including "a copy of the employers’ certificates or references of the key experts, proving the professional experience indicated in their CVs". On 10 March 2003, the Commission informed the complainant that the latter had, in its view, failed to provide the information that had been required regarding one of its experts, Mr D., and that it therefore considered the award notice that had been sent to the complainant "null and void". In its complaint to the Ombudsman, the complainant alleges that by its letter of 10 March 2003, the Delegation failed to act in accordance with principles of sound administration and requirements to act reasonably and breached the procedural rules concerning the award procedure in question.

1.2 In its opinion, the Commission takes the view that the complainant was aware of the need to provide all documents supporting the key experts’ CVs since it had received the "Instructions to tenderers", point 14 of which provided that if the successful tenderer fails to submit the necessary documents, "the award will be considered null and void. According to the Commission, the documents that had been submitted concerning Mr D.’s professional experience had not been issued by an employer, had not given any references to Mr D. or had not made any reference to the scope of the work. The Commission thus had no other choice but to declare the nullity of the award.

1.3 It should be noted that neither the complainant nor the Commission have provided the Ombudsman with copies of the documents that had been submitted by the complainant to the Commission in order to prove Mr D.’s professional experience. The complainant has however supplied some information on these documents in a summary enclosed with the letter the complainant’s lawyer addressed to the Commission on 24 March 2003, and the Commission has drawn up a list of these documents in its opinion on the complaint.

1.4 Upon a careful examination of the information contained in the complainant’s summary and the Commission’s list, the Ombudsman considers that the Commission’s view that the documents mentioned in its list could not be considered as "employers’ certificates or references proving the professional experience" of Mr D. appears to be reasonable. In so far as Mr D.’s "personal record" is concerned, it should be noted that the complainant itself uses this expression in its summary. The complainant has not established its claim that this document should be considered to represent an "employer’s document".

1.5 In its observations on the Commission’s opinion, the complainant alleged that there were other documents that were referred to in the summary and that were issued by his employer, did refer to Mr D. and did refer to the scope of work done. The Ombudsman considers, however, that the complainant has not established this allegation.

1.6 The Ombudsman notes that it emerges from the documents submitted to him that the complainant was aware of the need to submit, regarding the key experts proposed by them, "a copy of the employers’ certificates or references proving the professional experience indicated in their CVs". It further emerges that the complainant was informed by the Commission that the latter would treat the award as being null and void if the relevant documents would not be submitted to it within the time period set for this purpose. The Ombudsman notes that in the present case, the Commission gave the complainant a second opportunity to submit the documents that were required. In the Ombudsman’s view, the Commission would thus appear to have acted in accordance with the procedural rules concerning the award procedure in question.

1.7 In these circumstances, there appears to be no maladministration on the part of the European Commission.

2 Conclusion

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

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS