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Decision of the European Ombudsman on complaint 2419/2003/OV against the European Commission


Strasbourg, 7 May 2004

Dear Mr S.,

On 3 December 2003, you made a complaint to the European Ombudsman on behalf of Wessex Translations Limited concerning the rejection of several translation bids. This complaint was the follow-up of an earlier complaint ref. 1811/2003/JMA.

On 7 January 2004, I forwarded the complaint to the President of the Commission. On 16, 19 and 20 February 2004 you sent further documents regarding your case. The Commission sent its opinion on 22 March 2004. On 24 March 2004 you sent additional information concerning your complaint. I forwarded the Commission's opinion to you with an invitation to make observations, which you sent on 21 April 2004. I am writing now to let you know the results of the inquiries that have been made.


THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant, a UK translation firm, sent on 29 May 2003 sixteen bids further to a Commission Call for tenders for translation into various languages(1). The complainant was however informed by the Commission that the bids had been rejected because they arrived after the deadline, namely on 4 June instead of on 2 June 2003.

The complainant wrote on 6 and 20 June 2003 to the Commission to ask for a reconsideration of the decision, stating that it had been discriminated against, because there was no registered postal service in the UK, which the complainant understood had been withdrawn in October 2002. The complainant had thus selected TNT UK Limited instead and acted in good faith by doing so.

By letters of 14 November 2003, the Commission informed the complainant that the bids had been rejected, because they "arrived after the deadline or had not been sent by registered post" (point 6.1.9 of the tender specifications).

On 3 December 2003, the complainant made the present complaint to the Ombudsman, alleging that the tender specifications with regard to the delivery requirements discriminated against the complainant, because there was no registered postal service available in the UK, and that the Commission has interpreted those specifications in an unnecessarily rigid way. The complainant claims that its bids should be reconsidered.

On 24 March 2004, the complainant informed the Ombudsman that the Commission had also rejected another bid, for translation into Lithuanian, for the same reason (late arrival, no registered post). Although the original tender was for 16 languages, the complainant had only received rejection letters for eight bids at the time of submitting the original complaint, which therefore concerned only these eight bids. However, the complainant hoped that the Ombudsman could deal with all 16 rejections in one single complaint.

THE INQUIRY

The Commission's opinion

The complainant's bids were rejected by the opening committee on the grounds that they were submitted after the deadline.

The complainant however argues that the Commission should have accepted the bids, because a) it was obliged to use a courier service due to the lack of registered postal service in the UK, b) it had acted in good faith in commissioning a courier service to deliver the bids and c) the Commission has interpreted the rules with unnecessary rigidity.

a) the Commission observed that a registered mail service is an essential part of the universal postal service required by the Postal Service Directive 97/67/EC to be available to customers in all Member States. The licence of Royal Mail, a public limited company wholly owned by the Government, requires it to provide a registered mail service in the UK. This is done by providing a Registered and Signed for delivery service available in any post office branch for delivery in the UK and abroad.

b) Tenderers are free to choose how they submit their bid. The different options exist precisely to enable submission even in cases where there might be problems with any particular method. In this case, although the postal service exists, the tenderer chose to entrust the delivery to a courier service, who failed to deliver as agreed. This failure does not concern the Commission, and any dispute should be between the tenderer and the courier service.

c) The rules concerning the need to respect time limits are laid down in Regulation (EC, Euratom) n° 2343/2002 of 23 December 2002(2) (Implementation rules of the Financial Regulation). In particular, from article 145 it is clear that the bids must satisfy the requirement concerning the time limits in order to be acceptable. Any exception to the rule would be contrary to the legal provisions and would discriminate against other tenderers.

The Commission concluded that it cannot be held liable for the late submission of the bids. Accepting a bid that has been submitted late would constitute an infringement of the procedure. The decision to reject the complainant’s bids is fully in accordance with the rules on public procurement.

The complainant's observations

With regard to points a) and b) of the Commission's opinion, the complainant observed that the UK Post office informed him that there was no registered postal service available at the time of the tender. The complainant enclosed with his observations a letter of 14 November 2003 from the Branch Manager of the Romsey Branch Post Office, according to which "the overseas "registered" postal service was withdrawn by Royal Mail in October 2002 and has been replaced by the overseas "Signed For" service which offers the same features, namely insurance cover and a signature on receipt of the item." The complainant fell back on a courier service which was most likely to achieve the delivery deadline, rather than simply meeting the date of posting. The complainant observed that he acted in good faith, leaving plenty of time by posting sufficiently in advance to achieve the final delivery date.

With regard to point c) of the Commission's opinion, the complainant accepted that the decision of the Commission was fully in accordance with the rules on public procurement. But in taking the decision to reject the complainant's bid, the Commission has chosen to ignore an element of unfairness which has resulted from change in local conditions, and hence the Commission has perpetuated the resultant discrimination which it might have otherwise rectified. Demonstration of flexibility in this matter would be entirely in harmony with the European ethos.

The complainant also enclosed a letter of the Commission of 13 April 2004 rejecting the bid for translation into Hungarian.

THE DECISION

1 The scope of the present inquiry

1.1 The Ombudsman recalls that the EC Treaty empowers him to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person - such as the UK Postal Service in the present case - may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

1.2 In view of the information provided by the Commission as regards the requirements of the Postal Directive 97/67/EC concerning the provision of a registered mail service, the complainant may wish to consider seeking legal advice as to the possibility of claiming compensation from the appropriate UK authorities if no such service was in fact available at the time the tenders were submitted. The complainant has also the possibility to make a complaint to the UK Parliamentary Ombudsman about the service provided by the UK Postal Service.

2 The alleged discrimination against the complainant

2.1 The complainant alleges that the tender specifications with regard to the delivery requirements discriminated against the complainant, because there was no registered postal service available in the UK, and that the Commission has interpreted those specifications in an unnecessarily rigid way. The complainant therefore claims that the bids should be reconsidered.

2.2 The Commission observed that the licence of Royal Mail, a public limited company wholly owned by the Government, requires it to provide a registered mail service in the UK. This is done by providing a Registered and Signed for delivery service available in any post office branch for delivery in the UK and abroad. In this case, although the postal service exists, the tenderer chose to entrust the delivery to a courier service, who failed to deliver as agreed. This failure does not concern the Commission, and any dispute should be between the tenderer and the courier service. From article 145 of the Implementation rules of the Financial Regulation, it is clear that the bids must satisfy the requirement concerning the time limits in order to be acceptable. Any exception to the rule would be contrary to the legal provisions and would discriminate against other tenderers. The Commission concluded that the decision to reject the complainant’s bids is fully in accordance with the rules on public procurement.

2.3 The Ombudsman notes that, with regard to the sending of the tenders, point 6.1.9 of the general tender specifications provides that "Tenders must be (a) either sent by registered post to the following address by the final date for submission of tenders (date as postmark): (…) (b) or delivered by hand by the tendered in person or by an authorised representative to the following address (…)." The Invitation to tender provided that tenders had to reach the Commission by no later than 2 June 2003.

2.4 The Ombudsman finds that the provisions of the tender specifications with regard to the sending of the bids do not seem discriminatory because they provide for a method of delivery which the Commission has explained is legally required to be available to customers in all Member States.

2.5 The Commission's argument that it was legally obliged to exclude the complainant's bids appears reasonable and was in accordance with the tender specifications, because the bids arrived on 4 June 2003, i.e. two days after the deadline specified in the invitation to tender. As the deadline was legally foreseen in the tender specifications, there was no room for the Commission to apply flexibility in this matter. No instance of maladministration was thus found.

2 Conclusion

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

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS


(1) OJ 2003 S 76.

(2) OJ 2002 L 357/1.