Decision of the European Ombudsman on complaint 415/98/VK against the European Commission

Dear Mr Z.,
On 16 April 1998, you made a complaint on behalf of ÖSB-Unternehmensberatung GmbH to the European Ombudsman against the European Commission. In your complaint, you claimed that the Commission had failed to deal properly with your offer concerning an invitation to tender for the posts of Information- and Communication advisers in the field of employment, work relations and social affairs. (V/041/97).
On 12 May 1998, I forwarded the complaint to the President of the European Commission and asked him to comment on your complaint. The Commission sent its opinion on 25 August 1998 and I forwarded it to you with an invitation to make observations, if you so wished. I did not receive any observations from you.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complaint, the relevant facts were as follows:
The complainant is a company which participated in a public invitation to tender concerning the recruitment of Information and Communication Consultants in the field of employment, work relations and social affairs. The consultants were supposed to work in the offices of the Commission's Representations in the Member States.
The complainant stated that its candidate was a woman who was invited for interview by the Commission. According to the complainant, it was then informed by the Commission that its offer was the best.
The complainant put forward that it thereafter hired the candidate at its own risk in order to prepare her for the service required. Three months later, the complainant was told that further delays occurred. The complainant wrote to the Commission to inquire about the selection of the lot for Vienna and it was then informed by the Commission that after careful examination of all offers, no applicant has been selected for the lot and that it has therefore not been allocated.
Against his background, the complainant addressed the Ombudsman. It considered that several points concerning the tender remained unclear and therefore, it sought clarification on the following points:
1. Was there sufficient financial coverage for the payment of the demanded services at the time when the tender was announced?
2. How many offers were received by the Commission in relation to lot 15 for Vienna?
3. What substantial reasons justified the non distribution of lot 15?
4. Was the evaluation procedure in fact carried out twice, and what were the reasons for this?
5. If the complainant did not make the best offer, what were the reasons stated in the minutes?
6. What were the reasons, which led to the lifting of the distribution procedure?
7. What possibilities does the complainant have to receive compensation from the Commission for the financial effort made for the preparation of its offer?
8. Is Article 4 of the General terms and conditions applicable to contracts annexed to the public invitation to tender No. V/041/97 which states that there is no obligation for theCommission to award a contract, in accordance with the European tender law?

THE INQUIRY

The Commission's opinion
In relation to the mentioned relevant points, the Commission stated the following:
1. The non distribution of lot 15 for Vienna was not related to any problems of financial coverage.
2. For lot 15, 3 offers have been received.
3. Concerning the reasons for not accepting any of the above mentioned offers, the Commission stated that one offer did not meet the requirements, the second offer was rejected because the candidate had insufficient professional qualification and the third offer, the complainant's offer, was insufficient as regards the criteria for awarding of the contract.
4. As regards the execution of the procedure for lot 15, the Commission stated that the dossier had to be presented twice to the awarding committee, as the committee had demanded a second assessment of the offers.
5. The reasons for the refusal of the complainant's offer were the following: The candidate proposed by the complainant did not fulfil the criteria mentioned in the General terms and conditions for the tender. The complainant appeared to have a different idea of the tasks of a consultant. The application did not entail any short action plan set up by the candidate. Furthermore, the complainant stated that it considered itself free to replace the candidate at any given moment, an opinion which could not be accepted by the Commission. Finally, the candidate did not seem to have the necessary qualification.
6. Contrary to the complainant's view, the tender procedure was not annulled. There was simply no candidate was chosen for lot 15.
7. As regards possible financial compensation, the Commission refers to Article 4 of the General terms and conditions, according to which there is no obligation for the Commission to compensate candidates. In that way, the complainant is no different from other applicants whose offer was not taken into account.
8. The Commission stated that Article 4 of the General terms and conditions was indeed in accordance with the European tender law, as there was no obligation for the public employer to award a contract, as long as the procedure is formally made known to the tenders.
The complainant's observations
In his observations, the complainant expressed satisfaction concerning the account given by the Commission.
He requested that one point should be further investigated. This point related to health risks caused by the airport Köln/Bonn. He claimed that his letters concerning this item were not answered by the Commission.

THE DECISION

1 Information provided concerning the non-awarding of a contract and possible compensation
1.1 The complainant alleged that the tender procedure in which it participated was possibly not carried out in accordance with conditions stated in the notice for tender no. V/041/97. It therefore sought clarification on a number of points relating to the procedure and the execution of the tender. In particular, it asked for more information as to why it was not awarded the contract and why there was no contract awarded at all for lot 15. Furthermore, it inquired about financial compensation for its expenses.
1.2 It appears therefore that there were a number of points in the tender procedure which remained unclear to the complainant. It is good administrative behaviour to keep the participants of a tender procedure properly informed of the proceedings. This counts in particular, when an institution decides not to award a particular contract and when this decision effects the participants.
1.3 The question is therefore whether the complainant was sufficiently informed of the fact that the contract which it desired to obtain was not awarded at all. The complainant had addressed the Commission by letter of 16 June 1998 in which it inquired which tenderer was selected for Austria and at what price the bid was accepted.
1.4 By letter of 30 June 1998 the Commission replied that after careful consideration of the offers, no applicant has been selected for the lot in Vienna and that consequently, the post has not been allocated. The reasons for this decision were not communicated to the applicants. It is good administrative behaviour to communicate the reasons for a decision to the persons affected by it.
1.5 The Commission stated in its opinion to the Ombudsman that it received three offers for lot 15. The first offer did not meet the requirements, the candidate of the second offer did not have the necessary professional qualifications and the third offer, the complainant's offer, was insufficient as regards the criteria for awarding the contract. According to the Commission, neither the complainant nor the other two tenderers could therefore be awarded the contract for lot 15.
1.6 As regards the fact that a contract for lot 15 was not awarded at all, the Commission stated that in accordance with Article 4 of the General terms and conditions, it was not obliged to award any contracts. The reason for not awarding a contract for lot 15 was that none of the offers which it has received met the requirements of the tender.
1.7 As regards the possibility of receiving compensation for the financial effort made in the preparation of its offer, the Commission referred to the provision in Article 4 of the General terms and conditions which states that there is no obligation for the public employer to compensate tenderers.
1.8 The Commission has therefore provided the reasons for its decision when replying to the questions raised by the complainant in its complaint to the Ombudsman. Given that the reasons were provided by the Commission, the Ombudsman considers it not necessary to investigate the matter further.
2 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN