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Allegedly unclear tender documentation and allegedly wrong Commission decision concerning a tenderer's eligibility

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  • Case: 920/2010/VIK
    Opened on 26 May 2010 - Decision on 18 Jul 2011
  • Institution(s) concerned: European Commission
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB]
  • Subject matter(s): Award of tenders or grants
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Copyright: Copyright: © Andres Rodriguez

Summary of decision on complaint 920/2010/VIK against the European Commission

The complainant, an Irish company, led a consortium which submitted a tender bid to the European Commission for the development of a farmer register system in Kosovo. The bid was rejected because one of the members of the consortium (a legal entity) was found by the Commission not to be "established in" the European Union. The complainant disagreed with the Commission's interpretation of this term. It argued in this context that the information provided to tenderers failed to comply with the principle of transparency.

The Ombudsman recalled in his decision that it is good administrative practice in tender procedures for the administration clearly and unambiguously to set out the conditions that applicants must fulfil. Having examined the documentation relating to the tender in question, he noted that the Commission used at least three different terms ('establishment', 'nationality', 'registration'/'registered office') in order to clarify the eligibility condition that tenderers had to fulfil. None of these notions was, however, defined in the procurement notice and in the applicable legislation, and none of them had any precise meaning that normal diligent tenderers would obviously understand in the same way. The Ombudsman concluded that the information provided to tenderers failed to comply with the principles intended to ensure the transparency of the tender procedure and made a corresponding critical remark.

As regards the Commission's decision that the consortium led by the complainant was not eligible, the Ombudsman took the view that the Commission failed to put forward convincing arguments in support of its position that Company M had not complied with the eligibility requirements pertaining to the legal persons' place of establishment and laid down in the relevant procurement documentation. This was an instance of maladministration and the Ombudsman made a second critical remark.

Finally, in view of the terminological confusion that the present case revealed, and in order to avoid any possible misunderstanding in the future, the Ombudsman considered it useful to invite the Commission to review the documentation it provides in the context of its procurement procedures, with an eye to eliminating lack of precision and terminological inconsistency and to ensuring that tenderers are clearly and unambiguously informed of the eligibility conditions relating to their establishment/incorporation/registration/nationality. The Ombudsman noted that it would also be useful if, in the context of this review, the Commission could ensure that such key terms in the procurement process are clearly defined, either in the procurement notice itself, or in a document to which it makes clear reference and is easily accessible.