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Decision on how the European Commission carried out a procurement procedure for the provision of expert medical services (case 1756/2021/LM)

The European Commission organised a call for tenders for the provision of expert medical services for the European Union’s Joint Sickness Insurance Scheme (‘the JSIS’). The complainant submitted a tender but was not successful.

The complainant asked the Commission for information about the successful tender and the contract value, but the Commission did not provide it to him. The complainant thus turned to the Ombudsman, raising concerns about the procurement procedure and questioning how his replies to the technical questionnaire had been evaluated.

The Ombudsman found that the Commission evaluated the complainant’s offer in line with the applicable rules and, therefore, there was no maladministration in this aspect of the complaint. However, the fact that the Commission provided the complainant with the information he had requested only in the course of the inquiry constituted maladministration. To address this, the Ombudsman made suggestions to ensure that, in the future, the Commission has in place measures to safeguard the rights of unsuccessful tenderers to avail of the redress mechanisms at their disposal.

Background to the complaint

1. The Joint Sickness Insurance Scheme (JSIS) for EU staff members is administered by the Office for the administration and payment of individual entitlements (PMO), which is part of the European Commission.

2. In the beginning of 2021, the PMO launched a call for tenders to set up a framework contract for “the provision of expert medical and dental officer services”[1].

3. The call for tenders aimed at choosing the tender that offered the best value for money on the basis of a quality/price ratio. Offers were evaluated according to the following ‘award criteria’: 1) the tender price, consisting of the price expressed in euros per hour of service (accounting for 40% of the evaluation score); 2) the quality of the tender evaluated on the basis of the tenderer’s responses given on a technical tender form (accounting for 60% of the evaluation score). This technical tender form took the form of a questionnaire with four questions relating to hypothetical medical scenarios, which the tenderers were requested to answer. The replies of the tenderers to the questionnaire were assessed on the basis of the following criteria:

  • quality of argument (logic, flow and coherence of arguments) and the methodology used;
  • clarity/readability/accessibility for non-specialists;
  • understanding/use of the JSIS rules and scientific literature.

4. The complainant, a medical doctor who previously provided services as a medical officer for the PMO from 2014 to 2018 under a service contract, took part in the call for tenders.

5. On 6 May 2021, the Commission informed the complainant that his tender had not been successful as it had not attained a sufficient score in the evaluation (the complainant scored 68.7/100 as opposed to the 70/100 required pass mark). It also said that, if the complainant requested so in writing, he could be informed of the name, the characteristics and relative advantages of the successful tender(s), as well as the contract value. The complainant could also submit any observations concerning the procurement procedure within ten days.

6. On 11 May 2021, the complainant asked the Commission to send him the characteristics and relative advantages of the successful tender and the contract value. On 15 May 2021, since he had not received a reply, the complainant wrote to the Commission to express his doubts about the objectivity of the evaluation and asked the Commission to re-evaluate his application.

7. On 3 June 2021, the Commission replied to the complainant that it could not re-evaluate his offer because the procedure was already closed. It did not provide any information concerning the successful tender. It reassured him that the procedure was carried out in a neutral and impartial manner.

8. In September 2021, the complainant wrote again to the Commission asking for information related to the successful tenderer. He received no response. Dissatisfied with how the Commission handled his queries, the complainant turned to the Ombudsman on 2 October 2021.

The inquiry

9. The Ombudsman opened an inquiry into how the Commission evaluated the complainant’s tender and its failure to reply to the complainant’s request for information concerning the relative advantages of the successful tender and the contract value.

10. In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's reply.

Arguments presented to the Ombudsman

Arguments by the complainant

11. The complainant raised concerns about the procurement procedure and questioned in particular the evaluation of his replies to the technical questionnaire.

12. He claimed that the evaluation of his replies to the technical questionnaire was subjective and biased. It is unclear who evaluated the technical questionnaire and whether these persons were independent.

Arguments by the Commission

13. In its reply to the Ombudsman, the Commission provided further clarifications relating to the evaluation of the complainant’s offer, the successful tender and the contract value. The Commission said that an ‘evaluation committee’ evaluated and ranked tenders on the basis of the award criteria. The evaluation committee was made up of three individuals representing different organisational entities of the EU institutions. Two were from the PMO and the third was the medical officer at the Medical Service of the Commission, who has no direct organisational link to the PMO. The medical officer participated in the quality assessment of each technical questionnaire submitted by the tenderers.

14. The evaluation committee drafted an evaluation report. This report was also reviewed by the GAMA “Groupe d’analyse des marchés administratifs“, an advisory committee attached to the Directorate-General for Human Resources of the Commission, which carries out checks on public contracts after the evaluation phase and before award. The GAMA endorsed the evaluation report.

15. All the tenderers replied to the same questions provided in the technical questionnaire, which reflected the type of questions medical officers have to deal with. By asking to resolve medical cases through the technical questionnaire, tenderers had the opportunity on an equal footing to prove their practical knowledge and competence. Their replies were evaluated according to criteria that were applied in an objective and uniform manner to all tenderers.

The Ombudsman's assessment

16.  The call for tenders set out reasonable and objective award criteria, directly linked to the subject matter of the contract to be awarded. The Commission’s explanations regarding the composition of the evaluation committee, how it evaluated offers, are reasonable and exhaustive.

17. The role of the Ombudsman in cases such as this is to assess whether there is a manifest error of assessment or a procedural error in the evaluation. It is not the role of the Ombudsman to re-evaluate a tender or redo a scientific assessment carried out by an evaluation committee. In this case, the Commission indicated sufficient reasons why the tender was not accepted.[2] The evaluation committee used the same type of references when assessing the complainant’s tender to those used in its evaluation of the successful tender (for example, whether the replies to the technical questionnaire contained scientific references, were complete and sufficiently clear to non-specialists). There is nothing in the evaluations to suggest subjectivity or bias by the selection committee. Nor is there anything to suggest a manifest error of assessment or a procedural error in how it evaluated the complainant’s tender.

18. In light of the above, there is no maladministration in how the Commission evaluated the complainant’s offer.

19. However, the Ombudsman finds problematic the Commission’s failure to timely provide information to the complainant regarding the successful tender and the value of the contract.

20. According to the applicable rules, there should be a ‘standstill period’ of at least ten days, after the evaluation of the offers has been completed, within which the ‘contracting authority’ should not sign the contract with the successful tenderer.[3] During this period, the contracting authority may receive comments from unsuccessful tenderers. If these comments raise relevant information that indicates a possible error in the evaluation, the contracting authority may delay the signature of the contract in order to assess those comments further.[4]

21. According to EU case-law, by disclosing the characteristics and relative advantages of the successful tender, the contracting authority enables a tenderer whose bid has reached the phase preceding the award of the contract, [which] has been compared with other tenders and judged less advantageous, to ensure that the comparison was carried out correctly and, if necessary, to challenge that comparison. Such verification cannot be made without the relevant information concerning the successful tender.”[5] In other words, knowing the relative advantages of the successful tender enables unsuccessful tenderers to possibly identify an error in the evaluation. This is why the contracting authority, when requested to do so, is obliged to provide information about the relative advantages of the successful tenderer and the contract value. This should be done during the standstill period and, in any case, before it signs the contract with the successful tenderer. The Commission guidelines on procurement procedures recommend that the contracting authority prolong the standstill period (thus delaying the signature of the contract) in instances where it has provided the information about the relative advantages only at the end of the standstill period. In this way, contracting authorities can ensure that if the information provided triggers a well-founded complaint, the necessary consequences can still be drawn.[6]

22. In this case, the complainant requested information about the relative advantages of the winning tender during the standstill period, but received the information only in the course of the Ombudsman’s inquiry. This constitutes maladministration.

23. The Ombudsman finds that there is no appropriate recommendation to make in relation to this case because there is nothing that the Commission can do, at this stage, to rectify the failure to provide timely information. In addition, as set out above, there is nothing to suggest a manifest error in the evaluation. The Ombudsman will, however, make suggestions for improvement with a view to ensuring that, in future procurement procedures, the Commission has in place measures to safeguard the rights of the unsuccessful tenderers to effectively avail of the redress mechanisms at their disposal.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion

There was no maladministration by the European Commission in how it evaluated the complainant’s offer.

The Commission’s failure to provide timely information to the complainant on the relative advantages of the successful tenderer and the value of the contract was maladministration.

Suggestions for improvement

The Commission should consider providing as much information as possible about the contract value and relative advantages of the successful tenderer when informing unsuccessful tenderers already in the rejection letter.

When asked for information about the relative advantages of the successful tender and the contract value, the Commission should ensure that it respects the obligation to provide such information during the standstill period and, in any case, before signing the contract with the successful tenderer.

When the information referred to above is provided only at the end of the standstill period, the Commission should ensure that it respects the obligation to delay the signature of the contract to offer unsuccessful candidates a meaningful opportunity to provide comments.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 02/06/2022

 

[1] Procurement procedure PMO-OP-2020-0007/1, Lot 1: expert medical services in the Settlements Office in Luxembourg: https://etendering.ted.europa.eu/cft/cft-display.html?cftId=7711.

[2] In line with point 31.1 of Annex I to the Financial Regulation.

[3] See Article 175(2) of the Financial Regulation.

[4] Point 35 of Annex I to the Financial Regulation.

[5] Judgement of the General Court of 13 September 2011 in case T-8/08, Dredging International NV and Ondernemingen Jan de Nul NV vs European Maritime Safety Agency (EMSA), paragraph 106, available here

[6] See, in this respect, point 4.11.3 of the Vade-mecum of public procurement in the Commission.