Strasbourg, 16 July 2007

Dear Mr X,

On 2 June 2006, you made a complaint to the European Ombudsman on behalf of company Y. Your complaint was against the Office for Official Publications of the European Communities ("OPOCE") and concerned the alleged failure to fulfil its undertakings towards company Y in relation to the development and maintenance of a computerised system for the production of the supplement to the Official Journal of the European Union.

On 13 July 2006, I forwarded the complaint to the Director-General of OPOCE. OPOCE sent its opinion on 26 October 2006. I forwarded it to you with an invitation to make observations, which you sent on 29 December 2006.

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

THE COMPLAINT

The relevant facts according to the complainant can be summarised as follows.

In 1998, company Y signed a contract ("the Contract") with the Office for Official Publications of the European Communities ("OPOCE") for the design and implementation of a computerised system for the production of the supplement to the Official Journal of the European Union. The system (hereinafter referred to as "SEI-JOS") concerns the processing of tender notices and automation of the production of the supplement to the Official Journal ("OJS"). The Contract had a framework character, which meant that from time to time, OPOCE requested, through "Bons de Commande", the implementation of additional tasks, modules, extensions and the operation of specific maintenance tasks. The first version of the SEI-JOS system was delivered by company Y during the second half of 1999. Since 1999, the functional needs of OPOCE have changed many times, leading to the incorporation of many new releases to the SEI-JOS system. The technology used in the development of the first version of the system eventually became obsolete, leading to dramatically increased maintenance costs.

Company Y and OPOCE therefore analysed the situation and jointly agreed, on the basis of the request of an OPOCE official, to proceed to the delivery of a new version of the SEI-JOS system (the "Projected SEI-JOS"). Company Y and OPOCE jointly defined and validated the technologies to be used (mainly J2EE and ORACLE). Company Y agreed to be paid upon the delivery of the Projected SEI-JOS system. Company Y based its work and technical choices on discussions, meetings, documents and clarifications held with, and made by, OPOCE. The design of the Projected SEI-JOS system was presented to two OPOCE officials and was accepted by OPOCE on 20-21 January 2003. Upon OPOCE's request, company Y presented the Projected SEI-JOS system to two OPOCE officials at OPOCE's premises on 18 October 2004. The two officials were fully satisfied with the Projected SEI-JOS system. After a further presentation at the premises of OPOCE, the latter explained that company Y would soon receive instructions in relation to some remaining issues. OPOCE, in sum, wanted the Projected SEI-JOS system to include some new features. OPOCE told company Y that it would present a list of the modifications that were needed in early 2005.

In the meantime, OPOCE asked company Y to extend the maintenance of the existing SEI-JOS system for the very modest price of EUR 44 342.95 through Bon de Commande 1. The fee in question was based on company Y's initial offer, made in 1997, which led to the Contract. Taking into account the dramatic change in technology that had taken place since then, this fee should have been many times higher. Company Y nevertheless accepted the extension of the Contract for 20 months on the basis of the old price, since company Y was clearly informed by OPOCE that it would be invited to provide maintenance of the Projected SEI-JOS.

In late 2004, OPOCE requested company Y to make extensive changes to the existing SEI-JOS system in order to adapt it to the new European Regulation on public procurement. For this purpose, Bon de Commande 2, with a value of EUR 105 695.64, was issued.

The budget of Bon de Commande 1 and Bon de Commande 2 taken together did not cover the time and money spent by company Y on the maintenance of the existing SEI-JOS system. However, company Y expected OPOCE to accept the Projected SEI-JOS as agreed.

In early 2005, to company Y's surprise, OPOCE launched Call for tender No 6019, Lot 2, for the provision of services in relation to the collection and dissemination of electronic publications, in particular the OJS. This call for tender necessitated the use of technology different from the one agreed between company Y and OPOCE. Company Y took the view that it was a victim of an arbitrary choice on the part of OPOCE as regards which technology would be used. Company Y therefore sent OPOCE a letter on 6 June 2005 requesting a meeting in order to decide on the final adoption of the Projected SEI-JOS and to decide on how company Y would be compensated for its work. Company Y pointed out that, in the event OPOCE no longer wanted to use the Projected SEI-JOS, the value and content of the maintenance contract should be revised to cover the work and effort of company Y as regards the development of the Projected SEI-JOS and the extra work carried out on the obsolete platform.

OPOCE refused to reply to company Y's letter. Instead, the responsible official met company Y's representative, Mr Z., and asked him to consider abandoning company Y's financial claims, if company Y were awarded the new contract. Mr Z. agreed to this solution. The OPOCE official then stated that, in that case, a reply would not be sent to company Y's letter. The OPOCE official also asked Mr Z. to ensure that company Y would agree to continue its work on the basis of Bon de Commande 2 and that company Y would deliver on time.

By letter of 5 December 2005, OPOCE informed company Y that its bid in Call for tender No 6019, Lot 2 was rejected, since it was not the most economically advantageous bid.

By letter of 12 December 2005 to OPOCE, company Y again requested OPOCE to pay company Y compensation of EUR 550 000 for its work. On the same day, company Y also sent OPOCE a letter requesting it (i) to reconsider its decision to reject company Y's tender, and (ii) to launch a negotiated procedure. On 20 December 2005, OPOCE replied that a negotiated procedure could not be considered at that stage of the tender procedure. Furthermore, by letter of 7 February 2006, OPOCE denied that it had ever ordered any of the services relating to the design and development of the Projected SEI-JOS system. It refused to satisfy company Y's claim for compensation.

In company Y's view, OPOCE's stance is arbitrary and abusive since the Projected SEI-JOS system was made by company Y in accordance with the clear instructions of OPOCE and under the supervision of OPOCE in the context of the Contract.

The complainant alleged that OPOCE failed to fulfil its undertakings towards company Y in relation to the development and maintenance of the Projected SEI-JOS system, thereby infringing the European Code of Good Administrative Behaviour.

In support of his allegation, the complainant essentially argued that OPOCE obliged company Y to maintain the current SEI-JOS system for a very low fee and to develop the Projected SEI-JOS system based on new technology, thereby giving rise to company Y's legitimate expectation that it would provide and maintain the Projected SEI-JOS system.

The complainant claimed that OPOCE should:

1. admit that it infringed the European Code of Good Administrative Behaviour; and
2. pay company Y the sum of EUR 550 000 in compensation.

THE INQUIRY

OPOCE's opinion

OPOCE's opinion can be summarised as follows.

The complainant's argument that OPOCE obliged company Y to maintain the current SEI-JOS system for a very low fee

Following an open Call for tender, OPOCE and company Y concluded, in 1998, a framework contract: Renewal of the computerised publishing system for the Supplement to the Official Journal of the European Communities (SEI-JOS) (the "Contract").

The subject of the Contract, as stipulated in its Article 2, is:

"1. to complete development work necessary for the renewal of the computer application 'Computerised publishing system for the Supplement to the Official Journal of the European Communities' (Notices of public contracts - SEI OP2), the designation of the new application to be developed being SEI-JOS.

2. to carry out the maintenance of this application if the Commission expressly requests it at the end of the development. (...)".

As stated in the last two paragraphs of Article 2, the work was to be carried out by company Y on the basis of order forms drawn up by the Commission in accordance with the price schedule and the terms of the functional specifications in Annex 1 to the Contract. As explained in Article 4 of the Contract, this implies that any work which was not preceded by an order form could not be invoiced.

In accordance with the Contract, the period of time provided for the development of the application was 17 months. In the course of 1999, after company Y had delivered the first version of the SEI-JOS, there followed a period where the SEI-JOS was tested and corrected until it was finally installed on 20 December 1999 replacing SEI-OP2.

However, when the SEI-JOS developed by company Y was put into production it was not fully complete. The reason it was installed even though it was not fully in conformity with the technical specifications, and therefore had not yet been accepted by OPOCE in accordance with Article 18 of the Contract, was that is was not possible to make SEI-OP2 "compatible with the year 2000" without considerable costs and without a high risk of failure. Nevertheless, the mere fact that SEI-OP2 dated from 1984, and had been operational for 15 years, showed that the complainant's argument that "such complex systems in a continuously changing information technology environment have usually a life cycle of 3 to 5 years", was incorrect.

The elements of the SEI-JOS that were missing, or were incorrect, did not block the overall production. Nevertheless, once the SEI-JOS was put into production, further problems, both technical and functional, were revealed. In order to solve these problems, company Y and OPOCE held several meetings and exchanged several documents including a "List of the most important reserves" and "Summary Problem Reports". Several additional deliveries had to be made in order to correct and complete the SEI-JOS. Consequently, the regular service acceptance in accordance with section 6.1 of the specifications, which signifies the end of the development phase, only took place on 15 December 2000. However, the acceptance was accompanied by a list of reserves established by mutual agreement. The development phase was followed by a six-month guarantee period in accordance with Article 17 of the Contract, which ended on 15 June 2001.

At the end of the guarantee period, OPOCE made use of the possibility provided for in Article 3.2 of the Contract, to request the corrective maintenance of the SEI-JOS. The price of the corrective maintenance was defined in the price schedule, which was filled in and duly signed by company Y when it submitted its bid in response to the Call for tender. In accordance with Article 3.3 of the Contract, "at the end of the first year of the maintenance, the contract may be renewed for further four periods of one year each, unless terminated by either party by registered letter three months before the end of the contract period". As neither of the contracting parties informed the other of its intention to terminate the Contract, company Y continued to provide the maintenance, on the basis of the Contract, until 31 January 2005.

There were delays in completing the technical specifications for a new call for tender for the development and maintenance of the SEI-JOS. OPOCE, therefore, prolonged the Contract beyond 31 January 2005. Company Y was informed of OPOCE's intention to prolong the Contract for a period of 20 months by letter dated 19 November 2004. In this letter, company Y was asked whether it agreed to such an extension and whether it would "maintain [its] current financial terms and conditions". Company Y agreed to the envisaged prolongation by letter dated 23 November 2004, stating that it would maintain the same financial terms and conditions without expressing any reservations or conditions. The amendment, prolonging the Contract until 30 September 2006, was duly signed by both contracting parties. Again company Y did not express any objections or concerns that it considered the financial conditions to be inappropriate.

In the complaint, as well as in previous correspondence exchanged between the parties, company Y argues that the main reason for its difficulties and increased costs for the maintenance of the SEI-JOS were the changes introduced by OPOCE. However, the requirement that the SEI-JOS should be capable of integrating further developments was clearly announced in the Technical Specifications (point 1.1): "[OPOCE] requires a modern, user-friendly application which can be further developed" (emphasis added). Besides, the development-related maintenance, which was foreseen in the Contract, covered all the adaptations made necessary by the evolving needs of the SEI-JOS, even if such changes were not explicitly enumerated in the Contract or its Annexes. Lastly, the Technical Specifications also require, in point 2.2.4.3, tenderers to "undertake to incorporate changes to the application in all documentation for the entire duration of the project".

The most important changes requested by OPOCE concerned, in particular, the following three aspects: (i) changes rendered necessary by the addition of new languages; (ii) changes made necessary by the modification of public procurement directives concerning forms; and (iii) a change in the technical environment. All these changes were explicitly or implicitly announced in the Technical Specifications of the Contract. The addition of further languages was foreseen in point 4.3 of the Technical Specifications. The administrative environment of the SEI-JOS was presented in point 3.1.1 of the Technical Specifications. That point stated that "[p]roduction rules are not laid down directly by [OPOCE], but are governed by European legislation". Furthermore, the same point also contained a list of the main changes that had been effected since the application (preceding the SEI-JOS developed by company Y) was brought into operation. The purpose of that list was to serve as an illustration, for tenderers, of changes which might occur during the life-cycle of the SEI-JOS. In point 2.2.2.2 of the Technical Specifications, it was specifically noted that "it is planned to switch to Oracle 8 in the near future" and that the "tenderer's bids should specify this event as an alternative technical architecture scenario".

In addition to the above, each time OPOCE considered that its evolving needs made it necessary to introduce changes to the SEI-JOS, OPOCE contacted company Y, described its needs and requested a quotation of resources required in order to implement the proposed change. After company Y had submitted its quotation, OPOCE established an order form which was then subsequently signed by company Y and returned to OPOCE. Therefore, not only did company Y receive payment for every set of changes mentioned above; it was also actively involved in the decision-making process as to how to implement these changes. The changes were analysed by company Y prior to submitting its quotation, which was therefore based on company Y's own analysis of the time and effort required.

In light of the above, it follows that, contrary to the argument that OPOCE 'obliged' company Y to maintain the SEI-JOS, company Y had voluntarily decided to enter into the contractual relation with OPOCE. Although company Y had the possibility, when the Contract was due to expire in January 2005, to allow the Contract to expire, or to propose different financial conditions for its prolongation, it did not make use of that possibility. Rather, it agreed to maintain the SEI-JOS under the same financial terms and conditions. OPOCE therefore considers company Y's argument to be unfounded.

As the duration envisaged for the maintenance of the SEI-JOS was clearly announced in the Call for tender, company Y should have developed the SEI-JOS in full knowledge of the contractual requirements. This means that company Y should have taken into account the envisaged life-cycle of the SEI-JOS, when calculating the costs of its maintenance as presented in its offer. Any other interpretation would not be in accordance with the principle of equal treatment of (other) tenderers, whose offers may have been more expensive than company Y's because they quoted the price in full knowledge of the requirements of the Call for tender.

The complainant's argument that OPOCE obliged company Y to develop a new SEI-JOS based on new technology

After the end of the guarantee period, certain functions required by the Technical Specifications were still not implemented in the SEI-JOS. In this regard, various e-mails concerning the problems in the functioning of the SEI-JOS were exchanged between OPOCE and company Y. In addition, OPOCE reiterated and summarised its concerns in a letter to company Y dated 18 June 2002. Shortly after this letter had been sent, and without any suggestion or encouragement from OPOCE, company Y, on its own initiative, proposed to develop the Projected SEI-JOS for free in order to save effort and costs in maintaining the SEI-JOS, which it considered to be obsolete and too expensive to maintain. In a letter dated 4 November 2002, company Y explained the reasons for its proposal to develop the Projected SEI-JOS.

On 22 November 2002, OPOCE replied to company Y's letter of 4 November 2002, commenting that the proposal did not contain all the necessary elements which would enable OPOCE to take a decision. On 15 January 2003, company Y submitted a proposal containing clarifications.

On 20 and 21 January 2003, two OPOCE officials were on mission at company Y's premises. The object of the mission was primarily to discuss the SEI-JOS system. During the mission, company Y made a PowerPoint presentation showing the architecture of the Projected SEI-JOS and its probable evolution. Although satisfied, in principle, with the architecture of the Projected SEI-JOS, OPOCE never accepted company Y's proposal to develop the Projected SEI-JOS system, even though it was proposed for free. The fact that the development of the Projected SEI-JOS was proposed for free was clearly stated in the minutes of a meeting held on 30 June 2003. Moreover, in the minutes of a meeting held on 1 August 2003 it was repeated and agreed that the development of the Projected SEI-JOS would in any case not be subject to an order form, which meant that there would be "neither invoicing nor corresponding payment". In addition, during the meeting of 1 August 2003, OPOCE clearly insisted that company Y should rather concentrate its efforts on improving the SEI-JOS.

During a subsequent mission to company Y's premises on 18 and 19 October 2004, the Projected SEI-JOS was, on company Y's sole initiative, briefly demonstrated to two of OPOCE's staff members. The demonstration had not been announced in advance. As the demonstration of the Projected SEI-JOS was not on the agenda of the mission, it was not mentioned in the mission report. The two members of OPOCE's staff were technical experts but had no practical expertise of the requirements of the users on the OJS production side. They were therefore not in a position to assess, as argued by the complainant, whether the Projected SEI-JOS, as demonstrated by company Y, would satisfy the needs of OPOCE. They could only assess the architecture of the Projected SEI-JOS. Company Y insisted on another demonstration of the Projected SEI-JOS at OPOCE's premises. The two staff members did not object to the proposal.

This last demonstration of the Projected SEI-JOS took place, upon company Y's insistence, after the project co-ordination meeting of 15 November 2004. The demonstration, which contrary to the earlier one, took place in the presence of the users of the SEI-JOS, showed that, when compared with the SEI-JOS, certain required functions were incomplete. Consequently, the Projected SEI-JOS was considered to be inadequate. The minutes of the co-ordination meeting of 15 November 2004 were initially prepared by company Y and included a paragraph about the demonstration. As, on the one hand, OPOCE did not agree with the content of that paragraph and as, on the other hand, the demonstration was not included in the agenda for the meeting and was actually held outside of it, OPOCE requested that the paragraph be deleted from the minutes. The decision is clearly shown in the last version of the minutes.

OPOCE was not interested in following up the development of the Projected SEI-JOS on its own initiative, in particular after the unsuccessful demonstration on 15 November 2004. As company Y never provided any updated version of the Projected SEI-JOS, and did not mention the Projected SEI-JOS until 6 June 2005, OPOCE considered that company Y had abandoned the idea of developing the Projected SEI-JOS. However, in a letter of 6 June 2005, company Y claims, inter alia, that "we decided jointly to replace the system", whereas, as explained above, such a decision was never taken by OPOCE, much less jointly with company Y. On 15 June 2005, OPOCE discussed company Y's letter of 6 June 2005 with Mr Z., who agreed that it was not necessary to provide a written answer to the letter.

Concurrently, OPOCE was preparing a new Call for tender (No 6019, Lot 2), the purpose of which was to award a contract for the development and maintenance of an IT system conceived to replace the SEI-JOS once the Contract expired. In order to inform as many potentially interested economic operators as possible and in accordance with the applicable legislation, the following documents were published on TED:(1)

• Prior information notice 2003/S 68-058986 - Invitation to tender No 6019: provision of services in relation to the collection, production and dissemination of electronic documents and publications, in particular the "Supplement to the Official Journal of the European Union", published on 5 April 2003.
• Prior information notice 2004/S 85-071899 was published on 30 April 2004. Contrary to the previous information notice referred to above, it announced only lots 2 and 8 of Contract No 6019 (Lot 2 being the "Development and maintenance of the OJS production System").
• Contract notice 2005/S 45-042757 launching Call for tender No 6019 lot 2 - Development and maintenance of a computerised system (SEI-JOS) for the production of the OJS, published on 4 March 2005.

Given the fact that the two prior information notices concerning Call for tender No 6019, lot 2, were published already in 2003 and 2004, it is difficult to understand company Y's 'surprise' that OPOCE launched Call for tender No 6019, lot 2, in 2005.

The above-mentioned contract notice (2005/S 45-042757) contained the following description of the contract (point II.1.6):

"The purpose of this call for tender is to develop a new computerised system ('SEI-JOS') for the monitoring and control of the publication of the Supplement to the Official Journal of the European Union (OJ S). The use of the software Documentum as document management system is mandatory."

Contrary to the complainant's argument, OPOCE never agreed with company Y on any kind of technology to be used in its future Call for tender. In any event, the complainant's argument that OPOCE "was imposing different technology" (emphasis added) became irrelevant as a notice with 'Additional information' (2005/S 58-055352) was published on 23 March 2005, stating that "[t]he use of the software Documentum or equivalent as document management system is mandatory" (emphasis added).

Shortly after OPOCE had informed company Y, by letter of 5 December 2005, that it had not been awarded the procurement contract following its bid submitted in Call for tender No 6019 lot 2, company Y sent another letter to OPOCE, dated 12 December 2005. In its letter, company Y, for the first time, asked for "compensation (...) for its work" in addition to the work done on the basis of order forms. By reply of 7 February 2006, OPOCE clearly stated that it had never ordered the development of the Projected SEI-JOS and was therefore not going to pay for it.

From the above, it follows that OPOCE never suggested or proposed to company Y to develop the Projected SEI-JOS. OPOCE never defined any technical and functional guidelines concerning the Projected SEI-JOS. Company Y has provided no evidence to substantiate its argument in this regard. OPOCE was willing to consider company Y's proposal to develop a Projected SEI-JOS for free, provided that the Projected SEI-JOS was not inferior to the existing SEI-JOS, that it solved certain failings identified in the existing SEI-JOS and that it did not entail any costs for OPOCE. It was clear to both parties that OPOCE would not issue an order form for the Projected SEI-JOS and that, accordingly, the Projected SEI-JOS would neither be invoiced, nor paid for. Even if company Y had shown that the Projected SEI-JOS was not inferior to the existing SEI-JOS and if it had been decided to implement the Projected SEI-JOS, the latter would only have been used within the duration of the Contract and would have been replaced by a new system, following open Call for tender No 6019, lot 2, as is required by the public procurement rules.

The complainant's argument that OPOCE gave rise to company Y's legitimate expectation that company Y would be the provider and maintainer of the new SEI-JOS system

Within the framework of Call for tender No 3019, lot 2, company Y was treated in the same way as other tenderers. Any kind of preferential treatment would have undermined and breached all basic principles and rules of public procurement.

Company Y often participated in Calls for tender and has been awarded contracts by the European institutions. Therefore, company Y must have been aware that the development of the new SEI-JOS system (PLAN JOS) could only be awarded through a Call for tender open to all economic operators under the same conditions. Company Y's expectation that it would be awarded the contract for the development of the PLAN JOS without a Call for tender cannot be considered legitimate.

No official of OPOCE has the authority to ask company Y "to consider abandoning [company Y's] financial claims in case [company Y] would be awarded the new OJS contract" and no one ever did so, either explicitly or implicitly. Company Y's expectation that it would be awarded a contract automatically and without any transparent procedure because it had been awarded a contract in the previous Call for tender does not have any legal effect or factual basis. Following the complainant's reasoning would mean letting economic operators enter into contractual relations with the Community institutions through the back door.

Conclusions

OPOCE considers that it fulfilled all its undertakings towards company Y in relation to the development and maintenance of the computerised system (SEI-JOS) for the production of the OJS.

OPOCE has not infringed the European Code of Good Administrative Behaviour or any other legal act.

OPOCE does not agree to pay compensation to company Y.

The complainant's observations

The comments made by the complainant in his observations can be summarised as follows:

OPOCE's opinion does not refute the main facts supporting company Y's claim. By endorsing the Projected SEI-JOS in early 2003, OPOCE clearly assigned to company Y responsibility for developing a new SEI-JOS. This was a clear assignment which took place after various meetings. Company Y respected the terms of the assignment and OPOCE closely monitored company Y's work.

Company Y has suffered significant losses by (i) being obliged to maintain, for a symbolic fee and for a very long period of time going beyond the contractual period, a system based on old technology and constantly to add new functions to this system, and (ii) not being paid for the development of the Projected SEI-JOS system, although it was successfully delivered in accordance with the agreement with OPOCE.

OPOCE waited until it had obtained company Y's commitment to work under the same terms and conditions as in the Contract of 1 March 1998 before launching the new Call for tender in March 2005.

During a meeting with OPOCE on 15 June 2005, company Y agreed to withdraw its claims if it were awarded the new SEI-JOS contract. In such a case, OPOCE did not have to answer company Y's letter of 6 June 2006, raising issues related to the new SEI-JOS system.

The obligation to maintain the current SEI-JOS system for a very low fee

Company Y's clear understanding, after various discussions with OPOCE, was that the maintenance of the SEI-JOS system would be based on the Projected SEI-JOS system. That is the main reason why company Y accepted, by letter of 23 November 2004, to extend the Contract for another 20 months under the same terms and conditions. This was agreed orally with OPOCE. As OPOCE knows, this is precisely why company Y agreed not to re-negotiate the terms, although OPOCE offered to do so.

When OPOCE asked company Y to extend the duration of the Contract on 19 November 2004, OPOCE did not inform company Y that it had decided to reject the Projected platform. Moreover, OPOCE did not mention anything to company Y about having adopted Documentum as the future technological basis for a new SEI-JOS. OPOCE had, however, already made this decision when it asked company Y to extend its maintenance contract. Its decision in this regard must have been made on 6 December 2004, the date of signature of another contract, the PLAN-PUBLI contract. The complainant suggests that the decision to use Documentum for a new SEI-JOS must have been made as soon as OPOCE decided to award the PLAN-PUBLI contract to the tenderer that had proposed the Documentum technology.

OPOCE did not make any comments on the new platform that company Y had demonstrated. OPOCE did not inform company Y that it rejected company Y's new platform and it did not reveal its intention to adopt a new technological platform, simply because it knew that company Y had developed the Projected SEI-JOS system on the basis of what had been jointly agreed in 2003. This was particularly unfair on the part of a public administration.

Instead of informing company Y about the change of technological preferences, OPOCE let company Y develop the Projected SEI-JOS and make contractual commitments through Bon de Commande 1 and Bon de Commande 2. Thereafter OPOCE refused to consider the Projected SEI-JOS and, to company Y's surprise, arbitrarily imposed Documentum in the Call for tender 3019, lot 2, published on 4 March 2005. It was only after company Y's letter of 15 March 2005 protesting against the imposition of a specific vendor (Documentum) that OPOCE changed this requirement. However, after a careful analysis of the terms of reference of the PLAN-JOS Call for tender for the extension of SEI-JOS, company Y realised that it could not offer any solution which would not be based on Documentum. Since OPOCE's intentions were not clear, company Y was forced to request, on 6 June 2005, a revision of the maintenance price in writing.

The obligation to develop a new SEI-JOS based on new technology and company Y's legitimate expectation that it would be the provider and maintainer of the new SEI-JOS system

Contrary to what OPOCE argues, it was OPOCE that invited company Y to develop the Projected SEI-JOS system. OPOCE's responsible head of unit urged company Y to carry out this work as soon as possible. OPOCE uses the term "for free" in a misleading manner. OPOCE asked company Y to develop the Projected SEI-JOS system and to demonstrate it to OPOCE as soon as it was ready and met its needs. OPOCE was to pay for the Projected SEI-JOS system only after its final presentation and acceptance. Company Y agreed to undertake the investment needed to develop the Projected SEI-JOS system. Company Y had a clear agreement with OPOCE that it would check the new system to make sure that it addressed its needs, and pay for the system when it entered into production. OPOCE made clear to company Y that it did not want to invest in new trials or in new products covering its needs partially. OPOCE informed company Y that since it knew OPOCE's needs, which initially had not been communicated to company Y in a proper way, company Y could propose an alternative solution, namely, a new system based on new technologies that would replace the first version of SEI-JOS. Company Y accepted to undertake this development work without a Bon de Commande subject to the clear assurance that OPOCE would compensate company Y immediately after the successful completion of the system. OPOCE wanted to make sure that the product was complete before ordering it. A Bon de Commande was therefore not needed. OPOCE wanted to buy a final product and company Y took the risk to provide it. OPOCE could refuse to pay for the product only if it was not satisfactory. Company Y trusted OPOCE and delivered the new product successfully. OPOCE violated the agreement by refusing to pay for the new system. The fact that company Y accepted to work without a Bon de Commande does not mean that "there would be neither invoicing nor corresponding payment" as argued by OPOCE. OPOCE knew that the delivery of the new system would imply significant savings for it in terms of maintenance fees. OPOCE's decision in this regard was, therefore, optimal for both itself and the tax payers. The decision was also in conformity with the existing contract and applicable legislation. As far as company Y's letter of 4 November 2002 is concerned, it did not refer to any delivery for free as misleadingly argued by OPOCE.

Company Y and OPOCE corresponded extensively in order to design the new system in accordance with OPOCE's needs. The letters referred to by OPOCE in this regard only constitute a sample. The relevant documentation was provided with the original complaint.

By arguing that, during the demonstration of the Projected SEI-JOS system it became clear that certain required functions were incomplete in comparison with the previous version of the SEI-JOS, OPOCE admits to having ordered the work and that it rejected the system not because it was not ordered but because it considered it to be incomplete. Company Y expects OPOCE to inform it officially, clearly and in detail, which were the required functions that were incomplete. This important information was never communicated to company Y but was apparently only stated in an internal document. OPOCE told company Y that it would analyse the new system and come back with its comments during the first quarter of 2005. OPOCE never informed company Y in writing that the demonstration was found to be inadequate and never stated the reasons therefore. Only after the publication of the Call for tender for the new SEI-JOS on 4 March 2005 did company Y understand that OPOCE had rejected company Y's offer because it wanted to use a different technological platform.

OPOCE led company Y to believe that the Projected SEI-JOS system would be adopted. Under this clear assumption, company Y agreed to extend the maintenance contract for the old SEI-JOS system for a very low fee. Subsequently, during the meeting of 15 June 2005, OPOCE led company Y to believe that it would win the new Call for tender. This was done in order to convince company Y not to insist on being paid for its work and to make it complete the last critical changes of the SEI-JOS (relating to Bon de Commande 2), again for a very low fee. Further to sending the letter of 23 November 2004, company Y's representative, Mr Z., met the responsible OPOCE official on 15 June 2005. Mr Z. reminded OPOCE that company Y had suffered substantial loss from the development of the Projected SEI-JOS system and from the extension of the maintenance contract for a very low fee. The OPOCE official asked Mr Z. not to complain since company Y had a chance, due to its experience, to win the new Call for tender on the new SEI-JOS. The OPOCE official asked Mr Z. whether he would agree to forget about the letter in case company Y was awarded the new contract. The OPOCE official and Mr Z. then agreed that in case company Y was awarded the contract, there was no need for OPOCE to reply to the letter. OPOCE's version of what happened during the meeting is not correct. Company Y wonders why Mr Z. would accept not to receive an answer to a formal letter sent by company Y to OPOCE after the meeting. Company Y also wonders why, if Mr Z. simply changed his mind, he did not send a new letter to OPOCE asking it to withdraw the serious claims made in the letter of 6 June 2005 or to state that no answer was necessary.

OPOCE told company Y that it was waiting for the Projected SEI-JOS system produced by company Y in order to take a final decision on whether to proceed to issuing a Call for tender. Notwithstanding two prior information notices, company Y was indeed not expecting that Call for tender to be published. In other similar cases, EUR-LEX being the most recent one, OPOCE issued a prior information notice for a Call for tender, but subsequently cancelled the procedure and invited a company to produce a new version of the EUR-LEX system. Much later, it launched a new Call for tender to select a new contractor to take over the new, already developed system. Company Y reasonably expected OPOCE to follow the same procedure in the case of the SEI-JOS.

It was only after having read the specifications for the PLAN-JOS Call for tender (2005/S 45-042757) that company Y realised that it had been deceived by OPOCE. Company Y was surprised to read that OPOCE had chosen Documentum as a new technological platform. As already indicated, OPOCE never made its change in technological direction known to company Y. Company Y was thus forced to propose a solution based on Documentum, instead of offering the Projected SEI-JOS system, which had already been demonstrated and delivered to OPOCE. It was only at this moment that company Y realised that all the work it had carried out, in agreement with OPOCE, in order to deliver the Projected SEI-JOS system, was definitely lost. Even if OPOCE, after company Y's intervention, relaxed the requirement for the use of Documentum, the terms of reference were written in a manner which clearly favoured a solution based on Documentum.

OPOCE delayed the completion of the evaluation process in this tender procedure on purpose. By letting company Y believe that it would be awarded the new contract, OPOCE made company Y agree to complete the change requested through Bon de Commande 2. This change was of paramount importance to OPOCE - OPOCE wanted to make sure that company Y would agree to deliver the change requested through Bon de Commande 2 for a very low fee. When company Y realised that it had been deceived by OPOCE for a third time(2), company Y sent OPOCE a letter asking for reasonable and legitimate compensation for its work.

On the new SEI-JOS system (PLAN-JOS)

As regards the Call for tender for the new SEI-JOS system, company Y was in an unfavourable situation in relation to other tenderers since it had to amortise, in its offer, the costs unreasonably imposed by OPOCE for the Projected SEI-JOS system. Company Y had no expectations of this public procurement process. However, OPOCE had asked whether company Y would be prepared to abandon its claims in case it were awarded the contract. Company Y had explained that it was ready to do so.

THE DECISION

1 OPOCE's alleged failure to fulfil its undertakings towards company Y in relation to the development and maintenance of the SEI-JOS

1.1 The complaint concerns the alleged failure by the Office for Official Publications of the European Communities ("OPOCE") to fulfil its undertakings towards company Y in relation to the development and maintenance of a computerised system for the production of the supplement to the Official Journal of the European Union ("OJS"). According to the complainant, company Y signed a contract ("the Contract") with OPOCE in 1998 for the design and implementation of such a computerised system (SEI-JOS). The first version of the SEI-JOS system was delivered by company Y during the second half of 1999. Since 1999, the functional needs of OPOCE have changed many times, leading to the incorporation of many new releases to the SEI-JOS system. The technology used in the development of the first version of the system eventually became obsolete, leading to dramatically increased maintenance costs. Company Y and OPOCE therefore analysed the situation and jointly agreed, on the basis of the request from OPOCE an official, to proceed to the delivery of a new version of the SEI-JOS system ("the Projected SEI-JOS"). Company Y and OPOCE jointly defined and validated the technologies to be used (mainly J2EE and ORACLE) and company Y agreed to be paid upon delivery of the Projected SEI-JOS system. Company Y based its work and technical choices on discussions, meetings, documents and clarifications held with, and made by, OPOCE.

In the meantime, OPOCE asked company Y to extend the maintenance of the existing SEI-JOS system for a very modest price. The fee in question was based on company Y's initial offer, made in 1997, which led to the Contract. Taking into account the dramatic change in technology that had taken place since 1997, this fee should have been many times higher. Company Y nevertheless accepted the extension of the Contract for 20 months on the basis of the old price, since company Y was clearly informed by OPOCE that it would be invited to provide maintenance of the Projected SEI-JOS. In late 2004, OPOCE requested company Y to make extensive changes to the existing SEI-JOS system in order to adapt it to the new European Regulation on public procurement.

In early 2005, to company Y's surprise, OPOCE launched Call for tender No 6019, Lot 2, for the provision of services in relation to the collection and dissemination of electronic publications, in particular the OJS. This call for tender imposed a technology different from the one agreed between company Y and OPOCE. Company Y considered that it was a victim of OPOCE's arbitrary choice as regards technology. Company Y therefore sent OPOCE a letter on 6 June 2005, requesting a meeting in order to decide on the final adoption of the Projected SEI-JOS and to decide on how company Y would be compensated for its work. Company Y pointed out that, in the event OPOCE no longer wanted to use the Projected SEI-JOS, the value and content of the maintenance contract should be revised to cover company Y's work and effort as regards the development of the Projected SEI-JOS and the extra work on the old and obsolete platform.

By letter of 5 December 2005, OPOCE informed company Y that company Y's bid in Call for tender No 6019, Lot 2 was rejected, since it was not the most economically advantageous bid.

By letter of 7 February 2006, OPOCE denied that it had ever ordered any of the services relating to the design and development of the Projected SEI-JOS system. It refused to satisfy company Y's claim for compensation. In company Y's view, OPOCE's stance is arbitrary and abusive since the Projected SEI-JOS system was made by company Y in accordance with clear instructions from OPOCE and under the supervision of OPOCE in the context of the Contract.

The complainant alleged that OPOCE failed to fulfil its undertakings towards company Y in relation to the development and maintenance of the Projected SEI-JOS system, thereby infringing the European Code of Good Administrative Behaviour.

In support of his allegation, the complainant essentially argued that OPOCE obliged company Y to maintain the current SEI-JOS system for a very low fee and to develop the Projected SEI-JOS system based on new technology, thereby providing company Y with the legitimate expectation that it would provide and maintain the Projected SEI-JOS system. The complainant claimed that OPOCE should admit that it infringed the European Code of Good Administrative Behaviour and pay company Y the sum of EUR 550 000 in compensation.

1.2 In its opinion, OPOCE argued that there were delays in completing the technical specifications for a new call for tender for the development and maintenance of the SEI-JOS. OPOCE, therefore, prolonged the Contract beyond 31 January 2005. OPOCE informed company Y, by letter dated 19 November 2004, of its intention to prolong the Contract for a period of 20 months. In this letter, OPOCE asked company Y whether it agreed to such an extension and whether it would "maintain [its] current financial terms and conditions", which it did. The amendment, prolonging the Contract until 30 September 2006, was duly signed by both contracting parties and again company Y did not express any objections or concerns that it considered the financial conditions to be inappropriate.

According to OPOCE, the requirement that the SEI-JOS should be capable of integrating further developments was clearly announced in the Technical Specifications (point 1.1): "[OPOCE] requires a modern, user-friendly application which can be further developed" (emphasis added). Besides, the Technical Specifications also require, in point 2.2.4.3, tenderers to "undertake to incorporate changes to the application in all documentation for the entire duration of the project".

Each time OPOCE considered that, because of its evolving needs, it was necessary to introduce changes to the SEI-JOS, it contacted company Y, described its needs and requested a quotation of resources required in order to implement the proposed change. After company Y had submitted its quotation, OPOCE established an order form which was then subsequently signed by company Y and returned to OPOCE.

In light of the above, it follows that, contrary to the argument that OPOCE 'obliged' company Y to maintain the SEI-JOS, company Y had voluntarily decided to enter into the contractual relation with OPOCE. Although company Y had the possibility, when the Contract was due to expire in January 2005, to allow it to expire, or to propose different financial conditions for its prolongation, it did not make use of that possibility. Rather, it agreed to maintain the SEI-JOS under the same financial terms and conditions. OPOCE therefore considers company Y's argument to be unfounded.

As the envisaged duration of the maintenance of the SEI-JOS was clearly announced in the Call for tender, company Y should have developed the SEI-JOS in full knowledge of the contractual requirements. This means that company Y should have taken into account the envisaged life cycle of the SEI-JOS, when calculating the costs of its maintenance as presented in its offer. Any other interpretation would not be in accordance with the principle of equal treatment of (other) tenderers, whose offers may have been more expensive than company Y's because they quoted the price in full knowledge of the requirements of the Call for tender.

According to OPOCE, company Y proposed, on its own initiative, to develop the Projected SEI-JOS for free in order to save effort and costs for the maintenance of the SEI-JOS, which it considered to be obsolete and too expensive to maintain. Company Y explained, in a letter dated 4 November 2002, the reasons for its proposal to develop the Projected SEI-JOS. OPOCE replied that the proposal did not contain all the necessary elements which would enable it to take a decision. OPOCE never suggested or proposed to company Y to develop the Projected SEI-JOS. Company Y has provided no evidence to substantiate its argument in this regard. OPOCE was willing to consider company Y's proposal to develop a Projected SEI-JOS for free, provided that the Projected SEI-JOS was not inferior to the existing SEI-JOS, that it solved certain failings identified in the existing SEI-JOS and that it did not entail any costs for OPOCE. However, OPOCE never accepted company Y's proposal to develop the Projected SEI-JOS, even though it was proposed for free. During the meeting of 1 August 2003, OPOCE clearly insisted that company Y should rather concentrate its efforts on improving the SEI-JOS.

Furthermore, if it had been decided to implement the Projected SEI-JOS, the latter would only have been used within the duration of the Contract and would have been replaced by a new system following open Call for tender No 6019, lot 2, as is required by the public procurement rules. Company Y's expectation that it would be awarded the contract for the development of the PLAN JOS without a Call for tender cannot be considered legitimate. No official of OPOCE has the authority to ask company Y "to consider abandoning [company Y's] financial claims in case [company Y] would be awarded the new OJS contract" and no one ever did so, either explicitly or implicitly. Company Y's expectation that it would be awarded a contract automatically and without any transparent procedure because it had been awarded a contract in the previous Call for tender does not have any legal effect or factual basis.

1.3 In his observations, the complainant argued that OPOCE clearly assigned to company Y responsibility to developing a new SEI-JOS by endorsing the Projected SEI-JOS in early 2003. This was a clear assignment which took place after a series meetings. Furthermore, company Y's clear understanding, after various discussions with OPOCE, was that the maintenance of the SEI-JOS system would be based on the Projected SEI-JOS system. That is the main reason why company Y accepted, by letter of 23 November 2004, to extend the Contract for another 20 months under the same terms and conditions. This was agreed orally with OPOCE. As OPOCE knows, this is precisely why company Y agreed not to re-negotiate the terms although OPOCE offered it the possibility to do so.

When OPOCE asked company Y to extend the duration of the Contract on 19 November 2004, OPOCE did not inform company Y that it had decided to reject the Projected platform. Moreover, OPOCE did not mention anything to company Y about having adopted Documentum as the future technological basis for a new SEI-JOS. OPOCE had, however, already made this decision when it asked company Y to extend its maintenance contract. Its decision in this regard must have been made on 6 December 2004, the date of signature of another contract, the PLAN-PUBLI contract. The complainant considers that the decision to use Documentum for a new SEI-JOS must have been made as soon as OPOCE decided to award the PLAN-PUBLI contract to the tenderer that had proposed the Documentum technology. OPOCE did not inform company Y that it rejected company Y's new platform and did not reveal its intention to adopt a new technological platform, simply because it knew that company Y had developed the Projected SEI-JOS system on the basis of what had been jointly agreed in 2003. This was particularly unfair for a public administration. Instead of informing company Y about the change of technological preferences, OPOCE let company Y develop the Projected SEI-JOS and make contractual commitments. Then OPOCE refused to consider the Projected SEI-JOS and, to company Y's surprise, arbitrarily imposed Documentum in the Call for tender 3019, lot 2, published on 4 March 2005.

OPOCE asked company Y to develop the Projected SEI-JOS system and to demonstrate it to OPOCE as soon as it was ready and met the latter's needs. OPOCE was to pay for the Projected SEI-JOS system only after its final presentation and acceptance. Company Y agreed to undertake the investment for developing the Projected SEI-JOS system. Company Y had a clear agreement with OPOCE that it would check the new system to make sure that it addressed its needs, and pay for the system when it entered into production. OPOCE made clear to company Y that it did not want to invest in new trials or in new products covering its needs partially. OPOCE informed company Y that since company Y knew OPOCE's needs, which initially had not been communicated to company Y in a proper way, company Y could propose an alternative solution, namely, a new system based on new technologies that would replace the first version of SEI-JOS. Company Y accepted to undertake this development work without a Bon de Commande subject to the clear assurance that OPOCE would compensate company Y immediately after the successful completion of the system. OPOCE wanted to make sure that the product was complete before ordering it. A Bon de Commande was therefore not needed. OPOCE wanted to buy a final product and company Y took the risk to provide it. OPOCE could refuse to pay for the product only if it was not satisfactory. COmpany Y trusted OPOCE and delivered the new product successfully. OPOCE violated the agreement by refusing to pay for the new system. As far as company Y's letter of 4 November 2002 is concerned, it did not refer to any delivery for free as misleadingly argued by OPOCE.

Company Y and OPOCE corresponded extensively in order to design the new system in accordance with OPOCE's needs. The letters referred to by OPOCE in this regard are merely illustrative of this correspondence. The relevant documentation was provided with the original complaint. OPOCE admits to having ordered the work and that it rejected the system not because it was not ordered but because it considered it to be incomplete.

OPOCE led company Y to believe that the Projected SEI-JOS system would be adopted. Under this clear assumption, company Y accepted to extend the maintenance contract for the old SEI-JOS system for a very low fee. During the meeting held on 15 June 2005, OPOCE led company Y to believe that it would win the new Call for tender. This was done in order to convince company Y not to insist on being paid for its work and to make it complete the last critical changes of the SEI-JOS, again for a very low fee. Company Y's representative reminded OPOCE that company Y had suffered substantial loss from the development of the Projected SEI-JOS system and from the extension of the maintenance contract for a very low fee.

OPOCE told company Y that it was waiting for the Projected SEI-JOS system produced by company Y in order to take a final decision on whether to proceed to issue a Call for tender. Notwithstanding two prior information notices, company Y was indeed not expecting that Call for tender to be published. In other similar cases, EUR-LEX being the most recent one, OPOCE issued a prior information notice for a Call for tender, but subsequently cancelled the procedure and invited a company to produce a new version of the EUR-LEX system. Much later, it launched a new Call for tender to select a new contractor to take over the new, already developed system. Company Y reasonably expected OPOCE to follow the same procedure in the case of the SEI-JOS.

It was only after having read the specifications for the PLAN-JOS Call for tender (2005/S 45-042757) that company Y realised that it had been deceived by OPOCE. Company Y was surprised to read that OPOCE had chosen Documentum as a new technological platform. As already indicated, OPOCE never made its change in technological direction known to company Y. Company Y was thus forced to propose a solution based on Documentum, instead of offering the Projected SEI-JOS system, which had already been demonstrated and delivered to OPOCE.

OPOCE deliberately delayed the completion of the evaluation process in this tender procedure. By letting company Y believe that it would be awarded the new contract, OPOCE made company Y agree to complete the last extended change. This change, directed by the new European public procurement directives, was of paramount importance to OPOCE which wanted to make sure that company Y would accept to deliver it for a very low fee.

Contractual obligations related to the development of the Projected SEI-JOS

1.4 The Ombudsman notes that the issues covered by the present complaint in part relate to alleged contractual undertakings in relation to the Projected SEI-JOS. The Ombudsman would like to recall in this regard that according to Article 195 of the EC Treaty, he is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle binding upon it. Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. In particular, the Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

The Ombudsman therefore takes the view that as regards the contractual aspects of a dispute, he is justified in limiting his inquiry to examining whether the Community institution or body has provided him with a coherent and reasonable account of the legal basis for its actions and why it believes that its view of the contractual position is justified. If that is the case, the Ombudsman will conclude that, as regards the contractual aspects of a dispute, his inquiry has not revealed an instance of maladministration. This conclusion as regards the contractual aspects of a dispute will not affect the right of the parties to have their contractual dispute examined and authoritatively settled by a court of competent jurisdiction.

1.5 The complainant argues that OPOCE requested company Y to develop the Projected SEI-JOS and clearly stated that company Y would be paid upon delivery. OPOCE, on the other hand, argues, in summary, that it neither suggested nor proposed to company Y to develop the Projected SEI-JOS. It maintains that, at most, it was willing to "consider" company Y's proposal to develop such a system for free.

Since the parties' accounts of the facts are contradictory, the Ombudsman has examined the evidence submitted by the parties during the course of the inquiry in order to determine which account appears to be more accurate.

The complainant maintains that OPOCE admits to having ordered the Projected SEI-JOS. In support of its position, the complainant relies on OPOCE's observation, made during the demonstration of the Projected SEI-JOS system, that certain required functions were incomplete. Company Y wishes to infer from this statement that OPOCE "ordered" it to produce a version of the Projected SEI-JOS system in which the required functions were complete. However, the Ombudsman does not find OPOCE's statement to constitute evidence that it ordered the work. Rather, OPOCE's statement only seems to reflect OPOCE's view that the demonstration brought to light certain inadequacies of the Projected SEI-JOS.

As regards any possible economic commitments by OPOCE in relation to the development of the Projected SEI-JOS, the Ombudsman has only found one relevant document, which is the minutes prepared by company Y following the monthly meeting on SEI-JOS on 30 June 2003. According to these minutes: "[o]n several occasions [Mr Z.] offered to redevelop the system for free. (...) [Company Y] reiterated the offer to re-develop the system on the basis of the proposal made last year." This statement would seem to support OPOCE's position that it made no contractual commitment to pay for the Projected SEI-JOS.

In view of the above, the Ombudsman has found no evidence to suggest that OPOCE had made a contractual commitment to company Y, requesting or obliging the latter to develop the Projected SEI-JOS.

1.6 As regards the complainant's argument that OPOCE obliged company Y to maintain the current SEI-JOS system for a very low fee, the Ombudsman again notes that the parties' respective views on what are the facts of the case are contradictory. The complainant's main argument in this regard is that, on 23 November 2004, company Y agreed to extend the Contract for 20 months under the same terms and conditions on the basis of the "clear assumption" that the Projected SEI-JOS system would be adopted and that the maintenance would be based on the Projected SEI-JOS system, which was ready for testing after the demonstration made in mid November 2004. According to the complainant, this was agreed orally with OPOCE. OPOCE argues that company Y had the possibility to terminate the Contract or to propose different financial conditions for its prolongation, but that it did not make use of these possibilities. OPOCE also reiterates its argument that it neither suggested, nor proposed, to company Y to develop the Projected SEI-JOS. Nor was it interested in following up the development of the Projected SEI-JOS system after what it considered to be an unsuccessful demonstration by company Y on 15 November 2004.

1.7 Having carefully examined the documents submitted by the parties during the course of the inquiry, the Ombudsman notes that company Y explicitly agreed, by letter of 23 November 2004, to extend the Contract under the current financial terms and conditions. The complainant appears to argue that company Y only agreed to keep the same fees on the basis of the "clear assumption" that the Projected SEI-JOS would be adopted and that the maintenance would be based on the Projected SEI-JOS. However, as concluded in point 1.5 above, the Ombudsman has found no evidence to suggest that OPOCE had made a contractual commitment to company Y, requesting or obliging the latter to develop the Projected SEI-JOS. Nor has the Ombudsman found evidence to support the complainant's assertion that there was an oral agreement with OPOCE that the maintenance would be based on the Projected SEI-JOS. The fact that company Y 'assumed' that the Projected SEI-JOS would be adopted does not create any contractual obligation on the part of OPOCE.

In view of the above, the Ombudsman has found no evidence to suggest that OPOCE had made a contractual commitment to company Y implying that the maintenance would be based on the Projected SEI-JOS. The Ombudsman does not, therefore, find any anomalies as regards the maintenance fee that was agreed upon.

Legitimate expectations related to the provision and maintenance of the Projected SEI-JOS

1.8 The complainant argues that OPOCE gave rise to company Y's legitimate expectation that it would provide and maintain the Projected SEI-JOS system. The Ombudsman will therefore have to consider whether OPOCE acted in a way that could have given rise to such legitimate expectations.

1.9 The Ombudsman notes in this regard that the documents with which he has been provided during the course of the inquiry appear to convey a certain reluctance by OPOCE as regards the Projected SEI-JOS. In reply to company Y's proposal for the Projected SEI-JOS, OPOCE wrote, in a letter of 22 November 2002, that "[t]he new proposal contains some interesting ideas (...). Unfortunately, the proposal does not contain all the necessary elements we would have hoped for to enable a well-considered decision on the way forward. Would you therefore complete the proposal with the following information (...)". In a report from a mission carried out by OPOCE at company Y's premises on 20-21 January 2003, OPOCE stated that "Office - insiste que la première priorité actuellement est 'flag-up - FU', les propositions de nouvelles orientations pour le projet SEI/OJS ne pourront pas être acceptées par l'Office avant la finalisation des développements en cours." By e-mail of 25 February 2003, an OPOCE official wrote to company Y that "[c]omme je vous l'ai dit (...) le futur développement de SEI/OJS n'est pas la plus haute priorité et pourrait même ne plus du tout être à l'ordre du jour si la date du premier mai est dépassée." Furthermore, in an internal e-mail of 15 June 2005, an OPOCE official informed two colleagues about his meeting with company Y, stating that during the meeting he had infomed company Y, in relation to its proposal to provide the Projected SEI-JOS, that "la position de l'Office était clair: démonstration non convaincante en [n]ovembre; Nous devions avoir une réponse fin-dec de [company Y] pour confirmer la capacité de leur nouveau développement d'être mis en production en jan-2005 de manière transparente pour nos users (ESC, OJS e-sender ...). Point non confirmé par [company Y]."

1.10 Furthermore, as regards Call for tender No 6019, Lot 2, the Ombudsman considers that the nature of a tender procedure is such that no tenderer can have a legitimate expectation to be awarded a contract. As regards the complainant's argument that OPOCE led company Y to believe, during the meeting on 15 June 2005, that it would win the Call for tender, the Ombudsman notes that the complainant states that an OPOCE official said that company Y "had a chance" to win the Call. Furthermore, the Ombudsman does not consider the fact that OPOCE had previously cancelled Calls for tender and applied the negotiated procedure to be sufficient to give rise to a legitimate expectation that this would be the case in Call for tender No 6019.

1.11 In view of the above, the Ombudsman does not find any evidence to suggest that OPOCE acted in a way that gave rise to a legitimate expectation on the part of company Y that it would be the provider and maintainer of the new SEI-JOS system.

1.12 The Ombudsman considers, however, that not only OPOCE's actions, but also its possible inaction, have to be considered in this regard. The Ombudsman considers that principles of good administration require that, apart from compliance with its contractual obligations, a Community institution should clarify its position to a third party in the event it is made specifically aware that the third party will, on the basis of a misunderstanding on its part as regards the position of the institution, make unnecessary investments.

1.13 The Ombudsman will therefore have to examine whether OPOCE was specifically aware that company Y intended to make significant investments to develop the Projected SEI-JOS based on company Y's understanding that OPOCE (i) had requested company Y to develop the Projected SEI-JOS, and (ii) would eventually remunerate company Y for the Projected SEI-JOS.

1.14 Having carefully examined the documents made available by the parties during the course of the inquiry, the Ombudsman finds that, until it received company Y's letter of 6 June 2005, there is no evidence to suggest that OPOCE could have understood that company Y was under the impression that OPOCE had i) requested company Y to develop the Projected SEI-JOS and ii) indicated to company Y that it would pay for the develop the Projected SEI-JOS.

In its letter of 6 June 2005, company Y argued that OPOCE and company Y had "decided jointly to replace the system" and that its "agreement with [OPOCE] was that [OPOCE] would replace the current application with the new one and upon delivery our company would be compensated". In its letter, company Y also stated that it wanted to discuss with OPOCE how it would be compensated for its work on the Projected SEI-JOS. The Ombudsman has not been provided with any evidence that company Y had made its understanding known to OPOCE prior to this date. It is, however, clear from company Y's letter of 6 June 2005 that the investments in relation to the Projected SEI-JOS had already been made by 6 June 2005. Accordingly, even if it might be useful for OPOCE to clarify its position regarding the Projected SEI-JOS following company Y's letter of 6 June 2005, it has not been demonstrated that a failure to do so would have had a financial impact on company Y(3).

1.15 In view of the above, the Ombudsman does not find any evidence to suggest that OPOCE failed to fulfil its duty to clarify its position in the sense described in point 1.12 above.

1.16 On the basis of the above, the Ombudsman considers that OPOCE has provided him with a coherent and reasonable account of its view on its alleged undertakings with company Y in relation to the development and maintenance of the SEI-JOS system. Furthermore, the Ombudsman has found no breach by OPOCE, through its actions or inaction, of the responsibility that is put on the Community institutions and bodies, beyond the strictly contractual, under the principles of good administration. The Ombudsman therefore finds no maladministration by OPOCE.

2 The complainant's claims

2.1 In his complaint, the complainant claimed that OPOCE should admit that it had infringed the European Code of Good Administrative Behaviour and pay company Y the sum of EUR 550 000 in compensation.

2.2 In view of the Ombudsman's finding of no maladministration in part 1 of the present decision, the complainant's claims must fail.

3 Conclusion

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

The Director-General of OPOCE will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) TED stands for Tenders Electronic Daily, which is a supplement to the Official Journal and is available online (http://www.ted.europa.eu).

(2) The first time company Y realised it was deceived by OPOCE was when it was never paid for the Projected SEI-JOS system it delivered to OPOCE, as requested; the second time was when company Y accepted to extend the maintenance contract for the old system for a very low fee, anticipating that OPOCE would accept the Projected SEI-JOS system.

(3) The Ombudsman notes in this regard that the content of company Y's letter of 6 June 2005 appears to have been discussed during the meeting held between OPOCE and company Y on 15 June 2005, although the parties appear to have diverging views as to certain details of what was discussed and decided during that meeting. The Ombudsman also notes that OPOCE's conclusions from the meeting were documented in an internal e-mail (see point 1.9 above).