THE BACKGROUND TO THE COMPLAINT

1. On 17 January 2007, Parliament launched a call for tenders(1) concerning the organisation of an 'Open Air Event' in the context of (a) the Festival of Europe organised by the European Parliament in Brussels and (b) related communication activities (EP/DG Info/Unité Evénements/01/2007).

2. On 12 February 2007, the complainant sent its bid to Parliament. On 28 February 2007, Parliament informed the complainant that it had not been awarded the tender. In response of 14 March 2007 to the complainant's request, Parliament provided the complainant with additional information regarding the reasons why its bid had been rejected.

THE SUBJECT-MATTER OF THE INQUIRY

3. The complainant alleged that Parliament made a manifest error of assessment when it evaluated its bid in the framework of the aforementioned call for tenders.

THE INQUIRY

4. On 28 November 2007, acting on behalf of the complainant, a lawyer submitted a complaint (3042/2007/ELB) to the Ombudsman against the European Parliament, in relation to the above-mentioned call for tenders. The Ombudsman initially considered that there were insufficient grounds to open an inquiry into the said complaint and on 21 January 2008 informed the complainant accordingly.

5. Complaint 3042/2007/ELB was followed by further correspondence, dated 27 February 2008 and 14 April 2008 (which was registered under the new reference: 1235/2008/ELB), as well as a meeting between the complainant and the Ombudsman's services, which was granted on an exceptional basis, with the aim of clarifying the content of the complaint. In view of the further documents and the clarifications provided during the said meeting, the Ombudsman decided to open an inquiry into the complaint.

6. On 19 May 2008, the Ombudsman informed Parliament of the complaint and asked it to allow his services to inspect the file relating to the tender procedure.

7. The inspection took place on 25 June 2008. On 8 July 2008, the complainant was informed of this inspection and received a copy of the inspection report. On 14 July 2008, the complainant acknowledged receipt of the said report.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remark

8. In the present case and with a view to making rapid progress in his inquiry, the Ombudsman considered it appropriate to have his services carry out an inspection of Parliament's file, before he requested from it an opinion on the complaint. Given the outcome of his services' inspection, the Ombudsman took the view that it was not necessary to request an opinion from Parliament.

A. Allegation of manifest error of assessment when Parliament evaluated the complainant's bid

Arguments presented to the Ombudsman

9. The complainant considered that Parliament made a manifest error of assessment when awarding it less than 60 points in the comparative evaluation of bids.

10. First, it recalled that it was the creator of the 'Open Air Event' "concept", which Parliament has been organising for several years. It did not, therefore, understand why Parliament considered that its bid lacked a strong "concept" and a "leading theme". It recalled that the "concept" it developed was actually described in the call for tenders.

11. Second, as regards Parliament's view that its "methodology" was weak, the complainant recalled that it had had contacts with 26 embassies and numerous other stakeholders, thanks, especially, to its organisation of a similar event. Moreover, the complainant had shown in the past that it was able to rally the necessary partners. The complainant did not understand what other guarantees it could have provided.

12. As regards Parliament's view regarding the absence, in the complainant’s bid, of CVs for external staff, the complainant noted that, according to the Special Conditions contained in the Terms of Reference, there was no obligation to provide such documents for staff not belonging to the company. In addition, subcontracting was possible without providing supporting documents. The complainant therefore argued that, if such a rule were applied, all tenderers would be obliged to submit the CVs of all of their subcontractors, which would be manifestly disproportionate and contrary to the provisions of the contractual documents and to the principle of legal certainty.

13. As regards Parliament's criticism that the complainant's bid was only valid until 1 March 2007, the complainant drew attention to the limited time-period between the launch of the call for tenders and the date of the event. In this context, it considered that a reply from Parliament was needed by 1 March 2007, in order to allow it to carry out the preparations for the event.

14. The complainant also argued that Parliament was not entitled to invoke, in its letter of 14 March 2007, reasons for rejecting the bid that had not already been mentioned in Parliament's letter dated 28 February 2007. It went on to recall that the letter of 28 February 2007 stated that its bid had been rejected because it was not the best and did not invoke failure to comply with a formal requirement as a reason for the bid’s rejection. These additional arguments were included in Parliament's letter of 14 March 2007. The complainant argued that the additional reasons given by Parliament in the said letter of 14 March 2007 were not supported by documents to which the complainant had access, or by an assessment free from any "manifest error".

15. The complainant argued that the price of the selected bid was a lot higher than its own price and considered that this higher price was not justified in view of the actual organisation of the event on 5 May 2007.

The Ombudsman's assessment

16. It is for the administration organising a call for tenders to assess whether the applicants fulfil the conditions laid down in a call for tenders and to carry out the comparative assessment of bids. The Ombudsman must not substitute the administration's assessment with his own assessment(2). The Ombudsman's review, in such cases, is limited to assessing whether there were procedural errors or manifest errors of appreciation by the administration.

17. The Ombudsman's services inspected the Report of the Evaluation Committee, in order to evaluate whether the complainant’s arguments were well-founded. In this context, the Ombudsman's services carefully examined the comments made as regards the other bids submitted, as well as the comments made as regards the selected bid.

The evaluation of the complainant's "concept" and methodology

18. According to the information provided by Parliament to the complainant in its letters of 28 February 2007 and 14 March 2007, the Evaluation Committee did not identify a strong "concept" or a main theme linking the various activities in the complainant's bid. Parliament stated that (a) the bid was based primarily on past experience; (b) there was no explanation as regards the overall "concept"; (c) most of the proposals made by the complainant's company for the event were based on fringe themes; (d) the proposed methodology was weak, insofar as it was based only on personal contacts; and (e) the role and specific tasks of the four members of the team were not explained.

19. The Ombudsman's services carefully inspected the Report of the Evaluation Committee in order to evaluate whether Parliament's explanation was sufficient and coherent. In this context, the Ombudsman's services carefully examined the comments made in the Report concerning the other bids submitted, as well as the comments made as regards the selected bid.

20. The Ombudsman notes that the Special Conditions set out a list of award criteria, which included:

- "the understanding of the contract objectives and the tasks to be performed;

- the quality and relevance of the proposed methodology;

- the efficiency, quality and usefulness of the proposed products and solutions (...)"

In this context, the Ombudsman considers that Parliament was entitled to evaluate bids on the basis of how they set out, in a clear manner, the objectives of the contract and the tasks to be performed. It was also valid for Parliament to evaluate the quality and relevance of the methodology to be used by each tenderer. Furthermore, it was appropriate for Parliament to evaluate the efficiency, quality and usefulness of the proposed products and solutions.

21. The assessment by the Evaluation Committee of the criteria described in point 20 above can be described as relating to the "concept" of the event. The Ombudsman thus understands that bidders were required to develop, in their bids, a coherent "concept" in relation to the celebration of the 'Open Air Event'. The Report of the Evaluation Committee, which the Ombudsman's services inspected, confirms that a comparative assessment between all bids was carried out with respect to the objectives of the contract and the tasks to be performed. As noted by Parliament in its letter to the complainant, the latter’s bid was based primarily on past experience and contained no explanation as regards the overall "concept" for the future event. The Ombudsman notes that Parliament has a broad margin of discretion in determining what constitutes an appropriate "concept". Parliament considered that the "concept" set out in the complainant's bid was less developed than the "concept" in the winning bid. Having reviewed the Evaluation Committee’s assessment, the Ombudsman finds that there is no evidence of a manifest error of assessment by Parliament. Furthermore, Parliament's explanation to the complainant was sufficient and coherent.

22. The Evaluation Committee’s Report confirms that a comparative assessment between all bids was also carried out with respect to the quality and relevance of the proposed methodology. Having reviewed the Evaluation Committee’s assessment, the Ombudsman notes that (i) the proposed methodology in the complainant's bid was based on personal contacts, and (ii) the role and specific tasks of the four members of the team were not explained. He also notes that Parliament has a broad margin of discretion as regards how to evaluate methodology. Parliament considered that the methodology of the complainant's bid was less effective than that of the winning bid. After reviewing the Evaluation Committee’s evaluation, the Ombudsman also finds that there is no evidence of a manifest error of assessment by Parliament. Moreover, the Ombudsman considers that Parliament's explanation to the complainant was sufficient and coherent.

23. The Evaluation Committee’s Report confirms that a comparative assessment between all bids was also carried out with respect to the efficiency, quality and usefulness of the proposed products and solutions. Having reviewed the Evaluation Committee’s assessment, the Ombudsman notes that the complainant's bid set out a number of themes and that Parliament has a broad margin of discretion as regards what constitutes relevant themes. In the complainant's case, Parliament considered that the latter’s bid was based on "fringe themes". In light of the above, and following his analysis of the Evaluation Committee's evaluation, the Ombudsman finds that there was no evidence of a manifest error of assessment by Parliament. He also considers that Parliament's explanation to the complainant was sufficient and coherent.

The technical and professional capacities of subcontractors

24. One of the selection criteria, identified in the Special Conditions (paragraph 15.2 A), was the technical and professional capacity of the tenderers. This criterion was assessed on the basis of the "experience as evidenced by the qualifications, both educational and professional, of the service provider or the contractor, and those of the firm's managers and, in particular, those of the persons responsible for providing the services. The curriculum vitae must be enclosed to the bid." (emphasis added)

25. The Report of the Evaluation Committee, which the Ombudsman's services inspected, confirms that a comparative assessment between all bids was carried out in relation to the above outlined criterion. Having reviewed the Evaluation Committee’s assessment, the Ombudsman notes that the complainant's bid did not contain the CVs of all the persons responsible for providing the services. After reviewing the Evaluation Committee’s evaluation, the Ombudsman finds that there was no evidence of a manifest error of assessment by Parliament. The Ombudsman also considers that Parliament's explanation to the complainant was sufficient and coherent.

The validity of the bid

26. The complainant specified that its bid was only valid until 1 March 2007. The Ombudsman notes that the Special Conditions indicated that the tenderers should guarantee their bid until 12 August 2007.

27. Therefore, the Ombudsman takes the view that the Committee was right not to select a bid which was not guaranteed until the signature of the contract. He therefore finds no manifest error of assessment as regards this aspect of the complaint.

The use of additional reasons to reject the bid

28. In its letter of 14 March 2007, Parliament added that the complainant failed to provide certificates of its previous projects (paragraph 15.2.A.2 of the Special Conditions) and that it had not provided a complete budget bid, that is, Annex B to the bid (paragraph 8 of the Special Conditions).

29. The Ombudsman notes that the obligation to provide a list of its previous projects and the corresponding certificates form part of the selection criteria. In addition, the obligation to provide a complete budget bid was specified in the invitation to tender. Furthermore, in reply to a question raised by one tenderer; it was specified that failure to meet either of these criteria would lead to the exclusion of a tenderer from the tender procedure.

30. From the Ombudsman's inspection, it emerged that these two reasons were in fact mentioned in the Evaluation Report. However, despite these shortcomings, the Evaluation Committee, decided to examine the complainant's bid and award it points.

31. In this regard, the Ombudsman considers that, if the Evaluation Committee did not, in fact, take account of these additional reasons for excluding the complainant from the tender process, Parliament should not have informed the complainant that these reasons were also relevant with respect to its lack of success in the tender process. In this context, the Ombudsman will make a further remark below.

The price offered by the selected tenderer

32. The Ombudsman recalls that, according to the Special Conditions, the market was awarded to the bid which presented the best quality-price ratio and whose score was above the minimum required (70 points).

33. The complainant argued that its bid was cheaper than the selected bid.

34. The Ombudsman recalls that, according to Article 138 of the Implementing Provisions of the Financial Regulation, "[t]he tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability completion or delivery times, after-sales service and technical assistance."(3). Furthermore, according to the case-law of the Community Courts, "the criteria adopted by the contracting authority in order to identify the tender which offers the best value for money need not necessarily be quantitative or related solely to prices. Even if award criteria which are not expressed in quantitative terms are included in the tender specifications, they may be applied objectively and uniformly in order to compare the tenders and are clearly relevant for identifying the most economically advantageous tender"(4). Thus, even if the complainant's bid was cheaper, price was not the only criterion which had to be taken into account in order to select the successful bid.

35. For each of the other criteria of a qualitative nature, the Evaluation Committee also awarded points, the minimum number required being 70. The Ombudsman recalls that the complainant's bid did not obtain the minimum number of required points.

36. The Ombudsman's services carefully examined the comparison, carried out by the Evaluation Committee, of the prices submitted by the tenderers. As a result of these findings, the Ombudsman concludes that there was no manifest error of assessment as regards this aspect of the complaint.

37. Finally, as regards the complainant's comment concerning the alleged shortcomings of the event organised by the winning bidder, the Ombudsman would like to clarify that Parliament could only evaluate the bids as presented to it in the tender procedure; it could not, at the time the bids were presented, evaluate the eventual execution of the event. If Parliament were to take the view that the winning bidder did not provide the services set out in the winning bid, Parliament has the option of exercising its contractual rights vis-à-vis the winning bidder.

38. To ensure the completeness of his inquiry, the Ombudsman considered it necessary to verify the composition of the Evaluation Committee. He recalls that, according to Article 146 of the Implementing Provisions of the Financial Regulation(5), "[a]ll requests to participate and tenders declared as satisfying the requirements shall be evaluated and ranked by an evaluation committee set up for each of the two stages on the basis of the pre-announced exclusion and selection criteria and the award criteria respectively. That committee shall be appointed by the authorising officer responsible to give an advisory opinion on contracts (...) The evaluation committee shall be made up of at least three persons representing at least two organisational entities of the institution concerned with no hierarchical link between them, at least one of which does not come under the authorising officer responsible." After inspecting Parliament's file, the Ombudsman takes the view that Parliament complied with the applicable rules.

B. Conclusions

On the basis of his inquiries into this complaint, the Ombudsman concludes that there has been no maladministration by Parliament. However, he makes the following further remark:

The additional reasons, put forward by Parliament in its letter to the complainant of 14 March 2007, were not taken into consideration by the Evaluation Committee. These reasons should not, therefore, have been put forward by Parliament as additional reasons for rejecting the complainant's bid.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 19 November 2008

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(1) OJ 2007/S 11-011658.

(2) See decision on complaint 1043/2000/GG.

(3) Commission Regulation 2342/2002 (EC, Euratom) of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002 L 357, p.1.

(4) Case T-59/05 Evropaïki Dynamiki v Commission, judgment of 10 September 2008, not yet reported, paragraph 59.

(5) See footnote 3.