Dear Mr W.,

On 9 February 2000, you lodged, on behalf of Particip GmbH, a complaint with the European Ombudsman against the European Commission in relation to a tender organised by the Commission for the supply of technical support services to the Commission (DG Environment) for the evaluation of actions financed under the LIFE environment programme (lot 990016 - Germany and Austria).

On 22 February 2000, I forwarded the complaint to the Commission for its comments.

The Commission sent its opinion on your complaint on 13 June 2000. I forwarded the Commission's opinion to you on 19 June 2000 with an invitation to make observations before 31 July 2000, if you so wished. No such observations were received from you.

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

THE COMPLAINT

According to the complainant, the facts underlying the complaint are as follows:

The complainant is a firm that provides consultancy services. Together with Prospect C&S (the complainant in the related case 278/2000/GG), it belongs to a number of consultancy firms that have submitted bids in reply to a call for tenders for the supply of technical support services to the Commission (DG Environment) for the evaluation of actions financed under the LIFE environment programme. In all, there were 8 geographical lots. The complainant applied, together with Prospect, for the lot covering Germany and Austria. Prospect also applied for two further lots individually and for two others (including Spain/Portugal) as a partner of other firms. According to both firms, all the bids specified the same methodology. The bids appear to have been submitted in May 1999.

According to the complainant, various letters asking for information or clarification were sent to the Commission by Prospect between September and November 1999 to which the Commission did not reply in writing.

On 1 December 1999, the complainant itself wrote to the Commission asking for information regarding the outcome of the tender procedure. In the absence of a reply, Prospect sent a letter to the Director-General of DG Environment on 15 December 1999 in which it asked why the evaluation of the tender took such a long time. At the same time, Prospect asked the Commission to answer a number of questions regarding this tender.

On 16 December 1999, the complainant rang the Commission and was told that only the lots Spain/Portugal, Scandinavia and Greece had been attributed whilst no decision had yet been taken regarding the five remaining lots. TAU Consultora, a third company that had made an offer regarding the Spain/Portugal lot, was informed over the telephone the same day that its offer had been considered as good but that the lot had been attributed to another firm that had quoted a better price.

On 21 December 1999, the complainant addressed a letter to the Director-General of DG Environment the contents of which were very similar to the ones of the letter that Prospect had sent to the same addressee on 15 December 1999.

On 6 January 2000, the Commission sent the complainant, by way of fax transmission, a letter in which it stated that it had not been possible to attribute the relevant lot on the basis of the original tender since the information provided had not been sufficient. The Commission further pointed out that it would now apply the relevant provisions of Directive 92/50/EEC of 18 June 1992 relating to the co-ordination of procedures for the award of public service contracts(1), in particular Article 11 (3) regarding the negotiated procedure. The complainant was invited to submit a new proposal by 31 January 2000. The Commission suggested that the complainant should have particular regard to award criteria 6a, 2 and 3 that according to the Commission had not been dealt with in the original offer.

Also on 6 January 2000, Prospect received a similar fax from the Commission which stated that the methodology of Prospect's offer had been insufficient. Prospect rang the Commission the same day in order to point out that it had used the same methodology that the Commission had accepted in TAU Consultora's case.

On 7 January 2000, the complainant and Prospect received faxes from the Commission in which the latter explained that an error had occurred in the letter that had been sent the day before and that the definitive version of the letter was enclosed. This new version explained that the original offer had been rejected since it had failed to comply with award criterion 3 (proposed project team). The new letter was not signed. It explained that further explanations could be obtained by writing to the acting head of unit (whose name and address were given) or by sending a fax to one of two numbers that were indicated in the letter.

On 11 and 12 January 2000, the complainant sent two letters (by fax, registered mail and via e-mail) to the acting head of unit at the Commission in which it asked for answers to a number of questions.

On 14 January 2000, a courier delivered a letter dated 12 January 2000 to the complainant. This letter was virtually identical to the one sent by fax on 7 January, apart from the fact that it bore the signature of another head of unit in DG Environment. A new model contract was enclosed.

The complainant submitted a new offer on 31 January 2000, not without complaining about the lack of reply to its questions.

The complainant claims that the Commission ought to have answered its questions. It also considers that the 10 working days of which it disposed in order to submit a new offer were disproportionately short, given that the Commission had taken more than seven months to examine the original offers.

In its complaint to the Ombudsman, the complainant makes the following allegations:

1. The Commission failed to reply in writing to several questions contained in letters addressed to it between 1 December 1999 and 12 January 2000.
2. It was questionable whether in the present case the Commission could rely on the procedure provided for in Article 11 (3) of Directive 92/50/EEC.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Background

The Commission had received 42 offers covering one or several of the 8 lots in May 1999. These were opened on 4 June 1999. The evaluation was then delayed due to administrative difficulties within the operating unit.

The evaluation was carried out by DG Environment on the basis of the terms of reference. DG Environment did not have a special written tender evaluation procedure of its own but followed the public procurement directives and the advice contained within the 'Vademecum of the ACPC' (Advisory Committee on Procurements and Contracts). The offers for each country or group of countries were evaluated separately by an ad-hoc group, which included the desk officer responsible for that particular country or group and two other officials including the deputy head of unit. The results of the evaluation were also reviewed in ad-hoc meetings under the chairmanship of the head of unit. For 3 lots, the evaluation led to the award of a contract that was approved in the ACPC in December 1999. For the other lots, no company fulfilled both the selection and award criteria.

After consultation with the secretariat of the ACPC, it was decided to move to a negotiated procedure according to Article 11 (3) a of Directive 92/50/EEC. According to this provision, "contracting authorities may award public service contracts by negotiated procedure without prior publication of a contract notice in the absence of tenders or appropriate tenders in response to an open or restricted procedure, provided that the original terms of the contract are not substantially altered". All the candidates who had sent an offer in reply to the open call were invited to the negotiated procedure stage, which also meant that a notice did not need to be published.

The results of the negotiated procedure were still being evaluated, so that it was not possible to comment on the final outcome.

Failure to reply to questions received

The letters received from the complainant and its partner firms during the period in question placed DG Environment in a sensitive position, as all contact between candidates and the awarding authority was discouraged during a call for tender since it gave an advantage to some candidates over others. At no point were the terms of reference altered during the call, and these had been explained at the original information meeting held before the closing date of the original call for tender.

The complainant's letters dated December 1999 were effectively answered by the faxed invitation to the negotiated procedure. The unanswered questions about the offers could not be answered during the procedure. It was true that the more general points of the letters could have been answered but these were a re-explanation of the terms of reference. In fact, a reply to the same questions was sent to the partner company, Prospect.

In its letter of 12 January 2000, the complainant restated its questions and also asked for more details as to why its and other offers had been unsuitable. The invitation to the negotiated procedure indicated the areas in which the complainant's offer had been judged inadequate. Further details, especially on the offers of other partner firms, would have been unfair to other candidates.

Although there had been no letters replying specifically to the points raised by the complainant, the Commission had received many telephone calls from the complainant, Particip and their partners, in which the current procedure had been explained and the reasons for not replying had been given.

The negotiated procedure

The awarding authority was allowed to move to a negotiated procedure after an unfruitful open call for tender, where no firm fulfilled the selection and award criteria. No publication was necessary to close the tender if all the candidate firms were invited to the negotiated procedure. This had been done in the present case. In addition, there was no set deadline for submission of bids to a negotiated procedure. A period of three weeks had been deemed to be fair.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Failure to reply to questions

1.1 The complainant, a consultancy firm, submitted an offer in response to an open call for tenders organised by the Commission. It claims that the Commission failed to reply to questions contained in letters addressed to it between 1 December 1999 and 12 January 2000.

1.2 The Commission claims that the complainant's questions put it in a sensitive position, as all contact between candidates and the awarding authority is discouraged during a call for tender since it gives an advantage to some candidates over others. Some questions about the offers could therefore not be answered during the procedure. The Commission furthermore takes the view that the questions asked in the complainant's letters of December 1999 were effectively answered by its letter of January 2000 in which it explained that no candidate had fulfilled all the selection and award criteria and that the Commission had therefore decided to proceed to a negotiated procedure to which the complainant was invited. It also points out that the more general points of the complainant's letters could have been answered but that these were a re-explanation of the terms of reference and that it did send a reply to the same questions to the complainant's partner company, Particip. Finally, the Commission claims that although there were no letters replying specifically to the points raised by the complainant, the Commission's services had received many telephone calls from the complainant, Particip and their partners, in which the current procedure had been explained and the reasons for not replying had been given.

1.3 It appears from the evidence submitted to the Ombudsman that some of the questions that the complainant had asked in its letters of December 1999 were effectively answered by the Commission's letter of January 2000 in which it explained that no candidate had fulfilled all the selection and award criteria and that the Commission had therefore decided to proceed to a negotiated procedure to which the complainant was invited. It also appears that further information was provided by the Commission to the complainant over the telephone. The Ombudsman also considers that the Commission's argument according to which answering certain questions asked by one candidate during a tender procedure might give this candidate an unfair advantage over others does not appear to be unreasonable. Furthermore, the Commission provided further information in its letters to the complainant's partner firm, Prospect.

1.4 In its opinion, the Commission provided a detailed account of what had happened and of the reasons why it had not answered some of the complainant's questions. This account would appear to contain the answers to some of the questions that had still remained unanswered. The Ombudsman further notes that in its opinion on the related complaint submitted by the complainant's partner firm, Prospect, and in its reply to a request for further information made by the Ombudsman in that case, the Commission provided detailed answers to all the questions that according to Prospect had not been answered by the Commission. It appears that the information thus provided also covers the questions that had been put to the Commission by the complainant. The Ombudsman thus considers that the Commission would now appear to have provided the information for which the complainant had asked.

1.5 On the basis of the above, there appears to have been no maladministration on the part of the Commission in so far as the first allegation is concerned.

2 The negotiated procedure

2.1 The complainant queries whether the Commission was entitled to use the negotiated procedure in the present case.

2.2 The Commission points out that the awarding authority is allowed to move to a negotiated procedure after an unfruitful open call for tender, where no firm fulfils the selection and award criteria. It argues that no publication was necessary since all the candidate firms were invited to the negotiated procedure and that a period of three weeks for the submission of bids was deemed to be fair.

2.3 The Ombudsman notes that Article 11 (3) a of Directive 92/50/EEC of 18 June 1992 relating to the co-ordination of procedures for the award of public service contracts(2) provides that "contracting authorities may award public service contracts by negotiated procedure without prior publication of a contract notice in the absence of tenders or appropriate tenders in response to an open or restricted procedure, provided that the original terms of the contract are not substantially altered". It thus appears that the Commission was entitled to use the negotiated procedure in the present case.

2.4 On the basis of the above, there appears to have been no maladministration on the part of the Commission in so far as the second allegation is concerned.

3 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration on the part of the Commission.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) OJ 1992 no. L 209, p. 1.

(2) OJ 1992 no. L 209, p. 1.