The background to the complaint

1. The complainant is an employee of the European Parliament.

2. In 2007, the European Parliament acquired a new telephone system. In 2010, Parliament instructed its services to carry out a technical analysis leading to a high level design of its Unified Communication programme. The report which followed this technical analysis recommended that Parliament acquire telephone devices which would work on the basis of the 2007 telephone system.

3. In 2011, Parliament was provided with telephones of a non-EU provider for a pilot evaluation phase aimed at selecting the telephone that would best suit Parliament's needs. Subsequently, Parliament ordered more than 5,500 such devices from the non-EU provider.

4. The complainant contested, orally and in writing, Parliament's decision to order the telephones mentioned above. She first raised the issue with her hierarchy by e-mail of 21 November 2011, in which she stated that a procedure aimed at identifying selection criteria for future telephone acquisitions could not validly turn into an acquisition procedure without a previous competitive stage involving other manufacturers. The complainant subsequently raised the same concerns, in addition to technical ones. She did so orally at a group meeting on 24 November 2011 and, on 6 December 2011, in writing, with her Head of Unit. On 8 December, the Head of Unit asked the complainant to complete her explanations of the facts she wished to complain of; she did so on 19 December 2011.

5. In the meantime, on 2 December 2011, the complainant shared her concerns with the European Parliament's internal auditor. She requested a meeting with the latter, which took place on 6 December 2011.

6. On 25 January 2012, the complainant wrote to the Director of the European Parliament's Directorate for Information Technologies, summarising her concerns. She considered that Parliament could not be anything but exemplary as regards competition rules.

7. The Director replied on the same day, stating that the internal audit service was dealing with the matter and that any other initiatives should wait until the auditors reached their conclusions.

8. On 15 March 2012, the complainant became aware that the European Parliament would place an order of purchase for 5,666 phones with the non-EU provider.

9. On 30 May 2012, the complainant lodged the present complaint with the European Ombudsman[1].

The subject matter of the inquiry

10. The Ombudsman carried out an inquiry into the following allegation and claim.

Allegation:

The European Parliament arbitrarily chose to purchase the telephone devices of a particular manufacturer for its Members and their assistants.

Claim (as modified):

The European Parliament should duly explain its course of action. If it cannot do so, it should ensure that existing rules are respected in the future by verifying, prior to ordering materials or devices outside the EU, whether equivalent products exist on the EU market.

The inquiry

11. On 4 July 2012, the Ombudsman invited the President of the European Parliament to submit an opinion on the complaint by 30 September 2012.

12. On 18 September 2012, the complainant informed the Ombudsman's office that she wished to rephrase her claim. The scope of the inquiry was consequently modified by replacing the initial claim with the one mentioned in paragraph 10[2].

13. The Ombudsman informed the European Parliament accordingly and extended by two months the original deadline to submit its opinion. Moreover, pursuant to the complainant's request, the complaint, which was initially classified as confidential, became public.

14. The European Parliament provided its opinion on 18 December 2012. The opinion was sent to the complainant with an invitation to submit her observations on it. She did so on 24 February 2013. In March, June and July 2013, the complainant sent further correspondence to the Ombudsman's Office concerning her complaint.

The Ombudsman's analysis and conclusions

A. Alleged arbitrary choice of the telephone devices of a particular manufacturer and related claim

Arguments presented to the Ombudsman

15. In her complaint, the complainant argued, in substance, that prior to placing the contested order, the European Parliament did not organise any competitive tender procedure involving several telephone manufacturers. Moreover, she stated that the chosen devices were inappropriate for the purposes they were to serve. In the complainant's view, the European Parliament should at least have waited for the results of its internal audit before choosing any device. In addition to this, Parliament never responded to the complainant's repeated concerns in this regard, despite her having raised them with several members of her hierarchy.

16. In its opinion, the European Parliament explained that, because of the telecommunications equipment and services are complex and rapidly changing, it does not acquire them through separate calls for tenders. Instead, in line with the rules set out in the Financial Regulations[3], Parliament organises a tender procedure in order to sign a framework contract with an integrator for telecommunications equipment.

17. In their bids, the companies taking part in the tender procedure submit, for each kind of equipment and service, one or more manufacturers or service providers. On this basis, Parliament determines which bid offers the best value for money taking into account all the equipment and services needed. It signs a framework agreement with the winning tenderer, which becomes the integrator for telecommunications equipment and services (the 'telecom integrator'). The agreement lasts, in principle, four years. Within this framework, the European Parliament can then acquire telecommunications equipment and services through specific contracts, as the need arises. The specific manufacturer for each product is chosen from among the manufacturers in the telecom integrator's offer, based on an internal analysis by Parliament's services.

18. The European Parliament stated that such framework contracts are widely used by the EU institutions and have clear advantages. First, they allow Parliament to cover a wide range of products and services with a single procurement procedure. Second, it is for the telecom integrator, instead of Parliament's services, to ensure the correct integration and functioning of equipment from different manufacturers. Third, the integrator offers a range of facilities from different manufacturers, including both EU and non-EU companies, and those facilities automatically progress during the life of the framework agreement in line with the rapid evolution of the products. In fact, through the telecom integrator, the market is open to a relatively large number of manufacturers. Fourth, the framework agreement enables Parliament to buy, at any time, the type of equipment that best suits its needs, if necessary, after a comparative study commissioned by the telecom integrator or an independent study by a third party.

19. The contract notice for the current framework contract entitled "Supply of equipment for European Parliament's telecommunications infrastructure and systems, and associated services" was published on 9 April 2011 by Parliament for its own account, as well as for that of the European Ombudsman and that of the European Data Protection Supervisor. The framework contract was signed on 14 November 2011 with the relevant telecom integrator. A specific contract implementing the framework contract as regards the supply of ToIP[4] phones for Parliament was signed on 15 December 2011 for a maximum of EUR 1 003 362.02.

20. The said contract did not include any firm order for ToIP phones, but foresaw a three-stage procedure, under which the non-EU provider would initially deliver a number of ToIP phones (two different models) for a pilot test phase within the Parliament. The pilot test phase was first completed by qualified technicians, and afterwards by a small group of users covering a representative sample of Parliament's users, including the offices of thirteen Members of Parliament and targeted users of Parliament's IT services. This pilot phase ended in May 2012.

21. Subsequently, Parliament was entitled to decide whether or not to purchase the remaining ToIP phones and/or request a change in the number and type of remaining units. On the basis of the pilot phase results and after consideration by the relevant Steering Committee on 15 May 2012, Parliament decided to purchase only one of the two models tested.

22. The acquired models, like the ones acquired in 2006-2007 under the previous call for tender, originated from the same non-EU provider. However, Parliament explained that this choice was motivated by a number of factors. The first was an independent review of the previous and current telecom integrators, which was conducted in February 2011 by two independent entities and covered the entire telecommunication infrastructure of the Parliament in the framework of the Unified Communication scheme. The next was the current telecom integrator's specific study on alternatives to the non-EU manufacturer's phones, which was carried out in January 2012, taken together with a further study it delivered on 7 September 2012, which concerned the state of the art of ToIP in Parliament and confirmed Parliament's choice. Finally, the choice was also motivated by technical reasons related to the architecture of the existing Parliament telephones, with the aim of minimising the risk of inconsistencies with the existing telecommunications infrastructure when deploying new ToIP phones.

23. In addition to the above, the European Parliament also explained that, based on the complainant's concerns, its internal auditor reviewed the case thoroughly, with the full cooperation of Parliament's IT services. The audit focused on the entire program history of the modernisation of telephones, starting from 2005-2006. The audit report, a copy of which was provided to the complainant, concluded that the approach in the present procedure was correct from a legal point of view. However, the internal auditor also considered it desirable, for the future, that ToIP telephones which meet the Session Initiation Protocol standard (SIP) from other manufacturers also be included in the selection process. Parliament's IT services took the necessary steps to implement the internal auditor's recommendations.

24. In her observations, the complainant thanked the European Parliament for having explained the applicable framework agreement.

25. As regards Parliament's statement that the choice of ToIP phones was supported by a study conducted by the two independent entities, the complainant objected to the fact that neither of the two was or had been a telecom integrator of Parliament. She also doubted that the study was indeed representative. In any event, the complainant stated she could not understand how a study carried out in 2012 could justify an order dated 15 December 2011.

26. Finally, the complainant hoped that Parliament would: (i) in the future, ensure the priority of EU manufacturers in the specific contracts implementing the framework agreement, and (ii) in future projects to replace telephones, study alternative solutions, taking into account all the elements that have to be replaced[5].

The Ombudsman's assessment

27. The Ombudsman takes the view that, in its opinion, Parliament explained that the actual delivery of the test phone devices and its subsequent decision to order them was preceded by an appropriate procurement exercise and took place in the framework of a comprehensive agreement which respected the applicable rules.

28. Indeed, Article 88, paragraph 2 of the Financial Regulation specifically provides for the possibility for EU institutions to conclude framework agreements, defined as "contracts concluded between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged." Pursuant to Article 89, all public contracts financed, either in whole or in part, from the EU budget, such as the one under assessment in the present case, need to comply with the principles of transparency, proportionality, equal treatment and non-discrimination. Finally, Article 106 provides that "[p]articipation in tendering procedures shall be open on equal terms to all natural and legal persons coming within the scope of the Treaties and to all natural and legal persons in a third country which has with the European Communities a special agreement in the field of public procurement...".

29. From the information provided by the European Parliament, it emerges that the telecom integrator which Parliament selected following the 2011 tender is a Belgian legal person which clearly comes "within the scope of the Treaties", for the purposes of Article 106 of the Financial Regulation. The fact that some of the products or services included in its offer are manufactured or provided by non-EU undertakings does not alter the EU nature of the winning tenderer. Moreover, the subsequent procedure leading Parliament to order the relevant phone devices appears to be fully in line with the nature and scope of the framework agreement, in the sense of Article 89 of the Financial Regulations.

30. It thus appears that, from a legal point of view, Parliament's course of action has been justified. According to Parliament's statements, this was also the internal auditor's conclusion.

31. In addition to that, the Ombudsman notes that the actual decision to order the contested telephone devices was framed in a series of procedural steps and technical assessments which appear to lead logically to, and support, it.

32. First, Parliament carried out a pilot test phase involving its IT services and some of the intended users of the telephones. This test phase resulted in the choice of only one of the tested devices being recommended.

33. Second, an external review was carried out prior to the firm purchase order of the contested devices. In this regard, the Ombudsman highlights that, contrary to the complainant's objections in her observations, the two entities carrying out the review could not and should not be a current or former telecom integrator of the European Parliament, to the extent that the review was meant to be external and independent.

34. Moreover, the Ombudsman does not share the complainant's view that the review came too late because it took place after the framework contract was signed. What matters is that the external review was completed before the contested purchase order was placed, at the end of the pilot test phase; that is to say, in May 2012, after the external review.

35. Third, Parliament's choice was subsequently confirmed by the telecom integrator's study on the state of the art in the field and the possible alternatives to the devices ordered.

36. In light of the above, the Ombudsman thus takes the view that Parliament has adequately explained the legal and technical basis for its decision to purchase the contested telephone devices, thus duly addressing the complainant's allegation and claim. Subsequently, the Ombudsman can only conclude that no instance of maladministration has taken place in the present case.

37. The Ombudsman commends the complainant for her sincere concern that EU institutions grant fair treatment to EU products and producers in their public procurement procedures. In this regard, he notes that one of the recommendations made by Parliament's internal auditor might address this concern to some extent, by encouraging Parliament to include ToIP telephones from other manufacturers in its future selection processes. Moreover, Parliament expressed its willingness to follow that recommendation. The Ombudsman thus trusts that the complainant is satisfied with this outcome.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No instance of maladministration has taken place in the present case.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 September 2013

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[1] The complainant initially turned to the Ombudsman on 10 May 2012. However, on the basis of Article 2(4) of the European Ombudsman's Statute the Ombudsman declined to open an inquiry at that stage, since the complainant had not allowed the European Parliament sufficient time to react to her prior administrative approaches.

[2] The original claim was that Parliament should duly explain its course of action or, failing that, annul the request to buy the telephone devices concerned.

[3] Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as subsequently amended and applicable at the time of the facts.

[4] ToIP stands for "Telephony on Internet Protocol".

[5] The complainant adduced a number of other arguments concerning the 2006 order of telephones for Parliament's needs and the way in which the bids of potential telecom integrators could properly be assessed. Since the present case does not concern that period of time or the tender as such, those arguments are not relevant to the analysis and will not be mentioned.