The background to the complaint

1. This complaint is against a Delegation of the European External Action Service (EEAS) and concerns the evaluation of the complainant's tender proposal further to a call for "Security advice and management services framework contract for the Delegation of the European Union to Pakistan".

2. On 26 December 2014, the Delegation informed the complainant that its tender was not successful as it was not the most economically advantageous. The Delegation's information letter also provided the grounds for the decision in a table that contained (i) the scores awarded; (ii) the evaluators' comments; and (iii) whether the threshold was achieved under each evaluation criteria.

3. On 5 January 2015, the complainant wrote a letter to the Delegation to raise the concern that its tender "was unduly treated and harshly scored", and that the "evaluators did not read the Technical proposal in sufficient detail that might have otherwise resulted in a higher score". The complainant therefore requested a re-evaluation of its tender and further information about the successful tenderer.

4. On 19 January 2015, the Delegation replied to the complainant and informed it about the winning tenderer. It also provided the complainant with a table in which the winning tender and that of the complainant are compared as regards each evaluation criterion. It also provided explicit replies to the complainant's specific points raised in its letter of 5 January 2015.

5. On 21 January 2015, the complainant complained to the Ombudsman. The complainant alleged that the Delegation failed to carry out a proper analysis of its tender, and claimed that the Delegation should properly evaluate its tender and halt the award of the contract until then.

The Ombudsman's assessment and conclusions

The Inquiry

6. The Ombudsman found that all the admissibility conditions were met as regards the complainant's allegation and claims and that the complaint was therefore admissible. The Ombudsman thus opened an inquiry into the complainant's allegation and claim, by carrying out an analysis of the information submitted to her by the complainant, including the replies given by the Delegation in reply to the complainant's request for re-evaluation. On the basis of this analysis, it appeared at first sight that the reasons given by the Delegation were relevant and appropriate.

7. Therefore, by letter of 19 February 2015, the Ombudsman asked the complainant to clarify why it alleged that the Delegation failed to carry out a proper analysis of its tender. By e-mail of 9 March 2015, the complainant submitted its clarifications.

8. For the reasons explained in paragraphs 21-31 below, the Ombudsman did not consider it necessary to ask the EEAS for an opinion on the complaint.

A. The allegation that the Delegation failed to carry out a proper analysis of the complainant's tender

Elements considered by the Ombudsman

9. In its complaint to the Ombudsman, the complainant argued that the Delegation failed to carry out a proper analysis of its tender because the evaluators did not properly read its tender proposal and therefore wrongly evaluated this proposal.

10. First, the evaluators wrongly considered that the proposal lacked a detailed description of what would be done practically in the event of an incident. The complainant argued that standard operational procedures cannot be explicit in terms of exactly what action should be taken in all situations. This is why such procedures provide a framework on the basis of which leaders and managers take decisions in different situations.

11. Second, the evaluators wrongly considered that the proposal contained no information on the timing for intervention, given that the proposal clearly contained the relevant information.

12. Third, the evaluators wrongly considered that the optimum rotation system would be an 8 weeks work / 4 weeks leave, instead of the 9 weeks work / 3 weeks leave rotation system proposed by the complainant. The complainant considered that if the 8 weeks work / 4 weeks leave rotation system had been the preferred system, this should have been indicated in the call documentation.

13. In its reply to the complainant's request for re-evaluation, the Delegation stated the following.

14. As regards the first point, it explained that the evaluators had considered that a plan for dealing with a crisis or a serious incident situation should include a mix of general approach elements as well as concrete practical elements. The Delegation underlined that the evaluators had duly taken into account the relevant elements contained in the complainant's tender proposal.

15. As regards the second point, the Delegation explained that the evaluators considered that the 10-20 minutes response time referred to in the complainant's tender concerned "an initial response to an immediate incident or situation" and was duly taken into account. It stated, by way of clarification, that the comments of the evaluators concerned the lack of "intervention response timing in the case of crisis or serious incident situation extending over a number of days or a longer period, such as the timing for the organisation or provision of extra staff".

16. As regards the third point, the Delegation explained that it was left to each tenderer to set out its own proposals including the rotation system and no specific rotation system was pre-defined. The evaluators had found that a rotation with a better balance between work and leave periods would result in a better delivery of services.

17. Further to the Ombudsman's request for clarifications as regards why it considered that the Delegation failed to carry out a proper analysis of its tender, the complainant submitted the following clarifications.

18. As regards the alleged lack of information on what should be done in case of an incident, the complainant pointed out that its tender proposal indeed contains a detailed account of the procedures to follow in such cases. The evaluators therefore erred in this regard.

19. As regards the alleged lack of information on the timing of intervention, the complainant underlined that point 4.2.2 of its Technical proposal contained a very precise response time. The initial response time indicated therein applies to any incident, whether extremely serious or relatively trivial. In addition, the timing of intervention in response to a more serious crisis is further set out on pages 63-64 of the proposal.

20. As regards the rotation system, the complainant argued that the 9 weeks work / 3 weeks leave rotation system is the generally accepted system for international companies operating in hostile environments, such as Afghanistan and the Yemen. It therefore considered that the evaluators wrongly deducted 10 points from the score given under this criterion.

The Ombudsman's assessment

21. The Ombudsman notes that, according to the established case-law of the EU courts[1], selection boards (in the present case, the evaluation board) enjoy a wide margin of discretion and that their decisions are, as regards substance, only subject to review if they are affected by a manifest error of assessment.

22. In the present case, the complainant argued that the evaluation board made manifest errors in its evaluation of three specific points.

23. As regards the first point (lack of information on what should be done in a case of an incident), the evaluators considered that an action plan for a crisis incident or situation should include a mix of general approach elements as well as concrete practical elements. The complainant argued that pages 63-64 of its proposal indeed contained a detailed action plan.

24. The Ombudsman has carefully read the relevant pages of the complainant's tender proposal and found that the evaluators' comments that the proposal lacked a mix of general approach elements and of concrete practical elements is appropriate as it describes the reaction plans in a rather general way. It should be noted that the Ombudsman is not to substitute her own assessment for that of the evaluators, who possess the necessary technical skills and knowledge to appreciate fully the different elements put forward by the complainant under this point of its tender. In addition, the complainant simply stated in its clarifications that its proposal indeed contained such a mixed approach, without actually pointing to any specific elements of the proposal that could justify that statement.

25. In these circumstances, the Ombudsman finds that the complainant did not show that there was a manifest error of assessment as regards this aspect of the complaint.

26. As regards the second point (lack of information on the timing of intervention), the evaluators considered that the 10-20 minutes response time mentioned in the complainant's tender concerned an immediate incident, while it provided no intervention response timing in case of a crisis or a serious incident or situation. The complainant argued that point 4.2.2 of its Technical Proposal contained the precise response time to an immediate incident or situation, while pages 63-64 of its proposal indeed contained a response time for serious situation or crisis.

27. The Ombudsman notes that the complainant's proposal under point 4.2.2. of the Technical Proposal stated that a "quick reaction response … [would] be provided with 10-20 minutes from the moment of the initial notification. The response time is dependent on the traffic conditions and the scale of the crisis or incident". The Ombudsman also notes that pages 61-64 of the complainant's tender proposal describe three different intervention procedures according to the seriousness of the incident: (i) incidents involving a mass casualty event affecting ≤ 10 % of the security personnel; (ii) incidents involving a mass casualty event affecting up to 50% of the security personnel; and (iii) incidents involving a mass casualty event with maximum casualties sustained to the security personnel. The Ombudsman notes that the proposal mentions, under point (i) that affected personnel would be immediately replaced; however, no specific intervention time is mentioned. It is nevertheless understood that this issue is covered by point 4.2.2 of the Technical Proposal. The Ombudsman also notes that under point (ii), the complainant's proposal states that an operational reserve would be "immediately deployed … aiming to restore the security operation inside 6 hours" and "normal service should resume within 4 weeks". However, there is no specific mention of the exact intervention (response) time. Under point (iii), the proposal does not indicate any time frame for intervention.

28. In addition, the complainant has not explained how and where its proposal contained precise information in this regard, but simply referred to certain parts of its proposal (points 4.2.2 and pages 63-64) as "containing" the necessary information.

29. In these circumstances, the Ombudsman finds that the complainant did not show that there was a manifest error of assessment as regards this aspect of the complaint either.

30. As regards the third point (the rotation system), the Ombudsman finds that the complainant has not raised any new arguments as compared to those already mentioned in its complaint. The complainant's argument that the 9 weeks work / 3 weeks leave rotation system is the generally accepted system for international companies operating in hostile environments is not sufficient to show that the evaluation board committed a manifest error of assessment in this regard.

31. In light of the above, the Ombudsman finds no maladministration by the Delegation.

Conclusion

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

The Ombudsman finds no maladministration by the Delegation.

She therefore closes the case.

The complainant and the European External Action Service will be informed of this decision.

 

Emily O'Reilly

Strasbourg, 07/05/2015

 

[1] Case T-25/03 de Stefano v Commission [2005] ECR-SC I-A-125 and II-573 paragraph 34.