THE BACKGROUND TO THE COMPLAINT

1. The complaint concerns a call for proposals issued by the Commission Representation in Berlin (Call No PO/2006-05/BER) for services to be provided at the Representation's public information desk at the Europäisches Haus (European House)[1].

2. The complainant submitted a proposal, which was subsequently rejected. She considered that the procedure had breached certain tender rules relating to fairness, broad competition, absence of a conflict of interest (including favouritism) and transparency.

3. The complainant contacted the Commission's Representation, which rejected her criticism. She subsequently turned to the Ombudsman. Following a preliminary analysis, the Ombudsman made a proposal for a friendly solution. The detailed arguments and analysis are set out below.

THE SUBJECT MATTER OF THE INQUIRY

4. The Ombudsman opened the present inquiry into the complainant's following allegations and claim[2].

Allegations:

1. The conditions of the Call concerning the eligibility/selection criteria were formulated in disregard of certain rules that limit the Commission's discretion in this context.
2. The selection procedure was tainted by a clear conflict of interest.
3. The Commission Representation failed properly to inform the complainant of the outcome of the call.
4. The Commission Representation failed to reply adequately to the complainant's requests for information and explanations.

Claim:

The selection procedure should be re-opened under fair conditions.

THE INQUIRY

5. The complaint was sent to the Commission, which submitted its opinion on 20 November 2007. The complainant submitted her observations on 22 December 2007. On 23 October 2008, the Ombudsman made a proposal for a friendly solution to the Commission, which submitted its opinion on the proposal on 21 January 2009. The opinion was forwarded to the complainant, who submitted her observations on 29 April 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

Non-extension of the scope of the inquiry

6. The Ombudsman notes that, in her observations on the Commission's opinion on his proposal for a friendly solution, the complainant responded to a statement by the Commission, according to which her application lacked evidence that she had paid social contributions and taxes. The complainant does not dispute that the failure to provide such evidence should entail exclusion from the procedure. However, she disputed that her tender application lacked such evidence and referred to a declaration in lieu of an oath that she had submitted. It appears from the Commission's opinion that it required more specific and official confirmation of the above-mentioned information.

7. The present inquiry was opened into the specific allegations and claims mentioned above in paragraph 4, and the complainant was duly informed. It would not be appropriate at this point to extend the scope of the inquiry into the issue raised in the previous paragraph. Moreover, any such decision would have to be preceded by an assessment as to whether there are grounds for reviewing the issue. In this respect, it is not obvious at first sight from the above-mentioned facts that there would be such grounds.

A. Allegation that the conditions of the Call concerning the eligibility/selection criteria were formulated in disregard of certain rules that limit the Commission's discretion in this context

Arguments presented to the Ombudsman

8. The complainant argued that, according to the EU Financial Regulation[3], public contracts must be based on the broadest possible competition. In the case of the present Call for proposals, however, competition was seriously limited by the following condition:

"- people responsible for contract performance must have the following training and skills, attested by certificates/references:

• university studies or equivalent level of training in the political science field, specialising in European law;"

9. The Service Point was allocated a C-level post (secretary, basic education), which is still the case. This shows that a very large number of different academics with experience in EU-related communication services could fulfil the duties relating to this post. Moreover, the selection criteria contained in the Call did not reflect the actual tasks to be carried out at the Service Point.

10. In its opinion, the Commission first explained the background to the Call here concerned. One of the principal targets of the Berlin Representation was to inform the general public, political decision ­makers and the media on the activities of the European Union in as broad a way as possible. The Service Point is a tool which enables the general public to receive on-the-spot information in this regard. The aim of the Call was to create a personal advice service for visitors at the Service Point outside the normal office hours of the Representation.

11. With regard to the above-stated first allegation, the Commission made the following specific comments:

"[The eligibility/selection criteria] have been defined by the Berlin Representation in order to meet the needs of the Representation in Berlin.

The 'European House' is located in the middle of the 'Governmental Quarter' in Berlin and is very frequently consulted, including by government officials. For this reason the EU is obliged to provide for a high level service (from a point of view of competences, experience etc.) and therefore wishes to engage personnel which is sufficiently qualified and [able to] replying correctly to the various questions - often with a political impact - as well as to [direct the persons concerned] correctly to the appropriate government department etc. This is why the Representation amongst others has requested educational qualifications like 'university studies or similar education in the area of political science with a specialisation in European law'."

12. As the offer made by the complainant did not even comply with the basic admissibility criteria (first stage of the Call), it should not normally have been evaluated on the basis of the selection criteria as such (second stage of the Call). However, for reasons of transparency, the Representation decided to have all the applications evaluated in substance. From this evaluation, it emerged that the person mentioned in the complainant's offer in fact possessed the relevant educational qualifications[4].

13. In her observations on the Commission's opinion, the complainant maintained her allegation and made the following remarks. The disputed criterion ("university studies or equivalent level of training in the political science field, specialising in European law") is very restrictive. Plenty of academics could fulfil the tasks of the Service Point at the Europäisches Haus in Berlin. In addition, government officials rarely use this publicly accessible information point; they rather contact Commission officials directly. On the contrary, it is important to provide a good service for the general public at the Service Point.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

14. The Administration formulating a call has discretion in laying down the object of the call and the relevant related conditions. As regards the conditions specifically, the Ombudsman's assessment is limited to examining whether the conditions are consistent with the basic principles laid down in the Financial Regulation, or whether any breaches of these principles have clearly occurred.

15. Article 89(1) of the Financial Regulation[5] provides that:

"All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination."[6]

16. The Ombudsman notes that the Call had the following title:

"Provision of assistance to the Representation of the European Commission in Germany by supplying staff for the 'Service-Punkt' (service point) at its Berlin offices."

17. In addition, the Call's "[s]hort description of the contract or purchase(s)" was as follows:

"[One] of the [Commission] Representation's main missions is to provide the public, political decision-makers and the media with as much information as possible on European Union activities. The 'Service-Punkt', [one] aspect of these information and communication activities, is a facility whereby the information needs of the general public can be met on site and there can be direct contact with citizens.

Under the contract the aim is to offer visitors to the 'Service Punkt' a personalised welcome, advisory and assistance service. The 'Service Punkt' is located at the offices of the Representation in Berlin and receives approximately 4 000 visits per month from citizens seeking information. The Representation is seeking a contractor to welcome, advise and assist 'Service Punkt' visitors during the following opening times ...

In particular, the contractor must:

a) answer questions on site:

the contractor should answer, in an appropriate and competent manner, questions from the 'Service-Punkt' visitors about the European Union and European integration in its broadest sense. For questions in other areas, the contractor should refer the visitor to the relevant department.

b) answer written and telephone questions:

the contractor should answer written and telephone questions on the subjects covered in the previous paragraph and in the manner described there ...;

c) assist visitors seeking information:

the contractor should help and guide 'Service-Punkt' visitors in finding the information they seek, whether it be:

- in the publications and information materials available or,

- on the Internet (e.g. using the Internet portal(s) set up at the 'Service-Punkt');

d) ensure publications and information materials are available:

the contractor should ensure that he always has sufficient stock in-house of those publications and information material whose use has been agreed by the Representation. These should also be available and clearly displayed at the 'Service-Punkt'. The contractor will inform the Representative's designated member of staff in plenty of time of his requirements, so the latter can duly place orders;

e) provide assistance on days marking special events:

the contractor must participate in days marking special events organised by the Representation (approximately 15 days in a year, e.g. for the 2006 World Cup, Europe Day or All Nations Day), by being on hand at the 'Service-Punkt' offices and in their immediate vicinity. During such days the contractor must allow for an extra member of staff to be present."

18. Two elements appear from the above:

First, the Call exclusively concerned tasks to be carried out for the Service Point. The Call clearly did not concern services to be provided to the Commission's Representation in general.

Second, the aim of the Service Point was clearly described as being to meet the "information needs of the general public" (emphasis added). It was not described as providing information services specifically targeted at decision-makers and the media.

19. Thus, the Call essentially concerned the provision of information on the EU to the general public, a task carried out by many people, both in and outside of the EU. It is not, at first sight, evident that this function requires the qualifications of "university studies or [an] equivalent level of training in the political science field, specialising in European law". This requirement sets a particularly high level of qualifications and a combination of (formal and documented) educational or training-based qualifications that are unusual at first sight. Additionally, the disputed condition appears to be flawed from the point of view of clarity. Even to the extent that knowledge of political science and law was deemed useful, it is far from obvious why the person concerned had to be specifically educated as a political scientist specialising in European law. It is not, for instance, obvious that persons educated as lawyers specialising in European politics would not be equally able to fulfil the above-mentioned tasks. Furthermore, the condition quite clearly does not require that the political science studies should be related to political science relevant to the European Union. The only EU specialisation required concerned EU law. This is a combination of requirements that is, at the very least, questionable in terms of clarity. Finally, the requirement of "specialising in European law" is vague. It is not clear whether the university studies (or equivalent training) should in themselves include specialisation in EU law, or whether any political scientist who has additionally obtained a certificate or received training in EU law would fulfil this condition. It is appropriate to point out here that the Commission did not refer to any general practice of employing information staff with qualifications such as those contained in the condition here disputed.

20. Naturally, the particular features of the working environment concerned may give the Administration valid grounds, when exercising its discretion, for laying down particular conditions.

21. In its opinion in the present case, the Commission explained the purported validity of the above-mentioned condition by referring to a number of considerations. It referred to the needs of its Representation, and to the fact that the Europäisches Haus (in which the Service Point is located) is visited "frequently" and by government officials as well. It furthermore indicated that the Service Point staff has to "[direct the persons concerned] correctly to the appropriate government department."

22. These considerations were not explained in the Commission's opinion, and are in fact not very clear. In particular, if they are to be understood to mean that the public Service Point, contracted out to a private service provider, constitutes one of the Commission Representation's main tools for providing EU information and expertise directly to the German Government, this would have to be stated in more clear and explicit terms. At any rate, in light of the object of the Call - to provide information at the Service Point (that is, not at the Representation itself) to the general public - it appears that there is no obvious connection between the object of the Call and the above-mentioned considerations referred to by the Commission in its opinion.

23. In light of the foregoing, the Ombudsman made the provisional finding that the complainant's argument that there was not a sufficient link between the object of the Call and the condition here concerned was justified.

24. The complainant also argued that the condition here disputed (quite apart from not being related to the object of the Call) unduly restricted competition.

25. The Ombudsman agreed that, at first sight, the limitation established in the condition of "university studies or equivalent level of training in the political science field, specialising in European law" introduced a significant restriction that would have to be justified. The Ombudsman could not, however, find that the explanations provided by the Commission in its opinion on the present complaint were convincing.

26. In the first place, he noted that the Commission's explanations relating to the fact that 'government officials' visit its Representation were apparently irrelevant in light of the finding in paragraph 19 above.

27. Even disregarding this, the Commission essentially only referred to two reasons for using the condition here concerned. It referred to the fact that the EU is obliged to provide a "high level service", and that the persons engaged must be able to "reply correctly" to the questions they receive.

28. The Ombudsman appreciated that, depending on the relevant context of the services that are provided, the educational requirements may need to be high. In the present context, however, it is far from obvious that the ability to provide a "high level service" and to "reply correctly" should require the very specific condition of "university studies or equivalent level of training in the political science field, specialising in European law". The Ombudsman therefore made the provisional finding that this part of the complainant's allegation also was justified.

29. In light of the above, the Ombudsman reached the provisional finding that the use of this condition constituted an instance of maladministration. He, therefore, made the following proposal for a friendly solution: "Taking into account the Ombudsman's findings, the Commission could consider carrying out a thorough examination as to why the disputed educational requirement was applied."

The arguments presented to the Ombudsman after his friendly solution proposal

30. In its opinion on this part of the Ombudsman's proposal for a friendly solution, the Commission concluded that the contracting authority scrupulously followed the procedure and thus acted without maladministration. It justified this conclusion by referring to the following facts and arguments.

31. The contracting authority formulating a call has the discretion to determine the object of that call and the related conditions that the external contractor has to fulfil. In this case, the contracting authority, namely, the Berlin Representation, used its discretion to lay down and decide on the minimum criteria to be fulfilled in order to meet the needs for a special service linked to the activities of the Representation.

32. For the Berlin Representation, this was the very first Call for tender concerning a new type of service provision. There was, therefore, no precedence for the minimum educational criterion to carry out this service at a satisfactory level.

33. Moreover, the contested service contract does not fall into the category of the Commission's staff subject to the Staff Regulations of Officials of the European Communities, but concerns the provision of services in the interest of the Commission. However, the performance of a similar function as information officer at the Berlin Representation requires A-grade staff. As already stated in the Commission's first reply, the Berlin Representation wanted to provide a service of a high quality to the public.

34. The Commission then explained what it referred to as the "particular features of the working environment" in order to account better for its choice of a service of a 'high quality'. It went on to elaborate on this point as detailed below.

35. The visiting public is primarily composed of students and people working in the surrounding area; the governmental quarter of Berlin. The Service Point, therefore, does not simply constitute a public info point for the general public, but also has to cover possible sensitive questions and requests for information from the political decision-makers and the media. Consequently, there was a need to provide a service of a high quality.

36. On the issue of signposting visitors, the Commission admits that its first reply could have been slightly clearer by stating the exact terms of the Call for tender "to offer visitors to 'Service Punkt' a personalised welcome, advisory and assistance service", and "to lead the visitors through to the departments concerned".

37. Looking at the educational level required for the staff in charge of performing a contract resulting from the Call for tender which was disputed by the complainant, the selection criteria requested were: University studies or[7] an equivalent level of training in the political science field, specialising in European law.

38. By way of clarification, the Commission stated that the educational criterion applied to the persons responsible for the performance of the contract, is not necessarily the same as the person responsible for the company providing the service requested - unless this person is mentioned in the offer amongst the persons executing the service.

39. The selection criterion "university studies or equivalent level of training in the political science field, specialising in European law" was interpreted in a way that any university degree, in whatever field, would be accepted as fulfilling the educational criterion. The Evaluation Committee did in fact take these two options of interpretation into account when selecting the winning proposal. In its examination of other proposals, it, therefore, accepted university studies in other fields. The minutes of the Evaluation Committee actually prove that several tenderers fulfilled that specific educational criterion. It cannot, therefore, be claimed that the Call was tailored to the winner's educational level.

40. Rather than narrowing the market, as alleged by the complainant, the Representation sought the broadest possible candidature by the additional extension of the criteria of university degree to include the alternative of an equivalent training in the political science field, specialising in European law.

41. Furthermore, the criteria relating to the professional experience only demanded a minimum of two years professional activity, thus referring mainly to Junior university candidates, of which there are many on the labour market.

42. Finally, the Representation made an extra effort to contact all the candidates regarding various missing documents (even for the initial exclusion phase), which proves that the intention of the Commission was not to target the winning proposal for the Call for tender by setting a level of education which was too high and specific.

43. Considering all of these elements, the Commission could not accept the complainant's allegations on this point.

44. In her observations, the complainant essentially maintained her allegation.

The Ombudsman's assessment

45. After examining the Commission's opinion, the Ombudsman maintains his analysis in the proposal for a friendly solution.

46. The gist of the Commission's response is three-fold. First, the Commission emphasises the broad discretion of the contracting authority to determine the object of the call and the relevant conditions. Second, the Commission refers to various contextual factors that should help to understand certain shortcomings in the Call. Third, the Commission refers to an interpretation of the disputed condition in the Call, which the Evaluation Committee adopted and which, in the Commission's view, assured the required broad competition.

47. With regard to the general discretionary power of the contracting authority to formulate the conditions in the Call, the Ombudsman has not questioned this power in his analysis. At any rate, the Commission does not appear to argue that the exercise of this power is not subject to certain legal limits or rules, such as those referred to in the Ombudsman's proposal for a friendly solution. This issue, therefore, does not require any further examination.

48. With regard to the various contextual factors referred to by the Commission - for instance, that the Berlin Representation had allegedly never carried out a similar procedure in the past - it appears that the institution is essentially asking for understanding for certain shortcomings to which it either vaguely or indirectly alluded. The Ombudsman does not consider that this part of the Commission's response either explains or rebuts the relevant analysis in his proposal for a friendly solution. In particular, the Commission's repeated references to the actual tasks to be carried out at its Service Point (and/or its Representation) cannot, in themselves, remove the inconsistencies that the Ombudsman identified in the Call.

49. With specific regard to the disputed selection condition in question, namely, University studies or equivalent level of training in the political science field, specialising in European law, the Ombudsman is surprised by the arguments now put forward by the Commission. The Commission considers it valid to interpret this condition, as the Evaluation Committee did, to mean that the person carrying out the services could (a) either have any kind of university degree, or (b) an 'equivalent level of training in the political science field, specialising in European law'. In fact, the Commission appears to find it perfectly appropriate that the Evaluation Committee adopted this very wide interpretation in order to take into account a larger number of applications.

50. The Ombudsman recalls that part of the purpose of a call is to enable potential bidders to decide whether or not to apply. A condition that is particularly restrictive is obviously likely to limit the number of bidders. If the evaluation committee concerned subsequently interprets that condition widely, even contrary to its obvious meaning, it not only discriminates against those who, for the above reason, did not apply, but also distorts the aim of ensuring the widest possible competition. In addition, the contracting authority exposes itself to potential accusations of deliberately issuing a call with a particularly narrow condition for the purpose of limiting the number of bidders and, additionally, possibly doing so with a view to favouring one or a limited number of known bidders who are expected to respond to the call.

51. The condition here concerned could not, in the Ombudsman's view, be reasonably interpreted as suggested by the Commission. It would mean, for example, that a person holding a university degree in journalism or history would comply with the condition due to the mere fact of holding a university degree. In contrast, another person not holding a university degree as such would have to demonstrate 'equivalence' by referring to the highly unusual combination of 'training in the political science field and specialising in European law'.

52. Accordingly, the Ombudsman maintains his view that the disputed condition could only meaningfully be understood to require, in all cases, whether through university studies or equivalent training, a study/training background in political science with a specialisation in European law.

53. In light of the above, the Ombudsman maintains his view concerning the relevant parts of his initial analysis regarding this condition, and makes the finding that the use of this condition constituted an instance of maladministration. He will make a critical remark below.

B. Allegation that the selection procedure was tainted by a clear conflict of interest

The arguments presented to the Ombudsman

54. The complainant took the view that the Call targeted one specific applicant from the outset and was formulated with that person in mind. In her view, the outcome of the Call confirmed this. The successful applicant was the Agentur Euro-Informationen, whose manager (Mr C.) was, according to the complainant, a former employee at the Commission Representation. She went on to state that Mr C. was frequently in contact with the Representation and its staff. However, the Call stated that persons with a conflict of interest should be excluded and, more specifically, that former employees of the Commission were excluded from the Call.

55. In its opinion, the Commission stated that there was no conflict of interest. The person who won the Call had never been recruited by the EU, whether as an official or a contractual or temporary agent. Such status would not, as the complainant pointed out, have been permissible under the Call. However, the Commission pointed out that Mr C. had in fact worked as "an intra-mura [sic] service provider" for the Commission's Representation in Bonn during various periods between 1989 and 1994. From 1999, after the headquarters of the German Representation moved to Berlin, Mr C. only performed external services for the EU, for instance on the 'Europa Bus Trip' and 'Information Trip' for the Commission and the European Parliament

56. In her observations, the complainant maintained her allegation and made the following remarks:

1. The Commission's opinion only confirms the allegation. In fact, Mr C. pointed out in his Curriculum Vitae (CV) that he was the "Chief Editor at the European Commission Representation, Bonn" ("Leitender Redakteur in der Vertretung der Europäischen Kommission in Deutschland, Bonn").
2. 'In-house' work clearly falls within the category of short term employment of the EU. Such employment implies exclusion from the kind of call here concerned.
3. The purpose of the rule excluding former employees is to prevent 'old boy networks' from obtaining advantages in the award of public contracts.
4. Prior to the Call in question, it was discussed how the staff at 'Chamonix Haus' (which apparently received funds from the European Commission) could be transferred to the Europäisches Haus in Berlin. The Call, which had been published Europe-wide, appeared rather suddenly following this discussion and other applicants were either not admitted or eventually filtered out.
5. The following question has still not been answered: How many applicants were admitted to this Call?
6. Another indication that several aspects of this Call were deliberately not brought to light is the fact that it was never mentioned that Ms J., the wife of Mr C. and (also) a former Commission staff member, would receive an allowance as co-project manageress.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

57. By way of preliminary remark, the Ombudsman noted that the complainant referred to two new issues in her observations. First, she mentioned certain events relating to 'Chamonix Haus'. Second, she appeared to suggest that not only Mr C., but also his wife had been employed by the Commission, and that this was an additional factor supporting her argument that the winning offer should not have been admitted. The first issue essentially concerned a new matter regarding which the Commission had not yet been approached; it could, therefore, not be included in his present examination. Any specific allegations that the complainant may have regarding 'Chamonix Haus' should be addressed to the Commission, following which the Ombudsman could examine whether a separate inquiry into this would be justified. The second new issue was clearly linked to the allegation concerning the conflict of interests. However, the Ombudsman could not examine the facts alleged by the complainant without first granting the Commission the opportunity to explain itself on this point. It was therefore for the Commission to consider including this issue in the examination that it carried out in response to the Ombudsman's proposal for a friendly solution.

58. Turning to the above allegation, the Ombudsman noted from the outset that the complainant essentially raised two issues:

First, she considered that the objective circumstances of the person who won the Call were such as to invalidate his participation under the relevant rules on conflict of interest applicable to the Call; and

Second, she considered that there was a 'conflict of interest' in terms of 'favouritism', that is to say, the Commission Representation had decided to grant the contract to the successful applicant from the outset, due to his existing contacts with the Commission officials working at the Representation.

59. With regard to the first issue, this was a matter which, in principle, could be adequately assessed on the basis of the applicable rules and the relevant factual circumstances. As for the second issue, favouritism is, by its very nature, particularly difficult to prove and, if confirmed, may potentially have serious legal and moral consequences for the persons involved. It will be dealt with in a separate part, below.

60. Proceeding to his assessment of the first issue, the Ombudsman recalled that Article 89 of the Financial Regulation[8] provides that "[a]ll public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination." Indeed, the principle of equal treatment of tenderers is a general principal of Community law[9], and its respect has to be ensured by the Community institution or body concerned with regard to each stage of a tender procedure[10] for the award of a contract financed by the Community budget. In cases like the one in the present case, this duty is intertwined with the need to ensure that the tender procedure is carried out in an objective and impartial manner, free from, amongst others, any conflicts of interest. Specifically regarding conflicts of interest, the Financial Regulations provide that "[c]ontracts may not be awarded to candidates or tenderers who, during the procurement procedure: (a) are subject to a conflict of interest..."

61. As for the Call itself, it contained the following express relevant provisions:

"Exclusion from the contract award procedure:

candidates or tenderers will be excluded from the contract award procedure if, at any time, they are the subject to a conflict of interest: the Commission must ensure that no tenderer has direct or indirect interests whose nature or scale are such that they compromise his independent status with regard to the European Communities during the performance of the tasks described in these specifications. Therefore tenderers are requested to state whether their employees or shareholders include former EU civil servants, contract staff, temporary officials who no longer work for the European Communities, EU civil servants who have taken leave, auxiliary staff or people who worked as trainees for the European Communities during the year preceding this invitation to tender. They are also required to inform the Commission of any situation which could lead to a conflict of interest. The Commission reserves the right to decide whether such a conflict does indeed exist;" (Section II.1.4 (f)(a) of the Call)

62. The above principles and specific rules implied, amongst others, that the Commission was under an obligation to examine with due diligence any clear potential conflict of interest. The question at this point was therefore whether there was any such clear potential conflict of interest in relation to the proposal made by Mr C.

63. In this respect, the complaint raised two issues. First, whether Mr C. had previously been 'employed' by the Commission, and thus fell within the situation referred to in the second sentence of the above-cited Section II.1.4 (f) (a) of the Call. Second, whether there was, additionally or alternatively, any other relevant potential conflict of interest.

64. On the first issue, the complainant stated that the person who won the Call, Mr C., had previously been employed by the Commission, and should, therefore, have been excluded. However, the Commission outlined in its opinion on the present complaint that Mr C. had not, in fact, been recruited by the Commission. It, therefore, appears that the complainant's argument that Mr C. had previously been 'employed' by the Commission in the sense of the above-mentioned provision cannot be sustained. Consequently, the Commission's duty to examine potential conflict of interest did not appear to have been breached in this respect.

65. The complainant, nevertheless, drew attention to the purpose of the above-stated provision in the Call, namely, to prevent persons previously working within the Administration (in whatever capacity) from obtaining undue advantages in public calls and tenders. The thrust of the complainant's argument was that, irrespective of whether Mr C. had been part of a formal employment relationship under the Staff Regulations or the Regulations and Rules applicable to other servants of the Communities, his previous involvement with the Commission constituted a conflict of interest in the procedure here concerned. She pointed to the content of Mr C.'s CV, which she considered confirmed her point.

66. Mr C.'s CV contains information on various more recent EU-related activities in which he was involved. These were summarised in the Commission's opinion. After the headquarters of the German Representation had moved to Berlin, Mr C. performed services for the EU, for instance on the 'Europa Bus Trip' and the 'Information Trip' for the Commission and the European Parliament. Mr C.'s CV also contains the following segment, specifically referred to by the complainant:

"1989-1994: Chief Editor at the European Commission Representation, Bonn; and additionally responsible for supervising the policy areas of the Internal Market and the monetary union." (Leitender Redakteur in der Vertretung der Europäischen Kommission in Deutschland, Bonn; dort zusätzlich verantwortlich für die Betreuung der Politikbereiche Binnenmarkt und Währungsunion.)

67. The Ombudsman took the view that the above-mentioned circumstances obviously required the Commission's attention and a diligent examination of: (i) whether Mr C.'s close former involvement with the Commission could be considered to cause a conflict of interest; and (ii) the related issues of the fairness of procedure and the equal treatment of candidates. The importance of such an examination was supported by the consideration that the difference between the in-house work relationship, which had apparently existed between Mr C. and the Commission, and some of the employment relationships foreseen in the Staff Regulation or the Regulations and Rules applicable to other servants of the Communities, was arguably formal rather than substantive.

68. However, the comments and information provided in the Commission's opinion on the present complaint did not suggest that any such examination was carried out. In fact, the Commission's opinion on the present complaint exclusively addressed the issue of whether Mr C. had previously been recruited by the Commission. It did not comment, directly or indirectly, on the issue of a potential conflict of interest regarding Mr C.'s involvement with the Commission, which for an extended period was apparently a close in-house contract relationship. Indeed, the Commission's opinion on the above-mentioned relationship was particularly brief ("an intra-mura [sic] service provider ... during various periods"), and clearly not reflecting the description of this relationship as it appeared on Mr C.'s CV.

69. In light of the above, the Ombudsman made the provisional finding that the Commission did not comply with its obligation to examine with due diligence any potential conflict of interest in relation to Mr C. He, therefore, made the following proposal for a friendly solution: "Taking into account the Ombudsman's findings, the Commission could consider carrying out a thorough examination regarding whether a conflict of interest existed concerning the applicant who eventually won the Call."

70. In his letter to the Commission, the Ombudsman also asked it to provide specific information on its rules and practices regarding the issue of conflicts of interest and the participation in tender or call procedures of both existing and former intra mural providers of services or other products.

71. With regard to the second issue concerning an alleged decision of the Commission Representation to grant the service contract to Mr C. (favouritism), the Ombudsman noted that the complainant had not provided any clear evidence in this regard, and that the documents submitted in the course of the present inquiry did not appear to contain any obvious indications in support of the complainant's suspicion.

The arguments presented to the Ombudsman after his friendly solution proposal

72. In its opinion on this part of the Ombudsman's proposal for a friendly solution, the Commission concluded that no conflict of interest existed concerning the applicant who won the Call. Its relevant and detailed response can be summarised as follows.

73. The Commission stated that the contracting authority did, in fact, examine the five different offers received with diligence, in line with the rules of the Financial Regulation. The Commission also checked whether the tender procedure was carried out in an objective and impartial manner, free from any conflicts of interest concerning the persons responsible for the tender, as well as the persons behind the execution of a future contract awarded.

74. The Financial Regulation states that "contracts may not be awarded to candidates or tenderers who, during the procurement procedure are subject to a conflict of interest". The Call itself contained some further relevant provisions, clearly stating that the candidates submitting a tender were obliged to inform the Commission of any situation which could lead to a conflict of interest and, therefore, they were requested to state "whether their employees or stakeholders include former EU civil servants, contract staff, temporary officials who no longer work for the European Communities, EU civil servants who have taken leave, auxiliary staff or people who worked as trainees for the European Communities during the year preceding this invitation to tender. The Commission reserves the right to decide whether such a conflict of interest does indeed exist."

75. The contract contained even more specific provisions concerning conflicts of interest. These were described as economic interests, political or national affinities, family links and so on. As regards the evaluators of the five offers, there would have been a conflict of interest, if the impartial assessment they were carrying out had been compromised and tainted by the above-described types of links.

76. As already indicated in the Commission's first reply, the winner of the Call, Mr. C, had never been employed by the Commission and was, therefore, not directly excluded from the contract award procedure (the Financial Regulation and Section II. 1.4(f)(a) of the Call itself).

77. Furthermore, the Representation carried out an examination of his former involvement with the Commission to see whether this would constitute a conflict of interest.

78. In fact, Mr. C. previously had a service contract with the Bonn Representation, which started in 1989 and was terminated in 1994, 12 years before the publication of the contested Call for tender.

79. In relation to this contract, the complainant referred to the position of "Chief Editor", which actually consisted of a contract for an external service provider of specific tasks defined in the service contract, obtained by Mr. C following a call for tender procedure. For practical reasons, the tasks necessitated an expert intra muros. Mr. C. was engaged in this service contract as a service provider and, therefore, never formed part of the Commission's staff, he was never recruited as an EU official and did not receive any salary as an EU official. He had absolutely no hierarchical link with the Commission services, and was never subject to the Staff Regulations.

80. Concerning the two later projects carried out by Mr. C, the 'Europa Bus Trip' and the 'Information Trip', these were also service contracts awarded following open call procedures, launched in 2005 and 2006, for which the awarding authority was the European Parliament. Mr C. had no further contractual links with the Commission before the current Service Point contract and the services performed did not place on the Commission's premises.

81. Concerning Ms J., who is married to the contractor, she benefitted from a contract for provision of services intra muros for the Bonn office for a period of 3 years. This contract ended in 1999, that is, six years before the preparation of the specific terms for the Call for tender contested by the complainant. Like Mr. C, Ms. J. never worked as an EU official subject to the Staff Regulations.

82. According to the Commission's analysis, there was absolutely no reason to exclude the winning tender due to a conflict of interest relating to Mr C.'s provision of prior services for which the contract ended 12 years before. The fact that his wife also benefitted from a contract for the provision of services as consultant (not subject to the Staff Regulations) for the Bonn office in 1999 seemed equally irrelevant.

83. In order to reassure the Ombudsman, the Commission stated that Mr. C. and Ms. J. were not involved in or able to influence the contested Call for tender at any stage of the process. All the offers were treated in the same manner; the reminder for the missing documents and the information of the results of the selection procedure were sent to all candidates at the same time.

84. In her observations, the complainant essentially maintained her allegation.

The Ombudsman's assessment after his friendly solution proposal

85. By way of preliminary remark, the Ombudsman welcomes the fact that the Commission responded positively to his proposal for a friendly solution and examined in more detail the issue raised in this part of the case. The Ombudsman also emphasises that his analysis in the proposal for a friendly solution specifically concerned the issue of a possible conflict of interest. As noted in his proposal, he does not hold any evidence to suggest that favouritism occurred.

86. As regards the substance, the Ombudsman does not consider the Commission's position entirely reassuring. It has essentially repeated, albeit in more detailed terms, the apparently very formalistic position adopted in its previous opinion. It appears to maintain the view that, whereas a formal employment relationship under the Staff Regulations should normally give rise to an examination regarding a possible conflict of interest, tenders submitted by former intra muros service providers - regardless of their involvement at a policy level - does not, in principle, raise any such concern.

87. More worryingly, the Commission has not responded to the Ombudsman's request to be provided with "specific information on its rules and practices regarding the issue of conflicts of interest and the participation in tender or call procedures of both existing and former intra mural providers of services or other products", made in his proposal for a friendly solution. The Ombudsman can only understand this omission to mean that such rules or clearly defined practices have not been formalised and circulated within the Commission. The Commission's response is illustrative of this, when it repeatedly refers to the period that had passed between the intra muros services of the person who won the Call here concerned, and the submission of that person's tender. Whereas such a consideration is, in principle, clearly valid, it is noticeable that the Commission does not refer to the existence of any rules or guidelines regarding such periods.

88. Accordingly, the Ombudsman maintains the fundamental concern expressed in his proposal for a friendly solution. However, in light of the examination subsequently carried out by the Commission, and in light of the apparent gap in relevant rules or guidelines, the Ombudsman considers that no further inquires would be appropriate at this point. The Ombudsman will, however, make a further remark at the end of the present decision. In accordance with the standard practice, the Commission will be asked to respond to the further remark, and the Ombudsman will examine that response in due course.

D. Allegation that the Commission Representation failed to reply adequately to the complainant's requests for information and explanations

Arguments presented to the Ombudsman

89. In her correspondence with the Commission Representation, the complainant requested detailed information and explanations in order to better understand the outcome of the Call. Specifically, she asked for:

1. the name of the successful applicant;
2. the reasons that led the Commission to choose this applicant;
3. information on the number of applicants who complied with the (unduly) restrictive admissibility conditions; and
4. the number of candidates who participated in the procedure.

90. The Commission did not provide the complainant with the above-mentioned information. In his letter of 31 January 2007, the Head of the Commission Representation merely informed the complainant that "[y]ou will understand that, in my last communication, I could not provide you with certain information, since this would have been contrary to the above-mentioned provision" (referring to Article 100(2) of the Financial Regulations[11]).

91. In its opinion on the complaint to the Ombudsman, the Commission stated the following. Its Representation had, on various occasions, done its best to reply to the complainant's requests for information and explanations. In particular, in a letter of 4 July 2006, the Representation sent her (and the other applicants) detailed information about the documents which she would still need to provide in order to fulfil the eligibility/selection criteria. Unfortunately, even after this detailed letter, the complainant did not manage to provide the Berlin Representation with the necessary documents. Specifically with regard to the names of the other candidates, the invitation to the Call clearly mentioned the date and the precise hour for the opening of the offers. The complainant could have attended this event, during which she would have been informed of the other candidates' names.

92. In her observations, the complainant maintained her allegation. She added that she had asked a "higher ranking official" of the Europäisches Haus whether it is usual practice for applicants to be present at the opening of a call for proposals. The official concerned allegedly replied in the negative, adding that if the Europäisches Haus were to follow such a practice, it would be the only one to do so, and would surely make a fool of itself.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

93. The Ombudsman recalls that Article 89 of the Financial Regulation[12] provides that "[a]ll public contracts financed in whole or in part by the budget shall comply with the principles of transparency ..." The Administration, furthermore, has a general duty of good administration to provide individuals with information that they request, unless it is prevented from doing so on grounds of confidentiality, or considers that collating and providing the information would involve disproportionate administrative efforts. Finally, the Administration works under a general obligation of service-mindedness, which, in respect to information requests, implies a specific obligation to respond to information requests in a precise manner, and only to reject such requests on concrete and specific terms.

94. In the present case, the complainant made precise requests for specific information referred to above (see paragraph 89). She did not receive this information and the Representation refrained from providing her with any concrete grounds, explained in specific terms. The only pertinent but vague indication was contained in the above-mentioned letter of 31 January 2007, which suggested - in respect to previous correspondence - that providing the complainant with "certain information" would have been contrary to Article 100(2) of the Financial Regulations. The Representation did not explain in specific terms what the phrase "certain information" referred to, let alone why the said provision should prevent it from providing the information concerned. The reference to "certain information" was, at any rate, made in respect to previous correspondence from the complainant, and did not refer to the letter to which the Commission replied.

95. The Ombudsman further noted that the Commission did not use its first opinion as an opportunity to correct the above flaws in the Representation's handling of the complainant's information requests. On the contrary, the Commission referred to correspondence that the Representation sent to all applicants concerning compliance with the selection criteria and pointed out that the complainant could have attended the opening of the offers to learn of the other candidates' names. The Ombudsman failed to understand how this information could have any relevance to the complainant's specific requests for information mentioned above. He concluded that the Commission would have the opportunity to explain this, if it so wished, in its response to his proposal for a friendly solution.

96. In light of the above, the Ombudsman found that the Representation's handling of the complainant's requests appeared to be arbitrary and lacking a specific legal basis for its implied refusal to grant the information concerned. He, therefore, reached the provisional finding that the Representation's actions in this regard constituted an act of maladministration (which was not corrected in the Commission's opinion), and hence made the following proposal for a friendly solution: "Taking into account the Ombudsman's findings, the Commission could consider reconsidering the complainant's requests for information."

The arguments presented to the Ombudsman after his friendly solution proposal

97. In its opinion on the friendly solution proposal, the Commission stated the following.

98. The Commission strictly applied the Financial Regulation (see the above quotation in paragraph 90, footnote reference).

99. In the complainant's case, her offer was not admissible due to the missing document (regarding social security and tax payments), which constituted one of the criteria for exclusion from participation. According to the Financial Regulation, she was only entitled to obtain the information about the grounds on which her tender was rejected. According to the above provision, only tenderers whose tenders are admissible and who make a request in writing have the right to be informed about the details of the award of the contract (the name of the tender to whom the contract is awarded and so forth).

The Ombudsman's assessment after his friendly solution proposal

100. The Commission's response to the proposal for a friendly solution does not add any new elements to its previous position. In essence, the Commission maintains that, because Article 100(2) of the Financial Regulations sets out certain specific informational duties for the contracting authority, this excludes any other basis on which the complainant could have validly asked for the information.

101. The Ombudsman fails to understand this position. The fact that a certain legal provision expressly foresees a duty to provide information does not, for that reason alone, exclude the possibility that the Administration may have other duties to respond to requests for information and/or documents. The Ombudsman has already explained this in his preliminary assessment set out above (see paragraph 93). It is regrettable that the Commission has not taken the friendly solution proposal as an opportunity to better examine and respond to this part of the case.

102. The information that the complainant has asked for must logically be contained in, or easily derived from, documents held by the Commission. It is, therefore, open to the complainant to submit a formal application for access to those documents under Regulation 1049/2001 regarding public access to documents[13]. Regulation 1049/2001 provides for a time limit that is significantly shorter than the three-month period that the institutions dispose of in order to reply to draft recommendations by the European Ombudsman. Furthermore, an application to the Commission would normally be dealt with by the Commission's specialised unit, which will be able to adequately examine and respond to the point referred to by the Ombudsman in paragraphs 93 and 101 above. In light of these considerations, the Ombudsman considers it preferable to close the present part of the case with a critical remark and suggest to the complainant that she make use of the above-mentioned procedure under Regulation 1049/2001. If the complainant receives an unsatisfactory decision in response to her application, she is free to turn to the Ombudsman regarding this issue.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes his inquiry with the following critical remarks:

1. In light of the findings in paragraphs 46 - 53 of the present decision, the Representation's use of the disputed condition in the Call constituted an instance of maladministration.
2. In light of the findings in paragraphs 100 - 102, the Representation's handling of the complainant's requests was tainted by maladministration[14].

The complainant and the Commission will be informed of this decision.

FURTHER REMARK

As noted in paragraph 87 of the present decision, the Commission did not respond to the Ombudsman's request to be provided with "specific information on its rules and practices regarding the issue of conflicts of interest and the participation in tender or call procedures of both existing and former intra mural providers of services or other products" (part 2 of the proposal for a friendly solution). The Ombudsman can only understand this omission to mean that such rules or clearly defined practices have not been formalised and circulated within the institution. The Ombudsman considers that, both in general and specifically in light of the facts of the present case, the Commission could examine the possibility of adopting such relevant rules or guidelines.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 13 October 2009

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[1] The Call described this Service-Punkt (Service Point) as being one part of the Representation's information activities, and "a facility whereby the information needs of the general public can be met on site and there can be direct contact with citizens."

[2] For the sake of structure, the order of the allegations has been changed from that in the letter opening the present inquiry. This does not influence the content of the allegations.

[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.

[4] The Commission also stated that the Berlin Representation had done its best to maximise the level of transparency and competition between the potential candidates by publishing the Call for proposals very broadly. Moreover, it had sent a letter to all the candidates explaining which documents they still needed to provide in order to be taken into consideration. The complainant's allegation here examined does not, however, concern these aspects of the procedure, but rather the specific condition cited above.

[5] OJ 2002 L 248, p. 1.

[6] These appear to be the principles that the Commission Representation implicitly referred to when it informed the complainant in a letter of 10 January 2007 that "[a]ll admissibility conditions were ... clear, non-discriminatory and proportionate" ("Alle Auswahlkriterien waren ... klar, nicht diskriminierend und verhältnismässig").

[7] The Commission stated in a footnote that "[I]t is an alternative meaning either a university degree or equivalent training in the political science field, specialising in European Law".

[8] OJ 2002 L 248, p. 1.

[9] See Case C-57/01 Makedoniko Metro [2003] ECR I-1091, paragraph 69.

[10] See Case T-160/03 AFCon v Commission [2005] ECR II-981, paragraph 75.

[11] "The contracting authority shall notify all candidates or tenderers whose applications or tender are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

However, certain details need not to be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interest of public or private undertakings or could distort fair competition between those undertakings."

[12] OJ 2002 L 248, p. 1.

[13] The application should be sent to the Secretariat-General European Commission, Unit SG/B/2 'Openness, access to documents, relations with civil society', B-1049 Brussels, Belgium, e-mail: sg-acc-doc@cec.eu.int

[14] The Ombudsman recalls that, in paragraph 102, he suggests that the complainant could submit an application under Regulation 1049/2001 regarding public access to documents.