Dear Mr D.,
On 20 June 1997 you made a complaint to the European Ombudsman concerning the European Commission. You alleged that the Commission has discriminated you by not inviting your company to bid under a restricted call for tender published by the Commission.
On 30 July 1997 I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 24 October 1997 and I forwarded it to you with an invitation to make observations, if you so wished. On 23 December 1997 I received your observations on the Commission's opinion.
I am now writing to let you know the results of the inquiries that have been made.
I apologize for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The background to your complaint is in substance the following :
On 20 February 1997 the translation services of the European Commission published a restricted call for tender for translation into French, 97/S36-18547/FR. Point 6 of the tender notice states that the number of applicants invited to bid will be between 5 and 30, so as to cover the operational needs of the contracting authority and to ensure genuine competition. Point 13 in the call for tender laid down the conditions that the applicants had to comply with. Point 14 provided that the contracting authority would select the applicants who would be invited to bid on the basis of the information they had submitted in relation to point 13.
You applied under this call for tender. On 29 May 1997 the Commission informed you that you would not be invited to bid, although your application was in conformity with the tender notice. By letter of 2 June 1997, you asked the Commission to review this decision, but without success.
Against this background you lodged the complaint with the European Ombudsman. You have put forward that the Commission has discriminated your company and, with a view to supporting this allegation, you asked the Ombudsman to ask the Commission to reply to the following questions :
- Which criteria did the Commission use in order to select the number of candidates invited to bid under point 6 of the tender notice ?
- What does the Commission understand by "genuine competition" ?
- What advantage does the Commission gain from excluding candidates which fulfilled the conditions in the tender notice, in particular in point 13 ?
Finally, you have put forward that the fact that under other calls for tender your company was invited to bid for translation into English and German contradicts the decision taken.

THE INQUIRY

The Commission's opinion
In its opinion the Commission has explained the procedure which has been followed in selecting applicants who would be invited to bid. The Commission has in particular called the attention to the fact that the procedure in question was a so-called restricted procedure governed amongst others by the provisions of Article 27 of Directive 92/50/CEE(1). Under such a procedure, the contracting authority has a right and even an obligation to procede to the selection of the applicants who fulfil the criteria laid down in the tender notice.
In reply to the first question, the Commission has indicated that this selection of applicants was made by comparing their respective merits. The Commission has annexed evidence to its opinion from which it appears that in the past, the quality of the translations provided by your company had not been considered sufficient.
As concerns the second question, the Commission has explained that under a previous tendering procedure 307 companies had been retained for translation into French of which 147 afterwards never received any work to do and 117 translated less than 400 pages each. By the term " ensure a genuine competition" the Commission thus understands to limit the number of companies, so to ensure that there is a real competition amongst them.
As concerns the third question, the Commission has explained that a restricted procedure represents an advantage to the Commission in the sense that only the best companies are retained which implies that the Commission services have to do less revision of the translations received.
Against this background the Commission has concluded that it has operated properly and that your company has not been discriminated.
The complainant's observations
In your observations you have maintained your complaint. You have in particular referred to documentation that shows that other Commission services than the ones in charge of this tendering procedure have been content with your work.

THE DECISION

1. The principle of non-discrimination implies that identical situations cannot be treated differently and that different situations cannot be treated identically. There is no element at hand indicating that the Commission should have engaged in discrimination in this matter. The distinguishing element among the applications which were in conformity with the tender notice was the quality of the applicants' work, which in your case was seen as a weak point by the selection committee of the Commission. It appears from the Commission's opinion that the Commission has complied properly with the provisions governing the procedure. The fact that under other calls for tender, your company had been successful, does not have any bearing on this finding. Neither does the fact that in some occasions, the Commission has found your work of good quality invalidate the fact that in other occasions, the Commission has found the quality to be insufficient. Therefore the Ombudsman finds that there are no grounds for the claim that the Commission's decision not to invite you to bid constitutes an instance of maladministration in the activities of the Commission.
Conclusion
2. On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.
Yours sincerely
Jacob SÖDERMAN
Copy to:
Mr. Jacques Santer, President of the European Commission
Mr. Jean-Claude Eeckhout, Secretariat General of the European Commission

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(1) OJ 1992 L 209, 24.07.1992 p. 0001 - 0024 .