Strasbourg, 15 March 2006

Dear Mr M.,

On 11 January 2005, you made a complaint on behalf of GONZAGA-PRO d.o.o to the European Ombudsman concerning tender procedure EuropeAid/119519/C/S/HR "Reform of Judiciary - furniture supply for the Judicial training Centre under Ministry of Justice - Croatia - Lot 3"(1) carried out by the Delegation of the European Commission to the Republic of Croatia and the decision to award the contract to a higher bidder.

On 14 February 2005, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 30 June 2005 and I forwarded it to you with an invitation to make observations, if you so wished. No observations were received from you.

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

THE COMPLAINT

The complainant participated in tender procedure EuropeAid/119519/C/S/HR "Reform of Judiciary - furniture supply for Judicial training Centre under Ministry of Justice - Croatia - Lot 3". On 17 December 2004, the Delegation of the European Commission to the Republic of Croatia ("the Delegation") informed the complainant that its bid had not been successful on the ground that the technical bid was not considered to satisfy the requirements of the tender dossier as regards item 21. According to the Delegation, instead of the requested projection stand, the complainant's tender proposed a white screen. The contract was awarded to MED-KOK for an amount of EUR 29 522.

According to the complainant, the statement made against its tender was not true as both Position 21 in the Financial Bid and Position 13 in the Technical Bid clearly stated that the tender proposed a projection stand. The complainant admitted that the description of the projection stand in the Technical Bid was wrong due to a typing error and no photograph was enclosed with the bid. Although the complainant was in contact with the Delegation on several occasions during the tender procedure, no additional clarification was requested from him. The complainant questioned the decision to award the bid to a 29% higher bidder (EUR 8 557.41), because of a projection stand which costs EUR 651.54. Furthermore, the complainant underlined that he has not received a reply to its fax sent on 20 December 2004.

The complainant made the following allegations against the Commission:

1. Erroneous evaluation of the complainant's tender;
2. Failure to request additional clarification;
3. Lack of reply to a fax sent on 20 December 2004.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following remarks:

1 Erroneous evaluation of the complainant's tender

The description of the requested characteristics of item 21, provided for in the tender dossier that is the subject of the complaint, was as follows:

"LCD projection stand (for beamer, slide and overhead projection); height flexible, adjustable between 100 and 140 cm; flat top can be put in horizontal and in sloping position; special tray for laptop."

During the technical evaluation of the tenders, the Evaluation Committee established that the tenderer GONZAGA accompanied items of its bid with pictures showing the proposed items. Although item 21 for a projection stand in the complainant's tender read: "Projection stand (photo enclosed)" and was accompanied by a photograph, it was in fact a photograph of a projection slide. The photograph of the projection slide was marked and highlighted and it read "projection slide" in the Slovene language ("projekcijsko platno"). The written description of the item in the tenderer's technical bid read: "Projection stand should be fixed on the wall" and "Dimensions of the offered Projection Stand are 150 x 150 cm". This written description clearly showed that this item description could by no means relate to the requested item.

The Evaluation Committee, therefore, concluded that the complainant, by proposing an incorrect item, had misunderstood the requirement of the tender dossier.

2 Failure to request additional clarification

The request for additional clarification could easily infringe the principle of non-discrimination. An obligation to request such clarification could only be imposed by virtue of the principles of sound administration or equal treatment where the body responsible for examining the tenders detected in one of them a particularly obvious error, that is, where the body responsible for examining the tenders was able to determine the origin, the exact nature and the cause of the error. In any other case, contact with the tenderer would involve a risk of a new tender being submitted under the guise of a mere correction, which might give rise to an infringement of the principle of equal treatment, since the other competing undertakings would not have the same opportunity. In this regard, the Commission referred to Case T-19/95 Adia Interim SA v Commission(2).

The error of the complainant cannot be qualified as particularly obvious, as the Evaluation Committee could not determine the origin, the exact nature and the cause of the error. Furthermore, there was enough evidence in the complainant's tender to conclude that the proposed item did not meet the requirements of the tender dossier. Consequently, no request for clarification was sent to the tenderer.

3 Lack of reply to a fax sent on 20 December 2004

The reply was sent to the complainant on 12 January 2005. In this reply, the Delegation explained to the complainant the reasons for the late reply, namely, the holiday season. The Commission apologised for this delay in its opinion to the Ombudsman.

In conclusion, the Commission considered that its services had acted properly, respected the rules and principles binding upon it and, therefore, no instance of maladministration had taken place.

The complainant's observations

The complainant did not make any observations.

THE DECISION

1 Erroneous evaluation of the complainant's tender

1.1 The complainant participated in tender procedure EuropeAid/119519/C/S/HR "Reform of Judiciary - furniture supply for Judicial training Centre under Ministry of Justice - Croatia - Lot 3". On 17 December 2004, the complainant was informed that its bid had not been successful on the ground that the technical bid was not considered to satisfy the requirements of the tender dossier as regards item 21. According to the Delegation of the European Commission to the Republic of Croatia ("the Delegation"), instead of the requested projection stand, the complainant's tender proposed a white screen. According to the complainant, the statement made against the tender was not true as both Position 21 in the Financial Bid and Position 13 in the Technical Bid clearly stated that his tender proposed a projection stand.

1.2 According to the Commission, t he description of the requested characteristics of item 21 provided in the tender dossier was as follows:

"LCD projection stand (for beamer, slide and overhead projection); height flexible, adjustable between 100 and 140 cm; flat top can be put in horizontal and in sloping position; special tray for laptop."

Although item 21 for a projection stand in the complainant's tender read: "Projection stand (photo enclosed)" and was accompanied by a photograph, it was in fact a photograph of a projection slide. The photograph of the projection slide was marked and highlighted and it read "projection slide" in the Slovene language ("projekcijsko platno"). The written description of the item in the tenderer's technical bid read: "Projection stand should be fixed on the wall" and "Dimensions of the offered Projection Stand are 150 x 150 cm" which clearly showed that this description could by no means relate to the requested item. The Evaluation Committee, therefore, concluded that the tenderer, by proposing an incorrect item, had misunderstood the requirement of the tender dossier.

1.3 The Ombudsman observes that the tender dossier defined the technical specifications of item 21 (projection stand) and that, as it emerges from the complainant's technical bid (page 5), the characteristics of the item proposed by the complainant for item 21 differed from these technical specifications. Moreover, the complainant's tender included a photograph of an object the characteristics of which appeared not to correspond to the requirements of the tender dossier as regards item 21. In this regard, the Ombudsman also notes that the complainant had, in its complaint, admitted that the description of the projection stand in its Technical Bid was incorrect due to a typing error. Under these circumstances, the Ombudsman finds that the Commission reasonably concluded that the complainant proposed a different item than the one specified in the tender dossier as item 21.

1.4 There has therefore been no maladministration by the Commission regarding this aspect of the case.

2 Failure to request additional clarification

2.1 The complainant alleged that the Delegation failed to request additional clarification regarding the complainant's tender.

2.2 In its opinion, the Commission stated that: "An obligation to request such clarifications may only be imposed by virtue of the principles of sound administration or equal treatment where the body responsible for examining the tenders detected in one of them a particularly obvious error, i.e., where the body responsible for examining the tenders is able to determine the origin, the exact nature and the cause of the error. In any other case, any contact made with the tenderer would involve a risk of a new tender being submitted under the guise of a mere correction, which might give rise to an infringement of the principle of equal treatment, since the other competing undertakings would not have the same opportunity". In this regard, the Commission referred to Case T-19/95 Adia Interim SA v Commission(3). The Commission was of the view that the complainant's error could not be qualified as particularly obvious, as the Evaluation Committee could not determine the origin, the exact nature and the cause of the error. Furthermore, there was enough evidence in the complainant's tender to conclude that the proposed item did not meet the requirements of the tender dossier. Consequently, no request for clarification was sent to the tenderer.

2.3 The Ombudsman observes that the tender notice does not contain specific provisions regarding the issue of request for clarification. Point 21 of the tender notice provides, however, that it has its legal basis in Council Regulation (EC) No 2666/2000 of 5 December 2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia(4). Article 7 of this Regulation provides that the Commission shall implement Community assistance in accordance with the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities(5). The Ombudsman, furthermore, observes that Commission Regulation (Euratom, ECSC, EC) No 3418/93 of 9 December 1993 laying down detailed rules for the implementation of certain provisions of the Financial Regulation of 21 December 1977(6) ("Regulation 3418/93") contains specific provisions regarding contacts between the institution concerned and the tenderers during a procurement procedure. Article 99(7) of Regulation 3418/93 provides that "...every invitation to tender shall in particular: ... (h) prohibit any contact between the institution and tenderers during a procurement procedure save in the following exceptional circumstances: ... [(second paragraph)] after the opening of tenders: if some clarification is required in connection with a tender or if obvious clerical errors in the tender need to be corrected, the institution may contact the tenderer provided that the terms of the tender are not modified as a result." The Court of First Ι nstance has held that the second paragraph of Article 99(h) cannot be interpreted as imposing a duty on the institutions to contact tenderers(8).

2.4 The Ombudsman notes that the above-mentioned prohibition provided for in the second paragraph of Article 99(h) of Regulation 3418/93 is an expression of the principle of equal treatment of tenderers, which is a general principle of Community law(9). This principle implies inter alia that all tenders must correspond to the technical specifications set out in the tender notice(10) and that tenderers are in a position of equality when their tenders are being assessed(11). In this context, the Ombudsman refers to Case T-19/95 Adia Interim SA v Commission(12). In that case, the Commission abstained from contacting the applicant even though the selection committee had detected a "systematic error in the calculation" of the cost of certain working hours in the course of assessing the applicant's tender. The Court of First Instance dismissed the application for annulment of the Commission's decision to reject the applicant's tender, holding inter alia that any contact between the Commission and the applicant, in order to seek to jointly clarify the nature and the cause of such a systematic calculation error, would involve a risk of making adjustments to other elements of the tender, relating to the establishment of the tender price. Such contact would have entailed "an infringement of the principle of equal treatment to the detriment of the other tenderers, all of whom, in common with the applicant, are under an equal duty to take care in drawing up their tenders".

2.5 In light of the above and taking into account the findings in point 1.3 above, the Ombudsman considers that the Commission could reasonably have concluded, in the present case, that the provision of clarification regarding the item proposed by the complainant for item 21, which would have the purpose and effect of remedying the tender's departure from the pertinent tender conditions, would have resulted in the modification of the terms of the complainant's tender, in violation of the principle of equal treatment of tenderers. Hence, the Ombudsman considers that the Commission has provided a valid and adequate explanation for not requesting clarification regarding the matter referred to by the complainant.

2.6 The Ombudsman therefore finds no maladministration by the Commission as regards this aspect of the complaint.

2.7 However, the Commission appears to consider that it might have an obligation to request clarification regarding a tender when there is a particularly obvious error, even if such clarification would entail a modification of the terms of the tender. More specifically, the Commission, in its opinion, has argued that it might be bound to request clarification "where the body responsible for examining the tenders detected in one of them a particularly obvious error" and that "[i]n any other case any contact made with the tenderer would involve a risk of a new tender being submitted under the guise of a mere correction, which might give rise to an infringement of the principle of equal treatment" (emphasis added). The way this argument has been formulated seems to suggest that, in the case where there is a particularly obvious error, contact made with the tenderer would not involve a risk of modification of the terms of the tender that would be incompatible with the principle of equal treatment of tenderers. The Ombudsman, however, considers that such an argument does not seem to be consonant with the principle of equal treatment of tenderers, which is a general principle of Community law, and with the second paragraph of Article 99(h) of Regulation 3418/93. For that reason, the Ombudsman makes a relevant further remark below.

3 Lack of reply to a fax sent on 20 December 2004

3.1 The complainant alleged that the Delegation failed to respond to its fax of 20 December 2004.

3.2 In its opinion, the Commission maintained that a reply was sent to the complainant on 12 January 2005. In its reply, the Delegation explained to the complainant the reasons for its late reply, namely, the holiday season. In its opinion, the Commission apologised for this delay.

3.3 The complainant did not present any observations on this part of the Commission's opinion. Given that the Delegation sent a reply to the complainant on 12 January 2005 explaining the reason for the delay and, in its opinion on the present complaint, apologised for this delay, the Ombudsman takes the view that further inquiry into, and consideration of, this aspect of the complaint is not justified.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission as regards the first and second allegations. Moreover, further inquiry into, and consideration of, the third allegation is not justified. The Ombudsman therefore closes the case.

FURTHER REMARK

The Commission appears to argue that it might be obliged to request clarification regarding a tender when there is a particularly obvious error, even if such clarification would entail a modification of the terms of the tender. The Ombudsman would like to draw the Commission's attention to the fact that such an argument does not seem to be consonant with the principle of equal treatment of tenderers, which is a general principle of Community law, and with the second paragraph of Article 99(h) of Regulation 3418/93.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Tender notice 2004/S 176-150387, OJ 2004 S 176.

(2) Case T-19/95 Adia Interim SA v Commission [1996] ECR II-321.

(3) Case T-19/95 Adia Interim SA v Commission [1996] ECR II-0321.

(4) OJ 2000 L 306, p. 1.

(5) OJ 1977 L 356, p. 1.

(6) OJ 1993 L 315, p. 1.

(7) Article 99 of Regulation 3418/93, as amended by Commission Regulation (EC) No 1687/2001 of 21 August 2001 amending Regulation (Euratom, ECSC, EC) No 3418/93 laying down detailed rules for the implementation of certain provisions of the Financial Regulation of 21 December 1977, OJ 2001 L 228, p. 8.

(8) See Case T-19/95 Adia Interim SA v Commission [1996] ECR II-321, paragraph 44.

(9) See Case C-57/01 Makedoniki Metro, Mikhaniki AE and Elliniko Dimosio [2003] ECR I-1091, paragraph 69.

(10) See Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 37; Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraphs 70-74.

(11) See Case C-19/00 SIAC Construction Ltd and County Council of the County of Mayo [2001] ECR I-7725, paragraph 34.

(12) See Case T-19/95 Adia Interim SA v Commission, cited above, paragraphs 41-48.