(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

The complainant, a Dutch company, has, for a number of years, been developing navigation and retrieval software for electronic publications of the EU, including the electronic versions of the Official Journals in 11 languages. Until 1 May 2004, its software solutions were used by the Office for Official Publications of the European Communities ("OPOCE") for the daily production of the Supplement to the Official Journal both on CD-ROM and on the Internet (TED-online).

According to the complainant, a change regarding the officials responsible at OPOCE that took place in 2000/2001 had the result that, since that change, every effort appeared to have been made systematically to keep its products from being selected for the tasks that are the subject of tenders. The complainant referred to four cases in this context which are summarised below. In the complainant's view, although each of these cases deserved particular attention, it was the combination of these cases which caused concern and threatened to put the future of one of the most sensitive publications of the EU in jeopardy as from 1 May 2004.

In its complaint lodged in mid-April 2004, the complainant asked the Ombudsman to give its complaint his most urgent attention. It indicated that the third of the cases was the most disturbing.

On the basis of the information provided by the complainant in its complaint, the above-mentioned four cases may be summarised as follows:

(1) Tender no 2034

In 2001, OPOCE published a call for tender for the production and duplication of a CD-ROM containing Official Journal L and a CD-ROM containing Official Journal C in all official languages with consultation aids. The contract was to be awarded to the economically most advantageous tender. The complainant's project partner, Saarbrücker Zeitung Verlag und Druckerei GmbH ("SZ"), a German company, submitted a bid. The complainant was to be SZ's sub-contractor.

On 6 November 2001, the contract was awarded to another bidder, AIS Berger-Levault ("AIS"). This company had submitted the most expensive bid.

On 20 June 2003, the complainant wrote to OPOCE in order to ask for clarification to certain questions concerning this award. Among other things, the complainant submitted that, a year and a half after the award, the successful bidder had still not provided a product meeting the tender specifications. The complainant enclosed a list setting out the requirements that, in its view, had not been met.

To cite only two examples from this very precise list, (a) the product offered by AIS allegedly required minimally 32 MB RAM on a PC with at least 100 MHz Pentium CPU whereas the requirement had been 24 MB RAM, and (b) the response to a simple, single criterion search took 40 seconds (first search) and seven seconds (further searches) whereas the requirement had been two seconds for a first search.

In his reply of 14 August 2003, the Director-General of OPOCE confirmed that the bid selected had been the most economically advantageous on the basis of the award criteria, that the relevant CD-ROM had been available since July 2002 and that the delay had been due to OPOCE. As regards the technical issues, the Director-General of OPOCE referred to the fact that the call for tender had mentioned that "specifications will be able to change during the period of validity of the contract according to the market trends".

In a letter of 3 September 2003, the complainant pointed out that OPOCE's reply confirmed and intensified its concerns. The complainant submitted that where specifications were modified, other tenderers should be informed so as to allow them to put in new bids. It also stressed that the exact selection criteria had not been explained. The complainant therefore asked for a meeting with the Director-General of OPOCE.

This meeting took place on 23 October 2003. According to the complainant, the Director-General of OPOCE admitted that mistakes had been made but that the officials concerned had acted in good faith and promised that such mistakes would not happen again in the future.

In its complaint to the Ombudsman, the complainant expressed the view that OPOCE's decision not to award the contract under tender no 2034 to it and its partner SZ had not been in conformity with the rules applicable in the matter.

(2) Tender no 6019, lot 1

In 2003, OPOCE published an invitation to tender for the provision of services in relation to the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal (tender no 6019). Lot 1 concerned the production of the TED website and the CD-ROM for the S series of the Official Journal.

The products covered by this tender had hitherto been provided by SZ and its sub-contractor, the complainant, under a contract that had been awarded five years earlier pursuant to tender no 1695. Contract no 1695 was due to expire on 30 April 2004.

The complainant participated in a bid that was submitted by Grafidata b.v., a Dutch company. The consortium also included a third partner, DOCData France, a French company. SZ also submitted a bid, together with a new partner. According to the complainant, SZ had informed it that its change of software partner had been due to a 'change of sentiment' towards the complainant by OPOCE as a result of a change in OPOCE's staff.

On the 'information day', 52 companies were represented. Apart from the complainant's consortium and SZ's consortium, only one other company subsequently put in a bid. According to the complainant, it was generally known soon after the opening of the bids that this third bid could not be considered seriously, given that the bidder had no previous experience in the field. Still according to the complainant, it was also generally known that the race was between SZ and its partners on the one side and the complainant and its partners on the other. In the complainant's view, the bid submitted by its consortium was not only very solid from a technical point of view, but also much cheaper (by several million Euro, according to the complainant) than the offer submitted by SZ and its consortium. The complainant submitted that it thus had had every hope of winning the tender.

By letter of 24 October 2003, OPOCE informed Grafidata b.v. that the relevant invitation to tender had been cancelled. In reply to a request for an explanation sent by Grafidata b.v., OPOCE referred, in a letter dated 22 December 2003, to an article published in a French newspaper on 2 October 2003. This article quoted the managing director of DOCData France as saying that, from the 52 companies that had initially shown an interest in the call for tender, only two were left: "Deux ont été sélectionnés [two have been selected], un consortium germano-luxembourgeois et [the complainant's consortium]." OPOCE took the view that confidential information had thus been made public.

On 26 February 2004, the complainant's lawyer wrote to OPOCE in order to challenge this decision. The complainant's lawyer submitted that the relevant fact had been an 'easily drawn conclusion' and could not have had any impact on the evaluation process. He also took the view that, if there had been a leak of confidential information, it was very likely that it must have taken place within OPOCE. The complainant's lawyer submitted that OPOCE should compensate the complainant for the financial damage it had suffered as a result of the cancellation of the bid.

In its reply of 4 March 2004, OPOCE took the view that the disclosure of confidential information was a problem per se, irrespective of its influence on the bids and that it had been obliged to cancel the procedure in these circumstances. According to OPOCE, there was no evidence to show that the information had been leaked by it. OPOCE also denied that severe financial damage had been caused to the complainant, given that the complainant did not dispose of any information to imply that its consortium would have been awarded the contract. According to OPOCE, no promises had been made by OPOCE on the occasion of the meeting on 23 October 2003 other than to consider and analyse forthcoming technical offers without any prejudice.

In its complaint to the Ombudsman, the complainant reiterated the arguments that had been put forward earlier by its lawyer. It further submitted that the new products which the tender concerned could easily have been developed on the basis of its existing software and that it had put in a much lower bid than the only other serious bidder, SZ's consortium.

(3) Extension of the contract awarded under tender no 1695

According to the complainant, OPOCE informed it at the meeting on 23 October 2003 that the cancellation of tender no 6019, lot 1 would mean an extension of the existing contract awarded under tender no 1695. However, in the end, OPOCE allowed SZ to use its new partner as sub-contractor in the complainant's place.

In his letter of 26 February 2004, the complainant's lawyer expressed the view that the extension of the said contract had no legal basis, given that Article 126 (1) (c) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(2) ("Regulation 2342/2002") provided that a negotiated procedure could be used where there were "reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities" and that, according to Article 126 (1) (f) of Regulation 2342/2002, only the same product or service could be offered in case of an extension. He further submitted that the extension of the contract required the complainant's continued participation, given that no other party would be able to deliver the same product, that is to say a product with search technology by the complainant.

In its reply of 4 March 2004, OPOCE took the view that SZ remained the sole contractor as regards contract no 1695. Under Article 13 (2) of this contract, the contractor had to submit to OPOCE a prior written request for agreement in case it wished to use a new sub-contractor. However, once this agreement had been given, any further contact with the sub-contractor was a matter for the contractor.

In its complaint to the Ombudsman, the complainant reiterated its view that the extension of the contract had not been in accordance with the relevant rules and had, in any event, not been possible without its participation. The complainant added that the product to be provided by SZ could never be the 'same' as the one it had previously supplied, using the complainant's software, since its (the complainant's) retrieval software that had been used for this purpose had been particularly developed and optimised for CD-ROMs.

The complainant noted that it had already taken legal steps against SZ but that this did not, in its view, release OPOCE from its own responsibilities in the matter.

(4) Tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3

In 2003, the Commission published a call for tender for "ISTO Tools" ("Indexing and Searching Tools"). By letter of 16 March 2004, the Commission informed the complainant that its offers had been rejected. According to the Commission, the offers for lots 1 and 3 had failed to comply with the criterion regarding the technical capacity and the offer for lot 2 had not passed the technical evaluation. The complainant considered this to be totally unacceptable in view of its long experience in the field.

In summary, the complainant thus appeared to make the following allegations:

1. OPOCE's decision not to award the contract under tender no 2034 to the complainant and its partner had not been in conformity with the rules applicable in the matter.
2. OPOCE's decision to cancel tender no 6019, lot 1 had not been in conformity with the rules applicable in the matter.
3. The extension of the contract awarded under tender no 1695 had had no legal basis and would only have been possible if the complainant had continued to participate in the contract.
4. The Commission had been wrong to reject its offers made under tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3.
5. OPOCE had systematically tried to keep the complainant's products from being selected for tasks that are tendered.

The complainant claimed that the mistakes made should be rectified, that it should be granted compensation for loss of income and that the official responsible for the relevant acts should be reprimanded.

In a further letter sent on 17 May 2004, the complainant informed the Ombudsman that, as of 1 May 2004, the daily publication of the S series of the Official Journal (CD-ROM and TED-online) no longer ran on its software. According to the complainant, the results were alarming. The complainant pointed out, among other things, that the service had been interrupted many times since 1 May 2004. It also noted that in a number of areas its software schedules were still used (without its consent) and that it had taken legal action to stop this.

THE INQUIRY

The Ombudsman's approach

On 26 April 2004, the Ombudsman informed the Director-General of OPOCE of the complaint and asked him to submit an opinion on the allegations numbered 1, 2, 3 and 5 and on the complainant's claims by 31 July 2004. OPOCE's attention was drawn to the fact that the complainant had stressed that the matter was urgent. The Ombudsman informed OPOCE that it would therefore be appreciated if it could submit its opinion as soon as possible.

As regards the fourth allegation, the Ombudsman noted that, according to Article 2 (4) of the Statute of the European Ombudsman, he can only deal with a complaint after the appropriate prior approaches to the administration have been made. No such prior approaches appeared to have been made to the Commission regarding the issue raised by the fourth allegation. The Ombudsman therefore informed the complainant (and OPOCE) that this allegation was thus inadmissible and that it would not be covered by the present inquiry.

OPOCE's opinion
The original version of OPOCE's opinion

OPOCE sent its opinion on 3 June 2004. Upon receiving this opinion on 10 June 2004, and after having proceeded to a rapid examination of its contents, the Ombudsman concluded that the enclosures that were sent with OPOCE's opinion might contain confidential data and that OPOCE might not have been aware of the fact that its opinion and the enclosures would be forwarded to the complainant for its observations. By letter of 14 June 2004, the Ombudsman therefore invited OPOCE to ascertain whether these enclosures contained confidential data and, if so, to provide non-confidential versions thereof. The complainant was informed accordingly.

The amended version of the opinion

On 9 July 2004, OPOCE sent to the Ombudsman a new version of the enclosures to its opinion from which, according to OPOCE, all confidential data had been removed. A copy of this opinion (which the Ombudsman received on 15 July 2004) and of the opinion of 3 June 2004 was forwarded to the complainant on 16 July 2004 with an invitation to make observations. On the same day, the Ombudsman returned to OPOCE the originals of the enclosures that it had submitted to him on 3 June 2004.

The contents of the opinion

In its opinion, OPOCE made the following comments on the complainant's allegations:

1. Contract no 2034 had been signed with AIS after a call for tenders that had been in conformity with EU directives on public procurement. The call for tenders had been submitted to the Advisory Committee on Procurements and Contracts ("ACPC"), which had delivered a positive opinion on 19 September 2001 on the tender made by the complainant's consortium.
2. During the procedure concerning call for tenders no 6019, lot 1, OPOCE had discovered that confidential information had been published in the press. It had therefore been decided that the procedure should be cancelled and that a new one should be launched.
3. After the cancellation of call for tenders no 6019, lot 1, and in order to ensure the continuity of the service, contract no 1695 had been extended for a period of 18 months.
4. OPOCE was unable to comment on the procedures of Directorate-General Administration of the European Commission.
5. This was a gratuitous allegation that had not been established.

Together with its opinion, OPOCE submitted copies of the following documents: (1) Report dated 21 August 2001 to the ACPC concerning contract no 2034; (2) Opinion of the ACPC concerning this contract of 19 September 2001; (3) File note of 1 June 2004 on call for tenders no 6019, lot 1 and on the extension of contract no 1695; (4) Copy of the article published in the "Journal de la Haute Marne" of 2 October 2003; (5) Report to the Commission on Procurements and Contracts ("CAM") dated 30 January 2004; (6) Opinion of the CAM of 19 February 2004; and (7) Addendum no 4 dated 9/11 March 2004 to contract no 1695.

These documents contain (to the extent that they are relevant for the present case) the following information:

(1) Report dated 21 August 2001 to the ACPC concerning contract no 2034

The officials in charge of the call for tender were Mr L., head of OPOCE's Multimedia unit, and Mr B., head of OPOCE's Author Services unit.

According to the report, dated 3 August 2001 of the Evaluation Committee (which was annexed to the report dated 21 August 2001), the complainant's consortium was given a total of 35 points (calculated as the sum of 11, 10, 13 and 3 points respectively for the four criteria concerned)(3) by the evaluators (out of a total of 60 points) whereas AIS achieved a total of 44.5 points. As regards criterion C1 (concerning the quality of the technical solutions proposed), the Evaluation Committee awarded 16 points (out of 20 points) to AIS (compared to 11 points for SZ) and noted, in this context, that the solution proposed by AIS "correspond entièrement aux spécifications indiquées au cahier des charges" ("corresponds entirely to the requirements set out in the technical specifications"). The Evaluation Committee concluded that AIS also had the best quality/price ratio (10.11 as compared to 9.32 for the complainant's consortium).

(2) File note of 1 June 2004 on call for tenders no 6019, lot 1 and on the extension of contract no 1695

The note for the file was drawn up by an official at OPOCE's Author Services unit. Its contents can be summarised as follows:

Three offers were received by the date set for that purpose (8 August 2003). These offers had been submitted by the complainant's consortium, by SZ's consortium and by a third consortium. The offers were opened on 2 September 2003. In the selection phase, the structure of the third consortium was considered to be insufficient to guarantee the proper execution of all the relevant tasks. Only the two other offers were therefore admitted to the award phase. In this phase, the quality of the offers was evaluated on the basis of a maximum of 120 points. The complainant's consortium was given 53.7 points and thus less than the minimum of 80 points required. The consortium including SZ was given 101.8 points. At its last meeting, held on 6 October 2003, the Evaluation Committee decided to propose to accept the offer of the consortium including SZ.

On 15 October 2003, Mr M., the managing director of the complainant, informed OPOCE by telephone that a member of its consortium had given an interview to a French newspaper, mentioning the consortium's participation in the present call for tender. Mr M. apologised for this behaviour and assured OPOCE that his company had nothing to do with this interview. At OPOCE's request, Mr M. forwarded a copy of the relevant article and a letter with his appraisal of the incident later that day.

Having taken note of the contents of this article, the Director-General of OPOCE decided on 15 October 2003 to cancel the tender on the grounds that confidential information that had only been known to the members of the Evaluation Committee had been published. The members of the Evaluation Committee were informed of this decision the same day.

On 16 October 2003, OPOCE asked DOCData France for an explanation. The reply that was sent on 17 October 2003 was not considered to be satisfactory. On 21 October 2003, the Director-General of OPOCE gave instructions to open an administrative inquiry. On 3 December 2003, the Director-General of OPOCE informed the members of the committees concerned that the administrative inquiry had been closed.

After the cancellation of the tender, two options had presented themselves, namely (1) a negotiated procedure with the consortium that had proven its technical quality, or (2) a negotiated procedure with a view to extending contract no 1695.

On 7 November 2003, Mr B. asked Mr L., as regards the possible extension of contract no 1695 by eight months, for the technical specifications concerning the adaptations that were strictly necessary and that followed only from the forthcoming enlargement of the EU. On 19 November 2003, Mr L. informed Mr B. that it would be more realistic to envisage an extension by 12 months.

OPOCE subsequently informed SZ of its intention to extend contract no 1695.

On 3 December 2003, SZ informed OPOCE that it proposed a new technical solution (with a change in the software used) for the extension of the contract. According to SZ, this would allow for the improvement in performance that was needed to cope with 20 languages, at a price that was lower than the one that would be required to update the existing software.

By letter signed by Mr L. on 5 December 2003, OPOCE informed SZ that it agreed, in principle, with its proposal.

The proposed change of software was discussed within OPOCE since Mr B.'s unit had doubts as to whether such a change was possible from a contractual point of view.

After consulting OPOCE's Director-General it was decided, on 8 December 2003, to launch a new negotiated procedure and to sign a new contract with SZ. This contract was to reuse the clauses foreseen by contract no 1695 and complement them by the adaptations needed for 20 languages and the functions envisaged for 2004. A note to that effect had been sent by Mr L. to Mr B. This new procedure was given the reference 6029.

On 16 December 2003, OPOCE forwarded a draft contract to SZ which would have a duration of 24 months. The offer made by the latter was received on 18 December 2003, with a complement that arrived the day after.

On 22 and 23 December 2003, Mr L. drew up two notes for the file as regards the quality of SZ's offer and as regards the technical justification for using the negotiated procedure.

Mr B.'s unit subsequently expressed the view that there was no legal basis for the negotiated procedure no 6029.

On the occasion of a meeting towards the end of 2003, it was decided that the only way forward was to extend contract no 1695 and not to conclude a new one, limiting any technical modifications to the bare minimum necessary.

An offer to that effect was made to SZ on 9 January 2004. SZ sent its reply on 13 January 2004. Further explanations demanded by OPOCE were received on 19 January 2004. Given that the reply was still not considered to be satisfactory, SZ was invited to a meeting to discuss the points that remained to be solved. This meeting was held on 22 January 2004. OPOCE's request for confirmation that the prices would not be changed throughout the duration of the extension was received on 26 January 2004.

The report to the CAM was drawn up on 30 January 2004. After its meeting on 11 February 2004, the CAM put certain questions concerning the matter to OPOCE which were answered on 16 February 2004.

At its meeting of 19 February 2004, the CAM expressed the view that it was necessary to sign the contract in light of the need to ensure the production of the Supplement to the Official Journal. The CAM noted, however, (1) that contract no 1695 had been used to put in place the technical solution that had been proposed in the context of call for tender no 6019; (2) that the decision to change the platform and to accept the resulting costs had been taken without consulting the CAM; and (3) that a change of the technical solution as important as the present one led to a change in the object of the service.

(3) Copy of the article published in the "Journal de la Haute Marne" of 2 October 2003

The article published in the French newspaper on 2 October 2003 was based on an interview with the manager of DOCData France. According to the article, 52 companies or consortia had been present at the information meeting concerning the relevant call for tender. The article continued as follows: "Deux ont été sélectionnés [two were selected], un consortium germano-luxembourgeois et [the complainant's consortium]."

(5) Report to the Commission on Procurements and Contracts (" CAM") dated 30 January 2004

The report was drawn up by Mr. L. It contains, among other things, the following statements:

After the cancellation of tender no 6019, a pre-notification of a new call for tender was published in the Official Journal on 18 November 2003. However, given the time that would be needed for a new procedure, the resulting new service could only become operative as from October 2005. It was therefore necessary to extend contract no 1695 by 18 months on the basis of Article 126 (1) (c) of the Financial Regulation.

Addendum no 3 to contract no 1695 therefore envisaged an extension for a maximum period 18 months "ainsi que le changement et l'ajout de certaines clauses afin de mettre le contrat en conformité avec le nouveau règlement financier" ("as well as the modification and the addition of certain clauses with a view to ensuring the contract's conformity with the new Financial Regulation").

(6) Opinion of the CAM of 19 February 2004

The contents of the opinion of the CAM are set out in the file note summarised under 2 above.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further observations:

The documents submitted by OPOCE described the procedures, but failed to reveal the details of the most crucial decisions. By providing a large amount of mainly irrelevant documents and describing in great detail the procedural aspects of its decisions, OPOCE had tried to distract the reader from the underlying issues. Since the appointment of Mr L. to his present position in 2001, the complainant's software solutions had systematically been excluded from all contracts awarded by OPOCE.

As regards tender no 2034, the Evaluation Committee had knowingly or unknowingly made serious mistakes. The relevant product had been provided to users eight months later than planned and had an inferior functionality and performance. The complainant again referred to the details set out in the list that had been sent to OPOCE on 20 June 2003. The relevant mistakes had cost the complainant loss of direct income over a period of five years for which it sought compensation.

In so far as the cancellation of tender no 6019, lot 1 was concerned, it was astonishing that the Evaluation Committee had awarded the complainant's consortium only 53,7 points and thus less than the minimum of 80 points required. It should be noted that, at the time of the tender, its software had been used for four years for the relevant publication, whereas the software that SZ was proposing to use had never been used or tested on a project of this complexity and remained mainly still to be developed. The financial offers of the bidders had not been mentioned, but its own had surely been the lowest. The Ombudsman had the possibility to ascertain the relevant amounts. The European taxpayer had to pay a huge surcharge (an "exorbitant" amount) for a technically inferior solution. There had been no reason to cancel this tender.

As regards the extension of contract no 1695, the software that SZ had offered on 3 December 2003 had by no means been in a position to run for this application, even without taking into account the nine new languages that were to be added. Euroscript (a partner of SZ) had asked the complainant, on 21 November 2003, to let it know its conditions in case OPOCE should decide to extend contract no 1695. In its reply sent the same day, the complainant had quoted an amount of EUR 75 000. Surely no other organisation could have quoted a cheaper price. On 3 December 2003, Euroscript had telephoned the complainant to say that OPOCE was waiting for its response regarding the costs of developing new features in the application before giving SZ the order for the extension of the contract. In its reply of 4 December 2003, the complainant had expressed its surprise at this request and had referred to its letter of 21 November 2003. A copy of this message had been sent to OPOCE. On 5 December 2003, Euroscript had asked for an estimate of the cost for adding (1) the nine new languages, and (2) additional features to the application "as described in Invitation to tender No. 6019". In its reply of 8 December 2003, the complainant had pointed out that item (2) was new and that, up to that point, the discussion had only been about an extension of contract no 1695. Any quote as regards item (2) would require further information from OPOCE on what was needed. In the light of these exchanges, OPOCE could thus have had no doubt that the complainant was ready to continue to provide the services that had been provided under contract no 1695 at an acceptable cost.

Article 123 (2) of Regulation 2342/2002 provided that the number of candidates in negotiated procedures could not be less than three and it had, in any event, to be sufficient to ensure genuine competition.

Article 126 stipulated the cases in which it was possible to use the negotiated procedure without prior publication of a contract notice. None of the conditions for these cases were fulfilled here.

Even now (in August 2004), the applications provided by SZ were in every aspect inferior to the publications running with the complainant's software. (The complainant provided a further schedule highlighting the alleged defects of SZ's applications. According to this list, the new version was, for example, between two and ten times slower that the old product that had used the complainant's software.) In addition to that, the complainant's software modules were still used in many sections of SZ's applications without its permission. (The complainant provided a further list to indicate the fields in which its software was being used.) On the basis of its own software, adding the nine new languages and a few modifications would have been a simple operation.

The complainant concluded by saying that it sought official disclosure of facts, an admission of the mistakes that had been made, a reprimand of the official concerned and compensation for loss of income.

Further inquiries

After careful consideration of OPOCE's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The first request for further information

On 29 September 2004, the Ombudsman therefore wrote to OPOCE to ask for information on the following issues:

(1) As regards tender no 2034, the Ombudsman asked OPOCE to comment on the complainant's detailed and specific arguments to show that the successful bidder had failed to provide a product meeting the tender specifications. The Ombudsman further asked OPOCE to explain, if the demands on the product to be provided that were made in the tender specifications had indeed been lowered, why and on what legal basis this had been done.

(2) As regards tender no 6019, lot 1, the Ombudsman asked OPOCE to comment on the complainant's argument that the fact that only two bids could seriously be considered by OPOCE had been generally known at the time. The Ombudsman further requested OPOCE to explain on what legal basis it had proceeded to its decision to cancel the said tender.

(3) As regards the extension of contract no 1695, the Ombudsman noted that the complainant had argued that the provision on which OPOCE had relied (Article 126 (1) (c) of Regulation 2342/2002) was not applicable. According to this provision, a negotiated procedure can be used without prior publication of a contract notice where there are "reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities". The Ombudsman asked OPOCE to comment (a) on the complainant's argument that, if confidential information had been leaked, this must have been done by the Evaluation Committee or OPOCE itself, and (b) on the complainant's further arguments based on Articles 123 and 126 of Regulation 2342/2002.

(4) The Ombudsman noted that the complainant had argued that it would have been relatively easy and cheap to add the nine new languages and some further additions to the software it had developed, which had been used until 1 May 2004. He therefore asked OPOCE to explain why it had nevertheless decided to accept the proposal SZ appeared to have made in its letter of 3 December 2003 to use a new software and thus effectively to use the technical solution that had been proposed in the context of tender no 6019, lot 1. The Ombudsman also asked OPOCE to comment on the complainant's detailed and specific arguments according to which the applications provided by SZ and its new partner were in every aspect inferior to the previous publications running with the complainant's software and that the complainant's software modules were still used in many sections of SZ's applications without the complainant's permission.

(5) The Ombudsman requested OPOCE to provide copies of (a) SZ's letter of 3 December; (b) the reply sent by Mr L. on 5 December 2003; and (c) the latter's two notes for the file of 22 and 23 December 2003. He added that, if these documents should refer to financial details, the latter should of course be blanked out on the copies to be provided. The Ombudsman further pointed out that these copies would also be forwarded to the complainant for its observations and that, if OPOCE should consider that these documents or any of them contained confidential issues and should therefore not be disclosed to the complainant, he would proceed to an inspection of these documents instead.

(6) The Ombudsman noted that, in OPOCE's letter of 4 March 2004 to the complainant, it had taken the view that SZ had remained the sole contractor as regards contract no 1695 and that, under Article 13 (2) of this contract, the contractor had to submit to OPOCE a prior written request for agreement in case it wished to use a new sub-contractor. He asked OPOCE whether any such request had been made by SZ in the present case and, if so, how and when OPOCE had dealt with this request.

(7) The Ombudsman also asked OPOCE to provide more specific information regarding the appraisal of the two bids that had initially been selected in tender no 6019, lot 1.

The request for a supplementary opinion

In his letter of 29 September 2004, the Ombudsman also asked OPOCE to provide an additional opinion regarding the complainant's claim asking for a reprimand of the official concerned (Mr L.), given that OPOCE had not dealt with this claim in its opinion.

The original version of OPOCE's reply

OPOCE sent its reply on 15 November 2004, together with six enclosures. In this reply, OPOCE stressed that some of the information provided in the enclosures to its letter was confidential and should not be disclosed to the complainant. By letter of 23 November 2004, the Ombudsman therefore invited OPOCE to provide non-confidential versions of these enclosures. In his letter, the Ombudsman also invited OPOCE to provide more specific information in relation to a number of issues that he described in this letter.

The first amended version of the reply

On 17 December 2004, OPOCE replied to the Ombudsman's letter of 23 November 2004 and provided new versions of the relevant enclosures of its letter of 15 November 2004. However, OPOCE still insisted that parts of these documents should not be forwarded to the complainant. OPOCE also provided further information on the issues that the Ombudsman had set out in his letter of 23 November 2004.

On 7 January 2005, the Ombudsman therefore asked OPOCE to clarify certain issues concerning the confidential nature of some of the documents it had submitted. The Ombudsman also returned the originals of the other enclosures that OPOCE had asked him to treat as confidential.

The second amended version of the reply

On 20 January 2005, OPOCE replied to the Ombudsman's letter of 7 January 2005. OPOCE confirmed that parts of the enclosures that it had hitherto considered as confidential could be disclosed to the complainant.

On 26 January 2005, the Ombudsman returned those parts of the said enclosures that OPOCE regarded as confidential.

OPOCE's replies of 15 November 2004, 17 December 2004 and 20 January 2005 (together with the enclosures in their final, accessible version) were forwarded to the complainant for its observations.

The contents of OPOCE's reply of 15 November 2004

In its letter of 15 November 2004, OPOCE made the following comments:

As regards tender no 2034, reference was made to a note for the file that was dated 15 November 2004 and that had been drawn up by the head of OPOCE's unit Access to Law (as it was called at the time). According to that note, if the demands on the product to be provided as per the tender specifications had been lowered, there had been no legal basis for doing so.

According to above-mentioned note for the file, the first commercial deliveries of CD-ROMs under the contract had been made after the date foreseen in the call for tender (13 February 2002). However, this date in the call for tender had been accompanied by the words "subject to the authorisation of OPOCE". Moreover, the team in charge of the matter at OPOCE had been new and thus certain action to be taken by part of OPOCE had been delayed.

The note for the file commented on the detailed list of alleged insufficiencies of the new product that the complainant had submitted. Among other things, the note contains the following statements:

- The specifications of the old CD-ROM had been set as a 'best recommendation'. This did not mean that the new product did not function with a 24 MB RAM version. The call for tender had furthermore indicated that the product had to match the minimum requirements referred to by the complainant or fit "any computer and software agreed between OPOCE and the contractor" ("tout ordinateur et logiciel convenus entre [OPOCE] et le contractant").

- The function of browsing a field-specific term frequency list (dictionary) and of copying terms from this list to the search form in ascending numerical order was not offered by AIS.

- The speed of replies always depended on the power of the hardware used and on the size of the data concerned.

- As regards the capacity to print all documents without having to open them one by one, several technical solutions had been envisaged but none had been satisfactory. The function had in the end been cancelled.

- As regards the capacity to see several documents simultaneously, it was not possible to do this.

- In conclusion, certain requirements had either met with difficulties that turned out to be practically insurmountable, or had proved to be redundant. These requirements had therefore been dropped. However, the fact that certain requirements had not been included in the final product did not mean that the software did not allow them to be fulfilled or that the contractor had not been able to meet them.

- Besides, there was also a certain margin of discretion, although this was limited.

In so far as the cancellation of tender no 6019, lot 1 was concerned, OPOCE did not agree with the complainant's view that the number of bids selected had been 'generally known at the time'. The only information that had been made available to the public (on the occasion of the public opening of bids) had been the number of bids submitted.

The decision to cancel the award procedure had been taken on the basis of Article 101 of Regulation 1605/2002. According to the interpretation of a similar rule by the European Court of Justice, such a decision was not limited to exceptional cases.

As regards the extension of contract no 1695, the "unforeseeable event" referred to in Article 126 (1) (c) of Regulation 2342/2002 had been the publication of an article in the press revealing confidential information. The cancellation of the award procedure had merely been the consequence of the unforeseeable event. The publication of this newspaper article was under no circumstances attributable to OPOCE. The internal investigation had not confirmed the complainant's allegation that the Evaluation Committee had been responsible for the leak of information.

Two other conditions that had to be met for this provision to apply, namely that the Communities' interests were likely to be jeopardised and that it was impossible to follow the ordinary procedure, had equally been fulfilled. OPOCE was obliged to ensure publication of the Official Journal in all official languages, which meant 20 languages from 1 May 2004 onwards. In order to fulfil this important obligation, it had been necessary to implement some modifications; the estimated time for implementation had been six months. It had thus been impossible to organise a new call for tender and to award the contract within the above-mentioned time limit.

As regards the arguments based on Article 123 of Regulation 2342/2002, for reasons of public interest and in order to ensure the continuation of a vital public service it had been essential to negotiate with the existing contractor, whom OPOCE had known to be capable of performing the contract.

As to the Ombudsman's fourth question, OPOCE only had second-hand knowledge of the amount of licence fees demanded by the complainant. It was not clear what the amount of EUR 75 000 mentioned by the complainant referred to. As regards the allegation that the complainant's software modules were still being used in SZ's applications without the complainant's permission, OPOCE was neither aware of nor concerned by this issue.

As regards the Ombudsman's fifth question, copies of non-confidential versions of the following relevant documents were submitted to the Ombudsman:

1) Letter sent by SZ to OPOCE on 3 December 2003

This letter refers to OPOCE's intention to

"- extend contract No 1695 (...) for one additional year from 1 May 2004,

- support additional languages required by the EU enlargement on May 1 st 2004,

- implement additional features as publicly announced by the Publications Office."

The letter refers to an enclosed proposal with "the additional features as described in the technical specifications of tender No 6019-1." These additional features are set out in point 4 of the proposal. According to the letter, SZ proposed to "replace the software architecture and related software platform".

2) Letter from Mr L. to SZ of 5 December 2003

In his reply to SZ, Mr L. states that OPOCE marks its agreement, in principle, with the technical proposal of 3 December 2003.

3) Note for Mr L.'s file of 22 December 2003

This note evaluates the offer made by SZ on 18 and 19 December 2003. According to Mr L., this offer was perfectly acceptable. Mr L. noted, however, that it involved an increase in the variable production costs and a very marked increase in the costs of developing and of using licences. In Mr L.'s view, the explanations given by SZ in this regard appeared to be acceptable. According to Mr L., SZ had indicated that the exorbitant costs ("[c]oûts exorbitants") asked for by the complainant (EUR 1.5 million for 8 000 users) had led it to look for new technical solutions. Still according to this note, SZ had also wished to replace the existing software architecture which had become outdated from a technological point of view ("devenue dépassée technologiquement").

4) Mr L.'s note for the file of 23 December 2003

In this note, Mr L. explained why it was in his view imperative to sign the contract with SZ. Apart from the need to offer the relevant service in 20 languages, Mr L. stated that there was a need to take into account the necessity to evolve the TED service in order to adapt it to the imminent changes of the legislative framework for public procurement.

As regards the Ombudsman's sixth question, there had been no specific request for agreement to use a new sub-contractor made by SZ. However, the new sub-contractor had been mentioned in the offer submitted by SZ, in the context of the extension of contract no 1695. By accepting this offer and subsequently signing the above-mentioned extension, OPOCE had implicitly given its consent to the use of the new sub-contractor.

As regards the Ombudsman's seventh question, OPOCE originally submitted a copy of the minutes of the meeting of the Evaluation Committee. However, given that OPOCE asked the Ombudsman to treat this document as confidential, the Ombudsman returned this enclosure to OPOCE.

As regards the complainant's claim for a reprimand of the staff member concerned, there was no basis for the said official to be subjected to a disciplinary procedure. The official had not been a member of the Evaluation Committees in calls for tender no 2034 and no 6019, nor had he been responsible for the decision to cancel the award procedure. Furthermore, the complainant would, in any event, not have been awarded the contract in call for tender no 6019, lot 1, even if the latter had not been cancelled.

The Ombudsman's letter of 23 November 2004

On 23 November 2004, the Ombudsman wrote to OPOCE in order to ask it to provide non-confidential versions of those annexes to its reply of 15 November 2004 that, in its view, contained confidential information.

The Ombudsman further pointed out that, in the first question set out in his letter of 29 September 2004, he had invited OPOCE to comment on the complainant's detailed and specific arguments to show that the successful bidder as regards tender no 2034 had failed to provide a product meeting the tender specifications. In the Ombudsman's view, OPOCE's comments, in its letter of 15 November 2004, did not deal clearly enough with the arguments submitted by the complainant, in particular certain ones that the Ombudsman listed in his letter of 29 September 2004. He therefore asked OPOCE to review these comments with a view to providing more precise replies to the points raised by the complainant.

The Ombudsman further noted that, in his fourth question, he had asked OPOCE to explain why it had chosen to accept the proposal SZ appeared to have made in its letter of 3 December 2003 to use new software and thus to use effectively the technical solution that had been proposed in the context of tender no 6019, lot 1. He added that he had also asked OPOCE to comment on the complainant's detailed and specific arguments according to which the applications provided by SZ and its new partner were in every aspect inferior to the previous publications running with the complainant's software. The Ombudsman pointed out that these issues did not appear to be addressed in OPOCE's letter of 15 November 2004. He therefore asked OPOCE to provide him with its comments on these issues.

OPOCE's reply of 17 December 2004

In its reply of 17 December 2004, OPOCE made the following further comments:

As regards tender no 2034, it had been stipulated that the response to a simple search based on a single criterion should be delivered within two seconds and that, in the case of more complex searches, the system had to inform the user of the ongoing search. A direct comparison on the basis of the machine capacity indicated by the complainant was no longer possible, given that such machines were now outdated. However, tests performed on the oldest equipment available (Windows NT 4.0 SP6, CPU 800 MHz, IE 5.5., 128 MB RAM) had provided the following results for a search on a single criterion:

- for the first search, results were displayed after 5 to 15 seconds;

- for subsequent searches, results appeared in less than two seconds.

The first search (conducted on a machine with substantially higher capacity than the one described by the complainant) was slower than the upper limit specified in the technical specifications of the call for tender. It was reasonable to assume, with hindsight, that the two-second limit fixed in the technical specifications had not been realistic.

OPOCE had asked its Internal Auditor to examine the file on the call for tender. In his note, dated 16 December 2004 (a copy of which OPOCE submitted to the Ombudsman), the Internal Auditor pointed out that the minutes of the Evaluation Committee revealed an error in the calculation of the total points for SZ, which should have been 37 instead of 35. The Internal Auditor also noted that contract no 2034 (which had been due to end in November 2006) would be cancelled as of November 2005 because, among other things, the budget limit would be reached by then. A new call for tender would be launched in the first quarter of 2005.

In so far as the cancellation of tender no 6019, lot 1 was concerned, OPOCE referred to a note for the file dated 17 December 2004. OPOCE added that, for all the services concerned, new public procurement procedures were either underway or soon to be launched.

In the note for the file dated 17 December 2004, Mr L. explained that OPOCE had accepted SZ's initiative to change its software (1) because the proposal was the most economically advantageous solution, "in particular due to the higher costs for royalties requested by [the complainant]", and (2) because SZ had been committed to the deadline of implementing all the changes by 1 May 2004 with 'committed partners and well established industry standard tool (Oracle, Eversuite)'. Mr L. acknowledged that, in May 2004, both TED and the CD-ROM had had performance problems and had lacked certain functionalities that had been available previously. According to Mr L., these problems had however gradually been solved. Mr L. pointed out that similar difficulties had been encountered in spring 2002 with the complainant's software when new standard forms had been introduced.

According to the note, tests had been performed both on recent and on outdated PCs. These tests had shown that a simple search using the complainant's software took 1,7 seconds (recent PCs) and 11,5 seconds (outdated PCs) respectively, whereas the figures for the software that was now used were 2,4 and 29,1 seconds respectively. Mr L. noted that other tests had confirmed that the new software was often quicker for complex searches or operations (on recent PCs). According to the note, more than 85 % of OPOCE's users had recent PCs. The complainant's claim that the new products were in every respect inferior to the old ones using its own software was therefore not correct. Mr L. added that no software component implying the payment of royalties to the complainant had been in use since 1 May 2004.

The Ombudsman's letter of 7 January 2005

On 7 January 2005, the Ombudsman wrote to OPOCE in order to ask it to review its claim that a certain document should be considered confidential in its entirety.

OPOCE's reply of 20 January 2005

In its reply of 20 January 2005, OPOCE agreed that parts of the document to which the Ombudsman had referred could be released to the complainant.

OPOCE also made the following further comments:

As regards the 'additional features' mentioned by the Ombudsman in relation to the extension of contract no 1695, it was important to note that both for the dissemination in TED and CD-ROMs, contract no 1695 fully provided for such adaptations and for the implementation of additional features. Such adaptations had indeed been introduced during the life of the contract.

Similarly, the contractor had the possibility and the responsibility to put forward proposals to ensure the quality of the service or to improve it.

Further to the cancellation of call for tender no 6019, lot 1 and the ensuing decision to extend contract no 1695, SZ submitted an offer for:

- the changes to be implemented with a view to being operational on 1 May 2004,

- changes which were foreseeable during the extension period in view of the modifications underway in the public procurement directives, and

- additional features.

OPOCE ordered none of these 'additional features'. SZ proposed to implement 'some enhancements'. This proposal was accepted by OPOCE.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

The documents provided by OPOCE demonstrated categorically that serious mistakes had been made. It could even be asked whether these were simple mistakes or whether they had been deliberate acts committed by the official in charge of the matter. Furthermore, during the period concerned OPOCE had tried to cover up what had happened and had misinformed the Ombudsman, something which deserved the latter's particular attention.

As regards tender no 2034, the successful bid had not met (and was partially still not meeting) the tender specifications. OPOCE had thus either lowered the tender specifications (for which, according to OPOCE itself, no legal basis existed) or granted the contract to a company not meeting the tender specifications.

If only one further point had been given to SZ's offer at the evaluation, this offer would have been successful. SZ had been given 11 points out of 20 for criterion C1 ("Quality of the technical solution proposed, especially in terms of functionality of the proposed search and navigation software"), whereas AIS had been assigned 16 points. SZ's bid had offered full support for all the required functionalities, with the exception of one concerning "the printing of selected documents without having to open them one by one", which - according to OPOCE's note of 15 November 2004 - AIS had offered but was unable to implement. In addition to that, SZ had offered a range of relevant additional functionalities.

There were three possible explanations for the outcome of the call for tender: 1) AIS had offered more than it finally realised. In that case, OPOCE had lowered the demands, without any legal basis for doing so; 2) AIS had offered what was realised, which was much less than what had been required. In that case, the 16 out of 20 points awarded for functionality were far too high; and 3) AIS had offered more than what was realised, but less that what was required. In that case, the demands had been lowered and the points awarded had been too high.

The complainant added enclosures with detailed remarks on the individual functionalities concerned.

In so far as the cancellation of tender no 6019, lot 1 was concerned, not only the number of bids, but also the names of the bidders had been made public. It could easily be established from the third bidder's website that working for OPOCE and the EU had not been one of its main activities. Combined with the complexity of the products and services to be delivered and the important element of CD-ROM production, this had the result that, in the eyes of all concerned, this was not a serious bidder.

Article 101 of Regulation 1605/2002 allowed the contracting authority to abandon the procurement or cancel the award procedure. However, this provision obliged the contracting authority to explain the cancellation of tender no 6019, lot 1 to the tenderers. OPOCE had failed to do so.

As regards the extension of contract no 1695, OPOCE had ordered additional features from SZ in the letter sent by Mr L. on 5 December 2003. These "additional features" had been the same as those taken up in call for tender no 6019, lot 1. By placing an order for "additional features", OPOCE had thus financed their development and knowingly advantaged one of the contenders of an open tender procedure.

It was noteworthy that the decision to change the platform and to agree on the relevant costs had been taken before the CAM had been informed and asked for its approval.

In his notes of 22 December 2003 and 17 December 2004, Mr L. had made a number of statements that were totally untrue. The complainant had never asked for EUR 1.5 million. In its letter to Euroscript of 21 November 2003, the complainant had quoted an amount of EUR 75 000. The only way one could possibly arrive at an amount close to EUR 1,5 million was by taking the complainant's 'standard price-list' for the second half of 2003 and by multiplying the lowest amounts given there against a prolonged period of extension. However, this would be a falsification of reality. The complainant had never proposed to use its price-list as regards OPOCE or SZ and it had never used its standard prices for projects of this magnitude.

Mr L. had had no reason to conclude that the complainant's solutions were outdated.

OPOCE had ordered additional features from SZ, which in almost identical form had been part of the requirements formulated in call for tender no 6019, lot 1 and which had not strictly been necessary for the extension of the contract. OPOCE's statement, in its letter to the Ombudsman of 20 January 2005, that no additional features had been ordered, was therefore untrue and misleading.

In any event, Article 158 of Regulation 2342/2002 foresaw a threshold of EUR 162 293 for such expenditure.

As regards the responsibility of Mr L., the complainant submitted detailed comments to show that the problems that it had experienced stemmed from the fact that Mr L., a French national, preferred the search-engine run by Verity (an American company), which was used by AIS, a French company. The complainant stressed that the successful bidder in tender no 2034 had proposed and was using Verity software. According to the complainant, OPOCE's decision had cost the European tax-payer hundreds of thousands of Euro in unnecessary expenditure. The complainant also criticised the fact that OPOCE had financed the development of additional features, most of which had been carried out by EVER-Team, a French company. According to the complainant, this had had the result that SZ and its partners were now in a position to submit lower bids for future versions of the products and services concerned.

The complainant added a sworn statement made by Mr P., a former employee of Euroscript. In his statement, Mr P. pointed out that Mr L. had informed him in early 1999 that, for future tenders, only Verity's search-engine was to be used. Mr P. referred to the "commercial pressure" exerted by Mr L. on SZ/Euroscript to change their search-engine supplier.

The Ombudsman's second request for further information

In the light of the complainant's observations, it appeared that further information was necessary in order to enable the Ombudsman to deal with this complaint. On 5 July 2005, the Ombudsman therefore asked OPOCE (1) to comment on the further comments and evidence provided by the complainant in its observations, particularly as regards the role that Mr L. had (according to the complainant) played in this matter; (2) to specify whether Mr L. had or had not been a member of the Evaluation Committee for tender no 6019, lot 1; and (3) to explain on what factual basis Mr L. had, in his note for the file of 22 December 2003, stated that the complainant had asked SZ for an "exorbitant amount" (EUR 1,5 million) in licence fees, that this had led SZ to look for new technical solutions, and that the technology that had been used at the time (that is to say, the one based on the complainant's software) had become outdated.

OPOCE's reply

In its reply sent on 26 July 2005, OPOCE made the following comments:

As regards the role of Mr L., OPOCE's role remained unchanged. OPOCE disagreed with the complainant and found his observations incorrect. It should be emphasised that the Verity software, for which, according to the complainant, Mr L. had a preference, was not used either in the context of contract no 1695 or in the context of contract no 6019-1. The complainant's view that Mr L. was involved in the matter by influencing SZ's decisions due to his alleged preference for the Verity software was therefore completely unfounded.

Mr L. had not been either a member of the Evaluation Committee in tender no 6019-1 (which was not the same procedure as no 6019, lot 1) or in tender no 2034. He had only been a member of the Evaluation Committee in tender no 6019, lot 1, the procedure which had subsequently been cancelled following the decision taken by the Authorising Officer, without any intervention of the Evaluation Committee.

The note for the file of 22 December 2003 had been written in the context of the examination of the possibility to use a negotiated procedure (no 6029) to set up a contractual arrangement in view of the cancellation of the call for tender no 6019, lot 1. The procedure was to include, among others, the modernisation of the technology used and the implementation of certain additional features. The statement that the technology used under the then ongoing contract (that is to say, contract no 1695) had become outdated had referred only to this procedure and had merely expressed considerations relating to possible improvements to the quality of the services offered. However, it had subsequently been decided not to use procedure no 6029 and instead to proceed to the prolongation of the existing contract (no 1695). The additional features mentioned above had not been implemented. They would only be implemented in the framework of contract no 6019-1, signed on 16 June 2005, together with all the other improvements described in the tender specifications.

As regards the 'exorbitant amount' mentioned in the note for the file of 22 December 2003, this information had been given to OPOCE as explained in OPOCE's letter to the Ombudsman of 15 November 2004.

OPOCE concluded by stating that the complainant's observations of 29 March 2005 contained numerous instances of incorrect information as well as false accusations.

The complainant's observations

In its observations, the complainant made the following comments:

OPOCE had again failed to provide material evidence to refute the facts submitted by it (the complainant).

As regards the contents of OPOCE's reply, the following comments had to be made:

As head of OPOCE's Multimedia unit, Mr L. had been directly responsible for each of the three cases put forward in the complaint. As regards the extent of Mr L.'s involvement, reference was made to the information provided in the observations submitted in the letter of 29 March 2005. Tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3, which had been referred to in the complaint but not taken up for inquiry by the Ombudsman, was of important relevance to the present case. In this tender, the Commission had been looking for an "Indexing and Search Tool" ("ISTO") for all relevant departments of the EU, including OPOCE. For all practical purposes, the company winning this tender would have been in a position to be called the 'main supplier of Software and Services' for all projects regarding full-text indexing and retrieval within the EU for the foreseeable future. The bidder that won this contract was using Verity software. Mr W., the person responsible for the evaluation of the off-line lot (lot 2) and half of on- and off-line bid (lot 3) and one of the two members of the technical evaluation committee, had been reporting directly to Mr L. The complainant submitted a copy of a contract notice published by OPOCE in August 2005 in which the use of the Verity software was foreseen. According to the complainant, this contract notice resulted from the above-mentioned tender organised by the Commission.

In the context of the extension of contract no 1695, OPOCE had ordered 'additional work' above and beyond the implementation of the nine new languages that was strictly necessary for the continuation of services. In its letter to the Ombudsman of 20 January 2005, OPOCE had stated that it had ordered none of these 'additional features'. However, in his letter of 5 December 2003 expressing OPOCE's agreement 'in principle' with SZ's proposal of 3 December 2003, Mr L. had clearly ordered these additional features. These additional features, and they alone, had been the reason for the exorbitant amount of money paid by OPOCE as part of the extension of contract no 1695. In its letter to the Ombudsman of 26 July 2005, OPOCE claimed that the 'additional features' had not been implemented as part of the extension of contract no 1695. However, five of the ten new developments that had been requested as part of the specifications under tender no 6019, lot 1 had been implemented prior to 29 March 2005 (the date of the complainant's observations on OPOCE's letter of 20 January 2005). This represented a substantial part of the new development work to be carried out under tender no 6019, lot 1. It was to be assumed that SZ and its sub-contractor were paid for these developments. This enabled SZ and its sub-contractor to place a much better bid for the new tender no 6019-1.

OPOCE had mentioned that a new contract for tender no 6019 had been signed on 16 June 2005, but omitted to indicate that this contract had again been signed with SZ. The 'Contract award notice' concerning this contract had not yet been published on TED-online. Furthermore, a third party (independently of the complainant) had in the meantime filed a complaint against the proceedings leading to this award decision.

As regards the 'exorbitant amount', OPOCE had stated that it had only mentioned this because it had received such information from SZ. However, in that case OPOCE had been aware of this falsification a long time before. OPOCE had received a letter from the complainant concerning this issue on 4 December 2003. On 24 August 2004, the complainant had submitted a copy of the letter it had sent to Euroscript on 21 November 2003 and in which the costs that would be charged (EUR 75 000) had been mentioned. A copy of this letter had been forwarded to OPOCE by the Ombudsman on 29 September 2004. Given that OPOCE had thus been informed of these facts, it had to be asked why it had nevertheless signed a major new contract on 16 June 2005 with a company that had provided it with false information.

The complainant stated that it sought an admission of the mistakes made, a reprimand of the officials concerned(4) and compensation for the damages that it had incurred and for loss of income. It asked the Ombudsman not to defer his extremely difficult decision on the present case any further.

The complainant furthermore stressed that it had taken care not to put forward any new material that would require further inquiries by the Ombudsman. It added that if the Ombudsman were to take the view that these observations nevertheless contained new material, he should inform it immediately so as to allow the complainant the opportunity to withdraw this material.

THE DECISION

1 Introductory remarks

1.1 The present complaint was submitted by a Dutch company which, for a number of years, has been developing navigation and retrieval software for electronic publications of the EU, including the electronic versions of the Official Journals. Until 1 May 2004, its software solutions were used by the Office for Official Publications of the European Communities ("OPOCE") for the daily production of the Supplement to the Official Journal both on CD-ROM and Internet (TED-online).

1.2 According to the complainant, a change regarding the officials responsible at OPOCE that took place in 2000/2001 had the result that, as of that time, every effort appeared to be made systematically to keep its products from being selected for the tasks that are the subject of tenders. The complainant referred to four cases in this context which are summarised below. In the complainant’s view, although each of these cases (and in particular the third one) deserved particular attention, it was the combination of these cases which caused concern and threatened to put the future of one of the most sensitive publications of the EU in jeopardy as from 1 May 2004.

1.3 On the basis of the information provided by the complainant in its complaint, the basic facts of the above-mentioned four cases may be summarised as follows:

(1) Tender no 2034

In 2001, OPOCE published a call for tender for the production and duplication of a CD-ROM containing Official Journal L and a CD-ROM containing Official Journal C in all official languages with consultation aids. The contract was to be awarded to the economically most advantageous tender. The complainant and its project partner, Saarbrücker Zeitung Verlag und Druckerei GmbH ("SZ"), a German company, submitted a bid. On 6 November 2001, the contract was awarded to another bidder, AIS Berger-Levault ("AIS"). This company had submitted the most expensive bid.

(2) Tender no 6019, lot 1

In 2003, OPOCE published an invitation to tender for the provision of services in relation to the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal (tender no 6019). Lot 1 concerned the production of the TED website and the CD-ROM for the S series of the Official Journal. The products covered by this tender had hitherto been provided by SZ and its sub-contractor, the complainant, under a contract that had been awarded five years earlier pursuant to tender no 1695. Contract no 1695 was due to expire on 30 April 2004.

The complainant participated in a bid that was submitted by Grafidata b.v., a Dutch company. The consortium also included a third partner, DOCData France, a French company. SZ also submitted a bid, together with a new partner. According to the complainant, SZ had informed it that its change of software partner had been due to a 'change of sentiment' [NOTE the usual expression is 'change of heart'] towards the complainant by OPOCE as a result of a change in OPOCE's staff.

On the 'information day', 52 companies were represented. Apart from the complainant's consortium and SZ's consortium, only one other company subsequently put in a bid. By letter of 24 October 2003, OPOCE informed Grafidata b.v. that the relevant invitation to tender had been cancelled. In reply to a request for an explanation sent by Grafidata b.v., OPOCE referred to an article published in a French newspaper on 2 October 2003. This article quoted the managing director of DOCData France as saying that, from the 52 companies that had initially shown an interest in the call for tender, only two were left: "Deux ont été sélectionnés [two have been selected], un consortium germano-luxembourgeois et [the complainant's consortium]". OPOCE took the view that confidential information had thus been made public.

(3) Extension of the contract awarded under tender no 1695

After the cancellation of call for tender no 6019, lot 1, OPOCE decided to extend contract no 1695 for a limited period of time so as to make it possible to organise a new call for tender. SZ continued to be the main contractor as regards the extended contract. OPOCE accepted, however, that SZ use its new sub-contractor instead of the complainant to provide its services.

(4) Tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3

In 2003, the Commission published a call for tender for 'ISTO Tools' ("Indexing and Searching Tools"). By letter of 16 March 2004, the Commission informed the complainant that its offers had been rejected. According to the Commission, the offers for lots 1 and 3 had failed to comply with the criterion regarding the technical capacity and the offer for lot 2 had not passed the technical evaluation.

1.4 In its complaint to the Ombudsman, the complainant made the following allegations:

(1) OPOCE’s decision not to award the contract under tender no 2034 to the complainant and its partner had not been in conformity with the rules applicable in the matter.

(2) OPOCE’s decision to cancel tender no 6019, lot 1 had not been in conformity with the rules applicable in the matter.

(3) The extension of the contract awarded under tender no 1695 had had no legal basis and would only have been possible if the complainant had continued to participate in the contract.

(4) The Commission had been wrong to reject its offers made under tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3.

(5) OPOCE had systematically tried to keep the complainant’s products from being selected for tasks that are tendered.

The complainant claimed that the mistakes made should be rectified, that it should be granted compensation for loss of income and that the official responsible for the relevant acts should be reprimanded.

1.5 Upon having examined the complaint, the Ombudsman informed OPOCE of the complaint and asked it to submit an opinion on the allegations numbered 1, 2, 3 and 5 and on the complainant’s claims. As regards the fourth allegation, the Ombudsman noted that, according to Article 2 (4) of the Statute of the European Ombudsman, he could only deal with a complaint after the appropriate prior approaches to the administration had been made. No such prior approaches appeared to have been made to the Commission regarding the issue raised by the fourth allegation. The Ombudsman therefore informed the complainant (and OPOCE) that this allegation was thus inadmissible and that it would not be covered by the present inquiry.

1.6 After having received OPOCE's opinion on the complaint, the Ombudsman addressed two requests for further information to OPOCE. In its observations (lodged on 30 September 2005) on OPOCE's reply to the second of these requests, the complainant submitted that the call for tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3, which had been organised by the Commission, was of important relevance to the present case. The Ombudsman considers that, in order for him to be able to take into account, in the present inquiry, the arguments that the complainant submitted in this context, OPOCE would have to be given the opportunity to comment on them. However, the complainant stressed, in the very same observations, that it had taken care not to put forward any new material that would require further inquiries by the Ombudsman. The complainant added that, if the Ombudsman were to take the view that these observations nevertheless contained new material, he should inform it immediately so as to allow it the opportunity to withdraw this material. In these circumstances, the Ombudsman considers that it is in the best interest of both parties that the arguments relating to the call for tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3 should not be examined in the context of the present inquiry.

1.7 In its observations on OPOCE's opinion, the complainant pointed out that, in so far as the cancellation of tender no 6019, lot 1 was concerned, it was astonishing that the Evaluation Committee had awarded its (the complainant's) consortium only 53.7 points and thus less than the minimum of 80 points required. The complainant stressed that at the time of the tender, its software had been used for four years for the relevant publication, whereas the software that SZ had been proposing had never been used or tested on a project of this complexity and had remained mainly still to be developed. It also surmised that its financial offer had surely been the lowest. However, given that the complainant has not made any concrete allegations or claims in this context, the Ombudsman considers that there are no grounds for an inquiry into the results of the evaluation of the bids submitted in response to tender no 6019, lot 1. The Ombudsman considers it appropriate to recall that this call for tender was, in any event, cancelled by OPOCE.

1.8 In its observations on OPOCE's reply to the Ombudsman's second request for further information, the complainant pointed out that the new call for tender no 6019-1 (replacing the one that had been cancelled) had led to the award of the contract to SZ. The complainant considered that SZ had provided incorrect information to the Commission in December 2003 as regards the complainant's requested fees. In the complainant's view, it had therefore to be asked why the Commission had signed a major new contract on 16 June 2005 with a company that had provided it with false information. Given that the complainant has not made any concrete allegations or claims in this context and given that no prior approaches appear to have been made with regard to this issue, the Ombudsman considers that there is no need for him to consider whether an inquiry into the award of this new contract would be warranted. The Ombudsman notes that, according to the complainant, a third party has in the meantime filed a complaint against the proceedings leading to this award decision. It may be appropriate to point out that this complaint was not lodged with the Ombudsman.

1.9 In order to avoid any possible doubts, it may further be appropriate to recall that the Ombudsman can only deal with complaints against Community institutions and bodies. The present inquiry thus focuses exclusively on possible instances of maladministration committed by OPOCE, and not any other bodies or companies like SZ. The Ombudsman notes, however, that the complainant appears to have brought legal proceedings against the latter company.

1.10 In its complaint and in its observations on OPOCE's opinion, the complainant submitted that its software modules were still being used, without its permission, in many sections of the applications provided by SZ and its new partner under the extended contract no 1695. In its reply to the Ombudsman's first request for further information, OPOCE pointed out that it was neither aware of nor concerned by this aspect of the case. In a note dated 17 December 2004, which was submitted by OPOCE together with its reply to the first request for further information, Mr L. pointed out that no software component which required the payment of royalties to the complainant had been in use since 1 May 2004. The Ombudsman considers that any illegal use of the complainant's software would have to be answered for by SZ or its new partner. It appears that the complainant has already taken legal action against SZ. The present inquiry will therefore not deal with this aspect of the case.

1.11 Before dealing with the substance of the case, the Ombudsman considers it appropriate to stress that all efforts have been undertaken in the present case to obtain the views of the Community body concerned on all the allegations and claims made against it. After having forwarded the complaint to OPOCE and after having received the latter's opinion thereon, five letters of further inquiries were sent to OPOCE. These letters (1) concerned issues of confidentiality as regards documents submitted by OPOCE; (2) contained precise questions asking for further information; and (3) included further material and correspondence obtained from the complainant in the course of the inquiry, on which OPOCE was invited to comment. In view of the above, the Ombudsman takes the view that OPOCE had every opportunity to defend itself against the allegations and claims made by the complainant.

1.12 The Ombudsman would further like to stress that OPOCE has co-operated well in the present case, in particular by responding rapidly to the Ombudsman's letters and by providing access to numerous internal documents that have greatly assisted the Ombudsman in examining the complaint. In its observations on OPOCE's reply to the first request for further information, the complainant submitted that OPOCE had tried to cover up what had happened and had misinformed the Ombudsman. The Ombudsman considers that, whilst it was necessary, on several occasions, to ask OPOCE for further and better particulars during the present inquiry, there is nothing to suggest that OPOCE tried to cover up what had happened or even to misinform the Ombudsman. In these circumstances, the Ombudsman considers that no further inquiries are needed as regards this aspect of the case.

2 As regards OPOCE's decision not to award the contract under tender no 2034 to the complainant and its consortium

2.1 The contract under tender no 2034 was awarded to AIS on 6 November 2001. On 20 June 2003, the complainant wrote to OPOCE in order to ask for replies to certain questions concerning this award. Among other things, the complainant submitted that, a year and a half after the award, the successful bidder had still not provided a product meeting the tender specifications. The complainant enclosed a list setting out the requirements that, in its view, had not been met. In its reply of 14 August 2003, OPOCE confirmed that the bid selected had been the most economically advantageous on the basis of the award criteria, that the relevant CD-ROM had been available since July 2002 and that the delay had been due to OPOCE. As regards the technical issues, OPOCE referred to the fact that the call for tender had mentioned that "specifications will be able to change during the period of validity of the contract according to the market trends".

2.2 In its complaint to the Ombudsman, the complainant alleged that OPOCE’s decision not to award the contract under tender no 2034 to it and its partner had not been in conformity with the rules applicable in the matter.

2.3 In its opinion, OPOCE submitted that contract no 2034 had been signed with AIS after a call for tenders that had been in conformity with EU directives on public procurement. It pointed out that call for tenders 2034 had been submitted to the Advisory Committee on Procurements and Contracts ("ACPC"), which had delivered a positive opinion on it on 19 September 2001.

2.4 In its observations on OPOCE's opinion, the complainant took the view that the Evaluation Committee had knowingly or unknowingly made serious mistakes. According to the complainant, the relevant product had been brought to users eight months later than planned and had an inferior functionality and performance. The complainant again referred to the details set out in the list that had been sent to OPOCE on 20 June 2003.

2.5 In a first request for further information sent on 29 September 2004, the Ombudsman asked OPOCE to address certain issues concerning the award of the relevant contract. OPOCE replied to this request and submitted a note on 15 November 2004. By letter of 23 November 2004, the Ombudsman asked OPOCE to provide more specific information in relation to a number of issues that he described in his letter. OPOCE replied to this request on 17 December 2004. Both replies were forwarded to the complainant who submitted observations. The substance of OPOCE's replies and of the complainant's observations will be considered later in the context of the examination of the relevant issues. It appears appropriate, however, to mention at this point that, in OPOCE's letter of 17 December 2004, it pointed out that it had asked its Internal Auditor to examine the file on the relevant call for tender.

2.6 It should be noted at the outset that the bids submitted in response to the relevant call for tender have been examined by the Evaluation Committee set up for this purpose by OPOCE. The Ombudsman therefore considers that he cannot and should not substitute his own appraisal for that of the Evaluation Committee. In the Ombudsman's view, his examination must therefore be limited to ascertaining whether the decision as regards the award of the contract was taken in conformity with the rules. Since this decision was based on the results of the evaluation of the bids by the Evaluation Committee, the Ombudsman's examination must therefore concentrate on this evaluation.

The Ombudsman takes the view that two further conclusions follow from this approach.

First, in its complaint and in its observations, the complainant made various submissions to show that the services provided by AIS under the relevant contract had been delayed or failed to have the requisite quality. However, it is clear that the Evaluation Committee had to form its opinion on the basis of the information provided in the bids that had been submitted to OPOCE and that it was unable to take into account future developments. The complainant's arguments concerning delays and possible defects of the services provided by AIS would (if established) therefore only be relevant for present purposes if they led to the conclusion that the Evaluation Committee made a mistake when examining the bid submitted by AIS. In view of the following comments regarding the results of the work of the Evaluation Committee, the Ombudsman considers that there is no need to embark on this difficult and, to some extent, speculative examination in the present case.

Secondly, given that the members of the Evaluation Committee must be presumed (in the absence of evidence to the contrary) to possess special expertise as regards the assessment of the relevant bids, the Ombudsman is of the opinion that his examination should be limited to ascertaining whether the Evaluation Committee committed any obvious or serious errors.

2.7 The Ombudsman takes the view that such obvious and serious mistakes were indeed made in the present case.

2.8 Together with its opinion, OPOCE submitted a copy of a report concerning the relevant call for tender that its services had drawn up on 21 August 2002, with a view to submitting it to the ACPC. This report comprises various further documents including the report of the Evaluation Committee which is dated 3 August 2001. According to this latter report, the complainant's consortium was given a total of 35 points (calculated as the sum of 11, 10, 13 and 3 points for the four criteria concerned) by the evaluators (out of a total of 60 points) whereas AIS achieved 44,5 points. The points awarded to each bidder per criterion and the total number of points are both mentioned in the text and set out in a table. As regards criterion C1 (concerning the quality of the technical solutions proposed), the Evaluation Committee awarded 16 (out of 20 points) to AIS (compared to 11 points for SZ) and noted in this context that the solution proposed by AIS "correspond entièrement aux spécifications indiquées au cahier des charges" ("corresponds entirely to the requirements set out in the technical specifications"). The Evaluation Committee concluded that AIS also had the best quality/price ratio (10.11 as compared to 9.32 for the complainant's consortium).

2.9 The Ombudsman notes that it is clear that the points awarded to SZ were incorrectly summed up. The sum of 11, 10, 13 and 3 is 37, not 35. The first reference to this mistake in a document emanating from OPOCE appears to be the note of its Internal Auditor of 16 December 2004. Given that the mistake is obvious and could have been discovered by simply cross-checking the figures, it is difficult to understand why it was not discovered earlier. This is all the more surprising in view of the fact that the complainant had already written to OPOCE concerning the award decision in June 2003. If the results of the evaluation had been checked at the time, the relevant mistake could thus already have been discovered then.

2.10 The Ombudsman notes that the above-mentioned mistake does not immediately affect the result reached by the Evaluation Committee, given that the correct quality/price ratio for SZ amounts to only 9.85, which is still less than the ratio of 10.11 calculated for AIS. It should be noted, however, that the proposal of the Evaluation Committee was based on the quality/price ratios obtained by the various bidders. It could therefore have been expected that particular care had been taken to ensure that the calculation of this important figure was not fraught with errors. The fact that the Evaluation Committee manifestly failed to apply the requisite diligence as regards this figure has (as mentioned above) no immediate effect on the result of the evaluation. However, if mistakes were made in relation to such an important figure, it cannot be excluded that mistakes were also made as regards the determination of the points awarded as regards the individual criteria. It should be noted that SZ would have achieved the best quality/price ratio if it had been given one more point by the Evaluation Committee. The same result would have been obtained if AIS had received at least 1.5 points less.

2.11 It thus needs to be examined whether there were obvious or serious mistakes as regards the points awarded per criterion.

2.12 In its list submitted to OPOCE in June 2003, the complainant set out a number of arguments to establish its view that the offer of AIS did not meet all the specifications. OPOCE commented on these arguments in its letter and note of 15 November 2004 and in its letter of 17 December 2004. In its observations of 29 March 2005 on these replies, the complainant made further detailed comments regarding this aspect of the complaint. A copy of these observations was forwarded to OPOCE when the Ombudsman addressed a second request for further information (on other issues) to it. In its reply to that request, OPOCE did however not make any further detailed comments regarding the issue to be examined here.

2.13 The Ombudsman considers that he is not in a position to deal with all the arguments submitted by the complainant and the counter-arguments fielded by OPOCE, given that doing so would require both detailed technical expertise and a thorough examination of the bids concerned.

2.14 However, the Ombudsman notes the following:

* The complainant pointed out that the 'Specifications' provided (in point 3.2.8) that the response to a simple, single criterion search had to be provided within two seconds. According to the complainant, however, the product of AIS took 40 seconds (first search) and seven seconds (further searches). In its note of 15 November 2004 (which was submitted together with the reply of the same date), OPOCE took the view that the speed of replies always depended on the power of the hardware used and on the size of the data concerned. In the Ombudsman's view, this statement is certainly correct. However, it cannot alter the fact that specific demands concerning this issue were made in the 'Specifications'. In its letter of 17 December 2004, OPOCE submitted that a direct comparison on the basis of the machine capacity indicated by the complainant was no longer possible, given that such machines were now outdated. According to OPOCE, tests performed on the oldest equipment available had however shown that, for the first search, results were displayed after 5 to 15 seconds. OPOCE pointed out that it was reasonable to assume, with hindsight, that the two-second limit fixed in the technical specifications had not been realistic.

The Ombudsman notes that the complainant has argued that its own product allowed responses to simple, single criterion searches to be given within two seconds as required by the 'Specifications'. However, even assuming that OPOCE's view is correct, the fact remains that the product of AIS does not appear to have fulfilled the relevant criterion set out in the 'Specifications'.

The Ombudsman notes that OPOCE initially argued that the call for tender had mentioned that "specifications will be able to change during the period of validity of the contract according to the market trends". However, in its letter of 15 November 2004 OPOCE accepted that if the demands on the product to be provided as per the tender specifications had been lowered, there had been no legal basis for doing so.

* The complainant pointed out that the 'Specifications' demanded (point 3.2.6) that the product had to provide the function of browsing a field-specific term frequency list (dictionary) and of copying terms from this list to the search form in ascending numerical order. In its note of 15 November 2004, OPOCE admitted that this function was not offered by AIS.

* The complainant pointed out that the 'Specifications' demanded (point 3.1 "Généralités") that the product had to have the capacity to print all documents without having to open them one by one. In its note of 15 November 2004, OPOCE pointed out that several technical solutions had been envisaged in this regard but none had been satisfactory. According to OPOCE, the function had in the end been cancelled.

* The complainant pointed out that the 'Specifications' demanded (point 3.3.9) that the product had to have the capacity to visualise several documents simultaneously. In its note of 15 November 2004, OPOCE accepted that it was not possible to do this with the product offered by AIS.

2.15 The Ombudsman observes, in its note of 15 November 2004, that OPOCE argued, by way of conclusion, that certain requirements had met with difficulties that had turned out to be practically insurmountable, or had proved to be redundant. These requirements had therefore been dropped. According to OPOCE, however, the fact that certain requirements had not been included in the final product did not mean that the software did not allow them to be fulfilled or that the contractor had not been able to meet them. OPOCE further claimed that there was also a certain margin of discretion, although this was limited. The Ombudsman finds that these arguments are unconvincing. It appears obvious that the requirements to which OPOCE refers were only dropped after the contract had been awarded to AIS. It is appropriate to recall OPOCE's statement, in its letter of 15 November 2004, that if the demands on the product to be provided as per the tender specifications had been lowered, there had been no legal basis for doing so.

In any event, however, the Ombudsman is unable to see how the Evaluation Committee could, given the above circumstances, come to the conclusion that the offer of AIS "corresponds entirely to the requirements set out in the technical specifications". The Ombudsman further notes that the complainant has alleged, in its observations on OPOCE's reply to the first request for further information, that SZ's bid had offered full support for all the required functionalities, with the exception of one concerning "the printing of selected documents without having to open them one by one", which - according to OPOCE's note of 15 November 2004 - AIS had proposed but was unable to implement. OPOCE received a copy of these observations, but refrained from challenging this claim.

2.16 In view of the above, the Ombudsman concludes that the Evaluation Committee did indeed commit obvious and serious mistakes when evaluating the quality of the technical solution proposed by AIS in the present case.

2.17 As mentioned above (see point 2.6), however, the Ombudsman is unable to substitute his own appraisal for that of the Evaluation Committee. The Ombudsman considers nevertheless that good administrative practice requires that the decision of the Evaluation Committee be reviewed in the light of the above-mentioned facts. However, the Ombudsman can obviously not predict the result of such a review that would need to be carried out by OPOCE itself. It cannot be entirely excluded that the review to be carried out by OPOCE would lead to the result that the mistakes that were made in the call for tender did not affect the overall result, that is, that the bid submitted by AIS was the economically most advantageous one. In these circumstances, the Ombudsman considers that the complainant has not yet established its allegation that OPOCE's decision not to award the contract under tender no 2034 to it and its partner was not in conformity with the rules applicable in the matter.

2.18 It should be noted, however, that the sole reason for this finding is that OPOCE has so far refrained from carrying out a proper review as regards its decision to award the relevant contract. The Ombudsman notes that OPOCE has provided answers to certain questions in relation to this award. However, and as the complainant correctly observes, OPOCE has so far refrained from dealing with the substance of the case as such. The Ombudsman notes that OPOCE informed him that it had asked its Internal Auditor to examine the file on the call for tender. However, the note drawn up by this official on 16 December 2004 shows that this examination did not extend to the evaluation as such (with the above-mentioned exception of the finding that there had been an error in the calculation of the total points for SZ, which should have been 37 instead of 35).

2.19 In these circumstances, the Ombudsman considers that it is both appropriate and fair to find maladministration not as regards the complainant's allegation, but as regards OPOCE's failure to carry out a proper review of the matter. A draft recommendation that such a review should be carried out will therefore be made below.

2.20 In his note of 16 December 2004, OPOCE's Internal Auditor pointed out that contract no 2034 (which had been due to end in November 2006) would be cancelled as of November 2005 because, among other things, the budget limit would be reached by then. In these circumstances, the review to be undertaken by OPOCE would largely coincide with the examination as to whether damages should be paid to the complainant on account of the award of contract no 2034 (see below point 6.21 et seq.).

3 As regards the cancellation of call for tender no 6019, lot 1

3.1 The complainant alleged that OPOCE's decision to cancel call for tender no 6019, lot 1 had not been in conformity with the rules applicable in the latter. It argued that, in addition to its own bid and the one submitted by SZ's consortium, only one more bid had been presented and that it was generally known soon after the opening of the bids that this third bid could not be considered seriously, given that the bidder had no previous experience in the field. The complainant further submitted that the publication of the newspaper article could not have had any impact on the evaluation process and that, if there had been a leak of confidential information, it was very likely that it must have come from within OPOCE itself.

3.2 In its opinion, OPOCE pointed out that, on 15 October 2003, Mr M., the managing director of the complainant, had informed OPOCE by telephone that a member of the complainant's consortium had given an interview to a French newspaper, in which he mentioned its participation in the present call for tender. According to OPOCE, Mr M. had apologised for this behaviour and assured OPOCE that his company had nothing to do with this interview.

The article concerned quoted the managing director of DOCData France (a member of the complainant's consortium) as saying that, out of the 52 companies that had initially shown an interest in the call for tender, only two were left: "Deux ont été sélectionnés [two have been selected], un consortium germano-luxembourgeois et [the complainant's consortium]."

Having taken note of the contents of this article, the Director-General of OPOCE had decided that very day to cancel the tender on the grounds that confidential information that had only been known to the members of the Evaluation Committee had been published. OPOCE added that, on 16 October 2003, it had asked DOCData France for an explanation. According to OPOCE, the reply that had been sent on 17 October 2003 was not considered to be satisfactory. On 21 October 2003, the Director-General of OPOCE had given instructions to open an administrative inquiry. On 3 December 2003, the Director-General had informed the members of the committees concerned that the administrative inquiry had been closed. OPOCE submitted that its decision to cancel the relevant call for tender had been correct.

3.3 In its observations on this opinion, the complainant expressed the view that there had been no reasons to cancel the tender.

3.4 In its reply of 15 November 2004 to the Ombudsman's request for further information, OPOCE stated that it did not agree with the complainant's view that the number of bids selected had been 'generally known at the time'. According to OPOCE, the only information that had been made available to the public (on the occasion of the public opening of bids) had been the number of bids submitted. OPOCE added that the decision to cancel the award procedure had been taken on the basis of Article 101 of Regulation 1605/2002. According to the interpretation of a similar rule by the European Court of Justice, such a decision was not limited to exceptional cases.

3.5 In its observations on this reply, the complainant stressed that not only the number of bids, but also the names of the bidders had been made public. According to the complainant, it could easily be established from the website of the third bidder that working for OPOCE and the EU had not been one of its main activities. The complainant added that this, combined with the complexity of the products and services to be delivered and the important element of CD-ROM production, had had the result that, in the eyes of all concerned, this was not a serious bidder. Article 101 of Regulation 1605/2002 allowed the contracting authority to abandon the procurement or cancel the award procedure. However, this provision obliged the contracting authority to substantiate this decision to the tenderers. In the complainant's view, OPOCE had failed to do so.

3.6 The Ombudsman notes that it is undisputed that it was public knowledge that there were only three bidders. Given that the bids had been opened publicly, the Ombudsman presumes that the identity of these bidders was no secret, either. It further emerges from the documents submitted by OPOCE that, in the selection phase, the structure of the third consortium had been considered to be insufficient to guarantee the proper execution of all the relevant tasks and that only the two other offers had therefore been admitted to the award phase. In the light of this decision and of the arguments submitted by the complainant, the Ombudsman considers that it was not excluded that a well-informed expert could conclude that only SZ's consortium and the complainant's consortium were serious contenders for the award of the contract.

3.7 It should be noted, however, that the statement published in the relevant article did not limit itself to assessing the possible prospects of the bidders, but noted that two bids had been 'selected'. The Ombudsman takes the view that the Director-General of OPOCE was right in assuming that this was confidential information that had only been known to the members of the Evaluation Committee. Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(5) ("Regulation 1605/2002") expressly provides for the possibility of cancelling an award procedure, provided that the decision is substantiated and that it is brought to the attention of the tenderers. The Ombudsman considers that the decision of the Director-General of OPOCE to cancel the tender on the grounds that confidential information that had only been known to the members of the Evaluation Committee had been published fulfils the first of these conditions. The possibility that the confidential information had been leaked by a member of the Evaluation Committee does not appear to be relevant in the present circumstances. The Ombudsman considers that the publication of confidential information concerning a tender is per se a serious matter that entitles the institution concerned to cancel the tender procedure. As regards the second condition, the complainant does not appear to argue that the decision was not brought to its attention. It should be noted that, according to the account of events provided by OPOCE, which has not been challenged by the complainant, it was the complainant itself that brought the article published in the French newspaper to OPOCE's attention.

3.8 In these circumstances, the Ombudsman considers that the decision to cancel the tender procedure appears legitimate. No maladministration can therefore be found as regards the second allegation.

4 As regards the extension of contract no 1695

4.1 The complainant alleged that the extension of the contract awarded under tender no 1695 had no legal basis and would only have been possible if it (the complainant) had continued to participate in the contract. In a letter addressed to OPOCE on 26 February 2004, the complainant's lawyer had expressed the view that the extension of the said contract had no legal basis, given that Article 126 (1) (c) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(6) ("Regulation 2342/2002") provided that a negotiated procedure could be used where there were "reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities" and that, according to Article 126 (1) (f) of Regulation 2342/2002, only the same product or service could be offered in case of an extension. The lawyer had submitted that the extension of the contract would have required the complainant's continued participation, given that no other party would be able to deliver the same product, that is to say a product with the search technology provided by the complainant.

In its complaint to the Ombudsman, the complainant reiterated its view that the extension of the contract had not been in accordance with the relevant rules and had, in any event, not been possible without its participation. The complainant added that the product to be provided by SZ could never be the 'same' as the one it had previously supplied, using the complainant's software, since the complainant's retrieval software that had been used for this purpose had been particularly developed and optimised for CD-ROMs.

4.2 In its opinion, OPOCE pointed out that after the cancellation of the call for tenders no 6019, lot 1, and in order to ensure the continuity of the service, contract no 1695 had been extended for a period of 18 months.

OPOCE did not directly address the complainant's arguments. However, it presented a note for the file (dated 1 June 2004) with an account of the events that had taken place.

This note contained the following information:

After the cancellation of the tender, two options had presented themselves to OPOCE, namely (1) a negotiated procedure with the consortium that had proven its technical quality or (2) a negotiated procedure with a view to extending contract no 1695.

On 7 November 2003, Mr B., head of OPOCE's Author Services unit, had asked Mr L., head of OPOCE's Multimedia unit, as regards the possible extension of contract no 1695 by eight months, for the technical specifications concerning the adaptations that were strictly necessary and that followed exclusively from the forthcoming enlargement of the EU. On 19 November 2003, Mr L. had informed Mr B. that it would be more realistic to envisage an extension by 12 months.

OPOCE had subsequently informed SZ of its intention to extend contract no 1695.

On 3 December 2003, SZ had informed OPOCE that it proposed a new technical solution (with a change in the software used) for the extension of the contract. According to SZ, this would allow for the improvement in performance that was needed to cope with 20 languages, and that at a price that was lower than the one that would be required to update the existing software.

On 4 December 2003, OPOCE had received a copy of a letter addressed by the complainant to Euroscript (a partner of SZ) concerning ongoing negotiations between these two companies.

By letter signed by Mr L. on 5 December 2003, OPOCE had informed SZ that it agreed, in principle, with its proposal.

The proposed change of software had been discussed within OPOCE since Mr B.'s unit had had doubts as to whether such a change was possible from a contractual point of view.

After consulting OPOCE's Director-General, it had been decided, on 8 December 2003, to launch a new negotiated procedure and to sign a new contract with SZ. This contract was to reuse the clauses foreseen by contract no 1695 and complement them by the adaptations needed for 20 languages and the functions foreseen for 2004. A note to that effect had been sent by Mr L. to Mr B. This new procedure had been given the reference 6029.

On 16 December 2003, OPOCE had forwarded a draft contract which would grant to SZ a duration of 24 months. The offer made by the latter had been received on 18 December 2003, with a complement that had arrived the day after.

On 22 and 23 December 2003, Mr L. had drawn up two notes for the file as regards the quality of SZ's offer and as regards the technical justification of using the negotiated procedure.

Mr B.'s unit had subsequently expressed the view that there was no legal basis for the negotiated procedure no 6029.

On the occasion of a meeting towards the end of 2003, it had been decided that the only way forward was to extend contract no 1695 and not to conclude a new one, limiting any technical modifications to the bare minimum necessary.

An offer to that effect had been made to SZ on 9 January 2004. SZ had sent its reply on 13 January 2004. Further explanations demanded by OPOCE had been received on 19 January 2004. Given that the reply had still not been considered to be satisfactory, SZ had been invited to a meeting to discuss the points that remained to be solved. This meeting had been held on 22 January 2004. A confirmation that the prices would not be changed throughout the duration of the extension, requested by OPOCE, was received on 26 January 2004.

The report to the Commission on Procurements and Contracts (" CAM") had been drawn up on 30 January 2004. According to this report, a pre-notification of a new call for tender had been published in the Official Journal on 18 November 2003. However, given the time that would be needed for a new procedure, the resulting new service could only become operative as from October 2005. It was therefore necessary to extend contract no 1695 by 18 months on the basis of Article 126 (1) (c) of Regulation 2342/2002. After its meeting on 11 February 2004, the CAM had put certain questions concerning the matter to OPOCE, which had been answered on 16 February 2004.

At its meeting of 19 February 2004, the CAM had expressed the view that it was necessary to sign the contract in view of the need to ensure the production of the Supplement to the Official Journal. The CAM had noted, however, (1) that contract no 1695 had been used to put in place the technical solution that had been proposed in the context of the call for tender no 6019; (2) that the decision to change the platform and to accept the resulting costs had been taken without consulting the CAM; and (3) that a change of the technical solution as important as the present one led to a change in the object of the service.

4.3 In its observations, the complainant stressed that Euroscript had asked it on 21 November 2003 to let it know its conditions in case OPOCE should decide to extend contract no 1695. In the complainant's reply sent the same day, it had quoted an amount of EUR 75 000. According to the complainant, Euroscript had telephoned on 3 December 2003 to say that OPOCE was waiting for the complainant's response regarding the costs of developing new features in the application before giving SZ the order for the extension of the contract. In its reply of 4 December 2003, the complainant had expressed its surprise at this request and had referred to its letter of 21 November 2003. A copy of this message had been sent to OPOCE. On 5 December 2003, Euroscript had asked for an estimate of the cost for adding (1) the nine new languages, and (2) additional features to the application "as described in Invitation to tender No. 6019". In the complainant's reply of 8 December 2003 it had pointed out that item (2) was new and that so far the discussion had only been about an extension of contract no 1695. Any quote as regards item (2) would require further information from OPOCE on what was needed. The complainant submitted that, in the light of these exchanges, OPOCE could have had no doubt that the complainant was ready to continue providing the services that had been provided under contract no 1695 at an acceptable cost.

The complainant also stressed that Article 123 (2) of Regulation 2342/2002 provided that the number of candidates in negotiated procedures could not be less than three and had, in any event, to be sufficient to ensure genuine competition. It also argued that Article 126 stipulated the cases in which it was possible to use the negotiated procedure without prior publication of a contract notice. According to the complainant, none of the conditions of these cases were fulfilled here. The complainant further argued that the applications provided by SZ and its new partner were inferior to the ones that had previously been provided using the complainant's software.

4.4 On 29 September 2004, the Ombudsman asked OPOCE for further information in relation to the issues concerned. The Ombudsman requested OPOCE in particular to address the complainant's arguments based on Articles 123 and 126 of Regulation 2342/2002. The Ombudsman further noted that the complainant had argued that it would have been relatively easy and cheap to add the nine new languages and some further additions to the software it had developed and that had been used until 1 May 2004. He therefore asked OPOCE to explain why it had nevertheless decided to accept the proposal SZ appeared to have made in its letter of 3 December 2003 to use a new software and thus effectively the technical solution that had been proposed in the context of tender no 6019, lot 1.

4.5 In its reply of 15 November 2004, OPOCE stressed that the "unforeseeable event" referred to in Article 126 (1) (c) of Regulation 2342/2002 had been the publication of an article in the press revealing confidential information. The cancellation of the award procedure had merely been the consequence of the unforeseeable event. According to OPOCE, the publication of this newspaper article was under no circumstances attributable to it. OPOCE further submitted that two other conditions that had to be met for this provision to apply, namely that the Communities' interests were likely to be jeopardised and that it was impossible to follow the ordinary procedure, had equally been fulfilled. OPOCE stressed that it was obliged to ensure publication of the Official Journal in all official languages, which from 1 May 2004 onwards meant 20 languages. In order to fulfil this important obligation, it had been necessary to implement some modifications; the estimated time for implementation had been six months. OPOCE stressed that it had thus been impossible to organise a new call for tender and to award the contract within the above-mentioned time limit.

As regards the arguments based on Article 123 of Regulation 2342/2002, OPOCE submitted that, for reasons of public interest and in order to ensure the continuation of a vital public service, it had been essential to negotiate with the existing contractor, whom OPOCE had known to be capable of performing the contract. OPOCE added that it had had only second-hand knowledge of the amount of licence fees demanded by the complainant. According to OPOCE, it was not clear what the amount of EUR 75 000 mentioned by the complainant referred to.

4.6 In its further reply of 17 December 2004, OPOCE referred to the fact that, in his note for the file also dated 17 December 2004, Mr L. had explained that OPOCE had accepted SZ's initiative to change its software (1) because the proposal was the most economically advantageous solution, "in particular due to the higher costs for royalties requested by [the complainant]", and (2) because SZ had been committed to the deadline of implementing all the changes by 1 May 2004 with "committed partners and well established industry standard tool (Oracle, Eversuite)". In his note, Mr L. acknowledged that, in May 2004, both TED and the CD-ROM had had performance problems and had lacked certain functionalities that had been available previously. According to Mr L., these problems had however gradually been solved. Mr L. pointed out that similar difficulties had been encountered in spring 2002 with the complainant's software when new standard forms had been introduced.

4.7 In its further letter of 20 January 2005, OPOCE stressed that, as regards the 'additional features' mentioned by the Ombudsman in relation to the extension of contract no 1695, it was important to note that contract no 1695 fully provided for such adaptations and for the implementation of additional features. Such adaptations had indeed been introduced during the life of the contract. OPOCE further argued that the contractor had the possibility and the responsibility to put forward proposals to ensure the quality of the service or to improve it. Further to the cancellation of call for tender no 6019, lot 1 and the ensuing decision to extend contract no 1695, SZ had - according to OPOCE - submitted an offer for (1) the changes to be implemented with a view to being operational on 1 May 2004, (2) changes which were foreseeable during the extension period in view of the modifications underway in the public procurement directives and (3) additional features. OPOCE stressed that it had ordered none of these 'additional features'. It noted, however, that SZ had proposed to implement 'some enhancements' and that this proposal had been accepted by OPOCE.

4.8 In its observations, the complainant stressed that, on 5 December 2003, OPOCE had ordered additional features from SZ which had been the same as those taken up in call for tender no 6019, lot 1. By placing an order for 'additional features', OPOCE had thus financed their development and knowingly advantaged one of the contenders of an open tender procedure. The complainant submitted that it was noteworthy that the decision to change the platform and to agree on the relevant costs had been taken before the CAM had been informed and asked for its approval. According to the complainant, Mr L. had, in his notes of 17 and 22 December 2003, fabricated a number of statements that were totally untrue. The complainant stressed that it had never asked for EUR 1.5 million. In its letter to Euroscript of 21 November 2003, the complainant had quoted an amount of EUR 75 000. The complainant submitted that the only way one could possibly arrive at an amount close to the said EUR 1.5 million was by taking the complainant's 'standard price-list' for the second half of 2003 and by multiplying the lowest amounts given there against a prolonged period of extension. However, the complainant stressed that it had never proposed using its price-list as regards OPOCE or SZ and had never used its standard prices for projects of this magnitude. The complainant further argued that Mr L. had had no reason to conclude that the complainant's solutions were outdated. It submitted that, in any event, Article 158 of Regulation 2342/2002 foresaw a threshold of EUR 162 293 for such expenditure.

4.9 On 5 July 2005, the Ombudsman asked OPOCE to explain on what factual basis Mr L. had, in his note for the file of 22 December 2003, stated that the complainant had asked SZ for an "exorbitant amount" (EUR 1.5 million) in licence fees, that this had led SZ to look for new technical solutions, and that the technology that had been used at the time (that is to say, the one based on the complainant's software) had become outdated.

4.10 In its reply of 26 July 2005, OPOCE explained that t he note for the file of 22 December 2003 had been written in the context of the examination of the possibility to use a negotiated procedure (no 6029) to set up a contractual arrangement in view of the cancellation of the call for tender no 6019, lot 1. The procedure was to include, among others, the modernisation of the technology used and the implementation of certain additional features. OPOCE submitted that the statement that the technology used under the then ongoing contract (that is to say, contract no 1695) had become outdated had referred only to this procedure and had merely expressed considerations relating to possible improvements to the quality of the services offered. However, it had subsequently been decided not to use this procedure (no 6029) and instead to proceed to the prolongation of the existing contract (no 1695). OPOCE stressed that the 'additional features' had not been implemented. According to OPOCE, they would only be implemented in the framework of contract no 6019-1, signed on 16 June 2005, together with all the other improvements described in the tender specifications. As regards the 'exorbitant amount' mentioned in the note for the file of 22 December 2003, OPOCE submitted that this information had been given to OPOCE as explained in OPOCE's letter to the Ombudsman of 15 November 2004.

4.11 In its observations on this reply, the complainant stressed that the relevant additional features, and they alone, had been the reason for the exorbitant amount of money paid by OPOCE as part of the extension of contract no 1695. In its letter to the Ombudsman of 26 July 2005, OPOCE had claimed that the 'additional features' had not been implemented as part of the extension of contract no 1695. According to the complainant, however, five of the ten new developments that had been requested as part of the specifications under tender no 6019, lot 1 had been implemented prior to 29 March 2005 (the date of the complainant's observations on OPOCE's letter of 20 January 2005). The complainant stressed that it was to be assumed that SZ and its sub-contractor had been paid for these developments. In the complainant's view, this had enabled SZ and its sub-contractor to place a much better bid for the new tender no 6019.

4.12 The Ombudsman is conscious of the fact that the cancellation of tender no 6019, lot 1 in October 2003 presented OPOCE with a difficult situation, given that, on the one hand, the production of the relevant products in the languages of the new Member States as well had to be ensured as from 1 May 2004 and that, on the other hand, there was not enough time to organise a new tender and award the resulting contract before that date. In theory, OPOCE had - as set out in OPOCE's internal note of 1 June 2004 - two options, that is to say (1) a negotiated procedure with SZ and its new sub-contractor and (2) a negotiated procedure with a view to extending the existing contract no 1695.

4.13 OPOCE has consistently explained that its approach was based on Article 126 (1) (c) of Regulation 2342/2002. In the Ombudsman's view, only this provision thus needs to be examined here. There is therefore no need to deal with the arguments that the complainant has put forward in order to show that OPOCE could not have relied on any other of the provisions set out in Article 126 (1) of Regulation 2342/2002.

4.14 Article 126 (1) (c) of Regulation 2342/2002 provides that the negotiated procedure may be used without prior publication of a contract notice:

"in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities and likely to jeopardise the Communities' interests, it is impossible to comply with the time-limits set out for the other procedures and laid down in Articles 140, 141 and 142".

4.15 The Ombudsman notes that the complainant does not appear to dispute OPOCE's view that two of the conditions that have to be met for this provision to apply, namely that the Communities' interests were likely to be jeopardised and that it was impossible to follow the ordinary procedure, were fulfilled in the present case. However, the complainant argues that the relevant problem had not been caused by "unforeseeable events ... not attributable" to OPOCE since the information the disclosure of which (in the above-mentioned article in a French newspaper) must have been provided by members of the Evaluation Committee. The Ombudsman notes, however, that no evidence has been submitted to him that this was indeed the case. It should be noted, moreover, that if the complainant's reasoning were to be followed, Article 126 (1) (c) of Regulation 2342/2002 could not have been used at all by OPOCE in the present case. It would then be difficult to see on which basis OPOCE could have extended contract no 1695 with SZ and its old sub-contractor (the complainant), as the complainant submits it should have done. The same applies to the complainant's argument that Article 123 (2) of Regulation 2342/2002 provided that the number of candidates in negotiated procedures could not be less than three and had, in any event, to be sufficient to ensure genuine competition. In these circumstances, the Ombudsman considers that OPOCE's view that the disclosure of the relevant information in a newspaper article was an unforeseeable event not attributable to it and that Article 126 (1) (c) of Regulation 2342/2002 could thus be used is reasonable.

4.16 It should be noted, however, that Article 126 (1) (c) of Regulation 2342/2002 limits the possibility to use the negotiated procedure in the circumstances set out in this provision to the extent that is "strictly necessary". The Ombudsman therefore considers that this provision could only be used in order to achieve the minimum that was necessary in order to ensure that the services concerned continued to be provided after 30 April 2004 and that they would be provided in the languages of the new Member States as well. It is appropriate to recall that these services concerned the production of the TED website and the CD-ROM for the S series of the Official Journal. It should be noted that OPOCE's Author Services unit appears to have taken the same view, given that Mr B. (the head of this unit) asked Mr L., on 7 November 2003, as regards the possible extension of contract no 1695 by eight months, for the technical specifications concerning the adaptations that were strictly necessary and that followed only from the forthcoming enlargement of the EU. In the Ombudsman's view, it is thus clear that Article 126 (1) (c) of Regulation 2342/2002 would not have provided a legal basis for the conclusion of a contract envisaging the addition not only of the nine new languages but also of the additional features to the application foreseen by tender no 6019, lot 1 (the "additional features"), given that OPOCE has not shown that these additional features or any of them were strictly necessary for the provision of the relevant services. The Ombudsman therefore considers that the decision adopted by OPOCE towards the end of December 2003, on the advice of its Author Services unit, that the only way forward was to extend contract no 1695 and not to conclude a new one, limiting any technical modifications to the bare minimum necessary, was correct.

4.17 The Ombudsman notes, however, that the subsequent extension of contract no 1695 resulted in important changes going beyond the mere addition of the new languages. First of all, whilst the main contractor (SZ) remained unchanged, the sub-contractor providing the necessary software changed. OPOCE has correctly pointed out that the provisions of its contract allowed SZ to change its sub-contractor, on condition that a prior written request to that effect was made and approved by OPOCE. The Ombudsman considers, however, that, in view of the services concerned, a change of the provider of the software used to provide these services constituted a fundamental change as regards the substance of the contract. The opinion expressed by the CAM that a change of the technical solution as important as the present one led to a change in the object of the service provided confirms this view. The Ombudsman considers that OPOCE could thus not limit itself to taking the view that a change of sub-contractor was a matter that only concerned the contractor and its sub-contractor. In any event, the question to be answered is not whether contract no 1695 gave SZ the possibility to change its sub-contractor, but whether allowing SZ to do so in the present case was "strictly necessary" in order to safeguard the interests protected by Article 126 (1) (c) of Regulation 2342/2002.

4.18 The Ombudsman notes that OPOCE has not argued that the complainant would have been unable or unwilling to continue to co-operate with SZ in relation to the extension of contract no 1695. Taking account of all the information provided to the Ombudsman by OPOCE, it appears that the only reasons why OPOCE considered that SZ's proposed change of sub-contractors was acceptable are those set out in Mr L.'s note for the file of 22 December 2003. According to this note, SZ (1) had indicated that the exorbitant costs ("[c]oûts exorbitants") asked by the complainant (EUR 1.5 million for 8 000 users) had led it to look for new technical solutions and (2) had also wished to replace the existing software architecture that had become outdated from a technological point of view ("devenue dépassée technologiquement"). It is true that, in his note for the file dated 17 December 2004, Mr L. explained that OPOCE had accepted SZ's initiative to change its software also because SZ had been committed to the deadline of implementing all the changes by 1 May 2004 with "committed partners and well established industry standard tool (Oracle, Eversuite)". However, this last-mentioned aspect does not appear to be mentioned expressly either in Mr L.'s note for the file of 22 December 2003 nor in his report to the CAM of 30 January 2004. The Ombudsman therefore considers that only the two reasons expressly stated in the note for the file of 22 December 2003 need to be examined here.

4.19 As regards the allegedly outdated nature of the complainant's software, the Ombudsman notes that, in its reply of 26 July 2005 to the second request for further information, OPOCE explained that t he note for the file of 22 December 2003 had been written in the context of the examination of the possibility to use a negotiated procedure (no 6029) to set up a contractual arrangement that was to include, among others, the modernisation of the technology used and the implementation of certain additional features. OPOCE further clarified that the statement that the technology used under the then ongoing contract (that is to say, contract no 1695) had become outdated had referred only to this procedure and had merely expressed considerations relating to possible improvements to the quality of the services offered. It added, however, that it had subsequently been decided not to use this procedure (no 6029) and instead to proceed to the prolongation of the existing contract (no 1695). In the light of these explanations, the Ombudsman considers that OPOCE no longer argues that its decision to extend contract no 1695 whilst allowing SZ to use a new sub-contractor could be justified by the allegedly outdated nature of the complainant's software. The Ombudsman takes the view that there is, in any event, no evidence that would support the view that the complainant's software was outdated. It should be noted that Euroscript had asked the complainant to quote a price for its participation in the extended contract. Doing so would hardly have made sense if Euroscript and SZ should have considered that the complainant's software was no longer suitable.

4.20 As regards financial aspects, the Ombudsman takes the view that OPOCE's decision to allow SZ to change sub-contractors would certainly have been reasonable if the complainant had indeed asked for an exorbitant sum in consideration for its continued participation in the contract. The complainant does not appear to dispute that a sum of EUR 1.5 million on account of royalties could be considered to be exorbitant in the circumstances. The Ombudsman notes, however, that there is no evidence whatsoever to prove that the complainant made such a demand in its negotiations with SZ/Euroscript. On the contrary, the only sum that appears to have been mentioned was that of EUR 75 000 which the complainant quoted in its letter to Euroscript of 21 November 2003.

4.21 The Ombudsman notes that OPOCE stresses that the information that it had received concerning the price quoted by the complainant had been second-hand. In his note of 22 December 2003, Mr L. refers to the relevant information as having been given by SZ in its letter of 3 December 2003. In this letter (a copy of which OPOCE has forwarded to the Ombudsman at the latter's request), SZ compares the price of the services it proposed to offer with the help of its new sub-contractor with the price that would have resulted if the complainant's services had been retained. The relevant cost items are set out in a box that is introduced as presenting "a comparison between our proposed approach and a simulation based on the solution and proposals of our present supplier [the complainant]". In the copy finally submitted, OPOCE (at the suggestion of the Ombudsman) blanked out data it considered to be confidential, including the relevant cost items. In view of the clear indications given in Mr L.'s note of 22 December 2003 the Ombudsman presumes, however, that the sum of EUR 1.5 million was mentioned in this box of SZ's letter (apparently in the third line under the heading "CD's + Royalties").

4.22 It should be noted that it was only on 24 August 2004 that the complainant submitted to the Ombudsman a copy of its letter to Euroscript of 21 November 2003. The Ombudsman then forwarded a copy of this letter to OPOCE. In the absence of further evidence, there is thus nothing to prove that OPOCE knew that the information provided in SZ's letter of 3 December 2003 was incorrect when it received it.

However, regard should be had to the fact that SZ's letter of 3 December 2003 contained an offer to extend contract no 1695 (1) that would "support additional languages required by the EU enlargement on May 1 st 2004" and (2) that would "implement additional features as publicly announced by the Publications Office". The subsequent text makes it clear that these "additional features" are those "described in the technical specifications of tender No 6019-1" (that is to say, tender no 6019, lot 1 which was cancelled in October 2003). Given that the price quoted by SZ for its own services thus covered these "additional features", it appears clear that the price that SZ provided by way of comparison (on the assumption that the complainant's software was to be used) should also have covered these additional features. However, on 4 December 2003, OPOCE received a copy of the letter the complainant had addressed to Euroscript that same day. It emerges from this letter that the complainant had so far only provided a cost estimate in so far as the addition of nine new languages was concerned and that no quote had yet been submitted "regarding the costs of development of new features". The complainant further indicated in this letter that it was willing to co-operate fully in the process of extending contract no 1695.

4.23 The Ombudsman considers that, at the very latest after having received a copy of this letter on 4 December 2003, OPOCE must have been aware of the fact that the information concerning the complainant provided by SZ in its letter of 3 December 2003 was either incorrect or unreliable and thus needed to be checked. However, OPOCE has not referred to any efforts to ascertain the relevant facts that it might have undertaken. On the contrary, already on 5 December 2003, it informed SZ that it agreed in principle with its proposal. The Ombudsman considers this way of proceeding to be inexplicable and not in conformity with rules of good administrative behaviour.

4.24 It should be noted that SZ's offer of 3 December 2003 covered the additional features that had been part of the subsequently cancelled tender no 6019, lot 1. When OPOCE decided, following the advice given by its Author Services unit, to abolish its plans for a negotiated procedure including these additional features (referred to under tender no 6029) and to extend the existing contract no 1695 instead, another chance arose to clarify whether and under what conditions the complainant was ready to continue to co-operate. As mentioned above, the complainant had made a quote to Euroscript concerning the extension of contract no 1695 and OPOCE had been made aware of this fact (although not of the price as such) through the letter that had been copied to it on 4 December 2003. However, no effort appears to have been undertaken by OPOCE to clarify matters, for example by contacting the complainant directly. In view of the discrepancy arising from the differences between SZ's letter of 3 December 2003 and the complainant's letter of 4 December 2003, such a direct contact would have appeared both useful and appropriate.

4.25 In view of the above, the Ombudsman arrives at the conclusion that OPOCE has failed to make sure that the solution it finally put in place corresponded to what was "strictly necessary" under Article 126 (1) (c) of Regulation 2342/2002.

4.26 In addition to criticising the fact that OPOCE extended the contract with SZ whilst allowing the latter to use a new sub-contractor, the complainant also alleged that the technical solution that was realised covered at least some of the "additional features" that had been set out in the (aborted) tender no 6019, lot 1. Notwithstanding the fact that the complainant has made detailed comments in this regard, the Ombudsman considers that his analysis of this aspect of the case can be brief. In fact, OPOCE does not dispute the fact that some of these "additional features" were implemented by SZ and its new sub-contractor, even though it uses the term "enhancements" in this respect. Even if OPOCE should not have expressly ordered these additional features when agreeing with SZ on the extension of the contract, the fact remains that OPOCE accepted that they were included in the services to be provided. As the complainant correctly observes, it is difficult to imagine that these additional features should have been provided without any consideration, even if the latter was only included implicitly in the overall price. In any event, it should be noted that, in its opinion of 19 February 2004, the CAM reached the conclusion that contract no 1695 had been used to put in place the technical solution that had been proposed in the context of the call for tender no 6019. OPOCE has not explicitly disputed this finding. The Ombudsman therefore considers that OPOCE has not shown that the inclusion of the relevant additional features that were eventually implemented was "strictly necessary" within the meaning of Article 126 (1) (c) of Regulation 2342/2002.

4.27 In view of the above, the Ombudsman arrives at the conclusion that OPOCE's handling of the extension of contract no 1695 was not in conformity with the relevant rules. This constitutes an instance of maladministration. The conclusions to be drawn form this finding are set out below (see point 6.24).

5 As regards the alleged efforts to prevent the complainant's products from being selected

5.1 In its complaint, the complainant alleged that OPOCE had systematically tried to keep its products from being selected for tasks that were tendered.

5.2 In its opinion, OPOCE took the view that this was a gratuitous allegation that had not been established.

5.3 The Ombudsman would like to point out that his inquiry has brought to light what appears to be a serious case of maladministration. He takes the view, however, that the evidence submitted to him during this inquiry does not allow him to draw the conclusion that OPOCE systematically tried to keep the complainant's products from being selected for tasks that were tendered. It is useful to note that the handling of tender ADMIN/D17/PO/2003/086-ISTO, lots 1, 2 and 3 by the European Commission, on which certain of the complainant's arguments are based in this context, is not covered by the present inquiry (see points 1.5 and 1.6 above).

5.4 In these circumstances, the Ombudsman considers that the complainant has not established its allegation.

6 As regards the complainant's claims

6.1 In its complaint, the complainant claimed (1) that the mistakes made should be rectified, (2) that it should be granted compensation for loss of income and (3) that the official responsible for the relevant acts should be reprimanded.

6.2 In its opinion, OPOCE implicitly appeared to take the view that these claims were not founded.

6.3 In its observations, the complainant submitted that as regards tender no 2034, the Evaluation Committee had knowingly or unknowingly made serious mistakes. According to the complainant, the relevant mistakes had cost it loss of direct income over a period of five years for which it sought compensation. The complainant concluded by saying that it sought official disclosure of facts, an admission of the mistakes that had been made, a reprimand of the official concerned and compensation for loss of income.

6.4 In its reply to the Ombudsman's request for further information and for a supplementary opinion, OPOCE took the view that there was no basis for the official concerned to be subjected to a disciplinary procedure. According to OPOCE, Mr L. had not been a member of the Evaluation Committees in calls for tender no 2034 and no 6019, nor had he been responsible for the decision to cancel the award procedure. OPOCE added that the complainant would, in any event, not have been awarded the contract in call for tender no 6019, even if the latter had not been cancelled.

6.5 In its observations on this reply, the complainant submitted detailed comments to demonstrate that the problems that it had experienced stemmed from the fact that Mr L., a French national, preferred the search-engine run by Verity (an American company) that was used by AIS, a French company. The complainant stressed that the successful bidder in tender no 2034 had proposed and was using Verity software. According to the complainant, OPOCE's decision had cost the European tax-payer hundreds of thousands of Euro in unnecessary expenditure. The complainant added a sworn statement made by Mr P., a former employee of Euroscript, in which he pointed out that Mr L. had informed him in early 1999 that, for future tenders, only Verity's search-engine was to be used. Mr P. referred to the "commercial pressure" exerted by Mr L. on SZ/Euroscript to change their search-engine supplier.

6.6 On 5 July 2005, the Ombudsman addressed a second request for further information to OPOCE in which he asked the latter (1) to comment on the further comments and evidence provided by the complainant in its observations, particularly as regards the role that Mr L. had (according to the complainant) played in this matter; (2) to specify whether Mr L. had or had not been a member of the Evaluation Committee for tender no 6019, lot 1; and (3) to explain on what factual basis Mr L. had, in his note for the file of 22 December 2003, stated that the complainant had asked SZ for an "exorbitant amount" (EUR 1,5 million) in licence fees, that this had led SZ to look for new technical solutions, and that the technology that had been used at the time (that is to say, the one based on the complainant's software) had become outdated.

6.7 In its reply of 26 July 2005, OPOCE pointed out that, as regards the role of Mr L., its position remained unchanged. OPOCE emphasised that the Verity software, for which according to the complainant Mr L. had a preference, was used neither in the context of contract no 1695 nor in contract no 6019, lot 1. The complainant's view that Mr L. was involved in the matter by influencing SZ's decisions due to his alleged preference for the Verity software was therefore completely unfounded in OPOCE's view. OPOCE added that Mr L. had been neither a member of the Evaluation Committee in tender no 6019, lot 1 (which was not the same procedure as no 6019-1) nor in tender no 2034. He had only been a member of the Evaluation Committee in tender no 6019, lot 1, the procedure which had subsequently been cancelled following the decision taken by the Authorising Officer without any intervention of the Evaluation Committee.

6.8 In its observations on this reply, the complainant submitted that, as head of OPOCE's Multimedia unit, Mr L. had been directly responsible for each of the three cases put forward in the complaint. The complainant stated that it sought an admission of the mistakes made, a reprimand of the officials concerned and compensation for the damages that had occurred and for loss of income.

6.9 Given that the complainant raises three different claims, the Ombudsman considers it appropriate to examine them one by one.

6.10 As regards the mistakes allegedly made by OPOCE, the Ombudsman notes that the complainant claimed, in its complaint, that these should be rectified whereas it subsequently demanded that they should be admitted. In the absence of any further explanations, the Ombudsman considers that what the complainant wants to achieve by this claim is that the instances of maladministration be corrected or admitted by OPOCE. He further considers that the same applies as regards the complainant's request for "official disclosure of facts", which was set out in the complainant's observations on OPOCE's opinion. The Ombudsman takes the view that the draft recommendation set out below corresponds to the aim pursued by the complainant with this claim.

6.11 As regards the complainant's claim for damages, the Ombudsman considers that a distinction needs to be made between two aspects of the case, namely (1) the award of contract 2034 and (2) the extension of contract no 1695.

6.12 In so far as the award of contract no 2034 is concerned, the Ombudsman has reached the conclusion that OPOCE ought to carry out a proper inquiry into this matter. Any claim for damages by the complainant would presuppose that this inquiry leads to the conclusion that the award decision was incorrect and that the contract should have been awarded to SZ and its sub-contractor (the complainant) instead. Whether this is indeed the case obviously depends on the results of the inquiry to be carried out.

The following considerations are therefore based on the (at present hypothetical) assumption that this inquiry will indeed lead to the conclusion that the award decision was incorrect and that the contract should have been awarded to SZ and its sub-contractor (the complainant) instead.

6.13 The Ombudsman considers that in that case a claim for damages by the complainant could not be ruled out. Due account would of course have to be taken of the fact that the contract would have had to be awarded to SZ, that the complainant was only SZ's sub-contractor and that SZ itself does not appear to have challenged the award decision. Whilst these facts would not necessarily appear to be sufficient to relieve OPOCE of any duty to consider paying damages to the complainant, they would obviously affect the quantum of any such damages. In the Ombudsman's view, account would also have to be had of the fact that the complainant only appears to have begun questioning the result of the tender in June 2003 whereas the relevant contract had already been awarded in November 2001. The fact that contract no 2034, which was envisaged to end in November 2006, appears to have been cancelled prematurely by OPOCE would also have to be taken into account.

6.14 In so far as the extension of contract no 1695 is concerned, the situation is more clear-cut in the Ombudsman's view. As noted above (see point 4), the Ombudsman considers that there was maladministration as regards OPOCE's handling of this matter. Given that all information available tends to show that OPOCE could have extended contract no 1695 with SZ as its contractor and the complainant as the latter's sub-contractor at a reasonable price, OPOCE's decision to allow SZ to use a different sub-contractor had the result that the complainant lost income that it would otherwise have obtained. In view of the fact that OPOCE's decision does not appear to be justified by the relevant rules, the Ombudsman considers that the complainant has a prima facie claim for damages against OPOCE on account of the said behaviour. The Ombudsman is obviously unable to determine the quantum of any such damages which would need to be ascertained by OPOCE. A draft recommendation that OPOCE should do so will therefore be made.

6.15 As regards the request for a reprimand, the Ombudsman notes that the complaint refers to "an" official whereas the complainant's observations on OPOCE's reply to the second request for further information use the plural form ("officials"). However, given that nearly all the comments made by the complainant concern Mr L., the Ombudsman considers that this claim has to be understood as being directed only at the situation of this official.

6.16 Article 86 of the Staff Regulations of officials of the European Communities provides as follows: "Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action" . Article 9 (1) of Annex IX ("Disciplinary proceedings") of the Staff Regulations lists the sanctions that can be imposed, including a "reprimand" (Article 9 (1) (b) of Annex IX).

6.17 The Community legislator has not addressed the question of how the Ombudsman's mandate and powers of inquiry relate to the provisions of the Staff Regulations relating to disciplinary proceedings. However, it should be noted that these latter provisions contain clear rules as to how disciplinary proceedings are to be conducted and that these rules lay particular emphasis on the right of the official concerned to be heard as regards the allegations that are made against him or her. Given that disciplinary sanctions can in any event only be imposed after the disciplinary proceedings foreseen in the Staff Regulations have been carried out, the Ombudsman is unable to pronounce himself on a claim that such sanctions should be imposed in a given case. All the Ombudsman could possibly do would be to take a view as to whether it would be appropriate for the institution concerned to consider opening disciplinary proceedings against an official. However, if the Ombudsman were, as part of his inquiry into a complaint submitted to him, to investigate whether disciplinary proceedings should be opened in a given case, he would in effect carry out what might be called pre-disciplinary proceedings. The conclusions at which the Ombudsman would arrive in this regard would be likely to prejudge, or be seen to prejudge, the outcome of any subsequent disciplinary proceedings. If the Ombudsman were to proceed in this way, his action would thus necessarily raise serious issues, not least because the Ombudsman's Statute does not envisage the possibility of hearing the official concerned before the conclusion of an inquiry. Instead, Article 4 (2) of the Ombudsman's Statute provides that the Ombudsman has the possibility to "inform" the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.

6.18 Given these circumstances, the Ombudsman considers that the proper way to proceed in a case such as the present is not to deal with the complainant's claim that a reprimand should be issued as regards the official concerned. Instead, and in accordance with Ar ticle 4 (2) of the Ombudsman’s Statute, the Ombudsman will inform the institution or body concerned of any facts calling into question the conduct of a member of their staff from a disciplinary point of view in a separate letter. The Ombudsman further considers that in order to protect the integrity of the disciplinary procedure as laid down in the Staff Regulations, he should provide this information to the institution or body concerned confidentially.

6.19 It is obviously for OPOCE, taking into account all the information which it possesses, including the information supplied by the Ombudsman under Article 4 (2) of the Ombudsman's Statute, to decide whether disciplinary proceedings need to be opened in the present case.

6.20 The Ombudsman considers it useful to point out that the present draft recommendation thus concerns exclusively the allegations and claims that the complainant has raised against OPOCE itself.

Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to OPOCE, in accordance with Article 3 (6) of the Statute of the European Ombudsman.

The draft recommendation

OPOCE should (1) carry out a proper and thorough review of its decision to award contract no 2034 with a view to establishing whether this decision was justified and (2) consider paying damages to the complainant on account of its handling of the extension of contract no 1695 and possibly (depending on the result of the review mentioned under 1) also on account of its decision to award contract no 2034.

OPOCE and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the European Ombudsman, OPOCE shall send a detailed opinion by 30 June 2006. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 31 March 2006

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) OJ 2002 L 357, p. 1.

(3) See points 2.8 sequ. of the draft recommendation below.

(4) See point 6.15 of the draft recommendation below.

(5) OJ 2002 L 357, p. 1.

(6) OJ 2002 L 248, p. 1.