Dear Mr K.,
On 4 June 1999 you made a complaint to the European Ombudsman on behalf of Josupek Oy, StarSoft Oy and TAO-produktio Oy concerning the handling of tender bids within Project T-4/ES9612.02.01 Procurement of Database management Software for Estonian School Administration System.
On 23 June 1999, you sent the Ombudsman a copy of a letter sent on 22 June 1999 by the Programme Management Unit informing you that your tender bid was unsuccessful as the winning tender was more successful in the area of local partnership.
On 30 July 1999, I forwarded the complaint to the Director of the European Training Foundation. The European Training Foundation sent its opinion on 22 November 1999 and I forwarded it to you with an invitation to make observations, which you sent on 16 December 1999.
On 21 July 2000, I made a further request for information from the European Training Foundation. The European Training Foundation sent its reply on 29 September 2000 and I forwarded it to you with an invitation to make observations, which you sent on 26 October 2000.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The deadline for submitting tender bids within Project T-4/ES9612.02.01 Procurement of Database management Software for Estonian School Administration System was fixed for 8 February 1999. The complainant claimed that in mid March 1999 he learned from another tenderer that the selection had already taken place. The complainant immediately contacted the organisers requesting information about the handling of the tender bids. The complainant was informed that the handling of tender bids had been transferred to Torino and that he would obtain information in writing on the results once the tender evaluation process was completed. On 6 April 1999, the complainant wrote to the Programme Manager. He received a reply on 8 April 1999 confirming the information given earlier. The Programme Manager also stated that she does not understand on what basis the complainant is formulating his complaint to them as all documentation and information related to the tender evaluation was still confidential.The complainant alleges that some tenderers were in a more favourable situation as regards the flow of information and that therefore there has been discrimination.
According to the information provided to the complainant, his tender bid was excluded on grounds that the complainant did not have an Estonian local partnership (point 4.2.5. of the Terms of reference). The complainant claims that in his letter of 6 February 1999 he has indicated that a tentative agreement of co-operation with Unikko Software from Tallinn has been concluded. The complainant is of the view that the requirement in the tender dossier cannot mean that an enterprise should be established in another country already at such an early stage of the tender procedure. The complainant points out that the text in point 4.2.5 of the Terms of reference refers to 'contractors' and not to 'tenderers'. The complainant implies that his tender bid was excluded with an arbitrary reason.
The complainant makes the following allegations of maladministration:
1) lack of information and discrimination in the handling of the tender procedure;
2) lack of proper reason;
3) undue delay in the handling of the tender procedure.
The complainant makes the following claims:
1) claim for damages;
2) liability of the official handling the tender procedure.

THE INQUIRY

The European Training Foundation's opinion
As background information, the European Training Foundation explained that it is an agency of the European Union established with the purpose of promoting co-operation and co-ordination of assistance in the field of vocational training reform in Central and Eastern Europe and the New Independent States and Mongolia and to the countries eligible for support from the MEDA Programme. A number of conventions have been signed between the Foundation and the European Commission in Brussels for the management of specific programmes through conventions agreed between the Foundation and the European Commission. The practical management of the tendering procedure was dealt with by the beneficiary country through the Programme Management Unit (PMU) on behalf of the Ministry responsible.
Against this background, and in full compliance with the PHARE Regulations, on 17 November 1998 the Ministry of Education of Estonia launched a call for tender no. T-4 ES9612.02/ES/9622.02.01 for the provision of «Database management Software for Estonian school administration system ».
The Foundation gave a detailed description of the different stages of the procurement procedure. A total of seven firms out of eight applicants were invited to participate. All received, in accordance with the PHARE Regulations, the same set of tendering documents (including letter of invitation to tender, instruction to tenderers, General Regulation for tenderers for the award of PHARE service contracts, draft contract with annexes including detailed Terms of Reference as well as miscellaneous information).
The technical bids were analysed for their conformity with the criteria detailed in the tender dossier. Following this analysis the bid from the complainant was missing the duly initialled Terms of Reference, the description of partners present in Estonia, the Curricula Vitae and declarations of availability of the Estonian experts, the description of the partner company profile and the user documentation. On 8 February 1999, the Evaluation Committee requested that the company rectify these omissions by 14:00 on 9 February 1999. However, the company did not present any experts' CVs, nor declaration of availability, nor signed partnership agreement and description of the partner company profile. The Committee decided to reject his bid on this basis.
As regards the European Training Foundation's analysis, the objections raised by the complainant are related mainly to the grounds of exclusion, evaluation procedure and provision of information. Since the procedure was carried out in the framework of the PHARE Regulations, it is in respect of the Phare rules that the complaint must be evaluated.
(i) Grounds for the exclusion
On the basis of the Instruction to Tenderers para. A (7) and section C 1.2 first para. « Support Structure and Support Services », and 4.2.5 of the Terms of Reference the importance for this project to have a local partner is fundamental. The complainant company failed to provide any signed agreement demonstrating the legal existence of a partnership with an Estonian company or any description related to the profile of the local partner. At the request of the evaluation committee to provide a clarification on these items, the complainant replied in writing that « their Estonian partner or his company in Estonia, if it will be established, will organise the activities described in the Terms of Reference ».
Moreover, Article 1.3 para (2) of the Instructions to Tenderers, requires companies to provide CVs of local experts. In spite of an explicit written request the complainant did not provide these CVs.
(ii) Evaluation procedure
The evaluation of the bids was made in full compliance with the PHARE Regulations using the standard forms and guidelines foreseen for a restricted call for tender. The strict application of these forms does not leave room for interpretation or deviation from the PHARE Regulations. In addition the standard forms include tables which are targeted towards clear and transparent comparison of bids. The scoring system with predefined weighting does not allow any room for interpretation or manipulation. Once the members of the committee have filled in their table the composite rating is calculated automatically.
(iii) Provision of information
The complainant's right to receive complete and detailed information has been fully respected during all the phases of the tendering procedure from the point of view of content and timing. In accordance with Articles 3, 9 and 23 of the PHARE Regulation communication between the European Training Foundation and the complainant was conducted in writing and within a reasonable timeframe. The request for information sent by the complainant on 6 April 1999 received a written reply from the European Training Foundation on 8 April 1999. In accordance with the rules the complainant was informed that its tender had been unsuccessful. The information was communicated to the complainant through the standard PHARE form for unsuccessful tenderers.
In view of the facts indicated above and with reference to the principles of sound administration of public funds and respect to the general principles of transparency and non-discrimination, the European Training Foundation in its role of Endorsing Authority of the above mentioned call for tender, considers that the PHARE rules and regulations have been fully respected in the evaluation of the tendering procedure in question and in particular in the treatment of the tender submitted by the complainant.
The complainant's observations
The complainant maintained his complaint. In his observations the complainant explained that he was prepared to send CVs, but due to the short deadline the complainant decided to ask from the Programme Management Unit Director Mr Tönis Eelma how he would prefer the CVs to be sent. On 10 February 1999 at 13:11 PMU-Director, Mr Tönis Eelma sent an e-mail stating that : « There is no need to send CVs ». Therefore, the complainant did not send the CVs.

FURTHER INQUIRIES

After careful consideration of the Foundation's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore sent a request for complementary information to the Foundation on 21 July 2000. The Ombudsman requested the Foundations's opinion on whether the complainant was entitled to rely on the e-mail of PMU-Director Tönis Eelma sent on 10 February 1999 at 13:11.
The European Training Foundation's reply
With regard to the exchange of e-mails between the complainant and the Programme Management Unit (PMU) related to the above mentioned call for tender, the European Training Foundation made the following comments:
The Evaluation Committee has the authority to reject any offer which does not conform to the requirements stated in the tender documents provided by the tenderers. However, the Committee has the option of asking tenderers to clarify elements of their bids or to provide missing documents that form an integral part of the bid submitted. This, however, may not prejudice the other tenderers. The principles of equity of treatment and non-discrimination amongst tenderers must, therefore, be respected. The time allowed for the provision of the missing documents or information should normally be limited in order to avoid delays in completing the evaluation procedure which might cause detriment to the other tenderers.
According to the European Training Foundation, when the complainant sent his e-mail to Mr Tönis Eelma, Director of the PMU, the deadline set by the Committee for the completion of the tender documents on 9 February 1999 at 14:00, had already expired.
The complainant sent two e-mails on 9 February 1999 at 12:28 and on 10 February at 11:43. However, in both e-mails he failed to provide the Evaluation Committee with the relevant documentation requested and particularly with the Curricula Vitae. Since the evaluation was still underway, the Evaluation Committee had to maintain the confidentiality of the proceedings. Therefore, Mr Eelma was not in the position to inform the complainant at this stage that his failure to submit the requested documents in due time had led to the rejection of his bid.
In the light of the above considerations the European Training Foundation affirmed that the e-mail sent by Mr Eelma to the complainant was correct and in line with the PHARE Regulation applied to the tendering procedure in question.
The complainant's complementary observations
In his observations on the complementary information the complainant maintained his complaint. The complainant considers that the request by the European Training Foundation to obtain copies of the CVs of the experts was unnecessary, as it was not apparent from the tender dossier.

THE DECISION

1 Lack of information and discrimination in the handling of the tender procedure
1.1 The complainant alleges lack of information and discrimination in the handling of the tender procedure. According to the complainant it appears that some participants were in a more favourable situation as regards the flow of information and that therefore there has been discrimination.
1.2 The European Training Foundation stated in its opinion that the complainant's right to receive complete and detailed information has been fully respected during all the phases of the tendering procedure from the point of view of content and timing. The request for information sent by the complainant on 6 April 1999 received a written reply from the European Training Foundation on 8 April 1999. In accordance with the rules the complainant was informed that its tender had been unsuccessful. The information was communicated to the complainant through the standard PHARE form for unsuccessful tenderers. According to the European Training Foundation, the general principles of transparency and non-discrimination in the treatment of the tender submitted by the complainant have been followed.
1.3 Taking into account the information provided by the European Training Foundation on the complainant's allegation the Ombudsman is of the view that there appears to be no instance of maladministration in relation to this aspect of the case.
2 Lack of proper reason
2.1 The complainant alleges that his tender bid was excluded without proper reason on grounds that the complainant did not have an Estonian local partnership. According to the complainant he had indicated in his letter of 6 February 1999 that a tentative agreement of co-operation with Unikko Software from Tallinn had been concluded. The complainant considers that the request to obtain copies of the CVs of the experts was unnecessary as it was not apparent from the tender dossier. Furthermore, the complainant claims that on 10 February 1999 at 13:11 PMU-Director, Mr Tönis Eelma sent an e-mail stating that : « There is no need to send CVs ». Therefore, the complainant did not send the requested CVs.
2.2 According to the European Training Foundation, the Instruction to Tenderes para. A (7) and section C 1.2 first para. « Support Structure and Support Services », and 4.2.5 of the Terms of Reference provide that a local partner is of fundamental importance for this project. The complainant company failed to provide any signed agreement demonstrating the legal existence of a partnership with an Estonian company or any description related to the profile of the local partner. At the request of the Evaluation Committee to provide a clarification on these items, the complainant replied in writing that « their Estonian partner or their company in Estonia, if it will be established, will organise the activities described in the Terms of Reference ». Moreover, Article 1.3 para (2) of the Instructions to Tenderers, requires companies to provide CVs of local experts. These CVs were not provided by the complainant in spite of an explicit written request from the Evaluation Committee. According to the European Training Foundation, when the complainant sent his e-mail to Mr Tönis Eelma, Director of the PMU, the deadline set by the Committee for the completion of the tender documents on 9 February 1999 at 14:00, had already expired.
2.3 The Ombudsman observes that point 4.2.5 of the Terms of Reference provides that "The Contractor must have either, a suitable partner in Estonia, or demonstrate clearly how such a partnership will be created…". Furthermore, Article 1.3 para (2) of the Instructions to Tenderers, requires tenderers to provide "a standardised Curriculum Vitae for each Team member". In this case, the Evaluation Committee had given the complainant the possibility to forward the required documents after the expiry of the deadline. As the complainant failed to do so, the European Training Foundation concluded that the complainant failed to provide information about the Estonian local partnership.
2.4 On the basis of information available to the Ombudsman it appears that the European Training Foundation has in its letter of 22 June 1999 to the complainant and in its opinion given a proper reason to the exclusion of the complainant's tender bid. Therefore, there appears to be no maladministration in relation to this allegation.
3 Undue delay in the handling of the tender procedure
3.1 The complainant alleges that there has been undue delay in the handling of the tender procedure. The deadline for tender bids ended on 8 February 1999. The Programme Management Unit informed the complainant on 22 June 1999 that his tender bid had not been successful.
3.2 The European Training Foundation has stated in its opinion that in accordance with Articles 3, 9 and 23 of the PHARE Regulation communication between the European Training Foundation and the complainant was conducted in writing and within a reasonable timeframe.
3.3 The Ombudsman observes that it has taken the European Training Foundation four and a half months to complete the tender procedure within Project T-4/ES9612.02.01 Procurement of Database management Software for Estonian School Administration System. The Ombudsman is of the view that taking into account the nature of the procedure the period of time elapsed cannot be considered excessive. Therefore, there appears to be no maladministration in relation to this aspect of the case.
4 Claim for damages and liability of the responsible official
Based on the above findings of no maladministration it appears that the complainant's claim for damages and liability of the responsible official do not arise.
3 Conclusion
On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Training Foundation. The Ombudsman therefore closes the case.
The Director of the European Training Foundation will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN