Dear Mrs H.,

On 24 January 2002, you submitted, acting on behalf of EPOS Health Consultants, a complaint against the European Commission in relation to the handling by the Commission of tender EC/BiH/01/028.

On 7 February 2002, I forwarded the complaint to the Commission for its comments.

The Commission sent its opinion on 30 April 2002, and I forwarded it to you the same day with an invitation to make observations, if you so wished, by 31 May 2002 at the latest. I received no such observations by that date.

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

THE COMPLAINT

The complainant, a German consultancy firm, belonged to a consortium that submitted an offer in response to a call for tender (EC/BiH/01/028 - Health Care Reform Programme, Bosnia and Herzegovina) published by the Commission. By letter of 21 December 2001, the Commission's Delegation to Bosnia and Herzegovina informed the complainant that the consortium's bid had failed to meet the award criteria, given that it had only obtained an overall score of 79.1 points whereas 80 points were required. The Commission noted that the tender had been cancelled because none of the applications submitted had received a sufficient score.

According to the complainant, it subsequently learnt that Mr Cerkez, a member of the selection committee, had paid a visit to the current EU Health Reform Project that was led by Maxwell Stamp, a firm that had also participated in the tender. This visit took place in the afternoon of 14 December 2001. Still according to the complainant, Mr Cerkez revealed details of the evaluation process in the presence of Mr Wildman (the team leader recruited by Maxwell Stamp), Mr Sarley (Maxwell Stamp's project director) and the local project staff. The complainant claimed that Mr Cerkez admitted on this occasion that he had probably made a mistake by not giving the complainant's consortium the scores it deserved.

The complainant informed the Commission's Delegation accordingly by telephone on 24 December 2001. On 2 January 2002, the complainant wrote to the Delegation in order to repeat the information that had come to its attention and to ask the Delegation to investigate the situation in an adequate way.

Some days later, the complainant saw a pre-announcement for a new (identical) call for tender and telephoned the Delegation on 9 January 2002. It was informed that the whole procedure had now been suspended until the matter was clarified. The Commission expressed the hope that the complainant would be informed before the end of the period of 90 days provided in the relevant rules.

When the call for tender was nevertheless published subsequently (with a final date for applications of 8 February 2002), the complainant wrote to the Delegation on 14 January 2002 to ask for clarifications. The Delegation replied on 18 January 2002, pointing out that a decision on its appeal would be communicated to the complainant within the next two weeks. It also stressed that the new call for tender had been launched in order to avoid any delays, given that it was possible to cancel an on-going tendering process whilst it was impossible to launch a tender retroactively.

The complainant thereupon turned to the Ombudsman, pointing out that it had been disturbed by the various communications and that it wished to ensure that it did not suffer any disadvantage. The complainant basically alleged that the Commission had failed to assess its offer appropriately and fairly.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The launch of a new call for tender did not prejudge the outcome of the investigation of the complainant's appeal. In case of a positive decision on the appeal, the new tendering procedure would simply have been cancelled.

There was no delay in dealing with the appeal on the part of the Commission: the Commission sent its decision to the complainant on 31 January 2002, less than a month after the appeal had been received. The Commission's services had thoroughly investigated the case but had not discovered any evidence in regard to the alleged irregularity of the tendering process. The scoring of the accused voting member did not influence the result of the final recommendation of the tender evaluation committee. The voting scores demonstrated that there was no systematic down-scoring of the complainant by the accused voting member. Furthermore, the decision to recommend the cancellation of the tender had been taken unanimously by the evaluation committee. It should be noted that the final scores of the two leading companies were very close (79.1 and 78.2) and any other decision would, in fact, have been considered as arbitrary.

The complainant had mentioned three persons in his accusation that had participated in the meeting where the accused member of the tender evaluation committee supposedly had admitted having disadvantaged the complainant. The Delegation invited those persons who stayed in Sarajevo (Mr Wildman and Mr Cerkez) separately in order to confront them with the allegations. Both confirmed that a meeting had taken place; this meeting concerned, however, the on-going EC supported Health Reform Project and not the tendering process. Both persons interrogated claimed that the voting member had not revealed any details of the evaluation process nor that he had stated that he had made a mistake by not giving the complainant's consortium in several positions the scores it deserved. In these circumstances, the accusation of the complainant could not be proven; word stood against word. And the benefit of the doubt was with the accused voting member.

The relevant tendering evaluation was conducted in full conformity with established procedures and there was no other choice but to reject the complainant's appeal.

The complainant would not be disadvantaged by the decision to re-tender since the company would be free to submit a new bid. In fact the complainant had submitted a new bid. A new shortlist would be established at the end of April 2002.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Failure to assess bid appropriately and fairly

1.1 The complainant, a German consultancy firm, belonged to a consortium that submitted an offer in response to a call for tender (EC/BiH/01/028 - Health Care Reform Programme, Bosnia and Herzegovina) published by the Commission. By letter of 21 December 2001, the Commission's Delegation to Bosnia and Herzegovina informed the complainant that the consortium's bid had failed to meet the award criteria, having obtained an overall score of 79.1 points whereas 80 points had been required. The Commission noted that the tender had been cancelled because none of the applications submitted had received a sufficient score. The complainant subsequently appealed to the Commission to review this decision. In order to support its appeal, the complainant alleged that it had come to its knowledge that Mr Cerkez, a member of the selection committee, had paid a visit to the current EU Health Reform Project that was led by Maxwell Stamp, a firm that had also participated in the tender, on 14 December 2001. According to the complainant, Mr Cerkez had on this occasion revealed details of the evaluation process and admitted that he had probably made a mistake by not giving the complainant's consortium the scores it deserved. The complainant subsequently also took exception at the fact that the Commission had launched a new call for tender before deciding on its appeal. In its complaint to the Ombudsman, the complainant takes the view that the Commission thus failed to assess its bid appropriately and fairly.

1.2 The Commission considers that the launch of a new call for tender did not prejudge the outcome of the investigation of the complainant's appeal. In case of a positive decision on the appeal, the new tendering procedure would simply have been cancelled. In so far as the complainant's allegation concerning the meeting on 14 December 2001 are concerned, the Commission points out that it invited the two participants who stayed in Sarajevo (Mr Wildman and Mr Cerkez) separately in order to confront them with the allegations. According to the Commission, both confirmed that a meeting had taken place but denied that the relevant member of the tender evaluation committee had made the alleged remarks. The Commission considers that word thus stands against word and that the benefit of the doubt was with the accused voting member. It furthermore submits that there was no delay in dealing with the appeal, given that the Commission sent its decision to the complainant on 31 January 2002, less than a month after the appeal had been received.

1.3 The Ombudsman considers that the Commission appears to have taken adequate steps to deal with the matters raised by the complainant. He furthermore takes the view that the Commission has also acted within a reasonable period.

1.4 In these circumstances, there appears to be no maladministration on the part of the Commission.

2 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears that there is no maladministration on the part of the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN