THE BACKGROUND TO THE COMPLAINT

1. The European Development Funds ('EDFs') were setup initially by means of an annex to the EEC Treaty and subsequently through successive agreements between Member States meeting in the Council of the European Union. The EDFs aim to finance the European Union's cooperation with the African, Caribbean and Pacific states ('ACP States'). To date, there have been nine consecutive EDFs, each of which lasted five years (except the ninth, which was established in 2000 and lasted until 2007), and corresponded to the validity period of various agreements and conventions through which the European Community and its Member States agreed their special partnership with the ACP States. The EDFs are financed by Community funding and are governed by specific financial regulations. At present, a tenth EDF is in place, which will last until 2013.

2. The present complaint relates to the ninth EDF (the 'EDF'). In accordance with the relevant rules, commitments relating to previous EDFs, which were in force before the Partnership agreement signed by the members of the ACP and the Community in Cotonou on 23 June 2000 ('the Cotonou Agreement')[1], continue to be implemented.

3. The fourth ACP-EEC Convention, signed at Lomé on 15 December 1989 ('the Lomé IV Convention')[2], provides, in Article 316, that the European Commission must be represented in each ACP State by a delegate approved by the State or States concerned. Article 317 of the same Convention provides that this delegate shall have the necessary instructions and delegated powers to facilitate and expedite the preparation, appraisal and execution of projects and programmes under the EDF. Granted all the necessary back-up support to do so, the delegate shall, in close cooperation with the national authorising officer ('the NAO'), inter alia, participate and give assistance in the preparation of projects and programmes and in negotiating technical assistance contracts; participate in appraising projects and programmes; prepare financing proposals; for accelerated procedures, direct-agreement contracts, and contracts for emergency assistance, approve, before the NAO issues them, the invitation-to-tender dossier; be present at the opening of tenders and receive copies of them and of the results of their examination; approve the NAO's proposals for the different sorts of contracts; ensure that the projects and programmes financed from the resources of the EDF managed by the Commission are properly executed; and, in particular, make regular checks to see that operations are proceeding in accordance with the schedule laid down in the advance timetable contained in the financing decision.

4. Relatedly, Article 36 of Annex IV of the Cotonou Agreement refers to this delegate as the Head of the Delegation of the European Commission to the ACP country or countries in question ('the Head of Delegation') and provides for him to participate in preparing tender dossiers; approve, before NAO issues them, the local open invitations to tender; be present at the opening of tenders and informed of the results of their examination; approve the NAO's proposal for the placing of local open tenders; cooperate with the national authorities in evaluating operations regularly; and communicate to them all information and relevant documents on the procedures for implementing development finance cooperation, especially regarding appraisal and tender evaluation criteria.

5. The improvement of a road, in country X, was one of the projects financed by the ninth EDF. Therefore, in 2004, the National Roads Administration of country X ('the Contracting Authority' or 'the CA') launched an international tender procedure for a service contract ('the Contract') to execute that rehabilitation project.

6. The complainant, who represents a firm of consulting engineers based in country Y, participated in the tender. However, his bids on the three lots of the above tender were not selected. The winning technical and financial scores in each of the three lots were, respectively, 96,31%; 96.58%; and 96.68%; the complainant obtained 92.69%; 92.71%; and 92.72%.

7. On 21 June 2005, the complainant appealed against the outcome of the tender procedure with the CA and also contacted the Delegation of the European Commission to country X ('the Delegation'). Both approaches failed to result in any satisfactory outcome.

8. On 11 July 2006, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

9. The complainant alleged that the Delegation gave instructions to the CA that one of the lots in the tender procedure should not be awarded to him.

10. The complainant claimed compensation amounting to EUR 878 300.

11. In light of the complainant's unsuccessful appeal, the Ombudsman considered it important to ask the Commission, in his letter opening further inquiries into the complaint, to inform him of its interpretation of the relevant rules relating to appeals[3].

THE INQUIRY

12. The Ombudsman forwarded the complaint to the President of the Commission on 20 October 2006.

13. On 14 February 2007, the Ombudsman received the Commission's opinion, which he forwarded to the complainant with an invitation to submit observations. The complainant sent his observations on 31 May 2007.

14. On 5 December 2007, the Ombudsman asked the Commission to provide additional comments, which the Commission did on 18 April 2008. On 3 June 2008, the complainant submitted his observations on these additional comments.

15. In the meantime, on 19 February 2008, the Ombudsman's services conducted an inspection of the documents contained in the file at the Commission's headquarters in Brussels. The Ombudsman sent a report concerning this inspection to both the complainant and the Commission.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

16. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant suggested that the Ombudsman take testimony from a person who intervened in the assessment of his company's bids in the tender. According to the complainant, this person was "contracted to the EU Delegation as the ANE-EU Technical Advisor".

17. In accordance with the evidence available to him, the person in question represented the CA in the committee responsible for evaluating the tender bids ('the Evaluation Committee'), where he intervened as Secretary. The Ombudsman's Statute provides a possibility for officials and other servants of the Communities to testify on issues related to their duties. The Ombudsman, however, has no mandate to ask persons who are not officials or other servants to provide testimony. Therefore, even if the Ombudsman considers that it would be useful to take testimony from the person in question, he could not invite that person to testify[4].

A. The allegation concerning the irregular tender procedure and related claim

Arguments presented to the Ombudsman

18. The complainant alleged that the Delegation gave instructions to the CA that one of the lots in the tender procedure should not be awarded to him.

19. The complainant first referred to the selection process. He argued that, in mid-December 2004, the Evaluation Committee recommended in its report that lot 3 of the tender should be awarded to him. However, an individual appointed by the Delegation ('the Observer'), who attended the Evaluation Committee meetings, reported the selection results to the Head of Delegation who instructed the CA to change the award of lots 1 and 3 in favour of two tenderers who had not been recommended by the Evaluation Committee. Furthermore, during a meeting held in August 2005 with a representative of a company from country Z who participated in the above tender in partnership with the complainant's firm, the Head of Delegation stated that the complainant's bids could not have been selected because "he had no intention of awarding 2 lots out of 3 to [firms from country Y]."

20. The complainant thus took the view that, were it not for the Delegation's above instructions, his bid for lot 3 would have been selected instead of that of the successful tenderer. He based his view on the following alleged facts.

21. At the appraisal stage of the technical bids, the successful tenderer (i) did not indicate, in lot 3, the staff for the positions in a manner required by the tender specifications; and (ii) provided key experts for lot 1 who subsequently did not work on the Contract. Moreover, when the successful tenderers of lots 1 and 3 won the tender, they (iii) replaced some of their key experts, in contravention of the applicable rules.

22. The complainant felt that the Commission, although aware of the above alleged facts, failed to take appropriate action.

23. The Commission rejected the complainant's accusations and took the view that it duly fulfilled its obligation to make certain that the procedural rules were correctly applied and properly ensured the transparency of the overall tender procedure.

24. It explained that the responsibility for preparing the tender dossier and specifications, launching the tender procedure, receiving tenders, chairing tender-examination sessions, and deciding on the award of the Contract lay with the CA.

25. The Delegation exercised no undue influence on the work of the CA. Although the CA managed the tender procedure in close contact with the Delegation, at no time did the latter issue any instructions to it. When consulted, in accordance with the applicable procurement rules, the Commission limited itself to endorsing the decisions taken by the CA.

26. The Commission funded the Contract and ensured that the applicable legal conditions for Community financing of contracts in the context of external actions were met. This was carried out through an ex ante control of the tender procedure and of the award of the Contract.

27. Accordingly, it approved the procurement notice and the tender dossier with the technical specifications. After that, the CA appointed the members of the Evaluation Committee and the Head of Delegation approved its composition. Given that he had to be represented when the tenders were opened and evaluated, he also appointed the Observer, who attended the Evaluation Committee's sessions on his behalf. The latter was bound by a declaration of impartiality and confidentiality, similar to the one applying to the members of the Evaluation Committee. The Observer had no voting rights, but his presence during the Evaluation Committee meetings "aimed at ensuring transparency of the tender procedure."

28. The Commission then explained the procedure. The Evaluation Committee first assessed the candidate firms' compliance with the tender's administrative requirements. All eight of the invited consultancy firms, including the complainant, were accepted. Afterwards, the Evaluation Committee proceeded to the assessment of the technical offers. The technical quality of the offers was independently evaluated by each member of the Evaluation Committee and then discussed within the Committee as a whole. Five consultancy firms, including the complainant, obtained at least 80 points. They were considered technically compliant and were invited to tender. Following this, the envelopes containing their financial offers were opened. The complainant's financial score was about 3% lower than the successful tenderers of Lots 1 and 2, and 13% lower than the successful tenderer of lot 3. The resulting technical and financial scores were then added together. The contracts were awarded to the tenders achieving the highest overall score. Given that the complainant obtained an overall score approximately 4% lower than the successful tenderers in each of the three lots, it stood no chance of being awarded the tender.

29. On 24 January 2005, the Evaluation Committee issued a Tender Evaluation Report (TER) with a proposal to award the three lots to the successful tenderers. The Delegation underlined that it was the only TER which existed in its records. The Delegation approved this TER and publicised the successive stages of the tender procedure by adding its notices relating to the forecast, Contract, shortlist and award of the tender to the Commission's EuropeAid website.

30. The Commission has no record of any meeting held by the Head of Delegation, such as the one mentioned by the complainant. The Commission consulted the former Head of Delegation in this regard, who stated that he did not recall any such meeting and emphasised that even if such a meeting had ever occurred, he would never have commented on a specific tender, let alone make judgments on a tenderer's nationality.

The Ombudsman's assessment

31. At the outset, the Ombudsman points out that his mandate under Article 195 of the EC Treaty precludes him from dealing with allegations against institutions and bodies other than those of the Community. Therefore, he will not take a stance in the present inquiry on the alleged irregularities on the part of the authorities of country X when dealing with the tender in question.

32. Additionally, the Ombudsman understands that, in the decentralised management of tender procedures for the conclusion or execution of external aid contracts financed by the EU budget, the national CAs are in charge of launching and conducting tenders as well as negotiating and awarding contracts.

33. The Ombudsman will therefore limit himself to investigating whether the Commission applied a sufficient degree of care and diligence in its role as 'monitor' of the entire tender process to ensure that the applicable rules were complied with by the authorities of country X. In this respect, and with reference to the legal background of the complaint, as presented in paragraphs 1 to 4 above, the Ombudsman points out that all Community external aid projects make incumbent on the Commission an obligation and a duty of care that funds are spent in accordance with the applicable rules[5] and European standards. It is worth emphasising that the aforementioned standards include the principle of equal opportunities for all tenderers regardless of their nationality, as well as the principle of transparency[6].

34. Consequently, the Ombudsman does not understand the Commission's monitoring responsibility to mean, as the Commission argued in its opinion, that it should merely be present to ensure compliance with Community principles[7]. In his view, such responsibility provides instead a real possibility for the Commission to comment and take action, within its legal limits, if and when necessary.

Alleged instructions to the authorities of country X

35. First, the Ombudsman will look into the complainant's argument that the Delegation instructed the CA not to award the tender to his firm.

36. The complainant referred to an "initial TER prepared in December 2004", which originally recommended that his firm win lot 3 of the tender. The Commission denied the existence of any such TER. During the Ombudsman's inspection of documents, no trace of such a TER was found: there was no copy of such a document, nor any reference to such a TER in the Commission's other documents. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant implied that this TER might have not been submitted to the Delegation. In this regard, the Ombudsman recalls that he has no powers to establish contacts and/or to address requests for information to the authorities of country X.

37. The complainant further referred to an alleged conversation during a meeting held in August 2005 between the Head of Delegation and a representative of a firm from country Z who entered the bids of the tender, in partnership with the complainant's firm. In this respect, the complainant enclosed a "Note to the file", drafted by two of his company's staff members, describing the content of that conversation. The Commission stated that it had sought testimony from the then Head of Delegation who denied that content. During the Ombudsman's inspection of documents in the Commission's files, no record of such a conversation or of any meeting the Head of Delegation may have had with the partner of the complainant's firm was found. Thus, the Ombudsman is faced with a situation which prevents him from being able to take an appropriate stance on the complainant's argument.

38. In light of the above paragraphs 36 and 37, the Ombudsman considers that no further inquiries are justified into this aspect of the complaint.

Alleged irregularities in the tender procedure and the Commission's reaction

39. As regards the staff of the successful tenderers, the complainant took the view that these firms were technically not compliant and should have been eliminated.

40. In this regard, the complainant argued that the tenderer selected for lot 3 nominated only eight persons for the 18 positions called for in the submissions for the call to tender. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant added that the said tenderer referred to the other ten experts only in a "Summary Sheet". These experts were referred to as "to be advised". Moreover, that tenderer "promoted" its 'Deputy Resident Engineer' to 'Resident Engineer', contrary to the applicable rules. All this indicated that the tenderer, ultimately, concealed that, at the relevant time, it did not have the necessary staff available. In this regard, the complainant put forward that an inspection by the Ombudsman's services could confirm his position.

41. Relatedly, the complainant also argued that the firm selected for lot 1 replaced at least three of its 'Key Experts' with staff from the complainant's proposal. It further substituted its 'Resident Engineer' by engaging the complainant's proposed 'Resident Engineer'. This was despite the fact that the experts proposed in the complainant's tender were assessed as substantially lower than the said firm's experts by the Evaluation Committee and/or did not meet the minimum linguistic and academic qualifications and/or experience required for senior positions.

42. The Commission explained that the rules on the assessment of eligibility required the tenderers to submit experts' Curricula Vitae for only seven positions. Subsequently, after the shortlisting of the tenderers, they had to provide Curricula Vitae for 14 different categories of their experts. The successful tenderer of lot 3 attached eight Curricula Vitae to its initial application and 18 Curricula Vitae to its technical offer. In addition, the proposed fees for each position were detailed in its financial offer, which identified the names of the proposed experts for the first eight positions. The Delegation approved, on 28 July 2004, the CA's tender pre-selection report, including the shortlist prepared by the Evaluation Committee, and, then nominated an Observer to be present at all meetings, notably, the tender's opening session of 4 November 2004.

43. Moreover, although the tenderers had to provide Curricula Vitae for 14 different categories, only four of those (the 'Resident Engineer', 'Deputy Engineer', 'Materials Engineer', and 'Structural Engineer'), were 'Key Experts' and were, therefore, evaluated in the context of the technical assessment. The bid of the complainant's firm was technically compliant and the marks awarded were very close to those of the successful bid of lot 1. There were only two experts from the complainant's bid who later "represented" the winning bid of that lot: Mr H and Mr M. Mr H was the 'Resident Engineer' in the complainant's bid and therefore a 'Key Expert', who was evaluated when representing the complainant. His evaluation, as compared to that of the winning bid, differed by only a small amount (1.8 points out of a total of 25). As regards Mr M, who was not a 'Key Expert' and who was therefore never evaluated, the fact that he was placed in a higher position in the winning bid than that of the one in the complainant's bid did not mean that he did not have the necessary qualifications and/or experience. The choice fell under the competencies of the firm in question and it was up to the CA to assess whether or not the required equivalence existed.

44. According to the Commission, the applicable rules allowed, under certain conditions, for requests to be made to the CA for the replacement of staff[8]. In addition, nowhere did the relevant rules state that it was not possible to recruit a member of a competitor's staff. Both successful tenderers in lot 1 and lot 3 requested the CA to allow them to replace their 'Resident' and 'Deputy Resident' engineers. The CA approved the Curricula Vitae of the 'new' experts in question and agreed to the replacement in writing. The Delegation did not contest the adequacy of the 'new' experts and endorsed the CA's agreement.

45. The Commission emphasised, however, that it was mindful that the applicable rules also provided for the possibility of the tender being rejected, if an originally proposed and approved key expert was not available at the start of the contract activities. However, the CA, acting on its prerogatives, agreed with the replacements.

46. In accordance with the relevant rules, successful tenderers are bound to provide the staff they specify in the tender. In this regard, 'Key Experts' play a substantial role as their participation is essential to achieving the objectives of a project. They are subject to the Evaluation Committee's assessment. They therefore have to be duly identified and their qualifications and experience properly attested[9].

47. The Terms of Reference ('ToR') state in point 8 that tenderers must provide 17 'Key persons' with their technical offers to compose an indicative team of 13 different categories of professionals[10].

48. From the documents obtained during his inspection of the Commission's files, the Ombudsman notes that, in its fax to the different tenderers dated 5 October 2004, the CA clarified that (i) there were four 'Key Experts';[11] and (ii) tenderers needed to submit Curricula Vitae for the 14 categories mentioned in the ToR[12].

49. By providing 18 Curricula Vitae of experts, the tenderer in question fulfilled, according to the Commission, the necessary requirements.

50. According to the complainant's observations on the Commission's reply to the Ombudsman's request for further information, the tenderer in lot 3 did not substantiate any request for replacement of its staff to the CA, and deliberately concealed that most of its team were not available to carry out the project. This was evidenced by an advertisement, published in a magazine issued in February 2005, according to which three 'Key Expert' positions were available with it for employment in country X in mid-2005[13]. In March that year, the said tenderer replaced three out of four of his 'Key Experts'.

51. In the complainant's view, the Declarations of Exclusivity and Availability signed by the experts, and the provision according to which "[o]nce a shortlist has been approved by the contracting authority and the Head of Delegation, shortlisted service providers or consortia may no longer form alliances or subcontract to each other for the contract in question"[14] precluded, contrary to the Commission's position, the recruitment of a competitor's staff members. Relatedly, it was not possible for experts to leave and no expert could have thus, as argued by the Commission, "found another assignment".

52. The Ombudsman recalls that it is for the Courts of competent jurisdiction to establish in a definitive manner whether a legal rule has or has not been violated[15]. Nevertheless, in this regard, he notes that it would appear from the pertinent phrasing of the applicable rules that the rejection of a tenderer because of the unavailability of a 'Key Expert' at the beginning of contract activities is presented only as a possibility[16]. Therefore the CA would appear to enjoy a significant amount of discretion in this regard.

53. Consequently, it appears that the replacement of staff was allowed by the applicable rules which, notably, provided for an obligation on the part of the contractor to propose such replacements when it became necessary for any reason beyond its control. Moreover, as long as it felt that the performance of the Contract was not jeopardised, the CA appears to have even been able to accept replacements for staff less qualified and/or experienced. The CA enjoyed, therefore, an important amount of discretion also in this regard[17]. In the Ombudsman's view, however, it is important that discretion does not become equivalent to arbitrariness.

54. The question arises as to whether the Commission (i) should have raised with the CA the issue regarding the compatibility of the replacements with the applicable rules and/or general principles or, on the contrary, (ii) did not need to ask the CA to explain why it decided to use its discretion in the manner it did. In the Ombudsman's view, the Commission's general approach to the complainant's arguments, namely, that it simply limited itself to endorsing the CA's approval of replacements by not objecting to them, cannot be accepted.

55. In this regard, the Ombudsman notes that the second paragraph of Article 11.13 'Provision and replacement of experts' of the General Regulations of Decision 2/2002 reads as follows:

"Should a company and/or proposed experts deliberately conceal the fact that all or some of the team proposed in their tender are unavailable from the date specified in the tender dossier for the start of the assignment, they may be excluded from the tender procedure by the committee. Should the contracting authority and the Commission learn that such facts have been concealed after the contract had been awarded, they may decide either to cancel the award of the contract and recommence the tender procedure or to award the contract to the tender awarded second place by the committee. Such behaviour may lead to a tenderer's exclusion from other Community contracts."

56. The Ombudsman does not consider that the evidence available to him is such as to establish with a sufficient degree of certainty that successful tenderers concealed that they did not have staff available or, more importantly, that the Delegation knew that this was the case. He does consider it however pertinent that such a doubt could have normally been raised within the Delegation, considering, in particular, the number and the sort of experts replaced by the tenderers selected for lots 1 and 3. In this regard, the Ombudsman finds it surprising that the CA's repetitive acceptance of such replacements did not result in the Delegation requesting information from it, with a view to making sure that no relevant rules were violated. The Delegation's passive approach to the CA's acceptance of the replacement of the successful tenderers' staff raises doubts about its commitment to its obligation to monitor the overall procedure and to guarantee proper regard for the principles of transparency and equal opportunities. This was an instance of maladministration and a critical remark will be made below.

57. The complainant claimed compensation amounting to EUR 878 300.

58. In support of his claim, the complainant argued that he suffered losses from not being rightfully awarded the Contract. Specifically, (i) EUR 378 300 comprising lost profits; the costs incurred when compiling the pre-qualification document and tender proposals; and compensation to staff that were laid off as a result of the wrongful non-award; and (ii) EUR 500 000 for additional losses suffered due to the recruitment by his competitors of four of his senior personnel who, for economic reasons, had to join them; and the consequent impossibility for the complainant to prepare meaningful and competitive proposals for future projects, including EU-funded contracts in the relevant field.

59. At the outset, the Ombudsman notes that, according to the established case-law, if the Community is to incur non-contractual liability, it is necessary to provide evidence that (i) the conduct of which the Community is accused is illegal; (ii) the alleged damage is real; and (iii) there is a causal link between that conduct and the alleged damage[18].

60. In the present case, the overall damage for the complainant, if any, was very difficult to quantify with sufficient precision[19].

61. Even in the event there was indeed any illegality and/or irregularity in the present case, notably related to the replacement of staff, this would have been due to actions on the part of the CA. The complainant's claim should thus have rather been directed against the CA through the procedures provided for in the tender rules. In this regard, the Ombudsman notes the complainant's 'appeal' to the CA of 21 June 2005[20].

62. Even if the Commission had warned the CA that the replacement may not have been made in accordance with the applicable rules, it is still not certain that the Contract would have been awarded to the complainant, or that it would have been necessary to annul the entire procedure and that the new tender, if any, would result in the complainant being awarded the Contract. Indeed, by analogy to established case-law, even if the Evaluation Committee had recommended acceptance of the complainant's bid, he still would not have been certain of securing the Contract, since the CA is not bound by the Evaluation Committee's proposal and has a broad discretion when assessing the factors to be taken into account for the purpose of awarding the Contract[21].

63. Finally, the Ombudsman notes the Commission's references to chapter 10 of the Instructions to Tenderers, according to which, "no costs incurred by the tenderer in preparing and submitting the tender shall be reimbursable. All such costs shall be borne by the tenderer. In particular, if proposed experts were interviewed, all costs shall be borne by the tenderer".

64. In light of the foregoing, the Ombudsman concludes that the complainant's claim cannot be sustained.

B. The specific issue relating to appeals under Article 8 of the General Regulations annexed to Decision 2/2002

65. The Ombudsman felt concerned about the Commission's interpretation of the rules applicable to tenderers' appeals to the CA. He therefore asked the Commission, in his letter opening further inquiries, to inform him about its interpretation of Article 8 'Appeals' of the General Regulations annexed to Decision 2/2002.

Arguments presented to the Ombudsman

66. The Commission replied that the above Article provided for a reply by the CA within 90 days of receiving a complaint submitted by a tenderer harmed by an error or irregularity during the award process. When informed of such a complaint, the Commission's role is to encourage the settlement of the dispute to the extent of its capabilities.

67. However, in some cases, the Delegation's active involvement in matters falling exclusively under the competence of the CA may be perceived as an unnecessary interference and, therefore, result in misunderstandings, which should be avoided. The degree of intervention in these types of disputes has to be assessed by the Delegation on a case by case basis, depending on the concrete context of the existing relations with the CA.

68. When the complainant contacted the Delegation, by letter of 19 May and by telephone on 24 May 2005, with the purpose of holding a meeting, the Commission took the view that receiving the complainant could be seen as an interference by the authorities of country X in the tender procedure. Nevertheless, it suggested that the complainant put his concerns to it in writing, which he refused to do. When the complainant, by letter of 24 June 2005, reiterated his request for a meeting, the Delegation forwarded it, on 28 June 2005, to the CA, so as to encourage the settlement of the dispute. It pointed out to the CA that the award of the Contract fell under its responsibility and that the European Commission was only an observer. The following day, it informed the complainant that his letter had been forwarded to the CA. The Commission regrets that forwarding this letter to the CA did not contribute to resolving the matter.

The Ombudsman's assessment

69. Article 8. 'Appeals' of the General Regulations of Decision 2/2002 provides that:

"Tenderers believing that they have been harmed by an error or irregularity during the award process may petition the contracting authority directly and informing [sic] the Commission. The contracting authority must reply within 90 days of receipt of the complaint.

Where informed of such a complaint, the Commission must communicate its opinion to the contracting authority and do all it can to facilitate an amicable solution between the complainant (tenderer) and the contracting authority.

If the above procedure fails, the tenderer may have recourse to procedures established under the national legislation of the State of the contracting authority.

European citizens also have the right to complain to the European Ombudsman, who investigates complaints of maladministration by the European Community institutions.

Should the contracting authority fail to adhere to the contract award procedures provided for in these general regulations, the Commission reserves the right to suspend, withhold or recover funding for the contracts under suspicion."

70. In accordance with the evidence available to the Ombudsman, the complainant addressed a letter to the CA on 21 June 2005, in which he questioned the conformity of some of the successful bids with the requirements of the tender. In that letter, the complainant took the view that the evaluation and subsequent award of the Contract was irregular. The Ombudsman notes that, in its reply, the Commission referred to the above letter as a complaint in the framework of Article 8 of the General Regulations of Decision 2/2002. He therefore understands that the Commission was informed about its contents at the relevant time.

71. The Ombudsman does not consider the simple forwarding of a letter, in which the complainant (i) takes note of the Head of Delegation's inability to meet him and (ii) considers the award procedure "irregular following direct intervention by the Delegation at the highest level", to be enough to satisfy the obligation on the part of the Commission to "communicate its opinion" to the CA and/or to "do all it can to facilitate an amicable solution" between the complainant and the CA in the context of the tenderer's complaint to the CA. In this respect, the Ombudsman notes the complainant's argument that he did not receive any reply from the CA to his complaint.

72. The Ombudsman is also not convinced by the Commission's statements concerning possible misunderstandings on the part of the CA. Indeed, he does not see how following a clear legal provision, well-known to the Commission, the CA and the tenderers alike, could give rise to any misunderstanding. In the Ombudsman's view, it is only by not following the above provision that the Delegation created the impression that it did not monitor the procedure attentively and/or that it had an influence on it, to the detriment of the complainant.

73. In light of the above, the Ombudsman concludes that the Delegation did not contribute in an appropriate manner to the appeal procedure initiated by the complainant with the CA, in the framework of Article 8 'Appeals' of the General Regulations of Decision 2/2002. However, considering that this aspect of the present complaint did not result from any specific allegation put forward by the complainant, the Ombudsman will not criticise the Commission but make a further remark in this regard below.

C. Conclusion

For the reasons given in paragraph 38, no further inquiries are justified into the complainant's arguments relating to the alleged instructions from the Delegation to the Contracting Authority.

For the reasons given in paragraph 56, an instance of maladministration has been found regarding the complainant's arguments relating to the Commission's reactions concerning possible irregularities in the tender procedure.

For the reasons given in paragraph 64, the complainant's claim for financial compensation cannot be sustained.

The Ombudsman therefore closes the case. The complainant and the President of the Commission will be informed of this decision.

D. Critical Remark

The Ombudsman makes the following critical remark to the Commission:

The Delegation's passive approach to the Contracting Authority's acceptance of the replacement of successful tenderers' staff did not take sufficient account of its obligation to monitor the overall procedure and its commitment to ensuring proper regard for the principles of transparency and equal opportunities.

E. Further Remark

The Ombudsman considers it useful to make the following further remark to the Commission:

The Commission's Delegations could, for complaints made in accordance with Article 8 of the General Regulations of Decision 2/2002, ensure that they do all they can to facilitate amicable solutions between tenderers and Contracting Authorities.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 13 January 2009

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[1] The Cotonou Agreement is available under the following link: http://ec.europa.eu/development/geographical/cotonou/cotonoudoc_en.cfm.

[2] OJ 1991 L 229, p.3.

[3] This issue shall be dealt with under part B of the present decision.

[4] Article 3(2) of the Ombudsman's Statute provides that "[o]fficials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall continue to be bound by the relevant rules of the Staff Regulations, notably their duty of professional secrecy."

[5] Notably, (i) the procurement rules laid down in Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement; (ii) the General Regulations for service, supply and work contracts financed by the EDF, annexed to Decision 2/2002 of the ACP-EC Council of Ministers of 7 October 2002 regarding the implementation of Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement (the 'General Regulations of Decision 2/2002'), OJ 2002 L 320, p.1; and, in the present case, (iii) contract procedures financed from the ninth European Development Fund.

[6] See in this regard, case C-496/99 P, Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 108 - 111:

"The Court has consistently held, in cases concerning public procurement, that the contracting authority is required to comply with the principle that tenderers should be treated equally (see, inter alia, Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 37, and Case C-315/01 GAT [2003] ECR I-6351, paragraph 73).

It is also clear from the case-law that the above mentioned principle implies an obligation of transparency in order to permit verification that it has been complied with (see, inter alia, Case C-92/00 HI [2002] ECR I-5553, paragraph 45, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 91).

Under the principle of equal treatment between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions.

The principle of transparency which is its corollary is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract."

[7] In the Commission's wording: "[t]he presence of the Delegation's representative at meetings - acting as observer with no voting rights - was indeed aimed at ensuring transparency of the tender procedure."

[8] Article 11.13 "Provision and replacement of experts" of the General Regulations of Decision 2/2002 provides, in its paragraph 3 and following, that:

"[T]he contract must not only identify the key staff to be provided but specify the qualifications and experience required of them. This is important if the contractor wishes to replace staff after the contract has been signed and concluded. This situation may arise before performance of the contract has even begun or while it is in progress. In both cases, the contractor must first obtain the contracting authority's written approval by substantiating his request for replacement. The contracting authority has 30 days from the date of receipt of the request in which to reply.

The contractor must, on his own initiative, propose a replacement where:

(a) a member of staff dies, falls ill or suffers an accident;

(b) it becomes necessary to replace a member of staff for any other reason beyond the contractor's control (e.g. resignation, etc.).

In the course of performance, the contracting authority may also submit a substantiated written request for a replacement where it considers a member of staff incompetent or unsuitable for the purposes of the contract.

Where a member of staff has to be replaced, the replacement must possess at least equivalent qualifications and experience and his remuneration may in no circumstances exceed that of the expert replaced. Where the contractor is unable to provide a replacement possessing equivalent qualifications and/or experience, the contracting authority may either terminate the contract, if it feels that its performance is jeopardised, or, if it feels that this is not the case, accept the replacement, in which case the latter's fees are to be negotiated downwards to reflect the proper level of remuneration. (...)."

Article 18 "Provision of personnel", point 4 of the General Conditions for Service Contracts financed by EDF (OJ 1990 L 382, p.1) provides that:

"The consultant shall not make changes in the personnel without the prior approval of the contracting authority. However, the consultant shall provide a replacement with at least equivalent qualifications and experience and acceptable to the contracting authority if:

(a) on the account of sickness or accident, a member of staff is unable to continue providing his services;

(b) any person specified in the contract is found by the contracting authority to be incompetent in discharging or unsuitable for the performance of his duties under the contract;

(c) for any other reason beyond the control of the consultant, it becomes necessary to replace any of his personnel."

[9] According to the Commission, Article 4.1 "Proposta técnica" of Instructions to Tenderers provides (in the original Portuguese) that:

"(3) Peritos chaves (...) Os peritos chaves são os colaboradores cuja participação é considerada como essencial à realização dos objectivos do projecto. Suas funções e responsabilidades, são definidas nos Termos de Referência (...) e de acordo com o modelo de avaliação que se encontra na parte A do presente documento de concurso, eles são objecto duma avaliação. [Eles podem igualmente ser ouvidos pela comissão de avaliação] (...)"

[10] The ToR, enclosed with the Commissions' opinion and forwarded to the complainant for his observations, provide, in point 8, that (in the original Portuguese):

"O consultor deve providenciar as seguintes pessoas chave possuindo as seguintes qualificações para assumir as seguintes funções na equipa de fiscalização. A título indicativo a equipa deverá incluir:

1 Director de Projecto

1 Especialista de Contratos de Obra de Estradas

1 Jurista

1 Engenheiro Residente / Chefe de projecto

1 Engenheiro Civil / Chefe de projecto Adjunto

1 Engenheiro Geomecânico / Materiais

1 Engenheiro Civil / Especialista em Pontes

2 Topógrafos

3 Fiscais

1 Encarregado de laboratório

2 Técnicos de laboratório

1 Técnico Ambientalista

1 Técnico de Saúde Pública ou Social".

The Ombudsman notes that the complainant and the Commission refer to the number of the requested staff and categories always as "18" and "14" respectively. The Ombudsman understands this to be due to the fact that the ToR provide for two positions under topographer (in the original Portuguese): "Topógrafo Sénior" and "Topógrafo".

[11] In the original Portuguese: "a. Eng° Residente / Chefe de projecto; b. Eng° Chefe de projecto adjunto; c. Eng° Geomecânico / Eng° Materiais; e d. Eng° Especialista de Pontes. (...). São os peritos chave, incluindo o eng° de Pavimentos/Betuminosos." In light of the foregoing wording, the Ombudsman is unclear whether there were, ultimately, 4 or 5 'Key Experts'. The evaluation grid used, according to the Commission, to evaluate these experts (enclosed with the Commission's reply to the Ombudsman's request for further information), does not clarify this aspect as a significant part of it is barely legible.

[12] In the original Portuguese: "São necessários os CV's para as 14 categorias apresentadas no ponto 8 do anexo II, Termos de Referência, na pág.12."

[13] The complainant enclosed a copy of the advertisement with his initial complaint, which was forwarded to the Commission for its opinion.

[14] Third paragraph of Article 11.2 of the General Regulations of Decision 2/2002.

[15] In the present case, country X.

[16] According to the Commission, Article 4.1 "Proposta técnica" of Instructions to Tenderers provides that when a key expert is not available at the beginning of the contract activities, the corresponding proposal may be rejected and the expert excluded from the tender as well as from projects financed by the EC (in the original Portuguese):

"(...). Quando um perito chave não está disponível no início de suas actividades, a proposta correspondente pode ser rejeitada e o respectivo perito será excluído do concurso assim como poderá ser também excluído dos projectos financiados pela CE (...)"

[17] See footnote 8 above.

[18] See, in this regard, Case T-54/96, Oleifici Italiani SpA and Fratelli Rubino Industrie Olearie SpA v Commission [1998] ECR II-3377, paragraph 66:

"[a]ccording to consistent case-law, if the Community is to incur non-contractual liability, it is necessary to prove that a number of conditions regarding the illegality of the conduct of which the Community institutions are accused are met, that the alleged damage is real and that there is a causal link between that conduct and the alleged damage (Case T-184/95 Dorsch Consult v Council and Commission [1998] ECR II-667, paragraphs 59 and 60, and the case-law cited; Case T-168/94 Blackspur and Others [1995] ECR II-2627, paragraphs 38 and 40, and the case-law cited; and Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier Frères and Others v Council [1979] ECR 3091, paragraph 21), the burden of proving that such conditions are in fact met being borne by the applicants (Case T-185/94 Geotronics v Commission [1995] ECR II-2795, paragraph 39)."

[19] The Ombudsman notes, however, that the complainant included a table showing his calculation of the amount of alleged damages included in his claim and totalling EUR 378 300.

[20] He will deal with the corresponding aspect of the complaint under part B below.

[21] See, in this regard, Case T-13/96, TEAM Srl v Commission [1998] ECR II-4073, paragraph 76:

"As to the damage resulting from the loss of profit, it is sufficient to note that the claim in that connection presupposes that the applicant was entitled to be awarded the contract. It must be observed in that regard that, even if the evaluation committee had recommended acceptance of the consortium's bid, the applicant could not have been certain of securing the contract, since the contracting authority is not bound by the evaluation committee's proposal but has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (see, to that effect, Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 49). It follows that the damage at issue was not real and existing, but future and hypothetical."