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Decision in case 1515/2015/DR on how the European Monitoring Centre for Drugs and Drug Addiction evaluated bids for a contract to provide interpretation services

Dostępne języki :  en
  • Sprawa :  1515/2015/DR
    Otwarta 2015-11-10 - Decyzja z 2018-04-12
  • Dotyczy(Dotyczą) instytucji :  Europejskie Centrum Monitorowania Narkotyków i Narkomanii

The case concerned how the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) evaluated tenders for a contract to provide interpretation services. The complainant argued that the ‘Evaluation Committee’ had misinterpreted the criteria set out in the ‘invitation to tender’. In addition, the EMCDDA did not properly explain why the successful tender was deemed to be the most economically advantageous.

The Ombudsman found that the evaluators had not misinterpreted the award criteria, and had provided sufficient explanations as to why the successful tender was chosen. She thus closed the case.

Background to the complaint

1. The complainant, a Portuguese company, submitted a bid in response to an invitation to tender from the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) for the coordination and provision of interpretation services[1]. According to the specifications in the ‘invitation to tender’[2], the interpretation services were necessary “mainly for the meetings of the EMCDDA Management Board, Executive Committee and Budget Committee which require interpretation from and into four ’active‘ languages: French, English, German and the language of the Chair, currently Portuguese) and into two other ’passive’ official EU languages on a rotation basis, as much as possible by protocol order and in principle to cover all of them" [sic].[3] The invitation to tender also states that ”[f]urther to these statutory meetings, there are other meetings organised by the EMCDDA requiring interpretation services. In most of the cases, these meetings are not included in the annual planning of the agency and depend on ad hoc requests from the Member States, EU bodies or third parties”.

2. In preparing its tender proposal, the complainant requested clarifications about what was meant with passive languages to be covered “on a rotation basis”. The EMCDDA replied that the choice of the rotating passive languages was linked to the languages of the rotating EU Presidency[4].

3. After the complainant’s tender was not selected, it contested how its tender had been evaluated, and argued that the EMCDDA had misinterpreted the ‘award criteria’ set out in the call for tenders. The EMCDDA disputed the complainant’s view. It considered that it had not misinterpreted the award criteria, and that it had provided the complainant with all relevant clarifications. 

4. Dissatisfied with the EMCDDA’s position, the complainant turned to the European Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into the complainant’s concerns that the EMCDDA had misinterpreted the award criteria and did not explain why the successful tender was deemed to be the most economically advantageous.

6. In the course of the inquiry, the Ombudsman invited the EMCDDA to address the complainant’s concerns. The Ombudsman received the EMCDDA’s response and, subsequently, the comments of the complainant on the EMCDDA’s response. The Ombudsman’s inquiry team also examined the EMCDDA’s file on the invitation to tender. The Ombudsman's decision takes into account the arguments and views put forward by the parties.

How the award criteria were evaluated

7. The ‘award criteria’ set out in the invitation to tender were as follows:

Qualitative criteria # 1: Quality of the tenderer in terms of ability to coordinate and provide a team of interpreters capable to carry out simultaneous interpretation services in the requested languages, including mechanism proposed for coping with urgent requests and replacement of interpreters.

Qualitative criteria # 2: Quality and effectiveness of the team proposed in terms of number of interpreters by language and availability of native speakers per language.

Qualitative criteria # 3: Number of interpreters with more than 250 days of work as interpreter provided at meetings or conferences with a clearly identifiable international component (including national parliaments, ministries and embassies, as well as regional or provincial authorities).

Qualitative criteria # 4: Number of interpreters with experience in working with drug and drug related, and European institutional, terminology.[5]

8. Regarding criterion #1, the ‘Evaluation Committee’, which assessed the tenders, considered that both the complainant and the tenderer that was awarded the contract demonstrated “the ability and the experience to set up teams of interpreters in general”. The Committee also noted that, “as regards the ability to organise teams capable to carry out interpretation in the requested languages, [the successful tender] contained elements providing an additional guarantee that the language needs of the EMCDDA would be covered”. Finally, the Committee noted that both the complainant and the successful tenderer “state[d] in their proposals that native speaking interpreters [would] be placed in the active language booths, without relay”. Both the complainant’s tender and the successful tender were awarded 51 weighted points.

9. For criterion #2, the Evaluation Committee compared ‘the number of interpreters and the number of languages covered by native speakers’. It stated that the successful tenderer “proposed 75 interpreters, with 19 languages covered by native speakers”. The complainant instead “proposed 34 interpreters, covering 13 languages by native speakers but only 9 passive languages”. The complainant was awarded 69 weighted points and the successful tenderer 84.

10. Under criterion #3, the Evaluation Committee noted that the successful tenderer “proposed 69 interpreters, each of whom had acquired more than 250 days of work experience as an interpreter at meetings or conferences with a clearly identifiable international component, while [the complainant] list[ed] 34 interpreters with the same qualifications. All interpreters from both offers have long working experience”. The complainant was awarded 96 weighted points and the successful tenderer 116.

11. Finally, regarding criterion #4, the Evaluation Committee stated that amongst “the interpreters proposed by [the winning tenderer], 70 have experience in working with drug and drug-related as well as European institutional terminology. For [the complainant], all of the 34 interpreters have experience with drug-related and EU institutional terminology”. The complainant was awarded 23.50 weighted points and the successful tenderer 29.

Arguments presented to the Ombudsman

12. The complainant argued that the EMCDDA misinterpreted the award criteria #2, #3, and #4 (hereinafter, ’the three award criteria’) by taking into account only the number of interpreters included in each tender proposal. In the complainant’s view, the EMCDDA carried out an essentially quantitative assessment even though the three award criteria were supposed to be qualitative in nature.

13. The complainant also argued that the invitation to tender did not state that interpreters were required to cover every EU official language, but only to provide interpretation from and into four ‘active languages’, plus two ‘passive languages’ that would rotate during the four-year contract period. The complainant had asked the EMCDDA to clarify what was implied by the rotational languages and formulated its tender based on the EMCDDA’s response that these were the languages linked to the rotational EU Presidency[6].

14. The complainant further contended that the Evaluation Committee, in assessing the tenders under criterion #2, was wrong to focus solely on the number of interpreters. Instead, it should have assessed the “quality and effectiveness” of the interpretation teams in the different tenders. The complainant noted that it had proposed a team of native speakers for all active languages, as confirmed by the Evaluating Committee’s comments concerning criterion #1. The complainant argued that it was not clear from the Evaluation Committee’s comments whether all the interpreters of active languages in the successful tender were native speakers.

15. The complainant also stated that, whereas all the interpreters in its tender met the description set out in criterion #3, six of the 75 interpreters in the successful tender did not. Furthermore, the complainant argued that the Evaluation Committee’s statements were contradictory, as not “all interpreters” included in the successful tender had long work experience.

16. The complainant further stated that, whereas all the interpreters in its proposal met the description of the relevant experience required under criterion #4, five of the 75 interpreters in the successful tender did not.

17. The complainant thus considered that the scores awarded to its tender and the successful tender under the three award criteria were “arbitrary, based on irrelevant elements, partial and unfair”.

18. Finally, the complainant pointed out that the cost of its tender was 11% lower than the successful tender. However, the Evaluation Committee had not clarified why the successful tender “was deemed the economically most advantageous tender”. The complainant also noted that it had won a separate contract to provide interpretation services for the EMCDDA with an offer based on the same elements as its tender for this contract. In the complainant’s view, this was because its offer had met the EMCDDA’s needs and represented the best value for money.

19. In its response, the EMCDDA stated that the evaluation process was conducted in accordance with the award criteria and the formula created for assessing those criteria. It argued that the complainant’s interpretation of the award criteria was incorrect. It also stated that the evaluation process was carried out by applying all components of the criteria, both qualitative and quantitative (such as the number of interpreters).

20. Regarding how the economical merits of the tenders were evaluated, the EMCDDA pointed out that the assessment was made using a predefined formula. This formula assessed various factors to determine which tender offered the best value-for-money, and not solely the price, and attributed scores to the tenders on this basis.

The Ombudsman's assessment

21. According to established EU case-law, ‘contracting authorities’ that award contracts involving EU funds, and evaluation committees in general, have broad discretion in determining the factors to be taken into account for the purpose of deciding to award a contract, following an invitation to tender. The substance of decisions by such contracting authorities can be subject to review (by the Courts or the Ombudsman, who applies broadly the same standards) only if there has been a manifest error of assessment[7].

22. The complainant’s main argument is that the EMCDDA evaluated the three award criteria on a quantitative basis, despite them being described as ‘qualitative criteria’. Thus, by relying only on the number of interpreters included in the tender proposals, the complainant argues that the EMCDDA misinterpreted the award criteria.

23. The Ombudsman notes that there is no predefined number of interpreters required for each language in the specifications of the invitation to tender. It was therefore up to each tenderer to propose a list of interpreters. However, in the descriptions accompanying each of the three award criteria the ‘number of interpreters’ is listed as a factor for assessment.

24. The Evaluation Report clearly shows that, in awarding scores for the three award criteria, the Evaluation Committee considered the number of interpreters as an important factor in evaluating the different tenders. However, this does not constitute a misinterpretation of the award criteria. In the Ombudsman’s view, the use of a quantitative element (‘number of interpreters’) - which was clearly mentioned in the specifications - formed part of an objective qualitative assessment of the tenders.

25. The complainant further contends that, as its tender included a team of native speakers for all active languages, it fully met the requirements of criterion #2. This contention is not supported by the wording of the criterion and the description accompanying the criterion, which simply states that the EMCDDA will assess the ‘number of interpreters by language’ and the ‘availability of native speakers per language’.

26. From the Evaluation Report, it is clear that the successful tender included “75 interpreters, with 19 languages covered by native speakers”. The complainant’s tender included “34 interpreters, covering 13 languages by native speakers, but only 9 passive languages”. Hence, the successful tender was awarded more points because it covered more languages with native speakers than the complainant. This evaluation is not incompatible with the award criterion in question.

27. The Ombudsman also notes that, while it was up to each tenderer to propose a list of interpreters, the number of interpreters necessarily depended on the number of languages (active and passive) that needed to be covered. In that regard, the complainant contends that, according to the invitation to tender, tenders did not have to include interpreters for every official EU language, but only interpreters who could provide interpretation services from and into the languages requested by the EMCDDA during the four years of the contract. The complainant argues that, as a result, its tender included sufficient interpreters with profiles that could cover the interpretation services necessary for the four active languages and nine rotating passive languages, which it had determined based on the indications given by the EMCDDA.

28. However, the Ombudsman notes that the invitation to tender states that the interpretation services were ”mainly” needed for regular meetings requiring interpretation from and into four active languages and into two other ”passive official EU languages on a rotation basis”, but also ”in principle to cover all of them (emphasis added)[8]. While the Ombudsman finds that, on this point, the invitation to tender could have been drafted more clearly – which the EMCDDA is encouraged to do in the future – she understands this to mean that the interpretation services should, in principle, cover all official EU languages (that is, all the remaining official EU languages after excluding the four active languages).

29. Furthermore, it appears from the invitation to tender that the interpretation services could also be requested for meetings other than regular EMCDDA meetings that take place in the active languages[9]. These meetings are not included in the annual planning of the EMCDDA and depend on ad hoc requests from the Member States, EU bodies or third parties. As the languages chosen for these meetings cannot be known in advance, it therefore follows that interpretation services for official EU languages other than the four active languages and the rotating passive languages might also be needed.

30. Unfortunately, the complainant seems to have believed that it needed to provide interpreters only for the four active languages and for the nine other languages that were expected to be used on a rotation basis during the four years of the contract. In preparing its tender, the complainant had sought and received certain clarifications from the EMCDDA (that the choice of the rotating passive languages was linked to the languages of the EU Presidency). However, there is no suggestion that the EMCDDA misled the complainant. As stated above, the specifications in the invitation to tender indicated that the interpretation services required could include other languages than the four active languages and the rotating languages likely to be used during the four years of the contract. The fact that the EMCDDA did not publish the indications given to the complainant does not alter this conclusion.

31. The Ombudsman thus finds that the Evaluation Committee did not commit a manifest error of interpretation concerning the award criterion #2.

32. The complainant additionally argues that, whereas all of the 34 interpreters in its tender have at least 250 days of experience in meetings or conferences with an international context (criterion #3) and experience in working with drug-related and European institutional terminology (criterion #4), this is not the case for all of the interpreters in the successful tender. The complainant thus contends that its tender fully fulfilled both criteria, whereas the successful tender did not.

33. However, it is apparent from the wording of criteria #3 and #4 that what would be assessed is how many interpreters would meet the description corresponding to each criterion, not whether all of the interpreters in the bid would meet the description. Since the successful tender included more interpreters who met the qualifications set out under each of the two criteria than the complainant’s tender[10], the Evaluation Committee did not misinterpret these criteria in its evaluation.

34. Regarding the complainant’s argument that the Evaluation Committee failed to demonstrate why the successful tender was the most economically advantageous, the Ombudsman notes that contracting authorities are supposed to take account not only of the price, but also of other quality-related factors, in determining value-for-money when assessing tenders[11]. The documents in the EMCDDA’s file on the invitation to tender demonstrate that it followed this approach: the formula used by the EMCDDA for assessing the tenders included both qualitative criteria and the price. As noted by the EMCDDA, it is the numerical score resulting from this formula that determines which tender is the most economically advantageous. The complainant’s argument is therefore not founded.

35. While the complainant was awarded a different contract by the EMCDDA with a tender based on the same elements as in its tender in this case, the Ombudsman notes that the contract was for a specific meeting and for a determined set of (active and passive) EU languages. In that sense, the two contracts are not comparable.

36. In light of the above, the Ombudsman finds that the EMCDDA did not manifestly misinterpret the three award criteria, by considering the number of interpreters included in each tender, and did not fail to justify why the successful tender was deemed the most economically advantageous. The Ombudsman therefore finds no maladministration by the EMCDDA in this case.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Monitoring Centre for Drugs and Drug Addiction.

The complainant and the EMCDDA will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 12/04/2018

 

[1] In reply to an invitation to tender launched by the EMCDDA (FC.14.DIR.0017.1.0 - Coordination and provision of simultaneous interpretation services for the EMCDDA).

[2] The details can be found at: http://www.emcdda.europa.eu/attachements.cfm/att_230153_EN_Tender%20specifications.pdf.

[3] The Protocol order of country identifiers in use at EU institutions contains the names of the EU Member States, based on the Roman alphabetical order of their geographical names in the original language(s).

[4] That is, the languages of the current and upcoming EU Council Presidencies. The Council’s Presidency is held by pre-determined groups of three EU Member States over an 18-month period, with each Member State holding the Presidency for six months.

[5] Invitation to tender, point 12.

[6] The complainant stated that, on the basis of the indications given by the EMCDDA, it submitted a tender containing 34 interpreters: two per language for the four EMCDDA ‘active languages’ (French, English, German, and Portuguese), plus a backup team for those languages, and 18 interpreters (2 per language) for the 9 rotating passive languages to be expected during the course of the contract, based on the EU Presidency schedule.

[7] See, for example, the judgment of the General Court of 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 75 and the case-law cited.

[8] See the relevant provisions cited in paragraph 1 of this decision.

[9] See the relevant provisions cited in paragraph 1 of this decision.

[10] The successful tender had 69 interpreters meeting the description set out in criterion #3 and 70 interpreters meeting the description set out in criterion #4, while the complainant had 34 interpreters meeting the descriptions set out in each of the two criteria.

[11] Article 149(2) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union, OJ 2012 L 362, p. 1.