Strasbourg, 12 December 2003

Dear Mr C.,

On 24 April 2003, the European Ombudsman received a complaint against the European Parliament, submitted by you on behalf of Surrey Translation Bureau (hereafter "STB"). The complaint concerned a call for tenders for translations into the languages of the candidate countries (Reference CS/ET/HU/LT/LV/MT/ PL/SK/SL/2003/EU).

On 2 June 2003, I forwarded the complaint to the President of the Parliament. Parliament sent its opinion on 26 September 2003. I forwarded it to you with an invitation to make observations, which you sent on 23 October 2003.

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

The Ombudsman also received another complaint from you, directed against the European Commission, concerning similar issues. The complaint against the Commission was registered under reference number 949/2003/IJH, and a decision on that complaint will be made separately.

THE COMPLAINT

In April 2003, a complaint was made to the Ombudsman on behalf of a company, STB, concerning a call for tenders for translations into the languages of the candidate countries.

According to the complainant, the relevant facts are, in summary, the following:

The Commission, with which STB already had a framework contract, invited STB to participate in the tender procedure in question by e-mail on 15 April 2003. The complainant became aware of the call for tender as a result of that e-mail from the Commission. However, the call for tender had been published already earlier. The deadline for the submission of tenders was 30 April 2003.

The complainant found the text of the tender specifications confusing, particularly as regards the required proof of the translators' qualifications and the reference to certified copies. The tender specifications, paragraph 2.2.3.2., stated that "it should be noted that the minimum level of qualifications for a translator considered to be acceptable for the purposes of this call for tenders is successful completion of university level studies in any discipline. Proof of this level of qualification on submission of the offer must be provided (certified copy of diploma/certificate)".

To seek clarification regarding the matter, the complainant consulted the special FAQ website(1), which was provided by the European Parliament. This website gave further information on certified copies, such as that "one original offer must be submitted, including originals or certified copies", that "only originals or certified copies of supporting documents are accepted", and that "certified copy = attestation that this is a true copy of the original by an appropriate authority, e.g. issuing authority, notary etc. Certification by the tenderer's legal representative /.../ is not acceptable".

Due to the late notification by the Commission, there was a shortage of time to complete STB's tender. On 22 April 2003, the complainant therefore sent the designated person, who worked in the European Parliament, an e-mail asking whether faxed copies or pdf printouts of certified documents would be accepted, or if the original certification was required. The reason for this question was that the complainant received certified copies of diplomas by fax from STB's freelance translators. Parliament's reply only stated that "tenders cannot be submitted by fax". The complainant therefore, on 23 April 2003, sent another e-mail to Parliament, clarifying his question and pointing out that it was not clear whether the certification itself needed to be in the original or whether a copy of the certification was sufficient. The complainant received, on that very same day, a reply stating that "a copy of a certified copy is by definition not a certified copy and cannot be accepted".

The complainant found that this interpretation of the wording "certified copy" realistically would preclude not only STB, but also other agencies from outside Belgium, from participating in the tender procedure. The reason was that the time from the notification of the call for tenders on 15 April 2003, to the deadline for submissions was not sufficient to obtain the required certified copies. The complainant further took the view that Parliament's interpretation was not borne out by the wording of the original tender specifications, but was an interpretative abuse of those specifications. The complainant expressed these views in another e-mail to Parliament, also sent on 23 April 2003. The complainant received no response to this e-mail. When he tried to contact the responsible Parliament unit by phone, he was told that no further questions were accepted and that the final update of the FAQ website had been posted. However, his initial question was not mentioned in this final version of the FAQ website, nor did the website clarify the requirement of an 'original attestation'. In the complainant's view, Parliament committed a serious breach of the tender specifications by not publishing his question and its answer on the FAQ website.

In substance, the complainant alleges that the European Parliament:

(i) wrongly interpreted the term "certified copy" in the tender specifications; and

(ii) failed to publish on its website his question and its answer.

The complainant annexed to his complaint copies of his e-mail correspondence with Parliament regarding the matter. It appears from this correspondence that the call for tenders concerned was published in the S series of the Official Journal of the European Communities on 19 March 2003. It also appears that it was not the Commission that sent the e-mail through which the complainant became aware of the call for tenders concerned, but the Joint Translation Service of the Economic and Social Committee and the Committee of the Regions.

THE INQUIRY

The European Parliament's opinion

The opinion of Parliament was, in summary, as follows:

As regards allegation (i) and the interpretation of the term "certified copy", the tender specifications were clear and unambiguous. The requirement of either the original diplomas attesting to successfully completed university studies, or certified copies thereof, is indeed standard practice in tendering procedures and as such the point needed no further clarification. Upon requests, Parliament nevertheless clarified the term further on the FAQ website. Parliament also notes that, after having submitted his complaint to the Ombudsman, the complainant wrote to it, admitting that its "interpretation of certified copy is probably strictly correct".

As regards allegation (ii), all admissible requests for clarification received by midnight on 23 April 2003 were answered directly and both the questions and their answers were published on the FAQ website. Parliament finalised this website on 24 April 2003. When several tenderers asked the same question, Parliament gave each of them an identical answer and published the question and its answer only once on the website. The complainant's questions were strictly speaking not admissible since the wording of the tender specifications was clear and was in addition reinforced by the clarifications published on the FAQ website already prior to 23 April 2003. The responsible person nonetheless replied to the complainant to direct his attention to the website publications. Parliament therefore considers that the answers to the complainant's admissible queries were indeed given to all potential tenderers through the replies to admissible requests for clarification published on the FAQ website on 24 April 2003.

The complainant's observations

The complainant's observations made, in summary, the following points:

Parliament did not fully address the confusion that arose in relation to the English term "certified copy". Did this term mean that a copy of a diploma with its certified mark was sufficient or did it require that the copy of the diploma had to be submitted with the original certified mark of the certifying authority? This question was crucial, due to the shortage of time from the notification on 15 April 2003. There was also confusion relating to the different practices used by different institutions as regards the requirement of either originals or certified copies of the translators' diplomas. Parliament should have allowed an urgent request for clarification on this point.

THE DECISION

1 Preliminary remarks

1.1 In his observations on the European Parliament's opinion, the complainant alleges that there is confusion relating to different practices among the institutions as regards the requirement of originals or certified copies of the translators' diplomas.

1.2 Since this new allegation is not a part of the original complaint, the Ombudsman does not deal with it in the framework of the present inquiry. The complainant could, however, consider lodging a new complaint with the Ombudsman, if he so wishes, specifying the institutions concerned and providing evidence on which an inquiry could be based.

2 The alleged wrong interpretation of the term "certified copy"

2.1 The complaint concerns a call for tenders for translations into the languages of the candidate countries. The complainant alleges that the European Parliament wrongly interpreted the term "certified copy" in the tender specifications to mean that the certified mark had to be in its original.

2.2 The European Parliament argues that the tender specifications were unambiguous as regards the interpretation of the term "certified copy" and that the requirement of either original diplomas attesting successfully completed university studies, or certified copies thereof, is standard practice in tender procedures. Furthermore, the term was additionally clarified on the FAQ website.

2.3 The Ombudsman takes the view that Parliament's interpretation of the term "certified copy" as an "attestation that this is a true copy of the original by an appropriate authority", and that "a copy of a certified copy is by definition not a certified copy", is the normal interpretation of that term. The Ombudsman therefore finds no maladministration by Parliament as regards this aspect of the complaint.

3 Parliament's alleged failure to publish a question and its answer

3.1 The complainant alleges that the European Parliament failed to publish, on the FAQ website, his question concerning the interpretation of the term "certified copy" and its answer, which was sent to him in an email on 23 April 2003. According to the complainant, this failure constitutes a serious breach of the tender specifications.

3.2 The European Parliament argues that the complainant's question was strictly speaking not admissible, since the wording of the tender specifications was clear and had in addition been reinforced by the clarifications published on the FAQ website prior to the 23 April 2003. Parliament nonetheless replied to the complainant to direct his attention to the website publications. The answers to the complainant's admissible queries were thus given to all potential tenderers in the replies to admissible requests for clarification, published on the FAQ website on 24 April 2003.

3.3 The Ombudsman notes that the rationale of publishing the tenderers' questions and their answers on the FAQ website is to give all tenderers access to the same information about the tender procedure and thereby ensure equal treatment. The Ombudsman considers that the information given by Parliament in its e-mail to the complainant was already available from the tender specifications and the FAQ website sufficiently clearly so that all tenderers were equally informed. The Ombudsman therefore finds no maladministration by Parliament as regards this aspect of the complaint.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Parliament. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) That is, a website giving answers to Frequently Asked Questions.