Strasbourg, 1 December 2006

Dear Dr C.,

On 15 March 2005, you made a complaint to the European Ombudsman on behalf of Global Translation Solutions Ltd to the European Ombudsman against the European Parliament, concerning Call for tenders MT/2003/EU for translation of official EU documentation into Maltese of official EU documentation.

On 12 May 2005, I forwarded the complaint to the President of Parliament. By letter dated 10 August 2005, you made additional comments regarding your complaint.

Parliament sent its opinion on 9 September 2005. I forwarded it to you, noting that Parliament's opinion was based on your original complaint, and invited you to make observations, if you so wished. Moreover, I indicated that, if you wished to pursue any of your additional comments, after having taken into account Parliament's opinion regarding your original complaint, you should make sure to refer to the relevant comments in your observations. No observations have been received from you.

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

I apologise for the length of time it has taken to complete my inquiries.

THE COMPLAINT

The complaint can be summarised as follows. In April 2003, the complainant submitted a bid in the context of Parliament's Call for tenders MT/2003/EU for translation into Maltese of official EU documentation(1) ("the Call"). In March 2004, the complainant was informed that its bid had been excluded on grounds of non-compliance with certain criteria laid down in the Call. Following a letter from the complainant's lawyers, the Head of the Planning Unit of Parliament conceded, by letter dated 2 June 2004, that the grounds invoked initially in support of the exclusion of the complainant's bid were incorrect, but confirmed that the complainant's bid had been excluded given that one particular certificate was a photocopy and not the original document. The complainant considered that the exclusion of its bid amounted to an instance of maladministration. It argued that other institutions, for example, the Commission, made a telephone call in case further clarification or correction of such insignificant mistakes were necessary. The complainant added that Parliament itself had declared that it was in its discretion to ask for clarification and it had decided not to do so. Given that it took Parliament almost 13 months to exercise this discretion, it was unacceptable for the complainant to have its bid excluded for such a formalistic reason. Even if the complainant conceded, which it did not, that the certificate at issue was a copy and not an original, this was not a sufficient reason to exclude a tender 13 months later. The complainant stated that Parliament's decision to exclude its bid amounted to an abuse of discretion.

The complainant also argued that, during this 13-month period, Parliament had apparently awarded two successive contracts to other companies although the prices offered by the complainant were equally competitive or even more competitive and that the second contractor was selected following a closed negotiation procedure in which the complainant had not been invited to participate.

On 12 May 2005, the Ombudsman opened an inquiry into the following allegations made by the complainant:

1. The European Parliament was not entitled to reject the bid submitted by the complainant on the grounds that one of the documents enclosed with the bid was a photocopy and not the original document;
2. The European Parliament wrongly excluded the complainant from a subsequent closed negotiation procedure.

The Ombudsman also opened an inquiry into the complainant's claim that the Parliament should reopen the Call for tenders MT/2003/EU and reverse its decisions of 27 April and 2 June 2004 to exclude the bid submitted by the complainant.

THE INQUIRY

Parliament's opinion

As regards the first allegation, Parliament made the following remarks.

In March 2003, the European Parliament, the European Commission, the Court of Auditors, the European Economic and Social Committee, the Committee of Regions and the Translation Centre for Bodies of the European Union organised a Call for tenders for awarding multiple framework contracts for translation from English, French and German into Maltese.

The Contract notice was published on 19 March 2003(2). The deadline for the submission of tenders was 30 April 2003. The public opening of the tenders took place on 19 May 2003. The bids were evaluated on 8 and 9 December 2003. The complainant was informed of the results on 6 February 2004.

At the same time, the above-mentioned Institutions and bodies were also organising a Call for tenders for translation into the other eight new languages (Czech, Estonian, Hungarian, Latvian, Lithuanian, Polish, Slovak and Slovene).

With respect to the length of the procedure, Parliament pointed out that both the number of Institutions and bodies as well as the number of languages involved created organisational problems. Parliament did not agree that the procedure for the Call was too long.

As to the results of the Call, Parliament stated that, on 6 February 2004, Parliament informed the complainant that its bid had not been selected. The grounds for Parliament's decision to reject the bid were:

"The proofs of non-application of the exclusion criteria 2.1.1., 2.1.2 were not all certified copies. No proof was provided for non-application of exclusion criteria 2.1.4. a) and b); 2.1.5".

On 27 April 2004, the complainant contested this decision. In its reply of 2 June 2004(3), Parliament accepted the complainant's explanations regarding the exclusion criterion 2.1.4. However, Parliament maintained the grounds for its rejection on the basis of exclusion criteria 2.1.1, 2.1.2, and 2.1.5, since one of the documents was not an original but a photocopy which had not been certified. As Parliament informed the complainant, paragraph 2.1 of the General Specifications clearly stated that "this proof shall take the form of a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin".

On 6 September 2004, replying to another letter of the complainant dated 10 August 2004, Parliament repeated what it had said in its previous letter of 2 June 2004.

In all letters Parliament had always clearly identified the reasons leading to the rejection of the bid.

These reasons were in accordance with Article 93 of the Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the General Budget of the European Communities(4) (the "Financial Regulation"), which stated that:

"1.Candidates or tenderers shall be excluded from participation in a procurement procedure if [...]

2. Candidates or tenderers must certify that they are not in one of the situations listed in paragraph 1."

Moreover, Article 134(1) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the General Budget of the European Communities(5) ("Regulation 2342/2002") states that "the contracting authority shall accept, as satisfactory evidence that the candidate or tenderer is not in one of the situations described in point (a), (b) or (e) of Article 93 (1) of the Financial Regulation, production of a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin or provenance showing that those requirements are satisfied."

In the FAQs, published according to paragraph 1.12 of the General Specifications, all prospective tenderers were informed that:

"The documents required are those as stated in 2.1 of the tender specifications. As clearly stated, where a national authority does not issue the document requested, a recent equivalent document issued by a judicial or administrative authority [...] must be supplied.

It is up to the tenderer to procure the documentation as available in the Member State or country concerned."

and

"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 would amount to self-certification and is not acceptable."

Parliament informed all tenderers clearly and in advance about the type of documents they needed to submit and about the formal requirements of these documents. Thus, as Parliament informed the complainant by letter of 2 June 2004, Parliament "did not make use of its liberty to ask for supplementary documentation or certification when missing".

Parliament was therefore entitled to reject the bid submitted by the complainant on the grounds that one of the documents attached to the bid was a photocopy and not the original document.

As to the second allegation, Parliament stated that, after the Call, Parliament did not organise any negotiated procedure.

As a result of the Call, Parliament awarded to Attica-Attimedia (a division of Veloss International SA) one contract (multiple framework contract) on 1 March 2004. The Award notice concerning this contract was published on 28 April 2004(6).

Later, as a consequence of a successful appeal, Parliament awarded to Euris Consult Ltd a second contract (multiple framework contract) on 25 May 2004. The Award notice concerning this contract was published on 18 June 2004(7).

As two different contracts were awarded on two different dates, this might have caused confusion and led to the erroneous conclusion that the second contract was awarded under a different procurement procedure. This was not the case.

Parliament did not therefore exclude the complainant from any subsequent negotiated procedure.

In conclusion, the opinion of Parliament was that its services correctly applied Regulation 2342/2002. It furthermore considered the complainant's claim that Parliament should reopen the Call and reverse its decisions of 27 April and 2 June 2004 to exclude the bid submitted by the complainant, to be completely unjustified.

The complainant's observations

The complainant has not sent any observations on Parliament's opinion.

THE DECISION

1 Allegation that the European Parliament was not entitled to reject the complainant's bid on the grounds that one of the documents enclosed with the bid was a photocopy and not the original document

1.1 The complainant submitted a bid, following the European Parliament's Call for tenders MT/2003/EU for translation into Maltese of official EU documentation(8) (the "Call"). This bid was rejected on the basis of point 2.1 of the General Specifications of the Call. This point, entitled "Exclusion of tenderers - Grounds for disqualification", provided, inter alia, the following:

Tenderers shall be excluded if:

(1) They are bankrupt or being wound up, are having their affairs administered by the courts, have entered into an arrangement with creditors, have suspended business activities, are the subject of proceedings concerning those matters, or are in any analogous situation arising from a similar procedure provided for in national legislation or regulations;

(2) they have been convicted of an offence concerning their professional conduct by a judgement which has the force of res judicata; ...

(5) they have been the subject of a judgement which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Communities' financial interests; ...

Tenderers are required to declare on their honour that none of the exclusion criteria apply ... and to supply proof thereof. (For exclusion criteria 1) 2) and 5), this proof shall take the form of a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin showing that those requirements are satisfied;.

(...)

In the case of consortia or groups, the exclusion criteria will be applied to each supplier in the consortium/group and to the consortium/group.

Tenderers who ... fail to supply the information required will be excluded from the procurement procedure ...".

The complainant filed an appeal against Parliament's decision to reject its bid. The appeal was rejected by letter dated 2 June 2004, after re-examination of the complainant's bids. In this letter, Parliament agreed that the exclusion criterion 2.1.4 did not apply but further noted the following:

"However, for exclusion criteria 2.1.1, 2.1.2 and 2.1.5 is clearly stated in the General Specifications that 'this proof shall take the form of a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin'.

In your appeal you explain that you have provided originals of the Police Conduct Certificates, which is correct for three members of the consortium in process of being set up, but with exception for yourself. For 'David Gonzi' we have only received, in the two bids for the two different lots, photocopies which have not been certified.

I regret to inform you that for the calls for tenders organized in 2003 the authorising authority did not make use of its liberty to ask for supplementary documentation or certification when missing. As a result of this your bids remain rejected at the selection stage."

By letter dated 10 August 2004, the complainant challenged again the propriety of the decision excluding its bid. Parliament confirmed this decision by letter dated 6 September 2004.

1.2 In the complaint it lodged with the Ombudsman, the complainant mentioned that its bid was in accordance with the terms of the Call and that it did not "concede" that the certificate at issue was not an original or certified copy. Nevertheless, the complainant did not appear to contest, in a specific way, and by referring to the exact nature of the relevant document it had submitted with its bid, the factual accuracy of Parliament's finding that, with regard to the non-applicability of criteria 2.1(1), 2.1(2) and 2.1(5) of the General Specifications of the Call to the complainant (as member of the consortium-tenderer) no originals had been provided. Furthermore, the complainant did not appear to contest Parliament's finding that only simple photocopies, rather than certified copies, were submitted as regards "David Gonzi". Since the complainant has not provided any specific information and elements likely to call into question the accuracy of these findings, which were confirmed by Parliament after re-examination of the complainant's bid, the Ombudsman does not find it necessary or justified to conduct an inspection of documents in order to check the factual accuracy of the above finding. Subsequently, he will examine the merits of the complainant's allegation on the basis of this finding.

1.3 In support of its allegation, the complainant has argued, in essence, that Parliament chose to reject its bid for the formalistic and trivial reason indicated above, although it could have asked the complainant to correct such a flaw in its tender. This amounted to an abuse of discretion, taking into account the time it took Parliament to make a decision on the admissibility of the tender. In its opinion, Parliament rejected this argumentation.

1.4 The Ombudsman, first, notes that, according to point 2.1 of the General Specifications of the Call, a consortium's failure to provide, as regards the exclusion criteria 1), 2) and 5), "proof [in] the form of a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin showing that those requirements are satisfied," with respect to each member of the consortium, would lead to the exclusion of the tender. Simple photocopies of such documents were not compatible with the relevant criterion in the Call. Moreover, this requirement was explicit and unexceptional. Accordingly, the flaw in the complainant's tender which was identified in the above finding made by Parliament was not "insignificant", as suggested by the complainant, but essential, in the sense that it constituted a ground for the exclusion of its tender. In this regard, the fact that the decision excluding the complainant's bid was made several months after the submission of the bid is not relevant.

1.5 Second, the Ombudsman notes that, according to point 1.12 of the General Specifications of the Call, which was binding both on Parliament and on the complainant,

"Any contact between the tenderers and the contracting authorities concerning this call for tender is prohibited, save, by way of special exception, under the following conditions: ...

After the tenders have been opened:

At the instance of the contracting authorities: if clarification is required in connection with a tender, or if obvious clerical errors contained in the tender must be corrected, the contracting authorities may contact the tenderer."

This last provision, concerning the possibility of the contracting authority to contact a tenderer, should be strictly interpreted, not only as a "special exception" to the prohibition of "[a]ny contact between the tenderers and the contracting authorities", but also in view of the need to ensure the equal treatment of tenderers(9), all of whom were under an equal duty to diligently draw up their tenders and submit them in accordance with the conditions of the Call(10). In the context of such an interpretation, the correction of the above-mentioned flaw in the complainant's opened tender, which amounted to a deviation from an explicit, unexceptional and essential requirement of the Call, would not seem to be a "clarification" in connection with the tender or a correction of an "obvious clerical erro[r]" contained in the tender. In fact, it would be an essential complement to the tender, which would be effectuated through the provision of supplementary documents, submitted for the first time in an admissible form, pursuant to the Call, and intended to remedy an otherwise inadmissible tender.

1.6 In the light of the above, the Ombudsman does not accept the complainant's allegation and finds that Parliament's decision to reject the complainant's tender did not amount to an instance of maladministration.

1.7 However, the Ombudsman also notes Parliament's statement that "for the calls for tenders organized in 2003 the authorising authority did not make use of its liberty to ask for supplementary documentation or certification when missing." The Ombudsman would like to draw Parliament's attention to the fact that such an argument does not seem to be consonant with the Call and the principles of good administration concerning the exercise of discretionary powers. First, as analysed in point 1.5 of the present decision, the contracting authority did not enjoy such a "liberty", but rather, under point 1.12 of the General Specifications of the Call, it was prohibited, in general, from contacting the tenderers, after the opening of the tenders, and from asking for "supplementary documentation or certification when missing". Second, if the applicable provisions attributed such a discretionary power to the contracting authority, then it would be contrary to the principles of good administration for the contracting authority to decide not to exercise this power at all(11). Therefore, the Ombudsman will make a relevant further remark below.

2 Allegation that Parliament wrongly excluded the complainant from a subsequent closed negotiation procedure

2.1 The complainant argued that Parliament had apparently awarded two successive contracts to other companies and that the second contractor was appointed following a closed negotiation procedure in which the complainant was not invited to participate.

2.2 Parliament maintained that, after the Call, it did not organise any negotiated procedure. As a result of the Call, Parliament awarded to Attica-Attimedia one contract (multiple framework contract) on 1 March 2004. According to Parliament, the award notice concerning this contract was published on 28 April 2004. Later, as a consequence of a successful appeal, Parliament explained that it awarded to Euris Consult Ltd a second contract (multiple framework contract) on 25 May 2004. The award notice concerning this contract was published on 18 June 2004. Parliament suggested that, as two different contracts were awarded on two different dates, this might have caused confusion and led the complainant to the erroneous conclusion that the second contract was awarded under a different procurement procedure. Parliament confirmed that this was not the case. Parliament maintained that it did not, therefore, exclude the complainant from any subsequent negotiated procedure.

2.3 Taking into account that (i) Parliament clarified, in its opinion, that it did not organise any negotiated procedure and, further, provided a reasonable explanation for the contrary conclusion drawn by the complainant; (ii) the latter has not presented any observations on Parliament's opinion and has referred only in general terms to the existence of such a procedure; and (iii) according to the two award notices referred to by Parliament(12), both contracts were subject to the same Contract notice published in OJ 2003 S 55, the Ombudsman takes the view that the complainant's argument that there had been a closed negotiated procedure has not been substantiated. Thus, the Ombudsman does not accept the complainant's allegation and finds no maladministration as regards this aspect of the complaint.

3 Claim that Parliament should reopen the Call for tenders MT/2003/EU and reverse its decisions of 27 April and 2 June 2004 to exclude the bid submitted by the complainant

3.1 The complainant claims that Parliament should reopen the Call and reverse its decisions of 27 April and 2 June 2004 to exclude the bid submitted by the complainant.

3.2 In the light of his finding in point 1.6 above, the Ombudsman does not accept this claim.

4 Conclusion

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

FURTHER REMARK

Parliament has stated that "for the calls for tenders organized in 2003 the authorising authority did not make use of its liberty to ask for supplementary documentation or certification when missing." The Ombudsman would like to draw Parliament's attention to the fact that such an argument does not seem to be consonant with the Call and the principles of good administration concerning the exercise of discretionary powers. First, as analysed in point 1.5 of the present decision, the contracting authority did not enjoy such a "liberty", but rather, under point 1.12 of the General Specifications of the Call, it was prohibited, in general, from contacting the tenderers, after the opening of the tenders, and from asking for "supplementary documentation or certification when missing". Second, if the applicable provisions attributed such a discretionary power to the contracting authority, then it would be contrary to the principles of good administration for the contracting authority to decide not to exercise this power at all.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2003 S 55.

(2) OJ 2003 S 55.

(3) The letter appears to have been signed on 2 June 2004 and sent on 3 June 2004 as registered mail.

(4) OJ 2002 L 248, p. 1.

(5) OJ 2002 L 357.

(6) OJ 2003 S 83.

(7) OJ 2003 S 118.

(8) OJ 2003 S 55.

(9) The principle of equal treatment of tenderers is a general principle of Community law. See Case C-57/01 Makedoniki Metro [2003] ECR I-1091, paragraph 69.

(10) Cf. Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 47.

(11) Cf. Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 37.

(12) OJ 2004 S 83 regarding Contract award notice awarding the contract No MT001/2003/EU to Attica-Attimedia (division of Verloss International SA) and OJ 2004 S 121 regarding Contract award notice awarding the contract No MT002/2003/EU to Euris Consult Ltd.