Strasbourg, 17 July 2007

Dear Mr X,

On 17 November 2005, you submitted a complaint to the European Ombudsman against the European Commission, on behalf of the firm Y. Your complaint concerned the application made by your firm in response to a call for tenders launched by the Commission.

On 15 December 2005, I informed the President of the Commission of your complaint and asked him to submit an opinion on it by 31 March 2006. On 7 April 2007, the Commission informed me that its opinion would be slightly delayed. On 11 April 2006, the Commission sent its opinion, which was forwarded to you on 19 April 2006, with an invitation to make observations, if you so wished.

On 1 June 2006, you submitted your written observations to me.

On 28 September 2006, you sent an e-mail to me, requesting information on the state of your complaint. On 14 November 2006, I replied to your request.

On 8 March 2007, I informed you that, for reasons of internal organisation, the legal officer responsible for the handling of your complaint had been changed.

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 deal with your complaint.

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

The complainant is the chairman of the firm Y. On 17 May 2005, Y submitted an application in response to a call for tenders organised by the Commission.

On 27 September 2005, Y was informed that it had not been awarded the project. On the same day, the complainant wrote to the Commission and requested information on the identity of the successful tenderer, the amount of its bid and the evaluation criteria. On 29 September 2005, the Commission replied to the complainant's request and informed him of the identity of the winning bid, namely, the firm Z, its bid and the scoring obtained by both Y and Z.

On 29 September 2005, the complainant requested further information on the funding of the successful tenderer and on the issue of fair play in tenders in which NGOs subsidised by the Commission and private firms compete. In his new letter, the complainant put five questions to the Commission. Included in these were questions concerning the legal status of Z, whether European funding was provided to Z, and the percentage of Z's budget covered by other public funds.

On 12 October 2005, the Commission replied to the complainant. In the complainant's view, the Commission's new letter only repeated the information already included in its previous letter of 29 September 2005. As regards the complainant's request for information on the European funding of NGOs, it merely referred him to the "Europa" website.

By fax of 17 October 2005, the complainant asked the Commission for information on the European funding of Z since, in his view, the Commission had failed to reply satisfactorily to this question in its previous correspondence.

On 21 October 2005, the complainant sent a follow-up letter to the Commission pointing out that, in 2003, its services had been the source of 51% of Z's income. In his view, it was anti-competitive for an organisation which is largely funded with public money, mostly from the EU, to compete against ordinary commercial firms in a public tender procedure organised by the Commission. In its reply of 21 October 2005, the Commission undertook to investigate the file and inform the complainant as soon as it had collected all relevant information.

On 15 November 2005, the Commission wrote to the complainant and stated that its services had provided 54.67% of Z's operating costs. In the complainant's view, however, the Commission had not answered the other issues raised in his letter of 29 September 2005, such as the price of the winning bid or the request for detailed evaluation criteria.

As the complainant was not satisfied with the Commission's reply, he lodged a complaint with the European Ombudsman against the Commission on 17 November 2005. In his complaint, he enclosed copies of his correspondence with the Commission.

The allegations on which the Ombudsman asked the Commission to submit an opinion were the following:

1. The Commission failed to provide the complainant with all the information requested in his letter of 29 September 2005;
2. The Commission's decision to award the contract was unfair.

The complainant also made the following claims:

1. There should be a thorough, transparent and unambiguous policy regarding heavily subsidised NGOs competing on the open market with commercial companies;
2. There should be a fair and "level-playing field" on the issue of public procurement.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first underlined that it had examined all offers for the call for tenders in question, and had awarded it in accordance with the applicable legal provisions, in particular with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(1) ("the Financial Regulation") and Commission Regulation 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(2) ("the Implementing Rules").

The Commission described the procedure which it had followed. It explained that, in accordance with the criteria established in the technical annex of the call for tenders, seven admissible offers were received, five of which reached the so-called technical excellence level and were therefore selected for the award stage. Even though the offer submitted by Y had the highest technical score, the Evaluation Committee made up by its responsible services decided, on 6 June 2005, to award the contract to Z, since this organisation had submitted the cheapest offer.

The proposal of the Evaluation Committee was forwarded for advice to the relevant committee, on the grounds that the value of the contract exceeded EUR 175 000. The Commission explained that the role of the Committee is to ensure transparency and respect for the principle of sound financial management. On 22 June 2005, the committee endorsed the proposal made by the Commission services, subject to clarification of the risk of double funding, taking into account that, in 2005, Z had benefited from a Commission operating grant. In accordance with the Committee's advice, the Commission requested information from Z on how its offer was linked to the 2005 operating grant agreement. In reply to this request, Z explained that its accounting practices were in accordance with the Decision governing its 2005 grant agreement(3). Z also undertook to respect these principles in the presentation of its accounts for 2005 and 2006 by ensuring that income from the Commission for general costs and for specific programmes would be clearly mentioned and double accounting would be avoided by internal financial management, external control and EC control. In light of these explanations, the Commission services responsible for financial matters were consulted on 4 August 2005, as regards the risks of potential double funding and unfair competition. Taking into consideration the additional information submitted by Z and the opinion of its financial services, the Commission concluded that Z could not be excluded from the procurement, only on the basis of the fact that it was also benefiting from a Commission operating grant. Pursuant to Article 139 of the Implementing Rules, the Commission concluded that the offer submitted by Z did not appear to constitute an abnormally low offer.

On 27 September 2005, the Commission communicated the outcome to all participants to the tender and gave them a two-week period to contest the decision. On 13 October 2005, after the two-week period for comments had lapsed, the Commission proceeded to sign the agreement with Z.

In its opinion, the Commission pointed out that two of the bidders, namely, the firms A and Y, had requested additional information, but while A found the Commission's reply sufficient, Y asked for additional information.

After having set out the background of the case, the Commission addressed the allegations and claims made by the complainant. As regards its alleged failure to provide the information requested, the Commission explained that the scope of information to be provided to an unsuccessful tenderer is set out in Article 100 of the Financial Regulation and Article 149 of its Implementing Rules, as well as in the Communication from the Commission of 16 July 2003 on the Procedure for informing candidates and tenderers, after a contract has been awarded and before the actual contract has been signed in respect of public procurement contracts awarded by the Commission under Article 105 of the Financial Regulation(4) ("the Commission's Communication"). Pursuant to the Commission's Communication, the contracting authority is required to inform unsuccessful tenderers that their tender has not been accepted. In its letter, the contracting authority should also include the reasons for not having retained the offer and inform the tenderer that the contract will not be signed for two calendar weeks from the day of the notification messages. The contracting authority must also state that additional information about the reasons of rejection of a tender can be obtained, within 15 days, in response to a request submitted in writing, by mail, fax or e-mail. Tenderers who had submitted an admissible bid are also allowed to obtain information on the characteristics and relative advantages of the bid accepted, and the name of the successful tenderer.

The Commission referred to the case-law of the Community Courts on the basis of which, the Court's review in the field of public procurement is limited to checking that there has been no serious and manifest error(5). In its case-law, the Community Courts have also made clear that, in those cases, the burden of proof lies with the complainant.

The Commission noted that, on 28 September 2005, its services replied to the request for information submitted by Y on 27 September 2005. In its reply, the Commission referred to the scores obtained by both Y and the winning bid in each category of the award criteria. The Commission considered that its information was sufficient to allow Y to decide whether it should seek to contest the award decision.

By further letters of 29 September, 17 and 21 October 2005, Y requested additional information, which the Commission granted on 12 and 21 October, and 15 November 2005 respectively. On 15 November 2005, having consulted all relevant services, the Commission decided not to provide the requested information on the national funding granted to Z, since these data did not fall within the scope of Article 100 of the Financial Regulations and Article 149 of the Implementing Regulations. The Commission also considered that, as regards Y's request for the perfect score for each criterion, it was irrelevant to the final ranking of tenderers, since all bidders admitted to the award stage achieved the technical excellence level and consequently the cheapest offer was the one selected. Accordingly, even if Y had achieved a perfect score, the final selection would have been made on the basis of price and therefore the complainant would still not have been selected.

The Commission concluded that it had provided Y with adequate information in a timely and accurate manner, and put the complete file at the disposal of the Ombudsman for examination.

As regards the complainant's second allegation, concerning the unfairness of its decision to award the contract, the Commission stated that it had acted fairly at all stages of the procedure. In particular, the Commission argued that, pursuant to Article 89 of the Financial Regulation and Article 139(2) of its Implementing Rules, the participation of subsidised organisations as such does not infringe the principle of equal treatment, provided that the subsidy itself complies with the applicable legal rules. This interpretation had furthermore been supported by the case-law of the Community Courts(6).

The Commission however acknowledged the existence of a number of limitations for beneficiaries of Commission grants, in particular (i) the "no profit rule", laid down in Article 109(2) of the Financial Regulation, according to which the grant may not have the purpose or effect of producing a profit for the beneficiary; and (ii) the "principle of digression for operating grants", laid down in Article 113(2) of the Financial Regulation, which implies that the Commission's contribution will be reduced over time. The Commission considered that these principles set the basis for a level playing field compatible with the objective of promoting Community policies, and that they had been fully respected in the present case.

The complainant's observations on the Commission's opinion

In his observations, the complainant welcomed the Commission's opinion, stating that it had clarified a number of issues and shed light on the public tendering process. He referred, however, to information requested in his letters to the Commission which had not been provided. The complainant stated that, in his letter to the Commission of 27 September 2005, he had asked why in the complainant's offer the need to promote a more collaborative role should have been more apparent. In his view, the Commission's reply whereby the Evaluation Committee considered that this aspect of the offer had not been presented sufficiently was unsatisfactory. The complainant also noted that none of the five questions he asked in his letter of 29 September 2005 had been properly answered, since the Commission merely suggested that the complainant should check its website. He acknowledged that the Commission had provided additional information, although he considered that information insufficient in order to assess whether or not to contest the decision to award the call for tenders. The complainant also noted that, in his letter of 17 October 2005, he had asked for detailed information on the scores given to his firm, and that the information had not been provided.

The complainant further argued that the Commission's failure to provide complete information in due time prevented him from bringing legal action against the awarding decision before the Community Courts. The complainant concluded by demanding a greater level of transparency in the public tendering procedure within the EU institutions, in particular in cases involving organisations benefiting from EU funding which would then be able to submit abnormally low offers.

THE DECISION

1 Information requested by the complainant

1.1 The complainant, the chairman of the Brussels-based firm Y, on whose behalf he submitted the present complaint, alleges that the European Commission failed to provide him with all the information requested in his letter of 29 September 2005, concerning the identity of the successful tenderer, the amount of the bid and the evaluation criteria.

1.2 The Commission explains that the scope of information to be provided to an unsuccessful tenderer is set out in Article 100 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(7) ("the Financial Regulation"); Article 149 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2003 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(8) (the "Implementing Rules"); and the Communication from the Commission of 16 July 2003 on the Procedure for informing candidates and tenderers, after a contract has been awarded and before the actual contract has been signed in respect of public procurement contracts awarded by the Commission under Article 105 of the Financial Regulation(9) ("the Commission's Communication").

As regards the complainant's request for information, the Commission argues that , on 28 September 2005, its services replied to the queries made by the complainant on 27 September 2005, and that, in its reply, it explained the scores obtained by both Y and the winning tenderer, Z, in each category of the award criteria. The Commission considers that the information was sufficient to allow Y to decide whether or not it should seek to contest the award decision.

The Commission also explains that, in reply to Y's requests of 29 September, 17 and 21 October 2005, it provided the information requested on 12 and 21 October, and 15 November 2005, respectively. The Commission further noted that, on 15 November 2005, it refused to provide Y with information regarding Z's national funding, since this information did not fall within the scope of Article 100 of the Financial Regulation or Article 149 of its Implementing Rules. The Commission also considers that Y's request concerning the perfect score for each criterion was irrelevant to the final ranking of tenderers, since all bidders admitted to the award stage achieved the technical excellence level and consequently the cheapest offer was the one to be selected.

The Commission takes therefore the view that it provided Y with adequate information in a timely and accurate manner.

1.3 In his observation on the Commission's opinion, the complainant underlines that a number of questions raised in his letters to the Commission such as the shortcomings of his offer or the scores given to his firm, were not fully answered.

1.4 On the basis of the available information, it appears that, by letter dated 27 September 2005, the Commission informed the complainant that his bid had not been selected for the procurement procedure in question. In its letter, the Commission referred to the grounds for its decision, and quoted the conclusions reached by the evaluation committee as regards the assessment of the complainant's bid on each one of the tenders' criteria.

1.5 The Ombudsman notes that, in reply to the above letter, the complainant wrote to the Commission on 27 September 2005, requesting clarification on the following issues: (i) who was awarded the contract?; (ii) how many firms responded to this call for tenders?; (iii) technical issues, and (iv) the financial offer.

1.6 The Ombudsman also notes that, by fax dated 28 September 2005, the Commission replied to the complainant. It appears that most of the queries made by the complainant in his letter of 27 September 2005, namely, questions 1, 2, 3a, 3b, 3c, 3d, 3e, 4a and 4b, concerned specific factual data. Having reviewed the Commission's letter of 28 September 2005, the Ombudsman has concluded that the Commission did, in fact, provide the relevant information.

In two of the questions, however, the complainant asked for more general information concerning the reasons for the rejection of his bid (question 3f) and the shortcoming of his offer as compared to that of the winning tender (question 3g). The Ombudsman notes that, as regards the first issue, the Commission explained that a first review of all offers took place on the basis of the so-called technical excellence level which limited consideration to those bids scoring 80 or higher, and whereupon a final selection based on price was made. The Ombudsman also notes that, in connection with the shortcoming of the complainant's offer as compared to that of the winning tender, the Commission explained that, "[a] ccording to the Evaluation Committee, the collaborative role of NGOs [...] was not presented sufficiently in your offer."

1.7 It appears that, in a new letter dated 29 September 2005, the complainant requested further information from the Commission on a number of issues pertaining to its decision on the call for tenders, namely: (1) the legal status of the winning tenderer; (2) the funding given to the winning tenderer by the Commission as well as (3) by other public sources; (4) the content of the EC rules governing the awarding of contracts in which publicly funded organisations participate; (5) the Commission's means to ensure fair play in the call of tenders in question; and (6) detailed information on the score obtained by both the complainant's firm and the winning tenderer.

The Ombudsman notes that the complainant wrote again to the Commission on 17 and 21 October 2005, requesting a thorough reply to his queries.

1.8 The Ombudsman is mindful of the fact that the Commission sought to reply to the queries made by the complainant in its letters of 12 and 21 October, and 15 November 2005.

The Ombudsman has carefully reviewed the content of the exchanges between the complainant and the Commission. In view of the information included in the letter from the complainant of 21 October 2005, it appears that the complainant considered that his first three queries had in fact been replied to. The Ombudsman further notes that the Commission's letter of 15 November 2005 provided information in reply to question 4 (which related to the EC rules governing the awarding of contracts in which publicly funded organisations participate) and question 5 (which related to fair play in the call of tenders in question). Moreover, as regards question 6 (which related to the detailed information on the score obtained by both the complainant's firm and the winning tenderer), the Ombudsman notes that the grounds for the rejection of the complainant's bid had been spelled out by the Commission in its replies of 27 and 28 September 2005.

1.9 The Ombudsman notes that the rules governing the awarding of calls for tenders also include provisions concerning the information to be given to unsuccessful tenderers, in particular in Article 100 of the Financial Regulation and Article 149 of its Implementing Rules. These provisions have further been developed in the Commission's Communication.

Article 100(2) of the Financial Regulation states that:

"The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings."

The Ombudsman notes that similar provisions are included in Article 149 of its Implementing Rules(10).

As regards the Commission's Communication, it also refers to the information to be provided to unsuccessful bidders in the following way:

"As soon as possible after the award decision and within the following week at the latest, the contracting authority notifies all unsuccessful tenderers (...). Each tenderer or candidate is notified individually; the reasons why the bid or application has not been accepted are specified in each case, for instance by taking up in a concise but explicit form details contained in the award decision. (...) For all tenderers who have put in an admissible bid, this information could also extend to the characteristics and relative advantages of the bid accepted and the name of the successful tenderer."(11)

1.10 Having carefully reviewed the Commission's replies to the queries made by the complainant in light of both the above legal rules as well as the criteria laid down in the Commission's Communication, the Ombudsman considers that the information provided by the Commission included the grounds on which it based its decision, the reasons why the bid submitted by the complainant was not accepted, the relative advantages of the successful tender and the name of the tenderer to whom the contract was awarded.

The Ombudsman has therefore concluded that the information provided by the Commission in reply to the complainant's queries appears to meet the criteria laid down in Article 100 of the Financial Regulation, Article 149 of its Implementing Rules, as well as the Commission's Communication. The Ombudsman therefore takes the view that the Commission's reply to the queries made by the complainant in his letter of 29 September 2005 provided adequate information in relation to the complainant's requests.

The Ombudsman therefore concludes that there appears to be no maladministration as regards this aspect of the case.

2 The Commission's decision to award the call for tenders

2.1 The complainant alleges that the Commission's decision to award the contract was unfair.

The complainant notes that, in 2003, the Commission was the source of 51% of all income of the successful bidder, Z. In his view, it was anti-competitive for an organisation largely funded with public money, mostly from the EU, to compete against ordinary commercial firms in a public tender procedure organised by the Commission.

2.2 The Commission argues that that, as set out in Article 89 of the Financial Regulation and Article 139(2) of its Implementing Rules, and confirmed by the case-law of the Community Courts(12), the participation of subsidised organisations as such does not infringe the principle of equal treatment, provided that the subsidy itself complies with the rules applicable to that assistance. These rules also include the "no profit rule", under Article 109(2) of the Financial Regulation, according to which the grant may not have the purpose or effect of producing a profit for the beneficiary; and the "principle of digression for operating grants", under Article 113(2) of the Financial Regulation, which implies that the Commission's contribution will be reduced over time. The Commission considers that these principles set the basis for a level playing field compatible with the objective of promoting Community policies.

As regards the call for tenders in question, the Commission explains that the responsible services consulted with the responsible committee concerning this decision and that the latter endorsed it, subject to clarification of the risk of double funding. Subsequently, in reply to the Commission's request, Z described its accounting practices and undertook to respect the principles set out in the Commission's Decision governing its 2005 grant agreement(13) in the presentation of its accounts for 2005 and 2006, so that income from the Commission services for general costs and for specific programmes would be clearly mentioned and double accounting would be avoided by internal financial management, external control and EC control.

Taking into consideration Z's information, the Commission concludes that the applicant could not be excluded from the procurement only on the basis of the fact that it was also benefiting from a Commission operating grant. The Commission also notes that, having considered the rules set out in Article 139 of the Implementing Rules, it took the view that Z's offer was not abnormally low.

2.3 The Ombudsman notes that the rules governing calls for tenders, in particular the conditions applicable to potential tenderers, are laid down in the Financial Regulation and its Implementing Rules.

The Ombudsman notes that the Financial Regulation does not forbid bidders benefiting from State aids or Community assistance to take part in calls for tenders organised by a Community institution.

Accordingly, Article 89 establishes that all public contracts financed in whole or in part by the Community budget shall comply, inter alia, with the principles of equal treatment and non-discrimination. As the Community Courts have established, the mere fact that the contracting authority allows bodies receiving subsidies of any kind, whether from that contracting authority or from other authorities, which enable them to submit tenders at prices appreciably lower than those of the other (unsubsidised) tenderers, to take part in a procedure for the award of a public service contract does not amount to a breach of the principle of equal treatment(14).

The Ombudsman also notes that the participation of bidders benefiting from State aid can only be restricted in the exceptional circumstances laid down in Article 139(2) of the Implementing Rules, which states that:

"Where the contracting authority establishes that a tender is abnormally low as a result of State aid provided, it may reject the tender on that ground alone only if the tenderer is unable to prove, within a reasonable time determined by the contracting authority, that the aid in question has been awarded definitively and in accordance with the procedures and decisions specified in the Community rules on State aid."

2.4 In view of the above provisions, the Ombudsman considers that there appears to be no legal rule according to which a successful bidder must be excluded from participating in the call for tenders simply because it benefited from a Community grant. On the contrary, an automatic exclusion, based solely on the fact that the tenderer benefited from a Community grant, would constitute a breach of the principle of equal treatment.

2.5 It has to be assessed, however, whether the successful bidder put forward an abnormally low offer as a result of an inappropriate use of the Community assistance granted to it, thereby breaching the rules applicable as regards that assistance, including the "no profit rule" laid down in Article 109(2) of the Financial Regulation and the "principle of digression for operating grants" laid down in Article 113(2) of the same Regulation).

2.6 The Ombudsman is mindful of the fact that, in the present case, the Commission took a number of precautionary measures vis-à-vis the successful bidder in order to avoid any potential double funding. Accordingly, the Ombudsman notes that, in reaching its decision to award the contract, the Commission took heed of the undertaking made by the successful bidder to respect the principles set out in the conditions applicable to its 2005 grant agreement in the presentation of its accounts for 2005 and 2006. The successful bidder agreed to mention clearly that the income from the Commission services would be used for general costs and for other specific programmes, thus avoiding any risk of double accounting by internal financial management, external control and EC control.

In the course of his inquiry, the Ombudsman has received no information which might lead him to believe that the Commission acted improperly when, in light of the assurances given by the successful bidder, it decided that the latter's bid did not constitute an abnormally low offer which should be annulled pursuant to Article 139(2) of the Implementing Rules.

The Ombudsman further notes that, in its letter of 15 November 2005, the Commission thoroughly explained to the complainant the legal criteria it applied to the situation.

In view of the above, the Ombudsman has concluded that there appears to be no maladministration as regards this aspect of the case.

3 Existence of a "level-playing field" on public procurement issues

3.1 The complainant claims that there should be a thorough, transparent and unambiguous policy regarding heavily subsidised NGOs competing on the open market with commercial companies, and that a fair and "level-playing field" on the issue of public procurement should be established.

3.2 The Ombudsman notes that the claims made by the complainant do not involve a specific call for tenders, but rather concern the legislative framework for implementing the Community public procurement policy in relation to of subsidised bodies.

The Ombudsman points out that, on the basis of the Commission's reply as regards the call for tenders in which Y participated, it appears that the Community legislator has already considered the potential participation of subsidised NGOs in Community public procurement procedures and has in fact established a legislative framework governing this type of situations, so that a fair and "level-playing field" is achieved . These criteria are set out, in particular, in Article 89 of the Financial Regulation and Article 139(2) of its Implementing Rules.

3.3 According to Article 195 of the EC Treaty, the Ombudsman conducts inquiries, either on his own initiative or on the basis of complaints submitted to him, concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The Ombudsman's Annual Report for 1997 contained the following definition of maladministration:

"Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it."(15)

The Ombudsman also noted in his Annual Report for 1997 that there are limits to what could be considered as maladministration. Accordingly, complaints against decisions of a political rather than an administrative nature are regarded as inadmissible, such as those concerning the merits of legislative acts of the Communities, namely, regulations and/or directives.

3.4 The Ombudsman considers that the claims made by the complainant concern the merits of existing Community rules, and fall therefore outside his mandate.

Although the Ombudsman is unable to begin an inquiry into this aspect of the complaint, the complainant may consider submitting a petition to the European Parliament. This institution, in its role of Community legislator, can then assess whether it would be necessary to introduce legislative changes into the Community public procurement rules as regards the participation of subsidised bodies with a view to ensuring a fair and "level-playing field".

4 Conclusion

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

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

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

(2) OJ 2002 L 357, p. 72.

(3) Decision No 466/2002/EC of the European Parliament and of the Council of 1 March 2002 laying down a Community action programme promoting non-governmental organisations primarily active in the field of environmental protection; OJ 2002 L 75, p. 1.

(4) COM (2003)395 final.

(5) Case 56/77 Agence Européenne d'Interims v Commission [1978] ECR 2215, paragraph 20; Case T-19/95 Adia Interim SA v Commission [1996] ECR II-321, paragraph 49; Case T-13/96 Team Srl v Commission [1998] ECR II-4073, paragraph 76; Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 56.

(6) C-94/99 ARGE [2000] ECR I-11037.

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

(8) OJ 2002 L 357, p. 72.

(9) COM (2003)395 final.

(10) "1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract, including the grounds for any decision not to award a contract for which there has been competitive tendering or to recommence the procedure.

2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation."

(11) Section 3 (Procedure proposed), p. 4.

(12) Case C-94/99 ARGE [2000] ECR I-11037.

(13) Decision No 466/2002/EC of the European Parliament and of the Council of 1 March 2002 laying down a Community action programme promoting non-governmental organisations primarily active in the field of environmental protection, OJ 2002 L 75, p. 1.

(14) Case C-94/99 ARGE [2000] ECR I-11037, paragraph 32.

(15) The European Ombudsman's Annual Report for 1997, Section 2.2.1, OJ 1998 C 380, p. 14.