The background to the complaint

1. The present case concerns the complainant's allegedly unfair exclusion from two tender procedures organised by the Translation Centre for the Bodies of the European Union (hereinafter the 'Translation Centre').

2. The complainant is an Estonian company which provides translation services. It has acted as a subcontractor of a number of companies, including a Greek company ('company A'), which has gone out of business, a Finnish company ('company B'), a Lithuanian company ('company C') and an Estonian company ('company D').

3. In 2011, the complainant took part in two tender procedures in the field of translation organised by the Translation Centre: FL/TM11 (provision of services relating to the translation of standardised technical texts in the industrial/intellectual property field), and FL/MED11 (provision of services relating to the translation of medical and pharmaceutical texts).

4. Call for Tenders FL/TM11 was published in the Official Journal on 19 March 2011[1]. The complainant bid for the lots concerning translations from Czech, Danish, German, Greek, English, Spanish, Finnish, French, Hungarian, Italian, Lithuanian, Latvian, Dutch, Polish, Portuguese, Romanian and Swedish into Estonian. By e-mail of 11 July 2011, the Translation Centre informed the complainant that its bid had been unsuccessful due to "insufficient evidence of translation experience in the field and/or in the target attested".

5. By e-mail of 12 July 2011, the complainant contested the Translation Centre's position that it had not submitted sufficient evidence to prove the required experience. In support of its view, the complainant enclosed documents it had submitted together with its bid and asked the Translation Centre to reconsider its position.

6. On 26 July 2011, the Translation Centre replied to the complainant and explained that purchase orders from company A and company B, which the complainant had enclosed with its bid, were not an acceptable form of proof of translation experience, because they did not prove that the translations had actually been carried out. The rest of the enclosures provided by the complainant did not sufficiently specify the number of pages translated, the field, or the language combination used in the translations.

7. On 27 July 2011, the complainant again turned to the Translation Centre and asked why purchase orders issued by company A and company B could not be taken into account, given that the complainant had also enclosed the corresponding contracts and invoices with its bids. The Translation Centre replied to the complainant on 29 July 2011 and explained that only the purchase orders that were accompanied by the corresponding invoice or reference letter were accepted as proof of the required translation experience. All the experience thus documented in the complainant's bid was taken into account, but unfortunately, it still failed to meet the condition relating to the minimum experience required.

8. The complainant replied to the Translation Centre on 1 August 2011. It pointed out that the Translation Centre had first explained that purchase orders (from companies A and B) were not considered to constitute an acceptable form of proof, but later stated that they would be accepted, if they were accompanied by the corresponding invoice or reference letter. The Translation Centre sent a further reply to the complainant on the same day and, referring to its previous e-mail, essentially maintained its position, according to which, only order forms and the corresponding invoices could be taken into account. It also reiterated that the complainant's translation experience into the target language was not sufficient.

9. Call for Tenders FL/MED11 was published in the Official Journal on 20 April 2011[2]. The complainant bid for the language combination English into Estonian. By e-mail of 25 October 2011, the Translation Centre informed the complainant that its bid had been unsuccessful due to "insufficient evidence of experience in translating in the field and/or in the target attested".

10. The following day, the complainant sent a letter to the Translation Centre and contested its above-mentioned decision. The complainant took the view that it had actually submitted evidence of more than 3 700 pages of translation experience in the relevant field, whereas the requirement set out in the tender specifications was 1 500 pages, and asked the Translation Centre to reconsider its position.

11. In its subsequent replies to the complainant, the Translation Centre explained that it had rejected its bid, in essence, because (i) the complainant's invoices to company C did not specify a language combination, and a certificate issued by the latter did not mention any volume of translation or the names of the translators involved in the project; (ii) the certificate issued by company D to Ms M (one of the complainant's translators) and Ms M's invoices did not specify any language combination; (iii) the certificate issued by the former Director of company A did not specify the language combination, the field and the volume of work carried out; and (iv) the purchase orders from company A were considered self-declarations. As a result, there was only one invoice attesting to 956.81 pages of translation in the relevant language combination and field that the Evaluation Committee could take into account.

12. On 14 November 2011, the complainant submitted a complaint to the Authorising Authority of the Translation Centre and argued that (i) the purchase orders corresponding to the invoices addressed to company C clearly indicated that the texts had been translated from English into Estonian; (ii) a letter of recommendation issued by Ms B, the representative of company C, clearly showed that the translated texts concerned topics in the medical field; (iii) the complainant's in-house translator, Ms R, does not issue invoices because of her employee status, so the complainant enclosed her CV and contract of employment as proof of her translation experience in the required field; (iv) as to the certificate issued by company D to Ms M, the latter's CV clearly indicated the language combinations which she mastered; (v) regarding the statement that the certificate issued by the former Director of company A did not specify any details, that company went out of business in 2009 and therefore no specific details could be obtained from it any longer; however, the letter issued by the Director of company A clearly indicated Estonian as the complainant's main working language; and (vi) as regards the purchase orders and their self-declaratory nature, the complainant stated that it had never been a part of company A, wherefore its purchase orders could not be regarded as self-declarations.

13. On 16 December 2011, the Translation Centre replied to the complainant and explained that either (i) the purchase orders to which the complainant referred did not specify (a) whether Estonian was the source or the target language or (b) the volume or field of translations, or (ii) the wording used in the certificates was ambiguous.

14. On 19 December 2011, the complainant turned to the European Ombudsman.

15. The Ombudsman opened an inquiry into the following allegations and claim:

Tender procedure FL/TM11

Tender procedure FL/MED11

The subject matter of the inquiry

Allegations

(1) The Translation Centre acted wrongly and unfairly when it excluded the complainant from tender procedure FL/TM11 (provision of services relating to the translation of standardised technical texts in the industrial/intellectual property field).

(2) In the course of tender procedure FL/TM11, the Translation Centre provided wrong and inconsistent information to the complainant on acceptable forms of proof of the required translation experience.

(3) The Translation Centre acted wrongly and unfairly when it excluded the complainant from tender procedure FL/MED11 (provision of services relating to the translation of medical and pharmaceutical texts).

Claim

The Translation Centre should review its assessment of the bids the complainant submitted in response to Calls for Tenders FL/TM11 and FL/MED11.

The inquiry

16. On 21 February 2012, the Ombudsman requested the Translation Centre to submit an opinion on the complainant's allegations and claim. On 25 May 2012, the Translation Centre sent its opinion, which was forwarded to the complainant for observations. Any observations were to be sent by 31 July 2012. However, the complainant did not submit any observations.

17. In its complaint to the Ombudsman, the complainant alleged that the Translation Centre acted wrongly and unfairly when it excluded the complainant from tender procedure FL/TM11. In support of that view, the complainant argued that purchase orders issued by the companies which used to subcontract work to it should have been duly taken into account when evaluating its bid. This applied, in particular, with regard to company A and company B, both of which used to subcontract work to the complainant.

18. In its opinion, the Translation Centre first explained that each call for tenders is autonomous, and is based on different requirements set out in the relevant tender specifications. It added that "documents submitted by tenderers are every time considered as a whole and in their specific context". As regards tender procedure FL/TM11, according to point 3.2 of the relevant tender specifications, the "tenderer's translation experience into the target language for which the bid is made must be equivalent to 5,000 pages in the field of industrial/intellectual property (trademarks, patents or designs (one page = 1,500 characters, excluding spaces) ...". Furthermore, as regards the acceptable forms of proof, the Translation Centre referred to the same point of the tender specifications, which further provides that "...for experience to be taken into account, it must be accompanied by some acceptable form of proof, such as reference letters, extracts of accounting systems certified by an authorized third party or certificates, all of which must clearly indicate the volume of work done, the language combination and the field in order to be considered as valid. [...] In this context, self-declarations or evidence not endorsed by a third party cannot and will not be accepted".

19. The Translation Centre then went on to explain that the documentation which the complainant submitted along with its offer, with an eye to proving its translation experience related to:

The Ombudsman's analysis and conclusions

A. Allegation of wrong and unfair exclusion from tender procedure FL/TM11 and corresponding part of the claim

Arguments presented to the Ombudsman

(a) experience acquired from 2006 to 2008, when translating standardised technical texts in the industrial/intellectual property field as a subcontractor for company A. The documentation provided proof of almost 2 700 translated pages, which were "taken into account as a whole".

(b) experience acquired from 2007 to 2010, when translating standardised technical texts in the industrial/intellectual property field as a subcontractor for company B.  This experience was not taken into account because the order forms submitted in the bid were not supported by any invoice. Therefore, the Evaluation Committee had no tangible proof that the translations ordered by company B were actually carried out.

(c) experience acquired when translating documents for various clients, proven by means of the reference letters enclosed. This experience was not taken into account because (i) it was, generally, not in the industrial/intellectual property field; (ii) the letters did not specify the language combination concerned; or (iii) the volume of work carried out was not clear.

20. The Translation Centre specified that, on 12 July 2011, the complainant submitted one further certificate, which, however, had not been enclosed with its original bid. For this reason, it could not be taken into account. The Translation Centre also pointed out that order forms or purchase orders alone could not be considered to constitute proof that the work had been carried out, because "[t]hese documents could be issued by companies to their suppliers without leading necessarily to the work being carried out". In the case at hand, the complainant did not enclose documents, such as invoices or reference letters, confirming that the purchase orders were executed.

21. In conclusion, the Translation Centre took the view that the total 'volume of experience' proven by the complainant (2 700 pages) did not reach the minimum requirement of 5 000 translated pages in the required field and language combination. The Translation Centre provided the Ombudsman with copies of the documents which the complainant had enclosed with its bid. The complainant did not submit any observations on the opinion.

22. The Ombudsman notes that the relevant parts of point 3.2 of the tender specifications read as follows:

The Ombudsman's assessment

"The tenderer's translation experience*** into the target language for which the bid is made must be equivalent to 5,000 pages in the field of industrial/intellectual property (trademarks, patents or designs) (one page = 1,500 characters, excluding spaces). In case of subcontracting, this requirement applies to the subcontractor. [...]

*** Please read carefully the requirements below concerning proof of experience (second bullet in the box) [...]

• It is in the tenderer’s interest to give as many details as possible in the curriculum vitae and supporting documents with regard to experience.
• For experience to be taken into account, it must be accompanied by some acceptable form of proof, such as reference letters, extracts of accounting systems certified by an authorized third party or certificates, all of which must clearly indicate the volume of work done, the language combination and the field in order to be considered as valid. Letters of reference and certificates must be signed and the contact details of the signing person must be indicated therein.
• In this context, self-declarations or evidence not endorsed by a third party cannot and will not be accepted".

23. In the complainant's view, it provided sufficient evidence to prove that it met the requirement of 5,000 pages of translation experience in the field of industrial/intellectual property and in the required language combination. In this respect, the purchase orders should have been duly taken into account. The Translation Centre rejected the complainant's bid, in essence, on the grounds that (i) the purchase orders provided by company B were not accompanied by supporting evidence; and (ii) the reference letters from various clients did not specify either the field, the language combination, or the number of translated pages.

24. In the case at hand, the Ombudsman notes that the purchase orders issued by company A were taken into account and demonstrate a total volume of almost 2 700 pages of translation experience in the required field. This matter is therefore not in dispute in the case at hand.

25. As regards the question of the purchase orders issued by company B, the Ombudsman notes that the complainant did not dispute the Translation Centre's view that they were not accompanied by corresponding invoices or other supporting documents. The Translation Centre's position that purchase orders do not, as such, objectively demonstrate that the work has actually been executed, even if they specify the language combinations and the volume of work carried out, appears to be a plausible interpretation of point 3.2 of the tender specifications and is therefore reasonable. For this reason, the complainant's argument that purchase orders should have been duly taken into account is not convincing.

26. Concerning the thirteen reference letters from other clients of the complainant, the Ombudsman considers reasonable the position of the Translation Centre that none of them provided convincing and unambiguous information to prove that (i) the translated texts concerned topics in the required field, (ii) the translations were in the required language combination, and (iii) the volume of the work carried out is in line with point 3.2 of the tender specifications. It was also reasonable for the Translation Centre to take the view that the reference letters only provide general information on the complainant's translation experience.

27. In light of the foregoing, and taking into account that the complainant did not submit any observations, the Ombudsman concludes that the Translation Centre gave valid and adequate reasons for its decision to reject the complainant's bid.

28. The complainant alleged that the Translation Centre provided it with wrong and inconsistent information concerning acceptable forms of proof of the required translation experience in the framework of tender procedure FL/TM11. In support of its allegation, the complainant argued that, initially, the Translation Centre explained that the Evaluation Committee would not consider purchase orders (from company A and company B) to constitute an acceptable form of proof, but subsequently stated that such purchase orders would be accepted, if they were accompanied by the corresponding invoice or reference letter.

29. In its opinion, the Translation Centre pointed out that, in its e-mail of 26 July 2011 to the complainant, it explained that purchase orders alone could not be regarded as an acceptable form of proof of the required translation experience.

30. The Ombudsman points out that it follows from the wording of Article 12 of the European Code of Good Administrative Behaviour that officials must reply as completely and as accurately as possible to questions which they are asked. Furthermore, in accordance with Article 3 of the Public Service Principles for the EU Civil Service[3], officials should be ready to acknowledge and correct mistakes, if they occur.

31. In the case at hand, on 26 July 2011, the Translation Centre replied as follows to the complainant's first query of 12 July 2011 as to why purchase orders were not taken into account:

B. Allegation that the complainant was provided with wrong and inconsistent information on acceptable forms of proof of the required translation experience in tender procedure FL/TM11

Arguments presented to the Ombudsman

The Ombudsman's assessment

"Purchase orders (from [A] or from [B]) were considered, by the Evaluation Committee, as not acceptable form of proof as the translation jobs have been performed.

The different certificates enclosed [with] your offer do not mention the number of pages translated and the field and the language combination concerned by this call for tenders."

32. In its reply of 29 July 2011 to the complainant's further query of 27 July 2011, the Translation Centre explained that:

"only the order form/purchase order attested by the corresponding invoice or by the [relevant] reference letter [was] considered by the Evaluation Committee, as an acceptable form of proof [...]."

33. The Ombudsman considers that, even if the above statements can be reconciled, the Translation Centre's first reply does not make it sufficiently clear that purchase orders could be taken into account under certain circumstances. However, given that the Translation Centre clarified the issue in its subsequent replies, the Ombudsman takes the view that it corrected the lack of clarity found in the wording of its first reply.

34. In light of the above considerations, the Ombudsman takes the view that there are no grounds for further inquiries into the second allegation.

35. In its complaint, the complainant alleged that the Translation Centre wrongly and unfairly excluded it from tender procedure FL/MED11. In support of its view, the complainant argued that (i) the different types of proof of translation experience which it submitted should have been taken into account as a whole and not separately; and (ii) the Translation Centre wrongly considered purchase orders to be self-declarations.

36. In its opinion, the Translation Centre explained that it rejected the complainant's bid because the three translators it proposed did not meet the required experience criteria indicated in the tender specifications[4]. More specifically, it argued that (i) the purchase orders and invoices issued by company C did not specify whether Estonian was the source or the target language of the translations carried out; (ii) the certificates issued by company C did not specify the volume of the translations carried out, while the description of the language combination was also ambiguous; (iii) the certificate issued by company D to Ms T, one of the complainant's translators, did not specify the language combination in an unambiguous way; and (iv) the certificates issued by the former Director of company A did not specify the volume, the language combinations or the field of the translations carried out by the complainant. The Translation Centre confirmed that the work relationship of Ms R, one of the complainant's translators, was taken into account. Moreover, it also pointed out that purchase orders were not the only means available to tenderers to prove the required translation experience. Finally, some of the documents the complainant referred to, such as a full copy of the contract between the complainant and company C, were not included in the initial bid. As a result, they could not be taken into account. The complainant did not submit any observations on the opinion.

37. In its opinion, the Translation Centre submitted a number of arguments in support of its view that the complainant's bid did not meet the required experience criteria indicated in the tender specifications. The Ombudsman will now assess these arguments in turn.

38. Concerning the argument put forward by the Translation Centre that the purchase orders and invoices issued by company C did not specify whether Estonian was the source or the target language of the translations carried out, the Ombudsman confirms that this is true. The tender specifications clearly referred to the language combination English into Estonian. For this reason, the Ombudsman considers that the position of the Translation Centre is convincing.

39. As regards the argument that the certificates issued by company C did not specify the volume of the translations carried out, and that the description of the language combination was ambiguous, the Ombudsman notes that the documents submitted by the complainant do not indicate the volume of the translations into Estonian carried out. The position of the Translation Centre is, therefore, reasonable.

40. As regards the argument that the certificate issued by company D to Ms T did not specify the language combination in an unambiguous way, the Ombudsman notes that the certificate does not contain any explicit reference to the language combination. Ms T's CV, on the other hand, is not a document drawn up by company D and does not, therefore, unequivocally clarify whether, when Ms T carried out the translations for company D, the language combination was English into Estonian. For these reasons, the position of the Translation Centre is convincing.

41. Concerning the certificate issued to the complainant by the former Director of company A, the Ombudsman notes that the certificate refers to Estonian both as a source and as a target language. In terms of volume, the certificate states that the complainant has translated "many thousands [of] pages". There is no reference in the document to the field to which the translated texts may be assigned. On this basis, the Ombudsman takes the view that the position of the Translation Centre is convincing.

42. Regarding the complainant's argument that purchase orders from company A should not have been considered to constitute self-declarations, the Ombudsman takes the view, on the basis of the considerations outlined in point 25 above, that the position of the Translation Centre is reasonable. The certificate issued by the former Director of company A does not provide any specific proof in this respect either. For this reason, the Ombudsman considers the position of the Translation Centre convincing.

43. For the reasons indicated above, the Ombudsman concludes that the Translation Centre thoroughly analysed the complainant's translation experience and gave valid reasons for its position that purchase orders do not constitute, on their own, an acceptable form of proof of the required translation experience. On this basis, the Ombudsman considers that the Translation Centre gave valid and adequate reasons for its decision to reject the complainant's bid.

C. Allegation of wrong and unfair exclusion from tender procedure FL/MED11 and corresponding part of the claim

Arguments presented to the Ombudsman

The Ombudsman's assessment

D. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

As regards the first and third allegations, there has been no maladministration in the activities of the Translation Centre. For this reason, the complainant's claim cannot succeed.

There are no grounds for further inquiries into the second allegation.

The complainant and the Translation Centre will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 February 2013

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[1] OJ 2011 S 55.

[2] OJ 2011 S 77.

[3] See http://www.ombudsman.europa.eu/en/resources/publicserviceprinciples.faces

[4] According to the tender specifications, each translator of the bidder had to meet one of the following criteria: (1) A university level degree or equivalent qualification in one of the following areas: medicine, veterinary medicine, pharmacology, biology, chemistry PLUS translation experience into the target language for which the bid is made equivalent to at least 1,500 pages (one standard page = 1,500 characters, excluding spaces; 1,000 standard pages = one year’s full-time work); (2) A university level degree or equivalent qualification in any discipline PLUS specialisation in medicine, veterinary medicine, pharmacology, biology, chemistry evidenced by a master's degree or equivalent postgraduate diploma PLUS translation experience into the target language for which the bid is made equivalent to at least 1,500 pages of which at least 750 pages in one the following sectors: medicine, veterinary medicine, pharmacology, biology, chemistry (one standard page = 1,500 characters, excluding spaces; 1,000 standard pages = one year’s full-time work); (3) A university level degree or equivalent qualification in any discipline PLUS translation experience into the target language for which the bid is made equivalent to at least 1,500 pages in one the following sectors: medicine; veterinary medicine, pharmacology, biology, chemistry (one standard page = 1,500 characters, excluding spaces; 1,000 standard pages = one year’s full-time work).