Background

1. The European Commission awarded a contract^[1] in the context of the ‘Services for the Implementation of External Aid 2018’ framework contract (“FWC SIEA 2018”).^[2]

2. The complainant was proposed as a Team Leader by a company (‘company A’) which lost the bid for one of the Lots of the framework contract (‘LOT 3: Human Rights, Democracy and Peace’)^[3]. Following a review requested by company A, the Commission confirmed the initial assessment of the evaluation committee.

3. On 18 December 2018, the complainant sent a letter to the Commission contesting the Commission’s award decision for the same reasons as company A.

4. On 6 February 2019, the Commission informed the complainant that it had already reviewed the award procedure following a request by company A. It provided the complainant with additional explanations regarding the assessment of the evaluation committee and, for the rest, it referred to its replies given on 8 and 23 November 2018 to company A.

5. Dissatisfied with the Commission’s response, the complainant turned to the Ombudsman on 7 February 2019.

The complaint to the European Commission

6. Concerning the successful tenderer’s team, the complainant considered that the Team Leader and two out of the three senior experts proposed did not meet the requirements in the ‘Terms of Reference’^[4] and the ‘Specific Terms of Reference’. According to the complainant, the Commission merely assumed that the experts in question, and in particular the Team Leader, possessed the required professional experience, without carrying out a proper assessment.

7. For the complainant, a comparison between his CV and that of the Team Leader of the successful tenderer, as well as other documents, showed that the latter did not fulfil the requirement of “team leadership experience”. In his view, based on a comparative assessment, the points given to the experts of company A should have been higher. In addition, the complainant contended that, by relying on its staff’s own knowledge regarding the experts’ experience, the Commission did not conduct an impartial review of the award procedure and ignored the documentary evidence provided by company A.

The European Commission’s response to the complainant

8. The Commission stated that following a complaint by company A, it carried out a review process of the award procedure. The review process was carried out by the same members of staff who were involved in the decision taken by the evaluation committee, including the responsible financial and legal units of the Directorate-General for International Cooperation and Development. Thus, the review process complied with the applicable rules^[5]. That review confirmed the evaluation committee’s initial assessment. The Commission rejected the complainant’s argument that the review process relied on sources and information that went beyond what was included in the documentation submitted by the relevant bidders. What the Commission did in this case was to verify the specific professional experience of the Team Leader and of the experts based on references from staff in the EU Delegations and from experts mentioned in the relevant CVs.

9. The Commission also noted that the complainant was wrong to assume it awarded specific points for each of the requirements for the Team Leader and the experts. Instead, it clarified that what it did was to “weight the overall profile of each expert, including the assets and weaknesses, once the specific requirements [were] fulfilled”.

10. The Commission also informed the complainant that the slightly lower score of company’s A bid was not due to the “quality” of its experts, but due to the methodology of its bid. In particular, company’s A bid lacked “a more detailed and in-depth analysis of the risks and proposed mitigating measures”. Moreover, for the evaluation committee, the “communication angle was better elaborated in the winning bid”.

The European Ombudsman's findings

11. It is clear from the complaint that the Commission carried out its review in accordance with the applicable rules, which state that where the Commission is the contracting authority, “the complaint will be sent to the person who took the contested decision”^[6].

12. Regarding the complainant’s concerns that the Commission did not base its review on the information contained in the relevant bids, the Ombudsman notes that what the Commission did in that regard was to further check (“verify”) the experts’ and Team Leader’s professional experience, by contacting staff in the EU Delegations and experts mentioned in the relevant CVs. There is nothing in the information submitted by the complainant to show that the Commission went beyond these verifications and checks and/or relied on information or sources not included in the submitted bids. Nor did the complainant contest the Commission’s explanation that what it did in this case was not to award specific points for each of the requirements for the Team Leader and the experts, but to weight the overall profile of each expert once the specific requirements in question were fulfilled.

13. Finally, in its reply to company A of 23 November 2018, the Commission stated that the “slightly lower score” given to its bid was due to the methodology of its offer and not, as the complainant had argued, “to the quality of [its] experts”. The Commission further added that it expected “a more detailed and in-depth analysis of the risks and proposed mitigating measures”. The complainant has not put forward any arguments to challenge these explanations.

14. Therefore, based on the information provided by the complainant, the Ombudsman finds no maladministration in this case.^[7]

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 05/09/2019

 

[1] Contract award procedure 2018/399544/1 in the context of a Framework contract entitled 'Services for the Implementation of External Aid 2018' (‘FWC SIEA 2018).

[2] More information on the FWC SIEA 2018 on the following Commission’s website: https://ec.europa.eu/europeaid/funding/fwc-siea-2018_en and on the following website for the calls for tender from the European institutions: https://etendering.ted.europa.eu/cft/cft-documents.html?cftId=2380.

[3] A description of Lot 3: Human Rights, Democracy and Peace, is available on the following website: https://ec.europa.eu/europeaid/sites/devco/files/en-b_-_ii_-_b_-_detailed_description_lots.1.pdf.

[4] The Global Terms of Reference, available at the following website: https://etendering.ted.europa.eu/cft/cft-document.html?docId=28045.

[5] Article 2.12.1 of the practical guide on contract procedures for European Union external action (PRAG): “Where the European Commission is the contracting authority, the complaint will be sent to the person who took the contested decision, who will endeavour to investigate the complaint and respond within 15 working days. Alternatively, if the candidate, tenderer or applicant is not satisfied with the answer received, she/he may refer to the relevant geographical director in Headquarters. The complaint shall be substantiated and its sole object shall not be to obtain a second evaluation for no reason other than the complainant disagrees with the final award decision”. Available at the following website: http://ec.europa.eu/europeaid/prag/document.do?nodeNumber=2.12.1.

[6] Article 2.12.1 of PRAG, available at the following website: http://ec.europa.eu/europeaid/prag/document.do?nodeNumber=2.12.1.

[7] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions