The General Court of the European Union dismissed an action brought by a company against the European Commission’s decision to award a contract in a tendering procedure. The Court clarified that the criteria for the exclusion of a tenderer cannot be applied in the absence of a final judgment establishing serious misconduct on the part of the competing company and that the difference in price is not sufficient to consider a tender to be abnormally low. The Court also pointed out that the contracting authority may base its award decision solely on the evaluation report of a committee responsible for evaluating the tenders, without carrying out any further checks.
The European Space Agency (ESA), acting for and on behalf of the Commission, launched a call for tenders for the supply of transition satellites for the Galileo programme. This procedure enabled two successful tenderers to be selected and the contract to be awarded on the basis of the most economically advantageous offer. At the end of the selection phase, the contract was awarded to two companies.
One of the participating companies claimed that a former employee was employed by one of the winning companies and used sensitive information in the selection process. As a result, the plaintiff company brought an action against the decision to award the contracts to the two companies, which was dismissed by the General Court of the European Union.
The General Court’s judgment clarifies the application of the criteria for excluding a tenderer, the obligation to verify the content of a tender considered abnormally low and the autonomy of the award decision.
In its reasoning, which analyses the issue of the employment of a competitor’s employee during the tender procedure and the alleged abnormally low price, the General Court states that:
- in the absence of a final judgment or administrative decision establishing serious professional misconduct on the part of the tenderer, the criteria for the exclusion of a tenderer do not apply, which means that the allegations made against the tenderer do not constitute sufficient evidence to establish a presumption of guilt.
- the difference in price between the contested tender and the other tenders is not in itself an indication of the abnormally low nature of the tender, given the particular characteristics of the contract.
- the Commission, as contracting authority, is entitled to rely on the evaluation report drawn up by the evaluation committee for the purposes of awarding the contract and may adopt it as its own without carrying out any further checks, without prejudice to the Commission’s autonomous decision to award the contract.