Tenderers must know why their tender has been rejected: the rejection notice must state the grounds or reasons for the rejection. In the Netherlands this rule, among others, in procurement law is laid down in Article 2:130 of the Dutch Procurement Law (Aanbestedingswet). For tenders called by an EU entity, such as the European Commission (EC), this rule applies to the procedure too and derives from the Financial Regulation. This principle was confirmed by the decision of the General Court of the EU dated 13 December 2013. The General Court annulled the EC’s decision dated 8 February 2012 whereby the EC rejected the applicant’s tender. The contracting authority was the EU, and the EC represented it; the EC acted for and on behalf of the beneficiary state of Albania (see EuropAid/131431/C/SER/ AL). What follows is the case.
On 11 May 2011 the EC published in the Official Journal of the European Union an invitation to tender. The tender was for services for the Albanian Ministry of Innovation and Information & Communication Technology and also for the Albanian National Agency for the information society in developing informatics infrastructure and e-government services. These two companies, among others, submitted a tender: (i) European Dynamics Luxembourg SA and (ii) Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE. The EC rejected both tenders and did not subsequently accede to the confirmatory applications which they submitted, requesting for access to documents on which this decision was based. The EC informed the applicants that due to the protection of privacy and integrity of individuals and the protection of commercial interests of participants, it could not meet their request. Consequently, the two companies pursued an action against the European Commission and successfully sought the General Court to annul the EC’s rejection decision of 8 February 2012. The General Court followed the applicants’ argument that the EC had breached the duty to state reasons under Article 100, paragraph 2 of the Financial Regulation 1605/2002. According to the General Court, the EC’s reply to the two companies did not contain details of the offer of the company that won the contract so the information could be used by the two companies as comparison, nor did the EC’s answer enable the applicants to know about and understand the information concerning why their tenders were rejected.
Source: General Court of the European Union 13 December 2013, case T-165/12