In its Judgment of 29 January 2013 in Joined Cases T‑339/10 and T‑532/10 Cosepuri Soc. Coop. pA v European Food Safety Authority (EFSA), the General Court has ruled again on the topical issue of the protection of confidentiality and business secrets in tender evaluation--and, in principle, has shown a more balanced approach than in previous Judgments concerned with transparency at debriefing stage.
However, in my opinion, the case law in this area still falls short from guaranteeing a proper balance between transparency and protection of business secrets and continues to promote excessive disclosure.
In the case at hand, Cosepuri challenged the EFSA's evaluation procedure on the basis of the confidential treatment of financial assessment. The GC has taken no issue with the degree of confidentiality imposed by EFSA, but on a series of grounds that still seem (partially) inadequate:
32 First, the applicant calls into question the fact that Part
II.8.2 of the tender specifications provided that the tender evaluation
procedure was to be confidential. It should be noted in that regard that the
applicant has the right to challenge, as an incidental plea, the lawfulness of
the specifications in the present action (see, to that effect, Case T‑495/04 Belfass v Council  ECR II‑781, paragraph 44). […]
33 Article 89(1) of the Financial Regulation provides that
all public contracts financed in whole or in part by the budget are to comply,
inter alia, with the principle of transparency. In the present case, it must be
noted that Part II.8.2 of the specifications, which provides that the procedure
for the evaluation of the tenders is to be conducted in secret, satisfies the
requirement of preserving the confidentiality of the tenders and the need to
avoid, in principle, contact between the contracting authority and the
tenderers (see, on this point, Article 99 of the Financial Regulation and
Article 148 of the Implementing Rules). The principle of transparency, referred
to in Article 89(1) of the Financial Regulation, which is invoked by the
applicant, must be reconciled with those requirements. Accordingly, there is no
basis on which it can be concluded that Part II.8 of the specifications is
vitiated by unlawfulness.
34 Second, the applicant challenges the fact that it was not
able to ascertain the price proposed by the successful tenderer. In particular,
the applicant states that EFSA ensured that it would not be possible for any
subsequent verification to be carried out by redacting from the evaluation
report the price offered by the successful tenderer. In that regard, without
there being any need to rule in the present case on whether the price proposed
by the successful tenderer formed part of the information which the contracting
authority should have communicated to the unsuccessful tenderers (sic), it is clear
from the evidence submitted that the applicant was in a position to ascertain
the price in question. It is apparent from Section 2.4 of the evaluation
committee report that the applicant and the successful tenderer offered the
same price in respect of points 2 to 7 of the financial bid, both obtaining the
maximum score of 15 points. The price offered by the successful tenderer in
respect of points 2 to 7 of the financial bid is therefore abundantly clear
from the evaluation committee report. Moreover, with regard to point 1 of the
financial bid, the evaluation committee report indicated the price offered by
the applicant and the mark obtained. Although it does not expressly refer to
the price offered by the successful tenderer, that report specifies the mark
obtained by it. Taking account of those factors, it was possible to calculate,
without any difficulty, the price proposed by the successful tenderer in
respect of point 1 of the financial bid, as submitted by EFSA in connection
with the second plea. Furthermore, the Court has been able to verify, by way of
the measure of inquiry adopted at the hearing (see paragraph 16 above), that
the price mentioned by EFSA in its written pleadings was in fact the price
proposed by the successful tenderer. In view of all the foregoing
considerations, the Court considers that, even if EFSA had erred by failing to
indicate expressly to the applicant the price proposed by the successful
tenderer, such an error would have had no effect on the lawfulness of EFSA’s
decision to reject the applicant’s tender and award the contract at issue to
another tenderer whose bid was considered to be better, since the applicant was
in a position to ascertain that price. The applicant’s arguments in that regard
must therefore be rejected.
35 Third, with regard to the principle of sound
administration relied on by the applicant, according to case‑law, guarantees afforded by the European Union legal order in
administrative proceedings include, in particular, the principle of sound
administration, which entails the duty on the part of the competent institution
to examine carefully and impartially all the relevant aspects of the individual
case (see the judgment of 15 September 2011 in Case T‑407/07 CMB and Christof v Commission, not published in the ECR,
paragraph 182 and the case‑law cited).
In the present case, the arguments put forward by the applicant in the first
plea, which essentially consist in criticising the fact that it was not granted
access to the financial bid of the successful tenderer, do not
demonstrate that EFSA failed to examine carefully and impartially all the
relevant aspects of the case. In the absence of more detailed evidence, the
applicant’s arguments in that regard must be rejected. (T-339/10 and 532/10 at paras. 32 to 35, emphasis added).
In my view, paragraphs 33 and 35 of the Cosepuri Judgment must be welcome, as they set a more balanced framework for the assessment of the obligation to disclose confidential information and business secrets under the principles of transparency and good administration.
On the contrary, paragraph 34 deserves a clear rejection, given that the GC keeps a very formalistic approach to the protection of confidential information and takes no issue with the fact that such sensitive information as price can be disclosed indirectly, and considers that that does not infringe either the rights of the 'disclosed' undertaking to protection of its business secrets, nor the procedural rights of the disappointed bidder that is granted indirect access to that information.
I think that the GC should have taken a stronger position and clearly confirmed that both direct and indirect disclosure of price elements and financial evaluations can be restricted or excluded on grounds of protection of confidentiality. Otherwise, the incentives continue to push contracting authorities for an excessive degree of transparency in public procurement settings--which creates significant risks of collusion [Sánchez Graells, "Public Procurement and Competition: Some Challenges Arising from Recent Developments in EU Public Procurement Law" in Bovis (ed) Research Handbook on European Public Procurement (forthcoming), http://ssrn.com/abstract=2206502].