In its Judgment of 28 November 2013 in case T-424/12 UAB Gaumina v Institut européen pour l’égalité entre les hommes et les femmes (EIGE), the General Court has ruled once more on the boundaries of the duty to state reasons in decisions addressed to tenderers whose offers are rejected in public procurement procedures. In my view, despite not advancing the law, this case is relevant because it deals with a fact that is bound to gain relevance as eProcurement (and the use of electronic means of communication in procurement) advances: emails may get lost (sometimes).
In the case at hand, the contracting authority claims to have sent a disappointed tenderer an email detailing the reasons for the rejection of its offer (ie a detailed evaluation report showing that the offer did not reach the minimum 80% of technical points required to proceed to financial evaluation). The tenderer claims to never have received the email. The authority submitted evidence proving the email was sent from its server. However, there was no (clear) evidence supporting reception of the email by the tenderer. In these circumstances (slightly complicated due to the fact that the parties introduced or offered to submit evidence at different procedural phases), the legal issue at stake basically required determining whether the contracting authority had satisfactorily discharged its duty to state reasons by sending an email for which it had no proof of receipt.
The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
46 [...] in this case, the log of server connection history relied upon by EIGE is not susceptible of establishing receipt of the email of 13 August 2012 by the applicant. Indeed, [...] it is likely that this document was generated solely by EIGE's computer system and it is only capable of showing sent status for the email of 13 August 2012 to the applicant, but not of its receipt by the latter. EIGE could not demonstrate that the applicant's computer system guaranteed the delivery of the email of 13 August 2012, which was challenged by the applicant [...]
48 [ ...] contrary to what EIGE has essentially argued at the hearing, the fact that, during the proceedings before the Court, it presented several pieces of evidence that it had actually sent the email of 13 August 2012 to the applicant does not create the presumption that the latter also received this email, and so that it is for the applicant to prove the contrary. Indeed , for such a reversal of the burden of proof to eventually take place, EIGE should not only provide indicia that it had sent the email of 13 August 2012 to the applicant, but also that the applicant had received said email. However, in this case, the fact that EIGE sent the email to the correct email address and the document entitled "detail record" are only clues that EIGE sent the email of 13 August 2012 to the applicant, but not of the fact that the latter received it.
49 It follows from the foregoing that EIGE has failed to demonstrate that the applicant had received the email of 13 August 2012. It must therefore be held to have infringed the obligation to state reasons imposed on it by Article 100, paragraph 2 of the Financial Regulation [...]
54 [...] as EIGE failed to prove that the email of 13 August 2012 had been received by the applicant, it is clear that EIGE should be considered as not having responded to the request of the applicant to obtain additional information about the rejection of its bid in a timely manner (T424/12 at paras 46 to 54, own translation from French, emphasis added).