In its Judgment in Euroscript - Polska v Parliament, T-48/12, EU:T:2014:680, the General Court addressed an interesting point on the application of the principle of equal treatment when the public buyer decides to reassess the offers received and, as a consequence of the reassessment, adjudicates the contract to a tenderer other than the one initially granted the highest score.
In the case at hand, a contract for translation services into Polish had been tendered by several EU Institutions under the lead of the Parliament. The first evaluation of the offers produced a shortlist were Euroscript Polska was ranked first and Agencja MAart second.
The Parliament proposed to award the contract to Euroscript, subject to its furnishing of sufficient proof of not being affected by any applicable exclusion ground. The decision was communicated to all tenderers and a 14-day period for the request of further particulars on this decision, including their own evaluation reports and the relative advantages of the selected offer, started.
Almost a month after the expiry of the 14-day deadline, and without having requested the suspension of the procedure, MAart requested that the Parliament reassessed its offer. The Parliament did so and granted sufficient additional points to MAart as to make its offer top the shortlist. The Parliament communicated this reassessment to all tenderers, including Euroscript, and proceeded to sign the contract with MAart.Euroscript's challenge was based on two grounds, and the GC decides only on the basis of the general principles of transparency and equal treatment. There are two aspects of the Judgment that deserve comments.
Firstly, the GC is willing to assess the case on its grounds despite the obvious procedural fault derived from the Parliament having accepted MAart's request for a reassessment outside the applicable 14-day period. The GC reaches that position on the basis of Art 103 of the applicable Financial Regulation, which would have allowed the Parliament to suspend the contract if there was evidence that the award procedure had been vitiated by substantial errors or irregularities or by fraud (para 58).
In my view, there was no evidence of a substantial error in the initial assessment (the reassessment merely granted MAart 3.58/100 extra points, which does not seem substantial), and the generosity of the GC is troubling, given that it may result in a permanent reopening of the assessment phase of the tenders for contracts with the EU Institutions--which the GC expressly argues against in para 55, with reference to the CJEU Judgment in Strabag, C-314/09, EU:C:2010:567, para 37. Hence, a more detailed assessment of fumus boni iuris at this point would have been desirable and, arguably, should have killed the case.
Secondly, on top of finding an infringement of the principle of transparency derived from the lack of communication to tenderers that a second evaluation was being carried out (para 60), the GC considers that the principle of equal treatment was breached because the reassessment only covered MAart's offer, but not Euroscript's or any other tenderers' (para 61). Here, again, the GC seems to be too generous by hinting at the fact that a reassessment of all offers would have sufficed to uphold the principle of equal treatment.
In my view, if the reassessment was due to a sense that there may have been 'substantial errors or irregularities', a mere reevaluation would not have sufficed and the Parliament would have needed to carry out a more detailed investigation and to offer all tenderers (and particularly Euroscript) the possibility to present their views on MAart's allegations. Conversely, if the reassessment was merely due to the fact that MAart had complained (despite being time-barred), the fact that all offers would have been reevaluated should have made no difference whatsoever and the procedural irregularity should have tainted the whole of the second award.
Generally, I think that reliance on the principle of equal treatment is excessive and that its use as a panacea in procurement review creates significant shortcomings in the case law. Hence, where there are good technical reasons to quash an award, I would like to see the courts refraining from ellaboration on equality terms, so that such a 'tool' can be used where discrimination is at the core of improper procurement decisions. Otherwise, we will keep on cracking nuts with a sledgehammer, which may end up breaking it...