A very expensive slip of the pen? GC takes hard line in assessment of debriefing letter and awards compensation for loss of opportunity (T-299/11)

In its Judgment of 7 October 2015 in European Dynamics Luxembourg and Others v OHIM, T-299/11, EU:T:2015:757, the General Court of the Court of Justice of the European Union (GC) has once again revised the conclusion of framework agreements that include a cascade mechanism for the allocation of call-off contracts within the framework (see previous case Evropaïki Dynamiki v EASA, T-297/09, EU:T:2015:184 and comments here).

On this occasion, the GC considered that OHIM infringed the applicable procurement rules and determined that European Dynamics is entitled to compensation for the loss of an opportunity to be awarded the framework contract as the contractor ranked first in the cascade. Looking at the reasoning of the GC can be of interest.

In the Judgment, the GC finds that OHIM incurred in several substantive and formal errors in the evaluation of tenders leading up to the eventually quashed award decision. In my view, some of the substantive claims result from the not very careful drafting of the debriefing letter sent by OHIM to European Dynamics, which is very unfortunate. The point that I consider more troublesome from a practical perspective is as follows.

In the tender documentation, and amongst (very!) many other technical issues, tenderers were informed that part of the evaluation would rely on their project management strategy. As the GC explains (T-299/11, para 6), this was formulated in award criterion 1, according to which
[Award] Criterion 1: based on its methodology and experience, the tenderer must present the tasks and activities he/she would perform in terms of project management. This includes in particular (but not exclusively):

a. Progress control [that is to say checking the progress of the work];
b. Issue management process;
c. Change management process;
d. Escalations;
e. Lessons learnt programme;
f. Communications plan;
g. Deliverable acceptance procedures
(maximum 40 points with a minimum threshold of 20 points);
European Dynamics did not receive the highest score under this criterion. When it requested further details of the evaluation under criterion 1 from OHIM, it received a letter whereby it was explained that "the offers with very good or excellent criterion 1 ... “Identified change management and communication as the two most essential tasks for the success of the project”" (T-299/11, paras 23 and 41).

On this particular point, and in view of this (possibly less than careful) drafting of the debriefing letter, European Dynamics complained that it was not clear "from the tender specifications that the two sub-criteria ‘change management’ and ‘communication’ were, in OHIM’s view, the ‘most essential’. Accordingly, the contracting authority introduced, a posteriori, a new criterion and gave a new weighting to those sub-criteria" (T-299/11, para 42, emphasis added).

The GC upheld this complaint of European Dynamics with the following reasoning:
48 ... the Court finds that the applicants rightly argue that the contracting authority indeed gave to the sub-criteria ‘change management’ and ‘communication’ a more significant weight than the other criteria set out in the first award criterion. The reasons unambiguously set out in OHIM’s letter ... according to which the bids from the other successful tenderers ‘identified change management and communication as the two most essential tasks for the success of the project’, cannot be understood otherwise. It demonstrates that the contracting authority endorsed the approach proposed by the other successful tenderers on the basis of a weighting of those sub-criteria which is not clear from the wording of the first award criterion ... the contracting authority cannot apply a weighting of sub-criteria which it has not previously brought to the tenderers’ attention (see, to that effect, judgment of 24 January 2008 in Lianakis and Others, C-532/06, ECR, EU:C:2008:40, paragraph 38).
49 In that regard, first, it should be noted that the ‘change management’ and ‘communications plan’ comprised only two sub-criteria among a set of seven sub-criteria which were listed at the same level and on a non-exclusive basis under the first award criterion, namely, progress control, issue management process, change management process, escalations, lessons learnt programme, communications plan and deliverable acceptance procedures, and in respect of which the contracting authority intended to award a maximum number of 40 points ... Nor is it apparent from the wording of that criterion or other relevant parts of the tender specifications that the contracting authority intended, where appropriate and for specific undisclosed reasons, to afford a different weight to those sub-criteria for the presentation of the project presented in Work Hypothesis No 1, or even to assign, when evaluating the bids submitted in the light of the first award criterion, higher or lower scores depending on whether those bids focused on either one or the other of those sub-criteria. That is particularly so, in respect of the sub-criteria ‘change management’ and ‘communications plan’, in respect of which it was not stated in the tender specifications that the contracting authority considered that they represented ‘the two most essential tasks for the success of the project’.
50 Second, in accordance with the general explanations, in the tender specifications, of the requirements which have to be fulfilled by the tenderers, those tenderers were invited to present ‘the tasks and activities to be executed to manage and successfully achieve the project presented in Work Hypothesis No 1’ which were set out in Annex 18 to the tender specifications and covered the establishment by OHIM of a ‘project to build an information system’. As a result, the description in the bids submitted of the tasks and the activities related to the various sub-criteria under the first award criterion referred necessarily to that project which was by definition the same for all tenderers.
51 In those circumstances, the phrase ‘identified change management and communication as the two most essential tasks for the success of the project’ can be understood only as comprising an absolute and general value judgment on the particular importance of the sub-criteria ‘change management’ and ‘communications plan’ (‘the most essential’) as part of the project envisaged by OHIM under Work Hypothesis No 1 (‘for the success of the project’), of which the bids of the other successful tenderers would have taken account, and, conversely, as a criticism of the first applicant’s bid for failing to have followed an approach similar to that proposed by those successful tenderers to that end.
52 In that regard, OHIM is not justified in claiming, in essence, that the reasoning referred to above should be understood as a value judgment on the sufficient quality of the bids of the other successful tenderers which was based on the identification of two specific sub-criteria, namely ‘change management’ and ‘communications’, since that judgment is not severable from a specifically abstract and preliminary upgrading of the sub-criteria as compared to the other five sub-criteria listed in the first award criterion. Moreover, if only for the reasons set out in paragraphs 48 to 51 above, it does not appear credible that the contracting authority failed to assign a specific number of points from the total of 40 points available to the various sub-criteria which were referred to therein ...
53 Thus, it must be concluded that the negative comparative judgment made by the contracting authority on the first applicant’s bid on that point has no support in the wording of the first award criterion. In particular, the weighting underlying that judgment did not appear to be sufficiently clear, precise and unequivocal from that criterion to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner. By applying, contrary to the requirements arising from the case-law ... a weighting of the various sub-criteria within that award criterion which was not provided for by the tender specifications or communicated in advance to the tenderers, OHIM therefore breached, to the detriment of the applicants, the principles of equal opportunities and transparency (T-299/11, paras 48-53, emphasis added).
Technically, the GC's argument is rather solid and, at least at a conceptual level, not much can be criticised. However, given its strong reliance on the specific wording of the letter and arguments concerning implicit underlying sub-criteria and their presumed weightings, it does not seem very persuasive because a more careful and nuanced drafting of the debriefing letter would have completely changed the assessment. 

Indeed, a worrying potential implication of the European Dynamics v OHIM Judgment is that it creates a very powerful incentive for contracting authorities to be disingenuous in their debriefing letters and, where several sub-criteria are listed in the tender documentation, to include references to all of them in the qualitative explanations of the superiority of the tenders chosen for award. 

Such 'holistic' approach to debriefing letter drafting would reduce the quality of the information disclosed--both for the tenderer (who is in any case probably not really seeking to understand the actual superiority of competing bids, but simply a way to litigate) and  also for the reviewing court (which will be receiving more general statements).

As an example, under the circumstances of the case, a debriefing letter with a statement such as ''the offers with very good or excellent criterion 1 ... [struck an appropriate balance between competing implementation needs and provided realistic strategies regarding] most essential tasks for the success of the project [including in particular (but not exclusively): progress control; issue management; change management; escalations; lessons learnt programme; communications plan; and deliverable acceptance procedures]”, would probably have sufficed to nullify European Dynamics' claim and, in my view, would not necessarily infringe the duty to provide reasons as it relates to qualitative technical assessments were technical discretion is rather wide (unless a disproportionately high burden of motivation was imposed, which cannot be completely discarded in view of previous decisions of the GC). In any case, this is just a rough and fast drafting and more considerate wording would probably strike a better balance between provision of reasons and avoidance of litigation.

However, such a debriefing letter would not be as good as the one provided by OHIM in the case at hand, where it naively (?) indicated the actual reasons it had considered to provide better quality management strategies, as it tried to explain to an unimpressed GC (para 52 above)--or, more simply, did not put a great deal of thought on the specific wording of the contentious paragraph of the debriefing letter, which it merely intended to provide qualitative feedback of a general nature. Thus, the European Dynamics v OHIM Judgment puts even more pressure on contracting authorities to be extremely careful in their debriefing (see here and here) and makes this task a nightmarish phase of the procurement process.

Given that such situations carry significant financial consequences (in this case, of an uncertain magnitude because the GC ordered OHIM and European Dynamics to agree between themselves the proper amount of compensation; see paras 149-157), this is an area of procurement practice where contracting authorities would be well advised to start investing more resources. 

At the same time, it is necessary to promote a change of mentality in courts and review bodies dealing with this type of cases, as decisions such as the GC Judgment in European Dynamics v OHIM clearly establish strong financial incentives to litigate and the position of the contracting authorities dealing with complex technical issues requiring qualitative/subjective assessments may be excessively weakened by taking such a hard line in the assessment of debriefing documentation.