In its Judgment of 4 February 2016, PRIMA v Commission, T-722/14, EU:T:2016:61 (not available in English), the General Court (GC) was required to address a tricky (not to say risible) argument based on the language versions of the different rules applicable to procurement procedures carried out by the EU Institutions and, in particular, linguistic divergences in some versions of the Financial Regulation and its Implementing Regulation.
In short, a Bulgarian disappointed tenderer complained that, despite having been debriefed by the European Commission as contracting authority on the reasons for the award of the contract to a different tenderer, it had not received an explicit detailed account of the 'relative advantages' of the chosen tender. The argument ultimately rested on the fact that
in Bulgarian, which is the language of the proceedings, the term "сравнителните предимства" ("sravnitelnite predimstva", that is to say "comparative advantages") is used in the Financial Regulation, while the term "относителните предимства" ("otnocitelnite predimstva", that is to say "relative advantages") is used in the Implementing Regulation; while in other languages, the terms used are "relative advantages", as in French or English, or the term "advantages", as in German or Italian. ... in several other languages, depending on whether it is contained in the Financial Regulation or the Implementing Regulation, the reference is to either the term "advantages" or the terms "relative advantages" (T-722/14, para 26, own translation from French).
The issue, in the end, is whether having been given reasons of the advantages of the tender chosen for the award of the contract suffices to meet the requirements to indicate relative advantages or comparative advantages in the debriefing documentation (I am not kidding...). The GC's analysisis as follows:
31 For the purposes of this interpretation, it is necessary to consider the various language versions of Article 113, paragraph 2, first paragraph, of the Financial Regulation and Article 161, paragraph 3, third paragraph, of the Implementing Regulation. These show some formal heterogeneity ...: in French, the terms "relative advantages" ["avantages relatifs"] are in both provisions. The English language version uses the same adjective in the Financial Regulation (relative advantages) and the Implementing Regulation (relative merits). In many other languages, the adjective "relative" is used in only one of those acts: in Spanish, in the Implementing Regulation (ventajas relativas), in Dutch, in the Financial Regulation (relatieve voordelen) and in Swedish, in the Implementing Regulation (relativa fördelar[na]). Several language versions only mention the term "advantages": it is, in particular, the German version (Vorteile), Spanish - for the Financial Regulation - (ventajas), Italian (vantaggi), and the Netherlands - for the Implementing Regulation - (voordelen). It should be added that the Swedish version of the Financial Regulation uses the relative proposition "fördelar som kännetecknar" (advantages that characterize). As for the Bulgarian versions of these acts, they use two different adjectives that have been mentioned in paragraph 26 above.
33 ... it is necessary to engage in both a literal and teleological interpretation of the term "advantages" as used, depending on the several cases, alone, or with the adjectives "relative" or "comparative".
34 From a literal point of view, it is essential to emphasize that the noun "advantage" in fact, is sufficient in itself. There can be no advantage other than within the framework of or, at least, in the context of a comparison. The expression "comparative advantages", used in the Bulgarian version of the Financial Regulation is redundant, and the language versions that only utilise the word "advantage" seem therefore legally more rigorous. The notion of relative advantages could, in turn, be of some use if the adjective "relative" could be opposed to the adjective "absolute". Nevertheless, it is clear that there is no "absolute advantage" in connection with the award of a public contract to the best bidder, which necessarily implies, firstly, the use of a range of criteria and, secondly, the lack of a systematic correspondence between the offer of the lowest price and contract award. Therefore it is necessary to interpret the adjective "relative" in its meaning signifying that "which exists only in relation to something else" or "which is not independent". This leads to the conclusion that, ultimately, there is no semantic divergence between the language versions set out in paragraph 31 above, so that the objective of a uniform interpretation of Union acts with different language versions is achieved in this case (see, to that effect, Judgments of 29 April 2010, M e.a., C-340/08, ECR, EU:C:2010:232, paragraph 44, and 26 April 2012, Able UK, C- 225/11, ECR, EU:C:2012:252, paragraph 13 and the case law cited therein).
35 The contracting authority is only required to inform the unsuccessful tenderer having made a request in writing for additional information of which advantages the offer of the successful tenderer had in relation to his (T-722/14, paras 31-35, own translation from French).
The GC could have dispensed with all this linguistic analysis, particularly because, after engaging with the teleological analysis (para 36), it concludes that 'given the constraints, primarily of time, inherent in public procurement procedures, it is sufficient for the contracting authority to forward to the unsuccessful tenderer, in addition to the name of the awardee, the respective scores of their offers under each of the award criteria and the comments underpinning those ratings, so as to allow said tenderer to understand what were the strengths and weaknesses of its offer and how the awardee's offer supplanted (sic?) his' (para 37, own translation from French).
In my view, all of this is an unfortunate exercise in futility, because the GC insists in a line of case law that imposes excessive transparency in public procurement debriefing processes, allows disappointed tenderers excessive detail of the winning bid and, in the long run, not only creates risks for the competitive tension for future contracts, but also runs important risks of technical levelling and undue constraint on bidders' choices [see A Sanchez-Graells, 'The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives' (November 2013)]. Everything is relative...