How much must an EU contracting authority tell you?

The letter informing a tenderer that its offer has not been retained is usually short. What follows it decides whether the tenderer can judge, within the two months allowed for an action, whether the evaluation was lawful. Three judgments from the Evropaïki Dynamiki litigation against EU institutions and agencies, in which JuriSpectrum's founding partner acted for the applicant, mark out how much an EU contracting authority must explain, and where its obligation stops.

A duty in two stages

Under the Financial Regulation applicable to the EU budget (Article 100(2) of Regulation 1605/2002 at the time of these cases, with Article 149 of its implementing rules; today Article 170(3) of Regulation 2018/1046), the duty to state reasons in procurement has two stages. First, the contracting authority must notify every tenderer whose offer is rejected of the grounds for that rejection. Second, any tenderer whose tender was admissible and who asks in writing must be told, within fifteen calendar days, the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Certain details may be withheld where disclosure would harm the legitimate business interests of an undertaking or distort fair competition, but that exception protects specific information; it does not suspend the duty.

The purpose is the one Article 296 TFEU serves generally: the reasons must disclose clearly and unequivocally the reasoning of the author of the decision, so that the tenderer can defend its rights and the Court can exercise its review. Whether reasons are sufficient is judged in the light of the context and of the addressee's interest in receiving explanations.

T-70/05: EMSA and the bare result

In Case T-70/05 (judgment of 2 March 2010) the applicant challenged two procedures run by the European Maritime Safety Agency for the SafeSeaNet system. The judgment is remembered first for confirming that procurement decisions of EU agencies are open to review before the General Court, a question that was then unsettled. On the merits, the Court annulled the award in one of the two procedures because the agency's replies did not disclose the characteristics and relative advantages of the successful tender in a way that allowed the applicant to understand how the two offers compared; the challenge to the other procedure failed and the costs were shared. The appeal (Case C-252/10 P) was dismissed on 21 July 2011.

T-300/07: the 'Your Europe' portal and comments too thin to check

Case T-300/07 (judgment of 9 September 2010) concerned Lot 2 of call for tenders ENTR/05/78 for the Commission's 'Your Europe' portal, covering infrastructure management. The Commission had communicated scores and extracts of the evaluation committee's assessment, but the Court held that the material did not enable the applicant to understand the reasons for the marks awarded to its tender, or the relative advantages of the winning tender, on the criteria on which it had lost. The Court also recalled that explanations first offered in the defence cannot cure the defect. The decision of 13 July 2007 was annulled. The claim for damages was dismissed, and each party bore half of the costs. An annulment for insufficient reasons rarely supports a damages claim.

C-629/11 P: the Court of Justice draws the ceiling

In Case T-298/09 (judgment of 20 September 2011) the General Court had dismissed a challenge to a multiple award by the Commission for external services for its educational programmes. The applicant had received the scores per award criterion for its own tender and for the successful tenders, the evaluation committee's comments and the names of the successful tenderers, and the Court considered that sufficient. On appeal, in Case C-629/11 P (2012), the Court of Justice upheld that assessment. The contracting authority cannot be required to provide, beyond the grounds for rejection, a detailed summary of how each element of the tender was taken into account, nor, when it communicates the characteristics and relative advantages of the successful tender, a line-by-line comparative analysis of the two tenders. Reasons that let the tenderer see why it scored lower on each criterion satisfy the duty.

Where the line is

• Sufficient: the scores of your tender and of the successful tender for each award criterion; the evaluation committee's comments on your tender that explain those scores; the name of the successful tenderer; a description of the winning tender's characteristics and relative advantages specific enough to be checked against the criteria.
• Insufficient: total scores alone; formulaic comments that cannot be related to the criteria; a refusal to describe the winning tender on a blanket appeal to confidentiality; reasons that appear for the first time in the defence.
• Not owed: the complete evaluation report; the individual evaluators' sub-scores; the competing tenders themselves; a reply to every argument in your request.

Practical steps

Send the written request on the day the rejection arrives, cite the provision, and ask separately for the characteristics and relative advantages of the winning tender and for the comments on your own. The fifteen-day period binds the authority; it does not extend the two months for lodging an action, which run from notification of the rejection. Then read the comments against the published award criteria: the strongest challenges are built not on the brevity of the letter but on what it reveals about the evaluation.

The duty is to explain the result, not to re-run the evaluation on paper. A tenderer that receives scores, comments and the winner's relative advantages has received what the law requires, and must find its case inside them.

This article is provided for general information only and does not constitute legal advice. It reflects the law and the authors' views at the date of publication. For advice on a specific situation, please contact the firm.