European Dynamics have continued to keep the European Courts busy. In a recent skirmish (Case T-447/10 European Dynamics v Court of Justice of the European Union, judgment of 17 October 2012), the General Court had to consider the often debated point of whether it was lawful to evaluate the CVs of the proposed team at award stage. Although the case was brought under the Financial Regulations which govern public contracts financed from the EU budget, these rules are very similar to those under the Public Procurement Directives and so it still provides a useful precedent.
The case concerned a procurement by the Court of Justice of the European Union (CJEU) for maintenance, support and development of IT applications. European Dynamics was unsuccessful in its bid for 2 lots and brought an action for annulment of the decision to reject its tenders. One ground for challenge was that the CJEU had confused the selection and award criteria and had not restricted the use of team CVs to the selection stage.
At the selection stage, the CJEU had required submission of 34 CVs relating to the proposed team. These were assessed to determine whether the tenderer could provide the number of personnel specified and that each person met the minimum requirements for technical expertise.
At the award stage, the CJEU again assessed CVs, but this time in the context of the 'skill, experience, organisation and training of the proposed team.'
The General Court noted the distinction between selection and award criteria recounting that, at the award stage, criteria such as the tenderer's experience or its capacity to make a team available should not be used (since these relate to the tenderer's capability to perform the contract and not to establishing the most economically advantageous tender).
However, the Court went on to say that a criterion which assessed the proposed team?s technical skills and professional experience may, in certain situations, constitute a valid award criterion where the services are of a highly technical nature and the precise subject matter of the services must be determined progressively as the contract proceeds. In those circumstances, the technical skills and professional experience may have an impact on the quality of services and so determine the technical value of a bidder?s tender and consequently its economic value.
In the present case, the Court found that the CJEU had not confused the selection and award stage. Although CVs had been considered at both stages, different issues had been assessed. The examination at selection stage was limited to whether the tenderer had sufficient personnel who met the minimum technical requirements (i.e. the tenderer's technical capability). In contrast, the examination at award stage related to the technical value of the proposed team.
The Court also found that the CJEU was entitled to examine team CVs at award stage as this case was one of those situations where, as previously recounted, the technical skills and professional experience of the team was liable to impact on the quality and effectiveness of the services performed and as such had an economic value.
This case is a victory for common sense and represents an important watershed as the European Courts and the Commission have previously taken a very strict line against using experience (in any context - CVs or otherwise) as an award criterion. Whether the same decision would have been reached had the defendant been a non-EU institution is another question! Or, perhaps the Court's relaxation in approach was simply in acknowledgment of the proposals in the latest draft of the new Procurement Directive. The current draft specifically allows a proposed team's experience to be considered at award stage provided this impacts on the quality of contract performance.
BUT, A WORD OF CAUTION, although the case provides a useful precedent, great care should still be taken if team CVs are to be considered at award stage. In particular you should ensure that:
- any issues considered at selection stage are not re-visited;
- the facts and circumstances in your case are analogous to those which applied here; and
- those issues considered at award stage will genuinely have an impact on the quality and effectiveness of the performance of the contract and do not relate to a tenderer's capability to perform the contract.