Case T-195/05
Deloitte Business Advisory NV
v
Commission of the European Communities
(Public service contracts – Call for tenders for programme evaluation activities and other activities in the public health sector – Rejection of a tender – Conflict of interest)
Summary of the Judgment
1.Budget of the European Communities – Financial Regulation – Provisions applicable to tendering procedures
(Council Regulation No 1605/2002, Art. 94)
2.Budget of the European Communities – Financial Regulation – Provisions applicable to tendering procedures
(Commission Regulation No 2342/2002, Art. 146(3), second subpara.)
1.Article94 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities applies – according to the provisions of that regulation – to all public contracts financed in whole or in part by the Community budget. Thus no distinction is made according to whether the procurement procedure in question relates to a framework contract or another type of contract.
However, that provision permits exclusion of a tenderer from a procurement procedure only if the situation of conflict of interest to which it refers is real and not hypothetical. That does not mean that a risk of conflict of interest is not sufficient to exclude a tender. In principle, it is only when the contract is performed that a conflict of interest can become real. Before conclusion of the contract, a conflict of interest can be only potential and Article94 of the Financial Regulation therefore implies an assessment in terms of risk. That risk must actually be found to exist, following a specific assessment of the tender and the tenderer’s situation, for that tenderer to be excluded from the procedure. The mere possibility of a conflict of interest cannot suffice for that purpose.
It follows that, in the procedure for the award of a framework contract, account must be taken of the fact that specific contracts, award of which will give rise to a check that there is no risk of conflict of interest, must come into being before the successful tenderer for the framework contract is entrusted with the performance of specific tasks. Thus, in such a case, the risk that a conflict of interest will in fact arise can be considered only where there are material circumstances placing the tenderer in a position where it is unable to avoid the risk of bias in the performance of the majority of the tasks under the framework contract.
(see paras 66-68)
2.The second subparagraph of Article146(3) of Regulation No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation gives the evaluation committee the option of requesting from tenderers additional information concerning the supporting documents submitted in relation to the exclusion and selection criteria. It follows that that provision cannot be interpreted as imposing a duty on the evaluation committee to request such information from tenderers.
(see para. 102)