By: Paul Emanuelli

This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.

In its July 2015 decision in European Dynamics Luxembourg SA v. European Commission, the European Court of Justice rejected an annulment application after finding that the purchasing institution provided sufficient debriefing information to the losing bidder. The dispute dealt with a tendering process for IT support services that contemplated multiple awards by category. The losing bidder claimed that it was provided inadequate information in a debriefing and sought to have the resulting contract award struck down. The Court disagreed, finding that the Publications Office of the European Union (PO) met its duty to provide reasons for the award since it provided the losing bidder with enough information for the bidder to understand why it did not win any contract awards in the multi-award process:

In those circumstances, the PO, by providing the applicants, for each of the relevant lots, with the comments relating to the technical evaluation, in respect of each award criterion, for the bids placed higher than theirs as well as the price proposed in each of those bids and the details of the price-quality ratio calculations, adequately set out the relative advantages of the bids of the other successful tenderers, including where those bids contained a price higher than the applicants’ bids for the lot concerned.

The Court also stated that the debriefing duty did not require the purchasing authority to provide a detailed comparative analysis of the winning bid and the unsuccessful bid:

Contrary to what the applicants seem to think, in the context of the notification of the characteristics and relative merits of the successful tender for each relevant lot, the contracting authority cannot be required to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tenderer (order of 13 October 2011 in Evropaïki Dynamiki v Commission, C-560/10 P, EU:C:2011:657, paragraph 17, and judgment in Evropaïki Dynamiki v EFSA, cited in paragraph 38 above, EU:T:2012:671, paragraph 51), which is also true, as in the present case, for a tenderer whose bids, such as those of the applicants, were ranked lower than the bids of the other successful tenderers.

In coming to its conclusion, the Court noted that the transparency duties owed to all bidders must be balanced against the confidentiality duties owed to those bidders to protect sensitive business information. In this case the proper balance was struck, and the losing bidder was provided with enough information to understand why it was not selected for a contract award.