Offre anormalement basse : une offre « considérablement » inférieure au budget prévisionnel peut être considérée comme suspecte

Abnormally low offer: an offer "considerably" lower than the estimated budget can be considered as suspect

by Sébastien Palmier on 19 November 2017 | Category: Public markets
Offre anormalement basse : une offre « considérablement » inférieure au budget prévisionnel peut être considérée comme suspecte Offre anormalement basse : une offre « considérablement » inférieure au budget prévisionnel peut être considérée comme suspecte

CJEU 19 October 2017, Agriconsulting Europe SA, Aff.C-198/16

In the absence of a definition of the concept of 'abnormally low tender' or rules allowing the identification of such an offer, it is up to the contracting authority to determine the method used to identify abnormally low tenders (see by analogy, CJEU 18 December 2014, Data Medical Service, C-568/13, paragraph 49), provided that this method is objective and non-discriminatory (CJEU 27 November 2001, Lombardini and Mantovani, C-285/99 and C- 286/99, paragraphs 68 and 69).

This case which concerns a call for tenders launched by the European Commission makes it possible precisely to give some interesting details on the parameters allowing to detect a potentially abnormally low offer and to justify the rejection of such an offer.

Rule No. 1: The device applicable to abnormally low tenders

If, for a given contract, tenders appear abnormally low, the contracting authority, before rejecting these tenders for this reason alone, must request, in writing, the details it deems appropriate on the composition of the tender and verify the contradictory way this composition taking into account the justifications provided.

The system applicable to abnormally low tenders entails the obligation for the contracting authority, firstly, to identify the suspicious tenders, secondly, to allow the tenderers concerned to demonstrate their seriousness, by asking for the details which it deems appropriate, thirdly, to assess the relevance of the explanations provided by those concerned and, fourthly, to take a decision as to the admission or rejection of those offers (see, by analogy, CJEU 27 November 2001, Lombardini and Mantovani, C-285 / 99 and C-286/99, EU: C: 2001: 640, item 55).

However, it is only on the condition that the reliability of an offer is, a priori, doubtful, that the obligations arising from that provision are binding on the contracting authority, including, in this case, that of verifying detail the seriousness of the prices offered by reference economic parameters.

Rule n ° 2: An offer « greatly »Less than the estimated budget can be considered as suspect and rejected as such in the absence of valid supporting documents

In that case, the Court of Justice recalls that nothing prevents the contracting authority from comparing the tenders to the provisional budget of the specifications and from identifying one of them as being, at first sight, abnormally low from the amount of this offer is considerably lower than the said budget. Such a practice is considered objective and non-discriminatory except to prove that the estimated budget has been determined by the contracting authority unrealistically.

In the present case, the candidate was not able to justify the level of its tariffs lower than it would have been able to negotiate as well as the coherence of the economic parameters retained so that its offer was rejected as abnormally low.

 


JUDGMENT OF THE COURT (Fifth Chamber)

October 19, 2017 (*)

" Appeal - Non-contractual liability of the Union - Public service contract - Operational technical assistance for the establishment and management of a network mechanism for the implementation of the European Innovation Partnership "Productivity and sustainable development of agriculture "- Rejection of a tenderer's tender - Abnormally low tender - contradictory procedure"

In Case C-198/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 April 2016,

Agriconsulting Europe SA, established in Brussels (Belgium), represented bye R. Sciaudone, avvocato,

applicant,

the other party to the proceedings being:

European Commission, represented by Mmy L. Di Paolo and F. Moro, acting as Agents, with an address for service in Luxembourg,

defendant in the first instance,

THE COURT (Fifth Chamber),

composed of J. J. da Cruz Vilaça (Rapporteur), President of the Chamber, MM. E. Levits, A. Borg Barthet, Mme Mr Berger and Mr F. Biltgen, Judges,

 

Stop

 

1 By its appeal, Agriconsulting Europe SA (hereinafter 'Agriconsulting') seeks the annulment of the judgment of the General Court of the European Union of 28 January 2016, Agriconsulting Europe v Commission (T-570/13), hereinafter the 'judgment under appeal', EU: T: 2016: 40), by which the General Court dismissed its action for the European Union to pay damages for the loss it suffered as a result of irregularities allegedly committed by the European Commission in the framework of the call for tenders "Establishment of a network mechanism for the implementation of the European Innovation Partnership" Productivity and Sustainable Development of Agriculture "" (AGRI -2012-PEI-01).

 The legal framework

2 Under the heading 'Abnormally low tenders', Article 139 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 laying down Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p.1), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13) (hereinafter 'Regulation No 2342/2002'), provides in paragraph 1:

" If, for a given contract, tenders appear abnormally low, the contracting authority, before rejecting those tenders for that reason alone, shall, in writing, request the details it deems appropriate on the composition of the tender and must check contradictory this composition taking into account the justifications provided. Such details may relate in particular to compliance with the provisions concerning protection and working conditions in force at the place where the service is to be performed.

[...] »

3 Article 146 of Regulation No 2342/2002, entitled 'Evaluation Committee for Tenders and Applications for Participation', provides in paragraph 4:

" In the case of abnormally low tenders referred to in Article [139], the Evaluation Committee shall request the necessary details on the composition of the tender. "

 The antecedents of the dispute

4 The facts giving rise to the dispute are set out in paragraphs 1 to 22 of the judgment under appeal as follows:

" 1. By a public procurement notice published in addition to the Official Journal of the European Union of 7 August 2012 (OG 2012 / S 61-150-249926), the European Commission has launched the call for tender with the reference AGRI-2012-PEI-01, aimed at establishing a network mechanism for the implementation of the European Innovation Partnership "Productivity and sustainable development of agriculture" (hereinafter the "call for tenders").

  1. In accordance with point 1 of the contract specifications (hereinafter 'the tender specifications'), the contractor was to contribute to the creation and management of the partnership network, composed of and open to actors involved in innovation and innovative approaches in the agriculture sector, such as farmers, researchers, consultants, businesses, non-governmental organizations, consumers and public sector bodies. The successful tenderer was responsible for establishing and ensuring the operation of the network mechanism, composed of the staff assigned by the successful tenderer to the performance of the tasks indicated in the contract notice and, d the other, the physical location where the staff would work and provide their services (hereinafter the "info-point").
  2. The tasks of the successful tenderer were defined in point 2 of the tender specifications. They were divided into nine main missions, namely, first, the management of mission staff and the management of the info point, second, the running of the partnership network, third, the networking activity and the development of the network. fourthly, the updating and maintenance of a complete data bank, fifth, the maintenance of a list of external experts, and sixth, the implementation of coordination and exchange activities. information, seventhly, the identification of research needs among actors in the field, eighth, the development of the annual work program and, ninth, the archiving, the management of the inventory and the safeguarding of documents and information. The terms of reference indicated the minimum number of staff required to carry out the main tasks, providing for this purpose that the staff assigned to the missions should consist of at least ten "full-time equivalents", of whom at least six permanent.
  3. In addition, the terms of reference provided for 27 additional missions, the execution of which was to be carried out at the annual request of the Commission, to the extent of three additional missions at least up to a maximum of ten missions per year, it being understood that, in this respect, which concerned the additional missions n ° 24, n ° 26 and n ° 27, the latter would be at least requested the first year. The additional missions included the organization of think tanks, ie groups of experts who study and discuss issues specifically related to the European Innovation Plan (additional missions).bone1-6), the organization of additional workshops (additional missionsbone 7-9), the organization of "field days" (additional missionsbone 10-13), the organization of additional seminars (additional missionsbone 14-17), evaluation of the work of the operational groups (additional missionsbone 18 to 20), the organization of conferences (additional mission No. 21), the organization of travel and accommodation for participants in think tanks, workshops and seminars (additional mission No. 22), missions in the Member States (additional mission No 23), the creation of a list of experts (additional mission No 24), the closure of the info-point (additional mission No 25), the creation of the info-point ( additional mission No. 26) and the identification of all relevant projects for the purpose of establishing a data bank (additional mission No. 27).
  4. In accordance with the specifications, the successful tenderer also had to have sufficient staff to ensure that, in addition to the main tasks, the staff assigned to the missions could perform the tasks provided for under additional tasks Nos 24 and 27, expected to be completed during the first year of the contract.
  5. Under point 6 of the tender specifications, the contract was concluded for a period of ten months, renewable for a maximum of twelve months. It provided for a maximum total budget of € 2,500,000 per year for the joint execution of the main missions and additional missions, the maximum budget per year being € 1,400,000 for the main missions and € 1,500,000 for the missions. additional.
  6. According to point 7.5 of the tender specifications, the tender procedure consisted, first, of the tender review phase on the basis of the exclusion criteria, followed by the examination of tenders on the basis of the selection criteria. secondly, the bid evaluation phase on the basis of the award criteria (qualitative assessment and price evaluation) and, thirdly, the award phase of the contract on the basis of the criterion of economically more advantageous. The exclusion, selection and award criteria applied by the Commission were mentioned in point 9 of the tender specifications.
  7. The Commission received five tenders, including the applicant's. All tenderers have passed the first phase of the procurement procedure, consisting of the examination of their tenders on the basis of the exclusion and selection criteria, and have reached the second stage of the procedure, consisting of the evaluation of offers on the basis of the following four award criteria:

- Award criterion 1: approach to the link between science and practice;

- Award criterion 2: approach concerning the execution of the main and additional missions;

- award criterion 3: practical organization of tasks;

- Award criterion 4: Proposals for the creation of the info point based in Brussels (Belgium).

  1. In the second phase of the procedure, only two tenderers, namely the applicant and Vlaamse Landmaatschappij ('VLM'), obtained the minimum score required by the tender specifications for the award criteria. . Those two tenderers therefore reached the price evaluation phase, which amounted to EUR 1 320 112.63 for the applicant and EUR 2 316 124.83 for VLM.
  2. It appears from the minutes of the meeting of the evaluation committee of 20 November 2012 that the applicant was ranked first and that, having doubts about the abnormally low level of its tender, the evaluation committee concluded that information should be requested from him concerning the prices of the additional missions.
  3. By letter of 22 November 2012, the Commission informed the applicant that the evaluation committee had considered the prices quoted for the additional tasks to be abnormally low. It asked the applicant for a detailed explanation of the calculation of the prices proposed for the additional tasks.bone1 to 21 and 25, indicating that his offer could be rejected in the case of unconvincing explanations.
  4. By letter of 29 November 2012, the applicant replied to the Commission's request for information, providing it with general explanations and a list of the costs involved in formulating its price proposals for the additional tasks.
  5. The final minutes of the evaluation of the applicant's tender of 19 December 2012 show that the evaluation committee examined the latter's explanations and, in particular, noted the existence of cross-employment of staff. between the main missions and the additional missions, which do not comply with the requirements of the specifications. It therefore modified the score awarded on the applicant's tender for award criterion 3, which was reduced from 11.8 points to 7 points, the minimum score required being 7.5 points out of 15. The evaluation committee therefore concluded its assessment, on the one hand, by confirming its view that the applicant's tender was abnormally low and, on the other, by finding that, on the basis of the new information submitted by the latter, its bid no longer met the minimum score required by the tender specifications under award criterion 3. Therefore, the Committee recommended awarding the contract to VLM.
  6. By letter of 25 March 2013, the Commission informed the applicant that its tender had not been accepted on the grounds that it had not reached the minimum required for award criterion 3 and had been considered to be abnormally low as regards the prices proposed to perform certain additional tasks. On the same day, the Commission decided to award the tender to VLM.
  7. By letter of 26 March 2013, the applicant requested the name of the successful tenderer and the characteristics and advantages of its tender. The Commission sent him this information by letter of 27 March 2013.
  8. By letter of 29 March 2013, the applicant asked the Commission for further information concerning the evaluation of its tender. The Commission replied by letter of 10 April 2013.
  9. By letter of 12 April 2013, the applicant criticized the contracting authority for not providing the necessary clarifications concerning the evaluation of the first and second criteria, the modification of its technical assessment after the opening of the financial offer, the incorrect assessment of the involvement of the team leader and his deputy in the additional missions and the erroneous nature of the conclusions concerning the VLM offer.
  10. By email sent to the Commission on the same day, the applicant asked the Commission for access to the minutes of the evaluation committee and to the tenderer's tender, on the basis of Article 6 of the Regulation ( EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p.
  11. By a first letter of 29 April 2013, the Commission informed the applicant that the minutes of the evaluation committee would be sent to it promptly. By a second letter of the same date, the Commission replied to the applicant's request for access by providing it with a partial copy of the minutes of the evaluation of 20 November 2012, of the final evaluation report of its tender. 19 December 2012 and the overall assessment report of 6 February 2013. On the other hand, the Commission refused to provide the successful tenderer with the protection of the commercial interests of the undertaking concerned, based on the the first indent of Article 4 (2) of Regulation No 1049/2001.
  12. By email of 13 May 2013, the applicant submitted a confirmatory application for access, in accordance with Article 7 of Regulation No 1049/2001. By email of 14 May 2013, the Commission acknowledged receipt, announcing a reply within 15 working days.
  13. By another letter of 13 May 2013, the applicant disputed the Commission's position expressed in the second letter of 29 April 2013, which it considered insufficient. By letter of 31 May 2013, the Commission replied that the applicant had all the documentation concerning the market procedure on which the award decision was based, also referring to its letter of 29 April 2013.
  14. As regards the confirmatory application for access, by letter of 4 June 2013, the Commission informed the applicant that the deadline for reply was extended until 26 June 2013. On 26 June 2013, the Commission informed the applicant that was unable to reply to the confirmatory request for access within the aforementioned period. By e-mail of 4 July 2013, the applicant requested a reply to its confirmatory application for access, to which the Commission replied on 9 July 2013, informing the company that the reply would be sent to it within a few days. By letter of 17 July 2013, the Commission replied to the applicant's confirmatory application for access, confirming its previous decision to conceal certain information contained in the assessment reports and to refuse to grant access to the tenderer's tender, pursuant to Article 4 (1) (b) and the first indent of Article 4 (2) of Regulation No 1049/2001. "

 The proceedings before the General Court and the judgment under appeal

5 By application lodged at the Registry of the Court of First Instance on 25 October 2013, Agriconsulting brought an action seeking, first, that the Commission be ordered to communicate to it the tenderer's bid and, secondly, that it is ordered to pay damages under Articles 268 and 340 TFEU for damages allegedly caused by irregularities allegedly committed by the Commission in the framework of the call for tenders. By the judgment under appeal, the General Court dismissed the action in its entirety.

 The parties' submissions before the Court

6 Agriconsulting asks the Court:

- set aside the judgment under appeal and refer the case back to the Court of First Instance for a fresh decision in accordance with the Court's instructions;

- order the Commission to pay the costs of these proceedings and of the proceedings at first instance.

7 The Commission asks the Court:

- dismiss the appeal in its entirety;

- order the applicant to pay the costs.

 On the appeal

8 Agriconsulting presents four pleas in support of its appeal.

 On the first ground

Arguments of the parties

9 By its first plea, divided into two parts, Agriconsulting criticizes the Court of First Instance for finding, in paragraph 46 of the judgment under appeal, that there was no causal link between the unlawful acts allegedly committed in the context of the evaluation of its tender in relation to the award criteriabone 1 and 2 and the counts of prejudice which she availed in her appeal.

10 In the first part of this plea, Agriconsulting claims that the General Court distorted and distorted its arguments concerning the causal link. Contrary to what the Court of First Instance states in paragraphs 42 and 43 of the judgment under appeal, Agriconsulting, in its action, intended to separate the heads of the damage caused by the loss of opportunity and the costs of participation in the appeal. the question of the rejection of his offer. In that regard, it is clear from point 105 of the application and point 3 of the reply at first instance that the loss of opportunity and the costs of participation constituted, for the applicant, compensable heads of damage, irrespective of the question of the certainty of getting the market.

11 In the second part of its first ground of appeal, Agriconsulting argues that the General Court erred in law in finding, in paragraphs 43 to 45 of the judgment under appeal, that the unlawful acts invoked with regard to the award criteria notbone 1 and 2 could not give rise to compensation in so far as the rejection of the applicant's tender was the result of the assessment committee's assessments concerning award criterion 3 and the abnormally low rate of the tender. In so doing, the Court of First Instance restricted the action for damages to the mere assumption of unlawful acts having a definite influence on the award of a contract, whereas, in accordance with the case-law of that court, any irregularity in the appeal procedure offers which is such as to affect the possibilities of a tenderer to be awarded the contract in question would be entitled to compensation.

12 The Commission considers that the first plea is unfounded.

Findings of the Court

13 It must be borne in mind that the Court of First Instance first held, in paragraph 41 of the judgment under appeal, that Agriconsulting relied on irregularities relating to award criteriabone 1 and 2, of two counts of loss, namely loss of opportunity and costs of participation in the tendering procedure. Subsequently, at paragraph 42 of that judgment, he summarized his argument in the following terms: 'The applicant claims that the condition relating to the causal link is satisfied on the ground that her tender was classified first and that it should have obtained the award of the contract if the breaches noted had not occurred ". Finally, in paragraphs 43 to 46 of that judgment, the Court of First Instance replied to the argument thus summarized, holding, in essence, that the alleged unlawful acts did not have a direct causal link with the heads of damage alleged against it by the applicant.

14 With regard to the first limb of the first ground of appeal alleging that the Court of First Instance misrepresents Agriconsulting's arguments, it must first be pointed out that, at paragraph 102 of the application, Agriconsulting stated, as an explanation as to the causal link between the unlawful acts allegedly committed in connection with the tendering procedure, on the one hand, and the loss of chance it would have suffered, on the other hand, that the said loss of luck was "the direct consequence of the decision of the evaluation committee to lower the score on criterion 3 and to judge the tender as abnormally low".

15 In addition, the applicant had argued, in paragraphs 76 and 79 of its application, that the alleged loss of opportunity was materialized by the fact that its tender had been ranked first and that it had been unlawfully deprived of the award of the walk.

16 Accordingly, in paragraph 42 of the judgment under appeal, the Court of First Instance did not distort the applicant's arguments concerning the causal link between the unlawful acts relied on and the alleged loss of good fortune. On the contrary, he transcribed them as they appeared from the application.

17 That conclusion can not be called in question by paragraph 105 of the application, which can not properly be relied upon by Agriconsulting to establish the content of its argument concerning the alleged loss of opportunity. The explanations in that point clearly do not relate to that subject, as the applicant refers to the conditions laid down in the case-law of the Court of First Instance for reimbursement of the costs of participation in the invitation to tender. That point is found, moreover, in the section of the application entitled 'The causal link concerning the damage constituted by the costs of participation in the invitation to tender in question'.

18 Nor can the applicant rely on the explanations given in paragraph 3 of the reply at first instance. In fact, the applicant merely repeated what it had stated in paragraph 105 of its application as being the case-law of the Court of First Instance concerning the reimbursement of the costs of participation, accompanied by a statement that the alleged illegalities concerning the award criteriabone 1 and 2 came "in support" not only of this injury, but also of the loss of luck, without further explanation in this regard. That paragraph 3 therefore gives at most a precision as to the counts of damage alleged in connection with those unlawful acts.

19 Secondly, as regards Agriconsulting's arguments relating to the causal link between, on the one hand, the alleged unlawfulness and, on the other hand, the claim for damage caused by the costs of participation in the appeal. It should be noted that it is essentially in paragraphs 112 to 117 of the judgment under appeal that the Court of First Instance ruled on the reimbursement of those costs. The appellant does not claim, in its appeal, that the Court of First Instance's alleged distortion or distortion of its arguments in paragraph 42 of the contested judgment vitiated the analysis in those paragraphs. It therefore invokes a denaturation without explaining the consequences it draws from it. To that extent, the first limb of the first ground of appeal is inoperative.

20 It follows that the first part is, in part, clearly unfounded and, in part, ineffective.

21 As regards the second part of the first ground of appeal, as summarized in paragraph 11 of this judgment, it is sufficient to point out that, in paragraphs 43 to 45 of the judgment under appeal, the General Court did not rule, in an abstract and general manner , that illegalities affecting a tendering procedure, such as those alleged in this case by Agriconsulting in relation to the award criteriabone 1 and 2, are never likely to give a tenderer the right to compensation. In the present case, the Court of First Instance merely assessed concretely whether such a right to compensation existed, in the light of the arguments put forward by the applicant concerning the causal link and by assessing the facts of the case.

22 In sum, this branch questions the factual assessment made by the Court of First Instance as to the causal link, which falls outside the Court's jurisdiction in the context of the appeal, save in the case of denaturing. Since the applicant has no grounds for distorting its arguments for the reasons set out in paragraphs 14 to 19 of this judgment, that part is inadmissible.

23 In the light of the foregoing considerations, the first plea must be rejected in its entirety.

 The second plea

Arguments of the parties

24 In the first part of its second plea, Agriconsulting submits that, in paragraphs 56 to 62 of the judgment under appeal, the General Court distorted the evaluation of the evaluation committee and failed to state its obligation to state reasons.

25 As is apparent from the final evaluation report, the evaluation committee assessed the reliability of the applicant's tender with regard to the only price proposed for the additional tasks. The Court of First Instance acknowledged that fact in paragraphs 56 and 57 of the judgment under appeal, but later concluded that the Committee had taken account of that offer as a whole. The reasoning of the Court of First Instance is, in that regard, insufficient, inconsistent and unsupported, since it is not based on any particular evidence, in breach of the rule on probandi incumbit ei dicit.

26 In the second part of the second plea, Agriconsulting alleges, for reasons similar to those set out in the preceding paragraph, that the General Court substituted its own reasoning for that of the evaluation committee and misrepresented the pleadings.

27 The Commission submits, principally, that the second plea is inadmissible and, in the alternative, that it is unfounded.

Findings of the Court

28 By the two parts of its second plea, which must be tackled together, Agriconsulting criticizes the General Court for misrepresenting the 'assessment of the evaluation committee' and the 'pleadings', substituted its own assessment for that the evaluation committee and withheld insufficient, contradictory and unsubstantiated This argument must be understood as meaning that the appellant is essentially arguing, first, that the General Court misrepresented the Commission's letter of 25 March 2013 and the final evaluation report and, on the other hand, on the other hand, that he failed to fulfill his obligation to

29 In that regard, it should be noted that, in paragraph 55 of the judgment under appeal, the Court of First Instance referred to the Court's case-law according to which the abnormally low level of an offer must be assessed in relation to the composition of the the offer and in relation to the benefit in question (see, by analogy, judgment of 18 December 2014, Data Medical Service, C-568/13, EU: C: 2014: 2466, paragraph 50). Next, in paragraph 56 of the judgment under appeal, the General Court summarized the content of the Commission's letter of 25 March 2013, in which that institution informed the applicant that its tender was rejected, as well as the content of the report. final evaluation. In paragraph 57 of that judgment, it noted that the anomalies which led the evaluation committee to conclude that the applicant's tender was abnormally low concerned more particularly certain additional tasks. However, in paragraphs 58 to 61 of that judgment, the General Court held, in particular, that, in view of the economic and financial importance of the additional tasks in the amount of the contract in question, the anomalies found were likely to undermine the consistency of the the supply of Agriconsulting as a whole. It concluded, in paragraph 62 of the same judgment, that the evaluation committee had assessed the abnormally low supply of Agriconsulting in relation to the composition of the offer and the benefit in question, in taking into account the relevant elements with regard to that benefit.

30 That being so, as regards, in the first place, a possible distortion of the evidence by the Court, it must be borne in mind that such distortion must clearly appear in the documents in the file, without it being necessary to proceed. a new assessment of the facts and evidence (judgments of 20 November 2014, Intra-Presse / Golden Balls, C-581/13 P and C-582/13 P, unpublished, EU: C: 2014: 2387, paragraph 39 and the case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C-482/15 P, EU: C: 2016: 805, paragraph 36 and the case-law cited).

31 Nevertheless, in the present case, under the guise of a distortion of the evidence, Agriconsulting seeks, in reality, to obtain a new assessment of the facts, which falls outside the jurisdiction of the Court at the appeal stage (see, for example, analogy, judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C-254/09 P, EU: C: 2010: 488, paragraph 49, and of 19 March 2015, MEGA Brands International v OHIM, C-182 / 14 P, EU: C: 2015: 187, paragraph 47 and the case-law cited).

32 Agriconsulting does not allege that the reading of the Commission's letter of 25 March 2013 and the final evaluation report by the Court of First Instance is vitiated by any material inaccuracy. The applicant acknowledges, on the contrary, that the General Court correctly summarized the content of that decision in paragraph 56 of the judgment under appeal. It disputes rather the assessment made by the Court, in paragraphs 57 to 61 of that judgment, of the content of those documents in the light of the context in which they take place, including the economic and financial importance of the additional tasks in the market concerned, and the conclusion that it found that the anomalies identified were likely to affect the reliability of the Agriconsulting tender as a whole.

33 Consequently, the second ground of appeal is, to that extent, inadmissible.

34 As regards, second, Agriconsulting's allegations that the General Court failed to fulfill its obligation to state reasons, it must be observed that the reasoning of a judgment of the Court of First Instance is contradictory or insufficient, Admittedly, a question of law which may be relied on in an appeal (judgment of 16 July 2009 in Case C-385/07 P, EU: C: 2009: 456, paragraph 71, Der Grüne Punkt - Duales System Deutschland v Commission and the case-law cited).

35 However, by alleging that the reasoning of the judgment under appeal is contradictory, Agriconsulting seeks once again to obtain a new assessment of the facts of the case. The finding in paragraph 57 of the contested judgment that 'the anomalies identified ... relate more specifically to certain additional tasks' is not, in itself, incompatible with the conclusion in paragraph 62 of the judgment. of that judgment, according to which 'the evaluation committee made its assessment of the composition of the tender and the service in question'. In fact, the applicant disputes the factual findings in paragraphs 58 to 61 of that judgment, which led the Court of First Instance to that conclusion.

36 As regards the failure to state reasons relied on by the applicant, it is clear from the considerations set out in paragraphs 57 to 61 of the judgment under appeal, set out in paragraph 29 of this judgment, that the General Court gave a reasoned opinion as to the conclusion set out in 62 of the judgment under appeal, according to which the evaluation committee acted in accordance with the case-law resulting from the judgment of 18 December 2014, Data Medical Service (C-568/13, EU: C: 2014: 2466).

37 It follows that the appellant's second ground of appeal must be rejected in its entirety as being in part inadmissible and in part unfounded.

 The third ground

Arguments of the parties

38 By its third ground of appeal, Agriconsulting claims, in the first part, that the General Court, in paragraphs 64 to 69 of the judgment under appeal, distorted and distorted its application. Indeed, while it invoked the arbitrary, irrational, subjective and undefined nature of the prices and reference costs used by the evaluation committee to assess the abnormally low level of its bid (hereinafter 'the economic parameters reference "), the Court of First Instance did not rule on their merits. It merely held at paragraph 66 of the judgment under appeal that the applicant had not established the seriousness of its offer.

39 In that context, the applicant also complains that the Court of First Instance neglected the evidence which it produced in order to demonstrate that those economic parameters were not reliable. More specifically, the General Court did not take into account a simulation which shows that, by applying the same economic parameters to the main missions, the budget provided for in the terms of reference for those missions was insufficient.

40 Furthermore, Agriconsulting is of the opinion that the Court of First Instance could not oppose, as it did in paragraph 66 of the contested judgment, the fact that it did not communicate, in its initial tender, information of a similar nature. demonstrate the reductions that she had benefited from, since no rule in the tender procedure required her to do so. The Tribunal also could not blame him for failing to provide this information in his letter of 29 November 2012 in response to the Commission's request for information. That information was not part of the information requested by that institution in its letter of 22 November 2012. Lastly, the Court of First Instance could not complain that the applicant had not subsequently communicated the collaboration agreements with the experts, to the extent that the Commission did not authorize it to do so.

41 By the second part of its third ground of appeal, the appellant claims that the General Court, in paragraphs 73 to 76 of the judgment under appeal, erred in law in holding that the Commission did not infringe the adversarial principle by refusing to the applicant the right to provide this additional information.

42 In that regard, it follows from settled case-law that the contracting authority is required to ask the tenderer for details justifying the seriousness of his tender in the context of an adversarial procedure. In the present case, in so far as the request of the evaluation committee was made in the sense that it concerned not the validity of the prices proposed in the Agriconsulting tender but the method of calculation. of those prices, the applicant was required to supply information concerning the only numerical elements of that calculation. It should therefore have been able to provide additional information to remove any doubt as to the correctness of the figures in question. In that regard, the case-law does not limit the right of a tenderer to submit comments to a single communication. On the contrary, the adversarial principle implies, in this context, that it may provide, after the filing of first observations, additional, reasonable information.

43 Finally, in a third limb, Agriconsulting considers that the General Court made several errors in law in finding, in paragraphs 81 to 85 of the judgment under appeal, that there was no breach of the principle of equal treatment. First of all, the General Court wrongly held that the mere price of the Agriconsulting offer was sufficient to establish that the offer was abnormally low. Secondly, it failed to take into account the fact that, in the light of the reference economic parameters, VLM's offer also appeared abnormally low. Above all, the General Court should have held that Agriconsulting and VLM, in respect of their respective offers, were in fact in the same situation. In fact, on the one hand, those offers concerned the same market and, on the other hand, their reliability was disputed - as regards the first, by the contracting authority and, as regards the second, by Agriconsulting.

44 Moreover, the General Court failed to examine and adequately assess the evidence put forward by the applicant in support of its complaints. More specifically, considering, in paragraph 84 of the judgment under appeal, that the simulation produced by the latter, mentioned in paragraph 39 of this judgment, was irrelevant, the Court of First Instance ignored an element intended specifically to demonstrate that the tender VLM was also abnormally low and, therefore, that the latter was, in that regard, in a situation comparable to that of the applicant.

45 The Commission considers that the third ground of appeal is unfounded.

Findings of the Court

46 In order to examine the third plea, it is necessary to reverse the order of its various branches.

47 With regard, first, to the third limb of that ground of appeal, relating to an alleged infringement of the principle of equal treatment, it must be borne in mind that that principle requires tenderers to have equal opportunities in formulating terms of their offers and therefore implies that these offers are subject to the same conditions for all tenderers (order of 10 November 2016, Spinosa Costruzioni Generali and Melfi, C-162/16, unpublished, EU: C: 2016: 870, paragraph 23 as well as the case law cited).

48 In the present case, the Court of First Instance, in paragraphs 82 and 83 of the judgment under appeal, pointed out that VLM's tender, calculated on the basis of the formula provided for in the tender specifications, was slightly below the budget ceiling provided for. by those specifications for the execution of the contract and higher, by almost one million euros, than that of Agriconsulting. It concluded that VLM was not in the same situation as Agriconsulting and that, consequently, the Commission could, without infringing the principle of equal treatment, decide to check the abnormally low supply of the applicant without applying the same treatment to that of VLM.

49 It should be noted that the differentiated treatment of the offers by Agriconsulting and VLM is intrinsically linked to the question of the identification of abnormally low tenders and the procedure reserved for them. To assess the merits of the reasons set out in paragraphs 82 and 83 of the judgment under appeal therefore means that the obligation on the contracting authority in this respect must be reconsidered.

50 In that regard, Article 139 (1) of Regulation No 2342/2002 provides that if, for a given contract, tenders appear abnormally low, the contracting authority must, before rejecting those tenders for that reason alone, request, in writing, the details it deems appropriate on the composition of the tender and checks in a contradictory way this composition taking into account the justifications provided.

51 Thus, that provision entails the obligation on the contracting authority, firstly, to identify the suspect tenders, secondly, to enable the tenderers concerned to demonstrate their seriousness, by asking for the details which it considers appropriate, thirdly, to assess the relevance of the explanations provided by the parties concerned and, fourthly, to take a decision on the admission or rejection of those tenders (see, by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C-285/99 and C-286/99, EU: C: 2001: 640, item 55).

52 However, it is only on the condition that the reliability of an offer is, in principle, doubtful if the obligations arising from that provision are to be imposed on the contracting authority, including, in this case, that of verifying in detail the seriousness of the prices offered by reference economic parameters.

53 In the present case, in so far as the evaluation committee had identified the applicant's tender as being, on the face of it, abnormally low and considered that that of VLM did not, a priori, show any abnormality, it could, without infringing the principle of equal treatment between tenderers, initiate the adversarial procedure provided for in Article 139 (1) of Regulation No 2342/2002 in respect of the former and check in detail its prices at the economic reference parameters without applying the same treatment to VLM. The Court of First Instance therefore rightly held, in paragraphs 82 and 83 of the judgment under appeal, that those two undertakings, in respect of their respective tenders, were not in the same situation.

54 That conclusion is not called into question by Agriconsulting's argument that the price of an offer does not on its own consider that the offer is abnormally low.

55 In that regard, in the absence of a definition of the concept of 'abnormally low tender' or rules permitting the identification of such an offer in Article 139 (1) or Article 146 , paragraph 4 of Regulation No 2342/2002, it is up to the contracting authority to determine the method used to identify abnormally low tenders (see, by analogy, judgment of 18 December 2014, Data Medical Service, C-568/13, EU: C: 2014: 2466, paragraph 49 and the case-law cited), provided that this method is objective and non-discriminatory (see, by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C-285/99 and C-286 / 99, EU: C: 2001: 640, points 68 and 69).

56 In the present case, as the Court of First Instance pointed out in paragraphs 81 and 82 of the judgment under appeal, the evaluation committee found that Agriconsulting's tender was abnormally low by comparing the amount of that tender. ci to the maximum total budget provided for in the specifications, amounting to EUR 2 500 000. However, while VLM's offer was slightly below this budget, Agriconsulting's bid was less than one million euros.

57 Contrary to what the applicant maintains, according to the case-law referred to in paragraph 55 of this judgment, there is nothing to prevent the contracting authority from comparing the tenders to the estimated budget of the specifications and identifying one of them. as being, at first sight, abnormally low since the amount of this offer is considerably lower than the said budget. In particular, the applicant has not demonstrated how such a practice is not objective or discriminatory.

58 Lastly, as regards Agriconsulting's arguments that the Court of First Instance should have held that VLM was in fact in the same situation as itself, it must be observed that, on the one hand, VLM the fact that the applicant disputes the reliability of VLM's offer does not lead to the conclusion that the situations are comparable. In view of the considerations set out in paragraphs 52 and 53 of this judgment, it would have been necessary for Agriconsulting to establish the reasons why the contracting authority should have doubted, prima facie, the reliability of VLM's tender.

59 On the other hand, it must be observed that the General Court was entitled to consider, in paragraph 84 of the judgment under appeal, that the simulation produced by the applicant was irrelevant in that regard. Indeed, that simulation, consisting in verifying in detail the prices offered in the VLM tender by means of the reference economic parameters, is not such as to demonstrate the reasons why, upstream, the contracting authority should have doubted the seriousness of this offer, despite the fact that its amount was very close to the estimated budget of the specifications.

60 It follows that the third part of the third ground of appeal is unfounded.

61 As regards, secondly, the second limb of this plea, relating to an alleged infringement of the adversarial principle, it should be recalled that the General Court, having listed, in paragraph 71 of the judgment under appeal, the obligations arising from Article 139 (1) of Regulation No 2342/2002, the wording of which has been recalled in paragraph 50 of this judgment, held, in paragraphs 72 to 76 of the judgment under appeal, that the adversarial procedure provided for in that provision had, in this case, was respected and the applicant had the opportunity to justify its costs and tariffs which had been considered excessively low.

62 However, Agriconsulting argues, in essence, that the contracting authority satisfies the obligations arising from Article 139 (1) only where, beyond formal compliance with the stages of the adversarial procedure provided for in that provision, the tenderer in question has actually been able to justify its costs and tariffs. In the present case, that would imply that the applicant was authorized to provide additional information to that contained in its letter of reply of 29 November 2012, in so far as the wording of the Commission's letter of 22 November 2012 did not give it the information requested by that institution was not properly

63 In that regard, it is sufficient to point out that that argument is based on a factual premiss rejected by the Court of First Instance. Indeed, it assessed the content of the Commission's letter of 22 November 2012, in paragraph 77 of the judgment under appeal, in the sense that that institution had questioned the applicant not only on the method of calculating prices. contained in its offer, but on all the elements contributing to the formation of these prices.

64 In so far as the Court can not, in the context of an appeal, in the absence of distortion, revert to the facts as appraised by the Court of First Instance, the second limb of the third plea is inadmissible.

65 As regards, finally, the first limb of this plea, relating to an alleged distortion and distortion of the Agriconsulting's application by the Court of First Instance, it appears that the applicant had argued, in paragraph 68 of its application, that the The reference cost unit used for the calculation of the experts' costs was subjective and did not take into account the fact that it had been able to negotiate lower rates with the experts and its organizational and commercial capacities.

66 In that regard, the General Court noted, in paragraphs 66 and 67 of the judgment under appeal, that the applicant's claims that it could have negotiated, with the experts, lower fares than those envisaged in the economic parameters of reference were not substantiated.

67 Furthermore, the Court of First Instance held, at paragraph 68 of that judgment, that Agriconsulting had not corroborated, by means of quantified evidence, its argument that the cost unit used for the calculation of the experts' cost was a subjective parameter. In addition, he noted that the fact that Agriconsulting invokes tariff negotiations with experts of the same category as the experts from the main missions tends to confirm that these costs were lower than the standard, without, therefore, justifications have been provided.

68 It must therefore be held that the Court of First Instance did not disregard the applicant's argument and replied to it to the requisite legal standard. In that regard, it could be limited to finding that Agriconsulting had not justified the validity of its assertions as to the inadequacy of the reference economic parameters and the lower rates that it would have been able to negotiate. Nor does the applicant maintain that the General Court erred in law in relying on it the burden of such proof. It is therefore unfounded to maintain that it distorted or distorted his request.

69 As regards Agriconsulting's claim that the General Court ignored the simulation it had produced in order to demonstrate the arbitrary and unreliable nature of the reference economic parameters, it is sufficient to recall that the appeal is limited to questions of law . The Court of First Instance therefore has exclusive jurisdiction to establish and assess the relevant facts and to assess the proper value of the evidence submitted to it, subject to the case of the distortion of the said facts or evidence. (order of 11 November 2003, Martinez v Parliament, C-488/01 P, EU: C: 2003: 608, paragraph 53 and case-law cited).

70 The applicant has not adduced evidence of such a distortion. Moreover, it must be noted that the General Court did not disregard the simulation at issue, since that was mentioned in the judgment under appeal on several occasions, in particular in paragraph 84 thereof. The fact that the Court of First Instance did not refer to it in paragraphs 63 to 69 of that judgment shows, neither more nor less, that it did not find it to be probative in that context, since such an assessment is irrelevant, since any distortion is excluded, of his sole competence.

71 Finally, as regards the argument of Agriconsulting set out in paragraph 40 of this judgment, it must be pointed out that, in paragraphs 72 to 76 of the judgment under appeal, the General Court found that the applicant had been able to justify its costs and tariffs, it could, rightly, blame him for not having substantiated his assertions. Moreover, assuming that the applicant intends, by that argument, to call into question that finding of the General Court, that argument is inadmissible for the reasons set out in paragraph 64 of this judgment.

72 It follows that the first limb of the third ground of appeal is in part inadmissible and partially unfounded.

73 Consequently, the applicant's third plea must be rejected in its entirety.

74 In accordance with Article 139 (1) of Regulation No 2342/2002, the abnormally low rate of the Agriconsulting tender is a sufficient ground for justifying its rejection by law. It follows from all of the foregoing considerations that the applicant has not been able to demonstrate that the Court of First Instance erred in law in holding that there was, in the present case, no a sufficiently serious breach of EU law as regards the assessment of the abnormally low nature of its tender by the Commission.

75 Consequently, it is not necessary to assess whether the other ground for the rejection of Agriconsulting's tender, namely the mark awarded to it with regard to award criterion 3, is founded or not.

76 In addition, the Court of First Instance held, in paragraph 105 of the judgment under appeal, for reasons similar to those referred to in the preceding paragraph of the present judgment, that the existence of a causal link can not be established between a possible irregularity when the tender was assessed in the light of award criterion 3 and the loss of profit corresponding to the loss of the contract relied on by the applicant. Although the latter mentions, in point 65 of its appeal, the Court's arguments concerning the causal link, it does not seem to want to dispute them and, in any event, does not raise any complaint to that effect.

77 In view of the cumulative nature of the conditions to which the undertaking of extraterritorial liability of the Union, as envisaged in the second paragraph of Article 340 TFEU, is subject, the considerations set out in paragraphs 74 to 76 of this judgment suffice to dismiss Agriconsulting's appeal without it being necessary to rule on the fourth ground of appeal, relating to the Court's examination of the loss of profit it would have suffered as a result of the rejection of its tender ( see, by analogy, Holcim (Deutschland) v Commission, C-282/05 P, EU: C: 2007: 226, paragraph 57, and 14 October 2014, Giordano v Commission, C-611 / 12 P, EU: C: 2014: 2282, point 54).

 Costs

78 Under Article 184 (2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court of Justice is to make a decision as to costs.

79 Under Article 138 (1) of that regulation, which applies to appeal proceedings by virtue of Article 184 (1) of that regulation, the unsuccessful party is to be ordered to pay the costs if it is that Sens. Since the Commission has applied for costs and Agriconsulting has been unsuccessful in its appeal, it must be ordered to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1. The appeal is dismissed.

2. Agriconsulting Europe SA is ordered to pay the costs.

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