15.3.2021

EN

Official Journal of the European Union

C 88/42

(Case T-54/21)

(2021/C 88/56)

Language of the case: German

Parties

Applicant: OHB System AG (Bremen, Germany) (represented by: W. Würfel, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the defendant’s decision not to award the applicant the contract put out for tender in procurement procedure 2018/S 091-206089 and the decision awarding the contract put out for tender in procurement procedure 2018/S 091-206089 to competitors;

—order the defendant to produce the tendering documentation and allow the applicant full access to the documents;

—order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1.First plea in law: mandatory exclusion of a competitor.

—The defendant should have excluded the competitor to which the contract was awarded from the procurement procedure. A senior employee of the applicant moved into a senior position at the competitor during the procurement procedure. He had knowledge of the content and bases of the applicant’s tender and was nevertheless involved in the competitor’s tender.

—There are therefore grounds for exclusion based on an anti-competitive agreement and an attempt to obtain confidential information (Article 136(1)(c)(ii) and (v) and Article 136(2) and (4) of the Financial Regulation). The defendant unlawfully failed to explain these grounds for exclusion and exclude the competitor.

—There is also an infringement of the procurement law principle of equal treatment, specifically the principle of the secrecy of competition. In accordance with the case-law of the Court of Justice, tenders that have not been submitted autonomously and independently of other tenders cannot be taken into account.

2.Second plea in law: abnormally low tender.

—The defendant failed to comply with the provisions regarding abnormally low tenders. It should have examined the competitor’s bid and, if there was no satisfactory explanation for the low tender, should have excluded it. The competitor’s offer price was considerably lower than that of the applicant and the other tenderers.

3.Third plea in law: error of assessment in the tender evaluation.

—The tender evaluation infringes the procurement law principles of transparency, proportionality, equal treatment and non-discrimination (Article 160(1) of the Financial Regulation). The evaluation is not legally tenable even when account is taken of a contracting authority’s margin of discretion. It is based on a number of incorrect factual assumptions and unreasonable and arbitrary considerations regarding alleged ‘weak points’ in the applicant’s tender.

4.Fourth plea in law: the defendant’s decision was not autonomous.

—The defendant failed to comply with its obligation to arrive at an autonomous decision on the tenders submitted. It is not permissible merely to reconfirm the evaluation outcome in the preparatory TEB Evaluation Report drawn up by the ESA. This is particularly so in the event of doubts as to the lawfulness of the evaluation and in the case of procurement decisions which are associated with such high costs.