27.8.2011

EN

Official Journal of the European Union

C 252/34

(Case T-288/11)

2011/C 252/79

Language of the case: French

Parties

Applicant: A+P Kieffer Omnitec Sàrl (Luxembourg, Luxembourg) (represented by: A. Delvaux and V. Bertrand, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—declare the action for annulment admissible;

—annul the decision by which the European Commission rejected the applicant’s tender and awarded the contract to another tenderer, a decision of which the applicant was informed by letter of 1 April 2011, received on 5 April 2011;

—order the Commission to pay the costs.

Pleas in law and main arguments

This action seeks the annulment of the Commission’s decision of 1 April 2011 rejecting the tender submitted by the applicant in the tendering procedure for the conclusion of a contract for Maintenance of HVAC, sprinkler, and water and sanitary installations at the Joseph Bech Building in Luxembourg and awarding the contract to another tenderer (OJ 2010/S 241-367523).

In support of the action, the applicant relies on two pleas in law:

1.First plea in law, alleging infringement of Article 89(1) and (2) and Article 92 of the Financial Regulation, Article 135(1) and (5) of the Implementing Regulation and Article 49 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, (1) and of the principles of transparency, equality and proportionality in so far as the European Commission requires the tenderer to provide ‘the valid ISO certificate for the whole of its maintenance activity, issued by the certification body’. The applicant complains, first, that the European Commission did not set out the selection criterion clearly and precisely in the absence of any specification in the tender specifications of the ISO certification number which was required to be submitted, second, that it required from the tenderers ISO certification ‘for the whole of their maintenance activity’ and not only for the market concerned and, third, that it did not allow the tenderers to demonstrate that their level of quality was similar to that of the ISO certification.

2.Second plea in law, alleging infringement of the obligation to state reasons stemming from Article 296 TFEU, Article 100(2) of the Financial Regulation, infringement of the tendering specifications and the annexes thereto, and a manifest error of assessment in so far as the European Commission rejected A+P KIEFFER OMNITEC’s tender on the ground that it did not satisfy criterion No 16, since it had not submitted conclusive and relevant documents to demonstrate that the candidates possessed the required qualifications. The applicant claims, first, that criterion No 16 concerned ‘the statement indicating the average annual manpower with the required profile during the last three years present at all the members of the possible group’ and that page 27/37 of Annex II to the tendering specifications refers only to the candidates’ knowledge of languages and, second, that the applicant did indeed adduce proof that one of the candidates had the qualifications required at page 28/38 of Annex II to the tendering specifications and submitted conclusive documents to that effect. In the case of the other candidate, the contract documents did not require that the qualifications required for site manager be satisfied.

(1) OJ 2004 L 134, p. 114.

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