ESA-Procurement Review Board Decision 01/2012 - emits

ESA-Procurement Review BoardDecision 01/2012Paris, 3 August 2012Subject:Appeal of the company European Dynamics (Claimant), Athens,Greece, to the Procurement Review Board (PRB) concerning the ESAagainst the decision on the Invitation to Tender (ITT) ‘’EntityManagement and E-Tender in Phase 1“, ref: AO/1-6912/I/SBThe Procurement Review Board in the following composition :Mr Jörg Feustel-Büechl (PRB-Vice Chair) acting as Chairman,Mr Hans Bracquené, andMr Martin Trybus;After duly considering:The claim of the Claimant dated 12 th July 2012,The response of ESA dated 20 th July 2012, andThe response of the Claimant dated 24 th July 2012; andAfter meeting on 18 th and 30 th July 2012 in Paris, andAfter a public hearing in which the Claimant and ESA presented theirarguments orally and at the end of which the Claimant presented theirclosing statements orally and in writing and ESA orally;Has come to the following Decision:The Procurement review Board considers the entirety of theprocurement procedure to be in full compliance with all applicablerules and regulations.Therefore all six claims of the Claimant (ref. Letter from EuropeanDynamics to Procurement Review Board of 12 July 2012) areconsidered unfounded and are hereby rejected.1

The detailed findings and conclusions of the Procurement ReviewBoard are as follows:The Procurement Review Board (PRB) examined the allegedirregularities advanced by the Claimant and arrived at the followingconclusions for each of these alleged irregularities:1. Ceiling priceThe reservation on its ceiling price for Phase 2 in the Claimant’sTender was explicit and can therefore not be ignored.This reservation states explicitly the indicative and preliminarynature of the quotation and the wording chosen makes this anon-binding offer. Whereas an adaptation to a ceiling price is ofcourse possible as long as the ceiling price is not exceeded, thisoffer would allow the Claimant to increase its final price forPhase 2 above the proposed ceiling.The PRB is of the opinion that this reservation is therefore not incompliance with the requested binding character of the ceilingprice and that ESA could reasonably interpret it as an openendedreservation without having the obligation to request aclarification on this point.2. Evaluation criteriaThe PRB concludes that:- The ITT and the supporting documents are sufficiently clearand detailed;- The criteria used were an aggregation of different specificelements of these documents and this aggregation was donecorrectly;- The non-quantitative character of criterion 4 was sufficientlydocumented and communicated; and2

- The Claimant failed to furnish sufficient evidence for thealleged infringement of Article 25.3 ESA ProcurementRegulations.The Claimant also alleged that evaluation criteria wereintroduced a posteriori, e.g. experience with integration in anSAP system. ESA demonstrated convincingly that thisintegration was included in the ITT requirements and wastherefore an element against which the proposal was to beevaluated. No other concrete example was given and thereforethe PRB concludes that this allegation is unfounded.3. ESA not providing justifications and state reasons for itsdecisionsThe PRB first underlines that the Claimant cannot claim to havesuffered a potential loss due to this alleged failure of ESA toprovide justifications and state reasons for its decisions requiredby Article 48 ESA Procurement Regulations. This allegation cantherefore not be accepted.However, the analysis of the motivations given at the differentstages of the procurement process indicates that ESA respondedto requests made at the different procedural stages (TEB, Headof Procurement Department, Ombudsman) and that no essentialinformation was withheld.The PRB takes notice of the difficulties encountered during thedebriefing process. But as this debriefing takes place after theevaluation of the tenders it is inconsequential for the claims atissue here. PRB welcomes the opportunity for an additionaldebriefing offered by ESA.4. ESA based the ITT on a wrong legal basis3