ESA Procurement Review Board. Decision 02/2016. Paris, June 8, Subject:

Transcription

1 ESA Procurement Review Board Decision 02/2016 Paris, June 8, 2016 Subject: Claim submitted by the Company Celestia Ingenieria de Sistemas, SL («the claimant»), Isla del Hierro,7- Oficina San Sebastian de los Reyes Madrid (Spain) to the Procurement Review Board «PRB») on April 29, The Procurement Review Board composed of: - Ms. Claude Jeanne Dubreuil: Chair - M. Peter Trepte: Deputy Chair - Ms. Marleen Willekens - M. Bartolomeo Pernice After duly considering the claim submitted by the claimant via esaproclaim on April 29, 2016, and received at the seat of the PRB (ESA headquarters), by registered mail on May 9, 2016, and all documentation related to the case, After a public hearing held on May 25, 2016, during which the claimant and ESA presented their arguments orally, the claimant s witnesses delivered their testimonies (recorded in minutes signed by the PRB members) and at the end of which both the claimant and ESA presented their final submission, Has come to the following decision: By accepting to evaluate a bid which, on its face, was substantially incomplete, ESA committed a breach of article 39.2 of the Procurement Regulations (ESA/REG/001, rev.4). By its ambiguous behaviour during the tender process, the claimant appears to have encouraged the further evaluation of its proposal by the TEB. As a result, the PRB considers that the claimant suffered no actual loss in any event. The PRB has no ground to cancel or postpone S3T Phase 2B procurement process nor to suspend the signature of the contract with the successful tenderer. There are no grounds to order a modification of the Tender Evaluation Report. There is no order regarding compensation or costs. 1. Timeline of the claim The claim referenced above followed a claim submitted March 15, 2016 by claimant to ESA Head of Procurement Department (HPD), followed by a claim to the ESA Industrial Ombudsman (IOE) submitted March 29, The final decision from the HPD following the IOE report issuance was received by the claimant on April 22, 2016 via , and on April 29, 2016 via registered letter. The claimant's claim to the PRB was submitted via esaproclaim on April 29, 2016, and received by registered mail at seat of the PRB (ESA Headquarters) on May 9, Given the late receipt of the written claim, the PRB exercised its right to admit the claim under article 8-4 of its Rules on the grounds that the claimant provided evidence of dispatch of its written claim within the time limit. The time schedule for the PRB to issue its decision thus begun on May 10, In accordance with Article 55-3 of the ESA/REG/001, rev.4, the PRB decided to extend the period within which it would take its decision by another fifteen-day period, meaning that its decision is 1

2 due on June 9, 2016 at the latest. This was communicated to both ESA and the claimant via a letter from the Chair of the PRB dated May 11, Requests from the claimant In its formal submission annexed to its claim, the claimant challenged the decision of the ESA HPD in response to the report of ESA IOE, and asked the PRB for the following remedies: To admit (its) document and ask to the HPD to change the decision by declaring that: Celis proposal should be considered as not valid, and so, discarded for the Phase 2B due to the missing contractual documentation. S3T phase 2 TEB report should be modified in this sense INDRA SISTEMAS should be investigated in order to verify the violations of the ESA regulations against the Free Competition Rules, and finally S3T Phase 2B should be cancelled 3. PRB jurisdiction over the claim The claim is related to an alleged procedural breach in the frame of an ESA Invitation to Tender ( ITT ) for the S3T Surveillance Radar AO/1-8262/15/D/MR, phase 2B. It falls under article 48 of ESA Procurement Regulations (ESA/REG/001, rev.4) as part of the right to review opened to any economic operator demonstrating a direct interest in an Agency s procurement and that claims a potential loss due to an alleged procedural breach of these Regulations by the Agency. This S3T (Surveillance Radar Development) Programme is performed in the frame of an agreement entered into between ESA and the Spanish Government. This agreement states that the procurement activities related to the Programme will be performed by ESA, and that ESA procurement regulations will apply, including the Agency s tender evaluation process (Agreement Terms, article 8). In consequence, the PRB confirms that ESA Procurement Regulations apply to the procedure which forms the subject matter of the claim. The PRB also confirms its jurisdiction over this claim and recalls that its decision is taken in the context of the ESA procurement process, under ESA Procurement Regulations and does not concern any contractual claim or competition law issue outside the ESA Procurement Regulations that may be the subject of separate proceedings brought by the claimant before any other jurisdiction. 4. Background The S3T Surveillance Radar Development is divided in two complementary activities (A-Delivery of the S3T overall system and B- Design and deliver of the S3T Surveillance Radar), each subdivided into two phases (1A-1B and 2A-2B). For the execution of the works under Phase 1B, two parallel contracts were placed by ESA, one to the claimant, and one to INDRA. The Phase 1B contract included: - an article 7.1 by which the Agency, at the end of Phase 1B reserves the right to decide whether and how to proceed with Phase 2B. Any such decision will be based on a proposal to be requested by the Agency - a Task T1_04 in the Statement of Work by which the Contractor shall refine the offer for Phase 2B based on the design performed in previous tasks, the schedule of the Phase 2B shall be updated and the Ceiling Price converted in FFP (firm fixed price) 2

3 It is foreseen that the Phase 2B contract will be the subject of one contract only, to be attributed to one of the Phase 1B contractors, through a CCN/Rider to the existing contract. In a letter dated December 20, 2015, ESA requested from both the claimant and INDRA an updated proposal for Phase 2B, mentioning that such proposal(s) shall be complete in all its parts, following the indication of the original ITT s Special Conditions of Tender and were to be evaluated following the same procedure as for the original ITT. The original ITT comprised Special Conditions of Tender ( SCT ), which, inter alia, request the Tenderer to provide: - fully completed and signed Form A Declarations on Key Acceptance Factors, and Form B Declarations on Compliances (Part 3 $1- cover letter Annex 2), and - four PSS forms completed and signed for the Prime Contractor and for each subcontractor proposed (Part 3 $5- Financial Proposal) Under the SCT, signed PSS forms were to be provided by the claimant and INDRA in their proposal for Phase 2B, and were to be completed and signed by them as well as by their subcontractors. From the documents available to the PRB, it appears that PSS forms provided by the subcontractor Advanced Radar Technologies SA ( ART ) and annexed to the INDRA proposal were signed, but the ones annexed to the claimant s proposal were not. Form A of Annex 2 was signed by the claimant in its name and in the name of its subcontractors TTI and ART, and this form contained a box 2 confirming compliance with the Certification of Free Competition provided for in Part 2B-3 of the General Conditions for Tenders. Despite the missing signed PSS forms from ART in the claimant s proposal, the TEB proceeded with the evaluation of the claimant s proposal, on the assumption that ART was a member of the claimant s consortium but stating that, should the participation of ART not be eventually confirmed (i.e. that the assumption was incorrect), then the outcome of the evaluation would not be applicable. 5. Substance of the claim In substance the claimant makes two claims: (i) (ii) that the TEB was in breach of article 39(2) by failing to eliminate the claimant s proposal containing unsigned PSS forms and that the TEB failed to investigate the veracity of the Certification of Free Competition In respect of these two claims: (i) Breach of Article 39(2) The first question is to determine whether submission of a proposal containing unsigned PSS forms means that the proposal is not complete (paragraph 1) or substantively incomplete (paragraph 2). Signed PSS forms were specifically required in the conditions of tender. The fact these were missing means that the tender was not complete. Whether they were also substantively incomplete requires further consideration. At the hearing, ESA stated that the signature was insignificant and of minor importance, not, as previously, that it was a technical omission only. This was based on the fact that it was of relevance only in the case of Cost plus type contracts and not for Firm Fixed Price type contracts such as that at issue here. However, the instruction to complete PSS forms states that this is to be done by contractor and sub-contractors regardless of the type of price. On this basis, the PRB is inclined to say that the absence of signed PSS forms was not irrelevant but rendered the proposal substantively incomplete. On the facts of the case, it may also be substantively incomplete for other reasons. 3

4 The significance of the signature was paramount. The absence of a signature gave rise to the implication that ART, whose signature was required on the PSS forms, was not or did not intend to be party to the proposal. Whilst the information contained in the PSS forms was required for any proposal for Phase 2 of the Programme, ART s signature on the PSS forms would indicate that, in addition to providing the requisite information, it undertook to provide sub-contracted services costed in the PSS forms to the claimant under Phase 2. The evidence put before the PRB indicates that this was in some doubt. On 18 January 2016, ART informed the claimant at a lunch meeting that it would not participate in the proposal with the claimant but with a competitor, INDRA. This was confirmed by a telephone conversation on the following day, evidence of which was provided orally at the hearing. This information was reduced to writing by the claimant in a notarial act dated 19 January 2016 and sent to ART by way of notary on 20 January Despite this, the claimant submitted a proposal indicating ART as a participant in its proposal. Following commencement of the activities of the TEB on 31 January 2016 (the date on which proposals were distributed to the TEB), a request was sent to the claimant on 3 February by the ESA S3T Project Manager, who was also Co-Secretary of the TEB, raising a possible unintentional omission of the signature in the ART PSS forms and asking for signed versions of the PSS forms to be sent urgently. On 4 February 2016, ART sent an to the claimant stating categorically that it would not participate in the claimant s proposal for Phase 2. This was copied to the ESA S3T Project Manager. The claimant itself sent a letter on 4 February 2016 to the ESA S3T Project Manager stating that the omission was not an oversight. At the hearing, ESA stated that the TEB was made aware of the content of the of 4 February 2016 sent by ART to the claimant and copied to the ESA S3T Project Manager. As a result, it is clear that the absence of the signature on the PSS forms was significant, rendered the proposal substantively incomplete and that this was within the knowledge of the TEB when it chose to proceed with the evaluation of both the claimant s proposal and that of its competitor. The second question is to determine whether further evaluation of the claimant s proposal in such circumstances would impair fair competition. This determination is to be made at the time the decision was taken not to eliminate the claimant s proposal and not at the end of the evaluation. By failing to eliminate a substantively incomplete proposal contrary to the specific conditions of the competition, knowing that the absence of the signature on the PSS forms signified that ART would not be participating in the claimant proposal, the TEB admitted a non-compliant proposal contrary to the terms of the Special Conditions of Tender. In doing so, it introduced, possibly unintentionally, unequal treatment between tenderers thus impairing fair competition. It is the PRB s opinion that the TEB is in breach of Article 39(2), notwithstanding its attempt to take account of the uncertainty about ART s participation in the claimant s proposal. On the facts of the case, however, such a breach did not lead to any actual loss or to any automatic remedy. (ii) The statement of compliance with the Certification of Free Competition In respect of the claims made in reference to the certification of free competition, the requirement to confirm that the conditions of the said certification are met (Annex 2 Form A) is expressly mentioned in the SCT applicable to Phase 2B. This form was duly signed by both tenderers, on their own behalf and on behalf of their subcontractors. The claimant thus signed this form on its own behalf and on behalf of ART who was a named participant in the claimant s proposal. The claimant did so in the knowledge that ART would not participate with the claimant in the Phase 2B proposal, as evidenced by the events described above, namely the oral testimony, the notarial act and the communications referring to the notarial act. This was, at best, misleading. 4

5 In those circumstances, there was no reason for the TEB to suspect that the statement of compliance with the requirements listed in the Certification of Free Competition was not true. The claimant ensured, by complying with the special conditions and certifying compliance with the conditions of free competition, that no such suspicion arose. Given that the procedure had been complied with, there was no reason for the TEB to exclude the proposal from further evaluation on those grounds, the only course open to it under the terms of Annex 2 Form A (compliance with the procedural requirements). This also means that the PRB has no grounds to consider the matter further. Claimed loss In respect of the claimant s claim for costs, this was made only on 24 May 2016, by a letter ref ESA- CL submitted by the claimant to the PRB after the deadline for the submission of the claim had elapsed. It will not be entertained. For the purposes of establishing the right to review under Article 48, it is accepted that the procedural breach of Article 39(2) is capable of leading to a potential loss for the claimant. In the present case, however, the claimant appears to have encouraged the TEB to proceed as it did. In the PRB s opinion, therefore, there is no actual loss in any event. Other remedies sought The result of the evaluation is significant in one respect. It shows that the claimant would never have been successful, even if its proposal had been compliant and responsive in the sense that ART had participated in its proposal as originally anticipated. Despite the breach of Article 39(2), therefore, which resulted in no actual loss to the claimant, there are no grounds for recommending the postponement or cancellation of the current procedure, either to allow more time for the claimant to resubmit a compliant and/or responsive proposal (after the deadline for submission of proposals) or to suspend signature of the contract properly awarded to INDRA. The TEB Report is exactly that, a report of the proceedings of the TEB. As such it cannot be modified ex post without undermining the purpose of the document. As stated above, the procedures were complied with in respect of the complaint regarding the certification of free competition. The PRB awards no remedy to the claimant. Claimed costs The claim for costs was made out of time. However, costs may be awarded according to Article 23(2) of Annex V of the ESA Regulations. Nevertheless, and despite a statement made by the claimant at the hearing that a breakdown of the costs incurred would be sent to the PRB for consideration, no such breakdown has been received before the deadline for finalising the PRB s decision. As a consequence, the PRB takes the view that the claim for costs has been withdrawn and declines to make any unilateral award of costs. Peter Trepte Claude J. Dubreuil Bartolomeo Pernice Marleen Willekens 5