The EU General Court ruled on Wednesday 26 April (Case T-54/21) that the Commission was not obliged to investigate further OHB System’s objections against Airbus Defence & Space regarding the award of the Galileo transition satellite contract to Thales Alenia Space Italia (TASI) and Airbus Defence & Space (ADS).
In May 2018, the European Space Agency (ESA) launched a tender procedure in the form of a competitive dialogue. It was decided that two contractors could be selected and that the contract would be awarded on the basis of the most economically advantageous offer.
At the end of the first phase of the competitive dialogue, ESA selected three bidders: OHB System AG, ADS et TASI. Following the second phase, the European Commission decided not to select OHB and to award the contract to TASI and ADS, decisions communicated to OHB on 19 January 2021. OHB challenged this decision.
In December 2020, the applicant had informed the Commission and ESA that one of its former employees who had extensive access to project data and had participated in the preparation of its bid had been hired in December 2019 by ADS. According to the applicant, there were indications that the former employee had obtained sensitive information and a national criminal investigation had been opened.
OHB had asked the Commission to suspend the disputed competitive dialogue, to investigate the matter and, if necessary, to exclude ADS from the dialogue.
By letter of 20 January 2021, the Commission informed OHB that there were insufficient grounds to justify such a suspension and that, in the absence of a final judgment or a final administrative decision of the judicial authorities, there were no grounds for excluding ADS from the dialogue.
The General Court rejected the claim of an alleged violation of the criteria for exclusion of a bidder under the 2018 Financial Regulations. In its view, the allegations contained in the December 2020 letter were not of such a nature as to constitute sufficient evidence to establish a presumption of ADS’s guilt to warrant referral to the Commission, and the Commission was not required to investigate them.
On the complaint of an abnormally low bid by ADS, the Court found that it had not been demonstrated that there were indications of such a nature as to arouse the Commission’s suspicion. The Commission was therefore not obliged to carry out a verification to ensure that it was not abnormally low.
The General Court rejects the claim that, by limiting itself to confirming the results contained in the evaluation report of the tenders submitted, the Commission had breached its obligation to adopt an autonomous decision on the award of the contract, explaining that this does not alter the fact that the contested decisions were adopted independently.
See the judgment (in French): https://aeur.eu/f/6kp (Original version in French by Camille-Cerise Gessant)