Judgment of the General Court (Tenth Chamber) 2 September 2026

JUDGMENT OF THE GENERAL COURT (Tenth Chamber)

2 September 2026 ( * )

( Public works contracts – Tendering procedure – Design and construction of Frontex permanent premises – Rejection of a tenderer’s tender – Action for annulment – Act open to challenge – Interest in bringing proceedings – Admissibility – Obligation to state reasons – Abnormally low tender )

In Case T‑658/24,

Warbud S.A., established in Warsaw (Poland), represented by K. Kuźma, M. Gajdek, W. Hartung and D. Sarmiento Ramírez-Escudero, lawyers,

applicant,

v

European Border and Coast Guard Agency (Frontex), represented by C. Carroll and R.-A. Popa, acting as Agents, and by M. Troncoso Ferrer and L. Lence de Frutos, lawyers,

defendant,

THE GENERAL COURT (Tenth Chamber),

composed of S.L. Kalėda, President, M. Jaeger (Rapporteur) and H. Kanninen, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

having regard to the order of 13 February 2025, Warbud v Frontex (T‑658/24 R, not published),

having regard to the order of 11 April 2025, Warbud v Frontex (T‑658/24 R, not published, EU:T:2025:411),

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Warbud S.A., seeks, in essence, the annulment of the decision sent to it by an email of 23 October 2024 (‘the first contested decision’) and of the decision sent to it by an email of 7 February 2025 (‘the second contested decision’), by which the European Border and Coast Guard Agency (Frontex) rejected the tender that the applicant had submitted in connection with award procedure Frontex/CD/1217/2021/RS (‘the award procedure’) concerning the design and construction of that agency’s permanent premises in Warsaw (Poland) (‘the permanent premises’) and awarded the contract to another tenderer.

I. Background to the dispute

2 On 12 July 2022, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2022/S, 132-375031), Frontex launched the call for tenders for the award procedure. According to that contract notice, the award procedure was to take place in three phases. During the first phase, interested economic operators were to submit their requests to participate in that procedure. During the second phase, Frontex was to hold a permanent dialogue with the candidates. During the third phase, selected candidates were to submit their final tenders for the award procedure.

3 On 18 November 2022, the applicant, which formed a consortium with another Polish company (‘the applicant’s consortium’), submitted a request to participate in the first phase of the award procedure.

4 After it was approved to participate, the applicant’s consortium submitted an initial tender to Frontex on 12 September 2023.

5 By email of 29 October 2023, Frontex informed the applicant’s consortium that it had been selected to participate in the second phase of the award procedure and provided it with an evaluation grid indicating the scores awarded to its initial tender.

6 On 9 February 2024, the applicant’s consortium submitted a revised tender for the award procedure.

7 After the other Polish company decided to withdraw from the consortium, Frontex invited the applicant, by email of 24 July 2024, to submit a final tender in its own name in the third phase of the award procedure.

8 On 16 September 2024, the applicant sent Frontex its final tender for the award procedure.

9 By email of 23 October 2024, Frontex sent the applicant the first contested decision, by which it informed the applicant that its final tender had not been successful and communicated to it the scores which it had obtained for each of the award criteria defined in the award procedure.

10 By letter of 30 October 2024, the applicant made a request to Frontex, on the basis of Article 170(3) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), which governed the award procedure, for it to indicate to the applicant the name of the successful tenderer in that procedure and the scores awarded to the tender which that tenderer had submitted (‘the successful final tender’), to provide it with detailed justification for the scores awarded to the applicant’s final tender for the award criteria ‘Building Architecture & Functionality’ and ‘Sustainability’, and to suspend the signing of the contract with the successful tenderer in order to conduct an additional analysis of the tenders submitted, since it was likely, according to the applicant, that the price of the successful final tender had been grossly underestimated or that, in that tender, the successful tenderer had not taken into account all the requirements set out in the documents relating to the award procedure.

11 On 8 November 2024, Frontex sent the applicant a document entitled ‘Reply to Point no 1 of Warbud Letter’, in which it stated that the successful tenderer in the award procedure was a consortium composed of three companies (‘the successful consortium’) and it compared the scores awarded to the applicant’s final tender with those awarded to the successful final tender.

12 On the same day, Frontex sent the applicant a document entitled ‘Reply to Point no 2 of Warbud Letter’, which contained an extract from the evaluation report drawn up by its evaluation committee (‘the evaluation committee’) indicating the justification for the scores awarded to the applicant’s final tender for the quality criteria ‘Building Architecture & Functionality’ and ‘Sustainability’.

13 On the same day, Frontex also sent the applicant a document entitled ‘Reply to Point no 3 of Warbud Letter’. That document contained another extract from the evaluation report drawn up by the evaluation committee, from which it was apparent that the price of the successful final tender was much lower than that of the applicant’s final tender, which led that committee to assess prima facie whether the successful final tender was abnormally low. In that context, the evaluation committee noted that the difference between the price of the applicant’s final tender and the price of the successful final tender concerned, inter alia, the estimates made in respect of the cost for technical installations. Whereas, in the successful final tender, the technical installations represented 35.64% of the total ‘price’, in the applicant’s final tender they represented 47.72% of the total cost. The evaluation committee considered that the estimate of the cost for technical installations proposed by the successful consortium was consistent with the estimate provided by an independent quantity surveyor (‘the quantity surveyor’s estimate’) before the award procedure, according to which the cost for those installations should represent 34.92% of the total cost, and with the estimates provided by several guides and studies relating to construction costs (‘the guides and studies at issue’), according to which that cost should range between 30% and 35% of the total cost.

14 By letter of 19 November 2024, the applicant asked Frontex to reassess its final tender and the successful final tender and to suspend, for the time necessary for that reassessment, the signing of the contract with the successful consortium. In that regard, the applicant claimed, inter alia, that the price of the successful final tender had to be regarded as abnormally low, that that tender did not meet the minimum requirements identified in the award procedure and that the applicant’s final tender should have received higher scores for the quality criteria ‘Building Architecture & Functionality’ and ‘Sustainability’.

15 By email of 17 December 2024, Frontex informed the applicant that, in accordance with point 36.1 of Annex I to Regulation (EU, Euratom) 2024/2509 of the European Parliament and of the Council of 23 September 2024 on the financial rules applicable to the general budget of the Union (OJ L, 2024/2509), it had decided to suspend, for two months, the signing of the contract relating to the award procedure in order to carry out an additional examination of the applicant’s final tender and of the successful final tender, and that that contract would not be signed before the expiry of a period of three working days from the day following that on which the notification of the outcome of that additional examination was sent to the parties concerned (‘the suspension decision’).

16 On 18 December 2024, the applicant brought the present action.

II. Facts subsequent to the bringing of the action

17 By email of 7 February 2025, Frontex sent the applicant the second contested decision, in which it informed the applicant that, after re-evaluating the tenders received, it had decided not to accept the applicant’s final tender, and communicated to it the scores which it had obtained for each of the award criteria identified in the award procedure. In addition, Frontex stated that, in accordance with the second subparagraph of Article 178(1) of Regulation 2018/1046, the contract with the successful tenderer would not be signed until a 10-day standstill period had expired.

18 By letter of 11 February 2025, the applicant made a request to Frontex, on the basis of Article 170(3) of Regulation 2018/1046, for it to provide the applicant with detailed information concerning the scores which, following the re-evaluation, had been awarded to its final tender and to the successful final tender, to inform it of the characteristics and relative advantages of the successful final tender and to specify whether that tender had been analysed with regard to the possibility of an abnormally low price.

19 By email of 17 February 2025, Frontex responded to the applicant’s letter of 11 February 2025, stating, inter alia, that, on 30 January 2025, the evaluation committee had met, had carefully reassessed the applicant’s final tender and the successful final tender, without confining itself to correcting clerical errors or errors in calculation, and had concluded that the successful final tender was not abnormally low (‘the email of 17 February 2025’).

20 By email of 18 February 2025, Frontex provided the applicant with the annexes that were not included in the email of 17 February 2025.

21 By email of 27 February 2025, the applicant asked Frontex to send it all the correspondence between Frontex and the successful consortium and the opinions and cost estimates drawn up by independent experts regarding, inter alia, the question whether the price proposed by that consortium was abnormally low.

22 By letter of 7 March 2025, Frontex informed the applicant that it could not send it the information which it had requested in its email of 27 February 2025 on the ground that that information was not included in the list of information in Article 170(3) of Regulation 2018/1046 which the contracting authority could communicate to a tenderer.

23 On 10 March 2025, the applicant lodged at the Court Registry a statement of modification, pursuant to Article 86 of the Rules of Procedure of the General Court, in order to modify its application in the light of the adoption of the second contested decision.

III. Forms of order sought

24 The applicant claims, in essence, that the Court should:

– declare the action and the statement of modification admissible;

– annul the first contested decision and the second contested decision;

– order Frontex to pay the costs.

25 Frontex contends that the Court should:

– dismiss the action and the statement of modification as inadmissible;

– in the alternative, dismiss the action as unfounded;

– order the applicant to pay the costs.

IV. Law

A. The plea of inadmissibility

26 By separate document lodged at the Court Registry on 17 March 2025, Frontex raised a plea of inadmissibility on the basis of Article 130(1) of the Rules of Procedure. It puts forward two complaints in support of that plea.

1. The first complaint in the plea of inadmissibility, alleging that the head of claim seeking annulment of the first contested decision is inadmissible

27 By its first complaint, Frontex submits, in essence, that the head of claim seeking annulment of the first contested decision is inadmissible on the ground that, on the date on which the action was brought, that decision had been suspended by the suspension decision. Thus, according to Frontex, the first contested decision does not constitute an act open to challenge under Article 263 TFEU and, in any event, the applicant has not substantiated its interest in bringing proceedings against it.

28 The applicant disputes the arguments made by Frontex.

29 It should be noted that, according to the case-law, only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his or her legal position is an act or decision which may be the subject of an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission , 60/81, EU:C:1981:264, paragraph 9; see, also, judgment of 13 June 2019, Strabag Belgium v Parliament , T‑299/18, not published, EU:T:2019:411, paragraph 33 and the case-law cited). By contrast, any act not producing binding legal effects capable of affecting the interests of the individual, such as preparatory acts, confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions, falls outside the scope of the judicial review provided for in Article 263 TFEU (see judgment of 12 September 2006, Reynolds Tobacco and Others v Commission , C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited, and order of 19 May 2025, Birių Krovinių Terminalas v Council , T‑261/24, not published, EU:T:2025:540, paragraph 20 and the case-law cited).

30 In order to ascertain whether a measure produces binding legal effects capable of affecting the interests of the applicant, it is necessary to examine the substance of that measure and to assess those effects in the light of objective criteria, such as the content of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution, body, office or agency which adopted the measure, powers which should not be understood in the abstract but should be regarded as factors that inform the specific analysis of the content of that measure (see judgments of 13 February 2025, Swissgrid v Commission , C‑121/23 P, EU:C:2025:83, paragraph 37 and the case-law cited, and of 13 June 2019, Strabag Belgium v Parliament , T‑299/18, not published, EU:T:2019:411, paragraph 34 and the case-law cited).

31 Moreover, it is clear from the case-law that measures of the EU institutions produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling (see, to that effect, judgment of 5 October 2004, Commission v Greece , C‑475/01, EU:C:2004:585, paragraph 18 and the case-law cited, and order of 14 February 2012, Italy v Commission , T‑305/08, not published, EU:T:2012:70, paragraph 22).

32 In the present case, Frontex sent the applicant the first contested decision by email of 23 October 2024 and, in response to the applicant’s letter of 19 November 2024, it sent the applicant the suspension decision on 17 December 2024. Then, on 18 December 2024, the applicant brought the present action.

33 In that regard, it should be recalled that the suspension decision was adopted by Frontex on the basis of the second subpoint of point 36.1 of Annex I to Regulation 2024/2509. That provision is worded as follows:

‘If necessary, the contracting authority may suspend the signature of the contract for additional examination if this is justified by the requests or comments made by unsuccessful or aggrieved candidates or tenderers or by any other relevant information received during the period set out in Article 178(3). In the case of suspension all the candidates or tenderers shall be informed within three working days following the suspension decision.’

34 Thus, in accordance with point 36.1 of Annex I to Regulation 2024/2509, in the suspension decision, Frontex stated that it had decided to suspend, for two months, the signature of the contract relating to the award procedure in order to carry out an additional examination of the applicant’s final tender and of the successful final tender, and that that contract would not be signed before the expiry of a period of three working days from the day following that on which the notification of the outcome of that additional examination was sent to the parties concerned.

35 It follows that the suspension decision did not suspend the first contested decision, but suspended, for two months, the signing of the contract with the successful consortium in order to enable Frontex to re-examine the applicant’s final tender and the successful final tender. Thus, in accordance with the case-law cited in paragraphs 29 to 31 above, in so far as the first contested decision has not been withdrawn, annulled or declared invalid, it has not ceased to produce binding legal effects vis-à-vis the applicant. During the suspension period, the applicant therefore continued, as a result of the first contested decision, to be excluded from the award procedure, pending the re-examination by Frontex of its final tender and the successful final tender.

36 It follows that, when the action was brought, the first contested decision constituted an act open to challenge under Article 263 TFEU. Accordingly, it is necessary to assess whether the applicant had a legal interest in bringing proceedings in respect of that decision.

37 In that regard, it should be noted that, according to the case-law, the admissibility of an action for annulment brought by a natural or legal person is conditional upon that person proving that he or she has a vested and present interest in the annulment of the contested act (judgments of 13 July 2000, Parliament v Richard , C‑174/99 P, EU:C:2000:412, paragraph 33, and of 13 November 2014, Jaber v Council , T‑653/11, EU:T:2014:948, paragraph 54). Since it may not concern a future and hypothetical situation, the legal interest in bringing proceedings must exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see judgment of 13 July 2023, D & A Pharma v EMA , C‑136/22 P, EU:C:2023:572, paragraph 44 and the case-law cited).

38 For there to be a legal interest in bringing proceedings, the annulment of the contested act must be capable, in itself, of having legal consequences and the action must thus be capable, having regard to its purpose and if it is successful, of procuring an advantage for the applicant (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission , C‑362/05 P, EU:C:2007:322, paragraph 42; of 13 November 2014, Jaber v Council , T‑653/11, EU:T:2014:948, paragraph 55; and of 29 October 2015, Direct Way and Direct Way Worldwide v Parliament , T‑126/13, EU:T:2015:819, paragraph 42).

39 The case-law also clarifies that it is for the applicant to prove that it has a legal interest in bringing proceedings (see judgment of 7 November 2018, BPC Lux 2 and Others v Commission , C‑544/17 P, EU:C:2018:880, paragraph 33 and the case-law cited). In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act (see judgment of 20 December 2017, Binca Seafoods v Commission , C‑268/16 P, EU:C:2017:1001, paragraph 45 and the case-law cited).

40 In the present case, in its observations on the plea of inadmissibility lodged at the Court Registry on 8 May 2025, the applicant states that annulment of the first contested decision and of the second contested decision would procure an advantage for it, in so far as that would enable it to obtain a finding that there was an irregularity in the award procedure and, as the case may be, to be awarded the contract instead of the successful consortium. It is true that the applicant does not refer to the first contested decision in isolation, but justifies its interest in bringing proceedings by taking into account the first contested decision and the second contested decision together.

41 In that regard, it should be borne in mind that, in accordance with the case-law cited in paragraph 37 above, the interest in bringing proceedings must be vested and present when the action is brought. When the present action was brought, the second contested decision had not yet been adopted by Frontex and the only act open to challenge was the first contested decision, the annulment of which would have enabled the applicant to obtain a finding that there was an irregularity in the award procedure and, as the case may be, to be awarded the contract instead of the successful consortium.

42 It must therefore be held that the applicant justifies in a relevant manner, within the meaning of the case-law cited in paragraph 39 above, the interest which it had, when the action was brought, in bringing proceedings.

43 In addition, the case-law cited in paragraph 37 above also indicates that the legal interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate. In the present case, for the reasons set out in paragraphs 51 to 56 below, it must be held that the second contested decision replaced the first contested decision.

44 Consequently, since the applicant no longer has a legal interest in seeking annulment of the first contested decision, there is no need to adjudicate on its claim for annulment of that decision or, a fortiori, on the first complaint in the plea of inadmissibility.

2. The second complaint in the plea of inadmissibility, alleging that the statement of modification is inadmissible

45 By its second complaint, Frontex submits that the statement of modification is inadmissible, in so far as the legal basis on which the applicant relies for its request contradicts the arguments which it puts forward. In that regard, Frontex states that, while the applicant is acting on the basis of Article 86 of the Rules of Procedure – which cannot be used to request the modification of the application where the contested measure is purely confirmatory of a previous measure – the applicant submits that the second contested decision is purely confirmatory of the first contested decision.

46 The applicant disputes the arguments made by Frontex.

47 It must be stated that it is clear from Article 86(1) and (2) of the Rules of Procedure that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, modify the application to take account of that new factor. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.

48 According to the case-law, the modification of the application on the basis of Article 86 of the Rules of Procedure must relate to a measure that is capable of forming the subject matter of an application for annulment for the purposes of Article 263 TFEU, that is, an act producing binding legal effects that may affect the interests of the applicant by bringing about a distinct change in his or her legal position. A measure which merely confirms a previous measure, that is, a measure which contains no new factors as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person concerned, does not constitute such a measure. In that case, it is the first measure which must be regarded as producing binding legal effects (see, to that effect, judgments of 5 October 2017, Mabrouk v Council , T‑175/15, EU:T:2017:694, paragraph 154 and the case-law cited, and of 6 September 2023, Sopra Steria Benelux and Unisys Belgium v Commission , T‑108/22, not published, EU:T:2023:495, paragraphs 32 and 33 and the case-law cited).

49 In the present case, by separate document lodged at the Court Registry on 10 March 2025, the applicant submitted a statement of modification, on the basis of Article 86 of the Rules of Procedure, in order to modify the application to take account of Frontex’s adoption of the second contested decision, which occurred after the application initiating proceedings was lodged.

50 However, in paragraphs 22 to 31 of the statement of modification and in paragraphs 20 to 28 of its observations on the plea of inadmissibility, the applicant submits that the second contested decision is of a purely confirmatory nature. In that regard, it submits that that decision did not introduce any new factors as compared with the first contested decision and that it was not preceded by a re-examination, by Frontex, of its final tender and the successful final tender. Thus, according to the applicant, apart from correcting a miscalculation with regard to the evaluation of the award criterion ‘Building Architecture & Functionality’, Frontex merely repeated, in the second contested decision, the arguments which it had put forward in the first contested decision in order to reach the same conclusion, namely rejecting the applicant’s final tender and awarding the contract to the successful consortium. The applicant adds that the confirmatory nature of the second contested decision is supported by the fact that, since that decision did not remedy the illegalities of the first contested decision, the pleas which the applicant had raised in the application against the first contested decision remain substantially valid against the second contested decision. It follows, according to the applicant, that the first contested decision and the second contested decision should be regarded as a single decision which may be the subject of a single action.

51 It is clear from the foregoing that the applicant’s reasoning is vitiated by a lack of consistency, in so far as the applicant claims both that the second contested decision is purely confirmatory of the first contested decision and that it is acting on the basis of Article 86 of the Rules of Procedure.

52 In that context, in order to assess the admissibility of the statement of modification, in the first place, it should be noted that, according to the case-law, it is for the Court, when it examines the admissibility of such a statement, to ascertain whether the measure challenged by means of the modification of the application has, as compared with the measure challenged by means of the application initiating proceedings, such substantive differences that it would be necessary to modify the pleas in law and arguments presented in support of the application initiating proceedings. It must be inferred therefrom that the differences between the measure contested by the application initiating proceedings and the measure contested by the modification of the application constitute a relevant factor for the purpose of assessing the admissibility of the statement of modification and, accordingly, of the admissibility of the pleas in law and arguments submitted for the first time in such a statement (judgments of 17 July 2024, Mhana v Council , T‑207/22, not published, EU:T:2024:496, paragraph 37, and of 9 April 2025, Hypo Vorarlberg Bank v SRB (2016 ex ante contributions) , T‑336/20, under appeal, EU:T:2025:383, paragraph 43).

53 It should also be noted that, according to the case-law, the confirmatory or other nature of a measure cannot be determined solely with reference to its content as compared with that of the previous decision which it purportedly confirms. The nature of the contested measure must also be appraised in the light of the nature of the request to which it constitutes a reply. In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision (see judgment of 7 February 2001, Inpesca v Commission , T‑186/98, EU:T:2001:42, paragraphs 45 and 46 and the case-law cited, and order of 18 September 2024, UIC v Commission , T‑1120/23, not published, EU:T:2024:639, paragraphs 35 and 36).

54 In the present case, first of all, it must be borne in mind that, by letter of 19 November 2024, the applicant made a request to Frontex for it to reassess the applicant’s final tender and the successful final tender and to suspend, for the time necessary for that reassessment, the signing of the contract with the successful consortium. In support of that request, the applicant relied on the existence, in its view, of substantial new facts which raised doubts as to the merits of the first contested decision. More specifically, it maintained that that the price of the successful final tender was abnormally low, that that tender did not meet the minimum requirements which had been identified in the award procedure and that the applicant’s final tender should have received higher scores for the quality criteria ‘Building Architecture & Functionality’ and ‘Sustainability’.

55 Next, it should be noted that, in the second contested decision, Frontex did not confine itself to referring to the statement of reasons which it had provided in the first contested decision and to correcting the score which it had initially awarded to the applicant’s final tender as regards the criterion ‘Building Architecture & Functionality’, but indicated, in detail, the scores which it had awarded to the applicant’s final tender for each of the award criteria. In addition, in accordance with the second subparagraph of Article 178(1) of Regulation 2018/1046, it provided for a new standstill period of 10 days before the signing of the procurement contract with the successful consortium.

56 Last, it is apparent from the email of 17 February 2025 that, on 30 January 2025, that is to say, before the adoption of the second contested decision, the evaluation committee met to re-examine the applicant’s final tender and the successful final tender. In that re-examination, the evaluation committee did not rely solely on the quantity surveyor’s estimate and on the guides and studies at issue, but also took into account a report by an independent expert tasked with verifying whether the prices of the applicant’s final tender and of the successful final tender were consistent with market values (‘the 2024 report’). That report was not taken into account in the first contested decision, since it was issued in October 2024, that is to say, after that decision had been adopted.

57 It follows that, in accordance with the case-law cited in paragraphs 52 and 53 above, the second contested decision is not purely confirmatory of the first contested decision, but replaces that decision. Thus, in so far as the second contested decision has substantive differences as compared with the first contested decision, it must be held that the applicant was entitled to request the modification of the form of order sought, and the pleas in law and arguments put forward in the application on the basis of Article 86 of the Rules of Procedure.

58 In the second place, it should be noted that lodging a procedural document during proceedings before the Court with a view to modifying the application is equivalent to bringing an action for annulment by means of an application. Consequently, the settled case-law setting out the requirements as to the form and content of such an action applies by analogy. A statement of modification must, in particular, set out unambiguously and in a sufficiently clear and precise manner the subject matter of the proceedings, the essential matters of fact and law on which a case is based and the form of order sought so that the Court does not rule ultra petita or fail to rule on a plea in law (judgments of 20 September 2018, Spain v Commission , C‑114/17 P, EU:C:2018:753, paragraph 59, and of 16 June 2021, Lucaccioni v Commission , T‑316/19, EU:T:2021:367, paragraph 70).

59 Thus, while a lack of consistency in the statement of modification may contribute to making the action unclear, it cannot render the action inadmissible, even in part, if the essential matters of fact and law on which the form of order sought is based are set out clearly and precisely in summary form, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, thus enabling the defendant to safeguard its rights and the Court to decide the case (see, by analogy, judgment of 23 February 2022, United Parcel Service v Commission , T‑834/17, EU:T:2022:84, paragraph 26).

60 Moreover, it is apparent from the case-law that, while it is perfectly in order for modification of the application to be subject to certain formal requirements, such formal requirements do not apply for their own sake but are, on the contrary, intended to ensure the adversarial nature of proceedings and the sound administration of justice (judgment of 24 January 2019, Haswani v Council , C‑313/17 P, EU:C:2019:57, paragraph 35). In that regard, the case-law states that Article 86 of the Rules of Procedure must be interpreted in the light of its purpose, which is to pursue the objectives of due administration of justice and procedural economy, in that it allows the applicant, in the event of replacement of, or amendment to, the measure initially contested by another measure with the same subject matter, to continue the proceedings without being obliged to make a fresh application before the Courts of the European Union (see judgment of 6 March 2024, BSW – management company of ‘BMC’ holding v Council , T‑258/22, not published, EU:T:2024:150, paragraph 52 and the case-law cited). Article 86 of the Rules of Procedure is also intended to prevent the institution in question from being able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending its original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see, to that effect, judgments of 11 June 2009, Othman v Council and Commission , T‑318/01, EU:T:2009:187, paragraph 53, and of 28 September 2022, LAICO v Council , T‑627/20, not published, EU:T:2022:590, paragraph 39).

61 It is also apparent from the case-law that, as an exception to the principle of unalterability of proceedings, Article 86 of the Rules of Procedure must be interpreted strictly (judgment of 20 September 2018, Spain v Commission , C‑114/17 P, EU:C:2018:753, paragraph 54, and order of 10 June 2025, Hypo Vorarlberg Bank v SRB (2018 ex ante contributions) , T‑414/18, not published, paragraph 36). It allows the applicant to ‘modify’ its application ‘to take account of [the] new factor’ consisting of the replacement of, or amendment to, the measure initially contested and to submit, to that end, a ‘modified’ form of order sought and, where appropriate, ‘modified’ pleas in law and arguments. Thus, since that provision refers only to a ‘modification’ of the initial application, the purpose of such a modification is limited to the taking into account of new factors linked to the replacement of, or amendment to, the measure initially contested, namely, in particular, new factors set out in the measure replacing or amending the measure initially contested. Accordingly, Article 86 of the Rules of Procedure cannot be interpreted as meaning that the applicant may raise for the first time, in a statement of modification, any new plea in law even when the matters of fact and of law on which it is based were already known to the applicant at the time of lodging the application and they have not been amended in the measure replacing or amending the measure initially contested (order of 10 June 2025, Hypo Vorarlberg Bank v SRB (2018 ex ante contributions) , T‑414/18, not published, paragraph 37).

62 It follows that, in the present case, rejecting the statement of modification as inadmissible would be excessively formalistic in a way that would run counter to the pursuit of the objectives of due administration of justice and procedural economy underlying Article 86 of the Rules of Procedure. Although, as stated in paragraph 51 above, the statement of modification is inconsistent, that does not prevent Frontex from exercising its defence or the Court from carrying out its review, since the subject matter of the dispute, the form of order sought by the applicant and the essential matters on which the form of order sought is based are set out therein. It is apparent, in essence, from the statement of modification that, given that Frontex adopted the second contested decision after the action initiating proceedings was lodged, the applicant seeks, by means of that statement, to modify the form of order sought by it and its pleas in law with a view to seeking the annulment of the first contested decision and the second contested decision by which Frontex rejected its final tender and awarded the contract to the successful consortium. Furthermore, since the applicant does not raise any new pleas in law in its statement of modification, but merely modifies those which it had already put forward in the application, the principle of unalterability of proceedings is not called into question in the present case.

63 In the light of those factors, it must be held that the statement of modification is admissible. Accordingly, the second complaint in the plea of inadmissibility must be rejected.

64 It follows from the foregoing that the action must be regarded as seeking only the annulment of the second contested decision in so far as it replaced the first contested decision.

B. Substance

1. The claim for annulment

65 In the application, the applicant relies on two pleas in law, alleging, first, that Frontex failed to fulfil its obligation to state, in accordance with the second paragraph of Article 296 TFEU, the reasons for which it considered that the successful final tender was not abnormally low and rejected the applicant’s final tender and, second, that Frontex failed to fulfil its obligation to verify, in accordance with point 23.1 of Annex I to Regulation 2018/1046, whether the successful final tender was abnormally low.

66 In the statement of modification, the applicant states that, as regards the first plea, it is withdrawing its argument alleging that there is a calculation error in the first contested decision which vitiates the score for the award criterion ‘Building Architecture & Functionality’, in so far as that error was corrected by Frontex in the second contested decision. Furthermore, while stating that it continues to rely on its two pleas in law, it modifies, on the basis of Article 86(4)(b) of the Rules of Procedure, the arguments set out in the application.

67 In the light of the applicant’s written pleadings, the Court considers that the applicant is in fact relying on three pleas in law, alleging, first, that Frontex failed to fulfil its obligation to state to the requisite legal standard the reasons for which it considered that the successful final tender was not abnormally low and rejected the applicant’s final tender, second, that the statement of reasons provided by Frontex is inaccurate as regards the score obtained by the applicant’s final tender for the award criteria ‘Site Development’ and ‘Building Design & Program’ and, third, that Frontex failed to fulfil its obligation to verify whether the successful final tender was abnormally low.

(a) The first plea, alleging that Frontex failed to fulfil its obligation to state reasons

68 By its first plea, the applicant submits that Frontex failed to state to the requisite legal standard, in accordance with the second paragraph of Article 296 TFEU, the reasons for which it considered that the successful final tender was not abnormally low and rejected the applicant’s final tender.

69 As a preliminary point, it should be noted that, in accordance with the case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court with jurisdiction to exercise its power of review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts of the European Union, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged. In addition, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of concern within the meaning of the fourth subparagraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 27 November 2024, HSBC Holdings and Others v Commission , T‑561/21, EU:T:2024:869, paragraphs 103 and 104 (not published) and the case-law cited).

70 As regards, more specifically, the statement of reasons for decisions adopted by EU institutions, agencies and bodies in the context of a procedure for the award of a public contract, the wording of Article 170(2) and (3) of Regulation 2018/1046 is as follows:

‘2. The contracting authority shall notify all candidates or tenderers, whose requests to participate or tenders are rejected, of the grounds on which the decision was taken, as well as the duration of the standstill periods referred to in Articles 175(2) and 178(1).

…

3. The contracting authority shall inform each tenderer who is not in an exclusion situation referred to in Article 136(1), who is not rejected under Article 141, whose tender is compliant with the procurement documents and who makes a request in writing, of any of the following:

(a) the name of the tenderer, or tenderers in the case of a framework contract, to whom the contract is awarded and, except in the case of a specific contract under a framework contract with reopening of competition, the characteristics and relative advantages of the successful tender, the price paid or contract value, whichever is appropriate;

(b) the progress of negotiation and dialogue with tenderers.

However, the contracting authority may decide to withhold certain information where its release would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of economic operators or might distort fair competition between them.’

71 In addition, under point 31.2 of Annex I to Regulation 2018/1046:

‘The contracting authority shall communicate the information provided for in Article 170(3) as soon as possible and in any case within 15 days of receipt of a request in writing. When the contracting authority awards contracts on its own account, it shall use electronic means. The tenderer may also send the request by electronic means.’

72 It is apparent from the case-law that, with regard to unsuccessful tenderers, Article 170 of Regulation 2018/1046 and point 31 of Annex I thereto provide for reasoning in two stages. First, the contracting authority must inform all unsuccessful tenderers that their tender has been rejected and of the grounds for that rejection. Second, if an unsuccessful tenderer who is not in an exclusion situation and satisfies the selection criteria and makes a request in writing, the contracting authority is to communicate, as soon as possible and in any case within 15 days of receipt of that request, information on the characteristics and the advantages of the successful tender, the price paid or contract value and the name of the successful tenderer. That disclosure of reasons in two stages is consistent with the purpose of the obligation to state reasons which, as stated in paragraph 69 above, consists, on the one hand, in making the persons concerned aware of the reasons for the measure and, thereby, enabling them to defend their rights and, on the other, enabling the Courts of the European Union to exercise their power of review (see, to that effect, judgments of 8 July 2020, Securitec v Commission , T‑661/18, EU:T:2020:319, paragraph 40, and of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission , T‑546/20, EU:T:2021:846, paragraphs 38 to 40).

73 It is in that context that the two complaints put forward by the applicant in support of its first plea must be examined.

(1) The first complaint in the first plea, according to which Frontex did not state to the requisite legal standard the reasons for which it considered that the successful final tender was not abnormally low

74 By the first complaint in its first plea, the applicant submits that Frontex failed to state to the requisite legal standard, in accordance with the second paragraph of Article 296 TFEU, the reasons which led it to consider that the successful final tender was not abnormally low.

75 Frontex disputes that complaint.

76 As regards the scope of the contracting authority’s obligation to state reasons where it considers that the successful tender does not appear to be abnormally low, it is apparent from the case-law that, where an unsuccessful tenderer, who is not in an exclusion situation and satisfies the selection criteria, asks that contracting authority, in a written reasoned request, to set out the reasons why it did not consider the successful tender to be abnormally low, that authority is required to provide a detailed response (judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium , C‑101/22 P, EU:C:2023:396, paragraphs 80 and 81).

77 The contracting authority’s duty to justify, at the request of the unsuccessful tenderer, the reasons why the successful tender is not abnormally low enables compliance with Article 170(3) of Regulation 2018/1046, since such reasons provide the unsuccessful tenderer with important information regarding the characteristics and relative advantages of the successful tender (see judgment of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission , T‑546/20, EU:T:2021:846, paragraph 53 and the case-law cited).

78 Consequently, apart from in a situation in which the arguments put forward by the unsuccessful tenderer are irrelevant or devoid of any reasoning, the contracting authority is required to carry out a detailed analysis of the successful tender in order to determine that it is not in fact abnormally low and to inform the unsuccessful tenderer which expressly questioned the authority on that point of the broad outlines of that analysis (judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium , C‑101/22 P, EU:C:2023:396, paragraph 82).

79 It is apparent from the case-law that requiring the contracting authority to state the reasons why a tender was not considered to be abnormally low does not mean that it is obliged to disclose precise information on the technical and financial aspects of that tender, such as the prices offered or the resources that the successful tenderer proposes to use in order to provide the services that it offers (judgment of 10 September 2019, Trasys International and Axianseu – Digital Solutions v EASA , T‑741/17, EU:T:2019:572, paragraph 62).

80 It is in the light of those considerations that the seven arguments put forward by the applicant in support of its first complaint must be examined.

(i) The first argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as it did not communicate to the applicant the amount estimated by the successful consortium for the components of the technical installations

81 By its first argument, the applicant submits that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as it did not inform the applicant of the amount estimated by the successful consortium for the components of the technical installations, namely the electrical works, the data centre, the heating, ventilation and air conditioning installations and the utilities, but confined itself to stating that the overall price of those installations represented 35.64% of the price of the successful final tender.

82 Frontex disputes that argument.

83 It should be noted that, in the ‘Reply to Point no 3 of Warbud Letter’, Frontex stated that the evaluation committee had noticed that the price of the successful final tender was much lower than that of the applicant’s final tender, which had led it to assess prima facie whether the price was abnormally low. In that evaluation, that committee considered that the difference between the price of the applicant’s final tender and that of the successful final tender concerned, inter alia, the estimates made in respect of the technical installations. Whereas, in the successful final tender, the technical installations represented 35.64% of the total ‘price’, in the applicant’s final tender they represented 47.72% of the total cost. The evaluation committee considered that the estimate of the cost for the technical installations proposed by the successful consortium was consistent with the quantity surveyor’s estimate, according to which the cost for those installations should represent 34.92% of the total cost, and with that set out in the guides and studies at issue, which provided for a cost for technical installations of between 30% and 35% of the total cost.

84 In addition, in the email of 17 February 2025, Frontex contended that, in assessing whether the successful final tender was abnormally low, the evaluation committee did not rely solely on the quantity surveyor’s estimate and on the guides and studies at issue, but also took into account the difference between the price of the successful final tender, the price of the applicant’s final tender and the prices of the tenders submitted by the other tenderers allowed to participate in the second phase of the award procedure, as well as the usual market prices for that type of contract and the 2024 report. That report confirmed that the successful final tender was not abnormally low, since its price was in line with market prices. Following that examination, in so far as it considered that there was no evidence to suggest that the successful final tender was abnormally low, the evaluation committee ended its analysis.

85 It follows from the foregoing that, in accordance with the case-law cited in paragraphs 76 and 78 above, in the ‘Reply to Point no 3 of Warbud Letter’ and in the email of 17 February 2025, Frontex explained to the applicant, in detail, the broad outlines of the reasoning which led it to consider that the successful final tender was not abnormally low, since its price was consistent with market prices.

86 In that context, in accordance with the case-law cited in paragraph 79 above, it cannot be considered that Frontex was required to communicate to the applicant precise information regarding the estimate made by the successful consortium for the various components of the technical installations.

87 First of all, that information does not fall within the category of information which the contracting authority must communicate to the unsuccessful tenderer pursuant to Article 170(2) and (3) of Regulation 2018/1046, the wording of which is set out in paragraph 70 above.

88 Next, Article 170(3) of Regulation 2018/1046 provides that the contracting authority may decide to withhold certain information where its release would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of economic operators or might distort fair competition between them. It must be held that the communication to the applicant of detailed information concerning the estimate made by the successful consortium for the various components of the technical installations could prejudice the legitimate commercial interests of that consortium and, thus, fair competition between that consortium and the applicant.

89 Last, it is apparent from the case-law cited in paragraph 79 above that, in so far as the information concerning the various components of the technical installations relates to the technical and financial aspects of a tender, the contracting authority is not required to communicate that information to the unsuccessful tenderer.

90 Accordingly, the first argument in the first complaint must be rejected.

(ii) The second argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as it did not provide the applicant with any information as to whether the estimate made by the successful consortium for the technical installations is in line with the requirements of the award procedure

91 By its second argument, the applicant submits that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as it did not provide the applicant with information as to whether the estimate made by the successful consortium for the technical installations is in line with the requirements of the award procedure.

92 Frontex disputes that argument.

93 It should be recalled that, in the ‘Reply to Point no 3 of Warbud Letter’ and in the email of 17 February 2025, Frontex stated that the main difference between the price of the applicant’s final tender and that of the successful final tender concerned the estimates made for the technical installations. In evaluating the cost of the technical installations and thus assessing whether the price of the successful final tender was abnormally low, the evaluation committee took into account the difference between that price, the price of the applicant’s final tender and the prices of the tenders submitted by the other tenderers allowed to participate in the second phase of the award procedure, as well as the usual market prices for that type of works, the quantity surveyor’s estimate, the guides and studies at issue and the 2024 report.

94 Admittedly, in the ‘Reply to Point no 3 of Warbud Letter’ and in the email of 17 February 2025, Frontex did not expressly state that the cost of the technical installations proposed by the successful consortium was in line with the requirements of the award procedure.

95 However, it is apparent from the documents before the Court, and is not disputed, that the cost of the technical installations is one of the components of the price of the successful final tender and that the main difference between the price of the applicant’s final tender and that of the successful final tender concerns the estimates made for the technical installations.

96 Accordingly, since the statement of reasons thus listed all the factors taken into account by Frontex’s evaluation committee, namely those referred to in paragraph 93 above, which were known to the applicant, in order to assess whether the cost of the technical installations proposed by the successful consortium was in line with the requirements of the award procedure and with the usual market prices and since, as concluded in paragraph 85 above, Frontex stated, to the requisite legal standard, the reasons for which the successful final tender was not abnormally low, the second argument must be rejected.

(iii) The third argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as it did not provide the applicant with any information concerning the guides and studies at issue

97 By its third argument, the applicant claims that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as it did not provide the applicant with information concerning the guides and studies at issue.

98 Frontex disputes that argument.

99 In the first place, it should be borne in mind that the guides and studies at issue do not fall within the category of information which the contracting authority must communicate to the unsuccessful tenderer under Article 170(2) and (3) of Regulation 2018/1046.

100 In the second place, it should be noted that, in the email of 17 February 2025, Frontex stated that the guides and studies at issue were documents prepared by the European Construction Costs Network and by the Building Cost Information Service of the Royal Institution of Chartered Surveyors, as well as documents derived from RSMeans Construction Cost Data.

101 In the third place, it should be noted that, although, in the email of 17 February 2025, Frontex did not send the applicant the guides and studies at issue, it is common ground that they are documents that are easily accessible to professionals in the sector, including the applicant.

102 Consequently, the third argument must be rejected.

(iv) The fourth argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as it did not provide the applicant with any information concerning the content of the quantity surveyor’s estimate, the identity of the quantity surveyor or the methodology and documents used by the quantity surveyor

103 By its fourth argument, the applicant claims that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as it did not provide the applicant with information concerning the content of the quantity surveyor’s estimate, the identity of the quantity surveyor or the methodology and documents used by the quantity surveyor.

104 Frontex disputes that argument.

105 It should be noted that, admittedly, in the ‘Reply to Point no 3 of Warbud Letter’ and in the email of 17 February 2025, Frontex confined itself to stating that, according to the quantity surveyor’s estimate, the cost of the technical installations should represent 34.92% of the total cost.

106 However, it must be borne in mind that, first, the quantity surveyor’s estimate is only one of the factors which the evaluation committee took into account in assessing whether the successful final tender was abnormally low, the others being the difference between the price of that tender, the price of the applicant’s final tender and the prices of the tenders submitted by the other tenderers allowed to participate in the second phase of the award procedure, as well as the usual market prices for that type of contract, the guides and studies at issue and the 2024 report.

107 Second, in accordance with the case-law cited in paragraph 78 above, Frontex was only required to provide the applicant with the broad outlines of the reasoning which led it to consider that the successful final tender was not abnormally low.

108 Third, it is apparent from the case-law that the contracting authority is not required to provide the tenderer with the methodology that it had used as the basis for its analysis (judgment of 8 October 2025, NTT Data Belgique and Others v EIB , T‑161/24, not published, EU:T:2025:950, paragraph 29), the detailed summary of the way in which it carried out its analysis work (see, to that effect, judgment of 10 February 2021, Sophia Group v Parliament , T‑578/19, not published, EU:T:2021:77, paragraph 166) or a full copy of the evaluation report it has drawn up (see, to that effect, judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others , C‑376/16 P, EU:C:2018:299, paragraph 58 and the case-law cited).

109 In those circumstances, it must be held that Frontex did not fail to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU in confining itself to stating that, according to the quantity surveyor’s estimate, the cost of the technical installations should represent 34.92% of the total cost.

110 Consequently, the fourth argument must be rejected.

(v) The fifth argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as it did not specify the reason why the evaluation committee had stated that the cost of the technical installations proposed by the successful consortium represented 35.64% of the total ‘price’, whereas that proposed by the applicant corresponded to 47.72% of the total cost

111 By its fifth argument, the applicant claims that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as it did not specify the reason why the evaluation committee had indicated that the cost of the technical installations proposed by the successful consortium represented 35.64% of the total ‘price’, whereas the cost which the applicant had proposed corresponded to 47.72% of the total ‘cost’, not of the total ‘price’.

112 Frontex disputes that argument.

113 It should be noted that it is apparent from the ‘Reply to Point no 3 of Warbud Letter’ and from the email of 17 February 2025 that, in the procedure conducted by the evaluation committee to assess whether the successful final tender was abnormally low, the terms ‘price’ and ‘costs’ were used interchangeably. Thus, it is apparent from those documents that the evaluation committee noted that, because of a discrepancy in construction ‘costs’, the ‘price’ of the successful final tender was significantly lower than that of the applicant’s final tender, which had led it to assess prima facie whether it was an abnormally low ‘price’. In that evaluation, that committee considered that the difference between the ‘price’ of the applicant’s final tender and that of the successful final tender concerned, inter alia, the estimates made in respect of the technical installations. Whereas, in the successful final tender, the technical installations represented 35.64% of the total ‘price’, in the applicant’s final tender they were equivalent to 47.72% of the total ‘cost’. The evaluation committee considered that the estimate of the cost for the technical installations proposed by the successful consortium was consistent with the quantity surveyor’s estimate, according to which the ‘cost’ for those installations should represent 34.92% of the total ‘cost’, and with that set out in the guides and studies at issue, which provided for a ‘cost’ for technical installations of between 30% and 35% of the total ‘cost’.

114 It should also be noted that it is apparent from paragraphs 50 to 52, 54 and 99 of the application that, in relying on the ‘Reply to Point no 3 of Warbud Letter’ and on the email of 17 February 2025, the applicant understood the methodology used by Frontex to determine the cost of the technical installations. The applicant observes that, in the award procedure, Frontex defined the total cost for the design and construction of the permanent premises as the sum of the lump sum fee for the design and construction works, the energy and water related cost of the building and the maintenance cost of the building. The applicant claims that, although the evaluation committee stated that the cost of the technical installations proposed by the successful consortium was equivalent to 35.64% of the total ‘price’, whereas the cost which the applicant had proposed corresponded to 47.72% of the total cost, in reality, in both situations, that committee calculated the cost of the technical installations as a percentage of the lump sum fee for the design and construction works.

115 In that regard, it should be borne in mind that, in accordance with the case-law cited in paragraph 69 above, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of concern within the meaning of the fourth subparagraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

116 Moreover, according to the case-law, the reasons given for a decision are adequate if it was adopted in a context which was known to the person concerned which enables him or her to understand the scope of the measure concerning him or her (judgments of 11 June 2020, Commission and Slovak Republic v Dôvera zdravotná poist’ovňa , C‑262/18 P and C‑271/18 P, EU:C:2020:450, paragraph 67, and of 14 April 2021, RQ v Commission , T‑29/17 RENV, not published, EU:T:2021:188, paragraph 87).

117 In the light of those factors, it must be held that, in so far as the context in which the evaluation committee had determined the cost of the technical installations was known to the applicant, which enabled it to understand the methodology which that committee had used to determine that cost, it cannot be claimed that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU.

118 Consequently, the fifth argument must be rejected.

(vi) The sixth argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as, in order to rule out the existence of an abnormally low price in the successful final tender, it did not refer to the differences between the applicant’s final tender and the successful final tender other than those concerning the technical installations

119 By its sixth argument, the applicant submits that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as, in order to rule out the existence of an abnormally low price in the successful final tender, the evaluation committee only referred to the cost of the technical installations and did not indicate the other differences between the applicant’s final tender and the successful final tender.

120 Frontex disputes that argument.

121 It should be noted that, in the email of 17 February 2025, Frontex stated that, with the exception of the difference relating to the estimate for the technical installations, the differences between the applicant’s final tender and the successful final tender were minor.

122 It follows that, in order to rule out the existence of an abnormally low price in the successful final tender, the evaluation committee did not refer only to the estimates made by the applicant and by the successful consortium as regards the technical installations, but also stated that the other differences between the applicant’s final tender and the successful final tender were minor. Accordingly, the applicant’s argument is factually incorrect.

123 Consequently, the sixth argument must be rejected.

(vii) The seventh argument in the first complaint, according to which Frontex failed to fulfil its obligation to state reasons in so far as it did not provide the applicant with any information enabling it to assess the characteristics and relative advantages of the successful final tender

124 By its seventh argument, the applicant claims that Frontex failed to fulfil its obligation to state reasons under the second paragraph of Article 296 TFEU, in so far as it did not provide the applicant with detailed information on the reasons which led it to consider that the successful final tender was not abnormally low. According to the applicant, being provided with that information would have enabled it better to understand the characteristics and relative advantages of the successful final tender.

125 Frontex disputes that argument.

126 It should be noted that, according to the case-law, the contracting authority is not required to communicate to the unsuccessful tenderer, in respect of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of that tender and of the tender which it submitted (see, to that effect, judgments of 10 February 2021, Sophia Group v Parliament , T‑578/19, not published, EU:T:2021:77, paragraph 166, and of 14 June 2023, Instituto Cervantes v Commission , T‑376/21, EU:T:2023:331, paragraph 64).

127 In addition, as is apparent from the case-law cited in paragraph 77 above, requiring a contracting authority to justify, at the request of the unsuccessful tenderer, the reasons why the successful tender is not abnormally low enables compliance with Article 170(3) of Regulation 2018/1046, since such reasons provide the unsuccessful tenderer with important information regarding the characteristics and relative advantages of the successful tender.

128 In the present case, it is apparent from paragraph 85 above that Frontex explained to the applicant in detail the broad outlines of the reasoning which led it to consider that the successful final tender was not abnormally low and that, in accordance with the case-law cited in paragraph 126 above, it was not required to inform the applicant in detail of the characteristics and relative advantages of that tender.

129 Accordingly, since none of the arguments in the first complaint in the first plea can succeed, that complaint must be rejected in its entirety.

(2) The second complaint in the first plea, according to which Frontex failed to state to the requisite legal standard the reasons for the score obtained by the applicant’s final tender in respect of the award criterion ‘Sustainability’

130 By the second complaint in its first plea, the applicant submits that, as regards the award criterion ‘Sustainability’, in the ‘Reply to Point no 2 of Warbud Letter’, Frontex did not state to the requisite legal standard the reason why the applicant’s final tender had scored ‘sufficiently’ for the sub-criterion ‘Life cycle Global Warming Potential’ of the permanent premises and scored ‘poorly’ for the sub-criterion ‘Circularity’, as regards, inter alia, the design of the part of the tender relating to the plan for the deconstruction of the permanent premises.

131 Frontex disputes that complaint.

132 First, it is apparent from the ‘Reply to Point no 2 of Warbud Letter’ that, as regards the award criterion ‘Sustainability’, Frontex scored the applicant ‘sufficiently’ for the award sub-criterion ‘Life cycle Global Warming Potential’ of the permanent premises. In that regard, Frontex stated that, in its final tender, the applicant should have developed its analysis further with regard to the following concepts: the construction of nearly zero-energy buildings, the extension of building and component service lives and the design of buildings that can be easily adapted to future developments.

133 Second, as regards the award sub-criterion ‘Circularity’, Frontex scored the applicant ‘poorly’ in respect of the implementation of a plan for the deconstruction of the permanent premises. In that regard, Frontex stated that, in its final tender, the applicant should have provided a more detailed analysis of the following elements: the provision of independent and easily separable elements and parts, the design of accessible and sequentially reversible connections, the reduction in the number and complexity of the disassembly steps for the permanent premises, the provision of systems for adapting those premises to future changes in their functional needs and the use of compatible or homogeneous materials to facilitate separation and recycling.

134 It follows that, in accordance with the case-law cited in paragraph 69 above, Frontex stated to the requisite legal standard, under the second paragraph of Article 296 TFEU, the reasons which led it to score the applicant ‘sufficiently’ in respect of the award sub-criterion ‘Life cycle Global Warming Potential’ of the permanent premises and ‘poorly’ for the award sub-criterion ‘Circularity’.

135 Thus, the second complaint in the first plea must be rejected and, accordingly, that plea must be rejected in its entirety.

(b) The second plea, alleging that the statement of reasons provided by Frontex is inaccurate as regards the score obtained by the applicant’s final tender for the award criteria ‘Site Development’ and ‘Building Design & Program’

136 By its second plea, the applicant claims that the statement of reasons provided by Frontex, in the ‘Reply to Point no 2 of Warbud Letter’, as regards the score obtained by the applicant’s final tender for the award criteria ‘Site Development’ and ‘Building Design & Program’ is vitiated by several inaccuracies, in so far as several elements contained in that tender were not correctly evaluated.

137 First of all, the applicant notes that, in the ‘Reply to Point no 2 of Warbud Letter’, Frontex stated that the applicant had not provided a detailed description of the materials planned for the construction of the permanent premises. The applicant maintains that it included that description in the annexes to its final tender.

138 Next, the applicant states that, in the ‘Reply to Point no 2 of Warbud Letter’, Frontex considered that the applicant had not provided for a separation of traffic flows for staff members, visitors and persons responsible for deliveries who had access to the permanent premises. The applicant maintains that, in its final tender, it had duly taken those aspects into account.

139 In addition, the applicant notes that, in the ‘Reply to Point no 2 of Warbud Letter’, Frontex contended that the applicant had not provided for sufficient daylight access in some areas of the lower floors of the permanent premises. The applicant claims that, during the discussions which it had with Frontex as part of the award procedure, it provided Frontex with detailed analyses concerning the light exposure of the offices.

140 Last, the applicant notes that, in the ‘Reply to Point no 2 of Warbud Letter’, Frontex stated that the applicant had not drawn up a sufficient plan for the circulation of staff members between the administrative and operational areas of the permanent premises. The applicant submits that, in its final tender, it provided for multiple areas to facilitate internal circulation and interactions among Frontex staff members.

141 Frontex disputes those arguments.

142 It should be noted that, according to the case-law, the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 10 September 2024, Commission v Ireland and Others , C‑465/20 P, EU:C:2024:724, paragraph 389, and of 4 October 2024, Aeris Invest v Commission and SRB , C‑535/22 P, EU:C:2024:819, paragraph 113). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will affect the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 10 September 2024, Commission v Ireland and Others , C‑465/20 P, EU:C:2024:724, paragraph 390 and the case-law cited). Thus, the complaint alleging an absence of reasons or inadequacy of the reasons stated must be distinguished from an objection based on the inaccuracy of the grounds of the decision. The latter falls within the assessment of the substantive legality of the contested decision and not of essential procedural requirements and cannot therefore constitute an infringement of Article 296 TFEU (judgment of 19 June 2015, Italy v Commission , T‑358/11, EU:T:2015:394, paragraph 88).

143 In the present case, it is apparent from paragraphs 136 to 140 above that, in relying on the inaccuracy of the statement of reasons provided by Frontex in the ‘Reply to Point no 2 of Warbud Letter’, the applicant does not allege a failure to fulfil the obligation to state reasons, but seeks, in reality, to challenge the merits of that reply.

144 In that regard, it should be noted that, according to the case-law, the contracting authority has a broad discretion with regard to the factors to be taken into account when deciding to award a contract following an invitation to tender, and the review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers. The contracting authority has that broad discretion throughout the procurement procedure (see, to that effect, judgments of 19 March 2010, Evropaïki Dynamiki v Commission , T‑50/05, EU:T:2010:101, paragraph 148, and of 6 October 2021, Global Translation Solutions v Parliament , T‑7/20, not published, EU:T:2021:649, paragraph 34 and the case-law cited).

145 Thus, in order to establish that, in the assessment of the facts, the contracting authority committed an error so obvious as to justify annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see judgment of 7 June 2017, Blaž Jamnik and Blaž v Parliament , T‑726/15, EU:T:2017:376, paragraph 38 and the case-law cited).

146 In the present case, it is apparent from the ‘Reply to Point no 2 of Warbud Letter’ that, in order to evaluate the applicant’s final tender for the award criteria ‘Site Development’ and ‘Building Design & Program’, Frontex took into account, inter alia, the fact that: (i) the applicant had provided a general description of the materials used which, although not very detailed, had a satisfactory visual format; (ii) the applicant had not provided for a separation of traffic flows for staff members, visitors and deliveries, which might create operational issues negatively affecting the circulation within the permanent premises; (iii) the office layout envisaged by the applicant gave rise to concerns that there would not be sufficient natural light in some areas of the lower floors of the permanent premises, which could harm visual comfort, and (iv) the applicant could have further developed the plan for vertical internal circulation between different parts of the permanent premises and could have simplified circulation in the administrative area as regards, inter alia, the positioning of the central staircases leading to the common area on the ground floor.

147 Admittedly, the applicant claims in general terms that, in its final tender, it had included a detailed description of the materials planned for the construction of the permanent premises and it had provided for a separation of traffic flows for staff members, visitors and persons responsible for deliveries who had access to the permanent premises, as well as multiple areas aimed at facilitating internal circulation and interactions among Frontex staff members. It also submits that, during its discussions with Frontex as part of the award procedure, it provided Frontex with detailed analyses concerning the light exposure of the offices.

148 However, the applicant has not adduced any specific evidence capable, in accordance with the case-law cited in paragraph 144 above, of rendering implausible the assessment made by Frontex in the ‘Reply to Point no 2 of Warbud Letter’ as regards the score obtained by the applicant’s final tender for the award criteria ‘Site Development’ and ‘Building Design & Program’.

149 Thus, since the applicant has not demonstrated that Frontex’s assessment is not genuine or valid, in accordance with the case-law cited in paragraph 145 above, the second plea must be rejected.

(c) The third plea, alleging that Frontex failed to fulfil its obligation to verify whether the successful final tender was abnormally low

150 By its third plea, the applicant claims that Frontex did not properly verify, in accordance with point 23.1 of Annex I to Regulation 2018/1046, whether the successful final tender was abnormally low.

151 The applicant puts forward three complaints in support of its third plea.

152 As a preliminary point, it should be noted that the concept of an ‘abnormally low tender’ is not defined in Regulation 2018/1046. However, point 23 of Annex I to that regulation provides as follows:

‘23.1 If, for a given contract, the price or costs proposed in a tender appears to be abnormally low, the contracting authority shall request in writing details of the constituent elements of the price or costs which it considers relevant and shall give the tenderer the opportunity to present its observations.

…

23.2 The contracting authority shall only reject the tender where the evidence supplied does not satisfactorily account for the low price or costs proposed.

The contracting authority shall reject the tender where it has established that the tender is abnormally low because it does not comply with applicable obligations in the fields of environmental, social and labour law.’

153 According to the case-law, the question whether a tender is abnormally low must be assessed by reference to the composition of the tender and the services at issue (see judgment of 10 September 2019, Trasys International and Axianseu – Digital Solutions v EASA , T‑741/17, EU:T:2019:572, paragraph 40 and the case-law cited). Thus, evidence capable of arousing suspicion that a tender might be abnormally low may exist, inter alia, if it appears to be uncertain, first, that a tender complies with the legislation of the country in which the services should be provided, in terms of the remuneration of the staff, contributions to the social security scheme, compliance with health and safety at work standards and sales at a loss, and, second, that the price proposed incorporates all the costs involved in the technical aspects of the tender. The same applies where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price (see judgment of 16 May 2019, Transtec v Commission , T‑228/18, EU:T:2019:336, paragraph 72 (not published) and the case-law cited).

154 However, it is apparent from the case-law that the mere fact that the price of the successful tenderer’s tender is lower than that of the tender of another tenderer is not in itself capable of showing that the successful tenderer’s tender was abnormally low. A tender may be cheaper than another without being abnormally low (see judgment of 26 January 2017, TV1 v Commission , T‑700/14, not published, EU:T:2017:35, paragraph 58 and the case-law cited).

155 The case-law also states that the assessment, by the contracting authority, of whether a tender submitted is abnormally low, under point 23.1 of Annex I to Regulation 2018/1046, is made in two stages.

156 In the first stage, the contracting authority determines whether the price or costs proposed in a tender ‘appear’ to be abnormally low. The use of the verb ‘appear’ requires the contracting authority to carry out a prima facie assessment of the abnormally low nature of the tender and not to conduct, on its own initiative, a detailed analysis of the composition of each tender in order to establish that it is not an abnormally low tender. Thus, in the first stage, the contracting authority need only determine whether the tenders submitted contain evidence likely to arouse suspicion that they might be abnormally low. If there is no such evidence in the tenders submitted and they therefore do not appear to be abnormally low, the contracting authority may continue the evaluation and the award procedure for the contract. If there is evidence which arouses suspicion that a tender might be abnormally low, the contracting authority must, in the second stage, check the constituent elements of the tender in order to satisfy itself that it is not abnormally low. Where the contracting authority carries out that check, it must give the tenderer which submitted that tender the opportunity to set out the reasons why it considers that its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected (see, to that effect, judgments of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium , C‑101/22 P, EU:C:2023:396, paragraphs 71 to 74, and of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission , T‑546/20, EU:T:2021:846, paragraphs 48 and 49).

(1) The first complaint in the third plea, relating to Frontex’s breach of the procedure for verifying the existence of an abnormally low tender

157 By the first complaint in its third plea, the applicant submits that Frontex breached the procedure for verifying the existence of an abnormally low tender provided for in point 23.1 of Annex I to Regulation 2018/1046. In that regard, the applicant states that, although the evaluation committee assessed prima facie whether the price of the successful final tender was abnormally low, it did not follow the verification procedure by requesting in writing that the successful consortium provide it with details of the constituent elements of the price of its final tender.

158 Frontex disputes that complaint.

159 It should be recalled that, as stated in paragraph 152 above, point 23 of Annex I to Regulation 2018/1046 provides that if, for a given contract, the price or costs proposed in the tender appear to be abnormally low, the contracting authority is to request in writing details of the constituent elements of the price or costs which it considers relevant and give the tenderer the opportunity to submit its observations.

160 It should also be recalled that, according to the case-law cited in paragraph 156 above, point 23 of Annex I to Regulation 2018/1046 imposes a two-stage obligation on the contracting authority. In the first stage, the contracting authority determines whether the price or costs proposed in a tender ‘appear’ to be abnormally low. Thus, in the first stage, the contracting authority need only determine, in the context of a prima facie analysis, whether the tenders submitted contain evidence likely to arouse suspicion that they might be abnormally low. If there is evidence which arouses suspicion that a tender might be abnormally low, the contracting authority must, in the second stage, check the constituent elements of the tender in order to satisfy itself that it is not abnormally low. Where the contracting authority carries out that check, it must give the tenderer which submitted that tender the opportunity to set out the reasons why it considers that its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected.

161 In the present case, it is apparent from the ‘Reply to Point no 3 of Warbud Letter’ and from the email of 17 February 2025 that the evaluation committee assessed prima facie whether the successful final tender was abnormally low. In order to do so, it took into account the difference between the price of the successful final tender, the price of the applicant’s final tender and the prices of the tenders submitted by the other tenderers allowed to participate in the second phase of the award procedure, as well as the usual market prices for that type of contract. In addition, the evaluation committee relied on the quantity surveyor’s estimate, on the guides and studies at issue and on the 2024 report in order to assess whether the price of the successful final tender was in line with the market. Following that examination, the evaluation committee concluded that there was no evidence to support the conclusion that the successful final tender was abnormally low and ended its prima facie evaluation.

162 It follows that, since the evaluation committee took the view that the successful final tender did not contain any evidence likely to arouse suspicion that it might be abnormally low, it was not required, in accordance with the case-law cited in paragraph 156 above, to carry out the second phase of the verification procedure established by point 23 of Annex I to Regulation 2018/1046 by requesting that the successful consortium state the reasons why it considered that its tender was not abnormally low.

163 The first complaint in the third plea must therefore be rejected.

(2) The second complaint in the third plea, relating to an error made by Frontex in its choice of the calculation methodology used to determine the cost of the technical installations

164 By the second complaint in its third plea, the applicant claims that Frontex erred in the choice of the calculation methodology that it used to determine the cost of the technical installations. In that regard, the applicant recalls that, in the ‘Reply to Point no 3 of Warbud Letter’ and in the email of 17 February 2025, the evaluation committee stated that the cost of the technical installations which the applicant had proposed represented 47.72% of the total cost and that that proposed by the successful consortium amounted to 35.65% of the total ‘price’. The applicant submits that, although that committee related the cost of the technical installations which the applicant had proposed to the total cost and that which the successful consortium had proposed to the total price, in reality, in those two situations, it calculated the cost of the technical installations as a percentage of the lump sum fee for the design and construction works which, on the basis of the documents relating to the award procedure, constitutes one of the components of the total cost for the design and construction of the permanent premises.

165 In the light of those factors, the applicant submits that, as confirmed by a private expert opinion which the applicant itself commissioned (‘the expert opinion at issue’), Frontex made an error by relating the cost of the technical installations not to the total cost for the design and construction of the permanent premises, but to the lump sum fee for the design and construction works. According to the applicant, Frontex did not take into account the fact that the technical installations which it had proposed allowed for savings in energy, water and maintenance costs in the permanent premises. Thus, it submits that, even though the implementation of those installations would have entailed additional costs and would have led to an increase in the lump sum fee for the design and construction works, their use would have reduced the costs related to energy and water and the costs of maintaining the building and, therefore, the total cost for the design and construction of the permanent premises. It follows, according to the applicant, that, in so far as the methodology used by Frontex to determine the cost of the technical installations was incorrect, Frontex could not properly assess whether the price of the successful final tender was abnormally low.

166 Frontex disputes that complaint.

167 It should be noted that, in accordance with the case-law cited in paragraphs 144 and 145 above, the contracting authority has a broad discretion throughout the procurement procedure, including as regards the classification of a tender as abnormally low, and the review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers. Thus, in order to establish that, in the assessment of the facts, the contracting authority committed an error so obvious as to justify annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue.

168 In addition, the case-law states that it is for the contracting authority to determine the method of calculating an anomaly threshold constituting an abnormally low tender or to set its value, provided that an objective and non-discriminatory method is used (judgments of 19 October 2017, Agriconsulting Europe v Commission , C‑198/16 P, EU:C:2017:784, paragraph 55, and of 15 September 2022, Veridos , C‑669/20, EU:C:2022:684, paragraph 34).

169 In that context, it is necessary to assess whether the calculation methodology used by Frontex to determine the cost of the technical installations was objective and non-discriminatory and whether, on the basis of that methodology, Frontex made a manifest error of assessment.

170 In that regard, it should be noted that it is apparent from the file, and is not disputed, that, although Frontex’s evaluation committee stated that the cost of the technical installations proposed by the successful consortium represented 35.64% of the total ‘price’, whereas that proposed by the applicant corresponded to 47.72% of the total cost, in reality, in both situations, it calculated the cost of the technical installations as a percentage of the lump sum fee for the design and construction works which, as stated in paragraph 114 above, constitutes one of the components of the total cost for the design and construction of the permanent premises defined in the award procedure.

171 It follows that Frontex used the same methodology for calculating the cost of the technical installations for the applicant and for the successful consortium, without any discrimination. Moreover, that methodology was objective, since it was based on a clear and verifiable element, namely the lump sum fee for the design and construction works estimated by the applicant and by the successful consortium in their final tenders. In addition, it must be held that, in order to rule out the existence of an abnormally low price in the successful final tender, Frontex did not merely find that there was a difference between the cost of the technical installations proposed by the applicant and that proposed by the successful consortium, but also took into account the difference between the price of the successful final tender, the price of the applicant’s final tender and the prices of the tenders submitted by the other tenderers allowed to participate in the second phase of the award procedure, as well as the usual market prices for that type of contract, the quantity surveyor’s estimate, the guides and studies at issue and the 2024 report.

172 In that context, it must be concluded that Frontex did not make a manifest error of assessment in determining the cost of the technical installations.

173 That conclusion cannot be called into question by taking into account the expert opinion at issue, according to which the calculation methodology used by Frontex was not justified.

174 According to the case-law, given that there is no legislation at EU level governing the concept of proof, the Courts of the European Union have laid down a principle of unfettered production of evidence or freedom as to the form of evidence adduced, which is to be interpreted as the right to rely, in order to prove a particular fact, on any form of evidence, such as oral testimony, documentary evidence and confessions. Correspondingly, the Courts of the European Union have laid down a principle of the unfettered evaluation of evidence, according to which the determination of reliability or, in other words, the probative value of an item of evidence is a matter for those Courts. In order to establish the probative value of a document, it is necessary to take account of several factors, such as the origin of the document, the circumstances in which it was drawn up, its addressee and its content, and to ask whether, according to those factors, the information contained in it appears sound and reliable. In that context, the Courts of the European Union have already taken the view that an analysis produced by the applicant could not be regarded as a neutral and independent expert report, in so far as it was requested and paid for by the applicant and drawn up on the basis of information provided by the applicant, without the accuracy or relevance of that information being subject to any kind of independent assessment. The Courts of the European Union have also already had occasion to state that an expert report could only be deemed of any evidential value as regards its objective content and that a mere unsubstantiated statement in such a document was not, in itself, conclusive (see judgment of 2 July 2019, Mahmoudian v Council , T‑406/15, EU:T:2019:468, paragraphs 136 to 139 and the case-law cited).

175 Thus, in so far as the expert opinion at issue was commissioned by the applicant and was drawn up on the basis of information provided by the applicant, it must be held that, without an objective and independent assessment of its content by a third party, the conclusions of that opinion are not of any probative value. Furthermore, even if the content of the expert opinion at issue were conclusive, it should be noted that that opinion seeks to demonstrate that the calculation methodology used by Frontex to determine the cost of the technical installations is not justified, but it does not take a position on whether, in accordance with the case-law cited in paragraph 168 above, it is an objective and non-discriminatory method.

176 Accordingly, the second complaint in the third plea must be rejected.

(3) The third complaint in the third plea, relating to an error made by Frontex in its choice of documents used to assess whether the successful final tender was abnormally low

177 By the third complaint in its third plea, the applicant submits that Frontex made an error in the choice of documents which it used to assess whether the successful final tender was abnormally low, in so far as the evaluation committee relied solely on the quantity surveyor’s estimate and on the guides and studies at issue, which were not relevant in the present case.

178 First, as regards the quantity surveyor’s estimate, the applicant states that it is apparent from the ‘Reply to Point no 3 of Warbud Letter’ that that estimate was drawn up before the launch of the tendering procedure. However, in the email of 17 February 2025, Frontex stated that the quantity surveyor’s estimate had been drawn up prior to the outcome of the tendering procedure. Thus, the applicant submits that there is uncertainty as to the date on which the independent quantity surveyor’s estimate was drawn up, namely before the launch or before the outcome of the tendering procedure. According to the applicant, that is not an inconsequential difference, since the tendering procedure was launched on 12 July 2022 and concluded approximately two years later, namely on 23 October 2024, when Frontex notified the applicant of the first contested decision. Furthermore, the applicant claims that, if it were established that the quantity surveyor’s estimate was drawn up before the launch of the tendering procedure, that would mean that Frontex could not use it to assess whether the price of the successful final tender was abnormally low, since the quantity surveyor would not have been able to take into account the technical requirements agreed between Frontex and the tenderers as part of the award procedure, which differed from those which had been communicated to them before the launch of that procedure.

179 Second, as regards the guides and studies at issue, the applicant submits that they refer to standard office buildings and do not take into account the specific features of the design and construction of the permanent premises, which are characterised in particular by increased security and sustainability requirements. Thus, Frontex could not have relied on the guides and studies at issue in order to determine whether the successful final tender was abnormally low.

180 Frontex disputes that complaint.

181 First of all, it should be recalled that the contracting authority has a broad discretion throughout the procurement procedure, including as regards the choice of documents which it may use to classify a tender as abnormally low.

182 Next, as regards the quantity surveyor’s estimate, it should be noted that, admittedly, in the ‘Reply to Point no 3 of Warbud Letter’, Frontex stated that it had been drawn up before the launch of the tendering procedure, whereas, in the email of 17 February 2025, it contended that it had been drawn up prior to the outcome of the tendering procedure. However, in the defence, Frontex clarified that point by stating that the quantity surveyor’s estimate had been drawn up before the launch of the tendering procedure. That fact does not render the results of that assessment irrelevant or implausible. The purpose of the quantity surveyor’s estimate was not to establish, on the basis of documents defined in the award procedure, whether the successful final tender was abnormally low, but to give Frontex an external perspective enabling it to estimate, on the basis of market analysis, the standard cost of the technical installations. Moreover, in order to assess whether the successful final tender was abnormally low, Frontex did not rely solely on the quantity surveyor’s estimate, but also took into account the difference between the price of that tender, the price of the applicant’s final tender and the prices of the tenders submitted by the other tenderers allowed to participate in the second phase of the award procedure, as well as the usual market prices for that type of contract, the guides and studies at issue and the 2024 report. Thus, it cannot be considered that the quantity surveyor’s estimate was the only document on which Frontex’s evaluation committee relied in order to assess whether the successful final tender was abnormally low.

183 Last, as regards the guides and studies at issue, it should be noted that their purpose was not to assess whether the successful final tender was abnormally low, but to provide Frontex with an overview of the analyses carried out by several industry stakeholders with regard to the cost of technical installations in construction projects. It follows that the guides and studies at issue were relevant in the present case, in so far as they enabled Frontex’s evaluation committee to compare the cost of the technical installations proposed by the successful tenderer in the successful final tender with that proposed by other industry stakeholders. Moreover, it must be held that, as stated in paragraph 182 above, those guides and studies were only one of the factors taken into account by Frontex, which, in the absence of specific provisions governing the choice of its reference documents, enjoyed a broad discretion in identifying the documents to be used in assessing whether the successful final tender was abnormally low.

184 In the light of those factors, the third complaint in the third plea must be rejected and, accordingly, that plea must be rejected in its entirety.

2. The measures of inquiry requested by the applicant

185 The applicant requests the Court to instruct Frontex, by way of a measure of inquiry, to produce all the documents used by the evaluation committee in the process of evaluating the tenders submitted in the award procedure.

186 According to the case-law, it is for the Court to appraise the usefulness of measures of inquiry, within the meaning of Article 88 et seq. of the Rules of Procedure, for the purpose of resolving the dispute (see judgments of 24 October 2018, Nova v Commission , T‑299/15, not published, EU:T:2018:713, paragraph 194 and the case-law cited, and of 14 June 2023, Ryanair and Airport Marketing Services v Commission , T‑79/21, EU:T:2023:334, paragraph 344 (not published) and the case-law cited).

187 In the present case, the Court considers that it has sufficient information from the documents in the file to rule on the dispute without there being any need to order the measure of inquiry requested by the applicant.

188 That request must therefore be rejected.

189 Accordingly, in the light of all the foregoing considerations, the action must be dismissed in its entirety.

V. Costs

190 In the order of 11 April 2025, Warbud v Frontex (T‑658/24 R, not published, EU:T:2025:411), the costs were reserved.

191 It is therefore for the Court to rule, in the present judgment, on the costs relating to the proceedings brought before it, including the proceedings for interim measures.

192 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

193 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by Frontex, including those relating to the proceedings for interim measures.

On those grounds,

THE GENERAL COURT (Tenth Chamber)

hereby:

1. Dismisses the action;

2. Orders Warbud S.A. to pay the costs, including those relating to the proceedings for interim measures.

Delivered in open court in Luxembourg on 2 September 2026.

* Language of the case: English.