A recent case before the European Court of Justice has underlined the need for contracting authorities to carefully check contract specifications before publishing tenders.
In SC Enterprise Focused Solutions Srl v Spitalul Judetean de Urgenta Alba lulia, a Romanian supplier, EFS, brought proceedings against a hospital where its bid for the supply of computing systems and equipment had been rejected. The hospital had published tender documents including a detailed technical specification which, amongst other things, provided that the central unit of the computing system must have a processor equivalent to at least an Intel Core i5 3.2 GHz.
By the time the hospital came to evaluate the bids, it realised that the particular processor specified was no longer in production or supported by Intel. The evaluation team therefore consulted Intel’s website and identified a newer next generation processor which also had a speed of 3.2 GHz. It went on to evaluate the bids by reference to this processor, rather than the one identified in the specification.
EFS’s bid included an AMD Quad Core processor with a standard speed of 3.6 GHz. This was a superior processor to the one included in the original specification, but inferior to the next generation processor by reference to which the hospital was now evaluating the bids. As such, its bid was rejected for failing to meet this mandatory requirement.
The Romanian court referred the case to the European Court of Justice, asking it to determine whether a contracting authority may modify a published specification to use a comparable product, where the product specified is no longer available,.
The value of the contract was below the threshold for the full public procurement regime to apply. However, public authorities are still required to comply with general European Treaty principles of equal treatment and transparency even when awarding below-threshold contracts. The ECJ found that contracting authorities would not be able to comply with their transparency obligations if they were able to disregard conditions they had themselves imposed. The hospital was not therefore permitted to amend the award criteria during the course of the tender, and its rejection of EFS’s tender was unlawful. The fact that the product to which the specification referred was no longer available was irrelevant.
The best solution for the hospital in this case would of course have been to thoroughly check its specification before publishing the tender, ensuring that all of the technical requirements were up to date. However, having found itself in the position that it did, the hospital should have evaluated the bids by reference to the original product specified (which was still widely used, even if no longer supported by the manufacturer), rather than attempting to select an alternative product.