Issue under Review
In a tender for a public works, service or supply contract once a tender has been submitted what is permitted under Directive 2004/18/EC by way of clarification of that tender submission.
Summary of Judgement
The European Court of Justice has recently handed down its decision on a referral from a Polish Court on the tricky question of what is allowed by way of post tender clarifications. The Judgment relates to the interpretation of the European Directive (2004/18/EC) (which were implemented in England & Wales as the Public Contracts Regulations 2006). It is also a useful piece of clarification for the operation of the Public Contracts Regulations 2015, as the principles of equal treatment and fairness between bidders flows across both sets of regulations.
The contracting authority ran an open procedure for the purchase and supply of IT equipment. The Contracts were split into lots and the lot in question was to acquire a system for both an administrative department and medical department of a hospital. As part of the tender each bidder had to prove that it had performed at least two contracts supplying, installing, configuring and implementing an integrated IT system across both departments of the hospital (with a minimum number of beds and a minimum financial value). Specific pieces of supporting information were requested in order to prove such an experience.
Esaprojekt and Konsultant Komputer were both bidders in this lot. The contract was awarded to Konsultant Komputer on the basis that it submitted the most economically advantageous bid. This was immediately challenged by Esaprojekt in the Polish Court on the basis that Konsultant Komputer’s bid was based on incorrect information and did not meet the conditions set out in the tender. The Polish Court ordered that the original award was cancelled and that Konsultant Komputers should provide further information to justify its submission.
The contracting authority then requested that Konsultant Komputer provide the additional information, which it did. To satisfy the requirements about showing its previous experience Konsultant Komputers provided, amongst other things,
The contracting authority went ahead and awarded the contract to Konsultant Komputer. Once again, Esaprojekt challenged the decision.
The referral to the ECJ included a number of questions. Those most relevant to the issue of clarifications can be summarised as follows
So what level of level of clarification can be requested after a bid has been submitted. The ECJ confirmed that
In this case the ECJ found that the information provided (which was not referenced or included in the original tender) went much further than merely clarifying statements made or correcting obvious errors. It was in effect a “substantive and significant amendment of the initial bid”, which is more akin to the submission of a new tender. The contracting authority was found therefore to have unduly favoured Konsulting Komputers. They therefore sent the matters back to the Polish Court for them to determine what orders they should make in the context of the claim brought by Esaprojekt. It went on to say that if a contract could not be split one economic operator could not rely on the experience of another to meet the required levels of experience.
So in summary
This is a helpful clarification though it is all still a question of degree. If you are a contracting authority it is important to have a clear audit trail showing that you are merely requesting clarification of information already contained within a bid and not assisting one particular bidder to perfect its submission and thus unduly favouring that bidder over the others.
If you as an unsuccessful bidder consider that a contracting authority has supported the successful bidder in perfecting its bid, you should take action swiftly to obtain relevant information to support that and further advice can be provided on this by my colleagues in the dispute resolution department.