Issue under Review
Whether in a public works, service or supply contract a bidding consortium must be allowed to amend its bid following tender submission where one key criteria applicable to that consortium had changed.
Summary of the Judgement
A national law does not have to allow a bidding consortium to amend its tender submission if the circumstances in that submission alter after submission, such that the bidding consortium no longer meets the relevant criteria to tender.
The Advocate General has recently looked at whether a bidding consortium could amend its bid post tender submission, but prior to contract award.
The Advocate General examined the issue and paid particular attention to the timing of the loss of capacity. The Advocate General did not consider the position which would occur where the loss of capacity occurred after award as that did not happen in this particular case. He made it clear that
This second point was based on his view that his focus should be the 2004 Directive as the procurement process in question was commenced under that Directive (from which the 2006 Public Contracts Regulations 2006 were transposed). In coming to his decision, the Advocate General referred to the ability of a contracting authority, or at the request of the tenderer to clarify the proposal in such a way as to genuinely clarify part of the tender or to correct obvious clerical errors. He took the view that in this case substitution of a third party with the relevant capabilities was significantly more than mere clarification.
The Advocate General referred to the recent case of Esaprojekt (see my article on Perfecting an Imperfect Bid, Part 1) and agreed with the rationale in that case.
The complainant tried to
In conclusion, he confirmed that the 2004 Directive did not prevent a national authority excluding from a tender process a tendering body that has relied on the capacities of another entity where that entity subsequently loses the required capacities.
Tenderers should therefore beware and ensure that if they rely on the experience and capacity of a third party (including a member of a bidding consortium) in their submission that they have undertaken the required level of due diligence to ensure that that capacity is solidly underpinned and is not likely to be lost during the process.