Tenders normally need to be clarified as part of the evaluation process, how do conduct your tender clarification and are you compliant?
When making a tender clarification the principle of fair and equal treatment kicks in.
In Case C‑599/10 – SAG ELV Slovensko a.s., and others v Úrad pre verejné obstarávanie, the ECJ set out the principles to be applied when dealing with an imprecise tender:
“To enable the contracting authority to require a tenderer whose tender it regards as imprecise or as failing to meet the technical requirements of the tender specifications to provide clarification in that regard would be to run the risk of making the contracting authority appear to have negotiated with the tenderer on a confidential basis, in the event that that tenderer was finally successful, to the detriment of the other tenderers and in breach of the principle of equal treatment.
What needs to be considered
The principle of equal treatment or the obligation of transparency, that, in such a situation, the contracting authority is obliged to contact the tenderers concerned- to avoid doubt any questions posed should be circulated to all bidders
Make sure that the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender..
The contracting authority, must treat the various tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome.
A request for clarification of a tender may be made only after the contracting authority has looked at all the tenders
Furthermore, that request must be sent in an equivalent manner to all undertakings which are in the same situation, unless there is an objectively verifiable ground capable of justifying different treatment of the tenderers in that regard, in particular where the tender must, in any event, in the light of other factors, be rejected.
In addition, that request must relate to all sections of the tender which are imprecise or which do not meet the technical requirements of the tender specifications, without the contracting authority being entitled to reject a tender because of the lack of clarity of a part thereof which was not covered in that request” (paragraphs 37-44).
For more information, see Legal updates, ECJ judgment on ability of contracting authority to seek clarification of tenders (www.practicallaw.com/4-518-7378) and Northern Ireland High Court ruling on clarity of selection criterion and missing information in tender (www.practicallaw.com/9-518-7658).
Clarifications and responses on clarifications should always be in writing and made through one channel, i.e. tender portal
It is a good idea to record the clarification questions and answers in a log which is regularly circulated to all bidders. Statements made in clarification questions and answers which relate to the performance of the contract should be incorporated into the final contract to ensure they are binding.
PCR 2015: right to request bidder to correct tender
Regulation 56(4) of the PCR 2015 permits contracting authorities to request bidders to submit, supplement, clarify or complete relevant information or documentation where it appears to be:
Incomplete.
Erroneous.
Missing.
Such requests must comply with the principles of equal treatment and transparency.
Contracting authorities are not obliged to do so and may still prefer to reject a bid as non-compliant, rather than risk a claim that they had not treated all bidders equally when allowing one or more of the bidders to clarify a tender or submit missing information.
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