The Spring Edition of the International Public Procurement & Projects Team at Bird & Bird’s main article concerns a common challenge that most, if not all, who conduct public tender procedures have encountered. A tenderer submits an application for participation or a tender, where some information or documentation is erroneous or outright missing. This can have dire consequences for tenderers as it possibly results in the contracting authority rejecting the application or tender as non-compliant since the specified requirements aren’t met.
Contact between the contracting authority and tenderers after the contract notice has been published is restricted in a public tender procedure.
This is due to the ban on negotiations in public procurement procedures which exists to ensure that the fundamental procurement principles of equal treatment, transparency, and proportionality are being observed, as a contracting authority is not allowed to negotiate or talk to only one tenderer while excluding others simply out of preference. Some degree of contact between the contracting authority and the concerned economic operators is, however, permitted in the case of candidates or tenderers submitting applications or tenders that are erroneous, incomplete or are missing documentation. We will explore this topic in the following.
2.1 Subsequent demands for information regarding the application or tender
The Public Procurement Directive 2014/24/EU of 26 February 2014 (“the Directive”), article 56(3) states the following:
“Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.” (our underlining)
The provision is a codification of case law from the Court of Justice of the European Union (CJEU), specifically C-336/12, Ministeriet for Forskning, Innovation og Videregående Uddannelser mod Manova A/S (“Manova”). The case is a preliminary ruling regarding the interpretation of the principle of equal treatment related to the request for subsequent information about a company’s documentation for fulfilment of set selection criteria after the deadline for receipt of tenders. This case will be elaborated in part 4.1 below.
According to article 56(3) it is possible for contracting authorities to make rectifications to an application or a tender unless national law implementing the Directive states otherwise. This leaves room for every member state to have its own version and nuances in the implementation.
This freedom of implementation complicates the matter especially for economic operators seeking to participate in procurement processes in several different countries. This is elaborated in part 3.
The same provision is incorporated in the Utilities Directive (2014/25/EU), Article 76(4).
In preamble 84 to the Directive difficulties for economic operators in procurement processes is addressed, though not in a cross-country perspective:
“Many economic operators, and not least SMEs, find that a major obstacle to their participation in public procurement consists in administrative burdens deriving from the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria. Limiting such requirements, for example through use of a European Single Procurement Document (ESPD) consisting of an updated self-declaration, could result in considerable simplification for the benefit of both contracting authorities and economic operators.”
As such, the ESPD was implemented to lighten the burden for the suppliers and avoid or at least lessen the administrative tasks that comes from obtaining documentation for compliance with the contracting authority’s criteria.
What has happened instead is that the ESPD has created a variety of technical pitfalls for SMEs who must now tread lightly when participating in procurement procedures.
This is a part of the reason why it’s important that contracting authorities have a possibility to correct some of the errors that economic operators will inevitably make.
2.2 Subsequent demands for information regarding documentation
The Directive also contains a provision specifically regarding the supplementation or clarification of the documentation regarding the information stated in the European Single Procurement Document (ESPD).
Article 59(4) states:
“A contracting authority may ask tenderers and candidates at any moment during the procedure to submit all or part of the supporting documents where this is necessary to ensure the proper conduct of the procedure.
Before awarding the contract, the contracting authority shall, except in respect of contracts based on framework agreements where such contracts are concluded in accordance with Article 33(3) or point (a) of Article 33(4), require the tenderer to which it has decided to award the contract to submit up-to-date supporting documents in accordance with Article 60 and, where appropriate, Article 62. The contracting authority may invite economic operators to supplement or clarify the certificates received pursuant to Articles 60 and 62.”
In this part an overview of the national implementation of article 56(3) and 59(4) in various countries is provided.
All countries have implemented provisions in accordance with the Directive and as it we will show most countries have done this in quite a similar fashion.
Several provisions of the Belgian Act on public procurements of 17 June 2016 govern contacts between tenderers and contracting authorities during a tender procedure.
Article 66, § 3, of the Belgian Act provides the following general rule: where the information or documents to be submitted by the candidate or tenderer are or appear to be incomplete or incorrect or where certain documents are missing, the contracting authority may request the candidate or tenderer concerned to submit, complete, clarify or specify the information or documents concerned within an appropriate time limit. This article also states a boundary: such requests from the contracting authority must comply with the principles of equal treatment and transparency and, if the open or restricted procedure is used, that they may not give rise to a change in the essential elements of the tender.
Article 73, § 3, of the Belgian Act, concerns the use and the submission of the European Single Procurement Document. The article allows contracting authorities to ask candidates and tenderers, at any time during the procedure, to provide all or part of the supporting documents, if this is necessary to ensure the smooth running of the procedure.
A tenderer is not allowed to proactively (i.e., without any question from the contracting authority) correct missing, erroneous or incomplete information and/or documents after the submission of its offer. This would be considered a modification of the submitted offer which is strictly prohibited.
The above-mentioned rules are applicable to all public procurements. Belgium has implemented their provisions in accordance with the Directive.
In the Danish Public Procurement Act the Directive’s Article 56(3) has been implemented as two separate provisions governing the contact between tenderers and contracting authorities regarding subsequent requests for information.
Section 151(4) of the Danish Public Procurement Act governs the possibility for contracting authorities to request the economic operators concerned to supplement or clarify documentation on suitability or fulfilment of selection criteria.
Section 159(5) of the Danish Public Procurement Act governs the possibility for contracting authorities to request the economic operators concerned to supplement, clarify or complete relevant information or documentation if the information or documentation that the economic operator submitted as part of their application or tender is incomplete or erroneous.
In the preparatory works for Section 159(5) it is stated that a request for rectification must be made in compliance with the principles of equal treatment and transparency and cannot result in an advantage in either time or knowledge for the economic operator by allowing submission of relevant information or documentation after the time limit for receipt of tenders.
This request can be made after the deadline for applications or tenders, and as seen in Danish case law it is not unlikely that contracting authorities will recall an award decision to request subsequent information if they have been informed of errors or lacking documentation that they overlooked.
Danish legislation has also gone a step further than the Directive. Section 159(6) of the Danish Public Procurement Act states that a contracting authority is obligated to reject an application or tender, if the tender documents state that failure to comply with a requirement will result in exclusion, and the application or tender does not comply with that requirement. The preparatory works references para 40 of the Manova-case: “The tender documents do not state that failure to comply with the requirement will result in exclusion”.
It is important to note that the Danish Public Procurement Act only warrants the possibility of requests for subsequent information and in most cases do not oblige contracting authorities to attempt to rectify errors made by an economic operator.
The rules are applicable to all public procurements.
The Act on Public Procurement and Concession Contracts includes some provisions governing contacts between tenderers and contracting authorities during a procurement procedure.
According to section 104 of the Act on Public Procurement and Concession Contracts, the contracting entity may ask the tenderer or candidate to supply, add, clarify or supplement missing or defective information or documents within a time limit. The contracting entity may, for example, request the tenderer to add a missing signature or complete missing information regarding the validity of the offer. Similarly, the tenderer may be requested to correct an obvious pricing error such as wrong currency or punctuation error, appearing elsewhere in the offer. However, the contracting entity may not request the tenderer to clarify, amend or correct the offer significantly in a way that could lead to obvious change in tenderer’s position. The provision applies after the offer has been submitted but before the delivery of the award decision.
The Act on Public Procurement and Concession Contracts does not allow tenderer to proactively correct information.
The rules are applicable to all public procurements. Finland has implemented their provisions in accordance with the Directive.
In Germany, following the submission of the bid, it is possible for the contracting authorities to request additional incomplete or incorrect company-related or performance-related documents, see section 56 (2) of the German Regulation on the Award of Public Contracts or to clarify ambiguities under Section 15 (5). However, both may only be carried out under consideration of certain requirements.
Missing, incomplete or incorrect company-related documents, in particular self-declarations, information, certificates, or other verifications, can be subsequently submitted, completed, or corrected, or missing or incomplete performance-related documents can be subsequently submitted or completed. However, the request for performance-related documents relating to the economic evaluation based on the award criteria is excluded.
A tenderer’s proactive correction of missing, erroneous or incomplete information and/or documents after the submission of the offer is not possible after the submission of the tender.
The rules are applicable to all public procurements. Germany has implemented their provisions in accordance with the Directive.
In case of submission of missing, erroneous or incomplete documents, the Italian Public Procurement Code provides a specific procedure to follow, i.e., soccorso istruttorio (Article 83(9), of the Legislative Decree of 18 April 2016, No. 50), that can be used only to cure case of missing, erroneous or incomplete documents with exception of the economic or technical offer.
From 1 July 2023, the new Italian Public Procurement Code will come into force (Legislative Decree 31 March 2023 No. 36), the procedure for amend missing, erroneous or incomplete documents is provided by Article 101.
Article 101(1) and (2), of Legislative Decree 31 March 2023 No. 36 provides that the contracting authority shall assign a time limit of not less than five days and not more than ten days to the tenderer to correct the missing, erroneous or incomplete information and/or documents after the submission of its offer. If the tenderer does not provide the information and/or the documents required, the contracting authority excludes the tenderer from the tender procedure. The same provision is also provided by Article 83(9), of Legislative Decree 18 April 2016, No. 50.
Article 101(4) provides that the soccorso istruttorio procedure can also – unlike the regulation in the other countries - be initiated by the tenderer. In particular it is provided that the economic operator can require the rectification of a material error in the technical or economic offer of which he has become aware after the deadline for their submission. This is possible respecting the following conditions: the rectification can occur only until the day set for the offers opening; the rectification does not lead the submission of a new offer, or its substantial modification.
The rules are applicable to all public procurements. Italy has gone a bit further in their implementation than other countries. The time limit of no less than five days and not more than ten days withing which the tenderer must correct errors is not found in either the Directive or any of the other countries’ legislation explored in this article.
The Polish Act of 11 September 2019, The Public Procurement Law (PPL) allows documents (including subjective means of proof) and statements (including ESPD) to be submitted/completed and corrected at the request of the contracting authority.
The PPL provides for several types of requests (the most important ones):
1) Obligatory request by the contracting authority if the documents (including subjective means of proof) or statements (including ESPD) submitted are incomplete, incorrect, or missing; the request must be precise and single; the documents or declarations cannot be used to change the content of the tender or to confirm that the selection criteria have been met.
2) Voluntary request for the submission of valid subjective means of proof (at any stage of the procedure) when it is necessary to ensure the proper conduct of the procedure.
3) Voluntary request by the contracting authority to submit updated subjective means of proof when there are reasonable grounds to believe that previously submitted means are no longer valid.
In addition, the contracting authority may (during the examination and evaluation of tenders) request the contractor to specify, clarify and improve the content of tenders and to provide additional information, but it is not permitted to make substantial changes to the content of tenders and to the requirements contained in the specification or the terms of reference.
The provisions of the PPL are not consistent on whether a tenderer is allowed to proactively correct information. On one hand, the act does not prohibit self-supplementing information/documents. On the other hand, regarding the evidence in question, the PPL stipulates that it must be supplemented at the request of the contracting authority. This in an implementation in accordance with the Directive.
3.7 The Netherlands
Under the Netherlands’ public procurement rules a contracting authority may ask a tenderer for clarification about the bid or regarding the tenderer, following the submission of the bid. However, this may not lead to a de facto new bid. Also, the contracting authority may only ask for clarifications after it received all bids. It must also pay particular attention to the principle of equality.
A tenderer cannot proactively correct missing, erroneous or incomplete…
Sep 22 2023
Sep 22 2023