Clear view
A recent court judgment has provided some welcome clarity to the areas of capacity to challenge, selection criteria and debrief feedback around tendering procedures, writes Martin Vincent.
European Dynamics had submitted a tender, as part of a consortium with two other companies. At the selection stage of the evaluation of the tenders, four tenders, including that of the European Dynamics consortium, were rejected on the ground that they failed to satisfy selection criteria relating to technical and financial capacity. European Dynamics was provided with information about the successful tenderer, the scores awarded and a comparison between its bid and that of the successful tenderer. European Dynamics launched proceedings.
The questions that arose were:
Could just one consortium member commence proceedings?
Yes. The consortium is only a loose association and a single member of the consortium is entitled to challenge the decision.
Was the authority obliged to clarify the tenderer’s bid if it was vague?
No. Tender responses which do not contain essential required information may be eliminated, but the authority may ask tenders to supply additional material or to clarify supporting document submitted in connection with the selection criteria. In addition, if after the tenders have been opened, some clarification is required in connection with a tender, or if obvious clerical errors in the tender must be corrected, the contracting authority may contact the tenderer, although such contact may not lead to any alteration of the terms of the tender.
However, the possibility of seeking clarification from tenderers becomes an obligation where there has been a "particularly obvious" material error in the tender which could be clarified quickly and easily, although not just where the offer is ambiguous.
Here, European Dynamics did not refer to any manifest material error in the drafting of its tender. It referred only to a possible "error of interpretation" by the evaluation committee, but did not claim that there was ambiguity that could have been removed easily and simply. Therefore, the general principles of law did not require the Commission to make use of its power to request clarification.
Is there a duty to investigate an alleged fraud by successful bidder?
Yes. As soon as an authority is informed of alleged grave professional misconduct by a tenderer it must verify that information and, if that grave misconduct is established to the requisite legal standard, to exclude the tenderer in question from the relevant procedure.
Here, European Dynamics claimed that the successful tenderer appeared to have copied its tender. The court found that the authority had investigated the allegation and decided it was unfounded.
Do you have to explicitly state reasons for the decision?
Not always. European Dynamics claimed that the Commission failed to provide sufficient reasons for rejecting two of the CVs provided with its bid. It also claimed that the Commission failed to provide details of a verification exercise conducted following receipt of objections by European Dynamics.
The Commission explained, albeit briefly, that the persons to whom the CVs belonged did not reach the level of relevant professional experience required. It was possible from this response to identify which parts of the professional experience could be regarded as problematic. The Court found that, having provided grounds for its rejection decision, the Commission had not been obliged to respond further to the objections raised by European Dynamics.
This case adds valuable detail to the duties imposed on public sector buyers by the EU regime. Consortiums of bidders coming together to produce a tender now have welcome flexibility in their ability to challenge decisions and in addition the case emphasises the duty on the bidders to get their submission right first time.
Martin Vincent is a partner at Weightmans. He can be contacted on 0161 214 0553 or by This email address is being protected from spambots. You need JavaScript enabled to view it..
