Clarifications and Late Tenders

View Case

Region: England and Wales

Decision to reject a late tender was held to be proportionate - where the tenderer mistakenly did not include all of the tender in the initial upload (it omitted case studies); was precluded from sending a second upload in time by the system; and emailed in the remainder of the tender 28 minutes after the deadline, although the materials submitted had in fact been finalised before the deadline.

Richards J

Decision to reject a late tender was held to be proportionate where the tenderer mistakenly did not include all of the tender in the initial upload (it omitted case studies); was precluded from sending a second upload in time by the system; and emailed in the remainder of the tender 28 minutes after the deadline, although the materials submitted had in fact been finalised before the deadline.

“66. Fundamentally, Devon CC relies on the simple proposition that a procurement process requires a deadline for the submission of tenders and that a deadline is a deadline. The ITT could not have been clearer on the requirement for a single upload and submission before the deadline, and the claimant’s witnesses readily accepted that they knew this was the requirement. In addition, there are clear statements of policy and practice in Devon CC’s code of business conduct that late tenders are not considered. True it is that the deadline was extended for three hours to accommodate a particular tenderer, but the extension of the deadline was agreed before the expiry of the existing deadline, it was caused by an event outside the control of the tenderer in question, it applied to all tenderers and was communicated to them all, and complete submissions had to be made by the new deadline.

67. As well as the deadline, the other key elements of submitting tenders, such as the requirement for a single submission and the lack of provision for changes to submitted tenders, were clear and well understood by the claimants, as their witnesses’ evidence made clear. Fairness to all tenderers, as well as equal treatment and transparency, required that these key features should be observed.

68. There may be circumstances where proportionality will, exceptionally, require the acceptance of the late submission of the whole or significant portions of a tender, most obviously where, as noted by Professor Arrowsmith, it results from fault on the part of the procuring authority. But in general, even if there is discretion to accept late submissions, there is no requirement to do so, particularly where, as here, it results from a fault on the part of the tenderer. In addition to the considerations already mentioned, the particular facts on which the claimant relies to characterise its case as exceptional would require investigation and determination by Devon CC and I do not see that it was required to undertake those tasks. In my judgment, the decision of Devon CC to reject the claimant’s tender was well within the margin of discretion given to contracting authorities.

69. Accordingly I do not consider that Devon CC’s rejection of the claimant’s tender was unlawful on any of the grounds advanced by it and I dismiss the action.”

View Case

Region: England and Wales

Contracting authority was entitled to accept two documents that were submitted late

See also under Incumbency Advantage

Contracting authority permitted to accept two later documents, one which was not a mandatory part of the bid and the other which was a correction to something submitted as part of the tender

304. The thrust of the case-law, in my view, is that, as contemplated by Regulation 56 (4), there is a limited extent to which a contracting authority can obtain clarifications or supplementary or otherwise missing information once the bid has been submitted. However, cases like Klaipedos have put something of a gloss on the equivalent provision in the Public Contracts Directive which suggests that this power cannot extend, in effect, to permit the tenderer to provide out of time a document which had to be submitted as part of the tender. Even here, however, the position may not be quite so rigid, given the decision of the European Court in Manova.

306. [What] is entirely clear is that all of these cases were dealing with where there was a missing or incomplete required bid document and, for the most part, an important one at that. They were not dealing with the case of a non-mandatory document.

307. In the light of my findings below, it is not necessary for me to deal conclusively with the question of the precise scope of Regulation 56 (4).

331. [The] March Clarification Response was not a document required as part of the bid…

345. [The] core point that the uptime document was part of the required bid documents and UL permitted an amended version of it to be submitted late. However, in my judgment, this did not mean that the bid was itself non-compliant or that UL had no power to accept the amended document.

346. First, all parts of the compliant bid were submitted on time. So this was not a case where, absent some action on the part of the contracting authority, the bid could have been rejected. Compare Denmark, Leadbitter and Slovensko above.

347. Second, this was in truth a correction but not, in my view, going to some important aspect of the bid documents notwithstanding Bromcom’s attempt now to characterise it as such. I consider that UL had the power to receive the correction under Regulation 56 (4), or indeed under Regulation 30 (17). I appreciate that these provisions refer to cases where it is the contracting authority which raises a point of clarification or about a missing document or incomplete information. However, applying a purposive approach, these must surely also cover a case where the contracting authority is alerted to an error which it would then ask to be corrected. In effect, that is what happened here, save that the process was shortened by Arbor which simply provided the correction itself.

348. In my judgment, it would be absurd to suggest that a contracting authority had no power whatsoever to receive a correction of any kind once the final bid had gone in. Indeed, I would take that view, even absent provisions like Regulations 56 (4) and 30 (17). That absurdity would be all the more obvious where the correction on its face, made the tenderers position worse not better. Yet further, it seems to me that in such circumstances, the tenderer would be obliged to notify the contracting authority of the error so that there was no risk of the assessment proceeding on a false basis.

349. Finally, a point was made here that UL had reserved to itself an express power to disqualify for a late or non-compliant bid. Even if it had such a power, I do not accept that this would alter the position or that it was obliged to exercise it. But in fact, the express power in Section 4 relied upon by Bromcom is irrelevant since it only operates in the case of a breach of that section – see paragraphs 316-317 above.

350. For all those reasons, UL was entitled to accept the corrected uptime document, in its discretion. The exercise of that discretion cannot be said to be unlawful here.”

View Case

Region: England and Wales

Irrational and disproportionate for contracting authority not to exercise its discretion to seek clarification of bid

Due to clerical errors, Optima priced three line items above the maximum prices set by the underlying framework. Even though the errors were inconsequential, the contracting authority, DWP, excluded the bid as non-compliant, on the basis that the ITT required exclusion of bids which included line items above the maximum prices. Overturning the High Court, the Court of Appeal found that the ITT did not require exclusion where prices above the maximum were submitted and also held that DWP wrongly failed to exercise its discretion to seek clarification.

On Mandatory Exclusion and Interpretation of the ITT

“29. The starting point must be paragraph 2.2 of Attachment 1. That was in these terms:

“2.2 The contract will be for 3 years with an option to extend for a further 1 year and will commence in May 2022.

The maximum contract value is governed by the CCS Framework Occupational Health, Employee Assistance Programmes and Eye Care Services RM6182 Lot 1, any bids for any service line submitted to the Framework by invited bidders in excess of this will be discounted.”

…

33. The rules of any public procurement competition must be drawn up in a “clear, precise and unequivocal manner” so that tenderers can be “completely sure” of how they are going to be applied: see Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49 at [15], citing Commission v The Netherlands (C-368/10) [2013] All ER (EC) 804. Although disputes as to the meaning of a provision in the ItT are, in one sense, a matter of construction, the issue is not what the ItT meant, but whether its meaning would be clear to any RWIND tenderer: see [27] of Healthcare at Home. Lord Reed there made clear that, whilst evidence may be necessary a) to enable the court to put itself into the position of the RWIND tenderer (such as evidence about technical terms), and b) about the context in which the document has to be construed, the question could not be determined by such evidence, because it depended on the application of a legal test. It was, he said, suitable for objective determination.

34. In Clinton (t/a Oriel Training Services) v Department for Employment and Learning and Anr [2012] NIQB 2, the High Court of Northern Ireland set aside a decision to exclude a tender because the phraseology of the tender requirement “gave rise to an unacceptable degree of doubt and uncertainty” [40]. That decision was upheld on appeal ([2012] NICA 48) where it was held at [35] that if a criterion was going to be fatal at the outset to the whole tender, then it “was one in respect of which the principles of clarity, fairness and equality of treatment demanded particular clarity and transparency” [35].

35. If a part of an ItT is going to be relied on as providing for disqualification on the happening of a particular act or omission, the ItT “must clearly and transparently set that out”: see Capita Business Services Ltd v The Common Services Agency for the Scottish Health Service [2023] Scot CSOH 9 at [7].

…

36. I am in no doubt that, when read in its context, paragraph 2.2 of Attachment 1 of the ItT (paragraph 29 above) did not contain a mandatory exclusion provision, and that no RWIND tenderer would have come to any such conclusion.

37. The first reason for that conclusion is because it is not what the paragraph says. There is no reference to exclusion or disqualification. If that had been the intention of the ItT at paragraph 2.2, then it would have been perfectly easy to make that plain. After all, the provisions noted in paragraphs 30 and 31 above, taken from other parts of the ItT, expressly warn about the possibility of exclusion on the happening of particular acts or omissions. There is no such reference in paragraph 2.2.

38. Secondly, the key word in paragraph 2.2 is “discounted”. It is, I think, common ground that that can have one of two very different meanings. It can mean discounted as in “reduced”, and it can mean discounted as in “excluded” or “disqualified”. But here, not only are the words “excluded” and “disqualified” used elsewhere in the ItT (which points away from that interpretation of “discounted”), but also “discounts” (meaning “reductions”) were expressly provided for: see paragraph 32 above. In other words, in the context of the ItT as a whole, the obvious meaning of “discounted” was “reduced”, not “excluded” or “disqualified”. I note that, in their internal document of 3 May 2023, in which they seek to justify the exclusion of Optima (paragraph 97b) below), that is precisely how DWP themselves use the word “discounted.”

Distinction between Late Tenders and Clarifications

“57. Failure to comply with a deadline gives rise to relatively straightforward principles, as set out in Leadbitter. The present appeal is a different sort of case, concerned with requests for clarification, a process which is expressly permitted by the PCR 2015.”

On the Authorities on Clarifications

82. I consider that the authorities demonstrate that there are three stages to consider when addressing whether or not, in the particular circumstances of any given case, a contracting authority has the discretion to seek clarification, when that discretion becomes a duty, and what the permissible limits are to any response to a request for clarification.

Stage One

83. The first stage arises only where the error or ambiguity is obvious to the contracting authority and is material to the outcome of the competition. That will be rare, which explains why any duty to seek clarification will only arise in exceptional cases (Tideland, SAG, Archus at [37]). Thus the claim in Adia failed at this first hurdle because the court found that the error was not particularly obvious. Moreover, as Judge Waksman stressed in Harrow Solicitors, the only question is whether the error or ambiguity was obvious to the contracting authority: it is not a question of the error or ambiguity being “objectively verifiable”.

84. All of the cases stress that the error or ambiguity must be “serious” and “manifest” (Adia); “obvious” (SAG); “simple” (Tideland, Antwerpse). The error or ambiguity must also be “material” (SAG at [40], Hersi at [17d)]) or “significant” (Antwerpse at [65]): it must be relevant to the “outcome” of the tender process (see Archus at [32]). If the error or ambiguity is immaterial or irrelevant to the final outcome of the competition, no further action is necessary.

Stage Two

85. The second stage presupposes that there is an obvious and material error or ambiguity. The contracting authority must then consider whether clarification should or must be sought. The authority has a discretion (“may” is the word used in Regulation 56(4)) and it can only ever be the factual circumstances of any given case that would turn that discretion into an obligation (see Antwerpse at [56] and [65] and Harrow Solicitors at [30](3)(b)). An obligation to seek clarification has been said to arise “where the terms of the tender itself and the surrounding circumstances known to [the contracting authority] indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved” (Tideland at [37])^[5]. In Archus at [29] it was said to arise “where it is clear that they [the details of a tender] require clarification or where it is a question of the correction of obvious clerical errors”.

86. Speaking for myself, I consider that the broader test in Archus is to be preferred: if a request for clarification is necessary to fulfil the purposes of public procurement and the PCR 2015 (see paragraphs 59-62 above), the formulation of the test in Tideland may be too restrictive, in particular because of the second-guessing it appears to require on the part of the contracting authority. But, as I explain, that difference of emphasis does not affect the outcome of this appeal (see in particular paragraph 121 below).

87. At this second stage, a contracting authority will only be considering whether or not to seek clarification. They must therefore take the least onerous option: as Antwerpse makes plain at [57], that will usually be to seek clarification rather than to exclude the tender altogether. The option of seeking clarification may, in the right circumstances, avoid the stark clash of principles described by Blake J in Hoole (paragraph 76 above).

88. A contracting authority should not spend too much time second guessing what the answer to any request for clarification might be. Although the authorities suggest that the contracting authority should have a pretty good idea of what the answer is (after all, that is what makes the error or ambiguity obvious in the first place), over-much speculation should be discouraged: Hersi at [16]. The contracting authority can only properly consider what the clarification demonstrates, and whether it is legitimate to consider the answer at all, once that answer has been sought and received.

Stage Three

89. The third stage is concerned with the limited room for manoeuvre that a tenderer has when answering any request for clarification. A tenderer cannot use the mechanism of clarification to put in a new bid (SAG) or make substantial amendments to the existing bid (Archus). It is important to understand what is meant by these requirements, neither of which is to be applied on a literal or strict basis. The correction of an error will usually, if not inevitably, result in something which is in a strict or literal sense “new”, as the document contains something which was not there before. Moreover, as the authorities show, a change worth several hundreds of thousands of pounds was not regarded as a substantial amendment or a new bid (Siemens) when, on an overly literal view, it was both.

90. Much will depend on the nature, scope and extent of the obvious material error or ambiguity that is being corrected. The provision of new information which affects the price is not of itself impermissible (see Antwerpse, Siemens). That approach is justified because, on the analysis in Harrow Solicitors, it might be said that the new information is not a change at all, because objectively the bid did not contain the relevant information in the first place. On the other hand, I think Mr Suterwalla is plainly right to say that the mechanism of clarification cannot be used to allow the tenderer to ‘have another go’: that would destroy the need for proper and fair discipline in the tender process.

91. The ultimate purpose of the rules relating to public procurement, as set out in paragraphs 59-62 above, is the need for healthy and fair competition and to permit the proper evaluation of the tenders. Common sense is therefore required when applying the rules to achieve those ends: experienced evaluators working for contracting authorities should know when a response to a request for clarification is a simple adjustment of the kind they generally expected, and when it is an attempt to have another go. The latter is a new bid or a substantial change to the original bid. What is to be avoided is a strict and over-literal approach which may lead to the exclusion of the best tender for no objectively justifiable reason (see Antwerpse at [65]).”

 

View Case

Region: England and Wales

A contracting authority will usually only be able to waive compliance with a requirement of the tender where the failure is one of form, is trivial and the rules entitled the contracting authority to waiver non-compliance

“879. The principle of proportionality may have originated as a general EU law principle, but it also applies to domestic law too. The principle can be explained in summary as requiring a proper relationship between the action taken, and the objective to be achieved. It is the opposite of the principle of “zero tolerance”. The principle of proportionality is woven into both the substantive and adjectival law. It is central, for example, within this jurisdiction to the procedural reform contained in the Woolf reforms of 1999 and more recent procedural reforms. However, in a procurement competition, the objectives to be achieved are compliance with the legal obligations of transparency and equal treatment, and compliance with the rules of the competition. The action under consideration in this case would be disqualification in certain circumstances. In my judgment there is a proportionate relationship between that action and the objectives to be achieved.

880. The principle of proportionality generally does not assist the NDA for a number of reasons. In my judgment, it would not have been disproportionate to have disqualified a bidder from the competition for failure to satisfy a threshold Requirement. Firstly, these were stated as being of “critical importance” by the NDA in the SORR itself. Indeed, some – such as Requirement 306.5.1(j) – were stated as being “High Priority” Requirements. It was for that reason that they were made threshold Requirements. Disqualifying a bidder for failing such a Requirement could not be said to be disproportionate.

881. Secondly, CFP’s alleged failings on the threshold Requirements were not sufficiently minor that the NDA would have been entitled to ignore them, or waive their non-compliance, on the grounds that they had no impact upon either the content of the tender submission, or the degree of confidence on the part of the SMEs that the tender submission was compliant with the rules in the SORR. Disqualifying a bid in those circumstances could not be said to be a disproportionate result. They were potentially (depending upon my findings in sections C2 to C6) failures in the specific content of the CFP submission.

882. Thirdly, even if I am wrong about that, and even it were permissible for the NDA to waive such failures, on those Requirements where there was a score to be awarded (rather than a simple Pass/Fail) CFP should not have been given a score by the NDA as though the Requirement had been passed, if it had not. This is because where a Requirement was given a score, that mark (when adjusted for weighting) was to count towards the overall percentage outcome of the competition. In my judgment, CFP was not entitled to be marked as though, say, a particular Requirement merited a 3, or a 5, when in reality and in accordance with the SORR, the bid only merited a 1. The proper course would have been to mark that Requirement correctly (in this example a score of 1) yet waive the “below threshold” consequences. That would also be the transparent course. I consider this a compelling point that affects six of the Requirements challenged by Energy Solutions which attracted a score that would count towards the total. Increasing the score artificially to one above Threshold, to avoid having to face the consequences of a below Threshold score, cannot properly be described as a waiver at all, in my judgment. It is a disguise.

883. Fourthly, in the Leadbitter case, paragraph [60] of the judgment shows that reliance was placed by both parties on Professor Arrowsmith in The Law of Public and Utilities Procurement (2^nd edition 2005) which was then the current edition. In her views in paragraph 7.94 of that edition, Professor Arrowsmith’s conclusions were to the effect that “breaches of formalities” would not create “any significant inequity between tenderers” and that the general principle should be that procuring entities have a right to waive non-compliance or to allow corrections. However, she drew a distinction with what she termed “fundamental formalities” set out by the procuring entity, in respect of which, as well as “for fundamental requirements of the specifications and conditions”, strict compliance was probably required as a result of the equal treatment principle.

884. The more recent 3^rd edition (2014) of Professor Arrowsmith’s book in paragraph 7-157 debates the notion of “fundamental requirement” and suggests that a requirement, whether substantive or procedural, would be considered fundamental if the need to comply with it might have deterred other tenderers, or where waiving the requirement would give rise to a significant risk of unequal treatment. She also suggests that there should be a presumption that contracting authorities have a right to waive non-compliance (as well as to allow corrections) in the case of “non-conformity with merely procedural requirements”, with the presumption capable of rebuttal when there is evidence of impact on the authority or a significant advantage to the tenderer; where the need to comply with the requirement might have deterred other tenderers; or where significant risks of abuse exist. With respect to Professor Arrowsmith, in my judgment that appears to go too far. I do not accept that there is such a presumption. Even if there were, that presumption could be rebutted where (as here) the rules themselves state that disqualification is mandatory. The express rules should always take precedence over such a presumption, even if there were one.

885. Further, the test is not, nor in my judgment should it be, that waiver of a requirement is permissible unless it gives rise to a significant risk of unequal treatment. Leadbitter demonstrates this, in my view. In that case the 26 minute period after the deadline had passed before the case studies were lodged could not, in reality, have given that tenderer the ability to perform more work on the tender than those who had lodged their tenders within the time limit. There was therefore no (or very limited) risk of abuse or collusion. Further, there would have been negligible impact upon the Council by reason of the very slight delay in lodging the case studies.

886. A further passage in the 3^rd edition at paragraph 7-283 characterises Tideland as being a case concerned with an issue of conformity rather than the merits of the tender. I agree with that characterisation, which is a different way of differentiating form and substance. That does not apply to the issues before the court concerning the CFP tender in this case, which almost all concern substance. The only exception to this is one element of the challenge to Requirement 401.5.1.

887. Additionally, I do not see how the application of the principle of proportionality could, in any circumstances, permit the NDA to avoid complying with the clear obligation of transparency that is upon the NDA. Proportionality does not outweigh transparency. However, that would be the consequences of enabling the NDA to rely upon this principle here for at least two of the Requirements in issue, namely 306.5.1(j) and 401.5.1(b)(ix), were I to accept the NDA’s case.

888. It is wholly contrary to its obligation of transparency for the NDA to have become concerned about a failure on a threshold requirement, sought to avoid that consequence (whether or not at the time justifying this to itself as exercising the principle of proportionality), and accordingly to have marked the CFP bid on that Requirement higher than it merited to avoid that consequence. Quite apart from the obvious effect upon the overall result of the entire competition, the unsuccessful tenderers would never know that such a process had taken place. That cannot be right, and in my judgment cannot be consistent with any of the principles of law which apply to procurement competitions such as this one.

889. Finally, I consider that the principle of proportionality, exceptional as its application must be, will more usually apply to circumstances entirely or substantially outside the control of the tenderer in question, preventing compliance with a rule of the competition – the power failure in Leadbitter is a good example. Matters within the control of the tenderer, particularly those that go to what must have been a tenderer’s decision as to substantive content of the tender submission, will rarely in my judgment be sufficiently exceptional to justify application of the principle to excuse non-compliance. Tideland can be explained as not going to substantive content.

890. It is submitted by the NDA in its supplementary closing submissions that excluding a tenderer for failures that are “venal or trivial” or for failures that had “no real impact” would be disproportionate. This may be using different words to present Professor Arrowsmith’s views. In my judgment the correct approach is to characterise the failure, firstly, as one of either form or content. If form, then there is a second step. If the failure relates to content, in my judgment, the second step would not fall to be considered at all. That second step would be then to consider the scope and extent of the failure. If merely trivial, then the authority could potentially waive the failure, as long as doing so would not breach the obligations of transparency and equal treatment. Further, such waiver should only be permissible in the most exceptional of cases. It is also important to differentiate between cases where the rules of the competition entitle the authority to waive non-compliance, and those that do not. Those authorities engaged in competitions where the rules specifically do not permit this will rarely be entitled to act contrary to those rules, although of course the rules will differ in case to case.”

View Case

Region: England and Wales

Refusal to extend the time for a late tender was not disproportionate

Dismissal of the appeal against the judgment of Briggs J in Azam & Co v Legal Services Commission [2010] EWHC 960 (Ch)

Claimant solicitors firm missed the tender deadline in a tender for immigration legal services and claimed that this was the fault of the contracting authority in not directly communicating the deadline to it; it also claimed the refusal of an extension (of a week) was disproportionate.

Briggs J in the High Court at [41]:

“First, the principle of proportionality is capable of applying to the implementation of the terms of a procurement process. Secondly, it may permit and in certain cases even require the waiver of some term of the process, such as a deadline. Thirdly the question whether to permit a waiver of a deadline, or, which is in this case the same thing, to grant an extension of time, is pre-eminently the exercise of a discretion, in which the public authority is to be afforded a proper scope for the exercise of reasonable judgment. Fourthly, the concurrent obligations of equal treatment, good administration and transparency will often weigh against the exercise of such a discretion by waiver or extension of time, in particular where the publication of the tender includes (as in the present case) a statement that extensions of time will not be granted. Fifthly, although generally it will be appropriate to compare the prejudice which may be caused to the applicant for an extension by a refusal with the prejudice which might be caused by a grant of an extension, a primary consideration will be the question whether the need for an extension has arisen as the result of the applicant’s conduct (whether by act or omission) rather than by something which is either the fault of the public authority, or otherwise a matter entirely outside the applicant’s control.”

And [69]-[71]:

“69. I acknowledge that a refusal to extend the deadline would visit harsh economic consequences on the firm, and that a week’s extension would not, in the sense of depriving any other applicants of immigration work to which they ought in fairness to be entitled, cause any prejudice of that kind. On the contrary, it appears that publicly funded immigration work could, even now, be made available to the firm were it to succeed in these proceedings, without de-railing the process in any significant respect.

70. But that analysis ignores the weighty reasons to be considered in the balance against the grant of a week’s extension. First, the immigration tender process had been published expressly on the basis that deadlines were there to be complied with, and that no extensions would be given. Secondly, the grant of an extension to the firm, occasioned by a failure to submit a tender on time which was by no means beyond its control, would run the grave risk of constituting unequal treatment of other tenderers. In particular, it would be likely to be regarded as unfair by tenderers who would have wished for longer time in which to perfect their tenders, but who nonetheless completed them on time and, in reliance on the warning that extensions would not be granted, sought no further time for themselves. Thirdly, it seems to me that the principles of transparency and good administration weigh very heavily in the balance against an applicant for an extension of time who is unable to point to reasons beyond his control by way of justification.

71. Weighing those considerations in the balance, I consider that it was not a breach of the LSC’s obligation to respect the principle of proportionality for it to refuse the requested extension.”

Pill LJ at [36]:

“As to proportionality, the judge acknowledged the “harsh economic consequences of the inability to tender” as expressed at paragraph 70. However, he gave “weighty reasons against the grant of an extension”. I agree with those reasons. The decision not to permit an extension was not, in the circumstances, disproportionate. I have already read paragraph 70 of the judgment where the reasons are set out. These are put as an objective test, but it is clear, in my judgment, that the relevant considerations were kept in mind by the respondents. I also agree with the approach of David Richards J in Leadbitter and I accept that it reflects the earlier authorities. A deadline is a necessary part of a tendering process. The deadline was plainly stated in readily accessible documents. There is no fault by the respondents; they needed to be conscious of their duty to treat tenderers and potential tenderers equally and to avoid suggestions of favouritism towards a particular party. The failure to tender arose from a single and very unfortunate failure, though against the background of a failure by Mr Azam and his firm to monitor what would seem to be documents sensible to be monitored by a firm doing this type of work, it was the failure to take action on the receipt of the letter of 23 December. The need for an extension could not be attributed to any fault on the part of the respondents or to any factor outside the control of the appellants.”

Rimer LJ at [52]-[53]:

“I would accept Mr Nicholls’ submissions as to why on the facts of this case there was nothing disproportionate about the Commission’s refusal to change the tender rules to accommodate the unexceptional circumstance that a particular proposing tenderer had, through his own carelessness, missed the deadline. Any different decision by the Commission would, I consider, have been unprincipled and would have involved an unjustified violation of the requirement of equality of treatment imposed by the Regulations. The essence of a competition by way of tender such as that in question is to provide all competitors with an equal opportunity to make their case. It is obviously essential to that end that all competitors should have to work to the same deadline, and it will obviously be perceived to be, and in fact be, unfair for the Commission then to change the rules so as to allow those who carelessly failed to meet the deadline to make late bids. The treatment that the Commission applied to this case is, I consider, properly consistent with its duty under the 2006 Regulations to act in a transparent way.

We were referred, as my Lord has said, to the decision of David Richards J in JB Leadbitter and Co Limited v Devon County Council [2010] EuL.R 61, which contains a valuable discussion of the application of the principle of proportionality in relation to the type of issue raised in this case, although the tender there in question was of a different commercial nature. In paragraph 68 David Richards J recognised that there may be exceptional cases in which proportionality will require the acceptance of a late tender, most obviously where the lateness is because of the procuring authority’s fault. In general, however, even if the tender conditions give a discretion to accept late submissions, his view was that there was no requirement to extend time, particularly where, as in the case before him, the lateness results from a fault on the part of the tenderer. I would respectfully agree with that approach as being a good working approach to the like issue in this case.”

View Case

Region: EU - CJEU

Contracting authorities cannot be obliged to seek clarifications; however, they are not precluded from, exceptionally, allowing mere clarification or the correction of obvious errors

Tenderers had failed to comply with technical specifications (re toll functioning and emergency generators) and were excluded. The question was whether the tenders could be excluded without the contracting authority first having to seek clarification of compliance.

Note: This case also concerned the question of abnormally low tenders, whereby contracting authorities are obliged to clarify price proposals that appear abnormally low.

“36 By its very nature, the restricted public procurement procedure means that, once the tenderers have been selected and once their respective tenders have been submitted, in principle those tenders can no longer be amended either at the request of the contracting authority or at the request of the tenderers. The principle of equal treatment of tenderers and the obligation of transparency resulting therefrom preclude, in that procedure, any negotiation between the contracting authority and one or other of the tenderers.

37      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.

38      In any event, it does not follow from Article 2 or from any other provision of Directive 2004/18, or from 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. Those tenderers cannot, moreover, complain that there is no such obligation on the contracting authority since the lack of clarity of their tender is attributable solely to their failure to exercise due diligence in the drafting of their tender, to which they, like other tenderers, are subject.

39      Article 2 of Directive 2004/18 does not therefore preclude the absence, in national legislation, of a provision which would oblige the contracting authority to request tenderers, in a restricted public procurement procedure, to clarify their tenders in the light of the technical requirements of the tender specifications before rejecting them because they are imprecise or do not meet those requirements.

40      None the less, Article 2 of that directive does not preclude, in particular, 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. Nor does that article preclude a provision of national legislation such as Article 42(2) of Law No 25/2006, according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tender without, however, requesting or accepting any amendment to the tender.

41      In the exercise of the discretion thus enjoyed by the contracting authority, that 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.

42      In order to provide a useful answer to the national court, it must be added that a request for clarification of a tender may be made only after the contracting authority has looked at all the tenders (see, to that effect, Lombardini and Mantovani, paragraphs 51 and 53).

43      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.

44      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.”

View Case

Region: EU - CJEU

Contracting authority permitted to seek balance sheet from tenderer after tenders submitted, even where it had been a requirement

“[39] [A] contracting authority may request the correction or amplification of details of such an application, on a limited and specific basis, so long as that request relates to particulars or information, such as a published balance sheet, which can be objectively shown to pre-date the deadline for applying to take part in the tendering procedure concerned.

40      However, it should be explained that this would not be the case if the contract documents required provision of the missing particulars or information, on pain of exclusion. It falls to the contracting authority to comply strictly with the criteria which it has itself laid down (see, to that effect, Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 115).”

View Case

Region: EU - CJEU

Contracting authority was entitled to exclude a tenderer who failed to annex to its bid a statement that its technical director was not subject to criminal proceedings/conviction

“41      In that regard, it is common ground that it is apparent from the contract documentation in question in the main proceedings, first, that the ‘sworn statement’ referred to in Article 38 of Legislative Decree No 163/2006 concerning the person designated as technical director of the economic undertaking concerned had to be annexed to the bid submitted by the undertaking, on pain of exclusion from the tender procedure and, second, that it was possible to remedy a posteriori merely irregularities which were purely formal and not decisive for the assessment of the bid.

42      The Court has already held that the contracting authority must comply strictly with the criteria which it has itself established, so that it is required to exclude from the contract an economic operator who has failed to provide a document or information which he was required to produce under the terms laid down in the contract documentation, on pain of exclusion (see, to that effect, judgment in Manova, C‑336/12, EU:C:2013:647, paragraph 40).

43      That strict requirement on the part of contracting authorities has its origins in the principle of equal treatment and the obligation of transparency deriving from that principle, to which those authorities are subject in accordance with Article 2 of Directive 2004/18.

44      First, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment in Commission v CAS Succhi di frutta, C‑496/99 P, EU:C:2004:236, paragraphs 108 to 111).

45      It follows that, in circumstances such as those in the main proceedings, Article 45 of Directive 2004/18, read in conjunction with Article 2 of the directive, does not preclude the exclusion of a tenderer on the ground that he has omitted to annex to his bid a sworn statement relating to the person identified in the bid as technical director. In particular, in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids.

46      Furthermore, in such circumstances, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of the directive, cannot be interpreted as permitting that authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid.

47      In the second place, on the assumption that the contract in question in the proceedings before the national court is a services concession, it should be noted that, if, at the material time, service concession contracts were not governed by any of the directives by which the EU legislature regulated public procurement, the public authorities which concluded such contracts were nevertheless required to comply with the fundamental rules of the FEU Treaty, in particular the principles of equal treatment and transparency (see, to that effect, judgments in Parking Brixen, C‑458/03, EU:C:2005:605, paragraphs 46 to 49, and Wall, C‑91/08, EU:C:2010:182, paragraph 33), where the services concession concerned has a certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgment in Ordine degli Ingegneri della Provincia di Lecce and Others, C‑159/11, EU:C:2012:187, paragraph 23 and the case-law cited).

48      In so far as the contract in question in the main proceedings has such an interest, which is a matter to be verified by the referring court, the principal of equal treatment and the obligation of transparency deriving from that principle require the contracting authority, as is apparent from paragraphs 42 and 44 above, to comply with the criteria which it has itself established, so that it will be required to exclude from the contract an economic operator who has failed to provide a document or information which he was under an obligation to produce under the terms laid down in the contract documentation, on pain of exclusion.

49      Accordingly, the exclusion of a tenderer such as Cartiera dell’Adda from a contract such as that at issue in the main proceedings must be regarded as consistent with the principle of equal treatment and the obligation of transparency, as fundamental rules of the FEU Treaty.

50      In the light of the foregoing, the answer to the questions referred is that Article 45 of Directive 2004/18, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the ground that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error.”

View Case

Region: EU - CJEU

Tenderer could not submit references from another entity after the tender deadline, as this, in substance, amounted to the submission of a new tender

Tenderer sought to rely on the experience of another entity. That information was submitted after the contracting authority found that the tenderer’s own previous experience was not acceptable. The contracting authority was satisfied with this information but this was challenged by the disappointed tenderer, Esaporjekt. The case therefore involved issues about clarifications as well as reliance on the resources of others.

“37 [The] principles of equal treatment and non-discrimination and the obligation of transparency preclude any negotiation between the contracting authority and a tenderer during a public procurement procedure, which means that, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer concerned. It follows that, where the contracting authority regards a tender as imprecise or as failing to meet the technical requirements of the tender specifications, it cannot require the tenderer to provide clarification (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 62 and the case-law cited).

38 However, the Court has explained that Article 2 of Directive 2004/18 does not preclude the correction or amplification of details of a tender, on a limited and specific basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 63 and the case-law cited).

39      To that end, the contracting authority must ensure, in particular, that the request for clarification does not lead to the submission, by a tenderer, of what would appear in reality to be a new tender (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 64 and the case-law cited).

40      Furthermore, when exercising its right to ask a tenderer to clarify its tender, the contracting authority must treat 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 (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 65 and the case-law cited).

41      In the present case, Konsultant Komputer submitted documents to the contracting authority which were not included in its initial bid after the expiry of the time limit laid down for submitting applications for the public tender concerned. In particular, as stated in paragraph 27 of the present judgment, it relied on a contract performed by another entity and the undertaking by the latter to place at the disposal of that operator the resources necessary for the performance of the contract at issue in the main proceedings.

42      Such further information, far from being merely a clarification made on a limited or specific basis or a correction of obvious material errors, within the meaning of the case-law set out in paragraph 38 of the present judgment, is in reality a substantive and significant amendment of the initial bid, which is more akin to the submission of a new tender.

43      As the Advocate General noted, in substance, in point 30 of his Opinion, such a communication directly affects the essential elements of the award procedure, namely the very identity of the economic operator which may be awarded the public contract concerned, and the verification of the capacities of that operator and, therefore, its ability to perform the contract concerned within the meaning of Article 44(1) of Directive 2004/18.

44      In those circumstances, by allowing the presentation by the economic operator concerned of the documents in question in order to supplement its original tender, the contracting authority unduly favours that operator as compared with other candidates and, thereby, breaches the principles of equal treatment and non-discrimination of economic operators and the obligation of transparency which derives from them, to which the contracting authorities are subject by virtue of Article 2 of Directive 2004/18.”

View Case

Region: EU - CJEU

Tender (for digitisation of archives) rejected on the basis that a sample microfilm was not readable. The samples had been submitted as a supplement, on the request of the contracting authority, after the main tender had been submitted. Polish law required contracting authorities to request tenderers to provide declarations/documents which had not been submitted with the tender by the tender submission deadline.

“33 A request for clarification cannot, however, make up for the lack of a document or information whose production was required by the contract documents, the contracting authority being required to comply strictly with the criteria which it has itself laid down (see, to that effect, judgment of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 40).

34      In the present case, the referring court stated, in its request for a preliminary ruling, that the tenderers had to include, as an annex to their bid, samples of digitised archive documents, which had to be prepared following the instructions set out at paragraph 4.1 of the tender specification, and had to indicate the process for the digitisation and its quality.

35      In the circumstances of the main proceedings, it was Archus and Gama as tenderers who sent the contracting authority a request for their tender to be corrected, based on Article 87(2)(3) of the Pzp, in order to replace the sample which they had annexed to their bid, which did not comply with the specifications in the tender specification, with a new microfilm sample.

36      In accordance with the case-law referred to in paragraph 29 above, a request sent by the contracting authority to a tenderer to supply the declarations and documents required cannot, in principle, have any other aim than the clarification of the tender or the correction of an obvious error vitiating the tender. It cannot, therefore, permit a tenderer generally to supply declarations and documents which were required to be sent in accordance with the tender specification and which were not sent within the time limit for tenders to be submitted. Nor can it, in accordance with the case-law referred to in paragraph 31 above, result in the presentation by a tenderer of documents containing corrections where in reality they constitute a new tender.

37      In any event, the obligation which a contracting authority may have under national law, to invite tenderers to submit the declarations and documents required which they have not sent within the time limit given for the submission of offers, or to correct those declarations and documents in the event of errors, cannot be permitted except in so far as the additions or corrections made to the initial tender do not result in a substantial amendment of that tender. It is apparent from paragraph 40 of the judgment of 29 March 2012, SAG ELV Slovensko and Others (C‑599/10, EU:C:2012:191) that the initial tender cannot be amended to correct obvious clerical errors other than exceptionally and where that amendment does not result, in reality, in the proposal of a new tender.

38      It is for the referring court to determine whether, in the circumstances of the main proceedings, the substitution made by Archus and Gama remained within the limits of the correction of an obvious error vitiating its tender.”

View Case

Region: EU - CJEU

Rules on clarifications apply also to selection criteria

“92 [Under] Article 56(3) of Directive 2014/24, 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 that 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.

93      As is apparent from settled case-law on the interpretation of the provisions of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), based in particular on the principle of equal treatment and which it is appropriate to apply by analogy in the context of Article 56(3) of Directive 2014/24, a request for clarification sent to an economic operator under that provision cannot however make up for the lack of a document or information the submission of which was required by the contract documents, since the contracting authority is required to observe strictly the criteria which it has itself laid down. In addition, such a request may not lead to the submission by a tenderer of what would appear in reality to be a new tender (see, by analogy, judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 40; of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraphs 36 and 40; and of 28 February 2018, MA.T.I. SUD and Duemme SGR, C‑523/16 and C‑536/16, EU:C:2018:122, paragraphs 51 and 52).

94      It follows from the foregoing considerations that the scope of the contracting authority’s power to allow the successful tenderer subsequently to supplement or clarify its initial tender depends on compliance with the provisions of Article 56(3) of Directive 2014/24, having regard, in particular, to the requirements of the principle of equal treatment, and not, as such, on the classification of the requirements at issue in the main proceedings as selection criteria relating to the ‘technical and professional ability’ of economic operators, within the meaning of Article 58(4) of that directive, as ‘technical specifications’, within the meaning of Article 42 thereof or as ‘conditions for performance’ within the meaning of Article 70 of that directive.”

View Case

Region: EU - General Court

Commission was obliged to clarify that the tenderer in fact intended to state the correct tender validity period in its tender

The initial tender was cancelled. For the new tender, the tenderer submitted the exact same tender, without altering the tender validity period (i.e. the period for which its offer was valid)

“40 In the present case, the Court finds as a fact that the applicant did indeed, as it claims, simply resubmit its original tender documents on 10 June 2002, without modification, on the basis that the modification to Item 4.2.2 of Lot 1 resulting from the Addendum did not necessitate any change to the terms of its tender.

41 Furthermore, given that the date of 28.07.02 corresponded to the 90 day period for which tenders were required to remain valid under the initial call for tenders of 27 February 2002, the Court considers that the Evaluation Committee should have realised that the applicant was probably not intending to make its tender subject to a different period of validity than that required by section 8.1, but had probably omitted by an oversight to modify that date when it resubmitted its tender following the Addendum. Not only did the applicant’s tender documentation submitted on 10 June 2002 state in two other places that the applicant’s tender remained valid for the requisite period of 90 days, namely in the letter of 25 April 2002 itself where the letter states, directly above the signature, that “[t]his tender is subject to acceptance within the validity period stipulated in [section] 8 of the Instructions to tenderers” and in the Terms and Conditions attached to the tender which state “[v]alidity of offer: 90 days”, but that same letter also stated that the applicant “accept[ed] without reserve or restriction the entire contents of the tender dossier for the procedure referred to above”.

42 In those circumstances, the principle of good administration required the Evaluation Committee to resolve the resulting ambiguity by seeking clarification of the period for validity of the applicant’s tender.

43 In addition, as regards the principle of proportionality, the Court finds that in the present case the Evaluation Committee, faced with the applicant’s ambiguous tender, had a choice between two courses of action, either of which would have produced the legal certainty referred to at paragraph 34 above, namely to reject the tender outright or to seek clarification from the applicant. Given the likelihood, noted at paragraph 41 above, that the tender was indeed intended to remain valid for 90 days from 11 June 2002 until 9 September 2002 as required by section 8.1 of the Instructions to Tenderers and the fact that the applicant would have been obliged to provide within 24 hours any clarification sought so that the tender procedure as a whole would have suffered only minimal disruption and delay, the Court holds that the Evaluation Committee’s decision to reject the tender without seeking clarification of its intended period of validity was clearly disproportionate and thus vitiated by a manifest error of assessment.

44 As to the Commission’s argument that the situation of other tenderers whose offers were rejected might be affected by the annulment of the decision to reject the applicant’s tenders, that circumstance can in no way justify rejection of the present application. Under Article 233 EC, it is for the institution whose act has been declared void to take the necessary measures to comply with the judgment. Those measures involve, inter alia, the removal of the effects of the illegal conduct found in the judgment annulling the act, and the institution is thus required to take adequate steps to restore the applicant to its original position (see, for example, the judgments in Case 22/70 Commission v Council [1971] ECR 263, paragraphs 59 and 60, and in Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 47). However, the judgment annulling the act cannot entail the annulment of other acts not challenged before the Community courts but which may be alleged to be vitiated by a similar illegality (see Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraph 55).”

View Case

Region: EU - General Court

Commission acted unlawfully in accepting a bid that was submitted 4 days after the tender submission deadline

“31.  Next it should be pointed out that the Commission, in its defence and rejoinder, has indicated that Frezza’s tender was dated 18 August 1997. However, in response to written questions from the Court, it has been found that Frezza’s tender arrived at the Commission on 22 August 1997, that is, four days after the expiry of the deadline set for the submission of tenders. The Commission maintains on this point that it allowed an extension of the deadline following a request to that effect by Frezza. However, the responses to the questions asked by the Court show that it was only by letter dated 21 August 1997 that Frezza asked for an extension of the deadline. That letter was posted on 22 August 1997 and received by the Commission on 25 August 1997. It follows that the request for an extension of the deadline set for the submission of tenders was made by Frezza only after expiry of that deadline.

32. It follows from the foregoing that both the submission of Frezza’s tender as well as its request for an extension of the deadline and thus a fortiori the agreement of the Commission to an extension all occurred after expiry of the deadline set for the submission of tenders.

33. Accordingly, the Commission committed a fault in accepting Frezza’s late tender.”

View Case

Region: EU - General Court

Parliament was justified in rejecting tender for submitting document in DOC format as opposed to DOCX format, which was the stipulated requirement; failure to comply with an eliminatory criterion cannot be rectified; and failure to seek clarification did not amount to a breach of the principle of good administration or proportionality

“61      As set out in recital 89 of Regulation 2018/1046, in line with the principle of good administration, the authorising officer should request clarifications or missing documents while respecting the principle of equality of treatment and without substantially changing the application documents. The authorising officer should have the possibility to decide not to do so only in duly justified cases. In addition, the authorising officer should be able to correct an obvious clerical error or request the participant to correct it. Thus, the first paragraph of Article 151 of Regulation 2018/1046 states that the authorising officer responsible may correct obvious clerical errors in application documents after confirmation of the intended correction by the participant. In accordance with the second paragraph of Article 151 of that regulation, where a participant fails to submit evidence or to make statements, the evaluation committee or, where appropriate, the authorising officer responsible shall, except in duly justified cases, ask the participant to provide the missing information or to clarify supporting documents.

62      The principle of proportionality, which is also pleaded by the applicant, requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. That principle requires that, when the contracting authority is faced with an ambiguous tender, and a request for clarification of the terms of the tender would be capable of ensuring legal certainty in the same way as the immediate rejection of the tender, the contracting authority must seek clarification from the tenderer concerned rather than opt purely and simply to reject the tender (judgment of 25 October 2012, Astrim and Elyo Italia v Commission, T‑216/09, not published, EU:T:2012:574, paragraph 24).

63      In the present case, first, as found in paragraphs 38 and 41 above, the requirement to submit the translated text in the test at issue in DOCX format is an award criterion expressly laid down in the procurement documents, non-compliance with which is penalised by the rejection of the tender in question. It follows that Article 151 of Regulation 2018/1046 is not applicable to the present case. The third paragraph of Article 151 of that regulation provides that any information, clarification or confirmation is not to substantially change application documents. A change which has the effect of rendering admissible a tender which should be rejected due to a failure to comply with an eliminatory criterion can only be regarded as substantial. Furthermore, that article must be read in the light of recital 89 of that regulation, according to which the authorising officer should request clarifications or missing documents, but without substantially changing the application documents and while respecting the principle of equal treatment. It is precisely the latter principle, and the resulting obligation of transparency, which requires the contracting authority to comply with the criteria which it has itself defined. Where, in a tendering procedure, the contracting authority defines the conditions which it intends to impose on tenderers, it places a limit on the exercise of its discretion and cannot subsequently depart from the conditions which it has thus defined in regard to any of the tenderers without being in breach of the principle of equal treatment of candidates (see judgment of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 78 and the case-law cited). Thus, where obligations are clearly laid down in the documents relating to the public procurement procedure – on pain of the operator’s being excluded – the contracting authority cannot accept any rectification whatsoever of failures to comply with those obligations (see, by analogy, judgments of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 49; of 10 November 2016, Ciclat, C‑199/15, EU:C:2016:853, paragraph 30; and of 2 May 2019, Lavorgna, C‑309/18, EU:C:2019:350, paragraph 22). It follows that the Parliament would have infringed the principle of equal treatment of tenderers if it had not complied with the conditions which it had itself defined in the tender documents. It was therefore obliged to reject those tenders which did not fulfil the criteria that had been presented as eliminatory in those documents.

64      The applicant cannot therefore complain that the Parliament infringed the principle of good administration by failing to ask it for clarification or correction of the document submitted in the test at issue before adopting the rejection decision.

65      Secondly, as regards the alleged infringement of the principle of proportionality, it is sufficient to note that, in the present case, the contracting authority was not faced with an ambiguous tender certain elements of which could conceivably have been clarified, with the result that the case-law relied on by the applicant cannot be applied to the present case. On the contrary, the Parliament was faced with a document submitted in the test at issue which did not fulfil one of the eliminatory award criteria, with the result that it could not have requested clarification or correction of the applicant’s failure to submit that document in the correct file format without infringing the principle of equal treatment of all tenderers (see paragraph 63 above). It did not therefore have the choice between several mutually substitutable measures, but was obliged to reject the applicant’s tender. Nor, therefore, could the Parliament have resorted to a less onerous solution by treating the DOC format as equivalent to the DOCX format, contrary to what the applicant claims.

66      It follows that the Parliament likewise did not infringe the principle of proportionality by rejecting the applicant’s tender on the ground that the document which it had submitted in the test at issue did not fulfil one of the eliminatory sub-criteria laid down in the contract documents.”

View Case

Region: EU - General Court

Commission was not under an obligation to consider information in a tender which was only accessible via a hyperlink; and was not obliged to request a tenderer to supplement its tender by submitting information, which was available via a hyperlink, in another format

The applicant had submitted certain technical information in its tender only via hyperlinks. This information was not considered by the Commission in evaluating the tender. On a construction of the tender documents, the General Court found that submission by hyperlink was not permitted. As to any duty to seek the information in another format, the General Court held:

“143    Furthermore, since the applicant was not permitted to include hypertext links in its tender, the Commission was not obliged to verify whether the documents in question had been modified or to accept those documents.

145 [The] finding set out in paragraph 143 above also cannot be brought into question by the applicant’s argument to the effect that this was a document the existence of which could be ‘objectively shown’ and that the Commission should therefore have asked it to resubmit the documents that were accessible via hypertext links.

146 It should be noted in this respect that the judgment of 10 October 2013, Manova (C‑336/12, EU:C:2013:647), to which the applicant refers, relates to the fact that a tender may be corrected or amplified in order to make a mere clarification or to correct obvious clerical errors. The present case concerns not a clarification or correction of documents but a fresh submission of documents, which might, moreover, have been modified in the meantime. It is apparent from the case-law, in particular, that a tenderer is not generally permitted to supply documents that are required to be sent in accordance with the tender specification and which were not sent within the time limit for tenders to be submitted (judgment of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 36). In the light of that case-law, the Commission therefore had no obligation to ask the tenderer to resubmit the documents that had been made accessible via hypertext links.”

View Case

Region: Ireland

Contracting authority was entitled to exercise its discretion to accept a tender where a small number of documents were submitted up to 1hr 14 minutes after the deadline

Haughton J

In this case, BAM challenged the award of the contract to Eriugena on the basis that the NTMA had not been entitled to accept the Eriugena tender because it was submitted late (the issue was notified by the NTMA to BAM in the regret letter). The vast majority of tender documents were uploaded by the deadline and no documents were modified post-deadline. The technical difficulty encountered by the tenderer, which caused its tender to be late, was not its fault.

The ITN included this provision: “A tender will not be deemed to be non-compliant, by reason only of the inclusion of any of … an error, which in the reasonable opinion of the Authority is clerical or administrative.”

“[257] There is no persuasive, let alone clear, authority of the European courts which states that a public procurement tender deadline is immutable or can never be extended. Rather the EU decisions show that the contracting authority must apply the General Principles when considering whether to accept late or omitted documents, or when raising queries after the tender date, or when availing of any discretion of this nature afforded to it under the applicable tender rules.

[258]  It appears that the European courts have been prepared, in limited circumstances, to sanction a contracting authority granting some leeway to tenderers where –

(1) discretion is afforded by the applicable tender rules, and/or

(2) the irregularity – be it error, ambiguity, omission or late filing – is the fault of the contracting authority, or is not the fault of or within the control of the tenderer, and

(3) the exercise of that discretion does not breach the principles of equality, proportionality and transparency (and in respect of these considerations there is no margin of appreciation), and

(4) there has been no manifest error in the exercise of the discretion by the contracting authority – and in this respect the courts concede a “margin of appreciation” to the awarding authority in relation to matters of judgment or assessment.

[259]  I am not persuaded by the suggestion in Professor Arrowsmith’s 3rd Edition that “…waiver of certain formalities such as the deadline for tenders may not be possible” or “should not be possible regardless of what is stated in the contract documents.” Even as posited this opinion is qualified, and insofar as it is based on the decision in <em>Scan Office Design</em>, I am not satisfied that that is an authority that can be relied upon for such a proposition – as Professor Arrowsmith herself acknowledges at para.7.163.

[260]  I find persuasive the judgment of Richards J in <em>Leadbitter</em> that the principle of proportionality applies, and that, at least before Directive 2014/24 became effective, (and during the period of this tender) – “There may be circumstances where proportionality will, exceptionally, require the acceptance of the late submission of the whole or significant portions of a tender…” The Authority relied on <em>All About Rights Law Practice, R (on the application of) v The Lord Chancellor</em> [2013] EWHC 3461, where Carr J appeared to go further in stating:

“49. It is clear that in appropriate circumstances proportionality may require the acceptance of late submissions of a tender…if there are obvious slips which can readily and easily be put right without improvement to the bid or a disadvantage to others.”

[274] … There was clear evidence to support the view that the delayed upload was not wholly within Eriugena’s control. It was such that the Authority was entitled to decide to accept all the late documents and proceed to evaluation on that basis, whether under s 7.1 or because of exceptional circumstance.”

[276] BAM did not experience problems uploading the final Tender, whereas the Authority accepted that Eriugena and Kajima did, and in this respect their situations differed. The Authority treated Eriugena and Kajima equally in accepting and considering the files uploaded late. The questions are whether the evidence accepted by the Authority provided an objective basis for the reasons given for this different treatment, and whether its decision resulted in impermissible discrimination.

[277] I am satisfied that there was ample evidence before the Authority to justify it considering and deciding to treat Eriugena differently to BAM by accepting late files. Of relevance was the fact that electronic submission of the BIM files was a relatively new process, and the advice to the Authority was that the time taken can be variable and uploading can be problematic. Critically, there was evidence to support Eriugena’s contention that it experienced technical difficulties, that in effect none of the documents were modified after the deadline, and that the base information for the BIM files was derived from the native BIM files which were submitted in time. There was, therefore, an objective basis for different treatment.

[281] I also accept the submissions of NTMA that analysis of the late Eriugena documents further demonstrates that no unfair advantage was obtained.

[285]The court cannot accept that the impugned decision is disproportionate for a number of reasons. The project is a very large one and of significant public interest, relating as it does to the core development of an inner city university. As the ITN Important Notice indicated the Authority had as an objective that “…a healthy competition is maintained throughout all stages of the Tender Process”. This objective could have been lost if the late documents had not been accepted, with the distinct possibility that the competition would be abandoned with only one tender to evaluate and consequent delay in delivery of the project. The tender process up to 28 November had run over thirty one weeks, and was detailed and complex, involving significant resources and time on the part of each tenderer as the tenders were developed. This was the first time BIM models were submitted electronically as part of a final Tender. By the 17:00 deadline the vast majority of Eriugena’s tender files had been uploaded. For reasons already addressed in this judgment Eriugena’s late documents, with only one exception, effectively reflected documents or information submitted before the deadline, and none were modified post-deadline. The difficulty encountered by Eriugena appeared to be, if not the fault of the Authority, also not the fault of Eriugena.

[286] The court is therefore satisfied that the decision taken was “the least onerous” option, and in accordance with the principle of proportionality. Indeed any other decision would have been open to the objection by Eriugena that it breached the principle of proportionality.”

View Case

Region: Northern Ireland

Contracting authority erred in rejecting a tender for failure to include signed references on time, where the contracting authority was itself the source of the references and partly the cause of delay in their furnishing

Humphreys J

“[46] I have carefully considered the factual evidence in this case and the nature of the discretion to admit missing documents reserved under paragraph 6.5.1 of the ITT and concluded that had the defendant exercised this discretion to refuse to admit the late Certificates, this decision would have been unjustified. The fact that the Certificates were, in fact, approved prior to the tender submission deadline is a powerful factor in the plaintiff’s favour. This recognises the distinction between the different roles played by the defendant, since the conclusion would be the same even if a different referee were furnishing the Certificates. Here, as a matter of fact, the Contracting Authority is also acting as referee. This cannot give rise to any advantage to an incumbent provider but does mean that the documents can objectively and unarguably be shown to be in existence prior to the submission deadline. Unbeknownst to the plaintiff, the Certificates had been approved at the time it was submitting them on an ‘unsigned’ basis. This means that, in light of Manova, there would be no breach of the principle of equal treatment and the power contained in Regulation 56(4) could be lawfully exercised.

[47] The next question is whether exercising the discretion in favour of the plaintiff would have been the proportionate course of action. Whilst it is true that the plaintiff delayed in seeking the requisite Certificates, the evidence reveals that there were 5 other Certificates sought between 9 and 11 November 2020 and, in each case, the Certificate was returned to the tenderer within 2 working days. Had this been the case with the plaintiff, it would have been in possession of the approved Certificates before the submission deadline. The reality in this case is that the defendant had all the information it required to furnish the Certificate to Ms Vincent for approval at 14:57 on Friday 13 November 2020. It then internally sought verification from the Corporate Procurement Unit in full knowledge that it would be unable to provide the necessary details. This caused a delay in the seeking of approval until 12:34 on Monday 16 November. Once sought, the approval was forthcoming in just over an hour. Had the decision maker apprised himself of that factual background and properly analysed the reasons for the delay in providing the Certificates to the plaintiff, this factor must have weighed heavily in the plaintiff’s favour. Taken together with the fact that the approved Certificates were in the possession of the defendant prior to the submission deadline, he could only have lawfully concluded that the discretion reserved to the Contracting Authority should be exercised in favour of the plaintiff, and the Certificates accepted as submitted on 17 November. Acting in such manner would have posed no risk to the integrity of the procurement process but rather served to obviate the risk of a competitive tender being excluded. This was the least onerous measure to take and therefore the proportionate response.”

View Case

Region: Scotland

Contracting authority justified in rejecting a non-conforming tender and not required to accept later corrective submission

Lord Tyre

“[18] the court should only interfere in exceptional circumstances with a contracting authority’s decision to reject a non-conforming tender.

[23] The first two requirements that must be met, according to the <em>Manova </em>case,  in order to avoid a breach of the principle of equal treatment are, firstly, that documents requested after the deadline can be objectively shown to predate the deadline and, secondly, that it was not expressly laid down in the tender information that the application would be rejected if the omitted documents were not provided.  I am not satisfied that either of those requirements is satisfied in the present case.  In the first place, it does not appear that the spreadsheet submitted in respect of Lot 3 existed prior to the omission being drawn to the pursuer’s attention.  What existed was the spreadsheet that had been submitted with the tender for participation in the First Framework Agreement, and a decision appears to have been taken when the problem came to light to submit the same spreadsheet for the Second Framework Agreement.  That in my view is a different situation from the one addressed by the Court in <em>Manova </em>where the prior existence of the tenderers’ balance sheets was readily verifiable.  In the second place, it was repeatedly and unequivocally asserted in the instructions for the Commercial Envelope that failure to provide a response to a question, or to submit the Lot 3 spreadsheet, would result in the tenderer’s offer not being considered.  Those statements were not, in my view, overridden by the reservation in paragraph F of the Information and Instructions to Tenderers of a right to “clarify any information supplied”.  The reservation applied in its terms to resolution of ambiguities, and did not extend to a right to seek late submission of information <em>not </em>supplied, especially where, as here, it had been made clear that the information was required before the tender would be considered.  It follows, in my opinion, that if the defender had acceded to the pursuer’s request to accept the figures and spreadsheet submitted late, there would have been a powerful case to be made by the successful tenderers that the defender had breached the principle of equal treatment.  A contracting authority which acts in a manner necessary to avoid breaching that principle cannot, in my view, be said to be acting disproportionately.”