This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
As recent rulings from Malta’s Public Contracts Review Board (the Board) illustrate, drafting and interpretation errors can undermine technical compliance evaluations and compromise the legal validity of evaluation and award decisions. These cases serve as a useful reminder to all public institutions of the importance of drafting precise technical requirements that lend themselves to clear interpretation and enforcement.
For example, in its January 2022 decision in Case 1677 – RfQ 009-6055/21 CPSU 158/17 – Request for Quotations for the Supplies of Oxygen Concentrators on Loan for 12 Months including all consumables, the Board determined that the flawed specifications contained in an oxygen concentrator solicitation were fatal to the validity of a tendering process and to the resulting contract award. The Board ruled that the contracting authority could not waive the flawed technical requirements after the receipt of bids and award a contract to a non-compliant bidder since this would contravene the requirement to provide a level playing field to all bidders. The Board determined that there was no point to order a re-evaluation since the original requirements were “not well drafted” and a re-evaluation would not remedy the original drafting errors. Instead, it terminated the tendering process and the original contract award.
Further, in its January 2022 decision in Case 1667 – CfT020-0708/21 – CPSU2152/21 – Tender for the Supply of Disposable Suction Liners, the Board ordered a re-evaluation after finding that the initial technical non-compliance assessment was based on the subjective opinion of an evaluator rather than on evidence of actual testing of the proposed product. As the Board noted, “we highlight the last sentence of the reason for rejection which starts with the claim ‘in my opinion’ clearly stating that the decision of rejection was based on an opinion and not on factual findings.” In coming to its evaluation decision, the Board determined that the contracting authority was “exercising an element of subjectivity which goes beyond what is permitted”. The Board cancelled the original bid rejection and contract award and ordered a re-evaluation.
Similarly, in its January 2022 decision in Case 1656 -IM 027 /2020 -Tender for the Construction of a New Cargo Facility at Ras Hanzir between Laboratory and Fuel Wharves, Corradino, Grand Harbour, Malta, the Board ordered a re-evaluation after finding that the evaluation committee retroactively imposed a “proof of compliance” standard to confirm a technical requirement when the solicitation originally stated that the bidder’s self-declaration would be sufficient to meet the requirement. As the Board noted, the solicitation “required a ‘Self-Declaration’ and not ‘proof’”.
The Board determined that the evaluation committee’s rejection of the bidder for failing to provide proof of compliance was inconsistent with the solicitation rules. Further, the Board found that the bidder exceeded the technical requirements since it had sourced more than double the number of products required by the solicitation. As the Board stated, if the evaluation committee was not certain about the bidder’s compliance with the requirement, it should have exercised its clarification rights before rejecting the bid. The Board cancelled the original contract award and ordered a re-evaluation.
Further, in its January 2022 decision in Case 1672 -WSC/T /39/2021-Tender for Supply, Delivery of Pipe Locators to the Water Services Corporation, the Board ordered a re-evaluation after finding that the evaluation committee applied an unreasonable distinction between the meaning of “manufacture” and the meaning of “assemble” when it rejected a bid that failed to provide ISO certification for the manufacture of pipe locator equipment. The dispute turned on the issue of whether the rejected bidder’s certification, which provides for ISO certification for assembly, met the technical requirement. The Board ruled that the evaluation committee applied a flawed distinction when determining that the ISO certification for the assembly of the required equipment failed to meet the requirement for certification of the manufacture of the equipment since, as confirmed with reference to a dictionary, the two words are synonymous.
The Board found that “the ISO certificate as provided by the appellant company does in fact cover the requirements of the tender dossier” and determined that the evaluation was flawed since the evaluation committee “made its own assumptions on the meaning of the phrase ‘assembly’ without proper research which was so readily available in an English language dictionary.” The Board ordered a re-evaluation and invalidated the award to a competing bidder due to the interpretation error.
Similarly, in its February 2022 decision in Case 1680 – SPD7/2021/033 – Supply, Delivery and Assembly of Furniture for the Financial Intelligence Analysis Unit (FIAU) Offices – Lot 1 and Lot 2, the Board overruled the contacting authority’s rejection of the complainant’s bid. The solicitation called for existing furniture that met prescribed technical standards referred to as “EN certificates or equivalent” but also allowed bidders to propose custom furniture. The Board found that the evaluators improperly rejected the bidder’s offer of custom furniture since that bidder “showed and produced evidence in the clarifications stage that all his suppliers are ISO certified and also offered to engage a third-party specialist to certify and conduct quality checks up to EN standards level.” The Board ruled that the ISO certification met the “or equivalent” aspect of EN certification requirements and that the bid was therefore improperly rejected. The Board cancelled the original bid rejection and contract award decisions and ordered a re-evaluation.
Finally, in its March 2022 decision in Case 1694 – CT2244/2021 – Tender for Professional Services of an Architect for General Consultancy, Concert Hall, Extension of Costume House and Restoration of Priory of Navarre Façade at Teatru Manoel (Lot 3), the Board ordered a re-evaluation after finding that the contracting authority drafted inconsistent past project experience requirements. While the original solicitation stated that experience would be evaluated based on completed projects, the contracting authority’s response to a pre-bid question changed this rule to allow for experience from projects that remained in-progress at the time of bid submission.
However, during evaluations, the evaluators reverted to the original rule, rejected in-progress experience, and disqualified the complainant’s bid. The Board determined that the contracting authority misled the complainant. After finding that it was “inconceivable” that the evaluators would reject a bid that complied with the contracting authority’s amended evaluation rules, the Board cancelled the initial bid rejection and contract award decisions and ordered a re-evaluation.
As these case studies illustrate, purchasing institutions should exercise a high degree of precision in defining their technical requirements and in defining the procedures they will use to verify compliance with those requirements since imprecise technical compliance assessments can undermine the legal validity of their contract award decisions.
