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, the enforcement of technical compliance requirements and the resulting rejection of non-compliant bids often leads to bid protest challenges. However, notwithstanding these legal challenges, the decision to reject technically non-compliant bids will ultimately be upheld when those technical requirements are properly interpreted and enforced.
For example, in its January 2022 decision in Case 1674 – SPD5/2021/048 – Works – Tender for the Construction and Refurbishment Works at Second Floor Level of the Court Services Agency in Valletta using Environmental Friendly Material and Practices, the Board upheld the rejection of a bid for technical non-compliance after finding that the rejected bidder’s submission of a Gantt chart failed to satisfy the solicitation requirements for a project plan. The Board stated that “in the section of the tender where the prospective bidder, now Appellant, was requested to submit a ‘Detailed Construction Management Plan’, he submitted the same Gantt Chart which was required to be submitted in another subsequent section of the bid.” The Board upheld the evaluation committee’s non-compliance assessment after noting that the requirements “should be considered as two (2) separate documents”.
Similarly, in its January 2022 decision in Case 1673 – CT2007/2021 – Tender for the Provision of a Service for the Non-Emergency Transport for the Ministry for Health including the use of Low Emission Vehicles, the Board upheld the government’s right to reject a bid as technically non-compliant based on the technical emissions standards prescribed for the engines used in the transportation services contract. As the Board noted, the solicitation document called on bidders to submit the “technical sheets of the vehicles where emission standards are defined” and, notwithstanding the rejected bidder’s declarations to the contrary, those technical data sheets failed to confirm the required emissions standards set out in the bid solicitation. The Board therefore upheld the decision to reject the bid as non-compliant and dismissed the legal challenge.
Further, in its February 2022 decision in Case 1589 – IM029/2020 – Professional Services in connection with the Supervision and Works Certification for Works Tender IM010/2020 – Construction of an Underpass and Overpass at the Roundabout Junction Node Wa23 between Triq San Tumas, Triq il-Kunsill tal-Ewropa and Vjal l-Avjazzjoni in Luqa, the Board upheld the rejection of a bid for non-compliance since the bidder’s proposed engineer did not possess a required degree specializing in structural engineering. As the Board stated, “the main bone of contention in this specific case revolves around the definition of the term ‘Specialised in Structural Engineering’ and whether the Key Expert as submitted/proposed by the Appellant company does in fact meet this definition.” While the Board found that the proposed engineer met the general requirement for a “Degree Qualification in Civil Engineering” it found that a further analysis was required to determine whether the engineer satisfied the second part of evaluation requirement that called for that degree to be “specialised in Structural Engineering – MQF Level 7 or equivalent”.
The Board concluded that the engineer’s 1989 University of Malta degree failed to meet that more specific technical requirement since at that time the University’s Bachelor of Engineering and Architecture program did not include the specializations required in the solicitation, which were now offered as separate master’s degrees in design and in structural engineering. The Board concluded that the evaluation committee properly considered the information provided by the University, which confirmed that the 1989 degree was not a specialized degree in structural engineering and upheld the decision to reject the non-compliant bid.
Similarly, in its March 2022 decision in Case 1688 – CT2372/2020 – Tender for excavation and construction of a new social housing block at plot 77, Triq Napuljun Dingli, Mellieha A, the Board upheld the right to reject a technically non-compliant bid after the bidder was provided an opportunity to rectify deficiencies in the technical and professional ability evaluation category but failed to do so. As the Board summarized, while the bidder responded to the rectification within the stipulated timeframe, “his reply was still not in full compliance with the requirements of the Tender Dossier”. The Board upheld the decision to reject the bidder for technical non-compliance and dismissed the legal challenge.
Finally, in its March 2022 decision in Case 1690 – CT2097 / 2021 – Supplies Tender to Procure and Implement a CCTV System including Environmentally Friendly Equipment and Client Workstations withing Government State Schools, the Board upheld the rejection of a bid for technical non-compliance since the bid did not meet the technical product specifications. The Board also rejected a challenge to that requirement as unnecessarily restrictive after ruling that the bidder should have challenged the alleged restrictiveness before submitting a bid.
As the Board noted, the technology solicitation required a solution with a power over ethernet (POE) network switch with “Dynamic ARP protection support” and “MAC Address table size – 16,000 entries (Minimum)”. The Board found that the proposed solution did not meet those technical standards. While the complainant also challenged those requirements on the basis that they unnecessarily restricted competition, the Board ruled that this aspect of the complaint should have been raised prior to the submission of the bids, stating that “this Board is incredulous as to why the Appellant is only raising this point now, in the appeal stage of this tender procedure.” The Board stated that the bidder should have raised its concerns before bidding if it felt that the specifications were impossible to meet. The Board dismissed the legal challenge.
As these cases illustrate, the outcome of bid protests will often turn on the interpretation of technical requirements. Purchasing institutions should ensure that they precisely define and consistently enforce those requirements to better ensure the defensibility of their bid rejection decisions. To further mitigate these risks, purchasing institutions should also consider incorporating rectification periods to resolve any interpretive issues surrounding their technical requirements, and should avoid imposing requirements that are unnecessarily restrictive to competition.
