This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its May 2017 decision in Archus sp. z o.o. v. Polskie Górnictwo Naftowe i Gazownictwo S.A., the European Court of Justice ruled that the right to seek clarifications did not extend to allowing new product samples after the bid submission deadline since that practice breached the rules of open and fair competition under the European procurement rules. The dispute dealt with a tendering process initiated by a Polish government agency for the digitalization and recording of documents on data carriers and microfilms at its central geological archives.
As the Court summarized, after the bid deadline, the complainant realized that there was an error in the sample microfilm recording that it submitted with its bid. The agency allowed the bidder to submit a new sample, but that new sample failed to meet the required technical standards and was disqualified. The bidder brought a legal challenge against the process, arguing that it should have been permitted to address the technical issue before being disqualified. However, the Court rejected the challenge, ruling that the duty of equal treatment and transparency owed to all bidders prohibited the use of post-bid clarifications as a means of allowing bidders to make substantial changes to their bids:
First of all, a request for clarification of a tender, which may not be made until after the contracting authority has looked at all the tenders, must, as a general rule, be sent in an equivalent manner to all undertakings which are in the same situation and must relate to all sections of the tender which require clarification (see judgments of 29 March 2012, SAG ELV Slovensko and Others,C-599/10, EU:C:2012:191, paragraphs 42 to 44, and of 10 October 2013, Manova,C-336/12, EU:C:2013:647, paragraphs 34 and 35). In addition, that request may not lead to the submission by a tenderer of what would appear in reality to be a new tender (see judgments of 29 March 2012, SAG ELV Slovensko and Others,C-599/10, EU:C:2012:191, paragraph 40, and of 10 October 2013, Manova,C-336/12, EU:C:2013:647, paragraph 36). Lastly, as a general rule, when exercising its discretion as regards the 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 (see judgments of 29 March 2012, SAG ELV Slovensko and Others,C-599/10, EU:C:2012:191, paragraph 41, and of 10 October 2013, Manova,C-336/12, EU:C:2013:647, paragraph 37).
The Court ruled that the failure to submit the required microfilm samples could not be cured through a post-bid clarification process since that would constitute the submission of a new bid:
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). 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. 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.
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.
The legal challenge was therefore rejected. As this case illustrates, the use of clarifications continues to be a complex and controversial area which, given the fact-based nature of many compliance disputes, exposes purchasing institutions to the risk of legal challenge. Given this inherent risk area, purchasing institutions should minimize the bid submission compliance requirements contained in their tender calls and should defer any technical analyses to the later stages of multi-staged evaluation. Designing process rules that permit evaluators to assess technical compliance issues at a subsequent invitational stage after bidder short-listing would serve as a more practical approach to avoiding tender compliance issues than front-loading all technical standards and tying them to the bid submission deadline.
