Requests for Information after the Submission Deadline: Some Further Clarification

18 November 2013

Practice Area: Procurement

Jj

The Manova case[1]

The Danish Ministry of Science, Innovation and Higher Education held a competitive competition for the provision of seven advice centres (a Part B service). Candidates were required to submit certain information at a pre-qualification stage to satisfy minimum requirements relating to their economic and technical qualifications. A copy of the most recent balance sheet for the candidate was one such piece of information.

Two of the candidates who made submissions failed to attach their balance sheets. These two candidates, along with a third called Manova, passed the pre-qualification stage and were invited to submit tenders. The two candidates who had failed to submit balance sheets won and both were awarded contracts.

Manova challenged the procedure in the Danish courts, and the Danish court referred the question to the European Court of Justice (ECJ) asking “does the EU law principle of equal treatment mean that, after the deadline for applications to take part in a tendering procedure, a contracting authority may not ask a candidate to forward a copy of its most recent balance sheet, provision of which was required under the notice announcing a screening procedure, if the candidate did not provide such documents with an application?”

Judgment

The ECJ noted that, irrespective of this tender being for part B services, the general principles of EU law apply to all public service contracts with cross-border interest. It further noted that the principles of equal treatment and transparency were also applicable and that in general a tender cannot be amended after submission. However, where there is a clear case of error or a need for clarification, a contracting authority may ask for correction or amplification of details subject to the following parameters (as set down in the SAG case[2]):

i)  The contracting authority has looked at all submitted tenders, and will request clarification from all the tenders who have made the same error;

ii)  The request must relate to all the parts of the tender which require clarification;

iii)  Any consequential amendments to the tender must not amount, in reality, to a new tender.

The contracting authority must ensure that it treats all tenderers equally and must ensure that any request for clarification does not favour the tenderer in any way or disadvantage any of the other tenderers.

The ECJ stated that these same principles apply at the pre-qualification stage, therefore the contracting authority can request the correction or amplification of details in the pre-qualification questionnaire on the basis set out above as long as it relates to details or information which can be shown to pre-date the deadline for the expression of interest in the tender process. However, this would not be permitted where the tender documents state that such missing information would result in exclusion from the tender process.

Comment

This case helps to further clarify the ability of contracting authorities to request clarification from economic operators at both pre-qualification and tender stages. It also makes it clear that where the tender documents exclude such tenderers for failing to supply the requested information/documents, the contracting authority must comply with that direction. However,contracting authorities should think carefully before removing their discretion to reject a tenderer who has not provided all the requested information/documents.

[1] Case C 336/12 Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S

[2] Case C 599/10 SAG ELV Slovensko a.s., and others v Úrad pre verejné obstarávanie.

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