Perfecting Imperfect Bids Part 2 – Advocate General’s Opinion

Issue under Review 

Whether in a public works, service or supply contract a bidding consortium must be allowed to amend its bid following tender submission where one key criteria applicable to that consortium had changed.

Summary of the Judgement

A national law does not have to allow a bidding consortium to amend its tender submission if the circumstances in that submission alter after submission, such that the bidding consortium no longer meets the relevant criteria to tender.

The Advocate General has recently looked at whether a bidding consortium could amend its bid post tender submission, but prior to contract award.

1. In this case a bidding consortium relied on the technical and professional ability of a third party who was integral to their bid. The third party lost the required capacities subsequent to submission of the bids but prior to the contracting authority making its award decision. The question arose as to whether national rule could provide for the automatic exclusion of a tender that relies on the capabilities of a third party which during the tender process ceases to have the required capacities, and
2. whether post submission date, the tendering body could replace that third party with another party who did have the required capabilities.

The Advocate General examined the issue and paid particular attention to the timing of the loss of capacity. The Advocate General did not consider the position which would occur where the loss of capacity occurred after award as that did not happen in this particular case. He made it clear that

• if that third party loses the capacity before submission of a bid then the tenderer can clearly appoint a new third party with relevant capacity in its place and submit in effect a new tender with a different bidding partner. If the bidder does not do that and continues with the third party who does not have capacity then in the Advocate General’s view, the submission should be excluded from the remainder of the procurement process as there was no possibility then that post tender submission the bidder should be entitled to replace that third party as it could have done so beforehand, and
• if at the time of submission the third party had capacity but it lost that capacity prior to tender award then, in his view, there was no requirement on a national authority to allow a tendering body to replace that third party.

This second point was based on his view that his focus should be the 2004 Directive as the procurement process in question was commenced under that Directive (from which the 2006 Public Contracts Regulations 2006 were transposed). In coming to his decision, the Advocate General referred to the ability of a contracting authority, or at the request of the tenderer to clarify the proposal in such a way as to genuinely clarify part of the tender or to correct obvious clerical errors. He took the view that in this case substitution of a third party with the relevant capabilities was significantly more than mere clarification.

The Advocate General referred to the recent case of Esaprojekt and agreed with the rationale in that case.

The complainant tried to

1. introduce the principle of proportionality to the determination, based on alternate wording in the 2014 Directive (which underpins the 2015 Public Contacts regulations). The Advocate General dismissed that argument as he did not feel the need to use that Directive to assist as he felt that the 2004 Directive was unambiguous. He also said that the two principles of the utmost importance remain, namely the principles of equal treatment and transparency, and
2. argue that this was a force majeure situation and it could not be held responsible for the loss of the capacity of that third party. The Advocate General stated that the test for a force majeure event was very high and he did not think that it was even applicable in this case.

In conclusion, he confirmed that the 2004 Directive did not prevent a national authority excluding from a tender process a tendering body that has relied on the capacities of another entity where that entity subsequently loses the required capacities.

Tenderers should therefore beware and ensure that if they rely on the experience and capacity of a third party (including a member of a bidding consortium) in their submission that they have undertaken the required level of due diligence to ensure that that capacity is solidly underpinned and is not likely to be lost during the process.