Decision of the Supreme Administrative Court (1st Section), 08.09.2022 (CASE 0399/21.5BEAVR)
Article(s) in Directive 2014/24/EU: Art. 18(1), Art. 56(3)
Topic: Clarification of tenders; exclusion grounds (regarding offers); equal treatment and transparency principles
Member State: Portugal
Court/rev. board: Supreme Administrative Court
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 72(3) and (4) of the Portuguese Public Contracts Code (PCC, adopted by Decree Law 18/2008, of 29 January, with amendments, the current version resulting from Decree Law 78/2022, of 7 November), which are considered to transpose article 56(3) of Directive 2014/24/EU.
This is another case referring to the scope of admissible (or inadmissible) clarification of offers during the tender phase.
The tender documents of an open procedure regarding a public works contract stated that bidders should indicate, in their tenders, the average output or yield of materials and equipment that they had considered to define the prices they had presented (e.g.: the average area that a ton of cement can cover). One of the bidders did not present this information in the way the tender documents demanded, and the other bidders argued that, for this reason, the offer should be excluded, which eventually happened. The bidder challenged this exclusion and argued, differently, that his offer should be admitted, because it was possible to determine the information by looking at other parts of the offer and making simple calculations (thus, not adding any new information to the offer). The first instance court ruled in favor of the contracting authority’s decision to exclude; however, on appeal, the second instance ruled in favor of the excluded bidder. An appeal was, then, made to the Supreme Court, which ruled in final instance, leading up to the decision being commented.
The Supreme Court, adopting a “substance over form” approach, considered that the offer could not be excluded. Considering the applicable provisions, and previous case law of the Administrative Courts, this judgment was non-surprising.
Firstly, the Court noted that the omission did not concern an element that was, actually, being evaluated in the tender for the purpose of the award criteria (i.e., the Court gave relevance to the nature of the document in question). Secondly, the Court referred to the fact that the omission could, in any case, be corrected. In fact, in this case, even though the information had not been formally organized, in the offer documents, in the exact same way as the contracting authority had requested, it was possible to reach the said average output of materials making calculations (purely mathematical and, therefore, objective operations) using the information already contained in the bid. There was no adding of new information to the offer.
It is interesting to mention that, even though Portuguese law includes a provision that allows for the correction of clerical errors in offers, which could have been applied here [Art. 72(4) of the PCC], the Court did not explicitly refer to it. In fact, the Court seems to have grounded its decision in the (rather implicit) application of general principles.
Link to the original judgement (PT) here.