Allowing supplementary information after the deadline for bid submissions – how far can you go?

A series of recent European cases have focussed on the tricky issue of when a contracting authority may accept supplementary information from a bidder after the expiry of the bid submission deadline in order to clarify its bid.

In the case of Esaprojekt v Wojewodztwo Lodzkie (Case C-387/14), the Court of Justice of the European Union (CJEU) was asked to consider several questions by the Polish National Appeal Chamber relating to the degree to which a contracting authority could permit a bidder to supplement its bid submission with additional documents after the deadline.  In this case, the contracting authority had run a procurement for the installation of IT systems in hospitals.  The contract opportunity was divided into Lots and the Open procedure was used.  The dispute related to the contract for Lot 3, for the installation of an IT system to serve the (grey) administrative sector and the (white) clinical sector at a particular hospital.

In order to demonstrate relevant experience as part of the selection stage, candidates for Lot 3 had to prove that they had performed at least two contracts of a similar size, type and value.  In order to do this, each candidate had to provide a list of the main supplies made in the previous three years.  One bidder, Konsultant Komputer ("Konsultant"), submitted a list which included two contracts delivered by a consortium in which it was involved and went on to be evaluated as the most economically advantageous tender.  An unsuccessful bidder, Esaprojekt, challenged the award decision on the basis that Konsultant had failed to meet the experience selection criterion such that its bid should have been excluded.  The Polish National Appeal Chamber subsequently annulled the decision to award Konsultant the contract and ordered the contracting authority to obtain additional information from Konsultant.

Konsultant provided this additional information which revealed that the two consortium contracts put forward to demonstrate experience did not cover the provision of integrated grey and white services (one was a contract which did not cover grey services and one was a contract which did not cover white services – though together they covered both).  The contracting authority therefore concluded that the experience requirements had not been met, but rather than excluding Konsultant at that point, invited it to supplement the documents it had already provided by submitting a new list of experience.  In response, Konsultant presented a new list which included reliance on the experience of another entity, Medinet, and an undertaking from Medinet that it would provide the resources necessary for the performance of the contract (Medinet had not been referred to in the initial tender).  The contracting authority proceeded to award the contract to Konsultant and Esaprojekt challenged again.

The Polish Court referred several questions to the CJEU.  This article focusses on the first issue dealt with by that Court (although the judgment covers several other interesting points including the ability to rely on the capacity and experience of other entities and exclusion from procurements on the basis of misrepresentation) which covered three separate questions:

1. Can a bidder refer to the performance of contracts by another entity, the use of whose resources it did not refer to in the tender?
2. Are bidders limited to supplementing documents only with those which can be shown objectively to predate the submission deadline?
3. If so, can bidders supplement their responses by adding documents drawn up by the bidder (or its subcontractors or other entities on whose capacities it relies) if they were not submitted with the original tender?

In answering these questions, the Court referred back to many of the principles drawn out by the CJEU in the 2016 case of Partner Apelski Dariusz (C-324/14):

• Contracting authorities are required to afford economic operators equal, non-discriminatory and transparent treatment.
• This means that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner such that all reasonably well-informed and normally diligent tenderers can interpret and understand them in the same way and such that the contracting authority is able to ascertain whether the bids satisfy the criteria applying to the contract in question.
• It also means that negotiation between a contracting authority and a bidder during a procurement is prohibited and that, as a general rule, a bid cannot be amended after it has been submitted. It follows that, where a contracting authority regards a tender as imprecise or as failing to meet the technical requirements, it cannot require the bidder to provide clarification.
• However, Article 2 of the 2004 Directive does not preclude the correction or amplification of details of a tender, on a limited and specific basis, particularly where it is clear that they require mere clarification, or to correct obvious material errors.
• In allowing such clarifications, the contracting authority must ensure that the request does not lead to the submission of what in fact amounts to a new tender.
• Furthermore, the contracting authority must not allow a request for clarification to favour or disadvantage the bidder once the procedure for selection of bidders has been completed and in light of its outcome.

Taking these points into account, the ECJ found that the additional information submitted by Konsultant after the deadline for bid submissions was information that had not been included in its initial bid.  It concluded that "such information, far from being merely a clarification made on a limited or specific basis or a correction of obvious material errors… is in reality a substantive and significant amendment of the initial bid, which is more akin to the submission of a new tender".  The Court pointed to the fact that this information directly affected the essential elements of the award procedure (i.e. the very identity of the bidder to whom the contract would be awarded and its ability to perform the contract concerned).  In considering this information, the contracting authority would unduly favour Konsultant over other bidders.

The Court therefore concluded that Article 51 of the 2004 Directive (in conjunction with Article 2) precludes a bidder from submitting documents not included in its initial bid in order to prove it meets selection criteria after the deadline for bid submission.  The equivalent provisions under the 2014 Directive are Articles 56(3) and 18, reflected in our domestic legislation as Regulations 56(4) and 18 of the Public Contracts Regulations 2015, and the principles will apply equally to this legislation.

In light of the fact that these provisions clearly do allow for some clarification, the question for contracting authorities is how far they can go in permitting bidders to submit additional information after the deadline has passed.   Drawing from a series of European and UK judgments, the key principles are as follows:

• Under the principle of proportionality, contracting authorities should seek clarifications where a bid contains an obvious ambiguity or error which has a simple explanation, can be quickly and easily resolved and which does not offer an opportunity for the bidder to improve its bid (Tideland Signal v Commission (T-211/02)).
• The discretion held by a contracting authority to clarify bids should only be exercised in exceptional circumstances, where it is clear that an error has obviously been made (SAG ELV Slovensko (C-599/10)).
• In those cases, the contracting authority must send the same request for clarification to all bidders who are in the same situation, the request must relate to all the parts of the tender which require clarification, and any additional information provided must not amount to what is in effect a new bid (SAG ELV Slovensko).
• Information may be sought to simply verify the content of a bid, as long as any response provided does not amount to making changes to the bid (Natural World Products Ltd v ARC 21 [2007] NIQB 19, in which the contracting authority was allowed to ask questions of a bidder as to whether its approach could cope with demand at peak times by clarifying the capacity of a plant).
• Where the error has clearly been made as a result of an error or lack of clarity by the contracting authority, clarification should be sought (JB Leadbitter v Devon County Council [2009] EWHC 930).
• Documents that are obviously missing from a bid submission may be requested after the deadline provided it can be shown that the documents produced pre-dated the deadline (Manova (C-336/12)).
• If a contracting authority has confirmed in the published tender documents that it will exclude bidders for failing to provide certain information, it cannot then decide to request additional information if a bidder fails to comply with that rule (Cartiera dell'Adda and Cartiera di Cologno (C-42/13)).