The Czech Competition Protection Office has published guidelines on clarifying and supplementing bids in tender procedures

The Competition Protection Office (the Office) has published guidelines on the application of Section 46 of the Public Procurement Act (the PPA) regarding its current decision-making methods. This provision of the PPA contains rules for clarifying and supplementing information that participants provide to contracting authorities during tender procedures.

Our experience shows that the correct application of Section 46 of the PPA is important not only for the contracting authorities but also for the suppliers. We often advise clients who are not sure when the contracting authority is obliged to give them an opportunity to explain or supplement their bids, instead of excluding them from the procurement procedure, or whether they should have an opportunity to remove all defects in their tender. The guidelines should shed some light on these and other uncertainties.

Under Section 46 of the PPA, the contracting authority can request the supplier to clarify or supplement the tender or any other acts in the tendering procedure, such as requests for participation or qualification documents. The basic purpose of this provision is to enable the contracting authority to assess the compliance of the tender (or any other act by the tenderer) with the tender conditions and the law where the content of the tender or the relevant act is unclear. In such case, clarification of information already submitted may be requested, irrespective of to what the information relates. It may therefore be information relating to the conditions of participation in the tendering procedure as well as information relating to facts relevant to the evaluation of tenders. However, clarification cannot lead to a substantive change in the tender.

1 To whom is the contracting authority entitled/obliged to apply the procedure under Section 46 of the PPA?

Section 46 of the PPA applies to the participants in a procurement procedure, including the selected supplier.^[1] The provision gives the contracting authority an entitlement but not an obligation to request clarification or supplementation of the tenders/other acts in the tendering procedure. 

Moreover, the procedure under this provision does not have to be completely identical for all participants in the procurement procedure, as the participants may not be in comparable situations. Therefore, the principle of equal treatment cannot be applied mechanically, and the contracting authority must always assess the specific factual circumstances.^[2] 

When assessing whether the contracting authority’s application of the procedure complies with the law, the differences in the situation in which the individual participants in the procurement procedure find themselves must thus be taken into account.

1.1 Obligation to proceed in accordance with Section 46 of the PPA before excluding a tenderer

In certain cases, the contracting authority may be unable to determine whether there are grounds to exclude a tender participant based on the submitted bid. According to the Office’s decision-making practice, if the contracting authority does not have sufficient supporting documents (data, documents, samples or models) to assess whether the tenderer fulfils the tender conditions, and at the same time it is obvious that there is an easily explainable internal contradiction in the tender which could have been caused by, e.g. an administrative error in the form of an obvious clerical error, a calculation error, etc., the procedure under Section 46 of the PPA before the exclusion of such tenderer transforms from an option to an obligation.

1.2 Optionality of the procedure according to Section 46 of the PPA before the exclusion of a tenderer

Where should the line be drawn between the optional and mandatory application of the provisions of Section 46 of the PPA, if the contractor is convinced that the contracting authority should have asked it to clarify its tender before excluding it from the tender procedure?

The Office analysed a case^[3] where the supplier confirmed in its tender that printing equipment met the requirements of the contracting authority. However, the particular product specification showed the opposite. Although the tender contained an express confirmation that a parameter of the printer was met, the description of the parameter revealed that the tray capacity did not reach the capacity required by the contracting authority.

It was therefore clear that the tender did not comply with the tender conditions, and it was apparent that it was not merely a formal error. The Office stated that if the supplier had provided data concerning the printer’s capacities in the tender, it would have been fully in line with the law that the contracting authority did not further verify the actual parameters of the printers and assessed compliance with the tender conditions based on the data provided by the supplier. The contracting authority evaluated the tender as submitted to it and did not have to check whether the supplier had made a mistake and indicated something in the tender that it did not want to indicate.

Therefore, if, on the basis of the information given in the supplier’s tender, it is clear that the tender does not meet the tender conditions, the contracting authority is not obliged to ask the supplier to clarify, explain or supplement the tender, and can exclude the tenderer from the tender procedure.

2 Is the contracting authority obliged to remove all defects in the tender in accordance with Section 46 of the PPA?

By initiating the procedure under section 46 of the PPA, the contracting authority does not establish a general rule that it will clarify all discrepancies in the tender, and the supplier cannot expect the contracting authority to do so regarding its entire tender. It is clear from the Office’s decision-making practice that it is neither the duty of the contracting authority nor the purpose of Section 46 of the Act to eliminate all possible imperfections in the submitted tender, as the responsibility for the correctness of the submitted tender lies solely with the supplier.

3 Application of Section 46 of the PPA regarding the qualification requirements

The President of the Office explicitly states in his decision that “additions to the data relating to the demonstration of compliance with the conditions of participation are not considered to be changes to the tender, while the facts decisive for the assessment of compliance with the conditions of participation may occur even after the deadline for submission of tenders has expired.”^[4] Information concerning the supplier’s qualifications may thus be supplemented.

The tenderer also cannot be excluded if the contracting authority has not considered whether all the references submitted are suitable for demonstrating qualification.

If the contracting authority initiates a procedure according to Section 46 of the PPA in order to clarify the supplier’s qualification, the supplier can submit references that were not originally included in the tender and the contracting authority is obliged to accept them.

4 Application of Section 46 of the PPA to the requirements for the subject matter of a public contract

If a clarification request under Section 46 of the PPA relates to the subject matter of the tender, the same performance must be offered before and after the clarification, i.e. there must be no material change in the performance offered. However, new information about the performance can be submitted.

5 Application of Article 46 of the PPA in relation to the evaluated data

Although Section 46(2) of the PPA expressly states that the tender can be supplemented by data, documents, samples or models that will not be evaluated according to the evaluation criteria, this does not mean that the application of Section 46 of the PPA is prohibited entirely concerning the evaluated data. In fact, Section 46 of the PPA speaks not only of supplementation but also of clarification. However, the line between the possibility and impossibility to apply Section 46 of the PPA to data from the supplier’s tender, which are also subject to evaluation, is very thin and depends on the specific facts of the case.

5.1 Legally permitted clarification of an evaluated parameter

A formal modification of a tender where the offered performance remains the same is in accordance with the law even if the clarification relates to the parameter subject to evaluation.

Furthermore, the Office has concluded in its decision-making practice that if the tender contains differing information on the amount of the tender price, but it is clear at first sight from the tender that an easily explainable error has occurred and no other circumstances indicate that the transparency or fairness of the tender procedure is at stake, clarification of the tender within the meaning of Section 46 of the PPA is possible.

As an example, if the supplier indicates in several places in the tender the tender price for 18 trolleybus units to be delivered under a public contract in accordance with the contracting authority’s requirement, and inadvertently enters the price for one unit in the electronic tool, while it is evident, after performing a simple mathematical operation, that the tender price for all 18 units corresponds to other data from the supplier’s tender, there is no reason to consider a clarification under Section 46 of the PPA as contrary to the law.^[5]

5.2 Unauthorised modification of an evaluated parameter

Except in specific cases, a change in the price in the contract proposal is inadmissible. Any change to the price information in the supplier’s tender can only be accepted under the procedure in Section 46 of the Act if the discrepancy in the tender was the result of an easily explainable and minor error.

6 Application of Section 46 of the PPA to itemised budgets

In accordance with Section 46 of the PPA, it is also possible to correct an itemised budget in terms of pricing (while maintaining the total tender price). However, no change to the subject matter of the public contract is possible, as even when correcting the itemised budget there must be no material change to the submitted tender.

There is no established case law of administrative courts dealing with Section 46 of the PPA. For this reason, the decision-making practice of the Office may change in the future. Nevertheless, we believe that the Office’s guidelines, although non-binding, might help both suppliers and contracting authorities understand the topic. For more information on clarifying and supplementing bids in bid procedures in the Czech Republic, contact your CMS client partner or local CMS experts: Lukáš Janíček, Lenka Krutáková and Jan Gerych.

^[1] Decision Case No. ÚOHS-S0139/2020/VZ, confirmed by Case No. ÚOHS-R0127/2020/VZ.

^[2] Decision of the President of the Office file No. ÚOHS-R0190,0195/2021/VZ.

^[3] Decision Case No. ÚOHS-S0027/2020/VZ, confirmed by Case No. ÚOHS-R0068/2020/VZ.

^[4] Decision Case No. ÚOHS-S0655/2021/VZ.

^[5] Decision file No. ÚOHS-S0278/2021/VZ, confirmed by file No. ÚOHS-R0169/2021/VZ.