Effective communication in bid clarification: the key to a successful procurement process?
Author of the article: Mgr. Filip Ondřej, ARROWS law firm (office@arws.cz, +420 245 007 740)
The formulation of the call for clarification of tenders can be a key point in the tendering procedure. A proper understanding of Section 46 of the Public Procurement Act (PPA) can save you time, avoid unnecessary mistakes and ensure equal treatment of all participants. What is the right way to go about it so that you can eliminate minor deficiencies in tenders while not prolonging the procedure at the expense of efficiency?
Why and how to use Section 46 of the PPL?
Section 46 of the PPA was designed to ensure that even minor irregularities in tenders do not automatically result in the exclusion of a supplier on formal grounds. This gives the contracting authority the possibility to:
- require clarification of the data, documents, samples or models submitted,
- request the completion of additional data not originally requested,
- address formal deficiencies without violating the principle of equal treatment under Article 6 of the PPA.
Imagine that a key tender contains a minor irregularity in the documentation. Without the possibility of clarification, the tender would be eliminated, which could theoretically lead to the selection of a less favourable tender. Thus, the use of Section 46 of the PPA can ensure a transparent and fair procedure, where such a bid, if successfully clarified, can be retained in the tender procedure.
How to formulate an invitation that does not "cycle" the process?
The key to effective bid clarification is a clearly and understandably worded invitation.
How to do it?
- Clearly define the requirements. Explain exactly what needs to be added or clarified.
- Avoid vagueness. A call that allows for multiple interpretations leads to more questions and "cycling" of the process.
- Deadlines. Set a realistic and reasonable deadline for response.
If the invitation is not specific, the contractor risks offering irrelevant information, which risks prolonging the process.
What to watch out for
Although Section 46 of the PPL is a powerful tool, it can present certain pitfalls. Contracting authorities should be aware of the following risks:
Good faith. The contracting authority must act honestly and transparently. An invitation that is worded unclearly may mislead an honest supplier.
Misuse. If the contracting authority does not formulate the invitation correctly, it may have to repeat it, which lengthens the process.
Manipulation. A supplier may deliberately present responses to meet formal requirements but not the actual terms of the solicitation.
From the decision-making practice of the Office of the Competition Authority
The decision of the Office for the Protection of Competition (OPC) of 3.10.2023, file no. ÚOHS-R0146/2023/VZ, emphasises that the contracting authority is not obliged to repeat the invitation if the first invitation was unambiguous and the supplier has not removed the doubts, it is only the contracting authority's possibility to repeat the invitation. This approach protects the contracting authority against inefficient prolongation of the procedure.
As it follows from the decision of the Office of the Procuring Entity of 13 May 2022, Case No. ÚOHS-S0118/2022/VZ, the supplier itself cannot count on the procuring entity to use the procedure under Section 46 of the ZZVZ "indefinitely", therefore, the suppliers themselves should also respond to a correctly formulated invitation of the procuring entity "the first time". Otherwise, the procedure could be inefficiently prolonged for reasons on the part of the invited supplier.
Bid clarification is a tool that allows you to conduct the procurement process efficiently and fairly. However, the key to success is the correct wording of the invitation. It allows you to keep in the tender a tender that has minor deficiencies but could be excluded from the tender.
Do you need help with the correct wording of calls for tenders under Section 46 of the PPLA or with legal representation in the tendering procedure? Contact us today for professional legal advice that will protect your interests and simplify the entire process.