Board of Complaints: Contracting party is under no obligation to provide a notification when encountering obvious flaws
A new ruling from the Board of Complaints for Public Procurement, finds the contracting party to be under no obligation to inform the bidding party about obvious flaws in the ESPD. The ruling regards an EU tender bid from the service sector, more precisely on an airport bus route in 2018.
The ruling regards a wrongfully submitted answer of the ESPD part V, which should have contained a “yes” remark. However, as the answer was obviously a mistake, as shown by the information within the ESPD part IV, the contracting party did not notify the tenderer. When the tenderer’s bid proceeded to win the tender, a third party, who had also made a bid on the tender, created a case of complaint.
Thus, the ruling effects the current affairs of EU tenders in Denmark, through the creation of the contracting parties’ possibility of disregarding notifications to the tenderers, when encountering obvious flaws. Secondary hereto, the decision on whether the flaw is an obvious flaw or not a flaw becomes an evaluation of the contracting party, outside of the usual parameters. This evaluation carried out by the contracting party and provides them with room for maneuverability when encountering inconsistencies within the ESPD, if these can be perceived as obvious flaws. However, it also opens for both the selection and exclusion of applications/bids, prior to the de facto evaluation.
A solution to diminish this problem would be to diminish the area for mistakes by rendering irrelevant parts of the ESPD unavailable, in this case part V, as it was answered by part IV. However, the impact of the ruling for bid evaluation by contracting parties will have to be seen, but it places further emphasis on the quality of EU tender bids.