A frequent issue encountered in public procurement procedures is the practice of certain Contracting Authorities that insert ambiguous award criteria or compliance requirements into the tender documentation. These lead to the disqualification of tenderers on the basis of general, non-explicit obligations, which undermines the principles of transparency, proportionality, and equal treatment. Law No. 98/2016, as well as the case-law of the CNSC and the CJEU, clearly establishes the obligation of authorities to expressly define compliance requirements and award criteria, thereby ensuring that economic operators receive complete, accurate, and precise information. Otherwise, tenderers may resort to legal remedies, including requests for clarifications and challenges against unlawful disqualification decisions.
The Issue of Ambiguous Award Criteria
In practice, some Contracting Authorities have disqualified tenderers on the grounds that they failed to prove possession of certain authorisations or certificates regulated by tertiary legislation, even though the tender documentation (the Data Sheet and the Technical Specifications) contained no explicit reference to these documents. The reasoning for disqualification relied solely on general wording such as “Tenderers are required to comply with all applicable legislation in force in Romania and the EU.”
Such provisions cannot be elevated to the level of compliance requirements. In such cases, authorities could arbitrarily convert obligations related to contract performance into conditions for evaluating bids, depriving the procurement process of predictability and transparency.
Obligations under Law No. 98/2016
According to Article 154 of Law No. 98/2016, Contracting Authorities are required to set out clearly and explicitly in the Data Sheet and the Technical Specifications the compliance requirements and the manner in which tenderers must demonstrate fulfilment. Any ambiguous approach is unlawful.
Moreover, Article 2 of Law No. 98/2016 enshrines the fundamental principles: non-discrimination, equal treatment, mutual recognition, transparency, proportionality, and accountability. These principles establish a sound competitive framework and guarantee equal opportunities for all participants.
CNSC Practice on the Clarity of Requirements
TThe National Council for Solving Complaints (CNSC) has ruled that:
“where it considered necessary a description/presentation of the way in which the quality plan should be drawn up, in other words if it considered necessary for the tenderers to describe how they would fulfil this obligation as contractors, the Contracting Authority was obliged to EXPLICITLY mention this requirement, so as to ensure economic operators complete, correct and precise information regarding the requirements of the procurement.”
CJEU Case-Law on Unclear Requirements
European case-law also confirms the obligation of authorities to include precise and non-discretionary requirements in tender documentation. The principle of nemo auditur propriam turpitudinem allegans prevents an authority from invoking its own illegality to justify the disqualification of tenderers.
- CJEU, C-27/15, Pippo Pizzo v. CRGT Srl., 2 June 2016, paras. 50-51: criteria must be explicit; disqualification on the basis of ambiguous wording breaches the principle of transparency.
- CJEU, C-42/13, Cartiera dell’Adda, 6 November 2014, para. 44: award criteria must be clear, precise, and unambiguous in order to ensure equal opportunities and eliminate favoritism.
Remedies Available to Tenderers
When Contracting Authorities breach these obligations, tenderers have access to gradual remedies:
- Requests for clarifications – pursuant to Article 160(1) of Law No. 98/2016:“Any interested economic operator has the right to request clarifications or additional information in connection with the Tender Documentation, in compliance with the deadline set by the contracting authority in the contract notice/simplified notice/contest notice.”
- Challenges against unlawful decisions – under Law No. 101/2016, disqualification decisions may be challenged before the CNSC or before ordinary courts. Case-law confirms the high likelihood of success for such challenges when disqualification is based on ambiguous criteria.
Conclusion
Contracting Authorities are under the obligation to use compliance requirements and award criteria that are clear, precise, and explicit. The disqualification of tenderers by reference to ambiguous template provisions is an unlawful practice, sanctioned by both national and European case-law. Tenderers must remain vigilant, request clarifications, and, where necessary, challenge disqualifications based on such criteria, in order to safeguard transparency and equal treatment.