Mihai Ionescu-Balea, attorney-at-law
Abstract
This article examines a notable case ruled by the Romanian National Council for Solving Complaints (CNSC), which raises critical questions regarding the validity of bids submitted during a public procurement procedure, following modifications made to the tender documentation during the submission phase. The analysis explores the legal consequences of inconsistencies between the technical and financial proposals, as well as the binding legal nature of execution schedules. The author highlights how such discrepancies may lead to all bids being declared inadmissible and, consequently, to the annulment of the entire procedure, in light of the principle of equal treatment applicable to economic operators.
Recent case law issued by the Romanian National Council for Solving Complaints (CNSC) offers a theoretically and practically relevant perspective on several current issues in the public procurement sector: what are the legal effects of amending the technical or financial requirements during the tender period? What happens when tenders become inadmissible due to such amendments? What is the legal nature of execution schedules assumed by tenderers?
In this case, the contracting authority amended the qualification requirements during the tender period by publishing a notice in SEAP instructing that a specific category of works previously included in the tender documentation must no longer be part of the offer. Consequently, only one of the three tenderers excluded that category of works from the financial offer but maintained it in the technical execution schedule. The other two tenderers kept that category in both the technical and financial offers. Following the evaluation of the technical proposals, all three were deemed admissible. However, in the financial evaluation phase, the first tenderer was declared the winner, and the other two were disqualified for including works that were no longer part of the tender documentation.
The second-ranked tenderer challenged the award decision, requesting the annulment of the award report and, in the alternative, the annulment of the entire procedure. The Council upheld the alternative claim, finding that none of the three tenderers had complied with the amended documentation, rendering all three tenders inadmissible. As a result, the Council ordered the annulment of the procurement procedure.
Why did the annulment of the procedure occur?
The Council found that the contracting authority could not declare the winning tender as admissible since it suffered from the same deficiencies as the two disqualified tenders. Although the winning tenderer excluded the specific category of works from the financial offer, it retained that category in the technical execution schedule. This led to a misalignment between the financial and technical proposals, as the technical offer included works that were not priced in the financial offer. As the complainant argued, it cannot be presumed that a tenderer offers to execute works free of charge; therefore, failure to include them in the financial proposal must be sanctioned, as correctly held by the Council:
“(…) the inclusion of installations in the technical proposal and their exclusion from the financial proposal constitutes a non-compliance punishable under Article 137(3)(d) of Government Decision no. 395/2016: ‘the financial proposal is not correlated with elements of the technical proposal, which could lead to defective contract performance or constitutes a breach of applicable legislation other than public procurement law.”
For this reason, the Council ruled that the winning tender should also be rejected as inadmissible to ensure compliance with the principle of equal treatment. Since the other two tenders were also inadmissible, the Council applied the harsh sanction of annulling the entire procedure under Article 212(1)(a): “if no admissible offer was submitted.”
What is the legal value of the technical execution schedules?
During the CNSC proceedings, the contracting authority argued that the non-compliance invoked by the complainant and later confirmed by the Council was not a true non-compliance but merely an omission by the winning tenderer. It claimed that execution schedules have no legal value, being merely estimates of the order of execution. Thus, including the excluded works in the schedule did not mean they would actually be executed.
The Council firmly rejected these arguments, affirming the legal significance of the execution schedules: as long as they include a specific category of works, those works are irrevocably assumed by the tenderer and must be duly reflected in the financial offer. Accordingly, the Council held that: “The fact that only the tenderer […] excluded the cost of installations (installations explicitly presented in the technical project and also reflected in the execution schedule by this tenderer) in Form 4 […] did not entitle the contracting authority to consider the offer admissible, given the lack of correlation between the financial and technical proposals.”
Therefore, contractors must assume full responsibility when drafting execution schedules, which are not mere non-binding estimates. They form an integral part of the technical offer, and all activities therein become contractual obligations.
Conclusions
The case discussed above provides several insights into the conduct and responsibility of parties involved in a procurement procedure. On the one hand, the contracting authority must uphold the principle of equal treatment, even above its own interest in successfully awarding the contract. It must also ensure that changes to the tender documentation are clearly understood and correctly implemented by all participants. Otherwise, as seen in this case, even a seemingly minor amendment notice published in SEAP may lead to the annulment of the entire procurement procedure.
On the other hand, tenderers must be held accountable for preparing compliant offers and ensuring alignment between technical and financial submissions. Any discrepancies may result in the offer’s rejection. Additionally, the execution schedule is a binding legal document obliging the successful tenderer to carry out all specified works exactly as planned.