Possibilities for subsequent demands in the case of missing, erroneous or incomplete documents

Rejection of tenders is often also not the best outcome for the contracting authorities which would usually have an interest in keeping as many economic operators in the competition as possible.

It is therefore valuable for everyone, purchasing entities as well the suppliers, to be aware of the circumstances in which possible errors or the like in requests and tenders can be corrected.

The focus of this article will be on subsequent requests for information concerning the application or tender submitted in a tender procedure. In part 2, we will dive into what is stated in the Public Procurement Directive, and in part 3 outline how the provisions are implemented into national law in relevant member states.

Furthermore, in part 4 we will provide an insight into case law from the European Court of Justice as well as national case law and how this affects (and in some cases greatly complicates) this area.

2. DIALOGUE OPTION IN THE PUBLIC PROCUREMENT DIRECTIVE

Contact between the contracting authority and tenderers after the contract notice has been published is restricted in a public tender procedure.

This is due to the ban on negotiations in public procurement procedures which exists to ensure that the fundamental procurement principles of equal treatment, transparency, and proportionality are being observed, as a contracting authority is not allowed to negotiate or talk to only one tenderer while excluding others simply out of preference. Some degree of contact between the contracting authority and the concerned economic operators is, however, permitted in the case of candidates or tenderers submitting applications or tenders that are erroneous, incomplete or are missing documentation. We will explore this topic in the following.

2.1 Subsequent demands for information regarding the application or tender

The Public Procurement Directive 2014/24/EU of 26 February 2014 (“the Directive”), article 56(3) states the following:

“Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.” (our underlining)

The provision is a codification of case law from the Court of Justice of the European Union (CJEU), specifically C-336/12, Ministeriet for Forskning, Innovation og Videregående Uddannelser mod Manova A/S (“Manova”). The case is a preliminary ruling regarding the interpretation of the principle of equal treatment related to the request for subsequent information about a company’s documentation for fulfilment of set selection criteria after the deadline for receipt of tenders. This case will be elaborated in part 4.1 below.

According to article 56(3) it is possible for contracting authorities to make rectifications to an application or a tender unless national law implementing the Directive states otherwise. This leaves room for every member state to have its own version and nuances in the implementation.

This freedom of implementation complicates the matter especially for economic operators seeking to participate in procurement processes in several different countries. This is elaborated in part 3.

The same provision is incorporated in the Utilities Directive (2014/25/EU), Article 76(4).

In preamble 84 to the Directive difficulties for economic operators in procurement processes is addressed, though not in a cross-country perspective:

“Many economic operators, and not least SMEs, find that a major obstacle to their participation in public procurement consists in administrative burdens deriving from the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria. Limiting such requirements, for example through use of a European Single Procurement Document (ESPD) consisting of an updated self-declaration, could result in considerable simplification for the benefit of both contracting authorities and economic operators.”

As such, the ESPD was implemented to lighten the burden for the suppliers and avoid or at least lessen the administrative tasks that comes from obtaining documentation for compliance with the contracting authority’s criteria.

What has happened instead is that the ESPD has created a variety of technical pitfalls for SMEs who must now tread lightly when participating in procurement procedures.
This is a part of the reason why it’s important that contracting authorities have a possibility to correct some of the errors that economic operators will inevitably make.

2.2 Subsequent demands for information regarding documentation

The Directive also contains a provision specifically regarding the supplementation or clarification of the documentation regarding the information stated in the European Single Procurement Document (ESPD).

Article 59(4) states:

“A contracting authority may ask tenderers and candidates at any moment during the procedure to submit all or part of the supporting documents where this is necessary to ensure the proper conduct of the procedure.

Before awarding the contract, the contracting authority shall, except in respect of contracts based on framework agreements where such contracts are concluded in accordance with Article 33(3) or point (a) of Article 33(4), require the tenderer to which it has decided to award the contract to submit up-to-date supporting documents in accordance with Article 60 and, where appropriate, Article 62. The contracting authority may invite economic operators to supplement or clarify the certificates received pursuant to Articles 60 and 62.”

3. NATIONAL IMPLEMENTATION

In this part an overview of the national implementation of article 56(3) and 59(4) in various countries is provided.

All countries have implemented provisions in accordance with the Directive and as it we will show most countries have done this in quite a similar fashion.

3.1 Belgium

Several provisions of the Belgian Act on public procurements of 17 June 2016 govern contacts between tenderers and contracting authorities during a tender procedure.

Article 66, § 3, of the Belgian Act provides the following general rule: where the information or documents to be submitted by the candidate or tenderer are or appear to be incomplete or incorrect or where certain documents are missing, the contracting authority may request the candidate or tenderer concerned to submit, complete, clarify or specify the information or documents concerned within an appropriate time limit. This article also states a boundary: such requests from the contracting authority must comply with the principles of equal treatment and transparency and, if the open or restricted procedure is used, that they may not give rise to a change in the essential elements of the tender.

Article 73, § 3, of the Belgian Act, concerns the use and the submission of the European Single Procurement Document. The article allows contracting authorities to ask candidates and tenderers, at any time during the procedure, to provide all or part of the supporting documents, if this is necessary to ensure the smooth running of the procedure.

A tenderer is not allowed to proactively (i.e., without any question from the contracting authority) correct missing, erroneous or incomplete information and/or documents after the submission of its offer. This would be considered a modification of the submitted offer which is strictly prohibited.

The above-mentioned rules are applicable to all public procurements. Belgium has implemented their provisions in accordance with the Directive.

3.2 Denmark

In the Danish Public Procurement Act the Directive’s Article 56(3) has been implemented as two separate provisions governing the contact between tenderers and contracting authorities regarding subsequent requests for information.

Section 151(4) of the Danish Public Procurement Act governs the possibility for contracting authorities to request the economic operators concerned to supplement or clarify documentation on suitability or fulfilment of selection criteria.

Section 159(5) of the Danish Public Procurement Act governs the possibility for contracting authorities to request the economic operators concerned to supplement, clarify or complete relevant information or documentation if the information or documentation that the economic operator submitted as part of their application or tender is incomplete or erroneous.

In the preparatory works for Section 159(5) it is stated that a request for rectification must be made in compliance with the principles of equal treatment and transparency and cannot result in an advantage in either time or knowledge for the economic operator by allowing submission of relevant information or documentation after the time limit for receipt of tenders.

This request can be made after the deadline for applications or tenders, and as seen in Danish case law it is not unlikely that contracting authorities will recall an award decision to request subsequent information if they have been informed of errors or lacking documentation that they overlooked.

Danish legislation has also gone a step further than the Directive. Section 159(6) of the Danish Public Procurement Act states that a contracting authority is obligated to reject an application or tender, if the tender documents state that failure to comply with a requirement will result in exclusion, and the application or tender does not comply with that requirement. The preparatory works references para 40 of the Manova-case: “The tender documents do not state that failure to comply with the requirement will result in exclusion”.

It is important to note that the Danish Public Procurement Act only warrants the possibility of requests for subsequent information and in most cases do not oblige contracting authorities to attempt to rectify errors made by an economic operator.

The rules are applicable to all public procurements.

3.3 Finland

The Act on Public Procurement and Concession Contracts includes some provisions governing contacts between tenderers and contracting authorities during a procurement procedure.

According to section 104 of the Act on Public Procurement and Concession Contracts, the contracting entity may ask the tenderer or candidate to supply, add, clarify or supplement missing or defective information or documents within a time limit. The contracting entity may, for example, request the tenderer to add a missing signature or complete missing information regarding the validity of the offer. Similarly, the tenderer may be requested to correct an obvious pricing error such as wrong currency or punctuation error, appearing elsewhere in the offer. However, the contracting entity may not request the tenderer to clarify, amend or correct the offer significantly in a way that could lead to obvious change in tenderer’s position. The provision applies after the offer has been submitted but before the delivery of the award decision.

The Act on Public Procurement and Concession Contracts does not allow tenderer to proactively correct information.

The rules are applicable to all public procurements. Finland has implemented their provisions in accordance with the Directive.

3.4 Germany

In Germany, following the submission of the bid, it is possible for the contracting authorities to request additional incomplete or incorrect company-related or performance-related documents, see section 56 (2) of the German Regulation on the Award of Public Contracts or to clarify ambiguities under Section 15 (5). However, both may only be carried out under consideration of certain requirements.

Missing, incomplete or incorrect company-related documents, in particular self-declarations, information, certificates, or other verifications, can be subsequently submitted, completed, or corrected, or missing or incomplete performance-related documents can be subsequently submitted or completed. However, the request for performance-related documents relating to the economic evaluation based on the award criteria is excluded.

A tenderer’s proactive correction of missing, erroneous or incomplete information and/or documents after the submission of the offer is not possible after the submission of the tender.
The rules are applicable to all public procurements. Germany has implemented their provisions in accordance with the Directive.

3.5 Italy

In case of submission of missing, erroneous or incomplete documents, the Italian Public Procurement Code provides a specific procedure to follow, i.e., soccorso istruttorio (Article 83(9), of the Legislative Decree of 18 April 2016, No. 50), that can be used only to cure case of missing, erroneous or incomplete documents with exception of the economic or technical offer.

From 1 July 2023, the new Italian Public Procurement Code will come into force (Legislative Decree 31 March 2023 No. 36), the procedure for amend missing, erroneous or incomplete documents is provided by Article 101.

Article 101(1) and (2), of Legislative Decree 31 March 2023 No. 36 provides that the contracting authority shall assign a time limit of not less than five days and not more than ten days to the tenderer to correct the missing, erroneous or incomplete information and/or documents after the submission of its offer. If the tenderer does not provide the information and/or the documents required, the contracting authority excludes the tenderer from the tender procedure. The same provision is also provided by Article 83(9), of Legislative Decree 18 April 2016, No. 50.

Article 101(4) provides that the soccorso istruttorio procedure can also – unlike the regulation in the other countries - be initiated by the tenderer. In particular it is provided that the economic operator can require the rectification of a material error in the technical or economic offer of which he has become aware after the deadline for their submission. This is possible respecting the following conditions: the rectification can occur only until the day set for the offers opening; the rectification does not lead the submission of a new offer, or its substantial modification.

The rules are applicable to all public procurements. Italy has gone a bit further in their implementation than other countries. The time limit of no less than five days and not more than ten days withing which the tenderer must correct errors is not found in either the Directive or any of the other countries’ legislation explored in this article.

3.6 Poland

The Polish Act of 11 September 2019, The Public Procurement Law (PPL) allows documents (including subjective means of proof) and statements (including ESPD) to be submitted/completed and corrected at the request of the contracting authority.

The PPL provides for several types of requests (the most important ones):

1) Obligatory request by the contracting authority if the documents (including subjective means of proof) or statements (including ESPD) submitted are incomplete, incorrect, or missing; the request must be precise and single; the documents or declarations cannot be used to change the content of the tender or to confirm that the selection criteria have been met.
2) Voluntary request for the submission of valid subjective means of proof (at any stage of the procedure) when it is necessary to ensure the proper conduct of the procedure.
3) Voluntary request by the contracting authority to submit updated subjective means of proof when there are reasonable grounds to believe that previously submitted means are no longer valid.

In addition, the contracting authority may (during the examination and evaluation of tenders) request the contractor to specify, clarify and improve the content of tenders and to provide additional information, but it is not permitted to make substantial changes to the content of tenders and to the requirements contained in the specification or the terms of reference.

The provisions of the PPL are not consistent on whether a tenderer is allowed to proactively correct information. On one hand, the act does not prohibit self-supplementing information/documents. On the other hand, regarding the evidence in question, the PPL stipulates that it must be supplemented at the request of the contracting authority. This in an implementation in accordance with the Directive.

3.7 The Netherlands

Under the Netherlands’ public procurement rules a contracting authority may ask a tenderer for clarification about the bid or regarding the tenderer, following the submission of the bid. However, this may not lead to a de facto new bid. Also, the contracting authority may only ask for clarifications after it received all bids. It must also pay particular attention to the principle of equality.

A tenderer cannot proactively correct missing, erroneous or incomplete information and/or documents after the submission of the offer. Correction is only possible upon a request thereto from the contracting authority. There is no obligation for a contracting authority to give the tenderers the possibility to correct missing, erroneous, or incomplete information.

The rules are applicable to all public procurements. The Netherlands has implemented their provisions in accordance with the Directive.

3.8 The United Kingdom

Regulation 56(4) of the Public Contracts Regulations 2015, as amended (“PCR”) provides that contracting authorities may request for tenderers to ‘submit, supplement, clarify or complete the relevant information’ in respect documents or information supplied which appear to be “incomplete or erroneous, or where specified documents are missing”.

Regulation 59(8)-(10) of the PCR allows contracting authorities to request that a tenderer submits supporting documentation or clarifies certificates submitted, where the tenderer has elected to submit a Single Procurement Document.

A contracting authority does have the right, in principle, to seek clarification after bids have been submitted (i.e., after the deadline). However, in doing so, the contracting authority will need to consider its duty of transparency and equal treatment and whether the omission of the information should have rendered the tender non-compliant (i.e., is the information part of mandatory information/document and would the inclusion of the information lead to a breach of equal treatment?)

Whether a tenderer is allowed to proactively correct information does not appear to be expressly provided for in the Regulations. However, contracting authorities cannot review submissions until after the deadline for submissions has passed. So long as the procurement documents do not expressly prohibit this, it would follow, logically then, that a bidder ought to be able to voluntarily correct missing, erroneous, incomplete information after a submission has been made, so long as this is before the submission deadline and that the bidder has communicated clearly that it has amended its submission together with an explanation regarding the reasons.

However, if a tenderer is seeking to correct erroneous information after the submission deadline, the Regulations do not appear to expressly provide for this situation, so such information would only be admissible at the contracting authority’s discretion and subject to the principles of equal treatment and transparency.

The rules are applicable to all public procurements. UK has adopted provisions that are alike the provisions in the Directive, even though they are no longer required to follow EU legislation.

4. CASE LAW

4.1 The European Court of Justice

As mentioned in part 2.1 above, the Directives Article 56(3) is a codification of C-336/12, Ministeriet for Forskning, Innovation og Videregående Uddannelser mod Manova A/S (“Manova”). This case stems from a Danish case in which the contracting authority had requested that a candidate should provide additional information or documentation after the time limit for receipt of applications.

The contracting authority had in relation to the qualitative selection criteria set a provision with the minimum requirement that candidates among other things had to submit a copy of the most recent balance sheet. As two candidates hadn’t submitted balance sheets with their applications, the contracting authority requested that they sent in a copy. The company Manova filed a complaint with the Danish Complaints Board for Public Procurement who referred the following questing to the CJEU:

“Does the EU law principle of equal treatment mean that, after the deadline for applications to take part in a tendering procedure, a contracting authority may not ask a candidate to forward a copy of its most recent balance sheet, provision of which was required under the notice announcing a screening procedure, if the candidate did not provide such documents with its application?”

The CJEU concluded that a request for information or documentation isn’t in breach with the principle of equal treatment, provided that:

1) The information objectively can be shown to pre-date the deadline for applying to take part in the tendering procedure concerned (see para 39)
2) The tender documents do not state that failure to comply with the requirement will result in exclusion (see para 40).
3) The request for information must not unduly favour or disadvantage the candidate(s) to which is it addressed (see para 37). This entails that the request may not lead to the submission, by a tenderer, of what would appear in reality to be a new tender (see para 36).

This has since been repeated in C-42/13, Cartier Dell ‘Adda which concerns an Italian case, in which the CJEU in para 42 stated that:

“The Court has already held that the contracting authority must comply strictly with the criteria which it has itself established, so that it is required to exclude from the contract an economic operator who has failed to provide a document or information which he was required to produce under the terms laid down in the contract documentation, on pain of exclusion.”

In case T-195/08, Antwerpse Bouwwerken v. the EU Commission a tenderer had neglected to fill in a specific price with their tender. The contracting authority rejected the tender, but the tenderer informed the contracting authority that the price could be inferred from another listed price for the exact same good in the price appendix. The General Court found that this was an obvious mistake or at least an ambiguity that could be easily explained and corrected.

Very recently a Croatian court referred a question to the CJEU for a preliminary ruling regarding the matter of subsequent requests for information (C-652/22).

The question raised is if it is allowed for contracting authority to take documents that a tenderer have submitted for the first time after the deadline for receipt of tenders into consideration, if these documents were not originally a part of the tender and show facts that were not originally included in the tender.

In the Croation case, the contracting authority had requested that the winning tenderer supplemented their references to fulfil the minimum requirements for technical and professional ability.

National complaints boards and courts in EU member states which are currently processing cases regarding the subject of subsequent requests for information are likely awaiting the CJEU’s preliminary ruling in this case before concluding their own cases. It will be very interesting to what the ruling will be as it will likely set a precedent for how this matter will be treated under both the Utilities Directive as well as the Procurement Directive across the EU.

4.2 Country-specific cases

Below is highlighted some important country-specific case law concerning the topic of the correction of missing, erroneous or incomplete information and/or documents.

4.2.1 Denmark

In Danish case law certain types of information can be requested if these are missing or erroneous in an application or a tender. Following the Manova case information about an economic operator’s financial status can be requested if these are a part of the requirements for suitability.

There is, however, a constraint to this. If the contracting authority has stated in the tender documents that the application or tender will be rejected if a requirement is not fulfilled, it isn’t possible to correct errors regarding this requirement. This references the Manova case para 40: that it falls to the contracting authority to comply strictly with the criteria which it has itself laid down.

It is key that the principle of equal treatment is being observed meaning if an error is being rectified for one tenderer the same types of errors must be attempted to be rectified for another tenderer.

There is some discussion on whether contracting authorities are obligated to try to correct obvious mistakes based on the General Court’s case T-195/08, Antwerpse Bouwwerken v. the EU Commission. In most cases the Danish Complaints Board for Public Procurement states that there is only a possibility and not an obligation for contracting authorities to rectify errors.

In recent years decisions from the Danish Complaints Board for Public Procurement have become more and more restrictive in the matter of contracting authorities’ subsequent requests for information.

Several cases have shown that the Complaints Board interprets section 159(6), and the meaning of minimum requirements as follows: setting a minimum requirement inherently means that failure to comply with this requirement results in rejection, regardless of whether the rejection is stated in the tender documents. This will mean that it is not possible to correct errors regarding the fulfilment of minimum requirements.

One of the newer and most interesting cases from the Complaints Board is the case of April 29, 2020, Eksponent ApS v. Gentofte Kommune, in which the contracting authority had conducted a public tender procedure regarding the procurement of a new website. The tender documents stated that it was a minimum requirement that economic operators submit a minimum of three references regarding similar projects.

The contracting authority awarded the contract to the company Kruso. More than two months later the plaintiff contacted the contracting authority stating that two of Kruso’s references didn’t comply with the requirements. The contracting authority agreed in terms of one of the references and requested that Kruso sent in additional references, after which the contracting authority maintained the award decision and signed the contract.

The plaintiff filed a complaint with the Danish Complaints Board for Public Procurement (“the Complaints Board”) claiming that the contracting authority had violated section 159(5) of the Danish Public Procurement Act and the principles of equal treatment and transparency by requesting the submission of new references.

In their decision the Complaints Board referenced the Manova case para 40: that it falls to the contracting authority to comply strictly with the criteria which it has itself laid down. In the Eksponent case it was not stated in the tender documents, that failure to comply with the criteria for suitability would result in rejection.

Nonetheless, the Complaints Board decided that the contracting authority hadn’t been entitled to request subsequent information as the missing information was needed in regard to assess the compliance with a minimum requirement regarding technical references.

The case has since been processed by the Frederiksberg District Court which reached the opposite decision going against the standard practice of the Complaints Board. In the court ruling of July 30, 2022 (in BS 13384/2021-FRB) the court stated that the submission of new references couldn’t be regarded as a substantial change in the tender. It was objectively ascertainable that the references existed before Kruso’s submission of the tender as these came from a case library. Furthermore, the court stated that a contracting authority is not always cut off from requesting subsequent information regarding minimum requirements.

As of the publication of this article we haven’t seen any Danish cases from the Complaints Board following the above-mentioned district court’s judgement. The case has been appealed to the High Court where a judgment is awaited. The district court’s judgement has caused concern across the public procurement sector in Denmark, and several contracting authorities are wary of requesting information to complete or correct applications or tenders, as there isn’t a clear line as to what can and cannot be done. It is suspected that the High Court awaits the CJEU’s preliminary ruling in the Croatian case C-652/22 before finalizing their own judgment.

4.2.2 Germany

In a German case (decision of 11/03/2022 - VK 1-23/22) the VK Bund has decided that the bidder is generally not entitled to a second submission in case of insufficient references within the recovery period. A subsequent demand can only be considered if there are no documents at all. This also applies to a possible second request. In the present case, however, the required references were initially submitted within the recovery period. However, as they were insufficient and not unavailable, it was not possible for the bidder to submit the missing documents a second time within the recovery period.

Therefore, tenderers should proceed carefully with the submission of the missing documents/information when bidding on German procurements. As like the case of the submission of a tender, rectification is not possible.

4.2.3 Italy

An Italian case, Council of State - Section IV, 22 February 2023, No.1816, concerns procedural assistance: it is exclusively aimed at seeking the actual will of the company participating in the tender as to the scope of its negotiating commitment, overcoming any ambiguities.

The selection committee can ask clarifications aimed at seeking the negotiation intentions of the tenderers without production of any new documents (difference with soccorso istruttorio). The possibility of recourse to procedural assistance, as allowed by case law, is permitted in the presence of a manifest error or ambiguity in the technical bid where the participant's actual intention can in any case be deduced from other elements of the same technical bid, thus allowing the principle of maximum participation to be combined with the principle of equal treatment.

4.2.4 Poland

In Poland the case law on tenderers proactively rectifying information is divided. In some cases, the National Appeals Chamber (NAC) considers that self-supplementation should be decided with reference to the specific circumstances of the case (KIO 1581/22).

In particular, when the need for supplementation is not related to evaluation issues but to official matters (documents from registers), the NAC considers it excessive formalism to request the same documents from the contractor again.

On the other hand, in one of its decisions (KIO 1649/21), the NAC has clearly stated that it is not possible for a contractor to supplement documents or statements on its own initiative. In other words, there is no certainty that a contractor can supplement documents on its own (proactively) (although such situations do occur).

4.2.5 The Netherlands

A Dutch case from the court of second instance of The Hague ruled in July 2019 (ECLI:NL:GHDHA:2019:2429) that under particular circumstances a contracting authority violates the principle of proportionality by not granting tenderers the possibility to repair their bid. A contracting authority must balance the interests of all tenders. If granting a tenderer, the possibility to repair its bid is in conformity with the principle of equality, a contracting authority must grant that possibility. In this particular case, not granting the tenderer the possibility to repair its bid would have inevitably led to its insolvency.

4.2.6 The United Kingdom

The case Bromcom Computers Plc v United Learning Trust [2022] EWHC 3262 (TCC), contains an interesting analysis on the fact that in principle contracting authorities have the power to receive corrected bid documents after bids have been submitted.

5. CONCLUSION

Following the review on the national implementation in this article we can conclude that the countries have implemented article 56(3) of the Directive into their national legislation in a very similar way.

In all countries it is possible for contracting authorities to request an economic operator to correct errors but only in Italy does the legislation contain a provision that gives the tenderer an access to proactive correction, i.e., to proactively correct errors without a prior request from a contracting authority.

Economic operators bidding on procurement processes in various countries can based on the above have some certainty that there is a possibility for the correction of possible errors.
As stated, there is, however, no guarantee that the contracting authorities will use this access and they are not under any obligation to make non-compliant applications or tenders compliant – even in the case where the missing information could easily and without a problem be obtained based on the Directive article 56(3).

This leaves the tenderers at the mercy of the public entities much in the same way as when the public entity shall assess whether a reservation in a tender that does not in itself oblige the public entity to reject a bid shall nevertheless lead to rejection.

In both cases, the public entity’s effort to help the applicant/tenderer in question may be contested by other participants so even when dealing with a fair minded and pragmatic public entity, our advice to applicants and bidders remains to assume that errors and reservations will not be tolerated meaning that some effort must be made in confirming that all the right information is provided and unambiguous.