This article deals with a central topic in public procurement, minimum requirements, and presents the latest Danish practice about minimum requirements and discretionary elements.
The Danish Complaints Board for Procurement issued a ruling on the 22nd of Au-gust 2023, commenting on the fulfilment and suitability of a minimum requirement that had a discretionary element added to its fulfilment for the bidders in relation to their specific tendered solution.
The decision concerns a public tender for the supply of analytical equipment to hospitals as well as the performance of subsequent analyses.
In the tender documents, a minimum requirement stated: “Water treatment plants, providing water of the necessary quality and quantity to all geographies, must be included in the delivery to the extent necessary …”
No additional requirements for the water treatment plants were specified in the tender documents, but during the tender process, a number of questions were asked about the plants, which the contracting authority answered in relation to current use, dimensions, etc., and it was further specified that a plant at a specific location was expected to be replaced, as it was of an older date.
The contracting authority concluded in its evaluation report that all minimum requirements were met, while the authority also noted that the winning bidder had chosen not to replace the water treatment plant that was expected to be re-placed.
A couple of months after the contract was awarded, a deselected bidder complained that 1) as the primary claim, that the winning bidder had not fulfilled the mini-mum requirement, 2) as a secondary claim, that the minimum requirement was unclear and unsuitable, and 3) that the winning bidder's bid was abnormally low. This article only concerns the first two claims, which the Complaints Board dealt with as one.
In its ruling, the Complaints Board emphasizes that the minimum requirement only stated that water treatment plants should be supplied to the extent necessary in relation to the tendered solution, which was supported by answers to questions during the questioning round.
On this basis, it was not excluded in the tender documents or during the tendering procedure that the bidders could use the existing water treatment plants, provided the bidders could ensure that the requirements to deliver water of the necessary water quality and quantity were met by the tendered solution.
The fact that the contracting authority had expressed an expectation of the re-placement of a certain system did not mean that the wording or meaning of the minimum requirement itself changed.
In addition, the Complaints Board states that the framework in the tender condi-tions corresponds with this approach and that the wording as a whole does not have an ambiguity that makes it unsuitable for bidders to make a bid.