Blog

Authors:

  • Monika Gnacy-Witt

    Junior Associate, Duraj Reck & Partner Law Firm

26 September 2024

How to win a tender?

The pre-contract process, although often perceived as complex by contractors, actually consists of clearly defined stages. Contractors have a real impact on the content of the procurement documents. The regulations provide for the possibility of asking questions to the contracting authority in order to dispel doubts concerning, m.in others, the description of the subject of the contract, the conditions for participation in the procedure and the criteria for evaluating bids. If the contracting authority’s actions deviate from the applicable rules, contractors also have the right to use legal remedies.

Where to look for orders?

Public procurement notices are published on the government platform “e-procurement”. This platform provides free electronic services supporting the public procurement process, including communication between contracting authorities and contractors. For contractors, the platform is primarily a tool for browsing through announcements, searching for contracts according to specific criteria, such as the type of contract (supplies, services, construction works), the type of contracting authority, the subject of the contract, etc. Contracting authorities can conduct proceedings on the “e-procurement” platform or on dedicated procurement platforms. Information about the place of conduct of the procedure is given directly in the contract notice. For contractors, this is key information, indicating how to submit a bid and where to find procurement documents.

Step one – analysis of order documents

Procurement documents should be understood in particular as documents used to define or describe the terms of the contract, including the terms of reference and the description of needs and requirements (more often referred to by contracting authorities as the “description of the subject of the contract”). The procurement documents also include the contract (draft provisions of the contract). First of all, it is worth reading the description of the subject of the contract, in which the contracting authority specifies the requirements and circumstances that may affect the preparation of the bid, as well as the required features of supplies, services or construction works. Next, it is worth reviewing the draft contract, paying particular attention to the deadlines, the method of payment, the possibility of partial payments, indexation of remuneration, the amount of contractual penalties and possible possibilities of amending the contract.

After reading the description of the subject of the contract, the next step should be to analyze the conditions for participation in the procedure. They may relate to the ability to act in business transactions, the right to conduct a specific business or professional activity, the economic or financial situation, as well as technical or professional capacity.

If the contractor meets the conditions for participation in the procedure, it is worth analyzing the bid evaluation criteria. Often the price is the only criterion, but the contracting authority may also provide for additional ones, e.g. extension of the warranty for the work performed. Offering a longer warranty period will allow you to get additional points when evaluating the offer, and this may be important for its selection.

Step two – the ability to ask questions

In the event of any interpretative doubts, ambiguities or ambiguities in the content of the procurement documents, the contractor has the right to ask the contracting authority for clarification. In the domestic procedure (basic procedure), the Contracting Authority is obliged to provide explanations immediately, but not later than 2 days before the deadline for submission of bids, provided that the request for clarification of the ToR was submitted no later than 4 days before that date. The deadlines for asking questions and providing explanations in the EU procedure (open tender) are regulated by Article 135 of the Public Procurement Law.

Questions should be asked as early as possible, as the contracting authority is not obliged to answer questions that are received after the deadline. On the other hand, if the Contracting Authority does not answer the questions submitted on time, it is obliged to extend the deadline for submitting bids.

The explanations provided by the contracting authority are binding on all participants in the procedure.

Step Three – Contractor, Appeal

If, during the analysis of the procurement documents, in particular the terms of the contract and the bid evaluation criteria, the contractor finds that they are disproportionate, do not ensure fair competition, favour certain contractors or specific products, it has the right to use legal remedies. The same applies to the content of the contract – if it contains prohibited provisions (Art. 433 of the Public Procurement Law) or others that infringe the contractor’s interest. An appeal against the content of the announcement initiating the public procurement procedure or against the content of the procurement documents shall be filed within the following periods:

  • 10 days from the date of publication of the notice in the Official Journal of the European Union or publication of the procurement documents on the website in the case of contracts whose value is equal to or exceeds the EU thresholds;
  • 5 days from the date of publication of the announcement in the Public Procurement Bulletin or on the website, in the case of contracts whose value is lower than the EU threshold.

As can be seen from the above, these time limits are not long, especially in domestic proceedings. Therefore, it is not worth delaying, because if the contractor does not take appropriate action in due time, the content of the documents will become binding. It is worth mentioning that sometimes the mere filing of an appeal causes the contracting authority, acknowledging the contractor’s arguments, to make changes to the procurement documents even before the case is considered by the National Chamber of Appeal.

Step four – placing an offer

In the Terms of Reference (ToR), contracting authorities usually devote a separate chapter to the description of documents to be submitted with the bid. The ToR contains specimen statements on meeting the conditions for participation in the procedure and the absence of grounds for exclusion. This document also provides information on how to sign the offer – the requirement to provide a qualified signature, a trusted profile or a personal signature, respectively. In addition, contracting authorities post detailed instructions on how to submit bids via their platform.

Step five – opening bids

The contracting authority, no later than before the opening of bids, publishes on the website of the conducted procedure (platform) information about the amount it intends to allocate to finance the contract. Then, immediately after the opening of bids, it publishes a document – the so-called “information on the opening of bids”, in which it provides, m.in others, the names of contractors who submitted bids and the prices offered. After the publication of this information, the contracting authority proceeds to examine and evaluate the submitted bids. At this stage, contractors should expect possible requests for explanations or to submit documents confirming compliance with the conditions for participation in the procedure.

Step six – selection of the offer, you can also appeal here

If the Contracting Authority has performed an action inconsistent with the provisions of the Public Procurement Law, e.g. it has unjustifiably rejected a bid or has selected a bid from a contractor who did not meet the conditions for participation in the procedure or if there were grounds for exclusion – the Contractor also has the right to use legal remedies. The time limits for filing an appeal, discussed earlier, are also applicable in this case, but they start to run from the moment of providing information about the action constituting the basis for filing an appeal. For example, this deadline is counted from the date of notification of the rejection of the bid, and not from the date of selection of the most advantageous bid, which is often misinterpreted by contractors (however, it may happen that both of these messages are provided on the same day).

Summary – conclusion of the agreement

The end of the procedure described above is the award of the contract, i.e. signing the contract with the contracting authority. The average duration of proceedings below the EU thresholds in 2023 was 40 days, while in EU proceedings as much as 90 days. Of course, this is an average value, and more and more often contracting authorities finalize the procurement process faster. After signing the contract, the contractor may proceed to the implementation of the public contract.

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