As part of the appeal, a competing contractor accused our client of misleading the contracting authority due to the fact that the expert indicated in the client’s offer did not have the experience required to perform a given function .
Our client indicated in the offer that the expert was a designer under a specific contract, indicating here the name of the task assigned to the design documentation. The Ordering Party had doubts about the expert’s experience, pointing out that in this particular task he was only an assistant, not a designer, and called on the Client to provide explanations in this respect.
Responding to the call, DSK specialists explained that the expert within the entire road investment – understood broadly, not narrowly as indicated in the offer – actually served as an assistant, but also a designer. Thus, the imprecise indication of this issue in the tender form was clarified. The Employer considered these explanations to be sufficient. In the filed appeal, the Appellant emphasized that such actions of our Client were misleading to the ordering party and he should be excluded from the proceedings. The appellant argued that the notion of “investment” or “task” cannot be broadly defined and each time it refers to a specific procedure.
The Chamber did not share this position, recognizing the arguments of our experts as justified. As the Chamber ruled, the terms “investment” and “task” should be understood broadly – not as a specific procedure, but as an entire road investment. Therefore, the allegation was dismissed and it was considered that the explanations provided in this regard were appropriate and consistent with the provisions of the Public Procurement Law.
Referring to the issue of the allegations made by our experts in relation to the Appellant’s offer, the National Appeals Chamber took into account all of our arguments.
The appellant indicated in the tender forms that one of its experts performed a specific function in accordance with the requirements of the SIWZ, from the beginning to the end of construction works. From the information obtained by the Employer, such a statement was not true and called the Appellant for explanations in this regard.
As the Appellant explained – the expert presented by them in the offer does not actually meet the requirements of the Terms of Reference, because he did not perform his function from the beginning to the end of the construction works. As the Appellant argued, he relied on the – as it turned out – untrue statement of this employee, for which he cannot be held responsible. In addition, the Appellant indicated that – possibly – even recognizing his failure in this respect, the only sanction may be not awarding him additional points, due to the fact that we are dealing here with non-price criteria.
The Contracting Authority – denying this position completely – excluded the Appellant from the proceedings.
According to the position presented by our experts, the Chamber confirmed that the Appellant did not show due diligence when verifying the information about the expert in question. According to what the specialists of the DSK law firm raised, the contractor – as a professional entity – should be required to exercise particular diligence in this regard. Especially if the possibility of verifying such data is relatively simple, which the Appellant did, however, only after drawing attention to this fact by the Employer.
Our lawyers also emphasized that the Appellant’s allegation that the Employer should call him for self-cleaning. In fact, the contractor can only “self-clean” if he admits that he has made a mistake and takes appropriate measures to remedy the situation.
Due to the fact that the Appellant all the time denied the fact that he had misled the Employer, the Chamber ruled that his exclusion was absolutely justified, and self-celaning was not possible in this case.
