The contractor does not have to submit detailed explanations of the bid price when the call is not tailored to the type of contract
This is another success for us at the National Board of Appeals this year. This time we successfully represented a client whose bid content – in terms of explanations of factors influencing the price – was challenged by a competing contractor.
Most favorable bid and appeal of rival contractor
In the tender proceedings, our Client’s offer was considered the most advantageous. Prior to the selection, the Contracting Authority called on the Client to submit explanations regarding the abnormally low price, and the Client submitted extensive explanations in this regard. Despite this, a competing contractor filed an appeal against the Ordering Entity’s action, in which it showed that our Client had provided explanations of individual components affecting the price in an overly general, imprecise and insufficient manner. And consequently – he failed to prove that his proposed price is not abnormally low. In this case, in turn, the Client’s offer should be rejected.
Such allegations were disagreed with by both the Contracting Authority and our Client acting as an Adherent.
Client’s defense, argumentation and KIO’s verdict
Representing our Client, we argued that the Contracting Authority, in its request for explanations affecting the price, asked the Client two types of questions: one related to the manner of performance of the subject matter of the contract and the materials necessary for its performance; the other type was in fact a duplication of Article 224(3) of the Public Procurement Law. We pointed out that the Client answered in detail the questions directly related to the subject of the contract. In the case of questions reflecting the PPL Law, the Client provided answers to the extent possible and relevant to the subject matter of the contract. We pointed out that the subject matter of the contract is not construction work, but supplies and services, so that a significant part of the questions arising from Article 224(3) of the PPL, cited above, are not applicable. Our position was upheld by the Contracting Authority, claiming that in fact it was interested in explanations directly related to the manner of execution of the contract and the materials to be used, while questions concerning, for example, environmental protection or state aid were asked only so as not to restrict the contractor in submitting explanations.
In issuing its judgment, the National Board of Appeals agreed with our position and shared the arguments we cited in full.
In summary, the construction by the Contracting Authority of a request for explanations of an abnormally low price based solely on the provision of the PPL Act may not be fully adapted to a given type of contract. The Contractor cannot be required to explain comprehensively elements that do not apply to the contract in question at all.
If you are interested in the details of the case (e.g., reference) – you are welcome to contact directly Jedrzej Witaszczak, legal counsel and manager in the public procurement team: j.witaszczak@dsk-kancelaria.pl
