We had another success at the National Board of Appeals. This time we represented a client whose bid content – in terms of filling out the bid estimate – was challenged by a competing contractor.
In the tender proceedings, the client submitted a cost estimate along with his bid, where he mistakenly did not fill in two “unit price” items. In the “value” item, in turn, he indicated PLN 0.
In the course of the proceedings, the Contracting Authority called on the Client to agree to correct another mistake consisting in non-compliance of the bid with the terms of the contract, since, according to the Contracting Authority, in two missing items of the cost estimate, the unit price should be specified as “0”. The Client gave such consent, and the Contracting Authority finally recognized the Client’s bid as the most advantageous.
The Contractor ranked second in the ranking of bids filed an appeal against such action of the Ordering Authority. He pointed out that the lack of a unit price in two items could not be supplemented or corrected by the Contracting Authority by way of a mistake, especially since the Contracting Authority accepted the cost-based nature of the remuneration. By correcting the mistake, the Contracting Authority thus significantly changed the content of the Offer, and even independently priced it, in terms of two items. The appellant argued that the ordering party required that each item be priced with an accuracy of PLN 0.01, which means that each item is to contain a positive value.
Such allegations were disagreed with by both the Contracting Authority and our Client acting as an Adherent.
Representing our client, we argued that the Ordering Party, by performing a simple mathematical operation, was able to determine the missing unit price – if the value of the item was set at PLN 0 also the unit prices could not be other than PLN 0. In addition, we argued that indicating a zero price is still a valuation, since zero is a real and measurable number. The Ordering Party in the SWZ did not forbid pricing an item at PLN 0 and did not indicate that providing such a value would be tantamount to rejecting the Offer. We pointed out that the costing nature of the remuneration does not change the rules for correcting errors and does not prejudge the fact that the Ordering Party independently changed the content of the Offer and in a “significant” way.
In issuing its ruling, the NAC agreed with our position and shared the arguments we cited in full. The Chamber agreed that the value of PLN 0.01 specified by the Ordering Party is only the required accuracy in the price quotation and not an order to make the valuation at an amount higher than zero. The correction of the mistake did not require the Contracting Authority to consider or negotiate with the Contractor – since the value of the item was PLN 0, there was no doubt about the unit price – it also had to be PLN 0. The Chamber recognized our position that since the Client priced two items at PLN 0, he was aware of their performance and agreed to perform them without payment.
The Chamber also checked what prices in the missing two items were indicated by the contractors further down the bid ranking before issuing its judgment, and found that the differences in pricing were significant. The NAC added that the Appellant should have demonstrated on appeal that cost avoidance in the two missing items was not possible. The mere fact that the Appellant priced all items does not mean that under all conditions every contractor also had to incur the same costs.
In summary – failure to value an item or to specify its value as 0 zlotys does not necessarily lead to rejection of the offer.
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
