Romanian case example 1

Regarding the civil case presented, the court found that through the complaint recorded in this court under no. XXX, the petitioner SC BI SRL requested the annulment of decision no. from XX.0X.2010 issued by the National Council for Claim Solving which rejected as without grounds the claim formulated by SC ZZ SRL against the decision of the Contracting Authority regarding the approval of the procedure Report, which rejected its offer as inadmissible and the public procurement contract for "Shoes" was awarded to the tenderer S.C. C.V S.R.L ; the annulment of the decision to reject its offer and inadmissible and forcing the Contracting Authority to re-evaluate the offers.
The petitioner claimed that the decision of the Contracting Authority, based on which its offer was rejected, motivating that it was inadmissible, according to art. 36 para. 1 letter f combined with art.36/1 para. 4 from Government Decision no. 925/2006 and it is non-compliant, according to art. 36 para. 2 letter a from Government Decision no. 925/2006, is illegal, as related to the provisions mentioned above, in order to prove the fulfillment of conditions regarding art. 36 para. 1 letter f from the Government Decision no. 926/2006, in order to consider that its offer has an unusual low price, it was the Contracting Authority’s duty to prove that the offer, according to the indicated price, could not ensure the parameters requested through the Terms of Reference.
But the fact that it maintained the confidentiality over the name of providers does not help in demonstrating that it cannot ensure the requested parameters.
Regarding the rejection of the offer as non-compliant, related to provisions of art. 36 para. 2 letter a from Government Decision no. 925/2006, in the sense that it does not properly comply with the requirements of the Terms of Reference, the petitioner claims that the Contracting Authority took into consideration the answer no. 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of materials found in children and adult shoes, where it is specified that the "leather sandals" submitted by the petitioner are made from a synthetic material for the interior and exterior side, as well and not from leather, as requested. According to the over five years of experience in the field, taking in consideration that the awarding criterion is the lowest price, the petitioner claims that they are an admissible tenderer, from the economic point of view, and also from the perspective of all qualifying criteria.
The petitioner also states that the evaluation committee, as well as the National Council for Claim Solving (CNSC) have overlooked an essential aspect which calls for the annulment of Awarding Procedure Report and even of the entire awarding procedure, as from the answer no. 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of the material found within the children and adults shoes category it results that the "leather shoes" product submitted by CV is made up mostly from synthetic leather, with an interior "synthetic lining and sock".
While, in terms of the requirements of the Technical Procurement Sheet and of the Terms of Reference, the shoes must be made from natural leather for the interior and exterior side, as well, requirement that the petitioner has fulfilled, and it would discriminatory for its offer to be disqualified because one of is products, respectively the sandals, was made from synthetic leather, and the other tenderer should pass unnoticed.
Therefore, the offer submitted by SC CV SRL does not comply with the requirements of the awarding documentation and it must be rejected as non-compliant, therefore the awarding procedure must be cancelled by the Contracting Authority, due to failure of submission of any valid offer.
After having analyzed the file documents and papers, the contested administrative-judicial act, related to the claims of the petitioner, the proofs brought forward in this case and art.3041 of the Civil Proceedings Code, the Court stated the following :
Through the Decision no. XXX/C9/XXX from XX.0X.2010 of the National Council for Claim Solving, the exception of belated claim invoked by the Contracting Authority was rejected and the claim formulated by the claimant SC BI SRL against the defendant-Contracting Authority DGASPC SECTOR X was rejected as groundless, the court decided for the respective awarding procedure to continue.
In order to take this decision, the administrative-jurisdictional authority mentioned that, after analyzing the criticisms of the claimant, it refers only to the reasons for which the Contracting Authority declared its offer as being inadmissible, without targeting the reasons for rejecting the offer, regarding the submission of samples for the „leather sandals” product which are not compliant with the requirements presented within the Terms of Reference.
In this matter, the Council retained the fact that through the answer no. 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of the material found within the children and adults shoes category it results that the "leather sandals" product submitted by the claimant is made from a synthetic material to the interior and the exterior, instead of leather, as requested, therefore infringing the provisions of art.170 from GEO no.36/2006, so that the Contracting Authority took the right action in declaring the offer of SC BI SRL to be non-compliant, based on provisions of art. 36 para. 2 letter a from Government Decision (GD) no. 926/2006. Acceptance of an offer which does not fulfill the requirements of the awarding documentation would have led or could lead to the infringement, related to those tenderers who did not submitted tenders because their products are not fully compliant with these provisions and with those which submitted compliant tenders but with higher prices, of the fairness principle and of the transparency principle, stipulated by art. 2 para. 2 letters b) and d) from GEO no. 34/2006.
In relationship with these reasons, the Council did not proceed to analyzing further reasons which represented the justification for the rejection of the claimant’s offer as inadmissible, as the non-compliant character of the offer submitted by SC BERTI INTERNATIONAL SRL cannot be changed anymore.
By analyzing the contents of the formulated complaint, according to the provisions of art.283-287 from GEO no.34/2006 and art.3041 Civil Proceedings Code, the Court stated the following :
I. Essentially the petitioner claimed that the decision of the Contracting Authority based on which its offer was rejected as inadmissible, according to art.36 para.1 letter f combined with art.36/1 para.4 from Government Decision no.925/2006 and as non-compliant, according to art. 36 para.2 letter a from GD no.925/2006, is illegal, as, in relationship to the above mentioned provisions, in order to prove the fulfillment of all conditions regarding art.36 para.1 letter f from GD no.925/2006, and in order to consider its offer as having an unusual low price, it was the Contracting Authority’s duty to prove that the offer, according to the indicated price, could not ensure the parameters requested through the Terms of Reference. But the fact that it maintained the confidentiality over the name of providers does not help in demonstrating that it cannot ensure the requested parameters.
Through the clarification notice no. D/6515/16.04.2010, the Contracting Authority asked the claimant to substantiate and justify the tendered price, requesting input invoices, direct expenses, etc., and also the other elements which contribute to price forming, and through the notice answering the clarifications from 20.04.2010 the claimant answered to the request for clarifications by appending a series of invoices for the tendered products whose providers were kept confidential, and as a result of analyzing these documents the committee found that some products are present on several invoices with different input prices for the same type of product, and the tenderer did not justify the forming of the tendered price as requested.
The Court observes that through the clarification notice, the Contracting Authority asked for, according to art.202 para.1 of GEO no.34/2006, substantiation and justification of the tendered price, considered by the Contracting Authority as an unusual low one because it represents less than 85% of the estimated value, and also the accounting balance sheets on the dates of 31.12.2007, 31.12.2008 and 31.12.2009 until the date of 20.04.2010, 14.00 hrs.
Through its answer, the petitioner claims the fact that its price is sincere and serious, attaching for comparison prices practiced by other companies, without disclosing their identity and also showing that its trade mark-up is of up to 40% justified by taking into consideration several types of expenses, like transport-related expenses, storage expenses, administrative expenses, and delivery-related expenses, attaching a list of prices, Goods Received Notes and invoices, without an accounting-based substantiation of the price forming method, through the forming process in itself and also in relationship to the 85% percentage of the estimated value.
As a consequence, the judgment that the claimant did not justify the forming of the tendered price, as requested, is correct.
On the other hand, the claimant’s tender was rejected as inadmissible because of two reasons and not only because it was unacceptable, but also for being non-compliant, as the Notice 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of materials found in children and adult shoes, shows that the "leather sandals" submitted by the petitioner is made from a synthetic material for the interior and exterior side, as well, and not from leather, as requested, this representing an infringement of the provisions of art. 170 of GEO no.36/2006.
The petitioner claimed that the Contracting Authority took into consideration the answer no. 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of materials found in children and adult shoes, where it is specified that the "leather sandals" submitted by the petitioner are made from a synthetic material for the interior and exterior side, as well and not from leather, as requested.
According to the over five years of experience in the field, taking in consideration that the awarding criterion is the lowest price, the petitioner claimed that they were an admissible tenderer, from the economic point of view, and also from the perspective of all qualifying criteria, nevertheless they did not appeal against either the result of the visual expertise or the fact that, indeed, the "leather sandals" submitted by the petitioner were made from a synthetic material for the interior and exterior side, not from leather, thus failing to comply the specifications requested through the documentation issued by the Contracting Authority.
The experience in the field in relationship with the awarding criterion of the lowest price represents a relevant aspect, nevertheless this cannot make a tenderer admissible „de plano”, as it must fulfill all qualifying criteria requested by the Contracting Authority for the tendered product, as there is a possibility for the experience in a certain field may not cover certain categories of products, that the Contracting Authority is particularly demanding.
In exchange, the petitioner claims as well as the National Council for Claim Solving (CNSC) overlooked an essential aspect which calls for the annulment of Awarding Procedure Report and even of the entire awarding procedure, as from the answer no. 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of the material found within the children and adults shoes category it results that the "leather shoes" product submitted by CV is made up mostly from synthetic leather, with an interior "synthetic lining and sock".
While, in terms of the requirements of the Technical Procurement Sheet and of the Terms of Reference, the shoes must be made from natural leather for the interior and exterior side, as well, requirement that the petitioner has fulfilled, and it would discriminatory for its offer to be disqualified because one of is products, respectively the sandals, was made from synthetic leather, and the other tenderer should pass unnoticed.
As a result, the solution issued by the Contracting Authority and of CNSC to reject the petitioner’s offer as inadmissible is the right one, but the Court shall also analyze this reason of the complaint related to the winner’s tender compliance, as the petitioner has a mediated interest in this matter, in the context in which both offers are found to have been unacceptable of non-compliant, the Contracting Authority should have cancelled the awarding procedure, and the petitioner would have had the possibility, if a new tendering procedure had been initiated, to participate with another offer.
On the other hand, according to art. 2 para 1 letter d, one of the purposes of the Emergency Ordinance is represented by : d) ensuring efficient use of public funds, by applying awarding procedures by the contracting authorities.
From this point of view, the Court observed that, according to the Technical Specifications presented within the Terms of Reference, under the „leather sports shoe” product, there is a requirement for a black or navy blue sports shoe made from weather-proof leather and textile material for the exterior side, resistant to persistent bending, and for the „leather shoes” product, there is a requirement for a black or navy blue weather proof leather, to which, for both products, further elements related to the tying system, the interior material, sole quality, higher quality finishes, etc. are added.
from the answer no. 788/22.04.2010 of the National Research and Development Bucharest Institute for Textile and Leather and the Technical Note regarding the visual expertise of the material found within the children and adults shoes category it results that the "leather shoes" product submitted by CV is made up mostly from synthetic leather, with an interior "synthetic lining and sock", while in terms of the „sports shoes” product it is specified : „shoe tip-support from natural collagen-based fibers, covered with poli-uretic layers, the rest made from synthetic leather”.
As a result, from the CV offer does not result either that the two products, the sports shoe and the leather shoe, are made up from weather-proof leather, as required within the technical specifications.
According to art.201 of the GEO no.34/2006 during the application of the awarding procedure, the Contracting Authority has the right to request for clarifications and, if applicable, complements for the documents submitted by the tenderer/candidates in order to demonstrate the fulfillment of the requirements set down through the qualifying and selection criteria, or in order to demonstrate compliance of the offer with the requested requirements. The Contracting Authority does not have the right, through the clarifications/complements requested, to determine an obvious advantage in the favor of a tenderer/candidate.
Also, according to art.202 of GEO no.34/2006, in the case of an offer with an apparently unusual low price in relationship to what is to be provided, executed or delivered, the Contracting Authority has the obligation to demand from the tenderer, in writing and before taking a decision to reject that offer, details and elaborations considerer relevant in terms of the offer, and also to check the answers justifying the respective price.
(1^1) An offer entails an apparently unusual low price in relationship to what is to be provided, executed or delivered, when the tendered price, without VAT, represents less that 85% from the estimated value of the respective contract, or in the case when within the awarding procedure there are at least 5 tenders which are not taken as inadmissible and/or non-compliant, when the tendered price represents less that 85% of the average price of tenders calculated without taking in consideration the lowest and the highest financial proposal.
(2) The Contracting Authority must take into consideration the justifications received from the tenderer, according to conditions stipulated by para. (1), especially those referring to : a) economic substantiation of the price forming mechanism, related to the manufacturing methods being used, production process or provided services ; b) technical solutions adopted and/or any extremely favorable conditions that the tenderer benefits from for the execution of the works, delivery of products or provision of services ; c) originality of the offer from the point of view of fulfilling all requirements stipulated by the Terms of Reference ; d) compliance with the regulations for work safety and work conditions applicable for the execution of those works, provision of that service or delivery of those products ; e) the possibility for the tenderer to benefit from a state aid.
The Court reasons that the Contracting Authority did not ask for clarifications to that tenderer later on declared as the winner of the tender, regarding the above mentioned aspects, so that the Court cannot deliver an analysis of those elements, as this competence belongs to the Contracting Authority, which as a result of further analysis of justifications and clarifications, may decide, consequently, either to continue the awarding procedure or the annulment of the procedure, according to art. 209 para.1 letter b of the GEO no.34/2006.
Regarding these considerations, the Court, after analyzing the provisions of art. 285 para.1 from GEO no.34/2006 and art.312 of the Civil Proceedings Code, is to accept the claim and abolish decision no. 2310/C9/2521 from 14.05.2010 issued by the National Council or Claim Solving, within the case no. 2521/2010, to partially accept that claim and abolish the Awarding Procedure Report from 28.04.2010, taking the decision for the procedure to continue with the demand for information by the Contracting Authority addressed to the tenderer SC CV SRL.

QUESTIONS :

The tenderer whose offer was rightfully rejected by the Authority argues against and criticizes exclusively the winning tender. Is such a tenderer interested, provided that it cannot obtain the public procurement contract, or is its claim lacking interest ? Is it relevant in this case the fact the reasons invoked are factual ?
If the respective claim was introduced too late, is the examination of interest still mandatory ? The order for solving the two exceptions.
The tenderer asks for the offers to be re-evaluated, criticizing the rejection of its offer and the proclamation of another offer as the winning one. The criticism regarding the rejection of its offer is groundless. Is the criticism regarding the winning offer still to be analyzed or does it lack interest ?