Legal Updates

A tender bidder cannot complete at a date after submission of the bid documents that are required to meet tender threshold conditions

April 2, 2020

A tender for lighting fixtures required compliance with threshold conditions, and only after compliance with which the committee will review compliance with technical conditions, and only after these two stage are passed the committee will open a second envelope that was submitted as part of the bid and contains the financial bid. One of the bidders passed the threshold conditions stage, but the expert who examined the technical conditions discovered that a safety certification required as a threshold condition was missing. The tender committee allowed the bidder to complete the document in accordance with the section in the tender that allowed the tender committee to request completion of any document, including documents required for the threshold conditions. After submitting the missing document, the bidder won the tender.
The Court held that the winning bid is invalid and that the certification could not be completed at the technical stage because it is a threshold condition which cannot be completed in retrospect even if the tender language allows this. The basic principles of tender law are the equality of participants and the tender's efficiency. In principle, the tender committee may request completion of declarative documents, i.e documents that indicate a situation that exists at the time of bidding, as opposed to the completion of constitutional documents, i.e. documents teaching of a status created after the bidding date. Here the certificate presented by the winner bears a date after the bids were submitted and therefore it is constitutive and not declarative and may not be accepted. In addition, failure to comply with threshold conditions requires the tender committee to disqualify the bid and discretion as to the failure to comply with threshold conditions, even when it exists, is very limited and applies only when it comes to technical threshold conditions. This was a safety threshold condition and therefore it is material there is no discretion for the tender committee to allow it to be completed at a later stage.