Legal Updates

A technical defect in a guarantee can be remedied even if its wording does not match the wording of the tender’s guarantee which was attached to the tender documents

October 15, 2020

The Ministry of Education tender committee disqualified a bid due to a defect in the guarantee as its wording did not match the wording of the guarantee that was attached to the tender documents.
The Court accepted the petition and held that the defect in the guarantee is technical and does not justify the disqualification of the bid. A defect in the guarantee will generally lead to the disqualification thereof, out of a desire to uphold the principle of equality between the participants. Only in very exceptional cases can a defect be remedied and only if the mistake is made inadvertently and in good faith, and when the defect is learnt from the guarantee itself (such as a typo or accidental omission) and provided that the tender committee can construe the exact intention of the bidder and this mistake does not jeopardize the principal of equality. Here, the wording of the guarantee submitted to the tender did not include the telephone number and fax number of the bank, as required in the wording of the guarantee attached to the tender. As this is a technical omission that was made in good faith and does not detract from the validity of the guarantee, its conditions or the possibility of its realization, there is also no apprehension of harming the principle of equality. Therefore, the decision of the tenders committee to disqualify the bid is revoked.