The mere possibility to correct a materiel defect in a bid submitted in a competitive procedure may harm the principle of equality

A bidder's bid in a competitive procedure for the selection of a transportation operator was disqualified due to errors in the price bid.
The Court rejected the petition and held that the bid was duly disqualified due to a fundamental defect in the bid that cannot be corrected.
A public authority's competitive procedure is subject to the rules of administrative law and the basic principles of tender law, primarily the protection of the principle of equality and fair competition. Correcting a fundamental defect is not in line with the basic principle in tender law, according to which the tender publisher determines the terms of the tender, which it is not allowed to change after the submission of the bids, while the bidders must submit their bids precisely according to these terms. Allowing a bidder to correct its error in retrospect transfers the power to the bidder and therefore may allow improper room for maneuver compared to the other bidders and harms equality. Here, the defect in the bidder’s proposal was not a trivial or technical defect, such as a mere calculation error, but rather a negligent error concerning the incorrect pricing of essential components in the bid that led to additional errors and made it difficult to conduct the final evaluation and comparison between the various bids. The mere fact that the bidder did not abuse the room for maneuver does not change the fact that by having the possibility to correct itself it actually enjoy an unfair advantage over other bidders. Therefore, the tender committee was right when it determined that the bid should be disqualified due to a materiel defect that cannot be corrected.