Abstract

Small errors in contractor’s tender which are unintentional, are not a result of an erroneous expression of ides (but erroneous reasoning), may not be corrected without additional negotiations between the contracting authority and the contractor, as their correction involves a major change of the tender as therefore should not be corrected as provided for in Art. 87.2.3 of the Public Procurement Law. Alas, in practice, under the guise of insignificant alterations, frequently major interventions in the contents of the tender are made which essentially change the original declaration of will of the contractor. This distorts the tenor of Art. 87.2.3 of the Public Procurement Law, which has been introduced in order to avoid rejecting tenders because of trifle defects and violates the chief principle of public procurement contract award proceedings -- the principle of fair competition.

Such practice has also its source in inconsistent jurisdiction, which in spite of the lapse of over five years from the effective date of Art. 87.2 of the Public Procurement Law in the currently applicable wording failed to work out unequivocal guidance as to interpreting Art. 87.2.3 of the Public Procurement Law with respect to many key issues of its application. It seems that greater professionalism of tenderers taking part in public procurement biddings as well as enhanced competitiveness of the proceedings (in particular an increased number of construction work tenders filed in after 2008) should provoke a reflection as to the need of retaining this provision in its applicable wording. Since it is the contracting authority which is primarily obligated to assess whether in a given situation the errors needs to be corrected, it seems that -- if the obligation of the contracting authority to correct “other errors” in the offer was to be retained -- the provision should oblige the contracting authority to specify a catalogue of circumstances in which a correction could be made. It should be reminded that already the substantiation of the 2008 amendment suggested “…that the contracting authority independently specified in the Terms of Reference exemplary circumstances in which it will correct errors in offers in accordance with Art. 87.2. The above leads to transparency of the proceedings, restricts casuistry of the Act and may reduce possible disputes with bidders”. That suggestion should be transformed into a statutory duty or the scope for the application of Art. 87.2.3 of the Public Procurement Law should be considerably limited.