Abstract

While examining and evaluating tenders, the contracting authority may demand explanations and evidence from contractors regarding the content of the tenders, documents and statements submitted. The Public Procurement Law (the PPL) allows the contracting authority to resolve doubts based on several provisions: Article 128 sections 1 and 4; Article 107 section 2; Article 223 sections 1 and 2; and Article 224. This article focuses on Article 233, which entitles the contracting authority to obtain additional explanations from the contractor regarding the content of the tender submitted by the contractor, in particular when the content of the tender itself indicates an ambiguity or mistake. Unlike with supplementing or correcting, the purpose of the explanations is to establish the actual content of the document or statement. It must be borne in mind that the content of the tender may not be altered in any respect, as this would be contrary to the principle of the equal treatment of contractors, which is of paramount importance in public procurement. There are certain doubts that arise from the literal wording of Article 233, such as how to understand the vague concept of an ‘obvious mistake’ or what consequences may result from a contractor’s failure to respond to a request for clarification. This article focuses on providing answers to these questions based on the extensive case law of the National Appeal Chamber.