RASK's attorney-at-law Keidi Kõiv successfully represented the Estonian IT Center in the public procurement dispute.
Case
Keidi Kõiv, attorney-at-law of RASK law firm, successfully represented the Estonian Information and Communication Technology Center in the public procurement dispute. In the proceeding, Viking Security AS requested the establishment of nullity of the procurement contract concluded under the framework agreement or alternatively, the establishment of the ground for the nullity and shortening the term of the procurement contract. The position of Viking Security AS based on opinion, that the contracting authority has misinterpreted their tender and mistakenly rejected their offer.
Keidi Kõiv has previously written about the topic that the case law has set the bar for tenderers due diligence extremely high, therefore the tenderers have the responsibility to make sure that all necessary information is provided in the tender and it corresponds to the requirements of the public procurement. It also means that the tenderer must, if necessary, take steps to ensure that the requirements of the procurement are understood the same ways as contracting authority does. Unfortunately, practice shows that tenderers do not always take such steps, which was also the case in this dispute. The tenderer had understood the level of detailed plans presented in the tender differently than the contracting authority, but nevertheless considered that the procuring authority in this case should have allowed the tenderer to specify the plans afterwards. The Public Procurement Review Committee agreed with the position of contracting authority and also expressed two important interpretive positions in the decision in this light.
Firstly as the parties argued about the meaning of „/“, the Public Procurement Review Committee took a position that even if the “/” is usually marking the alternatives as “or”, the Estonian Orthographic Dictionary indicates that in practice it is usually also used as “and”. This means that the understanding of meanings on specific words and signs may vary, due to which the tenderer should have had at least a doubt on how the contracting authority interpreted the sign „/“.
Secondly the parties argued about the level of detail of the proposals required in the tender. The procurement conditions required that the tender must contain a plan, which is presented clearly and in a detailed and well structured and justified manner. The Public Procurement Review Committee agreed with the position of contracting authority that the proposal consisting of 9 words cannot be considered as detailed, structured and justified proposal and the contracting authority cannot allow any changes on such proposals afterwards.
The decisions thus confirmed once again that the tenderers are fully responsible for the content and accuracy of the documentation submitted with the tender and no additions to the tender cannot be done later.