The National Appeals Chamber in March 2023, in the case ref. no. KIO 613/23, examined the issue of liability for deficiencies in a contractor’s bid, namely answering the question of who is liable in such a case – the ordering party or the contractor.
According to the Chamber, it is the ordering party that determines in the contract documents the required scope and manner of concretization of the contractor’s statement, which will be the basis for assessing the compliance of the content of the submitted bid with the substantive requirements of the description of the subject matter of the contract. Therefore, the ordering party should strive to maintain the internal consistency of the procurement documents, including, among other things, that the template of the bid form prepared by it corresponds to the requirements that the ordering party has imposed on contractors. When the contracting authority requires that contractors provide certain information of a substantive nature, intended to form the content of the bid, the template of the bid form (or other relevant documents filled out by contractors for this purpose) should correlate with the scope of the necessary information to be indicated, as established in the Terms of Reference (ToR). This is because contractors, acting in confidence in the contracting authority, fill out the bid form in accordance with the instructions arising from this form, indicating those information which, in light of the content of the form, should be there.
In the factual situation at hand, it was clear from the tender documentation that the price stated in the bid should include all costs and components related to the execution of the contract, with the application of the VAT due, as well as that it is the contractor’s responsibility to correctly determine the VAT. On the other hand, the template of the bid form, which is an appendix to the ToR, indicated: “We offer to execute the order listed in the Terms of Reference for the gross lump sum price: PLN (…) in words: (…)”. From the Chamber’s findings of fact appeared that there was no dispute that the wording of the ToR stipulated the requirement for contractors to provide the bid price – the gross amount in Polish zlotys – in the bid form, while in light of the ToR, the price was to be given in figures and words, with a distinction of the VAT due. However, this requirement was not reflected in the content of the bid form, the template of which was developed by the contracting authority and was attached as an appendix to the ToR. The template of the bid form did not contain a dedicated space to indicate VAT – its rate and amount (digitally and in words), but only a field to indicate the gross price. Thus, the form prepared by the contracting authority was not fully consistent with the requirements that the contracting authority imposed on contractors in the ToR.
The Chamber found that in light of the discrepancies found between the requirements established in the ToR and the scope of the statements that had to be submitted in the model bid form prepared by the ordering party, deriving negative consequences for contractors from the inconsistency of the procurement documents is unjustified, since it is the ordering party that determines in the procurement documents the required scope and manner of concretization of the contractor’s statement, which is the basis for assessing the compliance of the content of the submitted bid with the substantive requirements of the description of the subject of the contract.