Can the ordering party supplement the unit prices in the contractor’s bid?

Publication / 17.01.2024

The scope of correcting a contractor’s bid under Article 223(2) para. 3 of the Public Procurement Law may extend even to the ordering party’s supplementing of unit prices in the contractor’s bid, the National Appeals Chamber ruled in its judgment of November 17, 2023, ref. KIO 3130/2023.

The Chamber pointed out that the ordering party has the right to specify in the Instructions for Contractors the rules for supplementing even unit prices in submitted bids, especially since the appellants did not challenge these provisions at the relevant stage of the proceedings, and therefore, in accordance with established case law, such provisions become binding. The Chamber noted that the correction of errors by the ordering party is always carried out by interfering with the contractor’s statement of intent, for which his consent is required. Therefore, it is not by the mere fact of correcting the statement of intent that it is legitimate to question the action of correcting the content of the bid. It would be necessary to determine whether such a change to the bid was possible to make based on the data in the bid. This is because it cannot be considered that in every case the amendment of the offer to supplement unit prices leads to prohibited change in the offer. It is the ordering party’s duty to correct a mistake in the bid when the manner in which the correction is to be made results from other elements comprising the bid.

In the opinion of the Chamber, the ordering party’s actions did not lead to supplementing the bid with the valuation of items that had been valued at the aggregate value from the beginning, but only to their clarification, for which there was a basis in the bid itself, since the ordering party supplemented the unit prices based on the valuation of the analogous pre-measurement units found in the bid, which meant accepting the rates indicated by the contractor himself.