It is worth clarifying the content of the Terms of Reference (ToR) with the ordering party

Pursuant to Article 135 of the Public Procurement Law (PPL), a contractor may request the ordering party to clarify the content of the ToR within the time limits specified in the Act, which in many cases is not only advisable, but even necessary in order to avoid later problems with determining the scope of works, billing for the works, and may even often lead to a change in the ToR content by the ordering party.

The condition for obtaining a response from the ordering party is that the request for clarification of the ToR content must be received by the ordering party no later than 14 days before the deadline for submission of tenders, or seven days before if the ordering party has recognized that there is an urgent need to award the contract and thus shortened the deadline for submission of tenders. If this deadline for asking questions is met, the ordering party is obliged to answer the questions immediately, but no later than 6 days before the deadline for submission of tenders, or no later than 4 days before the deadline for submission of tenders if there is an urgent need to award the contract and the ordering party has shortened the deadline for submission of tenders.

If a request for clarification of the ToR content is received later than the statutory deadline, the ordering party is not obliged to respond, but may still do so. The ordering party should then assess the legitimacy of the question asked and whether indeed any part of the ToR may be unclear. Providing an answer to such a question or changing the ToR content may then protect the ordering party from violating, for example, the principle of fair competition. If, on the other hand, the ordering party does not provide explanations within the above deadlines, it is obliged to extend the deadline for submission of tenders by the time necessary for all interested contractors to become acquainted with the explanations necessary for proper preparation and submission of tenders, while it should be emphasized that such an extension of the deadline for submission of tenders does not affect the running of the deadline for submitting a request for clarification of the ToR content.

The ordering party shall make the contents of the inquiries together with the explanations available on the website of the conducted proceedings, and in the cases referred to in Article 133 (2) and (3) of the PPL, it shall provide the contractors to whom it has provided the ToR, without disclosing the source of the inquiry.

Although the National Appeal Chamber (NAC) distinguishes between the institution of a request for clarification of the ToR and a request for modification of the ToR, and according to the case law, in order to amend the ToR, an appeal should be filed against the content of the announcement initiating the contract award procedure, and not a request to amend or supplement the ToR in many cases a skillful formulation of a question referring to clarification of the content of the ToR may cause the deficiencies or errors of the ToR to be noticed and lead to its amendment by the ordering party.

Questions to the ToR can often not only change the overly strict content of the ToR preventing participation in the proceedings, but can also draw attention to the ordering party’s shortcomings by supplementing the conditions for participation in the proceedings, which can increase the ordering party’s requirements and thus reduce the number of potential bidders.

Clarification of the content of the ToR may also remove ambiguities in the provisions of the ToR, which may not always be interpreted in favor of contractors in view of the recognition of bidders as professional entities, doing business in the field. If a contractor notices ambiguities in the content of the ToR, it should notify the ordering party through a request for clarification of the ToR.

The procedure for clarifying the content of the ToR can cause a lot of problems, especially since the contractor has little time to formulate questions to the ordering party, in which case the support of a law firm that has extensive experience in public procurement law can be a great help.