National Appeals Chamber’s verdict on offering 2 products in a tender

Publication / 05.05.2017

The National Appeals Chamber, in a judgment dated February 17, 2017, ref. KIO 244/17, ruled that when participating in a tender, a contractor cannot offer two different products, even if both would meet the requirements of the contracting authority. In the tender procedure in question, the contracting authority did not allow for variant bids. Despite this, in one of the packages the contractor declared to perform the contract by presenting two different products.

The contracting authority rejected the contractor’s bid due to its non-compliance with the Terms of Reference. In view of this, the contractor filed an appeal, in which he alleged unauthorized use of the premise for rejecting the bid and violation of the principle of fair competition. He also pointed out that by specifying two different products in several columns of the bid form, he acted in the interest of the contracting authority. The purpose of the bid presented in this way was to ensure uninterrupted supply.

The NAC rejected the contractor’s appeal. The decision-making panel made it clear that the contracting authority did not allow variant bids in the procedure, which the contractor’s bid should be considered to be. The fact that both products meet the requirements of the ordering party was irrelevant. In the opinion of the NAC, it is impossible to allow situations in which a contractor could supply a product from one manufacturer or the other, depending on the situation. This is because the contracting authority must know all the characteristics of the products supplied. In addition, offering two different products from different manufacturers can be considered as submitting two independent bids.