Regarding the civil case presented, the court found that through the
complaint recorded in this court under no. XXX, the petitioner SC BI SRL
requested the annulment of decision no. from XX.0X.2010 issued
by the National Council for Claim Solving which rejected as without
grounds the claim formulated by SC ZZ SRL against the decision of the
Contracting Authority regarding the approval of the procedure Report,
which rejected its offer as inadmissible and the public procurement
contract for "Shoes" was awarded to the tenderer S.C. C.V S.R.L ; the
annulment of the decision to reject its offer and inadmissible and
forcing the Contracting Authority to re-evaluate the offers.
The petitioner claimed that the decision of the Contracting Authority,
based on which its offer was rejected, motivating that it was
inadmissible, according to art. 36 para. 1 letter f combined with
art.36/1 para. 4 from Government Decision no. 925/2006 and it is
non-compliant, according to art. 36 para. 2 letter a from Government
Decision no. 925/2006, is illegal, as related to the provisions
mentioned above, in order to prove the fulfillment of conditions
regarding art. 36 para. 1 letter f from the Government Decision no.
926/2006, in order to consider that its offer has an unusual low price,
it was the Contracting Authority’s duty to prove that the offer,
according to the indicated price, could not ensure the parameters
requested through the Terms of Reference.
But
the fact that it maintained the confidentiality over the name of
providers does not help in demonstrating that it cannot ensure the
requested parameters.
Regarding
the rejection of the offer as non-compliant, related to provisions of
art. 36 para. 2 letter a from Government Decision no. 925/2006, in the
sense that it does not properly comply with the requirements of the
Terms of Reference, the petitioner claims that the Contracting Authority
took into consideration the answer no. 788/22.04.2010 of the National
Research and Development Bucharest Institute for Textile and Leather and
the Technical Note regarding the visual expertise of materials found in
children and adult shoes, where it is specified that the "leather
sandals" submitted by the petitioner are made from a synthetic material
for the interior and exterior side, as well and not from leather, as
requested. According to the over five years of experience in the field,
taking in consideration that the awarding criterion is the lowest price,
the petitioner claims that they are an admissible tenderer, from the
economic point of view, and also from the perspective of all qualifying
criteria.
The
petitioner also states that the evaluation committee, as well as the
National Council for Claim Solving (CNSC) have overlooked an essential
aspect which calls for the annulment of Awarding Procedure Report and
even of the entire awarding procedure, as from the answer no.
788/22.04.2010 of the National Research and Development Bucharest
Institute for Textile and Leather and the Technical Note regarding the
visual expertise of the material found within the children and adults
shoes category it results that the "leather shoes" product submitted by
CV is made up mostly from synthetic leather, with an interior "synthetic
lining and sock".
While,
in terms of the requirements of the Technical Procurement Sheet and of
the Terms of Reference, the shoes must be made from natural leather for
the interior and exterior side, as well, requirement that the petitioner
has fulfilled, and it would discriminatory for its offer to be
disqualified because one of is products, respectively the sandals, was
made from synthetic leather, and the other tenderer should pass
unnoticed.
Therefore,
the offer submitted by SC CV SRL does not comply with the requirements
of the awarding documentation and it must be rejected as non-compliant,
therefore the awarding procedure must be cancelled by the Contracting
Authority, due to failure of submission of any valid offer.
After
having analyzed the file documents and papers, the contested
administrative-judicial act, related to the claims of the petitioner,
the proofs brought forward in this case and art.3041 of the Civil
Proceedings Code, the Court stated the following :
Through the Decision no. XXX/C9/XXX from XX.0X.2010 of the National
Council for Claim Solving, the exception of belated claim invoked by the
Contracting Authority was rejected and the claim formulated by the
claimant SC BI SRL against the defendant-Contracting Authority DGASPC
SECTOR X was rejected as groundless, the court decided for the
respective awarding procedure to continue.
In
order to take this decision, the administrative-jurisdictional
authority mentioned that, after analyzing the criticisms of the
claimant, it refers only to the reasons for which the Contracting
Authority declared its offer as being inadmissible, without targeting
the reasons for rejecting the offer, regarding the submission of samples
for the „leather sandals” product which are not compliant with the
requirements presented within the Terms of Reference.
In
this matter, the Council retained the fact that through the answer no.
788/22.04.2010 of the National Research and Development Bucharest
Institute for Textile and Leather and the Technical Note regarding the
visual expertise of the material found within the children and adults
shoes category it results that the "leather sandals" product submitted
by the claimant is made from a synthetic material to the interior and
the exterior, instead of leather, as requested, therefore infringing the
provisions of art.170 from GEO no.36/2006, so that the Contracting
Authority took the right action in declaring the offer of SC BI SRL to
be non-compliant, based on provisions of art. 36 para. 2 letter a from
Government Decision (GD) no. 926/2006. Acceptance of an offer which does
not fulfill the requirements of the awarding documentation would have
led or could lead to the infringement, related to those tenderers who
did not submitted tenders because their products are not fully compliant
with these provisions and with those which submitted compliant tenders
but with higher prices, of the fairness principle and of the
transparency principle, stipulated by art. 2 para. 2 letters b) and d)
from GEO no. 34/2006.
In
relationship with these reasons, the Council did not proceed to
analyzing further reasons which represented the justification for the
rejection of the claimant’s offer as inadmissible, as the non-compliant
character of the offer submitted by SC BERTI INTERNATIONAL SRL cannot be
changed anymore.
By
analyzing the contents of the formulated complaint, according to the
provisions of art.283-287 from GEO no.34/2006 and art.3041 Civil
Proceedings Code, the Court stated the following :
I.
Essentially the petitioner claimed that the decision of the Contracting
Authority based on which its offer was rejected as inadmissible,
according to art.36 para.1 letter f combined with art.36/1 para.4 from
Government Decision no.925/2006 and as non-compliant, according to art.
36 para.2 letter a from GD no.925/2006, is illegal, as, in relationship
to the above mentioned provisions, in order to prove the fulfillment of
all conditions regarding art.36 para.1 letter f from GD no.925/2006, and
in order to consider its offer as having an unusual low price, it was
the Contracting Authority’s duty to prove that the offer, according to
the indicated price, could not ensure the parameters requested through
the Terms of Reference. But the fact that it maintained the
confidentiality over the name of providers does not help in
demonstrating that it cannot ensure the requested parameters.
Through
the clarification notice no. D/6515/16.04.2010, the Contracting
Authority asked the claimant to substantiate and justify the tendered
price, requesting input invoices, direct expenses, etc., and also the
other elements which contribute to price forming, and through the notice
answering the clarifications from 20.04.2010 the claimant answered to
the request for clarifications by appending a series of invoices for the
tendered products whose providers were kept confidential, and as a
result of analyzing these documents the committee found that some
products are present on several invoices with different input prices for
the same type of product, and the tenderer did not justify the forming
of the tendered price as requested.
The
Court observes that through the clarification notice, the Contracting
Authority asked for, according to art.202 para.1 of GEO no.34/2006,
substantiation and justification of the tendered price, considered by
the Contracting Authority as an unusual low one because it represents
less than 85% of the estimated value, and also the accounting balance
sheets on the dates of 31.12.2007, 31.12.2008 and 31.12.2009 until the
date of 20.04.2010, 14.00 hrs.
Through
its answer, the petitioner claims the fact that its price is sincere
and serious, attaching for comparison prices practiced by other
companies, without disclosing their identity and also showing that its
trade mark-up is of up to 40% justified by taking into consideration
several types of expenses, like transport-related expenses, storage
expenses, administrative expenses, and delivery-related expenses,
attaching a list of prices, Goods Received Notes and invoices, without
an accounting-based substantiation of the price forming method, through
the forming process in itself and also in relationship to the 85%
percentage of the estimated value.
As a consequence, the judgment that the claimant did not justify the forming of the tendered price, as requested, is correct.
On
the other hand, the claimant’s tender was rejected as inadmissible
because of two reasons and not only because it was unacceptable, but
also for being non-compliant, as the Notice 788/22.04.2010 of the
National Research and Development Bucharest Institute for Textile and
Leather and the Technical Note regarding the visual expertise of
materials found in children and adult shoes, shows that the "leather
sandals" submitted by the petitioner is made from a synthetic material
for the interior and exterior side, as well, and not from leather, as
requested, this representing an infringement of the provisions of art.
170 of GEO no.36/2006.
The
petitioner claimed that the Contracting Authority took into
consideration the answer no. 788/22.04.2010 of the National Research and
Development Bucharest Institute for Textile and Leather and the
Technical Note regarding the visual expertise of materials found in
children and adult shoes, where it is specified that the "leather
sandals" submitted by the petitioner are made from a synthetic material
for the interior and exterior side, as well and not from leather, as
requested.
According
to the over five years of experience in the field, taking in
consideration that the awarding criterion is the lowest price, the
petitioner claimed that they were an admissible tenderer, from the
economic point of view, and also from the perspective of all qualifying
criteria, nevertheless they did not appeal against either the result of
the visual expertise or the fact that, indeed, the "leather sandals"
submitted by the petitioner were made from a synthetic material for the
interior and exterior side, not from leather, thus failing to comply the
specifications requested through the documentation issued by the
Contracting Authority.
The
experience in the field in relationship with the awarding criterion of
the lowest price represents a relevant aspect, nevertheless this cannot
make a tenderer admissible „de plano”, as it must fulfill all qualifying
criteria requested by the Contracting Authority for the tendered
product, as there is a possibility for the experience in a certain field
may not cover certain categories of products, that the Contracting
Authority is particularly demanding.
In
exchange, the petitioner claims as well as the National Council for
Claim Solving (CNSC) overlooked an essential aspect which calls for the
annulment of Awarding Procedure Report and even of the entire awarding
procedure, as from the answer no. 788/22.04.2010 of the National
Research and Development Bucharest Institute for Textile and Leather and
the Technical Note regarding the visual expertise of the material found
within the children and adults shoes category it results that the
"leather shoes" product submitted by CV is made up mostly from synthetic
leather, with an interior "synthetic lining and sock".
While,
in terms of the requirements of the Technical Procurement Sheet and of
the Terms of Reference, the shoes must be made from natural leather for
the interior and exterior side, as well, requirement that the petitioner
has fulfilled, and it would discriminatory for its offer to be
disqualified because one of is products, respectively the sandals, was
made from synthetic leather, and the other tenderer should pass
unnoticed.
As
a result, the solution issued by the Contracting Authority and of CNSC
to reject the petitioner’s offer as inadmissible is the right one, but
the Court shall also analyze this reason of the complaint related to the
winner’s tender compliance, as the petitioner has a mediated interest
in this matter, in the context in which both offers are found to have
been unacceptable of non-compliant, the Contracting Authority should
have cancelled the awarding procedure, and the petitioner would have had
the possibility, if a new tendering procedure had been initiated, to
participate with another offer.
On
the other hand, according to art. 2 para 1 letter d, one of the
purposes of the Emergency Ordinance is represented by : d) ensuring
efficient use of public funds, by applying awarding procedures by the
contracting authorities.
From this point of view, the Court observed that, according to the
Technical Specifications presented within the Terms of Reference, under
the „leather sports shoe” product, there is a requirement for a black or
navy blue sports shoe made from weather-proof leather and textile
material for the exterior side, resistant to persistent bending, and for
the „leather shoes” product, there is a requirement for a black or navy
blue weather proof leather, to which, for both products, further
elements related to the tying system, the interior material, sole
quality, higher quality finishes, etc. are added.
from the answer no. 788/22.04.2010 of the National Research and
Development Bucharest Institute for Textile and Leather and the
Technical Note regarding the visual expertise of the material found
within the children and adults shoes category it results that the
"leather shoes" product submitted by CV is made up mostly from synthetic
leather, with an interior "synthetic lining and sock", while in terms
of the „sports shoes” product it is specified : „shoe tip-support from
natural collagen-based fibers, covered with poli-uretic layers, the rest
made from synthetic leather”.
As a result, from the CV offer does not result either that the two
products, the sports shoe and the leather shoe, are made up from weather-proof leather, as required within the technical specifications.
According
to art.201 of the GEO no.34/2006 during the application of the awarding
procedure, the Contracting Authority has the right to request for
clarifications and, if applicable, complements for the documents
submitted by the tenderer/candidates in order to demonstrate the
fulfillment of the requirements set down through the qualifying and
selection criteria, or in order to demonstrate compliance of the offer
with the requested requirements. The Contracting Authority does not have
the right, through the clarifications/complements requested, to
determine an obvious advantage in the favor of a tenderer/candidate.
Also, according to art.202 of GEO no.34/2006, in the case of an offer with an apparently unusual low price in relationship to what is to be provided, executed or delivered,
the Contracting Authority has the obligation to demand from the
tenderer, in writing and before taking a decision to reject that offer,
details and elaborations considerer relevant in terms of the offer, and
also to check the answers justifying the respective price.
(1^1)
An offer entails an apparently unusual low price in relationship to
what is to be provided, executed or delivered, when the tendered price,
without VAT, represents less that 85% from the estimated value of the
respective contract, or in the case when within the awarding procedure
there are at least 5 tenders which are not taken as inadmissible and/or
non-compliant, when the tendered price represents less that 85% of the
average price of tenders calculated without taking in consideration the
lowest and the highest financial proposal.
(2) The Contracting Authority must take into consideration the
justifications received from the tenderer, according to conditions
stipulated by para. (1), especially those referring to : a) economic
substantiation of the price forming mechanism, related to the
manufacturing methods being used, production process or provided
services ; b) technical solutions adopted and/or any extremely favorable
conditions that the tenderer benefits from for the execution of the
works, delivery of products or provision of services ; c) originality of
the offer from the point of view of fulfilling all requirements
stipulated by the Terms of Reference ; d) compliance with the
regulations for work safety and work conditions applicable for the
execution of those works, provision of that service or delivery of those
products ; e) the possibility for the tenderer to benefit from a state
aid.
The Court reasons that the Contracting Authority did not ask for
clarifications to that tenderer later on declared as the winner of the
tender, regarding the above mentioned aspects, so that the Court cannot
deliver an analysis of those elements, as this competence belongs to the
Contracting Authority, which as a result of further analysis of
justifications and clarifications, may decide, consequently, either to
continue the awarding procedure or the annulment of the procedure,
according to art. 209 para.1 letter b of the GEO no.34/2006.
Regarding these considerations, the Court, after analyzing the
provisions of art. 285 para.1 from GEO no.34/2006 and art.312 of the
Civil Proceedings Code, is to accept the claim and abolish decision no. 2310/C9/2521 from 14.05.2010
issued by the National Council or Claim Solving, within the case no.
2521/2010, to partially accept that claim and abolish the Awarding
Procedure Report from 28.04.2010, taking the decision for the procedure
to continue with the demand for information by the Contracting Authority
addressed to the tenderer SC CV SRL.
QUESTIONS :
The tenderer whose offer was rightfully rejected by the Authority
argues against and criticizes exclusively the winning tender. Is such a
tenderer interested, provided that it cannot obtain the public
procurement contract, or is its claim lacking interest ? Is it relevant
in this case the fact the reasons invoked are factual ?
If the respective claim was introduced too late, is the examination of
interest still mandatory ? The order for solving the two exceptions.
The
tenderer asks for the offers to be re-evaluated, criticizing the
rejection of its offer and the proclamation of another offer as the
winning one. The criticism regarding the rejection of its offer is
groundless. Is the criticism regarding the winning offer still to be
analyzed or does it lack interest ?