The public procurement procedure for the reconstruction and extension of the General Hospital “Dr Aleksa Savić” in Prokuplje is one of the examples of unequal treatment of contracting authorities towards bidders, but also of uneven practices of the Republic Commission for Protection of Rights in Public Procurement Procedures (hereinafter: The Republic Commission).

Namely, during the public procurement procedure in question, the contracting authority amended the tender documentation by requesting two additional pieces of equipment that the bidders had to possess (total station and precise level), as well as one additional proof of technical capacity (examination certificate from an accredited institution). At the same time, the contracting authority simply added those two new pieces of equipment and new evidence to the list of already required equipment and evidences. In no way is it stated in this amendment that the test certificate refers exclusively to two new pieces of equipment: that new evidence is listed as one of the pieces of evidence relating to all equipment required as technical capacity.

In the further course of the procedure, after the expert evaluation of the bids, the contracting authority rejected two of the three submitted bids as unacceptable due to deficiencies in terms of required capacities (among others there was a group of bidders consisting of “Modulor” Belgrade and 5 other bidders), while the third bid (consisting of “Termomont” Belgrade and 6 other bidders) was assessed as the only acceptable and was awarded a contract. In the explanation of the unacceptability of the bid of the group of bidders consisting of “Modulor” Belgrade and 5 other bidders (hereinafter: the Applicant), it is stated that they did not submit a test certificate from the accredited institution for the parts required by the amended tender documentation (total station and precise level), and that they did not prove references presented in their offer, which were requested as an additional condition.

Dissatisfied with the decision of the procuring entity, the Applicant submitted a request for protection of rights stating that the selected bid should also have been rejected, as it had the same kind of shortcomings as his offer. The Applicant pointed out that the evidence on the technical capacity for certain equipment that the bidders had to possess (according to what was specified in the tender documentation) was not submitted neither by the Applicant nor by the selected bidder. The Applicant also stated that the contracting authority’s requests regarding the documentation and changes to that documentation were not explicit and clear. He specified that the selected bidder did not submit the required test certificate from the accredited institution for scaffolding, a part of the equipment that the bidders had to possess, nor did he prove the references presented in his bid.

In its decision no. 4-00-1003 / 2019 from December 11, 2019, the Republic Commission rejected the Applicant’s request for protection of rights, with the explanation that the Applicant does not have active legitimacy due to the fact that his bid is unacceptable, without even assessing the allegations concerning the acceptability of the selected bid. For the Republic Commission, there was no dilemma that the subsequently requested evidence (certificate of examination of the accredited institution) referred only to the parts of the equipment required by the changes in the tender documentation (total station and precise level), and that, having in mind that the Applicant did not submit this certificate, his offer was unacceptable, which consequently meant that he did not have active legitimacy nor the right to challenge other offers. Furthermore, the Republic Commission assessed as ungrounded the applicant’s claim that the evidence required by the amendments to the tender documentation also referred to the equipment such as scaffolding, which means that the contracting authority did not violate the principle of equality of bidders when it did not evaluate the bid of the selected bidder as unacceptable for the same reason. Since it rejected the Applicant’s request for protection of rights for the stated reason, the Republic Commission did not consider two main allegations he made in his request: that there were no grounds for rejecting the Applicant’s bid due to references, and the fact that the selected bid was unequally treated since it contained the same shortcomings regarding the references, but the contracting authority did not reject it.

The problem in this particular case is the fact that in the same situations, the Republic Commission made different decisions, such as decision no. 4-00-595 / 2019 from August 21, 2019, in which it was assessed that the Applicant’s bid was unacceptable, but his allegations related to the selected bid were considered. In that case, the request for protection of rights was granted and the public procurement procedure was annulled in the part of the expert evaluation of bids and the decision on awarding the contract.

Another particularly interesting fact in this case is that the bidders, at the invitation of the contracting authority, corrected the calculation errors: after that the original price of the selected bidder increased by more than 97 million dinars! This happened at the very moment when it became obvious that the contracting authority would evaluate his offer as the only acceptable offer. It is simply unbelievable that someone could make a calculation error in the amount of 97 million dinars. The Applicant and the third bidder have also corrected the calculation errors in their bids, but after that the difference in their offers did not exceed 2 million dinars.

We believe that this specific case is an example of how certain bidders can be favored, even when their offers are significantly less favorable than the bids of other bidders. The contracting authority may prepare the tender documentation in such a way that none of the bidders can prepare the tender without any shortcomings, but then one of the bidders is suddenly “forgiven”, with the explanation that what is missing in his offer was not explicitly requested. In that way, and due to the position of the Republic Commission, other bidders lose the right to challenge the selected bid, although it is significantly more expensive than others. Whole situation gets even more interesting when the selected bidder is invited to correct the calculation error in its price so that it becomes significantly higher than before.

Taking into account all of the above, the impression is that in this particular case the contracting authority grossly violated not only the principle of equality of bidders but the principle of efficiency and economy as well, since it selected the bid in which the offered price was more than 800,000 euros higher than the next best price.