In Case 1692, the Public Contracts Review Board (PCRB) (Case 1692) addressed the disqualification of a bidder from a tender for professional services related to the extension and restoration at the Manoel Theatre.

The case revolved around conflicting instructions given by the contracting authority on one of the criterions for qualification: the bidders had to submit a list of completed projects that they had worked on in the previous five years having a total value of at least €500,000.

The bidder had asked the contracting authority whether they could also submit ongoing projects – rather than just completed ones – as part of the submission. In its clarification reply, the contracting authority said “If proof can be submitted that the ongoing projects within the last five (5) as indicated in Section 1, Clause 5(c), these can be considered valid.” This clarification implied that ongoing projects would be accepted, provided they were within the specified time period. Based on this, the bidder submitted ongoing projects, assuming compliance. 

However, the contracting authority later disqualified their bid on the grounds that they had not submitted completed projects, as required by the original criterion. The contracting authority’s rectification note issued on 12th October 2021 further added to the confusion, stating that the submission was non-compliant as it “only includes ongoing projects.” 

The bidder argued that they were misled by the conflicting instructions, and the PCRB agreed. The board found that the contracting authority had created an ambiguous situation, first allowing ongoing projects to be considered and then rejecting the bid for following those instructions. The PCRB emphasized that clarity and consistency in tender requirements are critical, and once a bidder is permitted to submit certain information, such as ongoing projects, they should not be penalized for doing so.

The Board criticized the authority for issuing conflicting instructions and for not providing clear guidance to ensure fairness for all bidders. It cancelled the original evaluation decision and ordered a re-evaluation of the bid, by a newly composed evaluation committee, to ensure an impartial and fair re-evaluation. 

This decision underscores the importance of clear communication in public procurement, ensuring that tender processes are consistent, transparent, and fair to all parties involved.

With extensive experience in the sector, Dalli Advocates has provided support to both bidders and government entities in public procurement law.

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