One of the public contract award procedures is the open tender. It is the most commonly chosen procedure as, unlike in the case of other procedures, no statutory grounds for it need to be demonstrated. The open tender procedure is also the least complicated one, it is a single-stage process, yet it is the most competitive. Below we provide a description of this procedure and highlight its most important elements.
Characteristics
An open tender is conducted for procurements the value of which is equal to or higher than the thresholds stipulated in the EU regulations. It is characterised by being open to an unlimited number of bidders. The EU thresholds are not fixed values and may be subject to change by the EU institutions. The currently applicable EU thresholds are published by the President of the Public Procurement Office. The open tender is the basic procedure for both classic and sectoral procurements.
Conducting an open tender procedure
The stages of the open tender procedure are as follows:
- publication of a contract notice by the contracting authority specifying, among other things, the closing date for the submission of tenders;
- clarification of the tender specifications (if necessary);
- communication of the amount which the contracting authority intends to allocate to finance the contract;
- opening of tenders;
- verification of contractors and review of tenders;
- tender selection;
- awarding the contract to the selected contractor.
Contract notice
Along with the contract notice published in the Official Journal of the European Union, the contracting authority provides the tender specifications on its website. Such specifications are provided free of charge, from the date of publication of the contract notice until the date of contract award. However, if they cannot be provided on the website for confidentiality reasons, the contracting authority is required to make the documents available to bidders in another way, as indicated in the contract notice. It should also be noted that the contracting authority may choose from several models for the contract notice which are specified in the EU regulations. The contracting authority should request the publication of the contract notice in electronic form.
Closing date for submission of tenders
In principle, the minimum time limit for the submission of tenders by contractors is 35 days from the date on which the notice is sent for publication. This period gets reduced to 15 days if:
- a prior information notice was published;
- there is an urgent need to award the contract and reducing the time limit for the submission of tenders is justified.
If the tender specifications are not made available on the contracting authority’s website, the closing date for the submission of tenders is extended by 5 days.
Where tenders are submitted entirely by electronic means of communication, the contracting authority may reduce the time limit for their submission by 5 days.
Due to the complexity of the contract, the time limits indicated above may be extended by the contracting authority at the time of publication of the contract notice.
Channels of communication between the contracting authority and contractors
The open tender procedure is conducted entirely by electronic means of communication. Consequently, both the contract notice publication and the submission of tenders are done electronically. It should be borne in mind that a tender submitted electronically should be accompanied by a qualified electronic signature.
Opening of tenders
The next stage in the open tender procedure is the opening of tenders (preceded by the announcement of the amount which the contracting authority intends to allocate to the contract). The tenders can only be opened by the contracting authority at the time specified in the contract notice. They are opened on the day following the closing date for their submission.
The contracting authority is required to announce on its website which contractors’ tenders have been opened (providing the contractors’ details) and specify the prices (costs) such tenders include.
Review of tenders
After opening the tenders, the contracting authority proceeds with their revision. In the event of any inconsistencies, the contracting authority may ask the contractor to clarify them in order to ensure the tender is not subject to rejection on the grounds of failing to meet the conditions set out in the contract notice and the tender specifications. Once the most advantageous tender has been selected, the contracting authority must verify whether there are any circumstances preventing the award of the contract to the selected contractor. Depending on the circumstances, the exclusion of a contractor may be obligatory (e.g. due to their past conviction for participation in an organised crime group) or optional, if it results from the breach of conditions set by the contracting authority in the contract notice (e.g. violation of legal and tax obligations). The contracting authority must also check whether the contractors meet any additional criteria stipulated by the contracting authority in the tender specifications (e.g. concerning the contractor’s credentials or financial standing). If the contractor that submitted the most advantageous tender is found to be under circumstances excluding it from the procedure, the contracting authority reviews the tenders again to select a new most advantageous tender. These steps are repeated until either the contractor is finally selected, or the tender procedure is cancelled.
Conclusion of the procedure
Generally, an open tender procedure ends with the award of the contract to the tenderer selected by the contracting authority. Sometimes, however, it may happen that the contract is not awarded if the contracting authority is forced to declare the procedure invalid (e.g. when all bids are rejected).
Summary
The open tender is the most frequently selected public procurement procedure. It is characterised by multiple formal requirements. However, its advantage over other procedures is that it is open for anyone to participate in. An open tender is organised if the value of the contract exceeds the so-called EU thresholds, which should be determined at the time of drafting the contract notice and estimating the contract value. Organising a tender procedure in accordance with the public procurement law, including drafting the tender specifications, as well as preparing a bid in response to the contract notice may raise legal questions. At Radkiewicz Lawyers Poland, we are happy to provide advice to and cooperate with both contracting authorities and contractors.
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