What Are the Most Common Topics in Market Court Cases in Finland? Part 2
4 October 2021
Authors: Eeva Tiainen, Outi Jousi and Jesper Nevalainen
Cases concerning public procurement are the most tried ones in the Market Court. In recent years, however, the number of public procurement appeals has steadily reduced. In this regard, the previous year seems to be an exception. According to the statistics of the Market Court, it received 414 procurement cases in 2020 as opposed to 308 in 2019.
Earlier this spring, we published the first part of our three-part blog series, in which we cover the most popular topics of public procurement appeals to the Market Court. The first part addressed the most common one, which is a tender’s compliance with the invitation to tender. This second part focuses on the second most common topic, i.e. an unclear invitation to tender.
Cases regarding an unclear invitation to tender often concern the comparison criteria in the invitation to tender. In many of these cases, the tenderer has found that the criteria were unclear or that tenders were incomparable after the contracting entity had carried out the comparison and made the procurement decision. Another quite a common case topic relates to situations, in which the appellant’s tender has been excluded from a tendering competition due to its non-compliance with the invitation to tender, and the appellant has in this respect found the invitation to tender unclear or open to various interpretations.
The ambiguity of an invitation to tender does not always relate to the content. It may equally well relate to for instance technical issues of which the recent Market Court case MAO:107/21 serves as an example. In the case, tenders were supposed to be sent through an electronic tendering portal. The invitation to tender gave tenderers the impression that they had 25 sections to fill in. During the actual completion of the electronic form, the 25 sections were in fact divided into subsections so that tenderers eventually had to fill in 211 sections, i.e. 186 sections more than what was stated in the invitation to tender. Due to this reason, the appellant did not have enough time to submit a tender. The Market Court found that the electronic form differed substantially from the invitation to tender and therefore it was not reasonable to expect the tenderer to prepare for such a surprise. Hence, the invitation to tender was unclear and violated the principle of transparency.
The case MAO:9/21 concerned an unclear invitation to tender as regards the content. The invitation to tender required a specific or equivalent model of a certain document camera. However, the appellant had received information from the importer and manufacturer of the branded products that the models in question had not been and would not be available on the market. Therefore, the appellant found the invitation to tender unclear. In turn, the contracting entity presented that the model had in fact been available on the market and referred to a Facebook page that had an advertisement of the model in question. The Market Court gave more weight to the statement of the manufacturer and concluded that the document camera in question had not been available on the market. The Market Court stated that the invitation to tender was unclear because it was not possible to offer the required document camera, nor was it possible to figure out what features an equivalent model had to include.
How to Avoid Appeals Concerning Unclear Invitation to Tender?
Our tips for contracting entities: It is worth paying special attention to the clarity of an invitation to tender. If the Market Court finds it unclear, it may quash the procurement decision and obligate the contracting party to correct the flawed evaluation of tenders, which virtually means organising a whole new tendering competition.
It is, for example, possible to ask potential tenderers to comment on the draft of an invitation to tender before publishing it, which allows tenderers to identify flaws to correct before the procurement process commences. When drafting the invitation to tender it may be good to step into the shoes of the tenderer and reflect on whether the requirement is unambiguous enough and whether it is open to various interpretations. It may also be a good idea to allow an objective third party to have a look at the draft to ensure that the requirements are clear enough to a person who is not that familiar with the matter.
Our tips to the tenderers: Getting to comment on a draft of an invitation to tender is a great opportunity. In such a position, one may bring forward all requirements that seem unclear, open to interpretations, or discriminatory. The same applies during the Q&A phase, because as presented above, an unclear invitation to tender may lead to the tendering competition starting all over again. Therefore, it is in the interests of all parties concerned that the invitation to tender is unambiguous. However, sometimes the ambiguity is only detected after the procurement decision has already been made. If it relates to a matter or circumstance that may have affected the outcome of a tendering competition, the tenderer may demand the contracting entity to rectify the situation and/or bring the case to the Market Court.
In the third and final part of this blog series we will address the tenderer’s suitability.