When to supplement bid documents in a public procurement proceeding?
The Public Procurement Law allows the contracting authority to summon a bidder to supplement its bid documentation. The law does not prohibit a bidder from doing so on its own initiative, but is that a good idea?
Under Art. 26(3) of the Polish Public Procurement Law, the contracting authority may summon bidders who failed to submit required statements, powers of attorney or other documents by the deadline, or who filed documents with errors or defects, to file the correct documents by a specified time. The range of documents that may be requested, specified in Art. 25(1), includes documents confirming that the bidder meets the conditions for participating in the proceeding or confirming that the offered supplies, services or construction work meets the requirements set forth in the announcement of the procurement, terms of reference, or invitation to tender.
Thus, the supplementary documents may generally involve the conditions set forth in Art. 22, i.e. documents confirming the bidder’s (i) authorisation to perform specific activity, (ii) know-how and experience, (iii) access to proper technical support or persons capable of performing the contract, and (iv) economic and financial condition. The bidder may also supplement documentation demonstrating the lack of grounds to exclude it from the proceeding, as referred to in Art. 24(1), such as a transcript from the relevant register, a certificate that the bidder does not have arrears in taxes or social insurance premiums, information from the National Criminal Register, or equivalent documents from foreign bidders.
While the range of documents that may be supplemented is precisely defined, the supplementation procedure raises doubts for bidders, particularly with respect to the bidder’s supplementing the documentation on its own initiative. It might seem that supplementary documents submitted at the bidder’s own initiative should be treated by the contracting authority the same as documents submitted in response to a summons from the contracting authority. But it turns out that a bidder supplementing the documentation on its own is exposing itself to a risk that the contracting authority will not treat the supplementary documentation as effective, or a risk of losing the opportunity to supplement the documentation on a summons from the contracting authority.
The reason for this concern is that Art. 26(3) uses the phrase “the contracting authority shall summon bidders…”, and refers to “statements and documents submitted upon summons of the contracting authority”. This suggests that supplementation of documents requires initiative on the part of the contracting authority, not the bidder. This was the position taken by the National Appeal Chamber, for example, in Case No. KIO 1521/11, stating: “Independent supplementation of documents by bidders, as referred to in Public Procurement Law Art. 25(1), not preceded by a summons from the contracting authority as referred to in Art. 26(3), cannot give rise to any effects.” It should be pointed out, however, that the National Appeal Chamber has also taken the opposite position in other cases, holding that it is permissible and proper for a bidder to supplement its documentation without a summons from the contracting authority (Case No. KIO 1551/10).
As a rule, the contracting authority may summon a bidder to supplement its documentation only once, a rule which is intended to assure equal treatment of all bidders in the proceeding. If the bidder supplements its documentation on its own, but it turns out that the documentation is still defective, the bidder risks a finding by the contracting authority that the supplementation of documents has already occurred, and thus the contracting authority will not summon the bidder to do so again. Thus the remaining defects will not be cured, and ultimately the bidder will be excluded from the proceeding. This position was taken by the National Appeal Chamber in Case No. KIO 1169/11, where it held that when a bidder first supplements the documentation on its own initiative, a further summons is moot. The chamber further held: “Public Procurement Law Art. 26(3) provides no grounds for repeated summons by the contracting authority to supplement documents, and cannot serve as an instrument for testing the contracting authority to see what documents it will regard as meeting a condition.” This means that if the bidder supplements documents on its own, without waiting for a summons from the contracting authority, it may not take another opportunity to supplement its documentation by making a formal demand on the contracting authority to perform its obligation under Art. 26(3) to summon supplementation of the documents.
Thus, based on the wording of Public Procurement Law Art. 26(3) and the precedent from the National Appeal Chamber, even though the bidder is not expressly prohibited from supplementing the documentation on its own initiative, it should nonetheless not supplement the documents until it receives a summons to do so from the contracting authority.
Tomasz Michalczyk, Infrastructure, Transport & Public Procurement (PPP) practice, Wardyński & Partners