Happy to report a reversal of attribution of works in favour of our client – for the award of a national interest irrigation infrastructure contract and cancellation of an abnormal procedure for the extension of the street waste collection logistics. Both tenders fraught with misrepresentation of tender rules have been reversed via written complaint procedure by Alina Guler, representing a client involved in said procurements proceedings.

First win relates to the attribution of national interest irrigation infrastructure works, valued at 60 Mio RON. Errors, mishaps and inequitable treatment of participants in the bidding process were dutifully uncovered and reported for the client to the Council. The in-depth analysis of the bidding documents and the astute corroboration with the applicable CJUE precedents have been decisive in the annulment of the tender result. The case once again raised the issue of access to the documents which were unjustifiably placed by a tenderer under confidentiality protection. According to relevant law, the Council granted access to the entire file despite the confidentiality declaration of the tenderer. The decision emphasizes once again that it is of the essence of public procurements that the contracting entity obey to its own specifications. The Council found that the contracting entity granted artificial advantages to the winner in the procedure. More precisely, it is a reason to cancel the result of the procedure if the authority defines the request for clarifications in a way that allow the tenderers to complete/modify their offers and also to avoid the technical specification as drafted by the authority. On a separate note, yet equally important, the Council reiterated that the abnormally low price is not intrinsically a reason for the disqualification of a tenderer, but the inability of the tenderer to justify the abnormally low price and genuineness of the tender is indeed a reason for rejecting the offer. Furthermore, the request addressed by the contracting entity for the price justification must not be a general one, but specific, according to the legal provisions, European case-law and guidelines published by ANAP in this regard. In general terms this case is a red flag in terms of favouring one of the operators over the others, argued Alina Guler, head of the project, in the formal complaint.

The second win relates to the cancellation of a public procurement for collection management contract. The contracting entity aimed at absurdly revolutionizing the waste collection industry by requesting to place a container equipped with a glass breaking system in the middle of the street, among pedestrians. The cancellation was triggered by such abnormal technical specifications, followed by the appalling answer of the contracting entity, which, instead of providing essential explanations, resumed the specifications in the same chaotic and confused manner. It seemed that the same entity used the same tender book in a previous procedure, when there was a unique tenderer, which won the contract, yet, obviously, could not perform what it promised. The contracting entity attempted to apply the same recipe in order to obtain the same unique tenderer, unfortunately ignoring that the pitcher goes often to the well but is broken at last.

Alina Guler argued a very well informed and documented complaint to the National Council for Complaint Resolution, and obtained the annulment of the bid itself.

The fundamental vices of public procurement procedures seem to be spreading for the last 15 years, yet, fortunately, experienced lawyers such as Alina Guler at Firon Bar-Nir are able to identify the irregularities and react promptly in favour of their clients.