Summary of the decisions 23 and 25-2019
The applicants were two other bidders, who didn’t offer a lower price than ESCO AHK, even though the main criteria set out for the selection was the lowest bid. Because of the common stance of the applicants in both applications, large and crucial parts of the first decision are identical in the second one.
The Contracting Authority raised a preliminary objection for lack of legitimate interest of the Applicants. The Tenders Review Authority rejecting the preliminary objection, stated that when Applicants submit a valid offer and the Contracting Authority in case of rejection of their previous decision, will proceed with a review and then will have the benefit of the review with all likely possibilities. The Tenders Review Authority is not bound to notarise the procurement in favour of the second bidder in rank. Since the Contracting Authority has different choices the preliminary objection is not substantiated. The Tenders Review Authority was differentiated from the referents in the application No. 513/2019, stating that in that case the Applicants did not meet the provisions of the procurement.
Furthermore, the Tenders Review Authority investigated the reason of the rejection as supported by the Applicants, that the successful bidder does not have a valid certificate of registration or a valid business licence, thus, does not fulfil the provisions of the procurement. The Tenders Review Authority extensively referred to the relevant provisions of the terms of the procurement as well as the relevant references on the Evaluation Report made by the Contracting Authority.
It is worth mentioning that the Contracting Authority while examining whether there is a valid certificate of registration or a valid business licence, as required by the terms of the procurement, approached the relevant services, i.e. Εlectromechanical services and the competent Authority for Public Tenders. The first responded that the requirement to have a valid business licence issued in accordance with the Electricity Regulations, was not covered, whereas the second one referred once more to the Electromechanical Services. Finally, the Contracting Authority after considering the answers of the abovementioned Departments, decided that the particular provision of the Legislation was satisfied thus the requirements of the Procurement were fulfilled as well.
The Tenders Review Authority after ascertaining that the provisions under consideration were in fact substantial, stated that the provision 6.1.6. (f) clearly requires the possession of a valid certificate of registration or a valid business licence for participation in the procurement. The Contracting Authority was obligated to apply the requirement without any deviations. Even the EAC, which was submitted as a third-party, was found that it did not possess these licences and certificates, thus it could not provide technical or professional support to ESCO AHK.
Based on the above, the Tenders Review Authority concluded that when the successful bidder and the third-party do not possess the required certificates or licences, it leads to the annulment of the contested decision.
There was a minority decision from a member of the Tenders Review authority, according to which the application should have been rejected.
