➤We won for our client - this time, after receiving an appeal, the contracting authority took corrective action and changed the content of the SWZ even before the date of the hearing was set by the National Board of Appeal.
The hospital described the subject matter of the public contract for the supply of contrast media by specifying the required molar concentration of the ordered solution with an accuracy of one hundredth of a decimal fraction.
In our opinion, the contracting authority violated the principle of fair competition and the principle of proportionality by defining the subject matter of the contract too finely, which was not justified by its actual needs and only served to restrict competition.
In order to convalidate the procedure, the contracting authority amended it by extending the required molar concentration range in a manner proportionate to its needs, guaranteeing the implementation of the principle of fair competition.
In the appeal we raised the following arguments:
𝟭. Drawing up a description of the subject of the contract is one of the most important activities of the contracting authority, preceding the commencement of the public procurement procedure, which determines the entire course of the procedure and has an impact on its outcome. Therefore, the contracting authority should perform this activity respecting the principle expressed in Article 16 of the Public Procurement Law, which imposes an obligation to prepare and conduct the procedure in a manner ensuring the maintenance of fair competition and equal treatment of contractors. The legislator was clearly of the opinion that in a public procurement procedure the contracting authority cannot formulate the description of the subject of the contract in a way that would directly or even indirectly violate the above rule. A discriminatory description of the subject matter of the contract has an impact on the smaller number of bids submitted in the procedure, and may cause contractors to offer incomparable products (KIO:551/23)
𝟮. Impermissible preference should be understood as all procedures, using any means of describing the subject matter of the contract, which unjustifiably prefer or directly indicate a particular contractor or a particular product. The effect of such a provision is that it is impossible for a contractor other than the preferred one to submit an offer compliant with the description of the subject of the contract formulated in such a way, or to propose a product other than the preferred one. On the other hand, provisions eliminating specific products (and specific contractors) will be those which, otherwise than in accordance with the objective and actual purchasing needs of the contracting authority related to the performance of the tasks assigned to it, lead to the inability of specific groups of contractors to submit a tender (and propose specific groups of products).
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