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We are winning for our customers - this time contrast agents

The hospital described the subject of the contract in such a way that it combined the drug in a vial and the drug in a pre-filled syringe in a single task, but only one manufacturer had the drug in the pre-filled syringe. In addition, in the description of the subject of the contract, it indicated the trade name of the drug without expressly allowing equivalent bids. Although the ToR contained a general admission of equivalent offers and their criteria, the application of these criteria led to the selection of this one drug described by the trade name.


On behalf of our client, we lodged an appeal indicating that the Contracting Authority had breached the principle of fair competition by:

1. structuring the task in such a way that only one product could be bid for.

2. not allowing equivalent bids despite the indication of the trade name of the drug


The Chamber ordered the contracting authority to:

1. separate the drug in vials into a separate partial task

2. to allow equivalent medicines and to establish equivalence criteria in such a way as to ensure a product with the characteristics needed by the contracting authority.


The Chamber pointed out that:

1. although the contracting authority is entitled to define its expectations in terms of functionality, when formulating the provisions when ordering, it should take into account the maintenance of fair competition. This does not mean that every potential contractor must be allowed to participate in the proceedings, but neither can it be seen in isolation from the contracting authority's needs. However, it is unacceptable to describe the subject matter of the contract in such a way as to restrict the possibility of submitting tenders, which is not necessary to meet the reasonable and objective essential needs of the contracting authority. When describing the subject matter of the contract in such a way as to eliminate solutions functioning on the market, the contracting authority must be able to demonstrate that this results from its justified needs. In the present proceedings, the contracting authorities did not in any way justify the drug being supplied in ampoule form. Orders for the drug in the form of ampoule-syringes represented only a small part of the total order. However, indicating the ordering of the drug in the form of ampoule-syringes and preventing the ordering of individual items resulting only in the drug in the opinion of the NAC restricts competition. The contracting authority itself admitted that only one drug indicated by name in the terms of reference meets its requirements. As a justification for the form of selection of the drug, the contracting authority pointed to the facilitation of staff. However, it should be borne in mind that the drug will only be administered by trained personnel, so in the chamber's view it makes little difference what form the drug will be administered in.  The contracting authority has indicated that the drug may need to be administered additionally and that the safety of administration is better guaranteed by the ampoule-syringe, however, bearing in mind that the syringe must be disposed of after use, if it has not been used in its entirety, it must be disposed of anyway, so this argument is irrelevant in the opinion of the Chamber.

2 The provisions of Article 99(6) of the Public Procurement Law explicitly indicate the contracting authority's obligation to indicate in the description of the subject of the contract the criteria used to assess equivalence. Merely allowing for equivalence is not sufficient.  It is important to specify the equivalence criteria. Equivalence does not consist in offering an item identical to the reference product. The essence of an equivalent solution boils down to offering a product that meets the functionalities specified by the contracting authority. In the proceedings in question, this was confirmed by the contracting authority itself at the hearing and it indicated the drug by name and only that drug meets its requirements. He did not indicate the specifications of the contract or the criteria that this equivalent product should meet.  He did not, therefore, indicate the justification that would confirm the correctness of his solution.


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