A Fresh case from the Market Court concerning the acceptability of conditions set out in the invitation to tender and the suitability of the tenderer

The Market Court: 667/15

The procurement unit has excluded the appellant’s invitation to tender because the appellant’s credit rating has not been sufficient according to Suomen Asiakastieto Ltd´s Rating Alfa- company report. The appellant did not attach a rating report on its’ tender nor it was given any other means set out in the invitation to tender to demonstrate its’ financial and economic suitability.

The appellant has required that the Market Court should annul the decision that is the subject of an appeal and to oblige the contracting authority to correct its improper conduct. Above that, the appellant has required that the Market Court should oblige the contracting authority to pay compensation or oblige it an ineffectiveness of sanctions. The appellant has also required that the Market Court should oblige the contracting authority to compensate for the court costs (excluding VAT).

The Market Court has investigated according to the appeal, whether the procurement unit has violated the legal instructions in relation to procurement, by excluding the appellant´s invitation to tender on the basis of required Rating Alfa- company report.

The requirements of equal treatment, non-discrimination and the establishment of a competition requirements, safeguard that the tenderers will have an opportunity to prove their suitability also with other corresponding clearance and this is also stated in the invitation to tender. The Market Court is therefore on opinion, that the contracting authority could have estimated the tenderers’ and the     appellants´ financial and economic situation with some other corresponding clearance and not just only by the rating report of Suomen Asiakastieto Ltd.

The Market Court sees therefore, that the contracting authority has acted improperly when it has not given the tenderers an alternative way to demonstrate their suitability than the certain rating report. Since the invitation to tender was in violation of procurement regulations, the contracting authority did not have the right to exclude the appellant’s tender on the basis that the tender was missing a rating report.