The Supreme Administrative Court revoked the decision of the Market Court: The invitation to tender was ambiguous

The procurement in question was the copying services of architectural drawings. According to the appellant, the invitation to tender did not enable the tenderers to draft compatible tenders. The appellant also claimed that the tenderers had not been treated equally when comparing the submitted tenders. The invitation to tender stated that it was possible to give a tender, in which at least one category of services was priced as zero even though these services would in fact probably be billed as a part of some other service category.  In practice, the contracting authority did not have a realistic possibility of overseeing the true nature of work performed and the amounts of different types of work in different price categories.

The invitation to tender in question had included a tender form, in which there were sections under different headlines with tables that included descriptions of specific materials and services. In these tables, the tenderer was supposed to fill in the different prices according to the descriptions. At the very end of the invitation to tender, there was a section “materials and tools” with a table. Under this table these was a written mention of general principles: principle that that all of the prices have to include the product that has been finished, the principles of billing additional services, the principles with adding reduced price catalogues to the tender and that if some specified service’s price is in fact included in the price of some other service that is being procured, it should be marked as zero in the table.

The Supreme Administrative Court stated, that the situations in which the price of a service or a material could be included in the price of some other service or material had not been specified in the invitation to tender. Taking into account the structure of the invitation to tender, it was also not clear if the written principles only concerned the last section and table or all of the sections and tables.

Thus the situation and instructions of one category’s price being included in some other category had been ambiguous and the tenderers were not able to find out precisely how the prices of the services and materials in question should be marked in the tender form. The tenderers that had participated in the procurement procedure had in practise also understood the instructions of marking the prices in the tender form differently.

The Supreme Administrative Court deemed that the invitation to tender had been ambiguous in terms of marking the prices in the different categories to such extent, that it had not been suitable for producing compatible tenders nor ensuring the fair and non-discriminatory treatment of tenderers. The Supreme Administrative Court revoked the decision of the Market Court, the procurement decision and ruled that the contracting authority must compensate the occurred legal expenses of the appellant.

Case: KHO 2016:97