Let us summarize the most significant milestones at which, in an open procedure for the award of a public contract, the bidder must submit documentation to the contracting body:
- Preliminary statement that the economic operator meets the conditions of aptitude to contract with the public sector. Article 140.1 a) of Law 9/2017, on Public Sector Contracts -LCSP- provides that the proposals in the open procedure must be accompanied by a responsible declaration in accordance with the European Single Procurement Document form; it is also possible the additional requirement of certain documentation in certain cases (UTEs, solvency with external means, requirement of provisional guarantee, foreign companies, or any other circumstances not included in the DEUC that may be required by the PCAP).
- Submission of the bid: Article 157.1 provides that, after qualifying the administrative documentation, the opening and examination of the proposals shall proceed, specifying in its second paragraph that when there are award criteria that can be evaluated both automatically and subject to a value judgment, bidders must submit the proposal in two electronic files: one with the documentation that must be evaluated according to the criteria whose weighting depends on a value judgment, and the other with that relating to the criteria that can be quantified by the mere application of formulas.
- Presentation by the best classified bidder of the documentation accrediting its conditions of aptitude -previously declared preliminarily through the DEUC-, and deposit of the definitive guarantee (article 150.2 LCSP).
Anyone who is usually involved in public contracting processes from the side of the contracting body will agree that the opening of any of the aforementioned documentation is an inexhaustible source of headaches for the members of the Contracting Boards, especially the preliminary administrative documentation -articles 140-141- and, above all, the documentation to be submitted by the bidder proposed as the successful bidder -article 150.2-2. To a lesser extent, the opening of the bids is also often a box of surprises. And a non-peaceful question that is the subject of this brief commentary is the consequences of the total omission of a document or documentation relating to a specific aspect. Can what has not even been submitted be rectified? Here are some pronouncements that I find interesting:
As the most recent, Resolution 115/2023 OARC of the Basque Country refers to the procedure prior to the award -article 150.2-, in such a way that, concurring in the case “de autos” the omission of presentation of all the documentation accrediting its conditions of aptitude, the OARCE concludes that it is not possible to rectify it. This Court explains that conferring such a procedure with a prior total omission would be equivalent to conferring an extension or extension of a term that has already expired: “no correction is possible, since it is not that the documentation provided suffers from defects or insufficiencies, but that it has not been submitted, so that the exclusion is simply the natural consequence of the end of the term to carry out an action without it having been produced; the aforementioned correction would be equivalent, in this case, to the extension of a term that has already expired (in reality, a new term to compensate for a chain of errors that is solely and exclusively attributable to the appellant), which is not possible. Finally, it should be noted that the deposit of the bond, regardless of whether it can be taken into account for the purposes of the consequences that may result from a withdrawal of the bid (Article 150.2 LCSP), is irrelevant with respect to the possibility of the requested correction, since it in no way affects the circumstances of capacity, solvency or absence of prohibitions to contract that had to be accredited.” It concludes, therefore, that the insubsanability of the omission is not predicated of the procedure (here partially fulfilled with the presentation of the definitive guarantee), but of the concrete end to be accredited -in this case, the conditions of aptitude to contract-.
In this same line – inappropriateness of conferring a remedy procedure at this stage of the procedure if there has been an absolute omission of presentation of a specific point, the technical solvency in this case-, was previously pronounced in Report 6/2021 of the State Public Procurement Advisory Board: “when what happens is that the bidder has not made the slightest effort to provide the required documentation …/… the only solution is to discard its proposal excluding it from the bidding process…/…. It is not, in fact, a question of a more or less rigorous interpretation of the LCSP, but rather that the contracting body cannot award the contract to someone who does not accredit in any way or does not comply with any of the conditions required for contracting or to someone who, when required to accredit them, presents an indolent or negligent conduct and omits to accredit any of them …/…”; concluding: “Both in the event that the technical solvency has not been accredited in any way, not proceeding the correction, and if, being appropriate, in the process of correction the bidder fails to accredit it, the consequences described in Article 150. 2 of the LCSP, so that it shall be understood that the bidder has withdrawn its offer …/…”.
Traveling now to the preliminary procedure foreseen in articles 140-141 of presentation of the responsible statement regarding the conditions of aptitude to contract, the TACRC gathers numerous doctrine, but in many occasions contradictory, as will be seen below. For example, in its Resolution 1051/2020, despite the notable negligence of the bidder, who only submitted a responsible declaration without following the DEUC form, and omitted the rest of the documentation required, it is in favor of granting a correction procedure: “such omission refers to the accreditation of existing requirements, not to the existence of the requirements themselves and does not affect the formulation of the bids. …/… In the present case, the lack of documentation related to the economic solvency and technical solvency of the appellant is a formal defect, which affects the accreditation of an existing requirement, being therefore susceptible to correction”…/…. Thus, in the case under analysis, the failure to submit the responsible statement in accordance with the European single contracting document form and the failure to provide the remaining general administrative documentation constitutes a formal defect, which affects the accreditation of existing requirements and not the bid, and is therefore susceptible to correction through the provision of the corresponding documentation…/….”.
However, in its Resolution 460/2019 TACRC, it denies the correctness of the correction of the omission of the presentation of the documentation accrediting part of the bidder’s aptitude conditions -the professional qualification and technical solvency-, which were required in Envelope A: “Applying such doctrine to the case at hand, certainly, we are not faced with purely formal errors or omissions, or in non-essential aspects. The appellant has failed to comply with a normal duty of diligence in the mention or accreditation of essential elements of its proposal. The fact of not mentioning or duly accrediting such an essential condition as its legal capacity as an underwriting agency in order to be a bidder -mentioning or identifying at least the existence of the insurance company as a principal-, together with the fact that it has absolutely omitted any consideration related to its technical or professional solvency, are omissions of major importance that would have prevented its correction by means of the recourse to the rectification. For this reason, this Court considers that the rejection agreed by the contracting body is correct and should be maintained”.
Lastly, in relation to the possibility of rectification of the bid, the doctrine is endless, so we will only mention some recent cases in which it can be seen that there are opinions to suit all tastes. Previously, it should be pointed out that the relevant nuance of this phase of the procedure with respect to the administrative documentation is a consolidated doctrine, in such a way that in the case of the bid, it would not be obligatory in any case to confer said procedure: “there is no obligation on the part of the contracting body to request rectification of the same, with the bidder having to bear the consequences of the breach of its duty of diligence in the drafting of the offer, a conclusion that is inferred from the doctrine established by the Court of Justice of the European Union, Fourth Chamber, of 29 March 2012 (case C-599/2010)” (all of them, Resolution 747/2017 TACRC).
Going to two specific cases that can be considered similar, we will see that their resolution is quite different: the TACRC, in its very recent Resolution 1150/2023, in view of the total omission of the documentation accrediting two award criteria offered, based on experience and training, categorically denies the possibility of rectification: “Indeed, although the tendency of our pronouncements in favor of the anti-formalist principle is clear, by virtue of which it has been admitted on some occasions and under certain circumstances (thus, among others, Resolutions Nos. 639/2020, of May 21, 1004/2021, of September 2, and 586/2022, of May 19, which are mentioned in the appeal) the possibility of granting the bidder the opportunity to correct his offer, the fact is that this option is accepted in relation to the documentation already provided, not in cases of absolute failure to provide it. “
And on the contrary, the TARC of the Junta de Andalucía, in Resolution 518/2022, does consider the failure to provide a quality certificate offered to be rectifiable: “This Court has been able to verify that the appellant’s bid indicated the presentation of the ACSA and ISO 9001 EFQM quality certificates, and that the reason for the non-assessment of the 2.5 points referring to the first certificate was the failure to provide the copy expressly required in the bidding document. Based on this premise, this Court considers that, in this case, and based on our own aforementioned doctrine, contemplated in Resolution 86/2018, of March 27, the alleged motive must be upheld in the sense that the contracting body is not justified when, in an excessively rigorous position, it did not grant a period of time for correction for the provision of a certificate that had been alleged, and should have granted a period of time for correction for the justification of compliance with the requirement…/…”