The attorney-at-law Keidi Kõiv successfully represented Hendrikson DGE in a public procurement dispute.
Case
The law firm RASK's attorney-at-law Keidi Kõiv successfully represented Hendrikson DGE in a public procurement dispute, in which the client was involved as a third party in a dispute initiated by Skepast&Puhkim OÜ regarding the decisions of the State Shared Services Centre to recognize Hendrikson DGE as successful in the "Haljala-Kukruse vahelise 2+2 maanteelõigu riigi eriplaneeringu asukoha eelvaliku, asjakohaste mõjude hindamise, sh KSH esimese etapi aruande koostamine Regionaal ja Põllumajandusministeeriumile avatud hankemenetlusena" public procurement.
In the dispute process, the parties argued over the legality of the evaluation conducted by the Contracting Authority and the adequacy of justification obligations. As a result of the dispute, the Public Procurement Review Committee agreed with the positions of the State Shared Services Centre and Hendrikson DGE and dismissed the dispute.
In the decision, the Public Procurement Review Committee confirmed the principles elucidated by the Supreme Court in its 2020 decision, according to which if the evaluation methodology published in the procurement documentation contains precise descriptions of scores, it may be sufficient to ensure transparency of the evaluation without the need for subsequent justification of the scores in the decision. However, the Public Procurement Review Committee explained that such a principle is applicable only if tenders are evaluated solely based on scoring points and no comparison of tenders is made. If the Contracting Authority compares tenders in addition to evaluating them based on scoring points, the decision must show the justifications on which the Contracting Authority relied during the comparison.
Nevertheless, it is always worth considering for Contracting Authorities, even in the case of standard evaluation, whether opening up the justifications of the decision from the evaluation methodology to a broader extent could be justified, if it does not conflict with the business secrets indicated by the tenderers, as it allows easier verification in case of disputes of what the Contracting Authority relied on in making its decisions. However, to the extent that it concerns the business secrets of the tenderers, the Contracting Authority can complement its justifications in the dispute resolution process if necessary.
In addition, the Public Procurement Review Committee did not agree with the arguments of the Skepast&Puhkim OÜ regarding unequal treatment of tenderers. The Public Procurement Review Committee explained that if the tender documents provide tenderers with the right to submit proposals and additional solutions, this cannot be considered unequal treatment of tenderers solely on the grounds that some tenderer did not offer such additional solutions and therefore received lower scoring points in evaluation from the Contracting Authority. On the contrary, the fact illustrates that the tenderer has thoroughly been through all the documents of the public procurement.
In the dispute process, the parties argued over the legality of the evaluation conducted by the Contracting Authority and the adequacy of justification obligations. As a result of the dispute, the Public Procurement Review Committee agreed with the positions of the State Shared Services Centre and Hendrikson DGE and dismissed the dispute.
In the decision, the Public Procurement Review Committee confirmed the principles elucidated by the Supreme Court in its 2020 decision, according to which if the evaluation methodology published in the procurement documentation contains precise descriptions of scores, it may be sufficient to ensure transparency of the evaluation without the need for subsequent justification of the scores in the decision. However, the Public Procurement Review Committee explained that such a principle is applicable only if tenders are evaluated solely based on scoring points and no comparison of tenders is made. If the Contracting Authority compares tenders in addition to evaluating them based on scoring points, the decision must show the justifications on which the Contracting Authority relied during the comparison.
Nevertheless, it is always worth considering for Contracting Authorities, even in the case of standard evaluation, whether opening up the justifications of the decision from the evaluation methodology to a broader extent could be justified, if it does not conflict with the business secrets indicated by the tenderers, as it allows easier verification in case of disputes of what the Contracting Authority relied on in making its decisions. However, to the extent that it concerns the business secrets of the tenderers, the Contracting Authority can complement its justifications in the dispute resolution process if necessary.
In addition, the Public Procurement Review Committee did not agree with the arguments of the Skepast&Puhkim OÜ regarding unequal treatment of tenderers. The Public Procurement Review Committee explained that if the tender documents provide tenderers with the right to submit proposals and additional solutions, this cannot be considered unequal treatment of tenderers solely on the grounds that some tenderer did not offer such additional solutions and therefore received lower scoring points in evaluation from the Contracting Authority. On the contrary, the fact illustrates that the tenderer has thoroughly been through all the documents of the public procurement.