If a bidder does not take into account that quantities have been amended in the summary of additional information and changes, then the tender submission is invalid. This is an omission that is not open to rectification.
For the renovation of the N359, the Province of Friesland held a European public tender procedure according to the Dutch Works Procurement Regulations 2016 [Aanbestedingsreglement Werken 2016] The RAW Standard Conditions 2015 (specification system for civil and hydraulic engineering works) apply to contract documents. The tender statement was amended in the third and fifth summaries of additional information and changes. Among other things, contract documents items were scrapped and the original quantities were changed.
BAM submitted a tender in good time. BAM’s tender submission was apparently the most economically advantageous, were it not for the fact that – according to the province – BAM had submitted an invalid tender. Fact is that BAM did not include in its tender submission various changes made to the tender statement in the third and fifth summaries of additional information and changes. BAM argued that it is allowed to rectify these omissions, but the province did not concur with that position. For this reason, BAM initiated preliminary relief proceedings to enforce the rectification of the omissions.
Court in preliminary relief proceedings: this is not an omission that is open to rectification
The court in preliminary relief proceedings, however, dismissed BAM’s claims. According to the court in preliminary relief proceedings, this does not constitute an omission that is open to rectification. According to this court, it is not possible to objectively establish which unit price BAM would have used for the correct quantities. The court did not uphold BAM’s claim that it always uses the same price for identical work. This is because it is apparent from BAM’s tender statement that it does not do so.
Invoking Article 01.01.04 of the Standard 2015 was equally unsuccessful. According to the court, this article is intended for assessing the breakdown of the contract price and not for addressing the issue of whether the submission was in accordance with the specifications.
So BAM’s tender submission remains invalid.
This ruling is in line with other case law on tender submissions involving Standard RAW contract documents. Mistakes in the tender statement almost always render the submission invalid. For instance, these issues have already been addressed for the scrapping of contract documents items, the failure to include all the costs in a unit price and amendments to the provisional sums. Also, the court in preliminary relief proceedings of the District Court of Central Netherlands had already ruled that if quantities changed in the summary of changes are not copied across, the tender submission is invalid. In this case, invalidity is all the more evident because it is not possible to establish objectively what the correct unit price is supposed to be if the quantities have changed. After all, it is standard practice to offer different unit prices for different quantities, even if – as BAM claims – the work is to all intents and purposes identical.
Joris Bax, lawyer specialising in procurement and construction law at Dirkzwager.