According to the public procurement Directive, public entities must award the contract to the lowest price offered, or the tender most economically advantageous. However, if a tender appears to be anormally low, the conctracting authority shall, before it may reject such tender, request in writing details of the constituent elements of the tender, which it considers relevant cf. Article 55. The question is then, when a tender appears to be abnormally low. Neither the provision or the ECJ has clarified when a tender can be rejected as abnormally low, yet there are several explanations as to why a tenderer wants to make such a tender. Besides commercial considerations, such as expectations to make subsequent renegotiations, an abnormally low tender can have an anticompetitive purpose. Though there is an obligation to review the tender before rejection, the ECJ seems to give the public authority a fairly wide discretion as to accept or reject an abnormally low tender. On the other hand it is vital for the compliance of the principles of equel treatment and transparancy, that the originator is given at least some guidance in order to identify and reject such tenders. To identify an abormally low tender, the public authority can use a mathematical criteria, and it is shown, that a tender that differs more than one standard devitation from average, shall be examined more closely. Regarding the question as to when a tender can be rejected, there seems to be some disagreement in theory. While some argue that an offer can be rejected, when there is a risk og non-‐performance, others argue that a tender must be rejected when the price falls below the variable costs of the tenderer. Against this background and with reference to government contract cancellation, it is stated, that a tender can be rejected when price falls below Total Cost, since rejection must be done on an unbiased and objective basis. Public procurement seems to be particularly vulnerable to anticompetitive practices, since the public demand for goods and services is fairly stabil and predictable. However, such considerations are not included in the provision, and the ECJ has found, that a public authority are not obliged to take such considerations into account, when awarding contracts. Meanwhile unsuccessful bidders have difficulties in observing and reacting to such behaviour, since they are not permitted to acces the composition of the tender awarded. Therefor it is stated, that the integration of competition law and procurement rules must be improved.
|Educations||MSc in Commercial Law, (Graduate Programme) Final Thesis|
|Number of pages||112|