The use of digital standard forms as part of the procurement process has obvious advantages. It saves time and reduces the risk of errors through use of autofill and the blocking of uploading where the bidder has for example forgotten to tick a box or a drop-down menu or to include an annex. From the perspective of contracting entities, the reduced risk of errors means fewer difficult decisions as to whether the error necessitates rejection of a bid that might otherwise be attractive and competitive.
The European Single Procurement Document (ESPD) is such a standard form and was introduced as part of the 2014 reform of the EU public procurement directives. It is essentially an electronic self-declaration concerning exclusion and selection criteria and mandatory for tenders covered by the EU directives. To ensure uniform application, the content of the ESPD form is subject to overall EU harmonization and a standard ESPD form has been launched[1].
The ESPD has been relatively smoothly introduced in the EU public procurement e-environment with options for stand-alone solutions and integration with existing e-platform arrangements[2]. It is by its nature a process where new problems are occurring and identified along the way. Two decisions from the Danish procurement complaints Board [3] are illustrative examples of such problems, namely ambiguities in design and processing of ESPD forms.
The two cases are also interesting because they evoke the question whether contracting entities should in some cases be obliged to correct ambiguities/errors in bids. What follows is a brief description of the cases and comments in the light of existing ECJ practices.
ESPD case 1
In a tender concerning municipal school transport one company A in a consortium had the technical capacity to participate but needed to rely on another consortium company B for fulfilling requirements to financial capacity. In the ESPD standard form a specific part concerning “reliance” is included for the cases where the bidder relies on capacities of other enterprises. A separate ESPD must be submitted for such “supporting” enterprises.
What further happened was, that a filled out ESPD standard form was uploaded for both company A and for the supporting company B. Due to the automatics of the e-platform being used the bid was identified as submitted by company B. However, this company lacked the required technical capacity. For this reason, the contracting entity rejected the bid as non-compliant.
The procurement process was still on-going and at that stage the national complaints Board was only asked to rule on whether there would be grounds for suspension of the procurement procedure while the complaints concerning the rejection was dealt with. As part of this interim decision the Board needs to decide on whether it is likely that the complainant will be successful.
It was decided that such success would be unlikely and thus no need for suspension, since the contracting entity had been entitled to consider company B as the bidder. What makes the case special is that the contracting entity had in fact noticed the ambiguity and had for this reason asked the consortium for clarifications as to who was bidder and who was supporter.
ESPD case 2
A more recent Board decision is another example of ESPD-ambiguity – not as regards the identity of the bidder but whether the supporter company is indeed committed to the bid. The case concerned a tender of vehicle registration plates. The standard text in the ESPD form required the supporter ESPD to be signed by the supporting company. This had not happened so the bid was rejected. It was pointed out in support of the complaint that the standard text in the ESPD form required no similar signature for the bidder-ESPD and that this demonstrated an ambiguity of the standard text that should work to the advantage of bidder.
The Board upheld the rejection and explained the different signature requirements by the fact that the bidder had uploaded his ESPD by using his user profile already registered at the e-platform. This was considered as sufficient for documenting the authenticity of his own ESPD (and the bid as such). The supporter-ESPD included in the uploading of the entire bid under the user-profile would on the other hand need the signature of the supporting company. Otherwise it would not be clear from the bid whether the supporting company was actually committed and “on board”.
The Board furthermore observed that the bid did not otherwise include any statement from the supporting company confirming the information in the ESPD. A separate statement from the supporting company was included in the bid. However, this statement was considered insufficient because it did not specifically confirm the information provided in the ESPD.
The two cases both concern different aspects of what we might call ESPD ambiguity. They merit a discussion of whether rejection should have been avoided, either because the contracting entity could have allowed the ambiguities to be remedied or because there was actually an obligation to allow this.
Right/obligation to correct ambiguities
Established ECJ case law concerning errors in bids and the subsequent consolidation of this case law in the 2014 reform of the public procurement directives attempts to strike a balance between disproportionate and overly formalistic rejection of bids on the one hand and the interests of competing, compliant bids on the other[5].
The point of departure remains that erroneous bids must be rejected as non-compliant but that it is possible in certain cases to allow corrections. Notably the ELV/Slovensko case[6] clarified that the directive allows such corrections in cases of obvious material errors or where a mere clarification is needed to sort out ambiguity. It was underlined that corrections should not in reality result in a new bid. In this respect, any more comprehensive dialogue with bidder in such cases could be seen as an indication that a new bid has been made.
Nothing explicit is said regarding any possible obligation to allow such corrections in specific cases. It has[7], based on especially the decision of the EU General Court in Case T-211/02, Tideland Signal vs. Commission, been argued that there are cases where such an obligation would apply. In the Tideland case which concerned an EU funded contract, a bid was rejected because the bid validity period set in the bid was too short. It ought however to have been evident to the contracting entity that the date in the bid – due to oversight – had not be adjusted in connection with the bid being resubmitted following postponement of the tender process. There was in any case in the bid a clear commitment to the required 90-day validity period. The Court considered that the contracting entity should have been aware that the bid had not been corrected due to oversight and not least the reasons behind. Because the error was moreover easy to correct without much dialogue required, the conclusion was that based on the principle of proportionality the contracting entity was obliged to have allowed correction and accepted the bid.
It has been attempted to outline circumstances where an obligation for procuring authorities to clarify errors could exist based on principles of proportionality and good administration. This includes situations where the error has been clearly identified by the contracting entity, where the error can be easily resolved, where the error does not change any fundamentals of the bid and possibly the situation where the error is due to some oversight on the part of the contracting entity[8].
It has somewhat surprisingly not been possible to identify more recent ECJ cases concerning such a possible obligation for the contracting entity.
Comments to the two ESPD cases
In ESPD case 1 the Board made the point that the ambiguity was essentially caused by the bidder, company A, choosing to use another company’s user profile, namely the one of supporter company B. Clearly, the ESPD rules[10] open up for automatics in e-portals that equals user profile with bidder. However, the automatics were according to the facts of the case not explained anywhere and could therefore hardly be expected to have been known by the bidder.
It was also argued that the bidder could have indicated under a suitable part of the ESPD form who is the bidding and supporting company respectively. The tender invitation only allowed the bid to include documents specifically mentioned. Company A could therefore not include a cover letter or for that matter a statement of support issued by company B; both would have clarified who was who and their respective commitments. Bidders only option would therefore have been to include clarification in one of the boxes in the form not intended for this purpose. Bidders might be cautious using such an option for fear of bid rejection.
What makes it relevant to discuss the question of an actual obligation for the contracting entity in this case is that the entity had in fact noticed the ambiguity and asked the consortium for clarifications. The contracting entity decided to do this presumably with the intention of allowing correction and avoiding rejection of the bid. The bid was still rejected even though the consortium appeared to have amply clarified who was bidder and who was “supporter”.
What might have been the deciding factor for the Board was that the ambiguity concerned quite a fundamental aspect of the bid, namely the identity of the bidder. For the contracting entity it is obviously crucial to be completely clear as to who the bidder is. It could be argued that such ambiguity goes beyond what a contracting entity could be obliged to clarify from the perspective of proportionality. The clarifications sought and provided would on the other hand certainly have entitled the contracting entity to accept the bid.
Turning to ESPD case 2 concerning signature, the concrete statement of commitment from the supporter may not specifically have referred to the ESPD but is certainly proof of the supporter’s intention. This statement together with the ambiguity as regards signature requirements ought to at least have motivated and possibly obliged the contracting entity to query whether the statement covered the ESPD as well and thereby clarify the situation.
As it can be seen, the ambiguities are in both cases linked to the ESPD form as such. In the first case, there was no “room” in the form to clearly distinguish the bidder-ESPD from the supplier-ESPD. In the second case, the reason for different signature requirements could not be deduced from the ESPD form and would certainly not be obvious to bidder. The ESPD rules[11] allow submission without signature when the ESPD is integrated in an e-platform and registration of user profile is required in order to use that platform. What remains less evident is what applies to supporter-ESPD’s.
The two cases illustrate how there could be good reasons for assigning the risk of errors/ambiguities to the contacting entity in cases where bidders have been required to use specific forms and procedures but ECJ case-law remains sparse, to put it mildly.
However, the two cases also illustrate how problems in an EU context can be dealt with by casting an eye on what the neighbours are doing! The risk of similar ambiguities is avoided in the Irish implementation of the ESPD standard form. Firstly, a box is included in the form for inclusion of the name of supporting enterprises and a distinction between the two ESPD’s can thereby clearly be drawn[12]. Such a box is not included in the EU harmonized form but a purely editorial adjustment for the sake of clarification would seem to be possible and has apparently in any case been accepted. Secondly, the ESPD rules are applied via an arrangement whereby the supporting company can “sign off” via its own user profile and the supporter-ESPD is then together with the bidder-ESPD submitted by means of the user profile of the bidder[13]. This would ensure that the commitment of the supporter is clearly documented.
Clearly, the European e-procurement environment differs with varying amounts of procurement portals and difference in procedures. This was confirmed by a recent consultation process in Denmark concerning the public procurement system. Several parties mentioned that the use of ESPD is not facilitated by the different digital tendering portals with different ESPD formats. The point was made that this not only gives rise to errors and additional administrative difficulties but that it also makes it difficult to reuse the ESPD.
This will be a problem not least for smaller enterprises. One straightforward solution is improved coordination between the various portals. Ambiguities related to the design of the ESPD form ought in any case not work to the disadvantage of bidders.
[1] COMMISSION IMPLEMENTING REGULATION (EU) 2016/7 of 5 January 2016 establishing the standard form for the European Single Procurement Document
[2] See Report on the ESPD Survey issued by the EU Commission (14/21920)
[3] Decision of 27 January 2021 and 2 July 2020 from the Danish Public Procurement Complaints Board to be found at https://klfu.naevneneshus.dk
[5] Article 56(3) of Public Sector Directive 2014/24/EU
[6] C-599/10, SAG ELV Slovensko and Others, paragraph 40, 41 – 44.
[7] Notably Sue Arrowsmith, The Law if Public and Utilities Procurement, Third Edition (2014) Vo.1, page 729 et seq.
[8] See Arrowsmith, The Law if Public and Utilities Procurement, Vo.1, page 729 et seq.
[10] See the user guidelines in the regulation mentioned in note 2
[11] See the user guidelines in the regulation mentioned in note 2
[12] See slides 35 – 37 in the Irish ESPD guidance mentioned in footnote 10 below.
[13] See for easy reference the Irish Office of Government Procurement guidance concerning ESPD, more specifically Part II, C of the ESPD form (slide 21) https://www.etenders.gov.ie/Media/Default/SiteContent/UserGuides/Supplier_Completing_ESPD_Responses_-_Final_V3_14.01.2018.pdf