I. Brief Overview of the Dispute
TB Legal provided legal assistance to a tenderer in challenging the decision of a tender commission related to the evaluation of a competing tenderer’s technical documentation within the framework of public procurement.
The dispute concerned the public procurement of medical diagnostic products. Within the tender procedure, the competing tenderer was requested by the procuring entity to clarify its technical documentation, including the registration of the products in Georgia and the submission of the relevant documentation.
According to our client’s position, the documents submitted as a result of the clarification did not fully confirm compliance with the tender conditions. At the same time, the tender commission had not, in fact, assessed these circumstances in the disputed decision and proceeded directly to the stage of verifying the adequacy of the price offered by the tenderer.
The Dispute Resolution Council related to public procurement partially upheld the complaint and instructed the tender commission to review its decision and to re-select and re-evaluate the competing tenderer’s technical documentation (see the decision).
II. Key Issues Related to the Dispute
1. Confirmation of State Registration of the Products
One of the important issues in the dispute concerned whether the documentation submitted by the competing tenderer confirmed the registration in Georgia of the products bearing exactly the catalogue numbers offered.
According to our position, state registration of a pharmaceutical product constitutes a legal prerequisite for its admission to the Georgian market. Accordingly, when assessing compliance with the tender requirements, it was important to confirm the registration of the specific product that the tenderer offered to the procuring entity in the price table.
The complaint focused on the fact that the submitted documentation contained catalogue numbers with different designations, which required a clear and substantiated assessment of the matter by the tender commission.
2. Significance of the Manufacturer’s Letter Regarding the Identity of the Products
The competing tenderer’s documentation also included a manufacturer’s letter concerning the identity of products bearing certain designations.
According to our position, the existence of such a letter could not, in itself, replace confirmation of the state registration of the relevant product. It was necessary to assess the specific legal and evidentiary significance of the manufacturer’s letter and whether it was sufficient to establish compliance with the tender conditions.
This issue acquired particular significance considering that compliance with the registration requirement is associated with the expenditure of relevant administrative, time, and financial resources by tenderers, and its uniform application is directly related to the participation of tender participants under equal conditions.
3. Assessment of Quality and Certification Requirements
Under the tender conditions, documentation confirming the quality and conformity of the offered products was required, including relevant certificates or an official letter from the manufacturer regarding the status and certification of the products.
The complaint indicated that the content of the submitted manufacturer’s letter required additional assessment, since the tender commission had to determine whether it made it possible to objectively verify the compliance of the specific products with the tender requirements.
Accordingly, within the dispute, attention was focused not only on the formal existence of the document, but also on its content and on whether it actually confirmed the circumstances required under the tender conditions.
4. Obligation to Assess the Clarified Technical Documentation
The issue of the tender commission’s assessment of the clarified technical documentation proved decisive for the case.
The procuring entity requested the competing tenderer to clarify its technical documentation, and the tenderer submitted additional documents. Thereafter, the tender commission was required to assess whether the clarified documentation satisfied the requirements established by the tender conditions.
However, in the disputed minutes, the commission had not examined the submitted clarified documentation in detail and had not indicated on what basis it considered the documentation acceptable and compliant with the tender conditions.
Instead, the commission proceeded to the next stage and requested the competing tenderer to submit documentation confirming the adequacy of the pricing.
5. Obligation to Substantiate the Tender Commission’s Decision
The Dispute Resolution Council placed particular emphasis on the necessity of substantiating the tender commission’s decision.
The Council indicated that the decision of the tender commission constitutes an individual administrative-legal act and that a written decision must contain appropriate reasoning.
The decision must demonstrate which specific documents and circumstances were assessed by the commission, how they were assessed, and on which factual and legal grounds the commission relied when reaching its final conclusion.
In the present case, the Council found that the disputed minutes did not contain proper reasoning as to how and on what basis the tender commission considered the competing tenderer’s clarified technical documentation acceptable and compliant with the tender conditions.
III. Result
The Dispute Resolution Council partially upheld our client’s complaint.
The tender commission was instructed to review the disputed decision and to re-select and re-evaluate the competing tenderer’s technical documentation in full compliance with the legal reasoning formulated by the Council in its decision and the requirements of the legislation regulating public procurement.
This case demonstrates that, when evaluating a competing tenderer’s bid in a public tender, what is decisive is not only the formal existence of documents, but also the proper verification of their substantive compliance. In its decision, the tender commission must clearly reflect the circumstances on the basis of which it considered specific technical documentation compliant with the tender conditions.
IV. TB Legal’s Experience in Public Procurement
Within its legal services package in the field of public procurement, TB Legal assists tenderers with legal matters related to public procurement, including: legal assessment and challenge of tender conditions; challenging the disqualification of a tenderer; assessment of a competing tenderer’s compliance; preparation of tender complaints; and representation before the Dispute Resolution Council related to public procurement.
If you wish to effectively protect your company’s interests in public procurement, contact us – TB Legal is ready to provide you with professional legal support in the field of public procurement.
