Contracting authorities, be careful when checking the adequacy of tenders in public procurement procedures – even minor errors can be disastrous!
By decision No. 018-110/2022-12 of 14 October 2022 the National Review Commission (“DKOM”) ruled that the contracting authority must, as part of the tender review procedure, verify the correctness of calculations in a tender and correct any obvious calculation error, even if this error has no bearing on the ranking of the tender.
In the case at hand, the successful tenderer had listed an hourly rate of EUR 83.14, which for 70 hours amounts to EUR 5,819.80 excluding VAT. Despite there being no requirement to state the total amount, the tenderer nevertheless indicated in the signed draft contract that the total value of all hours was EUR 5,820.00. The successful tenderer’s tender (the tender bid and the cost breakdown on the one hand and the signed draft contract on the other hand) contained a discrepancy of EUR 0.20. The contracting authority did not correct this discrepancy owing to the minor nature of the calculation error, which was immaterial and therefore did not need to be corrected. This has also been the practice of DKOM to date under the provisions of the previous Public Procurement Act (“ZJN-2”).
However, in the specific assessment procedure, the DKOM highlighted the duty of the contracting authority as essential, under Art. 89, Para. 7 of the current Public Procurement Act (“ZJN-3”), to correct, with the written consent of the tenderer, any calculation errors identified during the tender evaluation. Since there was a calculation error (multiplication) in the specific case, the values of the total item did not correspond to the product of the unit price excluding VAT. If the calculation error had been corrected, the price excluding VAT per unit would have been the same in the draft contract as in the successful tenderer’s bid.
In the present case, DKOM pointed out that ZJN-3 (unlike ZJN-2) does not provide a basis for distinguishing between material and immaterial or negligible and non-negligible calculation errors. The contracting authority should have corrected the calculation error in the present case. Its failure to do so saw DKOM uphold the audit claim. The procurement procedure will now have to be repeated despite the miscalculation of just EUR 0.20 i.e. 0.00007% of the total contract value and the fact that it would have had no bearing on the ranking of tenders.
Author: Matevž Klobučar, Attorney-at-Law
