In connection with the declaration of a state of emergency (note: state of emergency in connection with the spread of COVID-19), many public contractors or contracting authorities (hereinafter referred to collectively as “public contractors”) are considering how to ensure the opening of bids from tenderers despite the ban/restrictions on visits to public contracting authorities' premises, so that the legal procedure for opening tenders is complied with. The legal regulation on the opening of tenders requires public contracting authorities to allow all tenderers who have submitted tenders within the deadline for submission of tenders or the deadline for submission of final tenders to participate in the opening of tenders. In practice, therefore, tenderers could also attend the opening of tenders in person at the time and place specified in the tender documents and in the call for tenders or the public procurement notice. In the vast majority of cases, the place of opening of tenders was the premises of the contracting authority.
In light of the above, a problem may arise in the current period, as the place where bids are to be opened may be inaccessible to bidders on the date of opening due to measures taken in connection with COVID-19. How should the contracting authority proceed in this case? The options available to contracting authorities to resolve this situation vary depending on whether the public procurement process is carried out through an information system ensuring the integrity of the tenders submitted or not.
If the public procurement process is carried out through an information system ensuring the integrity of the submitted tenders, it is possible to ensure the opening of tenders during the period of prohibition/restriction of visits to the premises of public contracting authorities through this information system and by making the tenders available to tenderers online. Such online access to bids may also take the form of a teleconference. In this context, it should be noted that if the contracting authority has published the tender documents and the call for bids, or notice of the launch of a public procurement procedure before the ban/restriction on visits to public contracting authorities' premises came into force, the public contracting authority is obliged to inform tenderers of the change in the method of making the opening of tenders available online. The contracting authority shall notify tenderers of this change via the communication system it uses in the relevant public procurement procedure (e.g. EVO system, JOSEPHINE system, etc.). Contracting authorities shall also publish the above change in the method of making the opening of tenders available in their profile. At the same time, if it is possible and appropriate in terms of time, the Public Procurement Office also recommends making a correction to the notice announcing the public procurement, in which the contracting authority informs about the change in the method of opening tenders.
If the public procurement process is carried out differently (e.g., tenders were submitted in paper form) and the extraordinary measures do not allow for the originally planned personal participation of tenderers in the opening of tenders, the contracting authority is unfortunately obliged to change (postpone) the date of the opening of tenders, i.e. change the tender documents and the relevant call for tenders or the public procurement notice in the form of a corrigendum. It shall inform the tenderers of this decision depending on the method used to announce the contract and its stage. If possible and appropriate, it shall inform the tenderers in an appropriate manner, publish the information on its profile or make a corrigendum to the relevant notice.
If necessary, our law firm, in cooperation with BALTEUS spol. s r.o., can provide you with legal advice on the necessary steps to be taken in relation to the opening of tenders in individual public procurement procedures during an emergency situation, as well as other legal advice in the field of public procurement.
