3.5 PROVISION OF CLARIFICATIONS AND

ADDITIONAL INFORMATION ON THE TENDER DOCUMENTS

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The interested economic operators may submit to the Contracting Authority, by post, facsimile or electronic mail, questions, recommendations, comments and/or remarks concerning the terms of the tender document.

In this case, the Contracting Authority is obliged to notify all interested economic operators of its relevant decisions, by way of supplementary documents to be also sent by post, facsimile or electronic mail within six (6) days at the latest before the last date for the submission of tenders. The interested economic operators to which the answers are sent shall be taken to, mean for the Contracting Authority those who have received the tender documents (in the case of the open procedure or in the case of the prequalification stage of the restricted procedure) or the prequalified candidates (in the case of the contract award stage of the restricted procedure).

In the case of open procedure or in the prequalification stage of the restricted procedure, it is also recommended that the Contracting Authority also publishes its decisions on its Website, if one exists, particularly so if the tender documents had been published on it.

Although the Law does not specify a time limit for the submission of clarification questions, it is recommended that such a time limit be set in the tender documents. In order to determine this particular time limit, the Contracting Authority must estimate the time to be required for the examination of the questions, recommendations, comments and/or remarks and for the preparation of the respective answers, taking also into account the degree of complexity or any particularities or original elements of the contract scope, the technical specifications and the terms of reference for the project. In all cases, the date of expiry of the time limit for the submission of questions, recommendations, comments and/or remarks, and the time limit specified for sending the answers, should not be very far apart (a period of 5 to 10 days before the date set for sending is recommended as reasonable such time). As an exception, in the case of simple projects the Contracting Authority may not specify a fixed time limit in connection with the exercise of the right for the submission of clarification questions.

The Contracting Authority may also on its own initiative, if it judges this to be necessary, make additions, corrections or modifications of a small scale to the terms of the tender documents. In this case, it is obliged to send these additions, corrections or modifications, by  post or facsimile or electronic mail, to all interested economic operators within six (6) days at the latest before the last date for the submission of tenders, while it is also recommended that the Contracting Authority publishes them on its Website, if one exists.

In the above cases of additions, corrections or modifications of a small scale (which are considered minor in the sense discussed in the paragraph “Limitations regarding clarifications and additional information”, given below) to the tender documents, the Contracting Authority must not extend the time limit for the submission of tenders, as this would result in the initial minor modification being followed by a second, substantial change. A minor modification addition functions as a clarification to the interested economic operators and does not affect the preparation of their tenders. Consequently, the Contracting Authority is not obliged to extend the deadline for the submission of tenders, nor may it do so.

The procedure of the open meeting

In the case of a complex project, where the clarifications or explanations or additional information requested require the cooperation of several parties, the Contracting Authority may provide in the tender documents for the procedure of an open meeting, attended on a voluntary basis by all economic operators interested in participating in the tender procedure. The open meeting:

Adds transparency to the procedure and prevents parties acting in bad faith (possibly intentionally so) from disputing the validity and reliability of the tender procedure.
Enhances competition and leads interested economic operators to formulate their questions more carefully, possibly reducing the tendency towards the submission of questions or comments without substantial content.
Provides the competent officials of the Contracting Authority who will attend the meeting with the opportunity to confirm the correctness and completeness of the Tender Documents and obtain a first impression of the appeal of the tender procedure to the market and the expected turnout of candidates.

If the Contracting Authority chooses to hold an open meeting, it should specify in the tender documents the relevant key details, such as the place, date and time when the open meeting shall be held. The time of the open meeting is specified by the Contracting Authority to fall sometime between the date of expiry of the deadline for the submission of questions and the date on which the answers to these questions must be sent (the 10th day before the last date for the submission of tenders is proposed as a suitable such date).

After the open meeting has taken place, the Contracting Authority should ensure that the Minutes of the meeting and its relevant decisions are sent to all the recipients of the tender documents, within six (6) days at the latest before the last date for the submission of tenders.

Limitations regarding clarifications and additional information

The procedure described above refers to, and addresses, only the cases of minor additions or corrections to the tender documents, which may result either from an initiative of the Contracting Authority or following the submission of questions, recommendations, comments and/or remarks by the candidate economic operators.

In cases where, in the opinion of the Contracting Authority, the additions or corrections which must be made are characterised to be substantial, then tender documents must be formally corrected and a new time limit for the submission of tender, equal to the one originally specified, must be set.

The Contracting Authority should complete and send for publication in the Official Journal of the European Union the special form entitled “Notice for additional information, information on incomplete procedure or corrigendum”, available from the Website of the EU (http://simap.eu.int). In addition, the correction or modification of the tender documents should be subject to the same advertising measures as those of the initial notice (publication on the Website, publication in the same national newspapers and publication in the Government Gazette of the Republic of Cyprus etc.). Finally, a best practice proposed is for the modification addition to be sent to all economic operators who have received the tender documents.

Therefore, in all cases where it is established that such an addition or modification is required, the Contracting Authority must be able to weigh its significance and classify it as substantial or minor.

It is understood that the distinction between substantial and minor differences should respect the key principles of the Treaty and in particular the principles of transparency and of equal treatment (not only of the candidates and tenderers but also of the potential candidates or tenderers).

The safest (in terms of methodology) method for assessing whether a difference is substantial or minor in nature, is for the Contracting Authority to examine the likelihood of this difference affecting the decision of an economic operator about its participation the tender procedure.

For example, differences concerning the description of the physical scope of the contract or the eligibility for participation or the qualitative selection criteria or the legal form which a consortium will be required to assume if it is awarded the contract, are obviously substantial modifications.

The Contracting Authority does not have the right to choose to defer the closing date for the submission of tenders in the case of substantial differences to the tender documents of the original notice. Given that the modification addition is substantial, and thus affects the decision/ability of certain economic operators to participate in the specific tender procedure, these economic operators should also benefit from the same minimum time limit for preparing and submitting their tenders, as the initial participants in the tender procedure. Consequently, the principle of equal treatment necessitates in practice the determination of a full new time limit for the submission of tenders, which shall be equal with the one initially specified. This is in fact equivalent to conducting a new tender procedure, which is essentially a correct repetition of the previous one.  

Pursuant to Law 12(Ι)/2006 (article 43, par. 7) and Directive 2004/18/EC (article 38, par. 7), the extension of the time limit for the submission of tenders is allowed only for the reasons explicitly and restrictively stated in these paragraphs, specifically:

When site visits or on-the-spot inspections of documents supporting the tender documents are foreseen to be made by the economic operators, in order to be able to prepare their tenders.
When the Contracting Authority has not supplied within the specified time limits the tender documents or its answers to submitted clarification questions, comments or remarks (in the last case, such an extension is allowed in order for the time limit of six (6) days between the final dispatch of the answers and the time limit for sending the answers to continue to apply).

The only case where an extension of the time limit for the submission of tenders would be allowed without the Contracting Authority making any modifications additions to the tender documents, would be that imposed by the unwritten (however quite real) substantiating reason of force majeure. In cases of force majeure (especially in cases of earthquake, restriction of departure, declaration of the headquarters of the Contracting Authority in a state of emergency due to particular natural phenomena, strike of the employees of the Contracting Authority etc.), the Contracting Authority could extend the time limit for the receipt of tenders, while in accordance with the principle of proportionality, this extension should not exceed the absolutely necessary duration of the force majeure event.


© 2007 Republic of Cyprus, Treasury of the Republic, Public Procurement Directorate
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