Even repeated requests from the contracting authority for clarification of a submitted tender do not constitute negotiations with a potential contractor. This was recently confirmed by the National Appeal Chamber.
Pursuant to the Public Procurement Law, during the examination of bids the contracting authority may request clarification from bidders concerning the content of the bid itself, means of evidence, or other documents or statements submitted.
At the same time, a request for such clarifications may not imply negotiations between the contracting authority and the contractor. Hence, does MULTIPLE REQUESTS FOR EXPLANATIONS AND REPLYING TO THE CONTRACTOR MEAN NEGOTIATIONS?
The National Board of Appeal – in the prevailing line of jurisprudence – gives a negative answer to this question. This thesis was reiterated in the KIO verdict of 27 July 2021, file ref. 2028/21.
It confirmed that the Public Procurement Law does NOT stipulate that clarifications of a tender may be submitted only once. It also does not limit the reasons why the contracting authority has the right to call the contractor again to submit explanations.