A Duty to ‘Save’ Seemingly Non-Compliant Tenders for Public Contracts? - Comments on Art 72 of the 2017 Portuguese Code of Public Contracts

(2018) 2 Revista de Direito Administrativo 59-68

10 Pages Posted: 26 Mar 2018 Last revised: 30 Apr 2018

Date Written: March 20, 2018

Abstract

This paper provides a critical assessment of the rules regarding the clarification, supplementation and correction of tenders in procedures for the award of public contracts regulated by the EU 2014 Public Procurement Package. It does so through a detailed assessment of the transposition of Article 56(3) of Directive 2014/24/EU by means of the post-2017 reform version of Article 72 of the Portuguese Code of Public Contracts. The paper concentrates on four main issues: the existence of a mere discretionary power or a positive duty to seek clarifications, corrections or supplementations of tenders and their accompanying documentation; the constraints imposed on such power or duty; the desirability of unilateral tender corrections by the contracting authority; and the transparency given to the correction, supplementation or clarification of tenders. The paper assesses each of these issues against the backdrop of the existing case law of the Court of Justice of the European Union, as well as with a functional approach to the operationalisation of the Portuguese rules on correction, supplementation and clarification of tenders for public contracts.

Keywords: public procurement, tenders, clarifications, corrections, documentation supplementation, clerical errors, non-compliant tenders, discretion, competition, equal treatment

JEL Classification: H57, K23, K40

Suggested Citation

Sanchez-Graells, Albert, A Duty to ‘Save’ Seemingly Non-Compliant Tenders for Public Contracts? - Comments on Art 72 of the 2017 Portuguese Code of Public Contracts (March 20, 2018). (2018) 2 Revista de Direito Administrativo 59-68. Available at SSRN: https://ssrn.com/abstract=3145088

Albert Sanchez-Graells (Contact Author)

University of Bristol - School of Law ( email )

Wills Memorial Building
Queen's Road Clifton
Bristol, BS8 1RJ
United Kingdom

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