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ARTICLE · 30 AUGUST 2012

Clarifications And Abnormally Low Tenders

Mason Hayes & Curran LLP
Mason Hayes & Curran LLP
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A frequent issue is whether a public body can, or must, get clarification from a tenderer on aspects of its tender

IrelandCorporate/Commercial Law
Philip Nolan
Philip Nolan
Robert McDonagh
Robert McDonagh
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A frequent issue is whether a public body can, or must, get clarification from a tenderer on aspects of its tender.  In a recent case SAG (C-599/10)1, the European Court of Justice was asked whether a contracting authority may or must seek clarification from a tenderer where the contracting authority is of the view that the tender submitted by a tenderer is abnormally low or imprecise or does not meet the technical specifications.

The Court considered each scenario in turn.  With respect to abnormally low tenders, the Court held that:

  • a contracting authority is required to examine the details of tenders which are abnormally low; and
  • for that purpose, a contracting authority must request the tenderer to furnish an explanation to prove that its tender is genuine. 

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