Marit Piirisaar & Mari Ann Simovart: Correcting Mistakes and Clarifying Ambiguities in Public Procurement Tenders: The Case of Estonia

The European Procurement & Public Private Partnership Law Review journal published the article “Correcting Mistakes and Clarifying Ambiguities in Public Procurement Tenders: The Case of Estonia”, written by Mari Ann Simovart, civil law associate professor at the University of Tartu, and Marit Piirisaar, our associate.

According to Marit, the article, as implied by its title, is about the possibilities of correcting mistakes in and clarifying ambiguities in the documents submitted by economic operators in public procurement procedures after the due date set for the submission of such documents. The article contains cases and analysis from the case law of Estonian courts and practice of the Public Procurement Review Committee and comprises both procedural as well as substantive aspects in requesting for clarifications.

The article was born out of the issues relating to the challenge faced by contracting authorities –in which cases should an economic operator be allowed to correct or clarify the documents submitted in time, and how to do in such manner that it would be in compliance with the principles of transparency, proportionality and equal treatment. As neither the Directives nor the Public Procurement Act provide specific guidelines in this regard, the case law of courts and practice of the Public Procurement Review Committee has a meaningful effect.

The article covers, among other things, the obligation of contracting authorities to use their discretionary powers to request clarifications from economic operators. There is a separate sub-chapter dedicated to the possibilities of a contracting authority to limit the requesting of clarifications from economic operators by providing a respective explicit regulation in the procurement documents. It also brings examples based on the case law regarding the cases when it is not allowed to correct the documents which have been submitted in time or take clarifications into consideration, as it would constitute substantive amendment of the submitted documents, but also the possibilities of correcting formal mistakes and correcting the value of a tender.

Marit Piirisaar, the co-author of the article, comments on the preparation of the article as follows: “The author of the idea is Mari Ann Simovart, the supervisor of my master’s thesis, who proposed to develop the master’s thesis into a scientific article covering the practice of Estonian courts and the Public Procurement Review Committee. At first, I found this to be a serious challenge, but the idea was implemented in gratifying co-operation with the author of the idea. Such a proposal is certainly an opportunity for a student to develop their writing skills and create added value out of the efforts dedicated to writing a master’s thesis. However, it must be acknowledged that the initiative to write such an article can rather come from the supervisor, and therefore it depends a lot on how such an initiative and co-operation is viewed by the supervisor or the university. My experience has been utterly positive, and I hope that it will inspire other supervisors of master’s theses and master level students.”

Read the full article here.