The Market Court addressed the ambiguity of a call for tenders
In a recent case MAO:182/2026, the Market Court examined the lack of clarity in the requirements set out in the invitation to tender and its impact on the comparability of the tenders received.
The appellant argued, in a matter concerning a overhaul renovation contract, that the invitation to tender had been ambiguous, as it did not specify the basis on which the contracting authority had assessed whether the tenderer’s unit prices for additional and alteration works exceeded the general market price level by 30 percent.
By contrast, the contracting authority maintained that professionally operating tenderers, on the basis of their expertise and experience, had been able to assess the extent to which their unit pricing for additional and alteration works corresponded to the general market price level
The contracting authority further submitted that it had not been able to determine in advance the quantities of future additional and alteration works, as these would only be specified during the implementation of the project.
At the outset, the Market Court noted that the contracting authority enjoys broad discretion in defining the subject matter of the procurement and the requirements applicable thereto in a manner it deems appropriate.
However, the Market Court clarified that the principle of transparency in procurement procedures requires that tenderers are already aware, when preparing their tenders, of the factors that will be decisive in the award of the contract. As a rule, responsibility for any ambiguity or interpretative uncertainty in the invitation to tender rests with the contracting authority.
The Market Court emphasized that the invitation to tender listed 113 separate work items (bill items) for which the tenderer was required to provide unit prices. However, the tender documentation did not specify the criteria on the basis of which the contracting authority assessed whether the unit prices for additional and alteration works submitted by the tenderers complied with the general market price level. Nor did the invitation to tender or its annexes describe in greater detail, for example, whether the level of unit prices was to be assessed as a whole or per item, or which method or calculation formula would be applied.
The Market Court further noted that the contracting authority had reserved the right to exclude a tender from the procedure also in situations where, within the list of 113 items relating to additional and alteration works, a single unit price submitted by the tenderer exceeded the market price, based on the contracting authority’s own estimates, by even a marginal amount above 30 percent. The Market Court held that the requirement in question was substantively ambiguous and open to interpretation: even a professionally operating tenderer could not have known with certainty when a unit price set for additional and alteration works under a particular item would meet the requirement.
The Market Court concluded that the invitation to tender had, in practice, conferred on the contracting authority an almost unrestricted margin of discretion in assessing the compliance of pricing for additional and alteration works with the tender requirements, and thus also in excluding a tenderer from the procurement procedure.
The ambiguity of the requirement concerning the pricing of additional and alteration works was further exacerbated by the fact that the tender documents did not include any estimate of the quantities of such works across the various items. It also emerged before the Market Court that the appellant and the contracting authority had significantly divergent understandings of those quantities. As a result, tenderers had based their calculations on differing quantities of additional and alteration works.
For the foregoing reasons, the Market Court held that the invitation to tender had not been conducive to producing commensurable and comparable tenders, and consequently annulled the procurement decision. According to the Market Court, it was of no relevance that, during the procurement procedure, no questions or remarks concerning the pricing had been submitted to the contracting authority on the basis of the evidence obtained.
