Breach of a ban on discrimination of tenderers

The Office for the Protection of Competition (“the Office”) imposed the fine of CZK 500,000 to the company Krodos Bus, a.s., for administrative offences when awarding a public contract for the supply of low-floor intercity buses with a length of approximately 12 meters.

The contracting authority has already concluded a contract with the selected tenderer. The decision has not come into force yet.

The company Krodos Bus in the public contract for the purchase of 10 buses awarded in 2012 breached a ban on discrimination of tenderers because it set as the evaluation criterion the distance of an authorized service with a weighting of 45 %. This evaluation criterion did not express the relationship between the use value and the price. The contracting authority provably discriminated potential tenderers who, despite much more suitable offers in the other two partial evaluation criteria, did not have a chance to get better results than the selected tenderer who had the authorized service available at the business premises of the contracting authority. The fact that the contracting authority took the location of the authorized service at its premises into consideration may give rise to speculations that the tenderer for this public contract was foreseen already at the time of drafting a tender documentation. The Office in its decision further stated that the outage of buses caused by regular and special repairs does not depend on the location of the authorized service but on the seriousness and a number of failures and duration of the repair when a number of failures is directly proportional to technical conditions of a vehicle which is among others influenced by the driving style, the age of a vehicle, intensity of the traffic  on the particular line, the quality of the maintenance and the quality of a vehicle itself.

Another administrative offence lying in the breach of a ban on discrimination of tenderers was related to the establishment of technical conditions which ensured competitive advantage to the selected supplier. The contracting authority in its tender documentation set too specific requirements on the subject-matter of the contract which guaranteed competitive advantage only to the selected supplier who as the only one had in its tender the type of a bus which exactly met the requirements specified in the tender documentation. The contracting authority disadvantaged other tenderers who could submit more suitable tenders than was the tender of the selected supplier. The company Krodos Bus committed hidden discrimination of potential suppliers and unlawfully restricted the competition environment. Contracting authorities are not forbidden to set technical conditions according to their needs, however technical specification must be always based on objectively justifiable requirements and suppliers must be able to provide technically and qualitatively similar solutions. 

The contracting authority’s procedure could substantially affect the selection of the most suitable tender.

International and External Relations of the Office