The culminating point of the public procurement procedure is the selection of the best offer. The offer of a specific contractor is selected as a result of evaluating the offers based on the criteria set by the contracting authority.

In the contract notice, the contracting authority shall indicate the tender evaluation criteria and their weighting. The exception are proceedings where it is not possible to assign weights at the stage of initiating the proceedings. This applies to competitive dialogue, innovation partnership, basic mode with negotiations under Art. 275 point 3 of the Public Procurement Law, and in these cases the contracting authority, in the description of needs and requirements, indicates the tender evaluation criteria in order from the most important to the least important. However, the Public Procurement Law does not define the very concept of tender evaluation criteria.

Transparency of the proceedings.

Determining and publishing tender evaluation criteria, as well as the method of tender evaluation, is a manifestation of the principle of transparency of the procedure. Therefore, the contracting authority is obliged to apply the criteria indicated in the design documentation to select the most advantageous tender. This means, on the one hand, that it should apply all the criteria listed in the proceedings documents, and at the same time prohibit the use of other, new criteria.

First of all, the contracting authority is obliged to describe the tender evaluation criteria in an unambiguous and understandable way.

Offer evaluation criteria and subjective features.

Bearing in mind the principle of transparency, one may wonder whether contracting authorities should limit themselves to applying objective criteria only, or whether they may also apply criteria relating to the subjective characteristics of the subject of the contract. It is assumed that the criteria may also refer to subjective features. In such a situation, the contracting authority is obliged to provide an objective method of their evaluation, i.e. evaluation under the same conditions and according to the same principles, so that it is possible to verify the correctness of the tender evaluation made by the contracting authority.

Relationship with the subject of the contract.

The tender evaluation criteria must be related to the subject of the contract. The Public Procurement Law states that the relationship between the tender evaluation criteria and the subject of the contract exists when these criteria apply to the subject of the contract in any aspect and in relation to any stages of the life cycle of the subject of the contract, including elements that make up the process of production, delivery or placing on the market, even if these elements are not an essential part of the subject matter of the contract.

What about subjective criteria?

The Public Procurement Law prohibits the use of subjective criteria as part of the offer evaluation criteria. The bid evaluation criteria may not relate to the characteristics of the contractor, in particular its economic, technical or financial credibility.

Prohibition of discrimination

Similarly to the description of the subject of the contract, the tender evaluation criteria cannot be discriminatory. Criteria that lead to favoring a specific contractor or a group of contractors should be classified as unlawful, violating the principle of equal treatment of contractors. The contracting authority should create tender evaluation criteria in response to its real needs, and these criteria should not be unreasonable and therefore arbitrary.

Adherence to the above guidelines when determining the tender evaluation criteria will certainly encourage contractors to participate in the tender.

In the next part of the cycle, we will present information on the bid bond and answer the question: is the requirement to pay a bid bond always beneficial for ordering parties.