In public procurement procedures, bidders are often requested by the contracting authority to extend the initial commitment period of their offers. This request is generally due to the fact that the contract cannot be signed within the initial commitment period given the existence of repeated disputes over the award procedure.
From a business point of view, it is difficult – sometimes even unprofitable – for a bidder to leave an offer unchanged for a long time. The question then arises whether extending the offer’s commitment period is mandatory or optional, and to what risks a tenderer exposes himself by not complying with the contracting authority’s request.
When establishing the commitment period in the award documentation, the contracting authority must take into account its own estimates of the time needed to analyze and assess the offers, as well as the legal periods of time required to settle potential legal remedies of the participants to the award procedure. If there are extraordinary circumstances (situaţii excepţionale), the contracting authority is bound to request an extension of the commitment period and, if case, of the security submitted for participating in the award procedure; if the tenderer does not comply with this request, his offer will not be acceptable.
Neither public procurement law nor the application norms define the notion of “extraordinary circumstances“. There are several possible interpretations.
Since the contracting authority must take into account – in the initial commitment period – the legal periods of time for settling any legal remedies of the tenderers, one could argue that such circumstances do not exist in case of contestations of the award procedure.
On the other hand, it is impossible for the contracting authority to accurately assess the number of complaints within the award procedure or the “perseverance” of the contesting tenderers who often make use of all possible legal actions against the award decision. In principle, a very long commitment period of the offers, covering a high number of complaints and the use of all possible legal actions on the part of the tenderers against the award procedure, could be established from the beginning in the award documentation; however, this would not necessarily work in favor of the tenderers, who would see their resources – often unnecessarily – tied up for a long time. In this context, one could argue that repeated contestations during the award procedure represent extraordinary circumstances under the application rules. In this case, the contracting authority would not only be entitled, but even obliged to request the extension of the commitment period of the offers and securities for the award procedure. This opinion is found in certain decisions of the National Council for the Settlement of Contestations (Consiliul Naţional de Soluţionare a Contestatţilor) and of courts of law.
If the tenderer does not comply with the contracting authority’s request to extend the commitment period, his offer could be labelled as unacceptable (article 124 paragraph 3 of the application norms). As a result, extending the commitment period is not optional for the tenderer, but mandatory.
Tenderers who do not grant a request to extend run the risk not only of having their offers rejected, but also of losing the security for taking part in the award procedure. The latter sanction is not expressly regulated from a legal point of view, but it comes into question, since the purpose of the security is to protect the contracting authority against the inappropriate behaviour of the tenderer. Not extending the tenderer’s security can be seen as culpable conduct by the tenderer (i.e. withdrawal from the award procedure), which entitles the contracting authority to the sum secured.
If there are repeated disputes over the award procedure, the contracting authority can claim “extraordinary circumstances” and request the extension of the commitment period of the offers and, if case, of the tenderer’s security. Should the tenderers not comply with this request, their offers could be excluded, and they run the risk of losing their security money due to inappropriate behaviour. In conclusion, the extension (usually disadvantageous from a financial point of view) is in principle mandatory