A “tie” following a request to submit supplementary bids is rare, but when it does occur, the contracting authority should act according to a clear scheme consistent with the Public Procurement Law (PPL).

1. When is it permissible to request supplementary bids at all?

A request to submit supplementary bids cannot be used arbitrarily. The PPL permits this action only in situations where the most advantageous bid cannot be selected because of a “tie”. The PPL lays down the following rules of conduct in such situations:

* Bids have been submitted which, according to the bid evaluation criteria, receive the same number of points. In such a situation, the bids should first be compared according to the criterion with the highest weighting, and if this does not produce a result – according to the lower price or cost. Only if, despite the application of these mechanisms, a bid cannot be selected, is it permissible to request the submission of supplementary bids, but only with regard to the price or cost offered.

It is worth remembering that in a supplementary bid the contractor may not offer a higher price or cost than in the original bid. Submitting a supplementary bid with a price or cost higher than originally offered results in its rejection.

2. How to correctly request supplementary bids?

It is good practice to expressly remind contractors of the statutory prohibition on offering in a supplementary bid a price or cost higher than in the original bid. The request is addressed only to the contractors whose bids remain “tied”. Not all participants in the procedure are invited. The content of the request should state precisely that the supplementary bid concerns only the new price or the new cost. Contractors may not modify other elements of their bids. The request must clearly specify the time limit for submitting the supplementary bid and the method of its transmission (e.g. via the procurement platform).

3. What to do when the supplementary bids are identical?

If, after a correct request, the contractors submit identical supplementary bids – that is, bids with the same price or the same cost – the contracting authority is obliged to cancel the procedure. This is a mandatory ground for cancellation, arising directly from Article 255(4) PPL. It is then not permissible to make another, “play-off” request to submit supplementary bids, because such an action may be taken only once. Nor is it permissible to resolve the tie by drawing lots, since in this case the Act provides only for cancellation of the procedure.

Having decided on cancellation, the contracting authority should prepare an appropriate notice containing a concise but specific factual and legal justification, and then send it to all contractors in the manner provided for in the procurement documentation.

4. The most common mistakes and good practices

1) Failure to treat contractors equally. Requests and time limits should be identical for all contractors remaining in a tie, which reduces the risk of allegations of breach of the principles of fair competition and equal treatment.

2) Resorting to supplementary bids too early. In the case of a tie with multiple criteria, the rule of comparison according to the criterion with the highest weighting should be applied first, and then, where appropriate, according to the lower price or cost. Only when this does not resolve the matter may supplementary bids be requested.

3) Incorrect scope of the supplementary bid. A supplementary bid may concern only the price or cost and should not include any other modifications to the original bid.

4) Accepting a price or cost higher than in the original bid. Such a supplementary bid is subject to rejection, while the contractor remains bound by its original bid.