When the State is interested in acquiring goods or services, companies can present their offers and compete to be awarded the contract. However, certain errors, many preventable, may delay the process, while others can result in the disqualification of the company. These are called rectifiable and non-rectifiable defects. Although the latter are the most severe, bidders should strive to avoid both, submitting the offer that best meets the requirements of the tender notice.
The most common rectifiable defects
In practice, most of the defects in offers are rectifiable; that is, they can be corrected, allowing the company to continue competing. However, submitting corrections involves an additional step and a delay in the process. An offer with many flaws can also be seen as lacking commitment or capability. Additionally, if it were to win, the company would face the scrutiny of the other bidders, who would look amongst its offer and corrections for any reason to attempt to revoke it.
The following have been identified as the most common rectifiable defects:
- Submitting expired documents. Documents must be valid at the time of the “opening” of the offers, not at the time of their upload. It is common to submit expired certifications from professional associations or entities, as some of these they are valid for only 15 to 30 days.
- Not signing supporting documents. This may include affidavits, forms, experience letters, CVs, etc.
- Not providing experience letters. If they are omitted, the company would have 5 business days to request them from its clients, a period that can be very short.
- Submitting incomplete experience letters. The tender notice may require technical expertise, for instance, with a certain software. If the software is not mentioned in the letter, the experience will not be considered proven.
- Not adhering to the format required in the tender notice. It is common for documents to omit dates, contact information, job titles, names, projects, etc.
- Not being up to date with the CCSS (Social Security) or Tax Administration. Although it is rectifiable, the company would only have 5 business days to make the payments or set up a payment arrangement.
The most common non-rectifiable defects
Non-rectifiable defects can eliminate the company from the tender. These are understood as those whose correction would imply a “variation in the essential elements of the offer” or that would give the company an “undue advantage” over the other bidders (article 80 of the Regulations to the Administrative Contracting Law, “RLCA”).
To understand this definition, note that corrections are allowed after the “opening” of the offers: when the offers can be viewed publicly. If, after viewing the other offers, the company varies essential elements of its own or changes it to obtain an advantage, the initial equality between bidders would be broken. For this reason, these are referred to as non-rectifiable defects, and we have identified the following as the most common:
- Not having the required years of experience. This defect is common when the tender notice requires certain years of experience since the registration before a professional association.
- Failing to meet the required technical experience. For instance, the tender notice may require experience in the design and construction of three projects, within the last 10 years, and already delivered to the client. Experience only in design, from 11 years ago or that has not yet been completed would be ruled out.
- Not signing the offer. This is a non-rectifiable defect (Article 81 RLCA).
- Not naming an expert for a certain role. It is not admissible to submit the expert afterwards, as this would imply the correction of an essential element of the offer the work team. Likewise, it would represent an undue advantage to allow the company to complete its team after the opening of the offers (see: CGR, R-DCA-01141-2021).
- Failing to submit certain corrections. Not correcting significant aspects of the offer (for instance, providing the food handler certificate), may be reason enough to disqualify the offer.
Finally, although the above is based on the most common defects identified in practice – it is not an exhaustive list – each offer must be analyzed independently, together with its corresponding tender notice, to determine if its defects are rectifiable or result in the inadmissibility of the company’s offer.
