A single missing file. That is all it takes for an otherwise complete and competitive bid to be rejected in a public procurement procedure. No analysis, no checks, no clarifications. Between «Upload» and «Submit», a missing file, due to human error or, worse, not attributable to the bidder, can cost the rejection of the bid, apparently without any “loophole” for rescue clause.

In public procurement, details are never neutral, regardless of whether they are procedural or substantive requirements. The consistent case-law of the courts and the CNSC (National Council for Solving Complaints) predominantly admits that even a simple technical aspect can decisively block a public procurement procedure, leading either to the elimination of the potential bidder or even to the cancellation of the entire procedure.

In the public procurement procedure, uploading bids to the SEAP platform requires compliance with both the substantive requirements and the technical limitations imposed by the system, by the deadline set by the contracting authority/entity, as any non-compliance may affect the validity of the participation. Thus, in the case of complex technical proposals that exceed the maximum limit of 50 MB per file, the bid must be split into several archives in order to be uploaded. However, this technical requirement, intended to facilitate electronic transmission, can become a real “procedural trap”: failure to save a single file makes it impossible to open the entire archive and, implicitly, to access the content of the technical proposal, which unfortunately equates to the absence of the bid in its entirety.

At first glance, the regulatory framework appears to be quite restrictive, with Article 3 let. hh) of Law No. 98/2016^[1] defining a bid as a legal commitment that must include both a financial proposal and a technical proposal, along with the documents required in the award documentation. In addition, Articles 125^[2] and 137^[3] of Government Decision No. 395/2016 require the evaluation committee to reject unacceptable, non-compliant, and inadequate bids, including in cases where one of the essential components of the bid is missing, placing the risks of transmission exclusively on the economic operator. This approach is usually supported by the reference in the Procurement Data Sheet to the obligation of economic operators to ensure, before submitting their bid, the accessibility and functionality of all documents which comprise the bid

The problem arises when, due to a technical error—attributable either to the SEAP platform or to the participant in the procedure—a single file is not saved in the system. Although the bid exists in its entirety, the archive can no longer be opened, and the content of the technical proposal remains inaccessible. This marks the point at which the rule diverges from its rationale. Can a one-off technical error, which does not affect the content and substance of the bid, automatically equate to the absence of the technical proposal and lead to the rejection of the bid as inadmissible? Or is this excessive formalism, incompatible with the principle of proportionality that should govern the entire public procurement legislation?

The uniform practice of the courts and the CNSC outlines the argument highlighting the impossibility for the evaluation committee to open the files uploaded to the SEAP in the “Technical bid documents” section until the deadline for submitting bids and, thus, the bidder’s claim that the bid is fully visible to the evaluation committee cannot be verified.

The participant in the procedure is also required to check the content of the bid, including the technical proposal, immediately after uploading it to SEAP, by the date and time set by the contracting authority, failure to comply with this requirement proving the sole fault of the bidder. The existence of this technical and complex situation requires, in many cases, the preparation of an extrajudicial expert’s report, which, in most cases, does not admit the existence of a technical error on the part of the SEAP platform, but also does not place all the blame on the bidder, admitting the possibility of local causes, such as the workstation (settings, optimizations, updates) or poor internet connection, caching issues, etc.

Continuing along the same line of defence, in some cases, the courts have held that, to the extent that it is impossible to prove that the bidder is not at fault, the technical proposal cannot be supplemented with the missing file, as this constitutes a serious deficiency and a substantial change to the bid, contrary to the principle of equal treatment.

Clear and comprehensible reasoning on the part of the courts can also be approached from a more flexible and permissive standpoint. In reality, however, although our analysis shows that the rejection of the bid is the predominant solution, there are also decisions in favour of the bidder, both minority decisions and opinions/rulings of national courts/, as well as CJEU judgements and CJEU judgments. The analysis of the latter allows for legal reasoning in the spirit of the law, rather than in the letter of the law.

Thus, in order to counter the arguments, we believe that a defence can be outlined to prove, including through expert analysis, the anteriority of the missing file, by highlighting (at least) the following technical aspects: the names of the archive segments, the fact that the archive is technically intact and that the absence or change of one of the segments would prevent the entire archive from being opened, the only option being to reintegrate the missing segment, having the same characteristics as at the time the rar archive was created. At the same time, submitting the bid itself shows the bidder’s intent: to upload the bid properly, meet the deadline, and ensure a lawful, competitive process—rather than to cause delay.

Furthermore, the aforementioned legal provisions regarding the definition of the bid cannot be interpreted strictly from the perspective that the absence of a component of the bid may be equivalent to the absence of a file from the bid content, a reasoning that equates to the drastic sanction of rejecting the bid. Thus, the qualification of the link between the notion of a component of the bid, which, in principle, refers to the technical component plus the financial component, and the notion of the absence of a file from the bid is strictly a matter for the person entitled to settle it.

The automatic application of the rule that the risk of transmitting the bid lies solely with the bidder, without any verification of the pre-existing nature of the missing document and without analysing the existence of a substantial change to the bid, is not consistent with the principle of proportionality laid down in Directive 2014/24 EU, which has also been transposed into national law, and is not in line with the case-law of the CJEU either.

Thus, in Case C-336/12 (Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S) ^[4], the CJEU ruled that the principle of equal treatment does not preclude the contracting authority from accepting documents describing the bidder’s situation that existed prior to the submission of the bid. In addition, the Court emphasized that the principle of proportionality requires the acceptance of a document that existed on the deadline for submitting bids and has not undergone any changes, this being the only appropriate and necessary measure to achieve the purpose of the procedure. The automatic rejection of the bid serves neither the public interest nor the purpose of the procurement, especially when there is no impact on equal treatment or competition.

Similarly, the Court also rules to the contrary, by sanctioning the submission of documents after the expiry of the deadline, only in severe cases, such as that indicated in Case C-387/15 (Konsultant Komputer)^[5], namely, by submitting documents that were not included in the initial bid, even though they should have been submitted and, moreover, altered the very identity of the economic operator.

From our own experience, we can say that, in public procurement, details are never neutral. The absence of a file from a segmented archive, due to a purely technical error that does not affect the substance of the bid, the equal treatment of participants and competition, in accordance with the principle of proportionality and CJEU case-law, cannot be equated with its absence and does not automatically justify the rejection of the bid as inadmissible.

However, while national case-law tends to be more detrimental to the bidder, with a wealth of case-law in this regard, European case-law does not appear to be as restrictive; on the contrary, the Court often rules in favour of the bidder. Thus, accepting a pre-existing, unaltered file may sometimes prove to be an appropriate measure, guaranteeing the correct and legal evaluation of the bid, protecting the public interest, equal treatment, and the integrity of the procedure, but it may also often be inconsistent with the application of the law.

On the one hand, compliance with legal rules is absolutely necessary, but on the other hand, the principle of proportionality ensures that their application remains fair and tailored to the purpose pursued by the contracting authority. Between these two perspectives, a dilemma arises: should excessive formalism prevail over the rationale of the law?

In response to this question, we believe that excessive formalism must give way to the spirit pursued by the European legislator. The measures adopted by the contracting authorities/entities must be proportionate to the legitimate objective pursued: the award of the public contract to the bidder that satisfactorily meets the award criterion established. Rejecting a bid for a simple technical omission—such as forgetting to upload a file to SEAP—when the error is easily remedied and its pre-existence can be technically proven, is equivalent to turning the procurement procedure into an exercise in formalism devoid of substance. Such penalties should be reconsidered and adjusted on a case-by-case basis.

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