Unreal assurances concerning guarantees and hindering access to the market
Assurances included in the contractor’s offer as to the guarantee period, the expiry date of the goods or the availability of spare parts that are unrealistic and detached from the actual possibilities of the contractors and the habits of the market may be considered an act of unfair competition.
The guarantee provided by the participants of the tender procedure should always reflect the real time of use of the ordered device and correspond to the actual possibilities of its use during the guarantee.
For example, the act of offering a hundred-year guarantee was deemed an act of unfair competition. The National Appeals Chamber came to a conclusion that
such a behaviour of a contractor cannot be explained logically otherwise than as a intention of artificially inflating the score that the contractor expects to obtain in the “guarantee period” criterion. At the same time, it prevents or significantly hinders the contract being awarded to other contractors who decided to grant a guarantee for a real and adequate period of the contract (cf. judgment of the National Appeals Chamber of 21 April 2015, file reference no KIO 692/15).
A similar case took place in another case considered by the National Appeals Chamber, where a contractor granted a 99-year guarantee on the shelves he delivered. What’s important, the contracting party used two criteria: the price criterion – 60% or guarantee criterion – 40%. The minimum guarantee period in accordance with the Specification of the Essential Terms of the Contract was 24 months, but the maximum guarantee period was not specified. A 99-year guarantee period allowed the contractor to win the tender with a price over 3.5. times higher than the lowest submitted offer. After selecting his offer as the most advantageous, an appeal was lodged by another participant of the proceedings.
The contractor, proposing a 99-year guarantee for the goods he delivered, hindered other entrepreneurs free and free-market competition for the public contract. The principles of life experience as well as the aim of the guarantee for such goods suggests that the only criterion for such a guarantee period was the desire to obtain the maximum points for the guarantee period by the contractor and not the actual guaranteeing correct operation of electric shelves, controlled electronically during the guarantee period.
In the National Appeals Chamber’s opinion,
the artificial extension of the ‘guarantee period’ should be regarded as an action preventing or significantly hindering receiving a public contract by other contractors who decided to grant guarantee for a real and adequate period as to the subject of the contract (cf. judgment of the National Chamber of Appeals of 23 March 2016, file reference no KIO 369/16).
Such action fulfils requirements of an act of unfair competition stated in art. 15(2)(5) of the Act on combating unfair competition since it is aimed at forcing clients to choose as a contractor specific entrepreneur or creating conditions enabling third parties to enforce purchase of goods or services from a given entrepreneur. In the light of the general clause of art. 3 of the Act, it is also an action contrary to good practices, violating the interests of other entrepreneurs and clients.
Finding that an act of unfair competition was committed by submitting an offer in the tender leads to the offer being rejected by the contracting authority.