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It is common that a bidder who has participated in a public tender is not satisfied with the assessment offered by the Contracting Committee or by the independent technical body (Committee of Experts, or specialized body referred to in article 150.2 TRLCSP). ) and wants to refute it through the corresponding administrative appeal. We are in swampy terrain, since the evaluating Body is granted the commonly known “technical discretion”, being able to carry out the evaluation of the offers according to its technical opinion and respecting, of course, the criteria established in the Governing Documents of the tender . Having said the above, starting from the well-deserved “technical discretion”, let us ask ourselves, When could the assessment made in this regard be revoked?… It is illustrative, in order to answer this question, to bring up as an example of the Administrative Court of Public Contracts of Aragon, by which the special appeal is resolved.
Filed by Agreda Automóvil, SA, against the resolution by which the contract called “Transportation of students of the “El Pinar” Gardening School” is awarded, promoted by the Zaragoza City Council , in whose Second Legal Basis , the following is verbatim: "Therefore, before entering into the analysis of the specific substantive issues raised, it is necessary to remember that the provisions of the Bid Documents were known to all the bidders and accepted by them, without any qualification or reservation, from the Canada Mobile Number List moment of formulate its offers, in the terms indicated in article 1445.1 TRLCSP, since there is no evidence in any case that the appellant challenged the Bid Documents in a timely manner - nor did it question the way in which the criteria were weighed - to which, therefore, has been fully bound, without it being possible at this time to substantiate its claims alleging the irregularity of any of its clauses, unless it is a case of nullity by operation of law. On the other hand, given that there is a claim for annulment, this Court, first of all, wants to remember that, in relation to the criteria that can be evaluated based on value judgments, the doctrine repeatedly upheld by the Supreme Court with respect to the so-called technical discretion of the Administration and therefore its function is exclusively to control compliance with the legal principles and procedures, in such a way that it is not possible to replace the technical judgment of that which assesses the adequacy of the proposals to the technical requirements and the different award criteria, as long as the legal formalities are met, there is motivation and it is rational and reasonable.
Furthermore, this same criterion is also defended by the Central Administrative Court of Contractual Resources, warning that when issues that evaluate strictly technical criteria are dealt with, the Court cannot correct them by applying legal criteria. Ultimately, it is up to this Court to verify whether the procedural and jurisdictional procedures have been followed, respecting the principles of contracting, and that, in the absence of a material error, the evaluation of the proposals complies with the canons of technical and discretionary discretion. There is adequate and sufficient motivation.” Likewise, and elaborating on this issue, it is worth mentioning what was resolved in Appeal No. of the Central Administrative Court of Contractual Resources : “In effect, according to the doctrine set forth, technical reports are endowed with a presumption of correctness and veracity, precisely due to the technical qualifications of those who issue them, and there is only sufficient proof that they are manifestly erroneous or have been issued. in clear discrimination of the bidders, consequently this Court must limit itself to verifying whether the procedural and competition procedures have been followed, analyzing whether a material error has been incurred and whether arbitrary or discriminatory formulations have been applied.
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发表于 2024-3-12 17:04:45
