Mandatory site visit as a means to obtain better bids
The contracting authority may require contractors to conduct a site visit when justified by the subject matter of the contract. Failure to participate in an obligatory site visit will result in rejection of a bid. Contractors who do not manage to attend the site visit should request a new date for the visit before submitting a bid.
When is a site visit mandatory?
If justified by the subject matter of a public procurement, a contracting authority in Poland may require contractors to participate in a site visit, under Art. 131(2) of the Polish Public Procurement Law. A site visit consists of a visual inspection of the place where the contract will be performed. The requirement of a site visit is justified when a visual inspection of the contract site will provide contractors knowledge they need to prepare a proper bid and price calculation which cannot be conveyed in the procurement documents alone.
However, requiring contractors to participate in a site visit does not relieve the contracting authority from its duty to accurately and comprehensively describe the subject of the contract. Imposing mandatory site visits on contractors cannot make up for mistakes by the contracting authority in describing the subject of the contract or failure to present all relevant conditions for contract performance.
So, while providing for a site visit for contractors in which they may or may not participate should be assessed positively, a mandatory visit cannot be introduced freely. Requiring contractors to conduct a site visit is always an additional complication and an additional cost associated with preparation of a bid. In turn, failure to participate in a site visit prevents the submission of a valid bid, so the contracting authority should make reasonable use of the possibility offered by Art. 131(2) of the Public Procurement Law.
A site visit: What is it needed for?
A site visit is used to obtain better bids from contractors. Therefore, when requiring participation in a site visit, the contracting authority should how conducting the site visit will actually serve this purpose. Often, the site visit is short and does not cover all the areas relevant to the contractor. For example, contractors might not gain access to all technical facilities, or may not be accompanied by as many experts as warranted by the number of trades involved in the contract.
The contracting authority conducts the proceeding and has the right to organise the site visit in a manner that best suits its organisational capabilities. However, it should be remembered that when a site visit is required, the sanction for failing to attend is rejection of the bid. Also, the contractor bears the cost of attendance by its experts who can realistically translate the information obtained during the visit into the quality of the prepared bid.
Therefore, a mandatory site visit should not only be justified by the nature of the specific contract, but also carried out in a manner realistically enabling contractors to obtain the information they need to prepare a proper bid, which cannot be described with sufficient precision in the terms of reference.
How to organise a site visit?
Another issue is the timing of the site visit. Art. 131(2) of the Public Procurement Law indicates that when deciding to organise a site visit, the contracting authority shall set a time limit for submission of bids that is longer than the statutory minimum and takes into account the time necessary for contractors to acquaint themselves with the information necessary for preparation of a bid. So, on one hand, it is immediately assumed that in such a case the time limit for submitting bids must be longer than the minimum time limit. On the other hand, after participating in a site visit, the contractors should have enough time to be able to factor the information gained during the site visit into their work on the bid.
Additionally, the date of the site visit must not exclude from participation in the proceeding contractors who meet the conditions for participation and are interested in submitting a bid, but learn about the ongoing proceeding after the date of the site visit. This refers to a situation where a contractor capable of performing the contract has enough time to prepare and submit a bid, but cannot do so as the site visit took place before the contractor expressed an interest in the contract. In such a case, the contractor has no choice but to request the contracting authority to set an additional date for a site visit.
Can a site visit be repeated?
The contracting authority has the right to schedule a site visit on several dates. And often prudent contracting authorities do just that, setting in advance a number of dates on which contractors can appear for a site visit. But a contracting authority that has set only one date for a site visit may also invite contractors for a visit on another, additional date.
Since the purpose of the site visit is to obtain better-quality bids, and the purpose of any competitive procedure is to obtain the maximum number of valid bids, it is clear that when it receives a request from a contractor for an additional date for a site visit, the contracting authority should generally grant such a request. If an entity capable of performing the contract comes forward and openly declares its interest in the ongoing proceeding, it is not in the interest of the contracting authority, nor in the public interest, to deprive this contractor of the right to participate in the proceeding because it was unable to participate in the site visit or did not know about it.
The same set of rules for a second visit
Clearly, participation in an additional site visit on a later date cannot be mandatory for contractors who already participated in the originally scheduled site visit. Moreover, the way an additional site visit is organised should correspond to the first visit: the duration of the visit, the extent of information provided, and the range of sites made available to contractors should be the same. In other words, when it is conducted under the same set of rules as the first site visit, an additional site visit will not distort competition in the proceedings. If the additional date for the site visit falls shortly before the deadline for submission of bids, it is necessary to consider if the contractors attending on the additional date will be able to incorporate the information obtained during the site visit into their bids. An additional site visit may mean that the deadline for submitting bids will need to be extended.
A mandatory site visit does not serve to exclude contractors from the proceeding. Although lateness by contractors may have negative consequences for them, as the organiser of the proceeding the contracting authority should apply Art. 131(2) of the Public Procurement Law with caution and in such a way as not to frustrate the purpose of the public procurement procedure.
Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners
