Abnormally low tender prices in Romania: responding to requests for clarification

When a tender price needs explaining

In procedures governed by Romanian Law No. 98/2016, the contracting authority must seek clarification where the financial proposal appears abnormally low in relation to the contract. The bidder can then explain how it will deliver on the terms offered. A low price does not, by itself, mean that the tender must be rejected. Article 210 of Law No. 98/2016.

Article 136(4) of the implementing rules refers to a tender price, excluding VAT, below 80% of the estimated contract value. That reference does not replace the assessment of the explanation. Paragraph (1) also addresses price elements that appear abnormally low compared with market prices. Being above the percentage reference should therefore not be treated as a guarantee that no explanation will be requested. Article 136 of the rules approved by Government Decision No. 395/2016.

For a company, the practical question is whether the promised saving can be traced to verifiable costs, resources and commercial terms. An assertion such as “we have experience” offers limited help unless it explains the effect on the cost under scrutiny.

Documents that can support the explanation

Select evidence that addresses the explanation given and the authority’s questions. There is no identical supporting file for every contract. The following can help organise an internal review:

These are practical examples, not a mandatory list of attachments. The rules require conclusive supporting evidence and refer, among other matters, to suppliers, stocks, work organisation, wages and equipment. A document helps when it addresses the issue raised, rather than simply increasing the volume of attachments.

If relying on a supplier discount, explain the product, quantity and terms on which it is available. If relying on productivity, show the link between equipment, time required and tender costs. Avoid presenting hypothetical savings as advantages already available.

Organising the response to a clarification request

An internal review can follow five steps:

1. Separate the authority’s questions. Identify each cost or assumption under scrutiny and each document requested.
2. Return to the submitted tender. Use the same versions of the technical and financial proposals and their supporting calculations.
3. Explain relevant differences. Identify the commercial term, resource or working method generating the saving and where it is reflected.
4. Identify the evidence precisely. Number attachments and refer to the relevant page or item; explain differences between a document and the submitted tender.
5. Conduct a joint review. Commercial, technical and legal teams should be able to follow a consistent explanation across the text, attachments and price.

This is a practical recommendation. It does not guarantee acceptance of the explanation or replace an assessment of the particular request.

Explaining a price and amending a tender involve different limits

The explanation must relate to the tender as submitted. Article 209(2) of the law prohibits an evident advantage arising through clarifications. Article 134 of the rules addresses amendments and exceptions, including certain technical corrections and arithmetic errors; Article 135 concerns formal defects. Each exception requires a specific assessment. Law No. 98/2016, Article 209; implementing rules, Articles 134–135.

For example, replacing a committed resource with a cheaper one may raise a question about amending the technical proposal. A difference between a total and its component calculations requires its cause to be identified before being characterised as an arithmetic error. The label used in a response does not resolve the legal issue.

In SAG ELV Slovensko and Others, C-599/10, judgment of 29 March 2012, the Court of Justice emphasised the need for a clear request concerning an abnormally low price. It also recognised certain limited corrections, provided they do not in reality produce a new tender and equal treatment is respected. The judgment interpreted Directive 2004/18/EC; those principles should be read alongside the Romanian rules applicable to the procedure. ECLI:EU:C:2012:191, paragraphs 27–34 and 40–45.

Mistakes that can weaken the explanation

• General statements about reputation or experience without a connection to the cost being assessed.
• Documents concerning different products, quantities or commercial terms without explaining the differences.
• Staffing costs that do not match the resources and workload committed.
• Explanations that reduce quality requirements, resources or services offered to make the price sustainable.
• Numerous attachments without precise references or calculations consistent with the financial proposal.

An economic advantage must be explained within applicable legal obligations. Low costs do not justify breaching social or labour rules; where State aid affects the price, the specific regime in Article 210 of the law requires assessment.

What to review if the explanation is rejected

Article 136(3) of the rules treats the tender as non-compliant where requested information or documents are missing or fail adequately to justify the low price or costs. The precise grounds for rejection must be compared with the request, response and supporting documents. Article 136(3).

To assess a possible challenge, retain the complete request, evidence of communication, the original tender, the response and attachments, and the authority’s stated reasons. Review whether the questions were sufficiently clear and whether the rejection addresses the evidence provided. The applicable remedy and timetable require a separate assessment of the decision received and the procedure.

Frequently asked questions

Legal sources

• Law No. 98/2016, Articles 209–210
• Implementing rules, Government Decision No. 395/2016, Articles 134–136
• CJEU, C-599/10, 29 March 2012, ECLI:EU:C:2012:191