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LithuaniaLiteko

Court voids utility tender proof rule that shut out maker documents

Klaipėdos vanduo demanded third-party papers for 30 of 100 points while its own reading of the rule kept shifting; appeal court annuls the clarification.

By Taxxa AI OyPublished 12 November 2026

Legal & Corporate

Industry: Across industries

Lietuvos apeliacinis teismas annulled the 9 June 2026 clarificationTeismai Teismai to AB Klaipėdos vanduo simplified procurement of household sewage-network repair by the CIPP method with a glass-fibre sleeveTeismai. The 12 November 2026 rulingTeismai reverses the 31 August 2026 dismissalTeismai, grants the UAB Požeminės linijos claimTeismai and awards it EUR 9,135.24 in costsTeismai.

The score split 60 points for priceTeismai and 40 for three technical parameters: T1 (15 points) for a seamless sleeve made by the sewing method, T2 (15 points) for a sleeve with an integrated inner and outer film layer with a barrier function, and T3 (10 points) for abrasion resistance under DIN EN 295-3. Six days before the 15 June offer deadlineTeismai Teismai, without extending itTeismai, the purchaser clarified that only independent accredited bodies' documents would earn bonus points, or documents publicly available on the manufacturer's website and verifiable by the purchaser, while manufacturer declarations, catalogues and marketing material would not sufficeTeismai.

The claimant's sleeve maker could evidence T3 but explained that the T1 and T2 features are governed by no legislation, standards or technical specifications, so no regulated testing or certification procedure exists and such evidence is objectively unobtainable. Its 16 June complaint was rejected on 25 June. The first-instance court read the word "or" as letting manufacturers' own website-published documents count and held the claimant had not proved it could not participate.

The appeal panel disagrees on three fronts. First, standing: an invited tenderer active in this market whose sleeve meets T1 and T2 but which cannot earn 30 of 100 points defends its right to compete for quality points on equal termsTeismai, and that interest does not vanish because it may still submit a scoreless offer. Second, clarity: the clarification sustains two mutually exclusive readingsTeismai. One element unconditionally discards manufacturer catalogues as unconfirmed by third partiesTeismai, and the closed list of acceptable proof names only third-party documentsTeismai — yet the "or" sentence defines its second limb by where a document sits rather than who prepared it. The purchaser itself read the rule both waysTeismai: third-party documentation only in the complaint response, then manufacturer documents as acceptable if published, plus customer references and non-accredited laboratory reports nowhere mentioned in the rule. If the drafter itself reads the condition inconsistently, diligent tenderers cannot be expected to read it uniformly in six days. The undefined "independent research reports" leave it to the purchaser's discretion which papers count, contrary to Article 64(5) of the utilities procurement actTeismai, and the ambiguity is decisive because 30 points turn on itTeismai.

Third, the unconditional shut-out of maker documents breaches Article 52(2) of the same actTeismai, implementing Article 62(2) of Directive 2014/25/ES: where a tenderer cannot obtain conformity-body certificates for reasons beyond its control, the purchaser must accept other appropriate meansE TAR, with manufacturer technical documents the typical example. The panel finds that situation more likely than notTeismai: the named institutes do not test T1 and T2 conformity or issue only general approvals, and the maker does not disclose the sleeve construction to third parties. Doubts about maker data are cured by verification under Article 64(5) and by the winner's duty to install the offered sleeve in performance.

The first-instance decision is annulled and replacedTeismai: the clarification is unlawful and voidTeismai, and the EUR 10,806.20 costs award against the claimant falls with itTeismai.

Legal basis: Pirkimų, atliekamų vandentvarkos, energetikos, transporto ar pašto paslaugų srities perkančiųjų subjektų, įstatymas Articles 29(1), 48(4), 49(9), 52 and 64(5); Directive 2014/25/ES Articles 62(2) and 82(4); Civilinio proceso kodeksas Articles 326(1)(2) and 93.

If you draft award-criteria evidence rules, name each acceptable document by author and source so one reading results — and never shut out maker papers entirely where conformity-body proof may be unobtainable.

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