Content vs. a form of guarantee for the seriousness of the offer?
In the case of DARS dd, which was decided by the National Audit Commission on 6 March 2024 ( DKOM decision no. 018-010/2024 ), it was again decided whether the validity of the guarantee for the seriousness of the offer is essential relevance or formalistic matching of the required text from the tender documentation.
In the specific case, the client requested in the tender documentation that, if the guarantor is not a bank, but e.g. insurance company, guarantee in addition to indicating the SWIFT address for which the guarantor previously had to arrange an authorized relationship with the bank, the guarantee must also contain an explicit statement that the bank is authorized to receive messages in the SWIFT system. Regardless of the above, DKOM has judged that the indication of the SWIFT address in the guarantee is sufficient and that, as a result, additional statements about the existence of an authorization relationship have no added value, as they confirm what has already been stated.
As DKOM has written several times in its practice, any deviation from the client's formal requirements regarding the submission of a guarantee for the seriousness of the offer does not yet constitute such an error that would require the exclusion of the offer. The deviation must be such as to result in the client not being able to cash in the security provided in exactly the amount and for exactly the reasons and in exactly the ways requested in the documentation related to placing the order. That is, it is not essential to have a formal word-for-word match, especially if the requested text has no special meaning in the context in which it is written.
It is not superfluous to emphasize that the adequacy of a bank guarantee is a matter of concrete assessment in each individual case, so I suggest that you always read the guarantee when you receive it from the guarantor and thereby check that it is adequate in terms of content and consistent with the substantive requirements of the client .
Tanja Glušič, lawyer
In the specific case, the client requested in the tender documentation that, if the guarantor is not a bank, but e.g. insurance company, guarantee in addition to indicating the SWIFT address for which the guarantor previously had to arrange an authorized relationship with the bank, the guarantee must also contain an explicit statement that the bank is authorized to receive messages in the SWIFT system. Regardless of the above, DKOM has judged that the indication of the SWIFT address in the guarantee is sufficient and that, as a result, additional statements about the existence of an authorization relationship have no added value, as they confirm what has already been stated.
As DKOM has written several times in its practice, any deviation from the client's formal requirements regarding the submission of a guarantee for the seriousness of the offer does not yet constitute such an error that would require the exclusion of the offer. The deviation must be such as to result in the client not being able to cash in the security provided in exactly the amount and for exactly the reasons and in exactly the ways requested in the documentation related to placing the order. That is, it is not essential to have a formal word-for-word match, especially if the requested text has no special meaning in the context in which it is written.
It is not superfluous to emphasize that the adequacy of a bank guarantee is a matter of concrete assessment in each individual case, so I suggest that you always read the guarantee when you receive it from the guarantor and thereby check that it is adequate in terms of content and consistent with the substantive requirements of the client .
Tanja Glušič, lawyer