We represented Tallinna Jäätmetetaaskasutuskeskus (TJT) in a public procurement dispute related to the waste management and transportation services.
Focus on tender price
The case involved a complaint from Eesti Keskkonnateenused against Viimsi municipality and TJT as the successful tenderer that TJT’s tender price was unreasonably low. As part of the services to Viimsi municipality, TJT priced the offer based on a premise that bio-waste is used to produce waste fuel. Viimsi municipality did not foresee in the procurement documentation the services how the waste is to be processed, leaving it up to the tenderers. Due to the waste management services offered to Viimsi municipality TJT was not obliged to include higher environmental charges to the tender price as TJT was not applying such waste management services that were charged with a higher environmental fee (for example burning of the waste).
EKT found that TJT’s integrated environmental permit did not enable to produce the waste fuel in a way that does not create other related costs and lead to an obligation to pay higher environmental charges. Ultimately, all courts found that TJT’s tender price was not unreasonably low.
Precedent for future public procurement cases
The case was significant to the Estonian public procurement law practice, as for the first time the Supreme Court found that the Estonian Environmental Board should be involved to the proceedings to give information on what actions are allowed for TJT under the integrated environmental permit and whether TJT could, thus, make an offer with such price. Until then the procurement authorities were allowed to rely on all permits in force and not control the lawfulness of the permits given by other competent authorities.
The case was peculiar as it showed that, in some cases, the contracting authorities need to carry out additional checks for permits and their conditions given by other competent authorities to establish the possible influence on the tender price.