Tomas Seikalis

Public procurement: when the bailiff gets involved

Lithuanian bailiffs (Judicial officer/Huissier de justice) provide the service of the establishment of factual circumstances (making findings of fact) since 2003, and, for example, in Estonia only from 2018. Findings of fact is a detailed description of objective and/or factual circumstances established by the bailiff, in the protocol, and the circumstances are also captured by video or audio records. The protocol of findings of fact is transferred to the customer; it is also registered in the database of the Ministry of Justice, and can be used not only in Lithuania, but also in foreign countries.

In Lithuania, the bailiff performs on average 38-40 findings of facts per year, in total about 4,000. However, the majority of them are not related to public procurement – the bailiff is usually asked to establish facts about meetings of shareholders, construction defects, effects of emergency failures, flooding of apartments, information dissemination, the fact of the appearance of real estate before renting it, etc.

In finding the facts, the bailiff must remain independent – he only describes the circumstances, but cannot give conclusions or opinions, and, in the descriptive text, he must avoid ambiguous or conclusive type of descriptions.

If the supplier has suspicions that his interests may be violated or if the provisions of laws are not complied with, the facts established by the bailiff help the supplier to strengthen the defended or disputed arguments, to better defend the infringed rights. There are cases when the procurement participants “doctor” the technical specifications so that they comply with the conditions of the tendering procedure, hoping that the procurement commission will lack specialist knowledge for a thorough evaluation of tenders. As a result, another supplier can independently check, compare, perform tests as to whether the products offered by the competitor indeed correspond the technical specification of the goods declared in his offer.

Objective legal photography helps suppliers to prove that goods and services offered or supplied by competitors are not in line with the terms of procurement and provide evidence to the contracting authorities in disputes relating to the improper performance of contracts. Finding of facts disciplines the participants of public procurements. The protocol of findings of facts can be used as a means of proof in court against unfair bidders.

One of the cases in which a court made a decision, having assessed the bailiff's findings of facts, was a dispute between a polyclinic and a provider of medical laboratory services. This provider filed a lawsuit because, in his view, the requirement to perform extra-fast tests, within 15-30 min., was unreasonable. The polyclinic submitted to the court a protocol on the findings of fact from the bailiff, which, in the visual material, confirmed that extra-urgent tests can be performed in less than 30 min. after collecting the sample.