We are participating in an OJEU procurement procedure for a client in Spain. The client has published the tender documents in Spanish which we’ve asked to be translated into English for us. The client has refused to do this and we’re not sure if they are within their rights to do so. Under OJEU rules does the client have a legal obligation to publish documents in a different language if asked or does the burden fall on the bidder if they want to participate?
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From my understanding of the Public Contracts Directive, the contract notice must be published in one of the official EU languages (article 49) and should also state which language (or languages) the tenders, or requests to participate, must be drawn up in.
The UK Public Contracts Regulations 2015 also state at s54 that the language which tenders are to be returned in should be stated with the invitation to candidates (for the procurement methods applicable to this section).
I think one of the areas of dispute may be ‘lost in translation’, which the contracting authority could be responsible for if they provided documents in different languages.
Agree with Andrew W-I… from my experience, when working client-side for public-sector in the UK, typically we make the Notice available in multiple languages, but never have we been requested to translate (or considered translating) the procurement documentation on behalf of an economic operator from a non-UK jurisdiction. The Directives don’t oblige this of contracting authorities. The risk on the translation I would suggest is therefore the bidders.
Worth noting that any errors in a translation of English procurement documents will be the economic operators. Submission of documents (selection questionnaire / PQQ, tender documents, etc.) should be in the language(s) expressly stated in the Notice. Hope that this helps.
The only exception I could foresee to this is the instance where the marketplace for the subject matter is dominated (or entirely comprised) by economic operators from a specific non-UK country. In this very rare instance, it may assist the contracting authority to publish the tender documents in the English and non-English language, to raise market appetite. Very very rare instance though!