To-dos at the Pre-Bidding Phase of Government Procurement Projects
Following the requirements and qualifications of foreign bidders to participate in government procurement projects, this chapter will focus on the bidding preparations and risk analyses before moving forward in the projects.
Due to factors such as Taiwan’s multivariate geological environment, it is possible that the actual conditions may differ significantly from the geological and underground data provided by the procuring entity in the tender documents. This is often seen in public engineering projects, for example, geotechnical engineering, which are susceptible to impacts from geological or environmental factors such as soil, rock and underground water level. The problems then arise from the limited amount of tender documents, the uncertainties at the site and a lack of information from geological prospecting. Therefore, if a bidder has an opportunity to conduct on-site investigations during its bidding preparation, it would help the bidder come up with a more thorough evaluation on the target.
In terms of customary engineering practice, the significant discrepancies between the tender documents and the actual conditions discovered from on-site investigations are usually accompanied by disputes on whether to “extend the construction period”, “increase the construction fee” or “change the design or construction method”. In general, current tender documents and notice from the procuring entity provide for “on-site investigation clauses”, for example “bidders shall investigate and prospect the construction site by itself prior to submission of the bid, and explain in detail the machineries suitable for such terrain and the responsive measures to be implemented in the construction plan”, “the prospect information is for reference only, the bidders shall investigate the construction site by itself prior to submission of the bid, and shall have sufficient understanding of the location, route, terrain and environment of the construction site”.
In other words, the procuring entity would indicate that the prospect information in the tender documents is for reference only, and ask the bidders to conduct on-site investigations by itself prior to submission of the bid. If there are any discrepancies or changes at the site, the bidders shall submit inquiries to the procuring entity within the period described in tender documents, failing which the bidder may be unable to raise claims such as increasing the construction costs.
However, in reality, during the limited “period for inquiries” from the publishing of the tender documents to the deadline, most of the bidders would not have the ability to conduct thorough on-site investigations, not to mention the ability to discover the significant discrepancies of the geological information between the tender documents and the actual conditions. Therefore, how to review the “on-site investigation clauses” in the tender documents, whether such clauses may be revised, and whether inquiries or objections may be submitted in time in order to retain the rights in the event of future disputes have become some of the most important tasks for bidders in evaluating the government procurement projects during the pre-bid stage.
Inquiries regarding tender documents
If bidders have inquiries regarding the tender documents, they may submit inquiries in writing to the procuring entity prior to the date set forth in the tender documents. If the answers to the foregoing inquiries do not involve changing or supplementing the tender documents, the procuring entity may respond to such bidder in writing, and separately announce such answers if necessary.
However, if the tender documents need to be changed or supplemented, the procuring entity should publish the answers so that all bidders understand the contents of such answers. In contrast, the procuring entity may directly notify each bidder in writing in selective biddings such as technical biddings, price biddings or restrictive biddings, as these may not have a public announcement process. Moreover, in order to preserve the rights of the bidders in terms of time, the procuring entity may have to extend the “bid submission period” if necessary.
Link to article
- Commercial Lenders “Receive” Good News with Michigan’s Adoption of the Uniform Commercial Real Estate Receivership Act
- Supreme Court Ruling on Insider Status for Cram-Down Plan Threatens Lender Protections in Real Estate Financing Structures
- You Get a Notice! And You Get a Notice! Everyone Gets a Notice!
- The Fifth Circuit is Asked to Consider the Validity of the "Golden Share"
WSG Member: Please login to add your comment.