Session “International standards for tender submission” Bid opening and bid evaluation Ľubica Páleníková EBRD-Consultant, WOLF THEISS Kiev, 1-2 March /3/2012

Agenda 1.Bid OPENING 2.Bid READING 3.Bid opening PROTOCOL 4.Bid EVALUATION 5.Bid DEFECTS 2 2/3/2012

BID OPENING (1) Where?  venue stated in the tender documents (usually the seat of the contracting authority)  precise information (incl. address, floor, room number) When?  after the deadline for the bid submission (as soon as possible)  date and time stated in the tender documents 2/3/2012 3

BID OPENING (2) Who? Public bid opening = bidders / their representatives  number of persons per bidder often reduced due to the room capacity  verification of the powers of attorney Contracting authority  bid opening commission consisting of specialised experts Exclusion of the bidders from the bid opening  as an exception 2/3/2012 4

BID OPENING (3) How?  transparent = bid opening protocol Contracting authority shall verify before bid opening  closed and undamaged bids  timely bids (i.e. before the deadline for the bid submission) ↔ rejection of late bids  return to the bidder unopen 2/3/2012 5

BID OPENING (4) How?  transparent = bid opening protocol Contracting authority shall verify after bid opening  numbering of the bids (according to the time of the receipt by the contracting authority)  duly signed bids (verification in the commercial register extract / power of attorney)  complete bids (incl. all attachments / bid bond) 2/3/2012 6

Bid READING What?  name and seat of the bidder  total bid price (incl. discounts / additional charges) ↔ not the individual unit prices  relevant affidavits of the bidder  award criteria other than price (if stated in numbers and announced in the tender documents) 2/3/2012 7

Bid opening PROTOCOL (1) Principle of transparency Protocol  unopen, undamaged bids  timely  duly signed  complete  bid reading  evident bid defects Attendance list  names of the bidders / representatives 2/3/2012 8

Bid opening PROTOCOL (2) Protocol  signed by all members of the bid opening commission  sending to the bidders by request (all bidders eligible to attend the bid opening) 2/3/2012 9

Bid EVALUATION Contracting authority shall review the conformity of the bid with the tender documents and with the law. Bid evaluation commission composed of specialised experts  internal (contracting authority)  external (e.g. IT-sector, medicine, geology) Bid evaluation reports  each member of the commission individually  = justification of the award decision 2/3/

Bid DEFECTS (1) Bid defects  repairable  irreparable Ratio  no rejection of the bid due to mere formal defects The bidder must not gain an unfair competitive advantage when repairing the bid defect. 2/3/

Bid DEFECTS (2) Repairable bid defects Contracting authority is obliged to request clarification from the bidder. Rejection of the bid only if  bidder does not provide the necessary clarification (on time)  clarification is not conform with the tender documents / law 2/3/

Bid DEFECTS (3) Repairable bid defects ! Case-law Austria  missing evidence regarding the participation criteria (e.g. existent certificates)  copy of the bid bond  missing power of attorney, but duly signed  missing firm´s binding signature, but duly signed  missing notification about the forming of a consortium in a 2-stage tender procedure 2/3/

Bid DEFECTS (4) Irreparable bid defects ! Case-law Austria  late bid  not duly signed  missing bid bond  terms and conditions of the bidder (attached to the bid)  with reservation regarding consultations with the contracting authority 2/3/

Bid DEFECTS (5) Examination of the bid price Rejection of the bid due to a speculative price Can the bid price be justified economically? ! Case-law Austria Plausible justifications  synergies  extraordinary advantageous conditions  discounts due to the market introduction  not mere comparison with the bid price of other bidders 2/3/

Contact 2/3/ Ľubica Páleníková, Dr. iur. Tel: + 43 / 1 / – 2350 Fax: +43 / 1 / – WOLF THEISS Attorneys-at-Law Schubertring Vienna Austria