vergaberechtliche Priviliegierung
English translation: public procurement law privilege
| 21:22 Aug 18, 2011 |
| German to English translations [PRO] Law/Patents - Law (general) / Referenzschreiben | |||||||
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|  Selected response from: Alexander Schleber (X) Belgium Local time: 10:22 | ||||||
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| Summary of answers provided | ||||
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| 3 +1 | privilege clauses in tenders/requests for proposals |
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| 3 | public procurement law privilege |
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Answers
34 mins confidence: 
peer agreement (net): +1
peer agreement (net): +1privilege clauses in tenders/requests for proposals Explanation: Privilege clauses in tenders and requests for Proposals: ... -------------------------------------------------- Note added at 37 mins (2011-08-18 21:59:50 GMT) -------------------------------------------------- he has extensive knowledge on privilege clauses/aspects in tenders etc. -------------------------------------------------- Note added at 45 mins (2011-08-18 22:08:11 GMT) -------------------------------------------------- Most procurement professionals are well aware that they can cancel a tender if all of the bids received are substantially more than their internal budget. Less clear, however, is whether and how they can then re-tender that same work a short time later. Will the courts view this as the unfair practice of bid-shopping, or will it be seen as a legitimate business decision driven by necessity and supported by the language in the tender document? Test your knowledge with the following fact pattern. In June 2005, the Halifax Regional Municipality (HRM) issued a call for tenders for construction and upgrade of the Plymouth Road sanitary pumping station located in Dartmouth, Nova Scotia. The internal estimate for the work was $158,240, and the HRM Council had approved expenditure of $249,000 for the project. This was based on cost projections done by outside consulting engineers. Three tenders were received by closing and were opened in public, in accordance with the terms of the tender. The bid-pricing results were subsequently published on the HRM website, and also by the Construction Association of Nova Scotia. Amber Contracting Ltd. was the low bidder on the project, at $570,612.75, clearly substantially above the $249,000 available budget. HRM made the decision to cancel the tender on September 15, 2005 and contacted each of the bidders by letter. Despite the cancellation, HRM conducted some negotiations with Amber Contracting after this date, in an attempt to negotiate a price that was acceptable to HRM. Although Amber offered to reduce its pricing further without any change of scope, the parties were unable to reach agreement. In April 2006, HRM issued another tender for this project, using the identical scope of work and design. Amber Contracting was the second-lowest bidder this time, at $589,917.80. HRM awarded the contract to Eisener Contracting, the only one of the four bidders that had not participated in the 2005 tender process. The Eisener bid on re-tender was higher than Amber’s bid on the original tender, and more than $100,000 above the reduced offer Amber had made to HRM before re-tender. Amber protested, and when the matter went to court, Amber produced evidence that HRM had never re-tendered projects in the past when all bids came in over budget. Instead, HRM’s practice (and written policy) had always been to either extend the acceptance deadline to secure additional funding, or to negotiate changes to the project scope to reduce costs. Amber therefore argued that HRM had breached its implied duty of fairness by re-tendering the project. HRM defended its conduct by relying on certain privilege clauses in its tender document, including the “right to reject or accept any tender … the right to reject all tenders if none is considered to be satisfactory and, in that event, at its option, to call for additional tenders.” Further, HRM pointed to a clause that stated that “no term … shall be implied, based upon any industry or trade practice or custom, any practice or policy of the Owner or otherwise.” Finally, the tender also reserved the right to cancel a tender process at any time without recourse, and the right not to award the work for any reason. At trial, the judge found that HRM had breached the implied duty of fairness it owed to bidders in the initial tender process by re-tendering, rather than by following its usual practice of negotiating with the lowest bidder. HRM could not therefore rely on the privilege clauses in the tender document to suggest that Amber had waived its right to make a claim. Amber was awarded its loss of profits, estimated at $147,560. HRM took the case to the Nova Scotia Court of Appeal in June 2009. Was its appeal successful? View the answer |
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6 hrs confidence:
public procurement law privilege Explanation: Vergaberecht = public procurement law |
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