The selection of bidder must comply with the forms and methods of selection.[1] The selection forms include: open bidding,[2] limited bidding,[3] direct appointment,[4] competitive offer,[5] direct procurement,[6] self-implementation,[7] centralised procurements,[8] regular procurement[9] and purchase of medicine, and medical equipment.[10]
- Methods of bidder selection including: single-stage single-envelope method,[11] single-stage two- envelopes method,[12] two-stages one-envelope method [13] and two-stages two-envelopes method.[14]
- The methods of evaluation of bid dossiers for bidding packages to provide non-consultancy services, procure goods, or for construction and installation, or mixed bidding are (i) lowest bid method or (ii) evaluation bid method or (iii) method of combined techniques and bids.[15]
- Lowest bid method applies to simple and small sized bidding packages in which technical, financial or commercial proposals are regarded to be on the same level if they satisfy requirements stated in bidding dossiers. The evaluation criteria of bid dossiers are criteria for evaluation of capacity and experience and other criteria of bidding packages. For bid dossiers which have been evaluated as satisfying the evaluation criteria, shall be compared and ranked after the error correction or deviation adjustment. Contractors shall be ranked based on their bids after error correction or deviation adjustment , minus the value of discounts (if any). The contractor with the lowest bid shall be ranked first.[16]
- Evaluation bid method applies to bidding packages where costs can be converted to the same level in terms of technical, financial or commercial elements for the entire usage period of goods or works. Criteria for evaluation of bid dossiers include criteria for evaluation of capacity and experience where prequalification is not applied; criteria for technical evaluation; and criteria for determination of evaluation bid. For bid dossiers which have passed the technical evaluation, comparison and ranking shall be based on the evaluation bid. The contractor with the lowest evaluation bid shall be ranked first.[17]
- Method of combined techniques and bid price applies to IT and telecommunications bidding packages or bidding packages for goods procurement or construction and installation, or mixed bidding packages when the lowest bid method and evaluation bid method cannot be applied. Criteria for evaluation of bid dossiers include criteria for evaluation of capacity and experience if prequalification is not applied; criteria for technical evaluation; and criteria for general evaluation. Criteria for general evaluation shall be developed on the basis of combination of techniques and bids.[18] For capacity and experience evaluation, the "pass" or "fail" criteria shall be used. For method of combined techniques and bids, the point-rating method shall be used applying the minimum point rate which is up to 70% of total technical points is required.[19]
- The successful contractor who satisfies the following conditions shall be awarded: (i) have a valid bid dossier or dossier of proposals, (ii) have capacity and experience as required, (iii) have satisfied the requirements of technical proposals, (iv) have a deficient deviation not exceeding 10% of his/her bid, (v) have the lowest bid after error correction, deviation adjustment , minus the value of discounts (if any) for the lowest bid method; have the lowest evaluation bid, for the evaluation bid method; or have the highest general point for the method of combination of techniques and bids; (vi) have the proposed winning bid price not exceeding the approved bidding package price. If the cost estimate of the approved bidding package is lower or higher than the approved bidding package price, such cost estimation may replace the bidding package price as the ground for consideration and approval of the bid winner.[20]
- Methods of evaluation for bidding packages to provide consultancy services by institutions are (i) lowest bid methods or (ii) fixed bid method or (iii) method of combined techniques and bid price or (iv) technique-based method.[21]
- Lowest bid method applies to simple consultancy bidding packages. Criteria for evaluation of bid dossiers are technical evaluation criteria. For bid dossiers which have passed technical evaluation, comparison and ranking shall be based on bids after error correction or deviation adjustment, minus the value of discounts (if any). The contractor with the lowest bid shall be ranked first.[22]
- Fixed bid method applies to simple consultancy bidding packages, execution costs of bidding packages determined in a specific and fixed manner in bidding dossiers. Criteria for evaluation of bid dossiers is technical evaluation. For bid dossiers which have passed the technical evaluation and with bid price after error correction or deviation adjustment, minus the value of discounts (if any) not exceeding execution costs of bidding packages, comparison and ranking shall base on technical points. The contractor with the highest technical point shall be ranked first.[23]
- Method of combined techniques and bid price applies to consultancy bidding packages where quality and execution cost are critical. Criteria for evaluation of bidding packages are technical evaluation criteria and general evaluation criteria. General evaluation criteria shall be developed based on combination of techniques and bid price. The establishment of general evaluation criteria must adhere to the principle that technical points account between 70-80% and points for bid price are from 20-30% of the total points of the general point scale (100%). The contractor with the highest general point shall be ranked first.[24]
- Technique-based method applies to consultancy bidding packages with advance and specific technical requirements. Criteria for evaluation of bid dossiers are technical evaluation criteria. Upon the establishment of technical evaluation criteria, the minimum technical point must be prescribed to be at least 80% of the total technical point. The contractor with the bid dossier satisfying the prescribed minimum technical point and the highest technical point shall be ranked first and be invited to open dossiers of financial proposals to serve as a ground for contract negotiation.[25]
- For the technical evaluation criteria of the (i) lowest bid methods or (ii) fixed bid method or (iii) method of combined techniques and bid price or (iv) technique-based method, the point-rating method shall apply. Upon the establishment of technical evaluation criteria, the minimum technical point must be prescribed to be at least 70% of the total technical point, except for technique-based method.[26]
- The successful consultancy contractor which satisfy the following conditions shall be the bid winner: (i) have a valid bid dossier or dossier of proposals, (ii) have technical proposals satisfying requirements, (iii) have the lowest bid price after error correction or deviation adjustment, minus the value of discounts (if any)for the lowest bid method; or have the highest technical point for the fixed bid method and technique-based method; or have the highest general point for the method of combination of techniques and bid price; (iv) have the proposed winning bid price not exceeding the approved bidding package price. Where the cost estimate of the approved bidding package is lower or higher than the approved bidding package price, such cost estimate may replace the bidding package price as the ground for consideration and approval of the successful contractor.[27]
- For individual consultancy contractors, criteria for evaluation of bid dossiers are criteria for evaluation of resumes and technical proposals (if any). The contractor with the best resume and technical proposal which satisfies the requirements of the terms of reference shall be ranked first.[28] An individual consultancy contractor satisfying the following conditions shall be the bid winner: (i) have the best resume and technical proposals (if any) which satisfy requirements of the terms of reference; (ii) have the proposed winning bid not exceeding the approved bidding package price. Where the cost estimate of the approved bidding package is lower or higher than the approved bidding package price, such cost estimate may replace the bidding package price as the ground for consideration and approval of the successful contractor.[29]
- For investors, methods of evaluation of bid dossiers include service charge method, method of capital contribution of the state, method of social benefits and state benefits and combination method. Criteria for evaluation of bid dossiers include criteria for evaluation of capacity and experience, criteria for technical evaluation and criteria for financial evaluation.[30]
[1] Chapter II, Bidding Law.
[2] Article 20, Bidding Law.
[3] Article 21, Bidding Law.
[4] Article 22, Bidding Law.
[5] Article 23, Bidding Law.
[6] Article 24, Bidding Law.
[7] Article 25, Bidding Law.
[8] Chapter V, Item 1, Bidding Law.
[9] Chapter V, Item 2, Bidding Law.
[10] Chapter V, Item 3, Bidding Law.
[11] Article 28, Bidding Law.
[12] Article 29, Bidding Law.
[13] Article 30, Bidding Law.
[14] Article 31, Bidding Law.
[15] Article 39, Bidding Law.
[16] Article 39.1, Bidding Law.
[17] Article 39.2, Bidding Law.
[18] Article 39.3, Bidding Law.
[19] Article 39.4, Bidding Law.
[20] Article 43.1, Bidding Law.
[21] Article 40, Bidding Law.
[22] Article 40.1(a), Bidding Law.
[23] Article 40.1(b), Bidding Law.
[24] Article 40.1(c), Bidding Law.
[25] Article 40.1(d), Bidding Law.
[26] Article 40.2, Bidding Law.
[27] Article 42.1, Bidding Law.
[28] Article 40.3, Bidding Law.
[29] Article 42.2, Bidding Law.
[30] Article 58, Bidding Law.
Yes, prequalification is an option. The Bidding Law provides that depending on the size and characteristics of a bidding package, a prequalification round can be conducted to serve as a basis for the bid solicitor to make a short list of contractor.[1] Dossier of invitation to prequalification includes documents specifying requirements on capacity and experience of contractors or investors which are necessary to serve as the basis for the bid solicitor to select a short list of contractors or investors.[2]
The prequalification requirements are prepared by a bid solicitor.[3] Contents of prequalification requirements are approved by the project owner,[4] while the prequalification requirements, prequalification results must be approved by the competent person.[5]
[1] Article 4.7, Bidding Law..
[2] Article 4.27, Bidding Law.
[3] Article 75.1(a), Bidding Law.
[4] Article 74.1(b), Bidding Law.
[5] Article 73.8(b), Bidding Law.
Yes.
- Contractors that submit dossier of EOI or dossiers for participation in prequalification must be legally and financially independent from consultancy contractors that prepare dossiers of invitation for EOI or dossiers of invitation to prequalification; evaluate dossiers of invitation for EOI or dossiers of invitation to prequalification; and appraise the results of invitation for EOI or prequalification.[1]
- When participating in a bid, the contractors must be legally and financially independent from (i) the project owners, bid solicitor; (ii) consultancy contractors that prepare, examine and appraise engineering and cost estimation dossiers; prepare, appraise bidding dossiers and dossiers of requirements; evaluate bid dossiers and dossiers of proposals; appraise results of selection of contractors for the respective bidding package; (iii) other contractors participating in bidding in a bidding package with regarding to limited bidding.[2]
- Consultancy contractors that supervise the contracts performance must be legally and financially independent from contractors that perform such contracts and consultancy contractors that inspect such bidding packages.[3]
- Contractors shall be considered legally and financially independent from other contractors, consultancy contractors, investors or bid solicitor in accordance with the Bidding Law when they meet the following requirements: (i) they must come from different agencies or are not directly managed by the same organization if they are public service providers; (ii) contractors, investors and bid solicitor do not hold more than 30% of shares or contributed capital of each other; (iii) contractors do not hold more than 20% shares or contributed capital of the total shares or capital of the bidder who participates in the limited bidding for a contract; and (iv) bidders and contractors who provide consultancy for that contract are not allowed to hold mutual shares and contributed capital; and either bidder or the consulting contractor must not have more than 20% of its shares and contributed capital held by other organizations and individuals.[4]
- When participating in bidding, investors must be legally and financially independent from the following parties: (i) consultancy contractors for the investment projects in the form of PPP or land-using investment projects by the date of signing project contracts; (ii) consultancy contractors that appraise investment projects in the form of PPP or land-using investment projects by the date of signing project contracts; and (iii) competent state agencies, bid solicitor.[5]
- An investor shall be considered legally and financially independent from other consultancy contractors that prepare and appraise the feasibility study report (for PPP projects of group C, the investor must be independent from the contractors that prepare and appraise the project proposal); from the consultancy contractors that prepare, appraise the pre-qualification dossiers, bidding dossiers, evaluate the pre-qualification dossiers, bid dossiers, appraise pre-qualification results, investor selection results; from competent authorities, and from the bid solicitor prescribed in the Bidding Law [6] when they meet the following requirements: (i) they must come from different agencies or are not directly managed by the same organization if they are public service providers; (ii) contractors, the competent state agencies and the bid solicitor do not hold more than 30% shares or contributed capital of each other's organizations; (iii) the investors and contractors that prepare, appraise the feasibility study report (for PPP projects of group C, the investor must be independent from the contractors that prepare and appraise the project proposal), consultancy contractors that prepare, appraise the pre-qualification dossiers, bidding dossiers, evaluate the pre-qualification dossiers, bid dossiers, appraise pre-qualification results, investor selection results do not hold shares or contributed capital of each other, do not hold more than 20% shares or contributed capital of the same organisation or individual.[7]
[1] Article 6.1, Bidding Law.
[2] Article 6.2, Bidding Law.
[3] Article 6.3, Bidding Law.
[4] Article 2.4, Decree No. 63.
[5] Article 6.4, Bidding Law.
[6] Article 6.4, Bidding Law.
[7] Article 2.1, Decree No. 30.
Yes, in the case of a partnership, there must be a written agreement between the partners specifying the person heading the partnership and the general and specific responsibilities of each partner with respect to the bidding package works.[1]
There is no specific limitations under Competition Law.
However, based on Competition Law, where there is a collusion between participating bidders in order for one or more parties to win a bid for supply of goods and services, such act is classified as agreement in restraint competition.[2] The collusion between participating bidders mean: (i) where one or more parties to the agreement withdraw from participating in the bidding or retract their submitted bids so that one or more parties to the agreement will win the bid; (ii) where one or more parties to an agreement cause difficulties to non-parties to the agreement who participate in the bidding, by refusing to supply raw materials or sign subcontracts or otherwise; (iii) all parties to an agreement agree to offer non-competitive bids or competitive bids accompanied with conditions which are unacceptable to the bid solicitor so as to pre-determine the parties or party who will win the bid; (iv) all parties to an agreement pre-determine the number of times each party will win the bid for a given period of time; and (v) other acts prohibited by law.[3]
Consequently, the violators of the goods and/or services provisions agreement shall be subject to (i) a monetary fine equivalent to 10% of their turnover of the financial year before the year where the violation is committed;[4] (ii) confiscation of the profit from the violation (where applicable),[5] and (iii) removal of illegal clauses from the agreement (where applicable).[6]
[1] Article 5.3, Bidding Law.
[2] Article 8.8, Competition Law.
[3] Article 21, Decree No. 116/2005.
[4] Article 15.1, Decree No. 71/2014.
[5] Article 8.2(a), Decree No. 71/2014.
[6] Article 8.2(b), Decree No. 71/2014.
There is no express provision dealing with the change of consortium bidders during a procurement procedure. However, any documents sent by contractors to bid solicitors after the time of bid closing to modify or supplement the submitted bid dossiers shall be regard as invalid, except documents sent by contractors to clarify bid dossier at the request of bid solicitors or documents to prove contractors' eligibility, capacity and experience.[1]
In addition, regarding the validity of the bid dossiers, the evaluation shall base on evaluation criteria and other requirements stated in bidding dossiers, submitted bid dossiers and contractors' documents explaining and clarifying their bid dossier in order to select fully capable and experienced contractors that have feasible solutions to perform the bidding packages.[2] At the time of signing, selected contractor must satisfy requirements on technical and financial capacity for execution of bidding packages.[3]
Therefore, if the change in consortium bidders is made after the time of bid closing, the bid can be rejected as a result of the bid failing to satisfy requirements for the bidding dossier.[4]
[1] Article 14.3(b), Decree No. 63
[2] Article 15.1, Decree No. 63.
[3] Article 64.2, Bidding Law.
[4] Article 17.1, Bidding Law.
Yes, because under the Bidding law, contractors must be legally and financially independent from (i) the project owners, bid solicitor; (ii) consultancy contractors that prepare, examine and appraise engineering and cost estimation dossiers; consultancy contractors who prepare, appraise bidding dossiers and dossiers of requirements; consultancy contractors who evaluate bid dossiers and dossiers of proposals; and consultancy contractors who appraise results of selection of contractors for the respective bidding package; (iii) other contractors participating in bidding in a bidding package with regarding to limited bidding.[1]
[1] Article 6.2, Bidding Law.