Yes, the Procurement Laws regulate how contracts are to be awarded. These laws govern the procurement procedures and their terms and conditions are set forth and mirrored in the bidding rules, invitations or requests for proposal. The contracts or orders will be awarded if they comply with the terms of said rules, invitation or direct award procedure. Likewise, there are specific rules for not awarding a contract or order.
In principle, the award criteria is determined by: (i) the binary evaluation criteria, whereby the contract is only awarded to those who comply with the requirements established by the caller, (ii) the point and percentages criteria, or (iii) the lowest price criteria.
For instance, the Acquisitions Law establishes that the contract will be awarded to the bidding proposal that: (i) obtains the best result in the combined evaluation of points and percentages, or of cost-benefit; or (ii) offers the lowest price; or (iii) offer the lowest price with the modality of subsequent discounts, as long the proposal is technically and economically viable.
The Hydrocarbons Law, CFE Law and PEMEX Law provide that the award mechanisms under the tenders called by the CNH, CFE or PEMEX may be, among others, an ascending price auction, a descending price auction, or a first price sealed-bid auction, in which case, the bids shall be submitted and opened at the same public session.
Likewise, if there is a tie between proposals, the caller will decide on the proposal that offers the greater use of the country’s resources, as well as the use of national goods or services. Tender processes called by CNH, CFE and PEMEX shall contemplate tie-breaking criteria, which shall be included in the relevant tender terms and conditions. One tie-breaking mechanism that CNH has been used within its recent tenders is the one that allows the private entities which are tied in their proposals, to offer CNH a cash payment. Then, the contract will be awarded to the company which offers higher cash payment.
Generally speaking, tender rules will provide the award criteria setting forth, for instance, the points to be awarded regarding technical capacity, and experience. The criteria will typically mention the minimum score a technical proposal shall meet to be able to pass to the next stage that is the evaluation of the economic proposal, or the opening of said economic proposal.
We follow the general principle that in the evaluation of the bidding proposals, the calling agency will verify that the bidders comply with the requirements indicated in the tender rules, and that they have sufficient technical and economical elements to develop the project.
The evaluation will include financial viability, the technical feasibility and compliance with legal requirements in order to guarantee the development of the project. If the calling agency considers an abnormally bid price that would not be viable for the project, it may turn down that proposal. It is important to note that bidders are required to submit various statements; one of these statements relates to pricing and bidders are required to state under oath that prices are fair and market, and that they are not colluding to affect prices.
Once the bidding proposals are submitted, in no case, the bidders could rectify the deficiencies of their proposals. However, in some cases, the calling agencies may require to the bidder further clarifications or information regarding the submitted proposals.
Generally, there is no possibility of submitting a second proposal under a same procurement procedure; if the proposal is not successful in meeting all technical and economic requirements, then the said proposal will be disqualified and the contract or order will be awarded to the compliant proposal. If there is no compliant proposal, then the parties should be entitled to file a proposal under a new procedure if the authority or entity decides to launch a new procedure. For instance, if a contract under tender is not awarded because there were no compliant proposals, then the entity or authority will be entitled to re-launch the project under another bidding procedure, or under a restricted invitation or direct award procedure, in which case the bidders, invitees or awarded contractor may submit a new proposal, notwithstanding that they may have filed previous proposals under the original public bidding procedure.