Article 30. Submission of tenders

(iii) Electronic submission of tenders, proposals and quotations

Electronic submission of tenders, proposals and quotations

Enacting States or procuring entities may consider that the submission of tenders in non traditional forms would necessitate elaboration of special rules and techniques to guard the confidentiality of tenders and to prevent opening of the tenders prior to the deadline for submission of tenders, and to deal with other issues that might arise when a tender is submitted other than in writing (e.g., the form that the tender security would take).

The Guide to Enactment refers to additional rules and techniques that might be needed, for instance to guard the confidentiality of tenders and prevent opening' of the tenders prior to the deadline for submission of tenders .

Applying the principle of functional equivalence to the electronic submission of tenders, electronic tenders require the same legal value as tenders submitted in writing, signed and in a sealed envelope.

(g) Article 30 (3) (extension of the deadline for submitting tenders)

The Working Group deferred its consideration of the accompanying Guide to Enactment text (A CN.9 WG.I WP.38 Add.1, paras.

(2) (d) The withdrawal of the tender prior to the deadline for the submission of tenders, or of initial tenders in the case of an electronic reverse auction procedure to be carried out in accordance with article 47 bis, unless the solicitation documents stipulate that no such withdrawal is permitted.

(7) Where appropriate, any reference to a tender in the Model Law the reference to a tender in articles see paragraphs 33 and 34 below shall be read to include a reference to an initial tender submitted in a procedure involving an electronic reverse auction.

The proposed revisions would enable the procuring entity to insist on the submission of tenders in electronic format, by removing the previous option for a supplier to submit its tender in a sealed envelope.

(d) No person can have access to a tender prior to the time and date specified in the solicitation documents, or any extension thereto as the deadline for submission of tenders, and at which tenders are to be opened

Consequential changes to article 32(1) (which refers to withdrawal of the tender before the deadline for submission tenders as being one of the permitted purposes of a tender security), and article 32(2)(d) (which provides for the return of a tender security where the tender is withdrawn before the deadline for submission of tenders) also could therefore be made, as follows, with appropriate commentary in the Guide to Enactment.

Proposed additional text for the Guide to Enactment regarding the opening of tenders submitted electronically

1(f) (i) Withdrawal or modification of the tender after the deadline for submission of tenders, or of initial tenders in the case of an electronic reverse auction procedure to be carried out in accordance with articles 47 bis and 47 ter, or before the deadline if so stipulated in the solicitation documents

Electronic submission of tenders, proposals and quotations (A CN.9 WG.I WP.38 Add.1, paras.

(3) Unless otherwise stipulated in the solicitation documents, a supplier or contractor may modify or withdraw its tender prior to the deadline for the submission of tenders, or of initial tenders in the case of an electronic reverse auction procedure to be carried out in accordance with article 47 bis and 47 ter, without forfeiting its tender security.

(5) (a) Subject to subparagraph (b), A tender shall be submitted in writing, signed and in a sealed envelope (b) Without prejudice to the right of a supplier or contractor to submit a tender in the form referred to in subparagraph (a), a tender may alternatively be submitted in or in any other form specified in the solicitation documents, provided that the means of submission chosen by the procuring entity shall comply with the accessibility standards contained in article 4 bis or 5 bis

The procuring entity shall rank the tenders on the basis of the features of tenders that are not to be presented in the auction in accordance with the award criteria.

It was also observed that the question of tender securities might need specific provision, in the light of the experience of certain delegations and observers that tender securities remained paper based documents, and simultaneous submission with electronic tenders might not be possible.

In the systems that recognize ERAs as an optional phase, all tenderers who submitted admissible tenders are invited to participate in the ERA.

(3) Suppliers or contractors shall, prior to the auction, submit initial tenders that are complete in all respects, except that the tenders need not include the features that are to be presented through the auction.

See, e.g., article 12 (3) of the Model Law which provides that the notice of the rejection of all tenders, etc., shall be given promptly to all suppliers or contractors that submitted tenders, proposals, offers or quotations.

In procedures involving an electronic auction, some of these provisions apply to the initial tenders envisaged under paragraph 4 (a) of that draft article (that is, the tenders submitted and evaluated prior to the auction phase). The relevant articles include

Consequential changes to paragraph (3) of article 31, which permits the withdrawal or modification of tender securities prior to the deadline for the submission of tenders without forfeit of tender security could therefore be made, with appropriate commentary in the Guide to Enactment.

(v) The features of the tender that are to be presented at the auction

Accordingly, it was proposed that the Secretariat revise the provision to provide that a tender must be submitted in the form as required in the solicitation documents.

(viii) The conditions under which the bidders will be able to bid and, in particular, any minimum differences in price or other features that will be required when bidding must be improved in any individual new submission during the auction and the time which the procuring entity will allow to elapse after receiving the last submission before closing the auction

Article 30 (5)(b) also gives a supplier an overriding right to submit a tender in writing, signed and in a sealed envelope.

Proposed additional text for the Model Law revisions to article 33 of the Model Law, to address the opening of tenders submitted electronically

It is suggested that unlike in traditional sealed biddings where competitors have only one opportunity to bid, in ERAs, each bidder recognizes that it will have the option to provide successive bids and therefore has a little incentive to offer its best price and subsequently may never offer its best price.

Proposed additional text for the Model Law revisions to article 30 of the Model Law, to enable the submission of tenders in electronic form

Proposed additional text for the Guide to Enactment regarding article 30 of the Model Law, to enable the submission of tenders in electronic form

No change in a matter of substance in the tender, including changes in price and changes aimed at making an unresponsive tender responsive, shall be sought, offered or permitted, except to the extent that elements of the tender are presented in an electronic reverse auction under article 47 bis and 47 ter.

(a) The public distribution of information relating to procurement procedures and contracts, including information on invitations to tender and relevant or pertinent information on the award of contracts, allowing potential tenderers sufficient time to prepare and submit their tenders

Paragraph 4 (a) of the draft article presents as an option that the procuring entity is to rank the tenders on the basis of the features of tenders that are not to be presented in the auction in accordance with the award criteria.

Under article 30 (5)(a) of the Model Law, tenders are to be submitted in writing, signed and in a sealed envelope , or under article 30 (5)(b) in any other form specified in the solicitation documents , subject to certain conditions.

20. Requests the Secretary General to ensure that all expression of interest notices issued by the construction manager and all related contract awards are posted on the capital master plan website

As regards the revisions to article 30 (5)(a), it was decided that the text should remove any possibility that the supplier could insist on the submission of a paper based tender.

Article 30 (5)(b) provides that the form of any tender should provide a record of the content of the tender and at least a similar degree of authenticity, security and confidentiality as one submitted in writing, signed and in a sealed envelope.

Only those participants that submitted admissible tenders after an initial evaluation of the tenders will be admitted to ERAs.

(h) Article 30 (6) (requirement to return late tenders unopened)

(1) ter. The procuring entity may stipulate in the solicitation documents that tenders submitted under article 30 must be submitted in electronic form , provided that the means of submission chosen by the procuring entity shall comply with the accessibility standards contained in article article 4 bis or 5 bis .

All evaluation criteria are factored in a mathematical formula, which re ranks the tenderers on the submission of each bid.

(j) The place and deadline for the submission of tenders or, if the tendering proceedings are to be conducted by way of an electronic reverse auction pursuant to article 47 bis and ter, the date and time of the opening of the electronic reverse auction.