Evaluation process!

GadielCM, regarding to your concern whether the parameters highlighted in the paragraph 4 in my previous submission affect the scope, quality and the performance of the contract?

Kindly be informed that there are those which affect scope, quality and performance and those which affect limits the PE’s right or BIDDER’s OBLIGATIONS under the contract and will affect UNFAIRLY the COMPETITION position of the bidders presenting responsive bids. For example; failure to meet major technical specifications this will affect SCOPE AND QUALITY; failure to submit Power of Attorney this will bidder’s obligations under the contract and performance of contract. Therefore, it is responsibility of the Evaluation Committee to examine the bids submit and eliminate the bids which do not conform to the terms and conditions of the bidding documents by assessing whether the deviations, omission or reservations in the bid will affect the scope, quality and performance of contract, will limits PE’s right or bidder’s obligations under the contact and will affect unfairly competition position of the bidders presenting responsive bids.

Question No. 1: “Suppose the M/S Majimarefu did not submit the power of attorney and not signed all pages of his/her bid. Could you disqualify this bid in the preliminary stage and preclude the bid for the detailed evaluation of these deviations or reservations take into consideration that the bidder seemed to be the lowest submitted bid by half price of the next lowest submitted bid”.

GadielCM, the answer is YES. For the benefit of others please follow the analysis below;

What is Power of Attorney?

According to Wikipedia, the free encyclopedia, a power of attorney in common law systems or mandate in civil law systems is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the principal, granter or donor (of the power), and the one authorized to act is the agent, the attorney-in-fact, or in many Common Law jurisdictions, simply the attorney. For some purposes such as authentication, the law requires a power of attorney to be in writing.

Generally;

Based on the definition above, a power of attorney is necessary in the tendering process and contract execution stage as bidding companies cannot move themselves so they must be represented especially for Limit Liability Company. According to the Companies Act, Cap 212, Limited Liability Company (Tanzania) must have the Board of Directors responsible for managing business of the company; therefore, for this case company must submit the Power of Attorney indicating name of the authorized person appoint by the board to act on behalf the company. For the Sole Proprietor Companies (which are not Limited Liability) the tender can be signed by the owner under his capacity. [A sole proprietorship essentially refers to a natural person (individual) doing business in his or her own name and in which there is only one owner. A sole proprietorship is not a corporation; it does not pay corporate taxes, but rather the person who organized the business pays personal income taxes on the profits made, making accounting much simpler. A sole proprietorship does not have to be concerned with double, as a corporate entity would have to.]

In procurement terms, a well drafted Standard Bidding Document must have a Form of Tender or sometimes referred as Offer Submission Form which contained instructions attached by the Client (PE) (i.e. agreeing with tender validity period, client not bound to accept to accept the lowest or any bid etc) to bidders regarding the bid in question as standard format for submitting their offer.

There are two main elements of contract formation under the contract laws; offer and acceptance. For this case, the bidders are obliged to submit their offers using Form of Tender/Offer Submission Form which legally binding the client and bidder and sometimes referred as Contract A. This is considered to be the basis of forming main contract (Contract B) once the client communicates the notification of award (acceptance) to the successful bidders. A well drafted Form of Tender/Offer Submission Form must contain phrase such as “This bid and your written acceptance of it shall constitute a binding contract between us’ or any other phrase meaning the same. This sum up the important of bid to be signed by a person(s) duly authorized to sign on behalf of bidder, since the offer and acceptance constitute the contract (Contract B). Therefore, the Power of Attorney gives the authorized person capacity to commit the company into the contract based on the offer (from the bidder) and acceptance (from the client). In line with PPA, Cap 410 the acceptance must communicate by the Accounting Officers, the persons giving capacity to commit the institutions and accountable for the performance of contract.

In view of above, bid should be signed with the person with the Power of Attorney in order to authenticate the offer submitted by the bidder. Therefore, the bid which has not been signed with the person with the Power of Attorney should be disqualified in the preliminary stage. This implies that failure to submit the Power of Attorney is a material deviation as it limits the bidder’s obligations under the contract as the company may deny to have authorized the one who signed the documents to act on behalf of the company which in this case the offer will be invalid. However, absence of power of attorney cannot affects the scope or quality but can affect performance of contract and limits the procuring entity’s right or bidder’s rights obligations under the contract.

Question No2: Why can’t we proceed with the bidder and before the award of contract/notify the bidder to furnish the power of attorney and other in consideration that he/she met the specifications of the requirements in detailed evaluation?

GadielCM, the principle applied in this scenario is “late is late”. The Power of Attorney should be submitted along side with the bid to authenticate the offer from the bidder. One of the information should be read out during tenders opening is the presence of the Power of Attorney [See the Tender Opening Checklist attached as Annex1 in the Evaluation Guidelines for Goods, Works and Non-consultancy Services - Is documentary authority for signing enclosed? ].

Pursuant to R90(10)/97/2005, PE may ask suppliers, contractors, service providers or asset buyers for clarification of their tenders in order to assist in the examination, evaluation and comparison of tenders but NO ADVANTAGE SHALL BE SOUGHT, OFFERED OR PERMITTED TO CHANGE ANY MATTER OF SUBSTANCE IN THE TENDER, INCLUDING CHANGES IN PRICE AND CHANGES AIMED AT MAKING AN UNRESPONSIVE TENDER RESPONSIVE. Therefore, any action of submitting the Power of Attorney before awarding will constitute material deviation as this will affect will affect UNFAIRLY the COMPETITION position of the bidders presenting responsive bids [those who submitted Power Attorneys together with their bids].


Question No. 3: “Your hesitation on whether in the preliminary evaluation we consider the technical specifications rather than in the detailed evaluation”.

You don’t have to hesitate on that, normally in the preliminary stage PEs are required to check whether the bids are Technical Responsive [Technical Specifications] especially in the procurement of goods. If you visit Standard Bidding Document for Procurement of Goods issued by PPRA, ITB Clause 29 [Examination of Terms and Conditions; Technical Evaluation], ITB Sub-Clause 29.2 states that “The Procuring Entity shall evaluate the technical aspects of the Bid submitted in accordance with ITB Clause 12, to confirm that all requirements specified in Section VI – Schedule of Requirements of the Bidding documents and Section VII – Technical Specifications have been met without material deviation or reservation”. Moreover, ITB Sub-Clause 29.3 states that “If after the examination of the terms and conditions and the technical evaluation, the Procuring Entity determines that the Bid is not substantially responsive in accordance with ITB Clause 28, it shall reject the Bid”. Therefore, this ITB Clause underpin that technical specifications should be assessed in the preliminary stage.

In line with this, Evaluation Guidelines for Goods, Works and Non-consultancy Services issued by PPRA there are tables which summarize the preliminary assessment i.e. Table 5A – Preliminary Examination [Commercial Responsiveness] and Table 5B – Preliminary Examination [Technical Responsiveness]. This implies that guidelines recognize that the technical specifications part and parcel of preliminary assessment. I hope you will be contented with these explanations.

GadielCM, I will try to respond your concerns as follows:-

1. As point of information, in the evaluation process, were are required to consider all issues stipulated in the R90/97/2005 [Examination, Evaluation and Comparison of Tenders], R91/97/2005 [Evaluation with Margin Preference for Goods], R 92/97/2005 [Goods Forming Part a Contract Package], R93/97/2005 [Evaluation with Preference for Work or Non-consultancy Service Contract] and R94/97/2005 [Post-qualification and Denial of Award in Case of Limited of Resources] AND NOT only R90(2-15)/97/2005 as you described. However, this will depend on how you have tailored your bidding documents.

2. Basically criteria in R94(2)/97/2005 are elaborating further the qualification criteria given under R14(1)(a)/97/2005 which the suppliers/contractors/service providers or asset buyers must meet in order to participate in procurement proceedings. In the evaluation process these qualifications are assessed in the POST-QUALIFICATION STAGE which intends to determine whether the lowest evaluated tender has the capability and resources to perform the contract.

3. By virtue of R90(7)/97/2005, Substantially Responsive tender is one which conforms to all the terms, conditions and specifications of the tender documents without material deviations or reservations. In line with this definition, Non-responsive bid is the opposite of the substantially responsive bid.

In view of R90(/97/2005 non-responsive bid, is the bid which has material deviations or reservations and if accepted will affect the SCOPE, QUALITY or PERFORMANCE of contract, limits the PE’s right or BIDDER’s OBLIGATIONS under the contract and will affect UNFAIRLY the COMPETITION position of the bidders presenting responsive bids. Therefore, in the evaluation process evaluators should observe these factors while judging whether the bid is responsive or non-responsive.

4. Regarding key issues in the Preliminary Assessment which will render the bid to be non-responsive, some of the them could be; failure to satisfy eligibility criteria, failure to submit tender security or tender securing declaration where one was requested, failure to meet major technical specifications, bid not properly signed (Form of Tender/Bid), failure to submit all documents asked for in the tendering documents, failure to duly initial and signed all documents, failure to submit joint venture agreement or letter of Intent to form JV in case of JV AND other deviations or reservations which will affect the factors discussed in para 3 above which to great extent will depend on criteria set forth in the bidding documents.

5. For scenario of M/s Majimarefu Company Limited, if his/her bid found missing those items you have mentioned, this will be automatically declared as non-responsive bid and will be precluded in the further evaluation. No way those missing items could amount to MINOR deviation (refer para 3 above).

6. In simple words, the essence of PRELIMINARY STAGE is to screen and eliminate bids do not comply with the basic requirement of bidding documents, instructions to bidders and bidders who do not meet mandatory qualification requirements.