Most municipalities and other contracting authorities also include in their terms and conditions an expressed procedure under which prospective bidders are given an opportunity to submit queries with respect to a tender or RFP, which is sometimes described as a request for information or bid consultation.
The following provisions are fairly typical in the questions.
Any request for clarification of these instructions, the tender notice, the form of tender, the description of the project, work or supply, or any of the contract documents shall be submitted in writing in accordance with subsection (6).
Any questions directed to the city prior to bid submission shall allow sufficient time for a written clarification to be issued by and received from the city should it consider to issue such clarification. Ordinarily, any question submitted within 72 hours of the closing of the tender will not be answered.
All communication between a bidder and the city shall be submitted to the designated buyer, set down in writing and directed to the designated buyer in the tender notice, including requests for information, instructions or clarification. Written answers or clarifications shall be shared with all bidders and issued in the form of an addendum. The city shall not be bound by any oral:
a) Instruction
b) Amendment or clarification of these instructions or any of the contract documents
c) Information
d) Advice or suggestions from any member of city staff or consultant to the city concerning this tender or the proposal contract to which it relates, or the project, work or supply.
The submission of such questions or other queries and the failure of the city to answer before the closing date and time for the submission of bids shall not necessarily cause the time for the submission of bids to be extended.
If the questions or requests from a bidder relate to a request for the approval of substitutes and the substitutes are not approved through the subsequent publication of the addendum, it shall mean that the substitutes asked for have not been approved.
After the opening of the bids, it is not permissible for a contracting authority to depart from the original tender requirements and negotiate substantial changes to the specifications with one bidder, without giving all bidders the chance to revise their bids in order to take those changes into account.
Even where a privilege clause applies, giving a right to decline all tenders, the contracting authority’s options are limited.
It may reject all, or may accept the lowest compliant tender, but it may not award some alternative contract to one of the bidders who replied in response to the request for the original work.
Most municipalities require addenda to be in writing and many also require all questions relating to a tender to be directed to a “designated buyer” (generally specified in the request for tenders).
These are clear advantages to both of these requirements. They allow a proper record to be maintained of all communications. They also facilitate the process of insuring all bidders receive comparable information.
Nevertheless, a contracting authority may find that representations made by one of its officers or other agents bars it from insisting on strict adherence to the terms of the tender documents.
Some municipalities also reserve the right to resubmit a proposed contract for tender, where an error is discovered after the opening of tenders but before a contract for the substantive work is conducted.
Provided such reserved rights have been properly disclosed, there would seem to be no problem in a contracting authority relying on them. However, even where such rights exist, they do not open the door to unfair practice.
Stephen Bauld is a government procurement expert and can be reached at swbauld@purchasingci.com. Some of his columns may contain excerpts from The Municipal Procurement Handbook published by Butterworths.
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