SESSIONS 5 & 6

BID OPENING AND PRELIMINARY EXAMINATION

Reference Note

1.1 Introduction

Public bid opening is an important contribution to the transparency of the competitive

bidding process. Several precautions should be taken at the time of receiving bids and
at bid opening to preserve the integrity of the procurement process: sealed bids should
be required, including where electronic bids are allowed; bids should be protected after
receipt; a definite time and place for bid opening should be set and notified to the
bidders; the bid opening should be in public so bidders or their representatives may
attend if they so choose; the name of each bidder, the bid prices and other relevant
information should be read aloud, and a record of the bid opening should be kept.

The bidders, on their part, have been working hard to put together a competitive bid
and, quite naturally, they hope to win the contract. At the bid opening, they will not
only note the offers made by their competitors, but they will carefully observe how this
formal procedure is being conducted by the Procuring Entity through its Tender
Committee, and bear this in mind for the future. It is therefore important to plan the
occasion in detail to avoid any dispute or complaints. Preliminary arrangements have to
be made before the announced bid opening date, a suitable room has to be booked,
officials invited, an opening panel and teams to assist with bid opening have to be
organised and briefed, refreshments arranged for long opening sessions, etc.

A well planned public bid opening will leave a good impression on bidders, even if they
are not successful.

1.2 Receiving Bids: Late Bids

Bids must be received at the place, and no later than the time and date, specified in the
Instructions to Bidders (ITB). A receipt should be given for bids delivered by hand,
recording the date and time of delivery. Each incoming bid needs first to be checked
that it was correctly submitted in a sealed envelope or package. Then it has to be
recorded, indicating the time and date received, the name of the bidder and any further
relevant information (e.g. if not properly sealed).

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 After recording, the bids should be locked in a safe cupboard or storeroom. Safety
measures should be taken to ensure that the contents are not divulged to persons other
than those officially responsible for their examination and recording. Those individuals
must be properly instructed in the handling of bids and should be under an obligation to
observe strict confidentiality. Bidders themselves should not be allowed to retrieve their
bids once submitted and recorded, even if well in advance of the formal submission time.

Late bids, i.e. bids received after the time stipulated for bid submission in the ITB (or
any extended deadline), should not be considered for any reason whatsoever, and
should be returned unopened to the bidder.

1.3 Bid Opening Procedures

The procedure for opening bids and recording data will vary according to the type of
contract and whether the bidding process is single or two stage. A few basic principles
apply to all cases.

Bids should be opened in the presence of those bidders (or their representatives) who
choose to attend, no later than one hour after the deadline for submission of bids.
Participants should sign a register of attendance. Non-attendance by a bidder or its
representative at bid opening is not sufficient grounds for rejecting its bid.

Bid opening and preliminary review can take a matter of an hour or substantially more
depending on the size and complexity of the contract, the bulk of documentation and the
number of bids received. If at all possible, the bid opening session should be conducted
without any breaks; if any break time is necessary in the longer sessions this may
require security precautions to preclude bid tampering during the break.

The SBD for Smaller Works presupposes a single envelope/single stage bid opening.
Appropriate arrangements for the event should be made in advance by the Procuring
Entity through its Tender Committee. The following example illustrates a typical opening
of bids covering all the requirements of the SBD. It assumes that a panel has been
convened of senior officials associated with the contract, headed by a Chairperson, and
with teams of junior officials to assist. Procedures may vary slightly to suit established
local practices.

Chair's Introduction

 Welcomes participants, introduces panel and team members, and explains the
opening procedures.

Opening of Bids

Team (1)

 first opens all outer and inner envelopes marked "WITHDRAWAL"; if correctly
presented, the inner envelope of the matching bid (identified in a subsequent stage)
should not be opened, but returned to the bidder;

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  opens all outer envelopes marked "MODIFICATION" to be matched subsequently
with corresponding bids;

 opens other outer bid envelopes, arranges contents, and matches the inner
envelopes with any "Withdrawal" or "Modification";

 opens all inner envelopes marked "Original" and any corresponding "Modification";
 records names of bidders on Summary Sheet, and whether representing a joint
venture;

 makes preliminary check of eligibility.

Team (2)

 checks each bid for apparent completeness and signature of Form of Tender;

 checks for modifications, alternatives and discounts offered (if any);

 enters amounts of bids/modifications/alternatives/discounts on Summary Sheet;

 checks presence (or apparent absence) of requisite bid securities, and normally
enters amounts on Summary Sheet;

 notes any significant statements by bidders on Summary Sheet.

Panel

 checks Summary Sheet for completeness.

Chair

 reads out the following from the Summary Sheet:

 bidder's name;

 whether a joint venture;

 amount of bid/modifications/options/alternatives/discount (if any);

 presence (or apparent absence) of bid security and amount (if noted on Summary
Sheet by Team 2);

 other factual details of submissions which he considers appropriate, without

discussing the relative merits of bids.
Team (1)

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  ensures all bidders or representatives have signed attendance register;

 collects all opened bids for transfer to where further examination and subsequent
evaluation will take place.

Chair

 thanks participants and adjourns the meeting.

Note:

a) Except for late bids, no bid is rejected at bid opening, e.g. for lack of bid security or
other essential documentation.
b) Unless formal provision for discounts and other adjustments is included in the BOQ
Summary, they must be offered in the form of a letter signed by the person who
signed the bid, and either be included with the bid or submitted as a formal
"MODIFICATION".

It is good practice for all pages containing significant data (such as bid form and BOQ) in
the original bids to be signed by the bid opening committee members so that there will
be no questions raised later about the integrity of the original bid.

1.4 Bid Opening Record

A record or "Minutes" of the bid opening should be prepared either during or

immediately after the meeting. The record should contain all important details of bid
opening such as:
 the proceedings;
 the attendance;
 the name of the bidders and whether in a joint venture;
 the total bid amounts of each bidder, including any modifications, discounts offered
and alternative bids (if requested or permitted);
 any apparent deficiencies (prior to detailed bid examination) e.g. lack of bid
securities, etc.
 statements made by the bidders, if any, and other details considered relevant;
 name(s) of bidder(s) who submitted late bid(s);
 a signed register of attendance.

The Minutes should be signed by the Tender Committee members and a copy should be
given or sent to the Bidders.

Soon after the bid opening meeting, and before the detailed evaluation of bids, each bid
is subjected to a closer examination to check the degree of compliance with the bidding
requirements, and to ascertain whether the bid is "substantially responsive" to those
requirements. This topic is the subject of the next Section.

2.1 Bid Examination

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 Shortly after the bid opening process but before detailed bid evaluation, bids should be
examined further to ascertain whether they comply with all the requirements of the
bidding conditions. In order to determine bid responsiveness (Rwanda Public
Procurement Law art. 36 and ITB 27), examination should include (inter alia):
 a check on the bidder’s eligibility;
 the power of attorney, and authenticity of the signatory;
 the acceptability of the bid security;
 the completeness of the bid and correctness of signatures;
 the acceptability of joint venture agreements,
 any stated deviations from the bidding conditions, which might reflect on the
«substantial responsiveness» of the bid and justify its rejection.

In this context, «deviations» from the bidding conditions include exceptions, exclusions,
qualifications, conditions, stated assumptions, alternative proposals (when not
specifically solicited) and other changes to the requirements of the bidding documents.
Their degree of acceptability and impact on subsequent bid comparison will vary: some
may be clearly unacceptable; some that are acceptable may be quantifiable in monetary
terms; others may not be quantifiable but may still affect the competitive position of
other bidders. Judgment and experience is needed in their interpretation.

A substantially responsive bid is defined as:

A bid which conforms to all the terms, conditions and specifications of the bidding
documents, without material deviation or reservation. A material deviation or
reservation is one:
(i) which affects the scope, quality or performance of the Works in any substantial
way; or
(ii) which limits in any substantial way, inconsistent with the bidding documents,
the Procuring Entity’s rights or the bidder’s obligations under the Contract; or
(iii) the rectification of which would unfairly affect the competitive position of other
bidders presenting substantially responsive bids.

2.2 Material Deviations

After the examination of bids to identify stated and potential deviations, a decision has
to be taken by the Procuring Entity on whether the deviations are so material as to be
unacceptable, and therefore constitute grounds for rejecting particular bids. Note that
fairness to other bidders, without their being given the same opportunity, is an
important consideration. The following deviations (or some combination thereof) have
resulted in the rejection of bids on competitive tenders’ processes:
a) late bids;
b) bidder (including joint ventures) not eligible for various reasons;

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 c) unsigned bids;
d) absence of, or incorrect, bid security;
e) bid submission by a legal entity or joint venture different from that which was
prequalified (excepting when all members of the new joint venture were
prequalified initially);
f) the submission of a base bid subject to price adjustment when fixed price bids
were called for;
g) the submission of a bid based on an entirely different alternative design, where
this had not been requested nor expressly permitted;
h) an inflexible time phasing of contract construction or performance not
conforming to prescribed critical key dates or «milestones» in a broader
construction program;
i) subcontracting to another bidder (conflict), or in a substantially different
amount and manner than specified in the bidding documents; and
j) serious qualification of the arbitration clause (e.g. country location; rules of
procedure, etc.).k) bid conditional upon acceptance by insurance guarantee
agency.

If a bid is rejected as non-responsive, it may not subsequently be made responsive by

the bidder correcting or withdrawing the non-conforming deviation or reservation.

2.3 Debatable Deviations

The following considerations should be given to deviations from the bidding conditions
which are not obvious grounds for immediate rejection of a bid as nonresponsive, i.e.
deviations which are debatable, and might be regarded as potentially “non material”:
 Could you accept the deviation if it were incorporated in the Contract? Does
it affect, in any substantive manner, the rights and obligations of either
contractual party? What is its effect on the overall project of which the
contract may be only a part?
 Would it be fair to other bidders if you were to accept the deviation? Other
bidders may not have had the same opportunity to bid on the same basis as
the deviation (e.g. with export credit guarantee insurance)
 Will your proposed treatment of the deviation (e.g. rejection, acceptance,
quantification in monetary terms, etc.) be defensible and transparent if
challenged by:
- the Tender Committee, the Independent Review Panel, the Minister, etc?
- other bidders?

The following are examples of such deviations::

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 a) requests for an amount of advance payment and other payment terms
(including retention money, guarantees, the details of price adjustment
provisions, etc.) differing from the prescribed conditions;
b) non-compliance with local regulations relating to labour, imports, taxes, duties,
notarisation, etc.; (Note that serious deviations in this regard may be grounds
for rejection of the bid as non-responsive);
c) proposed changes in periods of construction, warranty and maintenance which
are not critical to project completion and performance;
d) changes in specified methods of construction or execution (temporary works,
shift work by labor, etc.);
e) subcontractors not meeting pre-specified requirements;
f) omission (deliberate or unintentional) of minor works or items included in the
scope of work;
g) non acceptance of full liabilities (e.g., risks to third parties, nearby structures,
etc.);
h) modification of, or a limit to, the amount specified for liquidated damages;
i) proposed changes in standards relating to materials, workmanship or design.

The details and implications of any deviations which are not explicit should be clarified
by the Project Manager/Procuring Entity in discussion with respective bidders without
changing the substance or price of the bids (Rwanda Public Procurement Law art. 38).
After clarification, the implications of a deviation may justify rejection of the bid as non-
responsive. Only responsive bids should be considered further in the subsequent bid
evaluation process.

2.5 Avoiding Deviations

Recognition of the factors contributing to deviations by bidders can help Procuring

Entities avoid or reduce them in future operations. Many qualifications by bidders are in
the form of stated assumptions of their interpretation of the bidding requirements.
Clear, unambiguous bidding documents should result in fewer such qualifications by
bidders; experienced staff (of the Procuring Entity and/or consultants) should be used in
their preparation. Standard bidding documents (such as the SBD Smaller Works) will
facilitate interpretation by bidders.

Pre-bid conferences during the bidding period should be convened to clarify any serious
ambiguities and discrepancies in the documents. These conferences should address any
concerns of bidders, particularly about: the special conditions of contract; loans for
mobilisation and their amortisation; other contractual advance payments; retention
money; liquidated damages; bank guarantees; price adjustment provisions and indexing;

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construction schedules, local import duties and business taxes, all of which (inter alia)
have been the subject of qualifications in the past.