COMMITMENT of bidders to stand by their submission is very critical as illustrated in last week’s article, Submitting a bid is a serious pledge.
PURCHASING & SUPPLY with Nyasha Chizu That commitment is not only limited to tender submission but extends to the requirement to authenticate submission in line with the caveat emptorprinciple.
The UNICTRAL Model law in Article 40 (2) (a) requires that tenders are submitted in “writing” and “signed”. The requirement for a written submission serves to ensure that there is a record of the tender and that the record is available.
The need to have the written submission signed seeks to ensure that suppliers identify themselves and show approval of the content of their bid. Signing written submission is equivalent to issuing a bid with a seal and serves several purposes.
To secure authenticity
The Model law requires some level of appropriate assurance that the tender presented by a bidder is theirs, and it originated from them; is final in that the facts are correct and; authoritative and should be respected as his own submissions.
The submission cannot therefore be repudiated and can be traceable to the supplier who submitted it. This removes chances of various suppliers’ bids submitted fraudulently by one bidder as a way of disguising competition, when no such competition exists.
To provide security and integrity
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The scenario discussed above of fraudulent submission of bids in a tender is covered by the requirement to have a signed form of tender. It provides some form of security to the supplier in that context. In serious cases, power of attorney is issued or some form of board resolution to appoint the signatory of the tender is necessary.
To provide confidentiality
Contents of the tender must be accessed at specified time frame as stated in the RFP. These contents must be accessed by authorised personnel at the specified time frames.
A form of signed tender, which is ordinarily the first page of the tender submission provides a warning that the tender cannot be accessed or opened at all by unauthorised persons or for unauthorised purposes.
Paper submissions are required bound and sealed. It is the responsibility of the bidder to ensure the bid is bound and it is advisable to have all pages including annexures numbered. The procuring entity cannot be held accountable for loss of vital sheets of a bid that go missing when it was submitted unbound.
Electronic submissions obviously must be submitted in accordancewith the requirements that ensure the equivalence of some degree of “authenticity”, “integrity”, “security” and “confidentiality” in line with Article 40 (2) (ii) of the UNCITRAL Model law (2011). The procuring entity must be specified by the entity in the solicitation document. The procuring entity is at liberty to accept paper submission or electronic submissions or both.
Article 40 (2) (b) of the same now requires procuring entities to issue a receipt showing the date and time the tender was received to ensure integrity, transparency, fair and equal treatment of participants.
Article 40 (2) (c) gives the procuring entity the obligation to preserve the security, integrity and confidentiality of the tender, its content is accessible only after official opening.
Nyasha Chizu is a Fellow and member of congress of the Chartered Institute of Purchasing and Supply writing in his personal capacity. Feedback: [email protected]
