Is a broadly worded privilege clause appropriate in Additional Instructions to Tenderers?
A “broadly worded privilege clause” is a concept which the MMCD Association has discussed and rejected, because we anticipate that this will deter bidders
All tenders received were over budget. Can the project be retendered without alteration to the original tender package?
The GCs allow the owner to reject all bids, which they probably should do if they don’t have the funds to proceed.
The sole bid received is over the approved budget. Can the Owner negotiate with the bidder?
Where there is only one compliant bid, the issue of violating conditions of Contract A with other bidders does not exist. The GCs allow the owner to reject all bids, which they probably should do if they don’t have the funds to proceed. Then if the municipal bylaws permit negotiation without competition, the Owner can proceed to adjust the design and requirements to negotiate a price both can live with.
What can I do if the bidder adjusts the Schedule of Quantities in the tender?
We cannot offer legal advice; however, the Preparation and Award Checklist in the User Guide and our Contract Considerations videos might help you interpret the documents and processes.
If the Contractor cannot provide the name of a specific subcontractor but lists the work item as being subcontracted out and providing a “to be determined” would this make the tender non-compliant?
One of the unstated purposes of requiring subs to be listed was to protect subcontractor bidders protection against bid shopping by the general after award.
Although specifically required by the Owner, the tenderer does not include any Subcontractor as the Contractor will be self performing the tasks. Is the tender deemed non-compliant?
It is OK for the Appendix to indicate that the Contractor would do all work components without subcontractors but then the Owner has the ability to enforce that through GC4.11.2. If the Owner has asked for the names of subs for certain parts of the work, then the bidder must provide those or specifically indicate the general contractor will do those portions.
If the Contractor does not specifically list any Subtrades, is the tender non-compliant?
It was expected that if Appendix 5 to the tender was not included then the tender would be non-compliant and the Owner would not be able to accept it. Form of Tender 4.1 confirms the bidder has included all appendices, so if they are not included the tender is incomplete.
What options are available to an Owner for negotiating unit prices?
Unless the Owner wishes to modify the standard Instructions to Tenderers, there is no ability to negotiate prices or quantities prior to award. Tender law typically does not permit this - that is the realm of Requests for Proposals. However, Owners have the ability to structure their call by modifying the Instructions to Tenderers in any way they wish.
"Math Errors at Tender" video - Contract Consideration Series
Brian Weeks explains the options available to Owners when they receive a tender that contains mathematical errors.
"Using IT-4" video - Contract Consideration Series
This video discusses how tender authors can use IT4 To modify, delete or add conditions for tendering to meet the specific conditions of their projects.