QUESTION

I am contemplating the following Additional Instruction To Tenderers and am looking for constructive feedback on whether it is appropriate and if there is any legal precedent for such discretion. 4.6 Add clause 15.1.4 in the Instructions to Tenderers – Part II as follows: The lowest or any tender will not necessarily be accepted. Without limiting the generality of the foregoing, any tender which is incomplete, obscure or irregular may be rejected, any tender having erasures or corrections in the Form of Tender: Appendix 1, Schedule of Quantities & Prices may be rejected, any tender in which unit prices are omitted or in which unit prices are obviously unbalanced may be rejected, any tender accompanied by an insufficient bond may be rejected, any tender that has any deletions, alterations, or changes in the Contract Documents as listed in Schedule 1 and 2 of the Agreement may be rejected.

Basis of Contract Award & Acceptance In reviewing tenders and awarding the Contract for this project the Owner may consider not only the tendered prices but the overall value that the tender represents to the Owner based on quality, service and price, and the tenderer’s experience and qualifications considered essential by the Owner for the satisfactory completion of this type and size of project, including: a) Bonding capability. b) Financial capability. c) Previous completed projects of this type and/or size. d) Major projects now being undertaken by the tenderer. e) Key office and site personnel to be assigned by the tenderer to this project. f) Time for completion of the Work. g) The past experience of the Owner and/or other project owners with respect to the tenderer’s performance in completing projects in a timely, efficient and satisfactory manner, the tenderer’s methods of doing business and the tenderer’s ability to establish and maintain a good working relationship with a project owner.

The Owner reserves the right to award the Contract based on the above pre-requisites and to reject without further consideration, any tender which in its opinion, does not meet the criteria it considers essential for this project.

The tenderer, by submitting a tender, waives any claim or recovery for loss of profits or any prospective damages whatsoever if no Contract is entered into with the tenderer. In no event, shall the Owner be liable for the Tenderer’s cost of preparing and submitting a tender, which shall be done by the Tenderer at its sole risk.

COMMENT

This looks like a “broadly worded privilege clause”, a concept which the MMCDA has discussed and rejected, because we anticipate that this will deter bidders.

However, there is support for s a request for proposals, so that Owners can have flexibility to reject and likely negotiate. MMCD is investigating a RFP template.