Question 1

How should Owners define their evaluation process for the Appendices in the Form of Tender (Part B)  in the Instructions to Tenderers Part 1?

Accepted Answer

QUESTION

I have a question about the Appendices in the Form of Tender (Part B) of the integrated contract document. The Instructions to tenderers, Part 2, don’t specify an evaluation process for these appendices, and I couldn’t find any related information in the user guide. How should owners define their evaluation process for these appendices, in the ITT, part 1?

COMMENT

The MMCD User Guide pg 09 of 33 deals with the Appendices

MMCD User Guide Section 2 Page 9 of 33

Caution: In practice, many Owners have let this requirement slide with respect to Appendices 3, 4 and 5, without changing the wording of IT 5.3.

This is a dangerous practice as it not only eliminates the potential of comparing information among Tenderers but also leaves the Owner open to lawsuits from Tenderers who completed them, if the Owner awards to a Tenderer who did not.

.2. If Owners are not interested in reviewing individual Appendices, the relevant sub-clause(s) should be removed using IT-4.

On the other hand, Owners who have been lax about enforcing submission of all Appendices should be cautious about an abrupt reversion to a “hard line” as this could cause elimination of desirable tenders. When Owners are in this situation, it would be appropriate to caution Tenderers using IT-4 that, contrary to past practice, the Owner will strictly check for all mandatory Tender submission requirements such as Appendices and the like.

Suggestion : The instruction might read ”Tenderers are reminded that completion of all required information on the Form Of Tender, including the Appendices is mandatory. Tenders lacking all required information will be rejected as incomplete”

Instructions to Tenderers - Part II

5.3 A Tender must include the following Appendices:

You might want to consider Inserting in IT-4 something like the following

Question 2

All tenders received were over budget. Can the project be retendered without alteration to the original tender package?

Accepted Answer

QUESTION

I am looking for guidance on the legalities of retendering a construction project that was previously tendered but all tenders were rejected as the costs were significantly more than the Engineer’s cost estimate and therefore over the allocated budget.

COMMENT

The GCs allow the owner to reject all bids, which they probably should do if they don’t have the funds to proceed.

Question 3

Is a broadly worded privilege clause appropriate in Additional Instructions to Tenderers?

Accepted Answer

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.

Basis of Contract Award & Acceptance

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.

Question 4

Where do I find Parts 1 and 2 of the Instructions to Tenderers (IT)?

Accepted Answer

Volume II contains the Instruction to Tenderers - Part 2.

The MMCD website mmcd.net contains the following free forms:

Tender Preparation Templates