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OPENING OF BIDS DURING PUBLIC HOLIDAYS

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  RSM on Thu Jun 10, 2010 4:44 pm

M.Chilongani

Quite a challenging scenario!!! I thought I could give it a trial but seems I have got to go to school to dig for some points of argurments. NO RESEARCH NO RIGHT TO SPEAK. Bye for now on this topic until I finish digging for relevant arguments!!!! Meanwhile will enjoy reading what others have to say on this important, and practical topic.

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  Michael Chilongani on Wed Jun 09, 2010 9:16 pm

Let's further push the case as follows: -

We should also consider the scenario more judicially at this stage as the PPAA will only look at legal technicalities rather than the overview of process. Remember, there are lawyers there.

The bidder, in justifying his complain adduced the following facts: -

1. He submitted the Bid security and Power of Attorney as required and the
PE had an obligation to exercise care and diligence when opening the bid
that could result into fair treatment of his bid as per basic principles of
procurement.
2. The date was so designed to give a room for conspiracy of which the PE
malicious applied to his disadvantage
3. Having known of his representative absence, the officials conspired and
deliberately skipped to include the submitted mandatory requirement.
4. Public business transactions are prohibited to be conducted during public
holidays thus the bid opening ceremony was null and void thus the entered
contract was null right from the initial.
5. Pursuant to Section 66(3) PPA/2004 and Regulation 89-8/GN 97 ‘all tenders submitted shall BE OPENED IN PUBLIC IN PRESENCE of tenderers or representatives and other parties with a legitimate interest…….., thus there was deliberate ill efforts by PE aimed at limiting public participation and/or attendance during tender opening.
6. Opening a tender on public holiday and by limiting public participation ruined the PE from any such indemnity thus making the PE responsible for any unready information or any other error emanating at tender opening.
7. The bidder is asking the PPAA to exercise its powers and institute a fair decision pursuant to Section 82 (4) including annulment of the contract and revise an unlawful decision as it may be deemed prudent.


Do you think the bidder complaint still represents no strong case?

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  RSM on Wed Jun 09, 2010 6:53 pm

M.Chilongani,

Your submission raises two important issues:

1. The first is what happens if Procuring Entity Staff were not careful during the bid opening and therefore miss to read out some important information which was included in the bidders submission. Fortunately you have provided the answer for this:
Pursuant to Bid Doc. ITT, Tenderers were advised to send in a
representative with the knowledge of the content of the tender was to
verify the information read out from the submitted documents.
4. Failure to send a representative or to point out any un-read information by
the sent Tenderer’s representative indemnify the Procuring Entity against
any claim or failure to read out the correct information contained in the
Tenderers tender.

2. The second is whether he can have a case against the PE for fixing opening during a public holiday. I do not think they can win because as bidders they have the responsibility of reading the bidding document carefully and making sure they understand all its contents and their implications, including the deadline for submission and opening of tenders. If they had any problem with this date they were supposed to put it as a query to the PE with a request that the day be changed. In the absence of such a request, I do not think they have a strong case.

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  RJM on Wed Jun 09, 2010 6:24 pm

Thanks Chilongani for the typical case study. RSM I think this case study is proof that PEs in some circumstances open bids during Public Holiday despite the fact that are required to have "common sense" and "proper planning".

Chilongani, I will come later to discuss some contentious issues surrounding this bid.

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  Michael Chilongani on Wed Jun 09, 2010 4:42 pm

From the above discussions it is evident that it is not advised to open the bids during public holidays.

To cement our conclusion, let us further consider the following dummy case study

One PE advertised a national competitive tender with submission deadline on Sunday, 25th December. Five bidders submitted the tenders before the submission deadline and three bidder’s representative attended the opening ceremony. Two bidders including M/s ABC (whose readout price was lowest) did not send their representatives because during that period all employees were on Christmas leave.

During bid opening while reading the tender prices and other mandatory submissions, the reader erroneously skipped the second Bid Security of M/s ABC who attached two bid securities each worthy half the amount of the required bid security. At the ceremony, it was also erroneously declared and recorded that the same company did not submit ‘Power of Attorney’. However, the same was attached in last page.

The evaluation team using bid opening record sheet, did not take trouble of perusing the voluminous submission of M/s ABC and disqualified the bidder at preliminary examination on grounds of not submitting Power of Attorney and Bid security as required. One PMU staff was given the task of making a quick review because the goods were urgently needed and to avoid any delay the staff decided to trust the Evaluation Team recommendations and finally the tender was awarded to a recommended bidder M/s XYZ.

On request, M/s ABC was informed on the reasons of his disqualification and thereafter lodged complain to the PE for unfairy disqualification of which the PE defended itself as follows: -
1. The bidding period was as stipulated in the doc thus bidder should have
attended opening ceremony even if it was on public holiday.
2. There is no prohibition in opening bids in Public Holiday
3. Pursuant to Bid Doc. ITT, Tenderers were advised to send in a
representative with the knowledge of the content of the tender was to
verify the information read out from the submitted documents.
4. Failure to send a representative or to point out any un-read information by
the sent Tenderer’s representative indemnify the Procuring Entity against
any claim or failure to read out the correct information contained in the
Tenderers tender.
5. Pursuant to section 80 (3), the complaint couldn’t be entertained because
a contract had already entered into force.

The bidder lodged complaint to PPRA but it was not entertained on grounds that a contract was already in force as per section 82 (2) thus the Bidder further lodged complains to PPAA.

Dear in the forum
Do you think the PE can win this case at PPAA?

To my opinion, although there is a multiplier effect to the problem but the source began right from opening the bid (in a Public Holiday). The PE defence is most likely leading to loosing the case and be liable for any damages.

Further comment!


Last edited by M.Chilongani on Wed Jun 09, 2010 8:16 pm; edited 1 time in total (Reason for editing : corrections in second quote - section to read 82(2a) insteady of 80 (3))

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  GadielCM on Tue Jun 08, 2010 4:19 pm

Members in Forum,
RJM, from RSM submission and your submission, ''if happen the common sense not applied and poor planning applied is where the Audit Query comes''.

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  RJM on Tue Jun 08, 2010 3:23 pm

RSM. I agree with you that "common sense" and "improper planning" could be the source. The scenario under discussion is the situation whereby by the PE failure to observe common sense and proper planning. What can be done if they are facing situation like this?

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  RSM on Mon Jun 07, 2010 10:38 pm

Chilongani+GadielCM+RJM

This had missed my attention. But for me scheduling deadline for bid submission and opening on a public holiday or weekend is a serious lack of planning, the same way as having tender submission deadline and opening everyday of the week just because they were advertised on different days of the week.

Determination of tender submission date is not a mere addition of counting, lets say for national competitive tendering, 30 days from the date of advertisement. One must provide for the minimum time of 30 days from the date of first advertsement but also ask himself the following:


  • Does the 30 days deadline fall on public holiday or a weekend? If the answer is yes then he must fix the earliest next working day


  • Does the 30 days deadline fall on a working day? If yes allow the date of the deadline of 30 days be the submission date


  • However, if there was another tender whose deadline was falling within the same week, assuming one tender's submission deadline is on a Friday 11th JUne 2010, and this tender's 30 days deadline falls on Wednesday 9th JUne 2010, consider fixing the deadline for submission of this tender to be on a Friday 11th June 2010


And RJM it will be difficult to find in the Regulations or the Act a section discussing deadline for tender submission opening during public holiday or weekend bacause this is common sense. There is no work during official public holidays and weekends - so nobody expects you to fix tender submission deadline during a non-working day as the offices would be closed anyway. In many cases, however, the bidders would be the first ones to question you if you have fixed a non working as the day for submission for bids

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Re: OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  Michael Chilongani on Tue Mar 02, 2010 3:14 pm

My opinion is that if ‘increasingly’ PEs issue invitation for Bids with the opening date on Public Holidays (or Week ends) as per RJM remark, then such ‘increasing rate’ connotes a ‘Red Flag’ that needs deep scrutiny.

In concurrence to RJM, Mr GadielCM has further highlighted that the PPA and its regulations doesn’t have provisions that prohibit bid opening during Public Holidays and/or weekends (as per sited sections and Regulations) thus rationalizing bid opening during public holidays.

Tender opening is a very sensitive stage in the bidding process at which the basic principles of procurement out to be seen effectively applied in the eyes of the general public. The principles of procurement must be effectively applied in all stages of procurement including. Bid Opening stage at which one is expected to exercise Accountability and Transparency, Ethics and Fair dealing and Open & effective competition.

Section 66(3) PPA/2004 states that all tenders submitted shall BE OPENED IN PUBLIC IN PRESENCE of tenderers or representatives and other parties with a legitimate interest……..

Regulation 89.8/GN 97 Repeat the above section and stipulate that tenders SHALL BE OPENED IN PUBLIC in presence of …….

To avoid any such misuse it is high time the Authority to issue additional interpretation what it means by a Public day, Working Day, Weekends, a Public Holiday as related to Public Procurement.

However as harness from legal technical jargons, a legal holiday means and includes a day set aside by statute for recreation, the cessation of work, or religious observance. It is a day that is legally designated as exempt from the conduct of all judicial proceedings, Service of Process, and the demand and protest of Commercial Paper and public business transactions.

During such a day there is official prohibition against conducting public business transactions thus public transactions will therefore, be invalidated solely because they are conducted on a holiday.

Thus any effort (deliberately or otherwise negligently) aimed at limiting public participation and/or attendance during tender opening can be attested before the respective Authority in case legal action is taken for any damages resulting from the process.


Why tender must be opened in Public during Normal Working Day?

Provisions of the PPA should be read in conjunction with Regulations which are further translated by the Standard Bidding Documents issued by PPRA.
Standard Tender Invitations normally states that Late Tenders, Portion of Tenders, Electronic Tenders, Tenders not received, Tenders not opened and not read out in public at the tender opening ceremony shall not be accepted for evaluation irrespective of the circumstances. Bidders have a responsibility of attending to ensure that their tender is among the received and readout in public. The PE has an obligation of ensuring such presence is enhanced without any limitations.

As further stipulated in the ITTs (Ref. any PPRA STD) Tenderers are advised to send in a representative with the knowledge of the content of the tender who shall verify the information read out from the submitted documents. Failure to send a representative or to point out any un-read information by the sent Tenderer’s representative shall indemnify the Procuring Entity against any claim or failure to read out the correct information contained in the Tenderers tender.

In light of the above, Opening a tender on public holiday may ruin the PE from such indemnity thus making the PE responsible for any unready information or any other error emanating at tender opening. If the bidder adduces that the date was so designed to deliberately manipulate the error to his disadvantage it is quite difficult for the PE to prove otherwise.

Having become aware of the matter seven (7) days prior to submission deadline am of the opinion that such a period is adequate for issuance of amendment on time extension subsequent to R85.4,5,8 /GN 97 and no specific number of days have been fixed. However this is commonly mistaken to mean 14 days which is a period a PE is not allowed to accept and respond to clarification requests as per R85(2)/GN 97.

The ITTs in STDs further provide that the extension of the deadline for submission of Tenders shall not be made later than the period specified in the Tender Data Sheet before the expiry of the original deadline. Now if the PEs increasingly becomes aware of the need for extensions only after the period it did specify in the bidding Dossier this (as said early) is a Red Flag the authenticity of which is worthy investigating and the PE should be ready for the likely consequences. Please let’s take heed, the current integration of PPRA/PCCB implies that not only increased expectation but also multiple perspective shall be demanded to be prudently met in this complex field.

Michael Chilongani

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OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  GadielCM on Fri Feb 26, 2010 9:41 pm

RJM
You should proceed to open the tender if found you failed to notify the applicants for extension of bid opening date and and day, if so occur.This apparently to our PPA and its regulations does not provide and provision prohibiting the bid opening during public holidays and weekendays. I tried to refers the provisons concern with bid open, i.e Sec. 66(3 & 5)/PPA 2004 and that of Rg 89(7,8 and 9)/GN 97 is silent about the opening during public holidays and saturday and sunday.We have to consider this scenario as the debate.

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OPENING OF BIDS DURING PUBLIC HOLIDAYS

Post  RJM on Wed Feb 24, 2010 4:53 pm

Increasingly Procuring Entities are issued adverts for Invitation for Bids indicating that bids will be opened on the days which are either non-working days [Saturday/Sunday] or Public Holidays. Consider a scenario whereby a PE advertised a bid through International Competitive Bidding and they indicated the date for deadline for submission/opening bids which unfortunately coincide with the Public Holiday [Maulid/Idd] and they become aware of the situation one week before the respective date which they think that cannot be adequate to notify prospective bidders on the changes can be made. Can the PE proceed opening the bids as planned? Do PPA, Cap 410 and regulations made under it prohibits bids to be opened during public holidays and non-working days consider circumstance at hand?

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