H. Electronic opening of tenders

Article 33. Opening of tenders

(i) Article 33 (1) (opening of tenders at the deadline)

Electronic opening of tenders (A CN.9 WG.I WP.38 Add.1, paras.

Proposed additional text for the Guide to Enactment regarding the opening of tenders submitted electronically

The Guide to Enactment refers to additional rules and techniques that might be needed, for instance to guard the confidentiality of tenders and prevent opening' of the tenders prior to the deadline for submission of tenders .

The electronic opening of tenders may require security related controls additional to those for other electronic procurement.

As regards the electronic opening of tenders, the Working Group requested the Secretariat to provide drafting material for its consideration with respect to article 33 to accommodate any system for opening tenders, whether electronic or traditional (A CN.9 575, para. 42).

Such opening may be achieved through an electronic information system, which would automatically release and open the tenders at the date and time provided in the solicitation documents, and automatically transmit the information that would usually be publicly announced at the opening of tenders.

The Working Group decided that the Model Law should include an enabling provision to permit the opening of electronic tenders.

Proposed additional text for the Model Law revisions to article 33 of the Model Law, to address the opening of tenders submitted electronically

(5) Where suppliers or contractors are permitted to follow the opening of the tenders through electronic means of communication used by the procuring entity in accordance with article 33 (4), they shall be deemed to have been permitted to be present at the opening of tenders in accordance with the requirements of article 33 (2).

Types of calls for tenders Open tenders, open calls for tenders, or advertised tenders are open to all vendors or contractors who can guarantee performance.

Without further provision, this procedure would apply to the opening of the initial tenders submitted under article 47 bis (3), and auction anonymity would be compromised.

For example, even automatic release and opening of tenders will require human authorization at some point, and individuals will have to be designated for that purpose.

Restricted tenders, restricted calls for tenders, or invited tenders are only open to selected prequalified vendors or contractors.

In tendering procedures, articles 33 (2) and (3) also provide for the opening of tenders in the presence of participants, and the provision of information to suppliers on the identity and price of other tenders, to enable suppliers to monitor the application of the rules, but only once the tendering phase is complete.

Article 30. Submission of tenders

Applying the principle of functional equivalence to the electronic submission of tenders, electronic tenders require the same legal value as tenders submitted in writing, signed and in a sealed envelope.

Only those participants that submitted admissible tenders after an initial evaluation of the tenders will be admitted to ERAs.

In the light of the above, the Working Group may wish to include guidance to the opening of tenders electronically, setting out the solutions adopted to the matters discussed in paragraphs 29 and 30 above.

Electronic submission of tenders, proposals and quotations

The Working Group considered the technical issues raised by the electronic opening of tenders, and the level of detail regarding those issues that should be set out in the revised Model Law and Guide to Enactment.

Tenders in the Civil Service

When reviewing tenders, procuring entities, it was said, should be allowed to seek justification of prices if they suspected abnormally low tenders.

Thirdly, the authenticity of tenders must be established).

(iii) Electronic submission of tenders, proposals and quotations

(3) Paragraph 3 considers the contents of initial tenders.

(g) Article 30 (3) (extension of the deadline for submitting tenders)

The procuring entity shall rank the tenders on the basis of the features of tenders that are not to be presented in the auction in accordance with the award criteria.

(j) Article 34 (1) (a) (possibility for asking for clarifications of tenders)

Finally, it was observed, many possible abnormally low tenders when closely examined would turn out to be non responsive tenders that would be rejected as such.

It was suggested that proposed paragraphs (4) and (5) of article 33 could be combined by inserting the words in accordance with the requirements of article 33 (2) before the words to be present at the opening of the tenders in paragraph (4), and deleting paragraph (5).

(h) Article 30 (6) (requirement to return late tenders unopened)

However, it was pointed out that the generic description might not be sufficiently wide to encompass all the items present in the list, including the opening of tenders electronically, the publication of procurement related information, and a requirement for a document to be in a sealed envelope.

(c) The exact time and date of the receipt of tenders can be established

The procuring entity may, however, require that tenders include such features.

See, e.g., article 12 (3) of the Model Law which provides that the notice of the rejection of all tenders, etc., shall be given promptly to all suppliers or contractors that submitted tenders, proposals, offers or quotations.

In procedures involving an electronic auction, some of these provisions apply to the initial tenders envisaged under paragraph 4 (a) of that draft article (that is, the tenders submitted and evaluated prior to the auction phase).

(3) ter. Systems for the electronic receipt of tenders must ensure at a minimum that

(l) Article 34 (3) (on tenders that the entity cannot accept) and

Abnormally low tenders (A CN.9 WG.I WP.40 Add.1, paras.

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