Quite frequently during the evaluation of the proposals that have been submitted in relation to an RFP, ambiguities and gaps will be noted in one or more (and sometimes all) of the proposals submitted.
An evaluation committee will often ask whether it is possible to inquire of the proponent(s) concerned, so as to eliminate those uncertainties in relation to the proposals in question. Any effort to seek such clarification is bound to be sensitive because it smacks very nearly of negotiation.
A clarification will often lead to what is in effect a modification. Allowing the bidder to clarify its bid can give that bidder an “unfair” advantage if the bidder is astute enough to realize its existing bid is not likely to be accepted.
That bidder thus gets an opportunity to modify its price, while the other bidders do not. However, even recognizing the seriousness of concerns, some method of clarification is almost certain to be necessary to deal with unusual cases.
As I have stated before, the tender process is not a game. It is a serious business, the primary purpose of which is to secure to municipalities suitable sources of supply.
The rules must be sufficiently flexible to protect their interest. Therefore, the bidding instructions should:
- Expressly disclose that the municipality may, if it so chooses, clarify the terms of any bid (the right to do so should clearly be left in the municipality’s discretion; the obligation to provide a clear bid should be placed on the bidder. It is not appropriate for the municipality to take upon itself the obligation to inquire as to what the bidder intended);
- set out the procedure for obtaining such clarification, including the restrictions that apply to the process; and
- provide training for buyers as to how to deal with obtaining clarification.
Even with these protections in place, great care must be taken. As a general rule, the submission of any new information that enhances a bid after the bid closing date constitutes what is known as “bid repair.”
Allowing the repair of a defective bid generally is illegal in Canada in view of the obvious risk that the supplier who is allowed to make that repair will have an unfair advantage over the other proponents.
Concerns relate to the fact that pricing information may have been disclosed; in addition, the proponent who is allowed to repair its proposal in effect gets more time to prepare and submit its proposal than was allowed to anyone else.
On the other hand, low level clarification that does not give the proponent an advantage, but which merely corrects an obvious error is generally permissible.
For instance, if it is noted that paragraph three on page four of the proposal has an incomplete sentence. There is nothing wrong (at least in an ordinary case) in asking the proponent to supply the missing words. As always with the law, however, what is permissible is a question of degree. If the “missing word” turns out to be three pages long, then what is happening is a clear case of bid repair.
If two sentences within the proposal are inconsistent, there is probably no risk in asking which one applies or if not how the two sentences are to be reconciled. If whole portions of the proposal cannot be understood, allowing them to be rewritten constitutes bid repair.
Ambiguity and missing text are only two of many different minor problems a municipality may have to deal with when trying to evaluate the proposals it has received. In dealing with such problems, most municipalities have a purchasing policy or procedure that will deal with these issues. The omission of irrelevant information most likely does not prevent the award of a contract to the proponent concerned.
