By Rebecca Haipinge
The Public Procurement Act, 2015 (Act No. 15 of 2015) as amended, set standards and practices for the public procurement systems, and defines “responsive”, in relation to a bid as “responsive to the basic requirements of a bid regarding ability to perform and complete on time”. The instructions to bidders contained in the bidding documents further indicates that “a substantially responsive bid is one which conforms to all the terms, conditions, and specifications of the bidding documents, without material deviation or reservation. A material deviation or reservation is one (a) which affects in any substantial way the scope, quality, or performance of the Services.”
Section 43 of the Act set standards that bidding documents must contain the methodology and criteria to be used in the evaluation of bids and the determination of the best evaluated bid(s). Bid offers read out at a bid opening session, in accordance with section 51 (4) of the Act indicating amongst others the name of the bidders, the total amount of each bid from where the “lowest price” offering is known to the public does not constitute the “winning bid”. Responsiveness to set requirements is determined through the examination and evaluation of each bid by the Bid Evaluation Committee appointed in accordance with section 26 of the Act.
It is also set in accordance with section 52 (9) of the Act, that “every bid is evaluated according to the criteria and methodology set out in the bidding documents and the evaluated cost of each bid is compared with the evaluated cost of other bids to determine the lowest evaluated substantially responsive bid which meets the qualification criteria most economically advantageous bid.” In addition to set eligibility criteria in accordance with section 50 of the Act, the “Purchaser” (Public Entity) inserts any other additional eligibility criteria and specified instructions to bidders deemed appropriate based on the nature and/or complexity of the procurement.
No other criteria but the ones indicated in the bidding documents shall be used during the examination and evaluation of bids. Bids that do not meet all set evaluation criterion or have any other weakness which makes the bid substantially nonresponsive, irrespective of “lowest price” offered are rejected.
Therefore, award of procurement contract(s) in accordance with section 55 (1) of the Act, is to the “bidder having submitted the lowest evaluated substantially responsive bid which meets the qualification criteria specified in the bidding documents”.
Emphasis is on the substantially responsiveness of the bid, which meets the qualification criteria. Thereafter, substantially responsive bids are compared to determine the most economically advantageous bid.
The below is an example of a scenario where the responsive bid is not the lowest priced offer:
BID OPENING RECORD AMOUNTS
Bidder 1: N$1.5 million
Bidder 2: N$2.2 million
Bidder 3: N$1.7 million
Bidder 4: N$2.3 million
Bidder 5: N$2.1 million
STAGE 1: ELIGIBILITY
Bidders who appear in any of the ineligibility lists will be deemed non-responsive, therefore disqualified, and excluded from further evaluation and comparison process and will not be considered further.
Bid Responsive Bid Rejected
Bidder 3: N$1.7 million Bidder 1: N$1.5 million
Bidder 4: N$2.3 million Bidder 2: N$2.2 million
Bidder 5: N$2.1 million
STAGE 2: PRELIMINARY/ADMINISTRATIVE REQUIREMENT
Bidders deemed non-responsive to any of the above administrative requirement(s) will be disqualified from the entire evaluation process and will not be considered further.
Bid Responsive Bid Rejected
Bidder 3: N$1.7 million None
Bidder 4: N$2.3 million
Bidder 5: N$2.1 million
STAGE 3: MANDATORY REQUIREMENTS DOCUMENT EVALUATION CRITERIA
Bidders deemed non-responsive to any of the Mandatory Requirements Document Evaluation Criteria will be disqualified from the entire evaluation process and will not be considered further.
Bid Responsive Bid Rejected
Bidder 4: N$2.3 million Bidder 3: N$1.7 million
Bidder 5: N$2.1 million
STATE 4: TECHNICAL EVALUATION
Bidders must score 80% and above to be considered for financial evaluation.
Bid Responsive Bid Rejected
Bidder 4: N$2.3 million None
Bidder 5: N$2.1 million
STAGE 5: FINANCIAL EVALUATION
Bidders will be ranked according to price quoted / offers (from lowest to highest). The contract shall be awarded to the lowest evaluated substantially responsive bid in terms of Section 55 (1) of the Public Procurement Act, 2015 (Act No. 15 of 2015) as amended.
Bid Responsive
Bidder 4: N$2.3 million
Bidder 5: N$2.1 million
In view of the above scenario, Bidder 5 that quoted N$2.1 million is the “substantially responsive bid which conforms to all the terms, conditions, and specifications of the bidding documents, without material deviation or reservation” and not the lowest price offered by Bidder 1 that quoted N$1.5 million. Bidder 1 had been disqualified due to non-responsiveness to eligibility criteria at stage 1.