এশিয়ান ডেভেলপমেন্ট ব্যাংক (ADB: ASIAN DEVELOPMENT BANK) তার সদস্য দেশগুলিতে উন্নয়ন প্রকল্পের জন্য ঋণ এবং ইক্যুইটি বিনিয়োগ প্রদান করে। ব্যাংকটি প্রকল্প এবং কর্মসূচির জন্য প্রযুক্তিগত সহায়তা প্রদান করে।
ADB সম্পর্কে আরও জানতে দেখুনঃ বাংলাদেশে এডিবির অর্থায়নের পোর্টফলিও
এডিবি’র নতুন ক্রয় কাঠামোতে তার ঋণগ্রহীতাদের জন্য ক্রয় নীতি এবং ক্রয় বিধিমালা (Procurement Policy and Procurement Regulations) প্রণয়ন করেছে। তার আলোকে বিভিন্ন ক্রয় প্রক্রিয়া পরিচালিত হয়ে থাকে।
ADB’র ক্রয় কার্যক্রম পরিচালনায় বিভিন্ন কেস স্টাডি (Case Study) আছে। তার কিছু এখানে আলোচনা করা হলো।
এডিবি’র ক্রয় প্রক্রিয়ার ক্ষেত্রে দরপত্র দলিল (Bidding Documents) সংক্রান্ত কেস স্টাডি দেখতে লগইন করুন।
Bidding Documents
Case Study 1: Pre-bid Meeting
The executing agency invited bids for works on 4 March 2019, in accordance with the Asian Development Bank’s (ADB’s) Single Stage Two Envelope (1S2E) bidding procedure. A pre-bid meeting was conducted on 20 March 2019. The minutes of this meeting were submitted as follows:
- Clause and Section
- Name of Bidder Who Sought Clarification
- Clarification Sought
- Response
Was this format correct?
Suggested Approach
The name of the bidder should not be in this format as the employer should forward copies of the request and its response, without disclosing who submitted the request.
Case Study 2: Provision for Non-mobilization of Personnel and Equipment
A bid document for development of the water supply and sewerage system in a city was submitted by the executing agency to ADB for obtaining a “no objection.” There was a provision for penalty for non-deployment of equipment and manpower under Section 8, Special Conditions of Contract, as follows:
“Part A, Contract Data, Sub-clause 9.6—Maximum amount of delay damages. Amount of damages due to non-mobilization of personnel and equipment shall be part thereof the maximum amount of delay damages, i.e., 10% of final contract amount. Damages imposed due to non-mobilization of personnel and equipment shall be non-refundable.”
Suggested Approach
The executing agency should not enforce delay damages for non-mobilization of equipment and manpower as Clause 9.6 already imposes a penalty for delay in completion of the project, which covers the delay in mobilization of resources, including manpower and equipment. The standard contract document controls the timeline with the provision of imposing penalty for the delay in completion. Therefore, the provision for penalty for non-mobilization of personnel and equipment in the bid document is not required.
Case Study 3: Unclear Qualification Criteria
For an Open Competitive Bidding-International Advertisement (OCB-IA) contract of $40 million, for a road construction project, the executing agency received four bids and submitted the Technical Bid Evaluation Report (TBER). The executing agency recommended one bidder as technically responsive and the other three as non-responsive. This is due to inadequate experience of similar work under the evaluation and qualification criteria (EQC) that specified: “Participation in at least one similar contract of value C1,800 million that has been successfully or substantially completed within the last five years, 2011–2016. The similarity of the bidder’s participation shall be based on the physical size, nature of work, complexity, methods, technology, or other characteristics as described in Section 6.”
Upon inquiry, the executing agency responded that one bidder did not meet the minimum value of similar work experience. The other two had executed road works of similar contract size, but these did not include culverts, minor bridges, major bridges, flyovers, underpasses, etc. These were also not listed in the criteria for construction in key activities.
Was the EA’s approach correct in evaluating two bidders as non-responsive?
Suggested Approach
The EA’s view that though the bidders’ general experience of road construction complied with EQC 2.4.1 and “contracts of similar size and nature,” the bidders didn’t have experience in specific components such as minor bridges, major bridges, flyovers, underpasses, etc. The executing agency was advised to carefully include all specific key components of the work in EQC 2.4.2 to avoid any ambiguity in the interpretation during the tech bid evaluation and to avoid wasting the precious implementation period as well.
Case Study 4: Frequent Changes in Qualification Criteria
For a contract package for the construction and strengthening of the road for $5 million, the executing agency received three bids and submitted the TBER. The executing agency, after issuing the Invitation for Bid (IFB), changed the following qualification criteria three times:
- (i) 2.3.2 (annual construction turnover);
- (ii) 2.3.3 (financial resources);
- (iii) 2.4.1 (contracts of similar size and nature); and
- (iv) 2.4.2 (construction experience in key activities).
The executing agency changed the above frequently in a span of 15 days, without seeking “no objection” from ADB. It recommended that all three bidders be technically responsive. Upon review of the TBER, ADB sought clarifications from the executing agency on frequent changes in the qualification criteria. The executing agency clarified that due to a change in cost estimates of the project, the qualification criteria was changed and, as the date of submission was approaching, the executing agency did not seek “no objection” from ADB.
Suggested Approach
Frequent changes (three times) in the qualification criteria, in a short span of time, and without ADB’s consent, reflect doubts over the fairness of the procurement process. Therefore, the executing agency should cancel this bidding process and go for fresh advertisement of IFB.
Case Study 5: Joint Venture Partner Arrangement
The executing agency of a power transmission project submitted a draft bidding document for approval of an OCB-IA package of $50 million. The executing agency mentioned the need to mandatorily indicate the share of each joint venture partner in the agreement. However, the plant’s standard bidding document (SBD), December 2021 edition, did not have such a provision. On further inquiry, the executing agency explained that it wanted this information in order to know how much liability each joint venture partner would have during the execution of the project.
Was the EA’s approach justifiable?
Suggested Approach
As per the plant’s SBD, December 2021 edition, in the case of joint venture bidders, the agreement was required to specify that all joint venture partners will be jointly and severally liable, irrespective of the share of each partner. Each partner was equally liable ( jointly and severally) for all aspects of the contract execution. At the same time, the evaluation and qualification criteria was the appropriate place in the bid document to specify the financial resources required for the joint venture overall, as well as for each partner to judge their financial soundness. Therefore, such information was not required.
Case Study 6: Invitation for Bid, Addendum, and/or Corrigendum
For a contract package for the construction of a bridge costing $7.5 million, the executing agency received four bids and submitted the TBER. After the IFB was issued, the executing agency changed the qualification criteria of the annual construction turnover as well as the financial resources and contracts of a similar size and nature, by mentioning the IFB without seeking “no objection” from ADB. The clauses in Section 3 of the bid document were not mentioned in the addendum.
The executing agency recommended all four bidders as technically responsive. After review of the TBER, clarifications were sought from the executing agency on the wrong mentioning of IFB in the addendum. The executing agency clarified that, inadvertently, it had forgotten to mention the bid document clauses. And, as the date of submission was approaching, the executing agency did not seek “no objection” from ADB.
Suggested Approach
General Conditions of Contract (GCC) Clause 6.2 clearly states: “…The IFB issued by the employer is not part of the bid document…” Therefore, the addendum issued for change in IFB clause is not valid/relevant. Any change in the addendum should be reflected with reference to a proper clause of the bid document, and that too with ADB’s consent.
Therefore, the executing agency was advised to cancel this bidding process and go for a fresh advertisement of IFB.
Case Study 7: Bidding and Additional Documents Issued by the Executing Agency Without Approval of the Procurement Team of the Asian Development Bank
For a civil works procurement of a building that was under the prior review of ADB, as per the approved procurement plan, the executing agency issued bidding documents and conducted a pre-bid meeting. An addendum to link the work schedule for this civil works contract, with machines to be installed in the building, was suggested by ADB. While issuing the addendum, the executing agency informed that Addendum 1 had already been issued by the executing agency where the qualification requirements regarding annual construction turnover and similar experience had been relaxed and not prior-reviewed by ADB. On review, ADB’s procurement unit did not agree with the relaxed criteria as it could compromise with the quality of the bidders.
What should be done now?
Suggested Approach
In the case of a contract package under prior review, as the bid document and the qualification criteria were reviewed by ADB prior to inviting bids, any addendum, particularly for changes in qualification requirement, should be prior-reviewed by ADB.
In this case, as the addendum was noticed by ADB prior to submission of the bid, the addendum was issued to revise the qualification requirement and to keep it as originally approved in the BD.
Case Study 8: Bidding Documents and Eligibility Modification
The executing agency invited bids for a large housing construction work in April 2022. It proposed to add a clause for rejecting bids submitted by bidders who had a proven record of poor quality in executing similar works. The executing agency prepared a corrigendum to the bidding document and submitted it to ADB for approval.
The “as-issued” bidding document covered the quality of construction in Section 6 (performance objective). However, the executing agency proposed further strengthening of the desired contractor’s eligibility requirements.
Do you think such a clause can be added to Section 2 of the bid data sheet (BDS)?
Suggested Approach
The poor performance of the bidder is an important aspect of the evaluation and qualification criteria and the provision for this has to be incorporated in the relevant clause of the bidding document. This is the clause where the executing agency recommends a general clause for the right to reject bids. It is not relevant to this criterion and the clause has to be in Section 3. Please note that Clause 2.2.1—History of Non-Performing Contracts in Section 3, EQC—already has a provision for historical non-performance and an additional provision is not required.
Case Study 9: Bidding Documents and a Non-responsive Bid
The executing agency invited bids for the supply of equipment under a skill development project on 26 December 2021, with the last date of submission being 25 January 2022. Till the last date of submission, only two bids were received and opened. The technical evaluation was conducted by the EA’s procurement committee.
The EQC, as per the “as-issued” bid document was: “Successful completion as a main reputed manufacturer/authorized supplier of reputed manufacture within the last five calendar years from the bid publishing (IFB) date, of at least two contracts, each valued at a calculated cost of $120,000 with nature and complexity similar to the scope of supply described in Section 6 (Schedule of Supply).”
One of the bidders submitted an experience of supply of similar items for the contract value of $125,000 with a successful completion certificate. However, during evaluation it was discovered that the third party inspection for supply of these had not even started on the date of evaluation by the relevant government agency to whom items were supplied. Therefore, the executing agency did not regard the supply to be successfully completed and considered the bidder as non-responsive.
Was the executing agency correct in considering the bidder as non-responsive on the abovementioned ground even when the bidder had submitted a successful completion certificate?
Suggested Approach
It was noted that the executing agency’s procurement committee had obtained information from a group that did not support or favor the bidder. Therefore, the information needed to be formally introduced into the evaluation through a request for clarification. Accordingly, the executing agency decided to take feedback from the purchaser regarding completion and performance of the supplied equipment. The feedback of the purchaser related to the bidder was unsatisfactory, as the third-party inspection was still incomplete. Thus, supply to the previous purchaser was not considered as complete, as claimed by the bidder, while submitting the experience certificate. The bidder was, therefore, declared non-responsive.
Case Study 10: Bidding Documents Revision for Rebidding
The executing agency invited bids for installing a solar photovoltaic power plant for sewage treatment in February 2021. In the first call, the executing agency did not receive any bids. What approach should be taken while re-inviting bids?
Suggested Approach
The executing agency should analyze the reasons for non-participation and the current market situation. Accordingly, the executing agency should customize the scope of work, evaluation, and qualification criteria, as well as the conditions of the contract, in order to encourage participation for rebidding.
Case Study 11: Use of the International Federation of Consulting Engineers Pink Book Contract
For a large civil works package, the executing agency prepared a bidding document and submitted it to ADB for review in February 2022. “No objection” to the bidding document was provided in May 2022. However, the executing agency was unable to issue the IFB till 30 June 2022.
As the license agreement between ADB and International Federation of Consulting Engineers (FIDIC) to use the Pink Book expired on 30 June 2022, ADB no longer uses the Pink Book as a part of SBD for large works since 1 July 2022.
Can the executing agency use the FIDIC Pink Book contract or should it revise the bidding document for the FIDIC Red Book 2017, as required to be used for ADB-supported projects from 1 July 2022?
Suggested Approach
The FIDIC Pink Book was prepared especially for multilateral development banks and ADB. Its users were given a license for their contracts. However, the license agreement between ADB and FIDIC expired on 30 June 2022. The license is, therefore, valid only for the contracts for which IFBs were issued before 30 June 2022. However, as the IFB was not issued for this package, as an interim measure and as part of the transition process, it was recommended to use the Pink Book only after directly purchasing it from FIDIC before the bids were invited. The bid document would have to indicate that the contractor needs to purchase a copy.
Further, it should be noted that according to the copyright rules, no part of a FIDIC publication can be reproduced, translated, adapted, stored in a retrieval system, or communicated, in any form or by any means, mechanical, electronic, magnetic, photocopying, recording or otherwise, without prior permission in writing from FIDIC.
Owing to copyright issues, ADB suggested that the executing agency should not reproduce the GCC in the “as-issued” bid document but refer the bidders to the FIDIC website.
Case Study 12: Changing the Evaluation Criteria of Financial Proposal to Include Net Present Value
Under the Urban Services Improvement Project, the executing agency had planned for several wastewater, scheme improvement, and management contracts. These were intended for a three-year design-build and a 10–year operation and maintenance (O&M) project. As the O&M cost is about 22% of the total cost, the executing agency requested to introduce an assessment of bidders’ quoted price, based on net present value (NPV).
Do you think the assessment of price bid, based on NPV, will ensure value for money? In which contracts will NPV be considered for evaluation?
Suggested Approach
Typically, NPV is used in plant projects for lifecycle cost evaluation. Using NPV is recommended for long-term contracts, combining construction and O&M services.
While on the assessment of price bids, based on NPV, it is important to clearly specify in the bidding documents that the winning bidder is selected not by the lowest bid price (construction costs), but by the most advantageous bid price (NPV of construction and O&M costs). There are several cost factors which may affect NPV over the contract period significantly. The executing agency should clearly specify in the BD the cost factors fixed by it so that all the bidders use the same formula for calculating NPV. An option to add factors, depending on their design elements, should be provided to the bidders. The discounting and inflation rates should be carefully considered and fixed by the executing agency. Depending on the characteristics of the procurement package, in addition to routine O&M service, it may need overhauling or replacement of major equipment and/ parts on a regular basis (e.g., every 3–5 years) and should be considered while determining the provision of NPV in the assessment of price bids.
Case Study 13: Changing the Scope of Work After Bid Submission
The executing agency invited bids, in accordance with ADB’s Single Stage One Envelope (1S1E) bidding procedure, for installation and establishing of network connectivity between seven districts of the state. A pre-bid meeting was arranged by the executing agency and was attended by five prospective bidders. However, till the last date of submission, only one bidder submitted the bid. During evaluation, it was found that the single bidder had proposed network connectivity for six districts only and had provided the price bid accordingly. The price submitted by the bidder was reasonable and the executing agency was also of the view to drop the seventh location from the scope of work. Accordingly, the executing agency was of the view that it should award the contract to the single bidder with a revised scope of work for six districts only.
Do you think this course of action was fair?
Suggested Approach
Dropping any component of the scope of work at the stage of evaluation would be unfair as there is a probability that other prospective bidders would also have submitted the bid, in case only six locations were part of the scope of work. This course of action, of accepting the bid of the single bidder who had quoted partially for the scope of the work, could lead to complaints by other prospective bidders. Therefore, in such a case the bid would be rejected and fresh bids would have to be invited along with the revised scope of work.
Source: © 2024 Asian Development Bank
