1、- 1 -外文文献： The Significance of the Tendering Contract on The Opportunities for Clients to Encourage Contractor-led InnovationABSTRACT During the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients a
2、re keen to take advantage of these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation and the availability of cheaper methods of construction than have been contemplated b
3、y the tendering authority. However recent developments in common law have raised doubts about the ability of owners to seek alternative tenders without placing themselves at risk of litigation. This common law has recognised the existence of the so-called tendering contract or process contract. Sinc
4、e the tendering process is inherently price competitive, the application of the tendering contract concept is likely to severely inhibit the opportunity for alternative tenders. This paper is primarily based on the literature review. The aim of this paper is to highlight the problems with the compet
5、itive tendering process in relation to contractor-led innovation and explore ways in which owners can develop procurement procedures that will allow and encourage innovation from contractors. PROBLEMS WITH COMPETITIVE TENDERING The traditional tendering process was designed to produce direct price c
6、ompetition for a specified product. Evaluation of tenders could only be confined to price alone by creating a system in which price is the only criterion that could vary while design and technical content are the same for each competing tender. Albeit the contract period is stipulated as constant, o
7、wners often encourage tenderers to submit a second tender which offers an alternative price for an alternative time performance. Tenderers would achieve this by reworking their tender programme, finding the optimum contract period, and adjusting the tender price accordingly. Each tenderer would comp
8、ete to find novel ways of organising the work method that would allow not only the minimum construction cost but also maximum profit margin within the price proposed. However, - 2 -this process is always confined by the boundary of the owners design. In this way, the successful tenderers scope to be
9、 innovative is very limited . When evaluating alternative tenders, the owner is confronted with the duty of equal treatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which is not a conforming tender in terms of the original invitation, how can all tenderers b
10、e treated equally and fairly? Any individualism exhibited on the part of a tenderer outside the permitted scope of price and time must disqualify that tender from the owners consideration because it does not conform to the invitation. Therefore, the traditional tendering process prevents, restricts
11、or even discourages contractor-led innovation . Songer and Ibbs believed that the use of design-and-build procurement method would encourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering proce
12、ssdiffer from that of the traditional procurement method in that it must be capable of evaluating design as well as production capability, time and price, all on a competitive basis. This is not easy. Competitive design is not easy to evaluate in the context of tendering. The objectivity appears to
13、be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lost, unless very clear criteria are established at the outset for evaluation of competing designs. This also means to say that the tender process rules must be designed as such that itencourages
14、contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The limits must be such that the project delivered is still the project for which tenders were invited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agencies is ho
15、w to allow for innovation while maintaining appropriate control of certain design aspects of the project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge t
16、o public sector agencies. THE TENDERING CONTRACT Developments in the law relating to tenders traditionally treated an invitation to tender or a request for tenders as no more than an invitation to treat, an indication that the owner was ready to do business something prior to and short of an offer .
17、 In other words, an invitation to treat was not an offer to make a contract with any person who might act on the invitation, but - 3 -merely a first step in negotiation which may, or may not, lead to a contract. When each tenderer submitted its tender in the prescribed form, it amounted to an offer
18、which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractual obligation arose between the owner and the successful tenderer . Recently, the modern view turns this theory upside down. There exists what is known as the two contract analysis involving
19、 the emergence of the tendering contract. The invitation to tender is now in some circumstances to be treated as an offer to make a contract which a tenderer accepts when it submits a conforming tender. The owner makes an offer to each tenderer which might be worded as follows: “If you submit a tend
20、er in response to my invitation and which complies with the stipulations made, I will consider that tender ” . There is no obligation at all at this point on the side of the tenderers, but if a conforming tender is submitted, a contract is formed between owner and tenderer which has been described h
21、ere as the tendering contract or described elsewhere as a pre-award contract or process contract. This contract is quite distinct from the contract eventually entered into with the successful tenderer, called the main contract. Obligations of a contractual nature therefore arise between the owner an
22、d each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each tender also imposes obligations on the tenderer. Once the tender has been submitted to the owner, meaning the tender or first contract has been formed, the owner becomes obliged to each ten
23、derer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders. By the same token, tenderers become obliged to not simply withdraw their tender, the tender will remain open for a stipulated period of time. Under the two contract principle,a tenderer who
24、 makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender in response to an invitation can create contractual obligations for both parties. I
25、n the case: Ontario v. Ron Engineering or (ii) to award to another tenderer or another person something other than the main contract. It would be a breach of the tendering obligation of equal and fair treatment for the owner to negotiate with one tenderer on terms which do not apply to other tendere
26、rs. All tenderers are entitled to know the basis on which tenders will be evaluated and on which acontract-award decision will be made.If innovation from tenderers is required, an owner must expressly create the right for a tenderer to submit an alternative tender. If the right then exists, the owne
27、r is obliged to consider such proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.Tender conditions must define the scope of alternative tenders. That scope must be not too tight so as to restrict innovation, but not too wide so as to result in a proposal f
28、or a scheme quite different to the one originally tendered for.- 6 -Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers. It is a breach of the tendering contract for the owner to award a contract to a tend
29、erer who offers something different to what was asked for in the invitation to tender. Furthermore, Johnstone adds Invitation document should be accessible to all potential bidders. They should be expressed in readily understood terms. It is easier to formulate appropriate selection criteria when th
30、e project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulate bids appropriately. A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation. Often assessment of bids will involv
31、e a number of assessment panels. In this situation, there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the eva
32、luation period.SUMMARY This paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and the
33、 scope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t. Guidance has been outlined of how to reduce the risk of owner falling into a breach of the tendering contract in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.
