For a traditional contract, the most competitive price offered is that of Contractor B. Where technical merit is part of the basis for the award, technical merit should be assessed and merged with the total tender prices to determine the most economically advantageous tender. Some examples of other criteria that would qualify as technical merit and might be included are:
The tenderer’s proposed management, supervision structure and personnel;
The following tendered rates and percentages of the winning tenderer were included in Part 2D of the Schedule attached to the Form of Tender (e.g. FTS 1) which included the fixed price lump sum tender price:
The 8% adjustment was applied to plant rates in the Civil Engineering Contractors Association (CECA) publication Schedules of Dayworks Carried Out Incidental to Contract Work26 on the basis of euro parity with sterling (discounted appropriately in the tender submission) at the time the work is done and also to the rates of €120.30 per hour for special plant item ‘A’ and €125.30 per hour for special plant item ‘B’ that were supplied with the tender invitation. The adjusted rates will be used for valuing plant as authorised under clause 10.6.4 (3) of the Contract.
Design-and-build tender evaluation
In the case of a design-and-build contract, the technical merit criteria can include design as well as the other technical merit criteria mentioned for traditional contracts. Whole Life Cost as a criterion will also be a factor. Separate weightings should be allocated to price and technical merit, with technical merit having an appropriate weighting relative to the project.
2.7.6 Letters of Intent and Acceptance
Contractor requirements
The Contractor is required to provide certain information to the Employer before the Starting Date. The Employer should ensure, before issuing the (binding) Letter of Acceptance (MF 1.4) or Tender Accepted (in the case of the Short Public Works Contract PW-CF6), that bonds, insurances, any required parent company guarantees, tax clearance certificates27, and other relevant documents are in place. The procedure for this should be specified in the tender documents.
If the Letter of Acceptance has issued, and the Contractor fails to provide the required documents, the Employer can terminate the Contract, but would have to commence a new procurement procedure to award a new contract. EU procurement rules do not allow Employers to move on and select the next placed tenderer after an award has been made as that procurement procedure is regarded as being over.
This situation can be avoided by the Employer exercising its option under section 10.3 of the Instruction to Tenderers (ITT-W1 or ITT-W2) and issue the appropriate Letter to Successful Tenderer. A portal under MF 1.2 in the Model Forms section of the Construction Procurement Reform website will direct you to the appropriate letter depending on whether the competition is subject to the European Directives. This letter can specify a list of items that must be provided such as a performance bond, any required parent company guarantee, evidence of required insurance, appropriate tax clearance statement from the Revenue Commissioners, any required appointment as project supervisor for the construction stage or the design process and construction stage, or other appropriate documentary conditions, within the stated period in the letter, failing which the Employer can exercise any of the three options stated under section 10.3 of ITT-W1 or ITT-W2.
Binding nature of Letter of Acceptance
The issue of a Letter of Acceptance/Tender Accepted by an Employer to a tenderer forms a binding contract. The letter must be signed by a person authorised to sign contracts on behalf of the Employer. The Employer should make sure that all required approvals and supporting documents are in place before the letter is issued.
