Unfair Competitive Advantage 1
- A PE previously deployed the Single-source procurement method to contract three individual (3) consultants/firms to provide architectural, civil/structural and mechanical, electrical and plumbing (MEP) services;
- These services culminated in the design drawings for a major project and ended thereafter;
- The project is at the construction phase and the PE intends to proceed to market to secure a works contractor to execute the associated works;
- Towards instituting proper management of the project and industry best practice, the PE intends to execute tender processes to secure contract administration services before that of the main works contractor ;
- The decision to contract these services by way of individual competitive processes instead of the Single-source route previously utilised arose from a concern about possible perceptions of abuse of the Single-source method;
- A possible counter-position to the decision to go competitive for the aforementioned specific services is that from the standpoint of the learning curve savings, possible adjustments to designs, implementation progress, and location of professional liability, there is obvious advantage to use the same team;
- Annex CS5-Procurement of Consulting Service-National Competitive Bidding is the proposed bidding document to engage the market for contract administration services. However there are concerns that some specific clauses may prohibit the original consultants from participating;
- Under ITC 2.5 the procuring entity will provide inputs and relevant project data and reports required for the preparation of the consultant/Firm proposal, which will be modified within the Data Sheet (DS) to reflect that specifications, drawings, blank Bill of Quantities will be provided by the PE;
- MNS regards ITB 3. Conflict of Interest, and more specifically 3.1(a) as a threat but is of the view that ITC 3.1(a)(i) provides an exception if the above mentioned inputs are not supplied under DS ITC 2.5;
- ITC 4. Unfair Competitive Advantage and more specifically 4.1 presents similar concerns since the language thereunder, is interpreted to mean that the firms in question may not participate in the upcoming competitive process.
- In consideration of the cited clauses within Annex CS5, the PE questions and seeks guidance whether the original consultants may be excluded or included from the new tender opportunity.