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1、The Significanceofthe TenderingContractonthe Opportunities forClientsto EncourageContractor-ledInnovation文献、资料来源：国道数据库文献、资料发表（出版）日期：2006.10.11院 （部）：管理工程学院专 业： 工程造价班 级：价本0504* *学 号： *指导教师： 黄伟典 王大磊 翻译日期：2008.6.14外文文献：The Significanceofthe Tendering Contracton The Opportunitiesfor Clientsto Encourage C

2、ontractor-led InnovationABSTRACT During the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantage of these opportunities, and equally contractors want to use their expertise

3、 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 by the tendering authority. However recent developments in common law have raised doubts about the abi

4、lity 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. Since the tendering process is inherently price competitive, the application of the tendering contract co

5、ncept 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 competitive tendering process in relation to contractor-led innovation and explore ways in which owners can

6、 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 competition for a specified product. Evaluation of tenders could only be confined to price alone by cr

7、eating 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, owners often encourage tenderers to submit a second tender which offers an alternative price for an al

8、ternative 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 compete to find novel ways of organising the work method that would allow not only the minimum constructi

9、on cost but also maximum profit margin within the price proposed. However, this process is always confined by the boundary of the owners design. In this way, the successful tenderers scope to be innovative is very limited . When evaluating alternative tenders, the owner is confronted with the duty o

10、f 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 be treated equally and fairly? Any individualism exhibited on the part of a tenderer outside the permitted

11、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 or even discourages contractor-led innovation . Songer and Ibbs believed that the use of design-and-build

12、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 processdiffer from that of the traditional procurement method in that it must be capable of evaluating design a

13、s 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 be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lo

14、st, 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 contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The li

15、mits 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 how to allow for innovation while maintaining appropriate control of certain design aspects of the project.

16、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 to public sector agencies. THE TENDERING CONTRACT Developments in the law relating to tenders traditionally

17、 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 . In other words, an invitation to treat was not an offer to make a contract with any person who might act

18、on the invitation, but 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 which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractua

19、l 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 the emergence of the tendering contract. The invitation to tender is now in some circumstances to be treated a

20、s 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 tender in response to my invitation and which complies with the stipulations made, I will consider that tender ” .

21、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 here as the tendering contract or described elsewhere as a pre-award contract or process contract. This contract

22、 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 and each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each

23、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 tenderer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders.

24、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 makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in

25、 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. In the case: Ontario v. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract was

26、 brought into being automatically upon the submission of a responsive tender by each tenderer. Having established that a tendering contract exists, it is then important to constitute what the terms are of that contract. The terms are derived from the tender conditions, the tendercode, and other rele

27、vant material such as legislation and correspondence . All or some of the provisions of the tender code may be incorporated in the tendering contract by reference and/or by implication. A terms may be implied to the effect that the owner must consider all conforming tenders, must treat all tenderers

28、 equally and fairly, and must award only a contract for the project tendered for. GUIDANCE ON CONTRACTOR SELECTION The Significance of Probity in Tendering Probity is defined in various dictionaries as “moral excellence, integrity, uprightness, conscientiousness, honesty, sincerity”. In the tenderin

29、g context, it generally depends upon confidentiality of documentation and decision making, objective and consistent assessment at each phase of decision making and resolution of any possible, perceived or actual conflicts of interest. Thus, one of the primary objectives of probity in tendering is to

30、 maintain the integrity of the bidding process. The Canadian court in the Ron Engineering case referred to this as the obligation of owners to treat all tenderers equally and fairly. Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors

31、and members of the public can have confidence in the outcomes. If integrity and impartiality are not evident, tenderers may be reluctant to make a bid, the formulation of which requires significant amount of time and resources. In that case, competition is likely to be lessened and the best value fo

32、r money may not be achieved. In principle, recent development in common law attempts to maintain some integrity in the tendering process by recognising the existence of the parties obligations to one another so that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one or more tenderers to produce satisfactory deal. As mentioned previously, the contractual obligation between the parties is referred to as the tendering contract. Breach of the tendering contract en