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Review
Body on Bid Challenges
Hearings
Summary of Case
No. 02/2003
The rejection
of tender submissions on Central Reclamation Phase III
Three companies (Company
A, B and C) lodged bid challenges to the Review Body against the Hong
Kong Special Administrative Region Government (the respondent) for breaching
the World Trade Organization Agreement on Government Procurement (GPA)
in a tender exercise for the Central Reclamation Phase III.
A Panel comprising
the Chairman and two members of the Review Body was set up to consider
the various complaints made by the complainants. The Panel conducted a
five-day hearing to examine the case.
The Panel was of the
view that Company A had established a breach of the GPA with regard to
its complaint regarding a tender condition on pricing certain portion
of the work, namely the Special Condition of Tender Clause 2 (SCT2). According
to SCT2, failure to price the tender in accordance with the condition
may invalidate the tender. Company A was able to comply with the condition
and it had the highest score among the tenderers. However, the respondent
decided eventually not to apply the SCT2. Company A was then no longer
the lowest bidder.
The Panel's recommendations
in respect of this bid challenge are as follows :
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The Panel recommends
the procuring entity asks both Company A and the successful bidder
to re-tender.
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If the Respondent
feels unable to accept the above recommendation because it has entered
into a binding contract with the successful bidder, the Panel asks
the Procuring Entity to insert in all tenders a clause which enables
the suspension of the implementation of the successful contract for
so long as the contract is subject to a review by the Panel.
The Panel also made
general and specific observations relating to confidentiality, transparency
and burden of proof.
For the other challenges
raised by the three companies, the Panel did not find that there had been
any breach of GPA.
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