|
Review
Body on Bid Challenges
Hearings
Summary of Case
No. 04/2003
The rejection
of a tender on supplying a fire-fighting vessel to the Government of the
Hong Kong Special Administrative Region (HKSARG)
Company A (the complainant)
lodged a bid challenge to the Review Body against the HKSARG (the respondent)
for breaching Article XIII (4) (b) of the World Trade Organization Agreement
on Government Procurement (GPA) in a tender exercise for the supply of
a new fire-fighting vessel.
The respondent rejected
the complainant's tender on the ground that the complainant could not
conform to the mandatory warranty requirements and the requirements on
financial information. The complainant, however, asserted that the respondent
misconstrued the terms of the warranty provided and failed to recognize
that the financial information submitted did meet the requirements in
the tender invitation.
A Panel comprising
the Chairman and two members of the Review Body was set up to consider
the bid challenge. As neither party requested a hearing and the Panel
did not find it necessary to conduct a hearing, both the complainant and
the respondent supplied the Panel with written submissions. The decision
of the Panel is summarized as follows -
-
The Panel was
of the view that the complainant's warranty offer, when properly construed,
served the mandatory warranty requirements, and this ground alone
should not have prevented the complainant's tender from being further
examined by the respondent.
-
On financial documentation,
the Panel considered that the complainant had failed to provide its
audited financial statement in a form that enabled the respondent
to assess complainant's financial capability. The Panel agreed that
such failure was sufficient to justify the respondent's rejection
of the complainant's tender.
-
The Panel rejected
this complaint and concluded that there had not been a breach of the
GPA.
-
The Panel was
however concerned that the procuring entity's interpretation of the
warranty offered by the complainant was somewhat uncommercial. The
Panel advised that a course in interpretation of commercial documents
be provided to officers carrying out the screening process.
|
