Review Body on Bid Challenges
Summary of Case No. 01/2019
The rejection of a tender proposal for the supply of 240,000 metric tonnes of sodium hypochlorite solution 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 XV:5 of the revised World Trade Organization Agreement on Government Procurement (revised GPA) in a tender exercise for the supply of 240,000 metric tonnes of sodium hypochlorite solution.
The complainant argued that the respondent has failed to award a contract to the supplier who had submitted the most advantageous tender or the lowest price in the tender exercise. Moreover, the complainant disagreed with the respondent's claim that it had failed to provide documentary evidence which clearly indicated that each of the tank containers proposed to be used in its tender complies with the specified requirements for the delivery of sodium hypochlorite solution (concerned tender requirements).
The complainant further contended that the respondent had failed to inform it of its unsuccessful bid promptly.
A Panel comprising the Chairman and two members of the Review Body was set up to consider the bid challenge. Neither the complainant nor the respondent had requested a hearing. Having considered the basis of the complaint with related documents in support, the factual information as well as the written representations submitted by the Parties, the Panel has reached the findings as summarized below.
- The Panel found that the information provided by the complainant in response to the respondent's tender clarification questions in October 2018 failed to strictly comply with the concerned tender requirements in that they failed to submit valid inspection certificates (valid on the Tender Closing Date) for 10 of the 14 tank containers indicating compliance with the specified requirements for the delivery of sodium hypochlorite solution. Hence, the Panel concluded that the respondent was not in breach of Article XV:5 of the revised GPA in refusing to award the contract to the complainant for non-compliance with the concerned tender requirements.
- The Panel however held that the respondent was in breach of Article XVI:1 of the revised GPA as the respondent only formally informed the complainant of its unsuccessful bid in writing seven weeks after the contract was awarded, and replied the complainant's inquiry that the tender result was not available when it was fully aware the contract had been awarded.
Based on the above findings, the Panel concluded that the challenge is partially substantiated and recommended the respondent to pay the cost of the complainant in this bid challenge.