Document Type : Original Article
Highlights
The purpose of the Tender rules is to provide a variety of bidding methods so that the legislature, in addition to the public bidding procedure, which is common and accepted in most bidding rules, can adopt other bidding methods that achieve the objectives of the bidding rules, such as competition and transparency and efficiency.
This study intends to comparatively examine the types of bidding methods in the Iran's Tenders Law and the UNCITRAL Procurement Model Law, to answer the question of what are the differences between the bidding methods in these two documents and which of them are more successful in achieving the goals of the Tender rights.
Thus, first, the methods of holding tenders mentioned in Iranian law are briefly explained, and then the related issues mentioned in the model law are examined with more care and reflection.
1. Methods of holding tenders in the Iran's Tenders Law:
• One-stage public tender
• Two-stage public tender
• One-stage restricted tender
• Limited two-stage tender
A one-stage tender is a tender in which there is no need for technical and commercial evaluation of bids. "In this tender, the bid envelopes of the bidders will be opened in one meeting and the winner of the tender will be determined in the same meeting"; but a Two-stage tender is a tender in which the technical proposals of the proposals of bidders is evaluated by Technical and Commercial Committee and the winner of the tender will be determined in two phases.
In a Public tender, a request to perform a service or purchase the required goods is made through a public announcement but Restricted tender is a method in which the performance or purchase of goods or a combination of the two is given to a limited number of the legal entities recognized by public organizations through competition.
2. Procedures for holding tenders in the UNCITRAL Model Law:
-Open tendering:
The lack of restrictions on the number and nationalities of participants and the providing a comprehensive description of the subject of the tender in the bidding documents is one of the important features of the public tenders.
-Restricted tendering:
The procuring entities can only use the restricted bidding method in providing the required services and goods for the following reasons:
a) Due to its complexity and specialized nature, the subject of the tender can be submitted by only a small number of bidders;
b) The time and cost required to review and evaluate a large number of bidders is not commensurate with the value of the tender.
-Request for quotations:
According to the Model Law, the procuring entities must take action to obtain at least 3 items of inquiry. In this method, any negotiation between the parties is prohibited and any bidder is allowed to submit a bid. The bidder who has submitted the "lowest" bid price will be selected as the winner.
-Request for proposals without negotiation:
The implementation of this method is that the bidders must submit their technical and financial bids separately and the procuring entity, after evaluating the qualitative and technical bids, respectively, will review the financial bids. The bidders who cannot meet the minimum quality and technical requirements of the procuring entity will be removed from the financial evaluation process. In the financial evaluation, all the financial elements of the proposal that include the final price and the elements that make up the final price must be evaluated. Thus, the bidder is selected as the winner who firstly meets the minimum technical requirements of the subject of the tender and secondly the final price and its constituent elements has been approved by the bidder as the most appropriate price.
-Two-stage tendering:
At the beginning of the process, the use of this method allows the procuring entities to finalize the technical conditions of the tender, which he himself was not able to describe on his own unless by examining the technical aspects of the bid and purposeful discussions about them. The procuring entities can then complete the second stage according to the public bidding method to ensure competitiveness and improve efficiency.
-Request for proposals with dialogue:
This method is similar to the two-stage tender method described in the Model Law; But the nature and method of negotiation is different. In this method, the procuring entities talks to all bidders in reciprocal meetings. Each discussion session includes steps that can focus on various technical, quality, and contractual and financial matters.
-Request for proposals with consecutive negotiations:
The method of bidding in such a way is that after the publication of the public call, the procuring entities determines the minimum score for the bids based on the technical, qualitative and executive characteristics of the subject of the bidding. Bidders submit their bids in separate, sealed envelopes containing technical documentation and bids. The procuring entities then proceeds to score based on the technical documents submitted by the bidders. Then a list of people who have achieved the minimum points and based on the points obtained in descending order is prepared and they are invited to negotiate a financial offer.
-Competitive negotiations:
The method of submitting a bid in this tender method is the same as the conditions stated for limited tenders in which the tender documents are sent to a limited number of qualified bidders and they are invited to submit their bids. After that, and after negotiating with the bidders, which should be completed in a short period of time due to the nature of the bidding method, the procuring entities asks them to submit their most appropriate final bid. The procuring entities can force the bidders to adhere to their bids until the end of the evaluation process and by obtaining appropriate guarantees. No negotiations shall take place during the evaluation of the bidders' proposals and the winner of the tender shall be the bidder who best meets the needs of the procuring entities which is not necessarily the lowest bidder.
-Single-source procurement:
In this method, due to the nature of the tender, the procuring entity first sends the tender's documents or a summary of the required services to the bidder after publishing the public announcement. After the bid is submitted by the bidder, the procuring entity, after evaluating the bid and ensuring that the bidders do not submit false evidence, will negotiate for achieving final price with the bidders.
-Electronic reverse auction:
This bidding method can be used as the implementation of the entire bidding process or holding part of the bidding process, so this method is designed taking into account the total conditions of use in different stages of the bidding. Due to the fact that in this process there are no negotiations and the evaluations are done by the system and automatically, so the bidder should be aware of the exact details of the subject of the tender and on the other hand create close competition with the participation.
The bidding process begins with the publication of the public call, without restriction and at the international level, and the bidder is obliged to provide more information in the call than the call for public tenders.
-Framework agreement:
The Framework agreement method is a method that in cases where the procuring entities constantly needs goods and services, in a specific period of time and in cases where the procuring entities, in the not too distant future, is forced to provide certain goods and services, but the exact quantity and nature of the goods or services are unknown to him. Basically, the framework of the agreement is the way in which the terms and conditions of the purchase of goods and services in the future are regulated. The agreement sets out the framework and mechanism on the basis of which the terms and subject of the futures contract can be formed. These include items such as the quantity of goods that must be shipped on time or the work that needs to be done at that time.
Conclusion
The methods set forth in the Iranian Tender Law are much less varied than in the Uncitral Model Law, and all types of tenders in which the procuring entities is required to comply with the prescribed procedures are summarized in only two general headings: "public tender" and "restricted tender". . The lack of variety of tender procedures in Iranian law has led to a smaller range of transactions in the form of systematic methods. The various solutions of the Model Law in the way of financial evaluation of bids have made the winner of the tenders not necessarily the bidder with the lowest bid price. The Model Law has made every effort to ensure that the bidder can identify the actual technical needs of the tender. The result of this action is the bidder's proper understanding of the current market conditions and its effectiveness in technical and financial evaluations, which inevitably leads the bidder to determine the winner with the "most appropriate price".
Despite the development of information technology and advanced means of communication, procuring entities prefer to use traditional methods in disseminate the call and receive the bids, which will increase the costs of tenders and prolong the tenders process; Therefore, it seems that the revision of the law on holding tenders in Iran, especially the determination of new methods of holding tenders and its adaptation to recent international conditions and developments is a necessary step towards the proper provision of public services by public sectors. The existence of diversity in the methods of bidding causes the non-recourse to methods of tender in which the procuring entities has too much authority and freedom of action. Achieving this will play an important role in preventing corruption in public procurement.
