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Structuring and Drafting the Tender and Contract

58. Structuring and Drafting the Request for Proposals. Defining Proposal Requirements and Evaluation Criteria

The RFP governs the bid requirements (what documents must be presented and how, which is developed further in section 8.1 below), the evaluation (rules and methods to evaluate and select – section 8.2), and other relevant matters such as protection for the government (for example, the right to cancel or to negotiate). It sets out the tender process in detail, the process of issuing questions, the conducting of one-on-one meetings during interactions (in dialogue and interactive processes), the time limit to submit a proposal, the validity period of the proposal, prerequisite conditions for contract signature (and for financial close in projects where financial close is soon after commercial close), and so on. Much of the content of the RFP is delivered in the form of annexes to the body of the RFP. The principal annex is the contract. See boxes 5.22 and 5.23 below for examples of the structure of contents in some RFPs.

As explained in the introduction and developed extensively in appendix 4A, when a pre-qualification or a short listing has taken place, the RFP is a separate document issued to the pre-qualified or short-listed bidders. In a two-stage process with dialogue, the RFP may be referred to differently (for example, as a descriptive document) and the definitive selection criteria to nominate the successful bidder or preferred bidder may be subject to refinement when the dialogue concludes and an invitation to propose is issued. Section 8.3 explains some particularities of competitive dialogue and other interactive processes.

Transparency and objectivity are essential when setting the evaluation rules. The legal framework usually sets some general rules that define the boundaries of the criteria and method of evaluation.

Evaluation criteria have a significant impact on the market´s appetite or willingness to submit an offer. There is debate about the relevance and role of technical criteria. Some practitioners and interested parties advocate for full objectivity (that is, only criteria not subject to qualitative evaluation should be considered, fundamentally price), while others advocate the inclusion of some scoring and weighting based on quality. This is discussed in section 8.1.

Transparency should be an essential driver when structuring and defining an evaluation methodology that includes qualitative consideration of technical and quality factors.

Some jurisdictions implement the bid and evaluation/awarding process by considering more than one offer (progressive offers) with the aim of having a final offer only based on price. The final offer is based on the same project design and specifications. In this context, it can be argued that this converts the procurement into a transaction that is too long and costly.

BOX 5.22: An Example of RFP Structure of Contents (Australia) [72]

Volume 1

General Information and Instructions to Bidders

Volume 2

Commercial Framework Summary

Volume 3

Evaluation Criteria and Proposal Schedules

Volume 4

Design Brief

  • Part A: Functional Brief
  • Part B: Architectural Principles and Specifications
  • Part C: Technical Specification
  • Part D: Equipment List
  • Volume 5

    Draft Contractual Documents

  • Draft Project Agreement
  • Service Specifications
  • Schedules, including the Payment Mechanism and Direct Deeds
  • Annexures
  • Volume 6

    Other Information

    BOX 5.23: An Example of Contents of a RFP (South Africa)[73]

    1. General information to bidders

    i) Explanation of project.

    ii) External framework.

    iii) Project framework.

    iv) Project assets.

    v) Procurement framework and timelines.

    vi) Instructions to bidders.

    vii) Requirements related to third parties.

    viii) Data room.

    ix) Environmental impact assessment (EIA) data.

    x) Bidders’ due diligence.

    xi) Quality management system.

    xii) Important definitions.

    2. Essential minimum requirements

    3. Service specifications

    i) Expressed as outputs.

    ii) Specific outputs not directly related to the overall service.

    iii) Input specifications.

    iv) Conditions-of-asset-specifications.

    4. Standard specifications

    5. Payment mechanism and penalty regime

    6. Legal requirements and draft PPP agreement

    [72] Infrastructure
    Australia (2011), National PPP Guidelines Volume 2: Practitioners Guide.
    http://www.infrastructureaustralia.gov.au/public_private/files/Vol_2_Pra...

    [73] From National
    Treasury PPP Manual
    , South Africa (2004).
    http://www.ppp.gov.za/Legal%20Aspects/PPP%20Manual/Module%2001.pdf

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