On May 18,2021, the Public Construction Commission issued the explanatory decree Gong-Cheng-Chi-Zi No. 1100100299 to explain how a government entity in conducting a procurement shall handle when the entity unable to open the tenders or award the contract in accordance with the timeframe set forth in
1. The entity may, pursuant to Subparagraphs 6 or 7 of Paragraph 1 of Article 48 of the Government Procurement Act, postpone the opening of tenders or awarding the contract, not opening the tenders or not awarding the contract (the procurement is nullified), or postpone the decision to open the tenders or award the contract, depending on the circumstances of individual cases and practical needs.
2. However, it should be noted that the entity shall not violate the provisions in Paragraphs 1 and 2 of Article 6 of the Government Procurement Act. The entity shall not accord differential treatment to suppliers without due cause and shall make an appropriate procurement decision based on the consideration of public interest, procurement efficiency or professional judgment, to the extent not contrary to the provisions of the Government Procurement Act.
3. If an entity decides not to open the tenders due to the pandemic, it shall notify all tenderers in accordance with Article 18 of the Enforcement Rules of the Government Procurement Act and explain the ways of subsequent handling. According to this article, unless otherwise provided for in the Government Procurement Act, a notification provided by an entity may be in oral, by facsimile transmission, or by other means of electronic data transmission.
4. If an entity decides to postpone or suspend the procedure of tender opening or awarding the contract, it shall pay attention to the effective date of the tender documentation. If the tender documentation is about to expire and need to extend the effective date, the entity shall contact the suppliers for their consent to extend. A supplier who does not agree to extend the effective date shall not be awarded of contract.
5. For matters related to confidentiality, please pay attention to Article 34 of the Government Procurement Act and Article 6 of the Regulations Governing the Organization of Procurement Evaluation Committee. That is, one should pay attention to provisions on confidentiality related to tender documentation, government estimate, the names and number of the suppliers which have obtained the tender documentation or submitted a tender, and the members of the procurement evaluation committee.
6. An entity may also, pursuant to Paragraph 2 of Article 6 of the Government Procurement Act, decide to open a tender through video conferencing depending on the circumstances of individual cases and practical needs; however, pursuant to Paragraph 2 of Article 48 of the Enforcement Rules of the Government Procurement Act, relevant personnel of the tenderers shall be allowed to be present at the tender opening. In addition, if there is a need to grant priority in price reduction or price reduction and comparison, in order to ensure fair competition and to avoid dispute, the tender opening shall, in principle, be held in person, and may be postponed in accordance with the information above.
(Author: Sherry Wu, Esq.)
Reference: Public Construction Commission’s interpretive rule Gong-Cheng-Chi-Zi No. 1100100299 dated May 18,2021
