2016.11.18
Luke Hung
The Public Construction Commission promulgated Articles 32, 84 and 111, as amended, of the Enforcement Rules of the Government Procurement Law (hereinafter, the “Enforcement Rules”) via the Gong-Cheng-Qi-10500362770 Directive of November 18, 2016. The amendments have the following three highlights:
1. It is specifically stipulated that for documents not involving essential parts of the contract which are amended before bid opening, in addition to documents which have been indicated as amendable in the original tender documentation, it is additionally stipulated that “supplemented” items are also not essential parts of the contract.
Article 33, Paragraph 3 of the Government Procurement Law specifically provides that in tender documentation the procuring agency may allow suppliers to amend and supplement documents which do not involve essential parts of the contract before bid opening. The amendment and supplement mentioned above cover not only details of existing items in the original tender documentation literally but also include the supplementation of contents. The non-essential parts of the contract under Article 32, as amended, of the Enforcement Rules include: (1) items which have been indicated in the original tender documentation to be amendable or supplementable; (2) optional procurement items not included in price evaluation; (3) matters of referential nature; and (4) other matters that do not affect the establishment of the contract.
2. If the contents of the award involves trade secrets, it is not necessary to publicly announce and communicate the award of contract.
Article 61 of the Government Procurement Law provides that in case of special circumstances, the award of contract is not required to be disclosed in the Government Procurement Gazette and communicated in writing to all bidders. Article 84, as amended, of the Enforcement Rules provides that the outcome of an award may involve matters whose confidentiality is required such as the award amount and perhaps details of the award such as the subject matters of the award as well as the party the contract is awarded to. Therefore, the special circumstances where the “amount of the award” involves trade secrets in the original requirement are modified so that the “contents of the award” falls under a special circumstance where it does not have to be disclosed and communicated only when it involves trade secrets, subject to the approval of the head of the procuring agency or his/her authorized representatives, so as to meet practical needs.
3. The calculation of the percentage by which the performance has fallen behind schedule is amended.
With respect to the calculation of the percentage by which performance has fallen behind schedule, Article 111 of the original Enforcement Rules of the Government Procurement Law bases the calculation on the number of days behind schedule, and a progress percentage is typically set for construction procurement to accommodate practical needs. Article 111, Paragraph 2, Subparagraph 1, as amended, of the Enforcement Rules separately provides for procurement projects in which the method for calculating the performance progress is set by specifically stipulating that the percentage difference between the actual progress as of a given day and the expected progress approved by the procuring agency may be used for calculation. If the procuring agency does not stipulate the method for calculating performance progress, the calculation shall be conducted based on the number of days overdue. Since relevant measures should be taken to deal with a contractor’s failure to completely perform within the term of performance, Article 111, Paragraph 2, Subparagraph 2, as amended, of the Enforcement Rules additionally provides that if performance is not completed within the term of performance, the percentage of the performance behind schedule shall be calculated based on the number of days overdue, namely, the number of overdue days divided by the number of performance days under the contract.