Chapter II - Invitation to Tender - GOVERNMENT PROCUREMENT ACT - 政府採購法(英文版)

GOVERNMENT PROCUREMENT ACT - Chapter II - Invitation to Tender

Article 18

The tendering procedures for procurement include open tendering procedures, selective tendering procedures, and limited tendering procedures.

The term "open tendering procedures" referred to in this Act means the procedures under which a public notice is given to invite all interested suppliers to submit their tenders.

The term "selective tendering procedures" referred to in this Act means the procedures under which a public notice is given to invite all interested suppliers to submit their qualification documents for pre-qualification evaluation basing upon specific qualification requirements and, after such evaluation, the qualified suppliers are invited to tender.

The term "limited tendering procedures" referred to in this Act means the procedures under which, where no public notice is given, two or more suppliers are invited to compete or only one supplier is invited for tendering.

Article 19

An entity shall apply open tendering procedures to all procurement of a value reaching the threshold for publication, except otherwise provided for in Articles 20 and 22 hereof.

Article 20

Under any of the following circumstances, an entity may apply selective tendering procedures to a procurement of a value reaching the threshold for publication:

1. where there is a recurring demand;

2. where the review of tenders takes a long time;

3. where the supplier’s cost for preparation of a tender is high;

4. where the qualification requirements for suppliers are complicated; or

5. where it is a procurement concerning research and development.

Article 21

In order to apply the selective tendering procedures, an entity may conduct qualification evaluation in advance and establish a permanent list of qualified suppliers; provided, however, that the entity shall always allow suppliers to request of qualification evaluation and periodically review and update the permanent list of qualified suppliers.

Where a supplier not on the permanent list of qualified suppliers requests to participate in a particular procurement, the entity shall review the qualification of such supplier provided that the review does not interfere the tendering procedures and can be completed in time. After reviewing, the entity shall invite such supplier to participate in the procurement provided that the supplier is qualified.

The permanent list of qualified suppliers adopted for the procurement in connection with recurring demands shall contain at least six suppliers.

In conducting selective tendering procedures, the entity shall give qualified suppliers an equal opportunity to be invited.

Article 22

Under any of the following circumstances, an entity may apply limited tendering procedures to a procurement of a value reaching the threshold for publication :

1. where there is no tender in response to an open tender, selective tender, or the open procedures referred to in subparagraphs 9 through 11, or where the tenders submitted have been not in conformity with the requirements in the tender, provided, however, that the requirements of the initial tender are not substantially modified in the contract as awarded; 2. where the subject of a procurement is an exclusive right, a sole source product or supply, a work of art, or a secret, which can be supplied only by a particular supplier and no reasonable alternative or substitute exists;

3. in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the entity, the subject of the procurement could not be obtained in time by means of open or selective tendering procedures;

4. for additional deliveries by the original supplier which are intended either as follow-up maintenance, or parts and components replacement for existing supplies or installations, or as extension of existing supplies, services, or installations where a change of supplier would not meet the requirements of compatibility or interchangeability with already existing supplies, services, or installations;

5. where the subject of a procurement is a prototype or a subject first produced or supplied which is developed in the course of research, experiment, or original development;

6. when additional construction work which was not included in the initial contract but which was within the objectives of the original tender documentation has, through unforeseeable circumstances, become necessary, and the entity needs to award contracts for the additional construction work to the contractor carrying out the construction work concerned to achieve the objectives of the initial contract since the separation of the additional construction work from the initial contract would be difficult for technical or economic reasons and cause significant inconvenience to the entity. However, the total value of contracts awarded for the additional construction work may not exceed 50 per cent of the amount of the main contract;

7. for any further procurement whose period, value, or quantity to be expanded is indicated in the tender notice and tender documentation;

8. for property purchased on a commodity market;

9. in the case of contracts for professional services, technical services or information services awarded to the winner selected publicly and objectively;

10. in the case of contracts awarded to the winner of a design contest and the winner selection has been conducted publicly and objectively;

11. in the case of designating an area for its real property procurement in response to the need of business operation provided that the real property procured has been solicited publicly in accordance with its requirements and criteria; 12. where the subjects of a procurement are supplies or services not for profit provided by the physically or mentally disabled, the aborigines, prisoners, philanthropic organizations of the physically or mentally disabled, registered organizations of the aborigines, prisoners works, or philanthropic organizations;

13. in the case of a research and development of science, technology introducing, administration or academic concern entrusted to a leading natural person in a professional area or a leading academic or non-profit organization screened as a winner by open notice;

14. in the case of inviting or entrusting a professional person, institution or organization of culture or art concern to perform or join in culture or art activities provided that they have the characteristics or specialties required or have been screened as a winner by open notice;

15. where a procurement is for the purposes of commercial resale or production of goods or provision of services for resale, and is not appropriate for conducting open or selective tender considering the characteristics or actual needs of the party for resale, manufacturing process, or source of supply; or

16. other circumstances as prescribed by the responsible entity.

The regulations for the selection of suppliers and the formulas for the calculation of service fees under subparagraphs 9 and 10, and the implementing regulations under subparagraphs 11, 13, and 14 of the preceding paragraph shall be prescribed by the responsible entity.

Subparagraphs 13 and 14 of paragraph 1 are not applicable to construction works.

Article 23

The tending procedures to be applied to a procurement of a value not reaching the threshold for publication shall be prescribed by the responsible entity at the central government level; or by the municipal or county (city) government at the local government level. If no other procedures are to be prescribed at the local government level, the procedures prescribed at the central government level shall govern.

Article 24

An entity may, according to the needs of efficiency and quality, conduct the procurement on a turn-key basis.

The term "turn-key" referred to in the preceding paragraph means the procurement of construction work or property by consolidating the procurement of design and work, supply, installation, or maintenance within a certain period, etc. into a contract for tendering.

The regulations for the implementation of turn-key shall be prescribed by the responsible entity.

Article 25

An entity may, depending on the characteristics of an individual procurement, specify in the tender documentation to permit joint tendering by a limited number of suppliers.

The term "joint tendering" referred to in the preceding paragraph means the activity of two or more suppliers participating jointly in tendering, executing jointly the procurement contract after being awarded, and assuming the joint and several liability thereunder, with a view to contracting for construction work or to supplying property or services.

Joint tendering shall only be permitted where it can increase the competition among suppliers or not restrain competition without due cause.

A joint tendering by suppliers of the same line of business shall meet the requirements set forth in each of the subparagraphs of Article 14 of the Fair Trade Act.

Suppliers participating in a joint tendering shall submit a joint tendering agreement along with the tender.

The regulations for joint tendering shall be prescribed by the responsible entity.

Article 26

For a procurement of a value reaching the threshold for publication, the tender documentation shall be prescribed in terms of function or performance. In the event that there are applicable international standards or national standards, the tendering specifications shall be prescribed therewith.

Technical specification laying down the characteristics of the products or services to be procured, such as quality, performance, safety, dimension, symbol, terminology, packaging, marking and labelling, or the processes and methods for their production and assessment procedures prescribed by the entity, shall not be prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to competition.

There shall be no requirement or reference to a particular trademark or trade name, patent, design or type, specific source of origin, producer or supplier, unless there is no sufficiently precise or intelligible way of describing the procurement requirements and provided that words such as “or equivalent” are included in the tender documentation.

Article 27

For open tendering procedures or selective tendering procedures, an entity shall publish a notice of invitation to tender or of qualification evaluation on the Government Procurement Gazette, and also make it available on the information network. The same shall also apply if the notice is amended.

The content of a notice, the number of days for publication, means of publication, and the regulations for publication of the Government Procurement Gazette referred to in the preceding paragraph shall be prescribed by the responsible entity.

Procuring entities shall estimate the number of procurement to be conducted and the value of each procurement. The budget and the estimated value of a procurement may be disclosed in the tender notice.

Article 28

For tendering procedures, an entity shall prescribe a reasonable time-limit for tendering from the date of publishing a notice of invitation to tender or the date of inviting suppliers to tender until the deadline for submission of tender or the deadline for receipt of documents. Standards for the time-limits shall be prescribed by the responsible entity.

Article 29

Tender documentation for open tendering procedures and the documents for qualification evaluation for selective tendering procedures shall be made publicly available for free or for sale on site or via mail, from the date of publication through the deadline for submission of tender or the deadline for receipt of documents. The names of suppliers to whom the tender documentation is provided for free, for sale, or via mail may not be recorded.

The documentation for selective tendering procedures shall explicitly enumerate the reasons of and the need for supplier qualification.

The documentation referred to in paragraph 1 shall include all the information required for the submission of tenders by tenderers.

Article 30

In conducting a procurement, an entity shall provide in the tender documentation that a tenderer shall deposit a bid bond, and that the winning tenderer shall deposit a guarantee bond or, in lieu thereof or in addition thereto, other guarantees, except in the following circumstances:

1. where the procurement is for services, the bid bond or guarantee bond may be waived;

2. where the procurement is for construction work or property of a value not reaching the threshold for publication, the bid bond or guarantee bond may be waived;

3. where there is only one supplier invited for tendering, the bid bond may be waived; or

4. where there is no need or possibility to require a bid bond or guarantee bond by the business practice or attributes of procurement.

The bid bond and guarantee bond shall be deposited by tenderers in the form of cash, financial institution’s promissory notes, financial institution’s checks, certified checks, postal money orders, bearer’s government bonds, certificates of deposit pledged to the procuring entity, irrevocable stand-by letters of credit issued or confirmed by a bank, or bank guarantees or insurance policies under which the bank or insurer shares the liability with the tenderer jointly and severally.

The types, amounts, and ways of deposit, refund, and termination of bid bond, guarantee bond, and other guarantees shall be prescribed by the responsible entity.

Article 31

After award of contract, an entity shall refund or return, without interest, the bid bond deposited by unsuccessful tenderers. The same shall also apply if the tendering procedure is nullified.

The entity may provide in the tender documentation that the bid bond deposited shall not be refunded or returned to the tenderer and the refunded or returned bid bond shall be recovered if any of the following circumstances exists:

1. the tenderer used forged or altered documents to tender;

2. the tenderer borrowed the name or certificate of another to tender;

3. the tenderer assumed the name or certificate of another to tender;

4. the tenderer withdrew its bid before expiration of the bid;

5. after opening of tenders, the tenderer refused to be awarded or refused to execute a contract;

6. after being awarded, the tenderer failed to deposit sufficient guarantee bond or to provide other guarantees sufficiently within a prescribed time-limit;

7. a bid bond has been served as a guarantee bond; or

8. the responsible entity found that there is a violation of laws and regulations which affects the fairness of the procurement.

Article 32

An entity shall prescribe in the tender documentation the causes not to return the guarantee bond and the interest accruing thereon, or the circumstances under which the liability of a guarantor arises, and also stipulate for the said circumstances the liability for breach of contract, the extent to which the guarantee bond can be offset, and the liability of the guarantor.

Article 33

The tender shall be submitted in writing and sealed, by mail or personal delivery, and at the procurement entity or any designated place before the deadline for tendering.

The suppliers may use electronic devices to send the tender referred to in the preceding paragraph; provided that it is explicitly permitted in the tender documentation, and a formal written tender is submitted subsequently before a prescribed deadline.

The entity may provide in the tender documentation that a tenderer is permitted to amend or supplement its tender before opening of tenders as long as the amendment or supplement does not involve the essential parts of the contract.

Article 34

In conducting a procurement, an entity shall keep confidential the content of the tender documentation before publishing the tender notice, except for the need of conducting a public presentation or soliciting reference data or information from suppliers.

In conducting a procurement, an entity shall not disclose, before opening of tenders, the government estimate, the names and number of the suppliers which have obtained the tender documentation or submitted a tender and any other relevant information which may result in competition restraint or unfair competition.

The government estimate shall be kept confidential till award of contract even after opening of tender. The government estimate shall be disclosed after award of contract except for special circumstances. The entity may, however, based on actual needs, disclose the government estimate in the tender documentation.

Unless otherwise required for official use or provided for in the relevant laws and regulations, the tenders submitted by suppliers shall be kept confidential by the entity.

Article 35

An entity may provide in the tender documentation that a supplier is allowed to submit an alternative technology, technical methodology, materials, or equipment to shorten construction period, save expenditure, or increase the efficiency, provided that the original function requirement is not impaired. The implementing regulations shall be prescribed by the responsible entity.

Article 36

In conducting a procurement, an entity may prescribe basic qualifications of tenderers based upon actual needs.

For a special or large procurement which must be performed by suppliers of substantial experience, performance record, manpower, financial capability, equipment, etc., specific qualifications may be prescribed for tenderers.

The qualification of and the qualification documents to be submitted by foreign suppliers may be prescribed separately in the tender documentation based upon actual needs. A notarized or certified Chinese translation shall be attached to the qualification document as above required.

The scope and criteria of the basic qualifications referred to in paragraph 1 and the specific qualifications and the special or large procurement referred to in paragraph 2 hereof shall be prescribed by the responsible entity.

Article 37

An entity shall not restrain competition unduly and shall only prescribe the qualifications essential to contract performance in prescribing the qualifications referred to in the preceding Article.

The tender submitted by a supplier who does not meet the qualification requirements referred to in the preceding Article shall not be accepted, except for financial qualifications that the supplier may submit in lieu a bank guarantee or an insurance policy under which the bank or insurer shares the performance and compensatory liability with the supplier jointly and severally.

Article 38

A political party and a supplier who is affiliated to a political party shall not participate in tendering.

The provisions of “Affiliated Enterprise” prescribed in the Company Act shall apply mutatis mutandis to the aforementioned supplier who is affiliated to a political party.

Article 39

In conducting a procurement, an entity may entrust a supplier, according to this Act, with the project management related to planning, design, supply, or contract performance.

The responsible person or partner of the supplier entrusted with the project management shall not at the same time serve as the responsible person or partner of the supplier handling the planning, design, construction or supply.

The supplier entrusted with the project management and the supplier handling the planning, design, construction or supply shall not be affiliated to each other or affiliated to the same other enterprise.

Article 40

An entity may entrust another entity of professional capacity to conduct its procurement.

For entity which does not possess the requisite professional procuring capacity, the superior entity may order such entity to entrust other entity that has the requisite professional procuring capacity to conduct the procurement for it.

Article 41

Where a supplier has questions about the content of the tender documentation, such questions shall be submitted in writing to the entity before the deadline set forth for such purpose in the tender documentation.

The entity shall give a written reply to the inquiring supplier before the deadline set forth for such purpose in the tender documentation, and may publish such reply if necessary. In case that any amendment or supplement to the content of the tender documentation must be made as a result of such questions, the entity shall publish a notice concerning such amendment or supplement, or notify each supplier in writing for cases of soliciting technical proposals and price proposals under selective tendering procedures and for cases of limited tendering procedures, and may extend the time-limit for tendering if required. The aforementioned requirements shall also apply in the event of amending or supplementing the content of tender documentation on the entity’s own initiative.

Article 42

For open tendering procedures or selective tendering procedures, an entity may apply multi-step opening of tenders with respect to the qualification, technical specification, and price.

In conducting multi-step opening of tenders, an entity shall publish a notice at the first step and may omit publishing invitation notices at the subsequent steps.

Article 43

An entity conducting a procurement may adopt one of the following measures and specify the measures in the tender documentation, except otherwise prohibited by the treaties or agreements to which this nation is a party:

1. To request from a tenderer commitments to purchase goods locally produced to a certain extent, to transfer technology, to have inward investment, to facilitate local export, or to take any other similar measures, and include such commitments in evaluation, provided that they shall not weigh over one third in the evaluation.

2. Where a foreign supplier’s tender is the lowest tender according to the principle of contract award prescribed in Article 52, a domestic supplier may be awarded at such a price by preference.

Article 44

Where a foreign supplier’s tender is the lowest bid according to the principle of contract award prescribed in Article 52, an entity conducting a particular procurement may, except otherwise prohibited by the treaties or agreements to which this nation is a party, award by preference to a local supplier which supplies property with at least 50% value added locally, or supplies construction work or service locally, provided that the awarded price shall not exceed the aforementioned lowest bid by a certain percentage.

The scope, percentage, and implementing regulations for the preference prescribed in the preceding paragraph shall be prescribed by the responsible entity together with the relevant competent entities, provided that no preference shall be given except for policies of employment or industrial development, and there shall be no percentage exceeding 3% or period of preference exceeding five years.