International Construction Law Review
TENDER PROCEDURES BEST PRACTICES: AN ANALYSIS WITH SOME COMMENTS FROM COUNSEL TO A EUROPE-BASED DREDGING CONTRACTOR
L IMBRECHTS
I. SCOPE
1. Tender procedures
A works contract is a contract for pecuniary interest concluded in writing between a client and a contractor for the performance of a certain type of works. A works contract can originate from different procurement1
methods: either a tender or bid2
procedure, or a direct purchase.
This article focuses on tender procedures—bearing in mind that there are an infinite number of variations of such procurement procedures.
Construction projects are traditionally procured by means of works contracts. However, this is not always the case. It may be observed that projects are procured by any contractual means, including through agency agreements, delegated project contracting,3
concession agreements,4
charterparties, lease, rental or hire-purchase (with or without an option to buy),5
supply agreements, etc. Even opening up the capital of a public company to a private partner could have as an effect the award of a public services concession.6
According to Article II.2 of the GATT Agreement on Government Procurement, such alternative contracts should also be the subject of tender procedures when the principal is a public entity.
1 UNCITRAL Model Law on Procurement of Goods, Construction and Services, Art 2: procurement means the acquisition by any means of goods, construction or services.
2 For purposes of this article, the words “tender” and “bid” shall have the same meaning.
3 See ECJ Case C–264/03, Commission
v. France
, para. 55.
4 EBRD, EBRD Financing of Private Parties
, p. 2; a concession agreement means an agreement between a public authority and the entity or entities selected by that public authority to carry out an infrastructure project that involves obligations on the part of the private sector party to undertake physical construction, repair or expansion works in the infrastructure concerned with a view to subsequent private operation.
5 E.g., 1992, Mexico, Dragado de mantenimiento para los puertos de Ensenada, Guaymas, Mazatlãn, Manzanillo, Lázaro Cárdenas, Sálina Cruz y Puerto Madero: indirectly, in consideration of his performance of the works, property in certain dredging vessels was transferred by Puertos Mexicanos to the contractor.
6 See ECJ Case C–410/04, Anav
v. Comune di Bari
, para. 30.
[2007
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