工程招投标外文翻译文献
工程招投标外文翻译--不平衡投标的检测和预防(节选)
1900单词，10200英文字符，3150汉字出处：Chotibhongs D A R. Detection and prevention of unbalanced bids[J]. Construction Management & Economics, 2009, 27(8):721-732.Detection and prevention of unbalanced bidsDAVIDARDITI*andRANONCHOTIBHONGSUnbalanced bidding is a serious problem for the construction owner because it may increase the cost of construction The most common way to mathematically unbalance a bid is frontloading where a bidder overstates the unit price of line items scheduled to be performed early in the project and understates the unit price of line items performed later. A bidder can also overstate the unit price of a line item whose quantity was somehow underrated by the engineer. If the owner proves that a mathematically unbalanced bid costs more to perform, the bid is said to be materially unbalanced, in which case the owner can reject the bid. A model is presented that formalizes and automates the process of detecting mathematically and materially unbalanced bids by comparing line item prices with the engineer’s estimates and the average prices offered by the bidders. This model allows owners to detect and reject unbalanced bids, and deters bidders from unbalancing their bid.Keywords: Bids, mathematical models, financial management, construction costs, optimization. IntroductionUnbalanced bids constitute a serious problem for construction owners. In competitive bidding, awarding a contract to an unbalanced bid may cause the owner’s overall project cost to get higher. In some cases, it generates contentious change orders (Manzo, 1997). The owner has the right to reject unbalanced bids, but it is hard to detect unbalancing. While Stark’s (1968, 1972, 1974) linear programming model of unbalancing bids in highway construction contracts is relatively easy t o detect by the owner, Nassar’s (2004) research aims to unbalance a bid and not be caught in the process. Cattell et al. (2007) summarize methods of unbalancing bids and argue that a client is given full information of a contractor’s item pricing and that the client is given the choice to select among the contractor’s competitors, implying that there are no ethical implications of unbalancing a bid. In other words, if an owner suffers the high cost of an unbalanced bid, it is rather the owner’s fault for se lecting the contractor who unbalanced the bid, not the fault of contractor who unbalanced the bid. However, according to a survey of 270 owners, architects, engineers, construction managers, general contractors and subcontractors about ethical practices in the construction industry conducted by the Fails Management Institute (FMI) for the Construction Management Association of America (CMAA), unbalancing a bid was accepted as unethical by 84% of the respondents (Doran, 2004). Also, Choi (2004) considers un balancing a bid to ‘border on unethical’ (p. 206) and New York City’s Procurement Ethics Guide (New York City, 2002) specifically asks contractors not to engage in unbalanced bidding. But very few researchers have explored the ways of preventing unbalanced bids. For example, Wang’s (2004) research aimed to detect the out-of-range unit prices submitted by the lowest bidder, but did not attempt to evaluate the effects of those out-of-range unit prices on future total cost.After a description of the forms and implications of unbalancing bids, a review is presentedof current practices by some state and federal agencies in the US in relation to detecting unbalanced bids. A model is then proposed that formalizes the detection of unbalanced bids andthat automates the process, allowing the owner to reject unbalanced bids with confidence, hence deterring bidders from unbalancing their bids.Unbalanced biddingSince unit price contracts are awarded on the basis of low bids, it is difficult to challenge the low bidders on the validity of their unit prices except for obvious unbalanced bidding. A mathematically unbalanced bid is a bid that contains some line items’ unit price determined to be significantly overstated or under- stated. This can be determined by comparing the unit price of the line item with the engineer’s estimate, the unit prices quoted by the other bidders, or other historical data of costs. According to the Federal Highway Administration (FHWA) guidelines reported b y Heinz (1988), the meaning of a mathematically unbalanced bid is ‘one containing lump sum or unit bid items which do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder’s anticipated profit, overhead costs, and other indirect costs’.If a mathematically unbalanced bid is detected, the bid has to be further analysed to determine whether it is also materially unbalanced. A materially unbalanced bid is a mathematically unbalanced bid that may cost more money to the owner. A ccording to Heinz’s (1988) interpretation of FHWA guidelines, the materially unbalanced bid is defined as a bid which generates ‘a reasonable doubt that award to the bidder submitting a mathematically unbalanced bid will result in the lowest ultimate cost to the Government’.Frontloading is the most common way to unbalance a bid. Frontloading refers to increasing unit prices on items to be completed in the early period of the project and decreasing the unit prices on items that are to be completed in the later stages. The main purpose of frontloading on the part of the contractor is to relieve the financial problems that contractors face early in the project such as the initial expenses of mobilization and setting up. But if a contractor is set to be paid out in the early stages of the project, the owner ends up paying more when the time value of money is taken into consideration (McGreevy, 2002).Unbalanced bid analysisIn 2004, the American Association of State Highway and Transportation Officials (AASHTO) initiated a survey of unbalanced bids (AASHTO, 2004). Twenty- seven state departments of transportation (DOT) responded to this survey. Many state DOTs (such as Illinois, Kansas, Massachusetts and Connecticut) discovered unbalanced bids without having in place any formal procedure to detect such occurrences. Some states quoted their standard contracts that specify the consequences of unbalancing bids, or submitting irregular proposals. Seven state DOTs, including California, Florida, North Carolina, Nevada, Tennessee, Texas and Wisconsin provided formal procedures for evaluating bids to detect unbalanced bids. The procedures used by some of these DOTs do not publicly specify the specific parameter and the acceptable ranges used in the evaluation, such as the acceptable difference between a line item’s cost and the engineer’s estimate, or the acceptable difference between a line item’s cost and the average cost of that l ine item. However, as can be seen below, bidders in some states do have access to these parameters and the acceptable ranges.Detection and prevention of unbalanced bidsBecause the extra cost of an unbalanced bid cannot be justified by the owner, and because owners have the right to legally reject unbalanced bids, owners should be able to stop and prevent unbalanced bids. A bidder’s line item prices can be compared to the engineer’s estimates to see ifthere are significant differences, an indication that the bid is potentially unbalanced. One can also compare a bidder’s line item prices to the aver- age line item prices of all bidders. Two separate models are therefore proposed and are described below. Since unbalancing can take the form of frontloading or adjusting the unit price of a line item whose quantity was understated by the engineer, both models are designed to deal with these situations. Both models are completely automated using MS Excel.Discussion of the proposed modelsThe two models proposed here compare a bidder’s line item prices (1) to the engineer’s estimates; or (2) to the average line item prices of all bidders. Neither model is perfect as the engineer’s estimates and the average line item prices may not constitute exact measures of the true value of the line item s. Indeed, the engineer’s esti mate may at times be quite inaccurate (Beeston, 1999), and average line item prices may be skewed by several unbalanced bids in the same batch. It should also be noted that the individual line item prices proposed by the bidders are also estimates and as such add to the uncertainty inherent in the process. It follows that both models are approximate but may still yield useful information if the models’ parameters are set intelligently by the analyst. In the first model, if the owner is confident that the engineer’s estimates are accurate, the owner may look for unbalanced bids by looking into line items whose price s display a relatively small variance from the engineer’s estimate. On the other hand, if the owner has doubts about the accuracy of the engineer’s estimate, then the search for an unbalanced bid is to be conducted by looking for a relatively larger varian ce from the engineer’s estimate. The second model where a bidder’s line item prices are compared to the average line item prices is more stable than the preceding alternative because this model makes use of the average of all bids, resulting in the dissipation of any abnormalities caused by occasional unbalanced bids in the batch. But this model relies on the analyst’s input about what proportion of the project constitutes the ‘early’ part of the schedule. This information is necessary to detect frontloading in the ‘early’ portion of the project. The analyst needs also to input a discount rate, which may be difficult to do with certainty.It seems therefore that the major limitation of the proposed system lies in the absence of clear guidelines relating to the value of the four parameters one needs to specify to run the program, namely: (1) the accepted difference from the engineer’s estimate; (2) the accepted difference from the average line item prices;(3) the proportion of the project that describes ‘early’ schedule; and (4) the discount rate. On the other hand, one should note that the ability to input these parameters is an advantage in that it allows an analyst to conduct what-if analyses, particularly with respect to the last two parameters.ConclusionUnbalanced bidding is a serious problem for the construction owner. Unbalancing a bid is considered by many as unethical. Unbalanced bids can be rejected if caught by the owner. If awarded, the cost of these contracts to the owner is unjustifiably increased. Despite these facts, most researchers appear to be interested in the optimization of a contractor’s cash flow by unbalancing a bid and how not to be caught in the process (e.g. Nassar, 2004; Cattell et al., 2007). Detecting an unbalanced bid is normally difficult and has become even more difficult thanks to the efforts of these researchers. Given the current literature that aggressively tries to teach contractors the various meth- ods of unbalancing a bid without getting caught, it is time to provide a sensible tool that allows owners to detect and reject unbalanced bids.FHWA and a number of state DOTs in the US have spelled out general principles to protect their interests with respect to unbalanced bids. Many DOTs routinely but informally check bids for unbalancing using different processes. Some DOTs such as the ones in Florida, Texas, North Carolina and Wisconsin have a formal process in place but each uses different approaches and different assumptions. The proposed model represents a marked improvement on existing practice because it is an attempt to develop a thorough methodology that systematically covers all aspects of unbalancing a bid. The proposed model is fully auto- mated. It institutionalizes the process of detecting unbalanced bids and is expected to deter bidders from unbalancing their bids.The proposed model can be improved by further research into developing guidelines for the acceptable difference between the engineer’s estimate and the estimate proposed by the bidder for any line item, and the acceptable difference between the average of the line item prices and the prices proposed by a bidder. It is also recommended that the owner keep bid price and final cost data in a database for future reference in tracking over-run and under-run trends in every bid item.不平衡投标的检测和预防摘要：不平衡投标是建筑行业最常见的问题之一，因为投标人高估了项目前期单价，低估了项目执行后的单价，可能会增加施工成本。
招投标外文文献.doc
外文文献：The Significance of the Tendering Contract on The Opportunities for Clients to Encourage Contractor-led Innovation ABSTRACTDuring the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantage of these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation and the availability of cheaper methods of construction than have been contemplated by the tendering authority.However recent developments in common law have raised doubts about the ability of owners to seek alternative tenders without placing themselves at risk of litigation. This common law has recognised the existence of the so-called ‘tendering contract’ or ‘process contract’. Since the tendering process is inherently price competitive, the application of the tendering contract concept is likely to severely inhibit the opportunity for alternative tenders.This paper is primarily based on the literature review. The aim of this paper is to highlight the problems with the competitive tendering process in relation to contractor-led innovation and explore ways in which owners can develop procurement procedures that will allow and encourage innovation from contractors.PROBLEMS WITH COMPETITIVE TENDERINGThe traditional tendering process was designed to produce direct price competition for a specified product. Evaluation of tenders could only be confined to price alone by creating a system in which price is the only criterion that could vary while design and technical content are the same for each competing tender. Albeit the contract period is stipulated as constant, owners often encourage tenderers to submit a second tender which offers an alternative price for an alternative time performance. Tenderers would achieve this by reworking their tender programme, finding the optimum contract period, and adjusting the tender price accordingly. Each tenderer would compete to find novel ways of organising the work method that would allow not only the minimum construction cost but also maximum profit margin within the price proposed. However,this process is always confined by the boundary of the owner’s design. In this way, the successful tenderer’s scope to be innovative is very limited .When evaluating alternative tenders, the owner is confronted with the duty of equal treatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which is not a conforming tender in terms of the original invitation, how can all tenderers be treated equally and fairly? Any individualism exhibited on the part of a tenderer outside the permitted scope of price and time must disqualify that tender from the owner’s consideration because it does not conform to the invitation. Therefore, the traditional tendering process prevents, restricts or even discourages contractor-led innovation .Songer and Ibbs believed that the use of design-and-build procurement method would encourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering processdiffer from that of the traditional procurement method in that it must be capable of evaluating design as well as production capability, time and price, all on a competitive basis. This is not easy. Competitive design is not easy to evaluate in the context of tendering. The objectivity appears to be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lost, unless very clear criteria are established at the outset for evaluation of competing designs. This also means to say that the tender process rules must be designed as such that itencourages contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The limits must be such that the project delivered is still the project for which tenders were invited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agencies is how to allow for innovation while maintaining appropriate control of certain design aspects of the project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge to public sector agencies.THE ‘TENDERING CONTRACT’Developments in the law relating to tenders traditionally treated an ‘invitation to tender’ or a ‘request for tenders’ as no more than an invitation to treat, an indication that the owner was ready to do business – something prior to and short of an offer . In other words, an invitation to treat was not an offer to make a contract with any person who might act on the invitation, butmerely a first step in negotiation which may, or may not, lead to a contract. When each tenderer submitted its tender in the prescribed form, it amounted to an offer which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractual obligation arose between the owner and the successful tenderer .Recently, the modern view turns this theory upside down. There exists what is known as the ‘two contract’ analysis involving the emergence of the ‘tendering contract’. The invitation to tender is now in some circumstances to be treated as an offer to make a contract which a tenderer accepts when it submits a conforming tender. The owner makes an offer to each tenderer which might be worded as follows:“If you submit a tender in response to my invitation and which complies with the stipulations made, I will consider that tender …” .There is no obligation at all at this point on the side of the tenderers, but if a conforming tender is submitted, a contract is formed between owner and tenderer which has been described here as the ‘tendering contract’ or described elsewhere as a ‘pre-award contract’or ‘process contract’. This contract is quite distinct from the contract eventually entered into with the successful tenderer, called the main contract. Obligations of a contractual nature therefore arise between the owner and each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each tender also imposes obligations on the tenderer. Once the tender has been submitted to the owner, meaning the tender or first contract has been formed, the owner becomes obliged to each tenderer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders. By the same token, tenderers become obliged to not simply withdraw their tender, the tender will remain open for a stipulated period of time. Under the ‘two contract’ principle,a tenderer who makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender in response to an invitation can create contractual obligations for both parties. In the case: Ontario v. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract was brought into being automatically upon the submission of a responsive tender by each tenderer. Having established that a ‘tendering contract’ exists, it is then important to constitute what the terms are of that contract. The terms are derived from the tender conditions, the ‘tendercode’, andother relevant material such as legislation and correspondence . All or some of the provisions of the ‘tender code’ may be incorporated in the ‘tendering contract’ by reference and/or by implication. A terms may be implied to the effect that the owner must consider all conforming tenders, must treat all tenderers equally and fairly, and must award only a contract for the project tendered for.GUIDANCE ON CONTRACTOR SELECTIONThe Significance of Probity in TenderingProbity is defined in various dict ionaries as “moral excellence, integrity, uprightness, conscientiousness, honesty, sincerity”. In the tendering context, it generally depends upon confidentiality of documentation and decision making, objective and consistent assessment at each phase of decision making and resolution of any possible, perceived or actual conflicts of interest. Thus, one of the primary objectives of probity in tendering is to maintain the integrity of the bidding process. The Canadian court in the Ron Engineering case referred to this as the obligation of owners to treat all tenderers equally and fairly.Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors and members of the public can have confidence in the outcomes. If integrity and impartiality are not evident, tenderers may be reluctant to make a bid, the formulation of which requires significant amount of time and resources. In that case, competition is likely to be lessened and the best value for money may not be achieved.In principle, recent development in common law attempts to maintain some integrity in the tendering process by recognising the existence of the parties’ obligations to one another so that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one or more tenderers to produce satisfactory deal. As mentioned previously, the contractual obligation between the parties is referred to as the ‘tendering contract’. Breach of the ‘tendering contract’entitles the injured party to the normal remedy of damages. Probity in the tendering process ensures that fair and equal treatment to all tenderers is put in place and maintained so that no term of the ‘tendering contract’ is likely to be breached. Accord ing to Johnstone, common probity objectives are:·to ensure all respondents are assessed objectively and consistently· to ensure integrity in all evaluation and selection process· to ensure all confidential information is secured· to address any potential, or actual conflicts of interest· to promote defensibility of process.Guidelines to Avoid Breach of the ‘Tendering Contract’ in the Competitive Bidding Process On conclusion, Craig suggests some guidelines on how alternative tenders and tenders involving design proposals might be taken legitimately by the owner so as to avoid or minimise the likelihood of the clients placing themselves at risk of litigation due to a breach of the contractual obligations arising out of the ‘tendering contract’. They are specified as follows.· Under the ‘tendering contract’ the owner is obliged to treat all tenders equally and fairly. All conforming tenders must therefore be considered.·An effective ‘privilege clause’ which says something like “any tender will notnecessarily be accepted” will normally prevent an owner becoming obliged to accept any tender. All tenders may therefore be properly rejected. On the other hand, a term to the effect that a contract will be awarded to the lowest, or highest, bidder is enforceable. This implies that an owner cannot use the ‘privilege clause’ as an excuse for deviating from the contract evaluation and award criteria set down in the tender invitation or documents. Or, put it another way, the‘privilege clause’ does not allow the owner to: (i) choose comparatively among the tenderers based on criteria that has not been disclosed to the tenderers; or (ii) to award to another tenderer or another person something other than the main contract.· It would be a breach of the tendering obligation of equal and fair treatment for the owner to negotiate with one tenderer on terms which do not apply to other tenderers.·All tenderers are entitled to know the basis on which tenders will be evaluated and on which acontract-award decision will be made.·If innovation from tenderers is required, an owner must expressly create the right for a tenderer to submit an alternative tender. If the right then exists, the owner is obliged to consider such proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.·Tender conditions must define the scope of alternative tenders. That scope must be not too tight so as to restrict innovation, but not too wide so as to result in a proposal for a scheme quite different to the one originally tendered for.·Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers.·It is a breach of the ‘tendering contract’ for the owner to award a contract to a tenderer who offers something different to what was asked for in the invitation to tender.Furthermore, Johnstone adds· Invitation document should be accessible to all potential bidders. They should be expressed in readily understood terms.·It is easier to formulate appropriate selection criteria when the project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulate bids appropriately.· A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation.·Often assessment of bids will involve a number of assessment panels. In this situation, there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the evaluation period. SUMMARYThis paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and the scope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t.Guidance has been outlined of how to reduce the risk of owner falling into a breach of the ‘tendering contract’ in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.。
招投标外文文献
外文文献：The Significance of the Tendering Contract on The Opportunities for Clients to Encourage Contractor-led Innovation ABSTRACTDuring the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantage of these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation and the availability of cheaper methods of construction than have been contemplated by the tendering authority.However recent developments in common law have raised doubts about the ability of owners to seek alternative tenders without placing themselves at risk of litigation. This common law has recognised the existence of the so-called ‘tendering contract’ or ‘process contract’. Since the tendering process is inherently price competitive, the application of the tendering contract concept is likely to severely inhibit the opportunity for alternative tenders.This paper is primarily based on the literature review. The aim of this paper is to highlight the problems with the competitive tendering process in relation to contractor-led innovation and explore ways in which owners can develop procurement procedures that will allow and encourage innovation from contractors.PROBLEMS WITH COMPETITIVE TENDERINGThe traditional tendering process was designed to produce direct price competition for a specified product. Evaluation of tenders could only be confined to price alone by creating a system in which price is the only criterion that could vary while design and technical content are the same for each competing tender. Albeit the contract period is stipulated as constant, owners often encourage tenderers to submit a second tender which offers an alternative price for an alternative time performance. Tenderers would achieve this by reworking their tender programme, finding the optimum contract period, and adjusting the tender price accordingly. Each tenderer would compete to find novel ways of organising the work method that would allow not only the minimum construction cost but also maximum profit margin within the priceproposed. However, this process is always confined by the boundary of the owner’s design. In this way, the successful tenderer’s scope to be innovative is very limited .When evaluating alternative tenders, the owner is confronted with the duty of equal treatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which is not a conforming tender in terms of the original invitation, how can all tenderers be treated equally and fairly Any individualism exhibited on the part of a tenderer outside the permitted scope of price and time must disqualify that tender from the owner’s consideration because it does not conform to the invitation. Therefore, the traditional tendering process prevents, restricts or even discourages contractor-led innovation .Songer and Ibbs believed that the use of design-and-build procurement method would encourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering processdiffer from that of the traditional procurement method in that it must be capable of evaluating design as well as production capability, time and price, all on a competitive basis. This is not easy. Competitive design is not easy to evaluate in the context of tendering. The objectivity appears to be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lost, unless very clear criteria are established at the outset for evaluation of competing designs. This also means to say that the tender process rules must be designed as such that itencourages contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The limits must be such that the project delivered is still the project for which tenders were invited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agencies is how to allow for innovation while maintaining appropriate control of certain design aspects of the project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge to public sector agencies.THE ‘TENDERING CONTRACT’Developments i n the law relating to tenders traditionally treated an ‘invitation to tender’ or a ‘request for tenders’ as no more than an invitation to treat, an indication that the owner was ready to do business –something prior to and short of an offer . In other words, an invitation to treat was not an offer to make a contract with any person who might act on theinvitation, but merely a first step in negotiation which may, or may not, lead to a contract. When each tenderer submitted its tender in the prescribed form, it amounted to an offer which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractual obligation arose between the owner and the successful tenderer .Recently, the modern view turns this theory upside down. There exists what is known as the ‘two contract’ analysis involving the emergence of the ‘tendering contract’. The invitation to tender is now in some circumstances to be treated as an offer to make a contract which a tenderer accepts when it submits a conforming tender. The owner makes an offer to each tenderer which might be worded as follows:“If you submit a tender in response to my invitation and which complies with the stipulations made, I will consider that tender …” .There is no obligation at all at this point on the side of the tenderers, but if a conforming tender is submitted, a contract is formed between owner and tenderer which has been described here as the ‘tendering contract’ or described elsewhere as a ‘pre-award contract’ or ‘process contract’. This contract is quite distinct from the contract eventually entered into with the successful tenderer, called the main contract. Obligations of a contractual nature therefore arise between the owner and each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each tender also imposes obligations on the tenderer. Once the tender has been submitted to the owner, meaning the tender or first contract has been formed, the owner becomes obliged to each tenderer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders. By the same token, tenderers become obliged to not simply withdraw their tender, the tender will remain open for a stipulated period of time. Under the ‘two contract’ principle,a tenderer who makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender in response to an invitation can create contractual obligations for both parties. In the case: Ontario v. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract was brought into being automatically upon the submission of a responsive tender by each tenderer. Having established that a ‘tendering contract’ exists, it is then important to constitute what theterms are of that contract. The terms are derived from the tender conditions, the ‘tendercode’, and other relevant material such as legislation and correspondence . All or some of the provisions of the ‘tender code’ may be incorporated in the ‘tendering contract’ by reference and/or by implication. A terms may be implied to the effect that the owner must consider all conforming tenders, must treat all tenderers equally and fairly, and must award only a contract for the project tendered for.GUIDANCE ON CONTRACTOR SELECTIONThe Significance of Probity in TenderingProbity is defined in various dicti onaries as “moral excellence, integrity, uprightness, conscientiousness, honesty, sincerity”. In the tendering context, it generally depends upon confidentiality of documentation and decision making, objective and consistent assessment at each phase of decision making and resolution of any possible, perceived or actual conflicts of interest. Thus, one of the primary objectives of probity in tendering is to maintain the integrity of the bidding process. The Canadian court in the Ron Engineering case referred to this as the obligation of owners to treat all tenderers equally and fairly.Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors and members of the public can have confidence in the outcomes. If integrity and impartiality are not evident, tenderers may be reluctant to make a bid, the formulation of which requires significant amount of time and resources. In that case, competition is likely to be lessened and the best value for money may not be achieved.In principle, recent development in common law attempts to maintain some integrity in the tendering process by recognising the existence of the parties’ obligations to one another so that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one or more tenderers to produce satisfactory deal. As mentioned previously, the contractual obligation between the parties is referred to as the ‘tendering contract’. Breach of the ‘tendering contract’ entitles the injured party to the normal remedy of damages. Probity in the tendering process ensures that fair and equal treatment to all tenderers is put in place and maintained so that no term of the ‘tendering contract’ is likely to be breached. Accordi ng to Johnstone, common probity objectives are:·to ensure all respondents are assessed objectively and consistently· to ensure integrity in all evaluation and selection process· to ensure all confidential information is secured· to address any potential, or actual conflicts of interest· to promote defensibility of process.Guidelines to Avoid Breach of the ‘Tendering Contract’ in the Competitive Bidding Process On conclusion, Craig suggests some guidelines on how alternative tenders and tenders involving design proposals might be taken legitimately by the owner so as to avoid or minimise the likelihood of the clients placing themselves at risk of litigation due to a breach of the contractual obligations arising out of the ‘tendering contract’. They are specified as follows.· Under the ‘tendering contract’ the owner is obliged to treat all tenders equally and fairly. All conforming tenders must therefore be considered.·An effective ‘privilege clause’ which says something like “any tender will notnecessarily be accepted” will normally prevent an owner becoming obliged to accept any tender. All tenders may therefore be properly rejected. On the other hand, a term to the effect that a contract will be awarded to the lowest, or highest, bidder is enforceable. This implies that an owner cannot use the ‘privilege clause’ as an excuse for deviating from the contract evaluation and award criteria set down in the tender invitation or documents. Or, put it another way, the‘privi lege clause’ does not allow the owner to: (i) choose comparatively among the tenderers based on criteria that has not been disclosed to the tenderers; or (ii) to award to another tenderer or another person something other than the main contract.· It would be a breach of the tendering obligation of equal and fair treatment for the owner to negotiate with one tenderer on terms which do not apply to other tenderers.·All tenderers are entitled to know the basis on which tenders will be evaluated and on which acontract-award decision will be made.·If innovation from tenderers is required, an owner must expressly create the right for a tenderer to submit an alternative tender. If the right then exists, the owner is obliged to consider such proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.·Tender conditions must define the scope of alternative tenders. That scope must be not too tight so as to restrict innovation, but not too wide so as to result in a proposal for a schemequite different to the one originally tendered for.·Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers.·It is a breach of the ‘tendering contract’ for the owner to award a contract to a tenderer who offers something different to what was asked for in the invitation to tender.Furthermore, Johnstone adds·Invitation document should be accessible to all potential bidders. They should be expressed in readily understood terms.· It is easier to formulate appropriate selection criteria when the project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulate bids appropriately.· A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation.·Often assessment of bids will involve a number of assessment panels. In this situation, there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the evaluation period. SUMMARYThis paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and the scope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t.Guidance has been outlined of how to reduce the risk of owner falling into a breach of the ‘tendering contract’ in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.。
招投标外文文献(2)
外文文献：The Significance of the Tendering Contract on The Opportunitiesfor Clients to Encourage Contractor-led InnovationABSTRACTDuring the tendering process for most major construction contracts there is the opportunityfor bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantageof these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation andthe availability of cheaper methods of construction than have been contemplated by the tendering authority.However recent developments in common law have raised doubts about the ability ofowners to seek alternative tenders without placing themselves at risk of litigation. This commonlaw has recognised the existence of the so-called ‘tendering contract’ or ‘process contract’the tendering process is inherently price competitive, the application of the tendering contractconcept is likely to severely inhibit the opportunity for alternative tenders.This paper is primarily based on the literature review. The aim of this paper is to highlightthe problems with the competitive tendering process in relation to contractor-led innovation andexplore ways in which owners can develop procurement procedures that will allow andencourage innovation from contractors.PROBLEMS WITH COMPETITIVE TENDERINGThe traditional tendering process was designed to produce direct price competition for aspecified product. Evaluation of tenders could only be confined to price alone by creating asystem in which price is the only criterion that could vary while design and technical content arethe same for each competing tender. Albeit the contract period is stipulated as constant, ownersoften encourage tenderers to submit a second tender which offers an alternative price for analternative time performance. Tenderers would achieve this by reworking their tender programme,finding the optimum contract period, and adjusting the tender price accordingly. Each tendererwould compete to find novel ways of organising the work method that would allow not only theminimum construction cost but also maximum profit margin within the price proposed. However,this process is always confined by the boundary of the owner’s design. In this way, the suc tenderer’s scope to be innovative is very limited .When evaluating alternative tenders, the owner is confronted with the duty of equaltreatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which isnot a conforming tender in terms of the original invitation, how can all tenderers be treatedequally and fairly? Any individualism exhibited on the part of a tenderer outside the permittedscope of price and time must disqualify that tender from the owner’s consideration because i tdoes not conform to the invitation. Therefore, the traditional tendering process prevents, restrictsor even discourages contractor-led innovation .Songer and Ibbs believed that the use of design-and-build procurement method wouldencourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering processdiffer from that ofthe traditional procurement method in that it must be capable of evaluating design as well asproduction capability, time and price, all on a competitive basis. This is not easy. Competitivedesign is not easy to evaluate in the context of tendering. The objectivity appears to be replacedby subjectivity in picking the winner, and the apparent integrity of the bidding process is lost,unless very clear criteria are established at the outset for evaluation of competing designs. Thisalso means to say that the tender process rules must be designed as such that itencouragescontractor-led innovation, yet at the same time places some limit on the scope for such innovation.The limits must be such that the project delivered is still the project for which tenders wereinvited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agenciesis how to allow for innovation while maintaining appropriate control of certain design aspects ofthe project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge to public sector agencies.THE ‘TENDERING CONTRACT’ Developments i n the law relating to tenders traditionally treated an ‘invitation to te no more than an invitation to treat, an indication that the owner wasa ‘requestfor tenders’ asready to do business – something prior to and short of an offer . In other words, an invitation totreat was not an offer to make a contract with any person who might act on the invitation, butmerely a first step in negotiation which may, or may not, lead to a contract. When each tenderersubmitted its tender in the prescribed form, it amounted to an offer which could be regarded as anoffer to makea contract. If the offer met with unequivocal acceptance, contractual obligationarose between the owner and the successful tenderer .Recently, the modern view turns this theory upside down. There exists what is known asthe ‘two contract’ analysis involving the emergence of the ‘tendering contract’. T tender is now in some circumstances to be treated as an offer to make a contract which a tendereraccepts when it submits a conforming tender. The owner makes an offer to each tenderer whichmight be worded as follows:“If you submit a tender in response to my invitation and which complies with the.stipulations made, I will consider that tender …” There is no obligation at all at this point on the side of the tenderers, but if a conformingtender is submitted, a contract is formed between owner and tenderer which has been describedor ‘processor described elsewhere as a ‘pre-award contract’here as the ‘tendering contract’ This contract is quite distinct from the contract eventually entered into with the contract’.successful tenderer, called the main contract. Obligations of a contractual nature therefore arisebetween the owner and each tenderer who has submitted a proposal. Justas the tender contractplaces obligations on the owner, each tender also imposes obligations on the tenderer. Once thetender has been submitted to the owner, meaning the tender or first contract has been formed, theowner becomes obliged to each tenderer to perform its side of bargain, which at this stage is anobligation to consider all conforming tenders. By the same token, tenderers become obliged tonot simply withdraw their tender, the tender will remain open for a stipulated period of time.principle,a tenderer who makes a mistake may find that thetender isUnder the ‘two contract’ accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender inresponse to an invitation can create contractual obligations for both parties. In the case: Ontariov. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract wasbrought into being automatically upon the submission of a responsive tender by each tenderer.Having established that a ‘tendering contract’ exists, it is then important to constitute what thandterms are of that contract. The terms are derived from the tender conditions, the ‘tother relevant material such as legislation and correspondence . All or some of the provisions ofmay be incorporated in the ‘tendering contract’ by reference and/or bythe ‘tender code’ implication. A terms may be implied to the effect that the owner must consider all conformingtenders, must treat all tenderers equally and fairly, and must award only a contract for the projecttendered for.GUIDANCE ON CONTRACTOR SELECTIONThe Significance of Probity in TenderingProbity is defined in various dictionaries as “moral excellence, integrity, uprightness,In the tendering context, it generally depends upon conscientiousness, honesty, sincerity”.confidentiality of documentation and decision making, objective and consistent assessment a teach phase of decision making and resolution of any possible, perceived or actual conflicts ofinterest. Thus, one of the primary objectives of probity in tendering is to maintain the integrity ofthe bidding process. The Canadian court in the Ron Engineering case referred to this as theobligation of owners to treat all tenderers equally and fairly.Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors and members of the public can have confidence in the outcomes. If integrityand impartiality are not evident, tenderers may be reluctant to make a bid, the formulation ofwhich requires significant amount of time and resources. In that case, competition is likely to belessened and the best value for money may not be achieved.In principle, recent development in common law attempts to maintain some integrity inthe tendering process by recognising the existence of the parties’ obligations to one ano that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one ormore tenderers to produce satisfactory deal. As mentioned previously, the contractual obligationBreach of the ‘tendering contract’between the parties is referred to as the ‘tendering contract’.entitles the injured party to the normal remedy of damages. P robity in the tendering processensures that fair and equal treatment to all tenderers is put in place and maintained so that no termis likely to be breached. According to Johnstone, common probityof the ‘tendering contract’ objectives are:·to ensure all respondents are assessed objectively and consistently· to ensure integrity in all evaluation and selection process· to ensure all confidential information is secured· to address any potential, or actual conflicts of interest· to promote defensibility of process.Guidelines to Avoid Breach of the ‘Tendering Contract’ in the Competitive Bidding ProcessOn conclusion, Craig suggests some guidelines on how alternative tenders and tendersinvolving design proposals might be taken legitimately by the owner so as to avoid or minimisethe likelihood of the clients placing themselves at risk of litigation due to a breach of thecontractual obligations arising out of the ‘tendering contract’. They are specified as fo · Under the ‘tendering contract’ the owner is obliged to treat all tenders equally and fairly. All conforming tenders must therefore be considered.·An effective ‘privilege clause’ which says something like “any tender will notnec will normally prevent an owner becoming obliged to accept any tender. All tenders accepted” may therefore be properly rejected. On the other hand, a term to the effect that a contract will beawarded to the lowest, or highest, bidder is enforceable. This implies that an owner cannot usethe ‘privilege clause’ as an excuse for deviating from the contract evaluation and award criteria set down in the tender invitation or documents. Or, put it another way, the‘privilege c not allow the owner to: (i) choose comparatively among the tenderers based on criteria that hasnot been disclosed to the tenderers; or (ii) to award to another tenderer or another personsomething other than the main contract.· It would be a breach of the tendering obligation of equal and fair treatment for the owner tonegotiate with one tenderer on terms which do not apply to other tenderers.·All tenderers are entitled to know the basis on which tenders will be evaluated and onwhich acontract-award decision will be made.·If innovation from tenderers is required, an owner must expressly create the right for atenderer to submit an alternative tender. If the right then exists, the owner is obliged to considersuch proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.·Tender conditions must define the scope of alternative tenders. That scope must be not tootight so as to restrict innovation, but not too wide so as to result in a proposal for a scheme quitedifferent to the one originally tendered for.·Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers.tenderer who ·It is a breach of the ‘tendering contract’ for the owner to award a contract to a offers something different to what was asked for in the invitation to tender.Furthermore, Johnstone adds· Invitation document should be accessible to all potential bidders. They should be expressedin readily understood terms.·It is easier to formulate appropriate selection criteria when the project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulatebids appropriately.· A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation.·Often assessment o f bids will involve a number of assessment panels. In this situation,there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the evaluation period.SUMMARYThis paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and thescope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t.Guidance has been outlined of how to reduce the risk of owner falling into a breach of the‘tendering contract’ in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.。
招投标外文文献 (2)
外文文献：The Significance of the Tendering Contract on The Opportunities for Clients to Encourage Contractor-led Innovation ABSTRACTDuring the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantage of these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation and the availability of cheaper methods of construction than have been contemplated by the tendering authority.However recent developments in common law have raised doubts about the ability of owners to seek alternative tenders without placing themselves at risk of litigation. This common law has recognised the existence of the so-called ‘tendering contract’ or ‘process contract’. Since the tendering process is inherently price competitive, the application of the tendering contract concept is likely to severely inhibit the opportunity for alternative tenders.This paper is primarily based on the literature review. The aim of this paper is to highlight the problems with the competitive tendering process in relation to contractor-led innovation and explore ways in which owners can develop procurement procedures that will allow and encourage innovation from contractors.PROBLEMS WITH COMPETITIVE TENDERINGThe traditional tendering process was designed to produce direct price competition for a specified product. Evaluation of tenders could only be confined to price alone by creating a system in which price is the only criterion that could vary while design and technical content are the same for each competing tender. Albeit the contract period is stipulated as constant, owners often encourage tenderers to submit a second tender which offers an alternative price for an alternative time performance. Tenderers would achieve this by reworking their tender programme, finding the optimum contract period, and adjusting the tender price accordingly. Each tenderer would compete to find novel ways of organising the work method that would allow not only the minimum construction cost but also maximum profit margin within the price proposed. However,this process is always confined by the boundary of the owner’s design. In this way, the successful tenderer’s scope to be innovative is very limited .When evaluating alternative tenders, the owner is confronted with the duty of equal treatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which is not a conforming tender in terms of the original invitation, how can all tenderers be treated equally and fairly? Any individualism exhibited on the part of a tenderer outside the permitted scope of price and time must disqualify that tender from the owner’s consideration because it does not conform to the invitation. Therefore, the traditional tendering process prevents, restricts or even discourages contractor-led innovation .Songer and Ibbs believed that the use of design-and-build procurement method would encourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering processdiffer from that of the traditional procurement method in that it must be capable of evaluating design as well as production capability, time and price, all on a competitive basis. This is not easy. Competitive design is not easy to evaluate in the context of tendering. The objectivity appears to be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lost, unless very clear criteria are established at the outset for evaluation of competing designs. This also means to say that the tender process rules must be designed as such that itencourages contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The limits must be such that the project delivered is still the project for which tenders were invited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agencies is how to allow for innovation while maintaining appropriate control of certain design aspects of the project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge to public sector agencies.THE ‘TENDERING CONTRACT’Developments in the law relating to tenders traditionally treated an ‘invitation to tender’ or a ‘request for tenders’ as no more than an invitation to treat, an indication that the owner was ready to do business – something prior to and short of an offer . In other words, an invitation to treat was not an offer to make a contract with any person who might act on the invitation, butmerely a first step in negotiation which may, or may not, lead to a contract. When each tenderer submitted its tender in the prescribed form, it amounted to an offer which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractual obligation arose between the owner and the successful tenderer .Recently, the modern view turns this theory upside down. There exists what is known as the ‘two contract’ analysis involving the emergence of the ‘tendering contract’. The invitation to tender is now in some circumstances to be treated as an offer to make a contract which a tenderer accepts when it submits a conforming tender. The owner makes an offer to each tenderer which might be worded as follows:“If you submit a tender in response to my invitation and which complies with the stipulations made, I will consider that tender …” .There is no obligation at all at this point on the side of the tenderers, but if a conforming tender is submitted, a contract is formed between owner and tenderer which has been described here as the ‘tendering contract’ or described elsewhere as a ‘pre-award contract’or ‘process contract’. This contract is quite distinct from the contract eventually entered into with the successful tenderer, called the main contract. Obligations of a contractual nature therefore arise between the owner and each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each tender also imposes obligations on the tenderer. Once the tender has been submitted to the owner, meaning the tender or first contract has been formed, the owner becomes obliged to each tenderer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders. By the same token, tenderers become obliged to not simply withdraw their tender, the tender will remain open for a stipulated period of time. Under the ‘two contract’ principle,a tenderer who makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender in response to an invitation can create contractual obligations for both parties. In the case: Ontario v. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract was brought into being automatically upon the submission of a responsive tender by each tenderer. Having established that a ‘tendering contract’ exists, it is then important to constitute what the terms are of that contract. The terms are derived from the tender conditions, the ‘tendercode’, andother relevant material such as legislation and correspondence . All or some of the provisions of the ‘tender code’ may be incorporated in the ‘tendering contract’ by reference and/or by implication. A terms may be implied to the effect that the owner must consider all conforming tenders, must treat all tenderers equally and fairly, and must award only a contract for the project tendered for.GUIDANCE ON CONTRACTOR SELECTIONThe Significance of Probity in TenderingProbity is defined in various dict ionaries as “moral excellence, integrity, uprightness, conscientiousness, honesty, sincerity”. In the tendering context, it generally depends upon confidentiality of documentation and decision making, objective and consistent assessment at each phase of decision making and resolution of any possible, perceived or actual conflicts of interest. Thus, one of the primary objectives of probity in tendering is to maintain the integrity of the bidding process. The Canadian court in the Ron Engineering case referred to this as the obligation of owners to treat all tenderers equally and fairly.Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors and members of the public can have confidence in the outcomes. If integrity and impartiality are not evident, tenderers may be reluctant to make a bid, the formulation of which requires significant amount of time and resources. In that case, competition is likely to be lessened and the best value for money may not be achieved.In principle, recent development in common law attempts to maintain some integrity in the tendering process by recognising the existence of the parties’ obligations to one another so that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one or more tenderers to produce satisfactory deal. As mentioned previously, the contractual obligation between the parties is referred to as the ‘tendering contract’. Breach of the ‘tendering contract’entitles the injured party to the normal remedy of damages. Probity in the tendering process ensures that fair and equal treatment to all tenderers is put in place and maintained so that no term of the ‘tendering contract’ is likely to be breached. Accord ing to Johnstone, common probity objectives are:·to ensure all respondents are assessed objectively and consistently· to ensure integrity in all evaluation and selection process· to ensure all confidential information is secured· to address any potential, or actual conflicts of interest· to promote defensibility of process.Guidelines to Avoid Breach of the ‘Tendering Contract’ in the Competitive Bidding Process On conclusion, Craig suggests some guidelines on how alternative tenders and tenders involving design proposals might be taken legitimately by the owner so as to avoid or minimise the likelihood of the clients placing themselves at risk of litigation due to a breach of the contractual obligations arising out of the ‘tendering contract’. They are specified as follows.· Under the ‘tendering contract’ the owner is obliged to treat all tenders equally and fairly. All conforming tenders must therefore be considered.·An effective ‘privilege clause’ which says something like “any tender will notnecessarily be accepted” will normally prevent an owner becoming obliged to accept any tender. All tenders may therefore be properly rejected. On the other hand, a term to the effect that a contract will be awarded to the lowest, or highest, bidder is enforceable. This implies that an owner cannot use the ‘privilege clause’ as an excuse for deviating from the contract evaluation and award criteria set down in the tender invitation or documents. Or, put it another way, the‘privilege clause’ does not allow the owner to: (i) choose comparatively among the tenderers based on criteria that has not been disclosed to the tenderers; or (ii) to award to another tenderer or another person something other than the main contract.· It would be a breach of the tendering obligation of equal and fair treatment for the owner to negotiate with one tenderer on terms which do not apply to other tenderers.·All tenderers are entitled to know the basis on which tenders will be evaluated and on which acontract-award decision will be made.·If innovation from tenderers is required, an owner must expressly create the right for a tenderer to submit an alternative tender. If the right then exists, the owner is obliged to consider such proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.·Tender conditions must define the scope of alternative tenders. That scope must be not too tight so as to restrict innovation, but not too wide so as to result in a proposal for a scheme quite different to the one originally tendered for.·Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers.·It is a breach of the ‘tendering contract’ for the owner to award a contract to a tenderer who offers something different to what was asked for in the invitation to tender.Furthermore, Johnstone adds· Invitation document should be accessible to all potential bidders. They should be expressed in readily understood terms.·It is easier to formulate appropriate selection criteria when the project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulate bids appropriately.· A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation.·Often assessment of bids will involve a number of assessment panels. In this situation, there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the evaluation period. SUMMARYThis paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and the scope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t.Guidance has been outlined of how to reduce the risk of owner falling into a breach of the ‘tendering contract’ in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.。
工程施工投标英语作文
Title: Bidding for Construction ProjectsIntroduction:Bidding for construction projects is a crucial process in the construction industry. It involves submitting a proposal to undertake a construction project at a specified location and within a specified time frame. This essay will discuss the importance of bidding for construction projects, the process involved, and the factors to consider when preparing a bid.Body:1. Importance of Bidding for Construction Projects:Bidding for construction projects is essential for several reasons. Firstly, it provides an opportunity for construction companies to showcase their expertise and capabilities. By submitting a bid, a company can demonstrate its ability to handle specific projects and meet the required specifications. Secondly, bidding allows for competition among construction companies, which can lead to better pricing and quality outcomes. Finally, bidding provides a fair and transparent process for selecting contractors, ensuring that the project is awarded to the most suitable candidate.2. The Bidding Process:The bidding process for construction projects typically involves several steps. Firstly, the project owner or client releases a request for proposals (RFP) or invitation for bids (IFB), outlining the project details, specifications, and requirements. Interested construction companies then conduct a thorough analysis of the project, includingsite visits, to understand the scope and challenges. Next, the companies prepare their bids, which include detailed proposals, schedules, and pricing. The bids are submitted within the specified time frame, and the project owner evaluates them based on various criteria, such as experience, qualifications, pricing, and timeline. Finally, the project owner selects the winning bid and enters into a contract with the successful bidder.3. Factors to Consider when Preparing a Bid:When preparing a bid for a construction project, several factors must be taken into account to increase the chances of success. Firstly, it is crucial to thoroughly understand the project requirements and specifications. This includes studying the project documents, conducting site visits, and clarifying any ambiguous or unclear aspects. Secondly, the bid should accurately reflect the company's capabilities and expertise. This may involve showcasing previous relevant projects, demonstrating technical skills, and highlighting any specialized equipment or personnel. Additionally, the bid should include a detailed schedule, outlining the project timeline, milestones, and deliverables. It is also essential to carefully consider the pricing strategy, ensuring that the bid is competitive while also accounting for potential risks and uncertainties. Finally, the bid should be presented in a professional and organized manner, adhering to the guidelines provided by the project owner.Conclusion:Bidding for construction projects is a critical process that requires careful planning and preparation. It offers an opportunity for construction companies to showcase their expertise, compete, and secure projects. When preparing a bid, it is essential to thoroughly understand the project requirements, accurately reflect the company's capabilities, and consider factors such as pricing and timeline. By submitting a well-prepared and competitive bid, construction companies can increase their chances of success and contribute to the growth and development of the construction industry.。
工程管理建设招投标中英文对照外文翻译文献
中英文对照外文翻译(文档含英文原文和中文翻译)Research on the Bidding System of Construction Project in China Compared with Foreign Countries(The comparison of domestic and foreign construction project bidding system)AbstractFollowing through the comparative analysis of the bidding system in USA, Hongkong and France, and points out some characters in bidding for developed countries and regions, and puts forward some enlightenment China bidding system. Use them as a reference, this is a very important guiding role, to promote the development of Chinese current bidding system in theory. The results of this study will show the pressure and significance, to standardize the bidding market in China, but also to promote the domestic bidding market highlights the problem and solve a clear direction, but also conducive to the construction industry to improve the management leveland international competitiveness in Chinese. As a member of WTO, the leading international construction market is Chinese.1.INTRODUCTIONBidding originated from Britain firstly. In 1782, Britain was apioneer in setting up Stationery Public Bureau, and then developed as Material Supply Department, which was a section in government purchasing office supplies, which was setting up afoundation for developing of advertised bidding (Liangetal. 2006).In China, in 1980, the State Council proposed in “Interim Provisions of Development and Protection Socialism Competition”:“we may try bidding and submitting a bidding in some constructing programs and management which are suitable to using contract”,and then our country tried to adopting bidding model (Bai 1999).In Nov. 1984, State Planning Commission and City and Countryside Construction Environmental Protection Department formulated “Interim Provisions of Construction Project Tender and Bid”, which marked starting officially bidding for construction.Nowadays, bidding has been the main way in trading in construction, and been paid close attention by the society. However,generally speaking, the system in bidding for construction in our country isn’t enough mature. Whatever in theory or in practice,there are many problems need to be researched. This paper comparatively analyzes the bidding system among USA, HongKong and French regions, and gets some characters in bidding in developed countries and regions, then puts forward some revelations of the bidding system to China2.BIDDING SYSTEM IN DEVELOPED COUNTRIESAND REGIONS2.1 Bidding System in USABidding system in USA is one of the most influentially all over the world. There are some characters below in construction bidding in USA(1)Carrying out construction bidding system and management from many channels. USA belongs to common genealogy of law,but USA carrying out construction bidding system and management from many channels, and among which some below clauses are carried out widely: different kinds of clauses made by AIA; subletting contract’s standard format by AGCA; arbitration rules in construction made by AAA; standard clauses made by ETCDC; standard contract format by federal government. Every state in USA has law in construction bidding, and the enforcement of the law is very strictly.(2)Tenders team is different. Large, medium and small sized projects all need bidding. For example, project’s amount of investment is 10,000~20,000 can use bidding, but the government can manage the bidding of private company through the daily departments. The government sets up a whole institution which is made up by designers，architects or depositaries, which carrying out bidding publicly .Once the above departments being set up,they can charge the feasibility study of the project, choosing the contractors for the bidding of the projects and admin in the carrying out the projects, the whole project can be finished by technicians who have professional certifications.(3)Bidding can be carrying out by owners, and the bidding companies have no quota restrictions, but the certifications,prestige and bidding price of the companies may interact each other. If the quantity of the bidding project exceeds 50,000 dollars,the company should pass prequalification of prospective bidders.The contractors’level should beexamined by the department which make credit verifying, the contractors should take the relevant projects , in particular cases, it just exceed 10% of the quantity.(4)The principle of bid evaluation and bid picket age. Usually the bidder whose bidding price is least can get the bid. Generally,principle of the bidding can be ensured by adopting the total prices or the unit price. In the definite principle, neither the too low price nor the too high price is chosen. But more attention should be paid to the trap of the bidding.2.2 The Bidding System in Hong KongHong Kong is the place which is full of the construction contractors. Mostly, if the owner invests on a construction project,he will entrust the consultant firms, thus, the compiling of bidding documents is finished by consultant films. The bidding system in Hong Kong follows Britain, which has no normalized price, only has “Hong Kong Standard Method of Measurement of Building Works”. The price adjustment in Hong Kong is decided by the quotation which is published by Hong Kong Counts Bureau, the contractors compute the price adjustment according the quotation.Thus, the price is absolutely according to the behavior of company or human.The announcement of tender of construction project in Hong Kong is published in evening paper every Friday, so according to the project in the paper, the contractors who have the license with the ratification by Engineering Bureau can participate the bidding(Liang 2003). The bidders in Hong Kong should study the projects,read the every clause in bidding documents and drawings. If they have something not understood or lack of the drawings, they should see them in company, and they also make physical verification. Generally, the bidders should understand everything before bidding, otherwise the owners may not charge for the loss of bidding.It is the characters of the price of the bidding in Hong Kong that the owners should give the bidding documents which include drawings and list of items. The bidders should fill the entire unit price and every kind of cost, according to the list of item. Because there aren’t coherent price standard, with the competition among the contractors, the bidders can bid according to the above documents. The character is no restrictions. In fact, the bidders give their price through contacting with the contractors and supplier and making analysis.2.3 The Bidding System in French RegionsThe main character of bidding in French regions is the project sad opting Append Offers and Adjudication (Liu 1999). Append Offers is the main method of bidding in French regions, which is similar to competitive bidding carried out by the World Bank.The characters of Append offers are: (1) to permit the bidders give some cases according to the clauses of bidding, so the bidders have much space to choose; (2) The bid opening is secret. Before the bidding in French regions, the tender committee should be founded. In the bidding, the committee usually becomes jury. For example, in the adjudication, firstly, the bidder or the committee exist; secondly, the owners publish the bidding bulletin, and request the contractors submitting the bidding application and some relative documents; thirdly, the committee exams the qualifications of the bidders; fourthly, the recognized contractors give the bidding price; fifthly, the committee exam the bidding price again.The characters of Adjudication are: (1) the bidders can give either the total price or the unit price; (2) the price of every bidder must be announced separately; (3) if there is at least one bidders price which is below the pre-tender price, the award result should be announced. If all the bid prices exceed the 20% of the pre-tender price, it would fail. The bidders can modify the conditions of the bid and bid again. All the above characters avoid the informal acts.The bidding system in the French regions restricts the informal acts in the bidding. Especially the bidders make the price in the special bidding, in the case of thebidding price being below the standard price, the lowest price should be successful.The French regions adopt the Append Offers and Adjudication, so the evaluation and the picket age of the bid are concise. After the committee makes the bid opening publicly, it gives the bid temporarily. If there is no price below the acceptable price, the committee can ask the bidders to make bid again; if there is no acceptable price, the committee would announce the bid failed. And the committee exam the price again in 10 days, so there is adequate time to study the bid documents and bid price again and again 3.THE REVELATION OF THE BIDDING SYSTEM INDEVELOPED COUNTRIES AND REGIONS TO CHINA3.1 The Law System of Developed Countries and Regions Is Relatively PerfectForeign countries pay more attention to setting up and perfecting the law system of bidding. For many years, European Union has got good grade in promoting the all-in-one in law system of bidding among the states, and it sets up a series of laws, so the states’bid laws are the reification of European Union’s laws, and there is no principle difference. Though there are some differences in adjective provision, it must be in keeping with the total laws.From 1st Jan. 1999, Euro bore as the unique cash, which consolidates and develops the unifying the bid laws, and make spositive militate.In China, the bid laws have 3 levels (Wen 2005): first of all,the laws set up by National People's Congress and standing committee, for example, “The Law of the People’s Republic of China on Bid Invitation and Bidding”; the second level is bid laws set by State Council and other bid laws set by some Place National People's Congress; the third level is the bid laws set by some departments in State Council and the government, for example,“Engineering construction tender policing method”set up by Construction. The laws have carried out in 20 years, and the systems have been a whole system, which like in USA and EU, but in the bidding, there are some faults in carrying out the laws.The bidding is one of many economic actions. The principles of the bidding are just, fair and open. The better the law system setup, the more detailed the regulation made, and the more standard the bidding carried out. The problems, such as tendentious bidding,string bidding, nonstandard evaluating, can also be found in USA and EU. But there are relative perfect laws in USA and EU, so it can contact with criminal laws. However, the bid law is not enough perfect in China. There main are “The Law of the People’s Republic of China on Bid Invitation and Bidding”, “Building Ordinance”and so on, and the biddings of construction project are mainly based on laws set up by Constructive Department. See from the carrying out the biddings of construction project, the laws and legislations are too general to easily carrying out the laws. For example, in dealing with the complaints about the bidding, every department basically deal with the problem in their own way and in their own understanding, and the similar case may has the different results in different regions. If correlative enterprises can’t accept the result for the dealing with complaints, they will appeal to the senior department. In USA and EU, the plaintiffs and defendants are always bidders but not government. In the dealing with the dispute in economic actions, the governments are primary inter ceder. But in China, finallyaccording to the “Administrative Approval Law”, the defendants become the administrators. Thus,all of these need to go step further studying and discussion, and then we should enrich and perfect the laws and legislations which are accord with China. Learning from the methods of USA and EU,China will make the dealing with the complaints standardized.3.2 The Developed Countries and Regions Quite Pay much Attention to the Research on Bidders' Preliminary BehaviorDeveloped countries' bidders are quite earnest to the earlier period research, from the environment analysis, the public relations strategy and so on, studying item by item. But in our countries,bidders neglect this aspect, and muddled investment, the blind decision-making, brings the massive loss for the enterprise and the country. Table 1 has listed the related main points of the earlier period research, for making analysis and research.It can be seen from the table that the bidders’idea in study the tendering project is essentially different compared with developed countries. So it is a favorable way of strengthening the earlier period research of bidding, to improve the rate of successful bids,and standardize bidding markets and increase enterprises’social image, enhance economic benefit.Table 1: Comparative Table of Earlier Period of Bidding between China and Developed3.3 The Bidding Procedure and Operation in Developed Countries and Regions Is more ReasonableBidding procedure and operation is one of the core content in an ational bidding system. Normative bidding procedures and operation is a perfect embodiment in a national bidding system Bidding operation mode includes bid opening, bid evaluation, bid award, and so on. It has two main principles: competition in public and protection the behalf of tenders and bidders. These two principles must be observed in bid opening, bid evaluation, and bid award. In practice, there is a greater difference between China and USA in bidopening, bid evaluation, and bid award, see table 2Table 2: Comparative Table of Bidding Procedures and Operation between China and3.4 The Bid Evaluation and Bid Picketage in Developed Countries and Regions Are StricterThe bid evaluation of international projects in developed countries is conducted in secret, which normally takes 10-15 days. The bide valuation of international projects is charged by the owners generally, and the method is: (l) an evaluation committee is established, charged by chief economist, composed with experts from engineering, technology, construction, planning, finance,accounting, cost, economy, contracts, legal and other aspects,which works in the joint office, discusses and consults collectively,evaluates the bid comparatively; (2) to hand out the bid document to the engineering, construction management, planning and scheduling, financial accounting, legal adviser, Chief Economist,and other functional departments for analysis and evaluation, to form theevaluation report by the final uniform evaluation results;(3) to ensure 2-3 bid award candidates and then review the qualifications, only the passed qualified bidder, be the award bidder can.The bid evaluation in China is also carried out in relative secrecy, but the time of evaluation is quite shorter, usually in about two hours, so the evaluation process only stays on the surface,which can not evaluate the inherent meaning of the bid, resulting in lots of problems and disputes after awarding the bid. Though the bid evaluation is organized by the owners in most areas of China,the evaluation committee also contains many administrative persons. So, the evaluation lacks of fair and just sometimes, with government intervention, the black-box operations and so on. The method of bid picketage is essentially different between China and developed countries. In China, comprehensive evaluation score are usually used. If the first high score bid is lowest in bid price, then no doubt that the award bidder. If the second high score bidder is in five score discrepancy with the first, the owners can choose one as the award bidder from the two candidates.This shows that the time of bid evaluation in China is only one fortieth of developed countries, and comprehensive evaluation is not accurate, so the owners always can’t choose the right contractor. So further study should be made to standardize the bid evaluation and bid picke tage.3.5The Bidding Management in Developed Countries and Regions is more StandardizedIn the bidding management in China, the government' sad ministrative interference is relatively strong. This is mainly because bidding system in China is not perfect. Currently, bidding supervision of projects invested by government is charged by the administrative departments in China.These administrative departments also charge the complaints of the bidders and other stakeholders, and cognizance the qualification of the tender agencies. Such management method is essentially self-monitoring, self-supervising, and it’s difficult to fundamentally form by supervisors and overseers of mutual relations between the checks and balances. In particular, with the existing management system for projects invested by government,some departments directly intervene in the management of projects,especially direct intervene the bidding activities, and some responsible person of the departments also serves as project leader .Considering from the interests of the departments, the industry and individual, it’s difficult to form a mechanism to supervise the activities of bidding strictly.The bidding management of US government is quite perfect.Its five plate systems, that are tender system in public, operating system standardization and accreditation system providers, audit system, delivery tracking system, make government officials have no chance to intervene the bidding process by administrative interferences, but focus on the establishment and management of the contract process. In a word, the bidding and operating system in developed countries is fairly perfect, comparatively, there is a large disparity in China.CONCLUSIONSThrough the above comparative analysis of the domestic system of bidding and bidding system in developed countries and regions, found in the China bidding system for the implementation of the defects and shortcomings, it also highlights the need to recruit China specification and the significance of the bidding market. Our country can learn from the bidding system of developed countries and regions, promote the improvement of Chinese current bidding system, and find an important direction in the theory. In order to better and more problems existing in bidding and implementation of vulnerability solutionto the domestic construction projects, to perfect the legal construction bidding and bidding market, even to the social economy have made an important and positive role. So whether it is in the current bidding position of the elite or is engaged in the bidding work of college students, should understand the bidding content, always pay attention to improvement and perfecting the system of bidding bidding, and in the case of conditions for domestic bidding and perfecting system of bidding to make a little of his own contribution. References:[1]Bai, H. Y. (1999). “Development and Application of Bid and Tender in Our Country.” Information System Engineering, (10), 20 pp.[2]Liang, W. (2003). “Bid of Project Constrution of Works Bureau in Hong Kong.” Construction Economy, (3), 31-33.[3]Liang, Y. P., Yu, X. F., and Zhang, A. Q. (2006). “Perfect the System of the Government Procument Using International Experience for Reference.” Theoretical Exploration, (2), 130-132.[4]Liu, Z. (1999). Practice of the Law of the People’s Republic of China on Bid Invitation and Bidding, Xiyuan Press, Beijing, China, 1489-1561. Wen, J. (2005). “Where is Our Disparity? Compare of Bi dding between China and USA.” Honesty Outlook, (2), 6-7.[5]Casinelli, Massimoluigi (Casinelli Associates) Source: Cost Engineering (Morgantown, West Virginia), v 47, n 2, p 21-27, February 2005对比国内外建设项目招投标制度摘要下面通过对比分析了招投标制中美国，香港及法国地区，并指出了一些字符在竞标发达的国家和地区，并提出了招投标系统的一些启示中国。
招投标外文文献
外文文献：The Significance of the Tendering Contract on The Opportunities for Clients to Encourage Contractor-led Innovation ABSTRACTDuring the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantage of these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation and the availability of cheaper methods of construction than have been contemplated by the tendering authority.However recent developments in common law have raised doubts about the ability of owners to seek alternative tenders without placing themselves at risk of litigation. This common law has recognised the existence of the so-called ‘tendering contract’ or ‘process contract’. Since the tendering process is inherently price competitive, the application of the tendering contract concept is likely to severely inhibit the opportunity for alternative tenders.This paper is primarily based on the literature review. The aim of this paper is to highlight the problems with the competitive tendering process in relation to contractor-led innovation and explore ways in which owners can develop procurement procedures that will allow and encourage innovation from contractors.PROBLEMS WITH COMPETITIVE TENDERINGThe traditional tendering process was designed to produce direct price competition for a specified product. Evaluation of tenders could only be confined to price alone by creating a system in which price is the only criterion that could vary while design and technical content are the same for each competing tender. Albeit the contract period is stipulated as constant, owners often encourage tenderers to submit a second tender which offers an alternative price for an alternative time performance. Tenderers would achieve this by reworking their tender programme, finding the optimum contract period, and adjusting the tender price accordingly. Each tenderer would compete to find novel ways of organising the work method that would allow not only the minimum construction cost but also maximum profit margin within the price proposed. However,this process is always confined by the boundary of the owner’s design. In this way, the successful tenderer’s scope to be innovative is very limited .When evaluating alternative tenders, the owner is confronted with the duty of equal treatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which is not a conforming tender in terms of the original invitation, how can all tenderers be treated equally and fairly? Any individualism exhibited on the part of a tenderer outside the permitted scope of price and time must disqualify that tender from the owner’s consideration because it does not conform to the invitation. Therefore, the traditional tendering process prevents, restricts or even discourages contractor-led innovation .Songer and Ibbs believed that the use of design-and-build procurement method would encourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering processdiffer from that of the traditional procurement method in that it must be capable of evaluating design as well as production capability, time and price, all on a competitive basis. This is not easy. Competitive design is not easy to evaluate in the context of tendering. The objectivity appears to be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lost, unless very clear criteria are established at the outset for evaluation of competing designs. This also means to say that the tender process rules must be designed as such that itencourages contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The limits must be such that the project delivered is still the project for which tenders were invited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agencies is how to allow for innovation while maintaining appropriate control of certain design aspects of the project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge to public sector agencies.THE ‘TENDERING CONTRACT’Developments in the law relating to tenders traditionally treated an ‘invitation to tender’ or a ‘request for tenders’ as no more than an invitation to treat, an indication that the owner was ready to do business – something prior to and short of an offer . In other words, an invitation to treat was not an offer to make a contract with any person who might act on the invitation, butmerely a first step in negotiation which may, or may not, lead to a contract. When each tenderer submitted its tender in the prescribed form, it amounted to an offer which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractual obligation arose between the owner and the successful tenderer .Recently, the modern view turns this theory upside down. There exists what is known as the ‘two contract’ analysis involving the emergence of the ‘tendering contract’. The invitation to tender is now in some circumstances to be treated as an offer to make a contract which a tenderer accepts when it submits a conforming tender. The owner makes an offer to each tenderer which might be worded as follows:“If you submit a tender in response to my invitation and which complies with the stipulations made, I will consider that tender …” .There is no obligation at all at this point on the side of the tenderers, but if a conforming tender is submitted, a contract is formed between owner and tenderer which has been described here as the ‘tendering contract’ or described elsewhere as a ‘pre-award contract’or ‘process contract’. This contract is quite distinct from the contract eventually entered into with the successful tenderer, called the main contract. Obligations of a contractual nature therefore arise between the owner and each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each tender also imposes obligations on the tenderer. Once the tender has been submitted to the owner, meaning the tender or first contract has been formed, the owner becomes obliged to each tenderer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders. By the same token, tenderers become obliged to not simply withdraw their tender, the tender will remain open for a stipulated period of time. Under the ‘two contract’ principle,a tenderer who makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender in response to an invitation can create contractual obligations for both parties. In the case: Ontario v. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract was brought into being automatically upon the submission of a responsive tender by each tenderer. Having established that a ‘tendering contract’ exists, it is then important to constitute what the terms are of that contract. The terms are derived from the tender conditions, the ‘tendercode’, andother relevant material such as legislation and correspondence . All or some of the provisions of the ‘tender code’ may be incorporated in the ‘tendering contract’ by reference and/or by implication. A terms may be implied to the effect that the owner must consider all conforming tenders, must treat all tenderers equally and fairly, and must award only a contract for the project tendered for.GUIDANCE ON CONTRACTOR SELECTIONThe Significance of Probity in TenderingProbity is defined in various dict ionaries as “moral excellence, integrity, uprightness, conscientiousness, honesty, sincerity”. In the tendering context, it generally depends upon confidentiality of documentation and decision making, objective and consistent assessment at each phase of decision making and resolution of any possible, perceived or actual conflicts of interest. Thus, one of the primary objectives of probity in tendering is to maintain the integrity of the bidding process. The Canadian court in the Ron Engineering case referred to this as the obligation of owners to treat all tenderers equally and fairly.Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors and members of the public can have confidence in the outcomes. If integrity and impartiality are not evident, tenderers may be reluctant to make a bid, the formulation of which requires significant amount of time and resources. In that case, competition is likely to be lessened and the best value for money may not be achieved.In principle, recent development in common law attempts to maintain some integrity in the tendering process by recognising the existence of the parties’ obligations to one another so that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one or more tenderers to produce satisfactory deal. As mentioned previously, the contractual obligation between the parties is referred to as the ‘tendering contract’. Breach of the ‘tendering contract’entitles the injured party to the normal remedy of damages. Probity in the tendering process ensures that fair and equal treatment to all tenderers is put in place and maintained so that no term of the ‘tendering contract’ is likely to be breached. Accord ing to Johnstone, common probity objectives are:·to ensure all respondents are assessed objectively and consistently· to ensure integrity in all evaluation and selection process· to ensure all confidential information is secured· to address any potential, or actual conflicts of interest· to promote defensibility of process.Guidelines to Avoid Breach of the ‘Tendering Contract’ in the Competitive Bidding Process On conclusion, Craig suggests some guidelines on how alternative tenders and tenders involving design proposals might be taken legitimately by the owner so as to avoid or minimise the likelihood of the clients placing themselves at risk of litigation due to a breach of the contractual obligations arising out of the ‘tendering contract’. They are specified as follows.· Under the ‘tendering contract’ the owner is obliged to treat all tenders equally and fairly. All conforming tenders must therefore be considered.·An effective ‘privilege clause’ which says something like “any tender will notnecessarily be accepted” will normally prevent an owner becoming obliged to accept any tender. All tenders may therefore be properly rejected. On the other hand, a term to the effect that a contract will be awarded to the lowest, or highest, bidder is enforceable. This implies that an owner cannot use the ‘privilege clause’ as an excuse for deviating from the contract evaluation and award criteria set down in the tender invitation or documents. Or, put it another way, the‘privilege clause’ does not allow the owner to: (i) choose comparatively among the tenderers based on criteria that has not been disclosed to the tenderers; or (ii) to award to another tenderer or another person something other than the main contract.· It would be a breach of the tendering obligation of equal and fair treatment for the owner to negotiate with one tenderer on terms which do not apply to other tenderers.·All tenderers are entitled to know the basis on which tenders will be evaluated and on which acontract-award decision will be made.·If innovation from tenderers is required, an owner must expressly create the right for a tenderer to submit an alternative tender. If the right then exists, the owner is obliged to consider such proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.·Tender conditions must define the scope of alternative tenders. That scope must be not too tight so as to restrict innovation, but not too wide so as to result in a proposal for a scheme quite different to the one originally tendered for.·Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers.·It is a breach of the ‘tendering contract’ for the owner to award a contract to a tenderer who offers something different to what was asked for in the invitation to tender.Furthermore, Johnstone adds· Invitation document should be accessible to all potential bidders. They should be expressed in readily understood terms.·It is easier to formulate appropriate selection criteria when the project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulate bids appropriately.· A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation.·Often assessment of bids will involve a number of assessment panels. In this situation, there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the evaluation period. SUMMARYThis paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and the scope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t.Guidance has been outlined of how to reduce the risk of owner falling into a breach of the ‘tendering contract’ in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.。
建筑项目招投标毕业设计外文翻译
Building engineering biddingAbstract: Nowadays in the engineering construction industry, the market which is characteristic for project bidding, has formed. The construction companies,which want to create good benefits, have to control their cost and improve management to enhance the capacity of adapting and competing in this market. This article focuses on how to decrease cost and increase income so as to control the construction cost effectively.bidding documents should be well formulated ,which is important to a successful bidding and direct influence the success or failure of the bidding work.Because the success or failure of the bidding for the survival and development of enterprise has a direct impact, so we have a high quality, improve the bid documents of the unit, prevent invalid and successful pass mark appear, become a research topic.key : bidding drawbacks of unfair competition countermeasuresBidding is a form of project transactions, project bidding process is to determine the successful bidder and the cost of the process and the price of the project, project bidding work of a very important link, do a good job bidding to determine the price, we can effectively control construction costs, and create a fair and equitable market environment, create orderly competition mechanism. Bidding in construction activities, construction enterprises in order to tender invincible works to be successful, And from the contracted projects profitable, it needs to integrate various subjective and objective conditions, the tender research strategy determine tender. Tender bidding strategy, including pricing strategies and skills. All of the strategies and skills from the numerous contractors bidding on the accumulated experience and objective understanding of the law and of the actual situation understanding, but also with the contractor's decision-making ability and courage are closely related.Bidding documents is the general programme and play book of the bidding activity through the process of bidding. The bidding documents will specify that How to conduct each bidding work, how to dispatch bidding documents, the requirements fortenderer,how to rate and decide bidding and the procedures of bidding. Therefore, the personnel who is responsible for prepare bidding documents should first have a general view of the bidding work, include all the requirements and arrangements into the bidding documents. If meet problems that have not been considered previously, then resolve them one by one during the preparation. The course of bidding documents preparation is also the course of making bidding scheme .In another respect, bidding documents is also the legal instruments. Besides relevant law and rules, the bidding documents are the common game rules that bidder,bidding agent and tenderer should subject to through the bidding. Bidding documents are the legal instruments that all the three bidding related parties should subject to, have legal force, therefore, the bidding documents -making personnel required to have the awareness and quality of legal in order to reflect the fair, just and legal requirement in the bidding documents.In building engineering bidding law enforcement and the practice of project construction supervision system on standardizing China's construction market, improve the construction quality and played an active role. But in the process of implementing exist some disadvantages, needs to perfect, enrich and improve. This project bidding documents in accordance with the bidding law of the People's Republic of China for bidders, bidding regulation, enterprise strictly, put forward to bidders professional requirements of project profile was illustrated.Nowadays in the engineering construction industry, the market which is characteristic for project bidding, has formed. The construction companies,which want to create good benefits, have to control their cost and improve management to enhance the capacity of adapting and competing in this market. This article focuses on how to decrease cost and increase income so as to control the construction cost effectively.In building engineering bidding law enforcement and the practice of project construction supervision system on standardizing China's construction market, improve the construction quality and played an active role. But in the process of implementing exist some disadvantages, needs to perfect, enrich and improve. This project bidding documents in accordance with the bidding law of the People'sRepublic of China for bidders, bidding regulation, enterprise strictly, put forward to bidders professional requirements of project profile was illustrated.The practice of project bidding purpose is to market competition of openness, fairness and justice. However, due to the construction market development is not standard, management system and the experience of inadequate, architectural engineering bidding in concrete operation exist in ACTS of unfair competition, and some drawbacks. This obviously violate the bidding, the bidding process, and will lose its significance for other bidder fails to bid is unjust, disturbed the bidding (project contracting market economic order, for activities), this kind of behavior must be prohibited, only in this way can we make construction engineering competitive trading activity lawfully healthy. This subject will I learned and social practice, present situation and construction project bidding system is expounded, and the disadvantages of bidding for construction project with ACTS of unfair competition phenomenon and analysis of causes, and finally make corresponding preventive countermeasures.Construction cost management system, both theoretical discussion, but also need to practice innovation. Under the conditions of market economy, project cost management, competitive and orderly market for construction management services platform structures. In such a premise, the original scale and method of valuation is inappropriate, and this needs to be reformed and improved. The spirit of "the government's macro regulation and control, enterprise autonomy offer, the market will price" principle, to implement the implementation specification bill of quantity. Inventory Valuation bidding activities are based on market economy mechanism, based on legal, scientific, fair, open and reasonable way to determine the winning bidder of an economic activity. Bidding is bidding activities constitute two basic aspects. The bidding activity is merely that by bidding to choose the one with the workConstruction process capability, moderate cost, quality is excellent, short duration of construction enterprises, and this is the ultimate goal tender. I have participated in internships over the course of the project bidding, and completed over part of the calculation of quantities, combined with graduate experience in the design process, a brief analysis of the mode Quantities Call for TenderThe meaning of risk and risk characteristics of the general construction, the lowest price sealed bidding construction method produces several risks and incentives, according to their characteristics discussed the feasibility of risk control and prevention. Comparison of engineering and engineering security risk management, insurance, similarities and differences between the two projects and benefits; construction project bidding and tendering process characteristics of human behavior is analyzed to reveal the bidder's risk appetite and behavioral characteristics with changes in the external environment change, when the default punishment is light, the bidder preference appetite for risk and default penalties, with the increase exceeds a certain value, the risk of bidders to show preference for behavior change to avoid the risk of penalties, the greater the bidder biased in favor of a more risk-averse behavior, the results of the control and prevention of risk behavior of bidders has an important and practical significanceConstruction Cost Management from the "quantity-one price" plan model to "price of separation volume" model of the market, and gradually establish a market price-based price formation mechanism, the price of the decision in the hands of the parties involved in the market, and ultimately the allocation of resources through the market in order to realize through the market mechanism to decide on project cost. This will standardize the construction market-competitive behavior and the promotion of project bidding mechanisms play an important role in innovation. It can be said that the implementation of the project bill of quantities is a project cost management system in our country a big step forward, but also in China's accession to the WTO, the global construction industry a powerful tool for peer competition.With the construction of in-depth development of the market, the traditional fixed pricing model no longer suited to market-oriented economic development needs. In order to adapt to the current project bidding by the market needs of a project cost, we must work on the existing valuation methods and pricing model for reform, the implementation of projects bill pricing. Engineering is a list of pricing model and adapt to the market economy, allowing independent contractor pricing through market competition determine prices, with the international practice of pricing model. With the bill pricing model projects to promote, in accordance with international bidding practices is imperative. Therefore, "the lowest reasonable price of the successfulbidder" My future is the most important evaluation methods. At this stage due to the implementation of projects bill pricing model and the problems mainly against China at this stage " in the minimum reasonable price of the principles of the successful bidder, most contractors have not yet set up their own enterprises of scale, companies unable to determine the reasonable Cost. This article is a scientific and fast set "reasonable cost" to study the key. First, from the project cost of the basic concept, of the engineering bill pricing model under the cost structure, to accurately predict costs of the project provided the basis, considering the average cost of the social cost to individual enterprises and the tender stage of the cost estimates. Followed through on fuzzy math and technology for smooth in-depth analysis, through "close-degree," the concept of reasonable fuzzy math and exponential smoothing technologies, construction of the project cost vague prediction model, and in accordance with the relevant information and statistics Information and experience to establish a "framework structure," the comparison works Construction Cost Management from the "quantity-one price" plan model to "price of separation volume" model of the market, and gradually establish a market price-based price formation mechanism, the price of the decision in the hands of the parties involved in the market, and ultimately the allocation of resources through the market in order to realize through the market mechanism to decide on project cost. This will standardize the construction market-competitive behavior and the promotion of project bidding mechanisms play an important role in innovation. It can be said that the implementation of the project bill of quantities is a project cost management system in our country a big step forward, but also in China's accession to the WTO, the global construction industry a powerful tool for peer competition.A healthy bidding system should be in accordance with the "open, fair and justice" and the principle of good faith, and establish a unified, open, competitive and orderly construction market. In view of the current problems existing in the bidding process, adopt regulations, and formulate and perfect the institution, strengthening process supervision measures, they can better regulate construction market order, prevent corruption from its source, purify construction market, promote the construction market order progressively toward standardization, institutionalized, and constantly improve the quality and level of the bidding work.建筑项目招投标摘要:目前在工程建设项目行业中，以工程招投标为特征的建筑市场已经形成，施工企业为创造良好经济效益，必须严格控制成本，加强成本控制管理，才能提高市场适应能力和竞争力。
招投标外文文献
外文文献：The Significance of the Tendering Contract on The Opportunities for Clients to Encourage Contractor-led Innovation ABSTRACTDuring the tendering process for most major construction contracts there is the opportunity for bidders to suggest alternative innovative solutions. Clearly clients are keen to take advantage of these opportunities, and equally contractors want to use their expertise to establish competitive advantage. Both parties may very well benefit from the encouragement of such innovation and the availability of cheaper methods of construction than have been contemplated by the tendering authority.However recent developments in common law have raised doubts about the ability of owners to seek alternative tenders without placing themselves at risk of litigation. This common law has recognised the existence of the so-called ‘tendering contract’ or ‘process contract’. Since the tendering process is inherently price competitive, the application of the tendering contract concept is likely to severely inhibit the opportunity for alternative tenders.This paper is primarily based on the literature review. The aim of this paper is to highlight the problems with the competitive tendering process in relation to contractor-led innovation and explore ways in which owners can develop procurement procedures that will allow and encourage innovation from contractors.PROBLEMS WITH COMPETITIVE TENDERINGThe traditional tendering process was designed to produce direct price competition for a specified product. Evaluation of tenders could only be confined to price alone by creating a system in which price is the only criterion that could vary while design and technical content are the same for each competing tender. Albeit the contract period is stipulated as constant, owners often encourage tenderers to submit a second tender which offers an alternative price for an alternative time performance. Tenderers would achieve this by reworking their tender programme, finding the optimum contract period, and adjusting the tender price accordingly. Each tenderer would compete to find novel ways of organising the work method that would allow not only the minimum construction cost but also maximum profit margin within the price proposed. However,this process is always confined by the boundary of the owner’s design. In this way, the successful tenderer’s scope to be innovative is very limited .When evaluating alternative tenders, the owner is confronted with the duty of equal treatment and fairness to all tenderers. If one is to be preferred on an alternative tender, which is not a conforming tender in terms of the original invitation, how can all tenderers be treated equally and fairly? Any individualism exhibited on the part of a tenderer outside the permitted scope of price and time must disqualify that tender from the owner’s consideration because it does not conform to the invitation. Therefore, the traditional tendering process prevents, restricts or even discourages contractor-led innovation .Songer and Ibbs believed that the use of design-and-build procurement method would encourage innovation in the building process. This procurement method imposes single point responsibility on contractor for the complete building and its tendering processdiffer from that of the traditional procurement method in that it must be capable of evaluating design as well as production capability, time and price, all on a competitive basis. This is not easy. Competitive design is not easy to evaluate in the context of tendering. The objectivity appears to be replaced by subjectivity in picking the winner, and the apparent integrity of the bidding process is lost, unless very clear criteria are established at the outset for evaluation of competing designs. This also means to say that the tender process rules must be designed as such that itencourages contractor-led innovation, yet at the same time places some limit on the scope for such innovation. The limits must be such that the project delivered is still the project for which tenders were invited. Songer and Ibbs, with respect to this aspect, asserted that one concern of public agencies is how to allow for innovation while maintaining appropriate control of certain design aspects of the project. Determining an appropriate balance of innovation and control in design and adequately communicating the desired balance to potential design-and-build tenderers provides a significant challenge to public sector agencies.THE ‘TENDERING CONTRACT’Developments in the law relating to tenders traditionally treated an ‘invitation to tender’ or a ‘request for tenders’ as no more than an invitation to treat, an indication that the owner was ready to do business – something prior to and short of an offer . In other words, an invitation to treat was not an offer to make a contract with any person who might act on the invitation, butmerely a first step in negotiation which may, or may not, lead to a contract. When each tenderer submitted its tender in the prescribed form, it amounted to an offer which could be regarded as an offer to makea contract. If the offer met with unequivocal acceptance, contractual obligation arose between the owner and the successful tenderer .Recently, the modern view turns this theory upside down. There exists what is known as the ‘two contract’ analysis involving the emergence of the ‘tendering contract’. The invitation to tender is now in some circumstances to be treated as an offer to make a contract which a tenderer accepts when it submits a conforming tender. The owner makes an offer to each tenderer which might be worded as follows:“If you submit a tender in response to my invitation and which complies with the stipulations made, I will consider that tender …” .There is no obligation at all at this point on the side of the tenderers, but if a conforming tender is submitted, a contract is formed between owner and tenderer which has been described here as the ‘tendering contract’ or described elsewhere as a ‘pre-award contract’or ‘process contract’. This contract is quite distinct from the contract eventually entered into with the successful tenderer, called the main contract. Obligations of a contractual nature therefore arise between the owner and each tenderer who has submitted a proposal. Justas the tender contract places obligations on the owner, each tender also imposes obligations on the tenderer. Once the tender has been submitted to the owner, meaning the tender or first contract has been formed, the owner becomes obliged to each tenderer to perform its side of bargain, which at this stage is an obligation to consider all conforming tenders. By the same token, tenderers become obliged to not simply withdraw their tender, the tender will remain open for a stipulated period of time. Under the ‘two contract’ principle,a tenderer who makes a mistake may find that thetender is accepted with no opportunity to escape even if there is an error in tender compilation .For the sake of clarity, it may be stated that the submission of a conforming tender in response to an invitation can create contractual obligations for both parties. In the case: Ontario v. Ron Engineering & Construction Eastern Ltd, the Court of Canada held that a contract was brought into being automatically upon the submission of a responsive tender by each tenderer. Having established that a ‘tendering contract’ exists, it is then important to constitute what the terms are of that contract. The terms are derived from the tender conditions, the ‘tendercode’, andother relevant material such as legislation and correspondence . All or some of the provisions of the ‘tender code’ may be incorporated in the ‘tendering contract’ by reference and/or by implication. A terms may be implied to the effect that the owner must consider all conforming tenders, must treat all tenderers equally and fairly, and must award only a contract for the project tendered for.GUIDANCE ON CONTRACTOR SELECTIONThe Significance of Probity in TenderingProbity is defined in various dict ionaries as “moral excellence, integrity, uprightness, conscientiousness, honesty, sincerity”. In the tendering context, it generally depends upon confidentiality of documentation and decision making, objective and consistent assessment at each phase of decision making and resolution of any possible, perceived or actual conflicts of interest. Thus, one of the primary objectives of probity in tendering is to maintain the integrity of the bidding process. The Canadian court in the Ron Engineering case referred to this as the obligation of owners to treat all tenderers equally and fairly.Johnstone asserts that transparency in the entire contracting out process is essential so that potential contractors and members of the public can have confidence in the outcomes. If integrity and impartiality are not evident, tenderers may be reluctant to make a bid, the formulation of which requires significant amount of time and resources. In that case, competition is likely to be lessened and the best value for money may not be achieved.In principle, recent development in common law attempts to maintain some integrity in the tendering process by recognising the existence of the parties’ obligations to one another so that the owner cannot simply reject or accept tenders as it pleases, or cannot negotiate with one or more tenderers to produce satisfactory deal. As mentioned previously, the contractual obligation between the parties is referred to as the ‘tendering contract’. Breach of the ‘tendering contract’entitles the injured party to the normal remedy of damages. Probity in the tendering process ensures that fair and equal treatment to all tenderers is put in place and maintained so that no term of the ‘tendering contract’ is likely to be breached. Accord ing to Johnstone, common probity objectives are:·to ensure all respondents are assessed objectively and consistently· to ensure integrity in all evaluation and selection process· to ensure all confidential information is secured· to address any potential, or actual conflicts of interest· to promote defensibility of process.Guidelines to Avoid Breach of the ‘Tendering Contract’ in the Competitive Bidding Process On conclusion, Craig suggests some guidelines on how alternative tenders and tenders involving design proposals might be taken legitimately by the owner so as to avoid or minimise the likelihood of the clients placing themselves at risk of litigation due to a breach of the contractual obligations arising out of the ‘tendering contract’. They are specified as follows.· Under the ‘tendering contract’ the owner is obliged to treat all tenders equally and fairly. All conforming tenders must therefore be considered.·An effective ‘privilege clause’ which says something like “any tender will notnecessarily be accepted” will normally prevent an owner becoming obliged to accept any tender. All tenders may therefore be properly rejected. On the other hand, a term to the effect that a contract will be awarded to the lowest, or highest, bidder is enforceable. This implies that an owner cannot use the ‘privilege clause’ as an excuse for deviating from the contract evaluation and award criteria set down in the tender invitation or documents. Or, put it another way, the‘privilege clause’ does not allow the owner to: (i) choose comparatively among the tenderers based on criteria that has not been disclosed to the tenderers; or (ii) to award to another tenderer or another person something other than the main contract.· It would be a breach of the tendering obligation of equal and fair treatment for the owner to negotiate with one tenderer on terms which do not apply to other tenderers.·All tenderers are entitled to know the basis on which tenders will be evaluated and on which acontract-award decision will be made.·If innovation from tenderers is required, an owner must expressly create the right for a tenderer to submit an alternative tender. If the right then exists, the owner is obliged to consider such proposals. Tenderers must be informed of criteria for evaluation of such alternative proposals.·Tender conditions must define the scope of alternative tenders. That scope must be not too tight so as to restrict innovation, but not too wide so as to result in a proposal for a scheme quite different to the one originally tendered for.·Tender conditions for projects involving design must include criteria for evaluating that design. The criteria must be made known to all tenderers.·It is a breach of the ‘tendering contract’ for the owner to award a contract to a tenderer who offers something different to what was asked for in the invitation to tender.Furthermore, Johnstone adds· Invitation document should be accessible to all potential bidders. They should be expressed in readily understood terms.·It is easier to formulate appropriate selection criteria when the project specifications are developed first. Clear specifications and selection criteria assist possible contractors to formulate bids appropriately.· A policy in relation to non-conforming bids should be formulated and documented in the invitation documentation.·Often assessment of bids will involve a number of assessment panels. In this situation, there should be a separation of assessment panels. For example, a panel of experts may review financial viability whilst another will look at those same bids from a design perspective. Assessment panels would commonly be quarantined through the evaluation period. SUMMARYThis paper highlights the problems with competitive tendering in relation to contractor-led innovation. In the traditional method, contractor-led innovation may be encouraged at the tendering stage. However, to enable acceptance by the owner, criteria for evaluation of and the scope of alternative tenders must be clearly defined in the tender document. By the same token, tender conditions for projects involving design must include criteria for evaluating that design t.Guidance has been outlined of how to reduce the risk of owner falling into a breach of the ‘tendering contract’ in the competitive tendering process when it involves alternative tenders or design proposals. One of the alternative contractor selection methods identified has been briefly described.。
- 1、下载文档前请自行甄别文档内容的完整性，平台不提供额外的编辑、内容补充、找答案等附加服务。
- 2、"仅部分预览"的文档,不可在线预览部分如存在完整性等问题,可反馈申请退款(可完整预览的文档不适用该条件!)。
- 3、如文档侵犯您的权益，请联系客服反馈,我们会尽快为您处理(人工客服工作时间：9:00-18:30)。
工程招投标外文翻译文献(文档含英文原文和中文翻译)翻译:（一）工程招投标价格形成机制及价格控制１、前言企业的生产和销售产品的活动是一种经营活动，工程建设也是一种经营活动，投入的是人、财、物，产出的产品可以是铁路，桥梁，公路，民用建筑，或是一个工业生产装置等。
工程建设过程不是简单的投入和产出，它涉及到市场问题，用户问题，效益问题等等。
工程建设涉及到设计、物资采购和施工三个方面，而设计和施工是工程建设过程中的两个不同的阶段和两个独立的专业，和其它的商品生产一样需要分别进行成本控制并获取一定的利润。
因此在工程招投标中，工程造价的计算和控制显得尤其重要。
报价高固然为盈利奠定了基础，但是鉴于当前国内工程建设市场竞争已趋白热化，高价夺标已不可能。
特别是我国加入WTO以后，外国的工程承包企业要进入我国市场，和我国的工程承包企业展开竞争，另外我国的工程承包企业也同样要到国外的工程建设市场上谋求发展。
因此我们要总结过去国际国内承包工程建设经营管理的经验和教训，充分了解工程招投标中价格形成机制的特点和运行规律，对工程造价进行有效的控制，利用好两种资源，开拓两个市场，提高企业经济效益。
２、工程招投标价格形成机制建设工程造价，一般是指进行某项工程所花费（指预期花费或实际花费）的全部费用。
它是一种动态投资。
它的运动受价值规律、货币流通规律和商品供求规律的支配。
因此在承包工程投标报价计算中我们要运用决策理论、会计学、经济学等理论评定报价策略，经过从行政上、技术上和商务上进行全面鉴别、比较以后采用科学的计算方法和切合实际的计价依据，合理确定工程造价，使其报价中标。
⑴我国现行工程造价计价依据的特点由于我国现行的工程造价管理制度是在计划经济模式下建立的，忽视了企业独立的经济地位，国家直接参与管理活动，直接制定和控制构成工程造价的各种因素，如设备材料出厂价、采购保管费、运杂费、工资、间接费、管理费和税金等。
不适应市场经济条件下的国际国内承包工程的投标报价工作。
我国施工企业也很少有自己的施工预算定额，这给国际承包工程投标报价工作带来了一定的难度。
虽然近几年各类工程咨询公司纷纷出现，建设项目实行招投标竞争、项目管理制度，但是在工程造价计价依据方面，定额、取费标准仍然由政府制定、管理并作为法定价格。
因此在工程造价管理中，轻决策、重实施，轻经济、重技术的现象难于改变。
⑵市场经济条件下招投标工程计价依据的特点在市场经济条件下，能够及时、准确地捕捉工程建设市场价格信息是业主和承包商保持竞争优势、控制成本和取得盈利的关键，是工程招投标价格计算和结算的重要依据。
因此我们还要加大现行的工程造价计价依据的改革力度，在统一工程项目划分、统一计量单位、统一工程量计算规则和消耗定额的基础上，遵循商品经济的规律，建立以市场形成价格为主的价格机制。
即实行量价分离，改变计价定额的属性，定额不再作为政府的法定行为，但是量要统一，要在国家的指导下，由有关的咨询公司或专业协会制定工程量计算规则和消耗定额，促进市场公平竞争，保持社会生产力平衡发展。
价要逐步放开，先由定额法定价向指导价过渡，再由指导价向市场价过渡，与国际市场接轨。
企业可以根据自身公司人员技术水平、装备水平、管理能力、资质、经验和社会信誉制定企业自己的定额与取费标准。
在具体某一项工程的投标报价计算时再根据市场供求变化、政府和社会咨询机构提供的价格信息和造价指数、工程质量、承包方式、合同工期、价款支付方式等因素，按照国际惯例、规范和做法灵活自主报价。
(3)工程招投标价格的计算工程招投标价格的表现形式是标底。
标底的计算主要有三种：施工图设计阶段，以预算定额为基础；初步设计或扩大初步设计阶段以概算定额为基础；另一种就是综合单价法。
我们知道许多工程是在初步设计或扩大初步设计阶段就开始招标，因此用概算定额为基础编制标底可以在一定程度上避免漏项或重复计算的差错，保证计算结果的准确性，但使用的概算定额必须准确、有效。
为了适应招投标的需要，目前各工程咨询公司、专业协会可以在政府主管部门的指导下，在2000年国家全统定额及各省建委编制的建筑工程定额，房屋修缮、装修定额，市政定额的基础上将某些子目合并归于主要的子目中，编制概算定额。
这样可以大大简化标底的编制工作量，节省时间。
各企业也可以在概算定额的基础上进行费用合并，取消取费类别，变为竞争性费率。
既将间接费、管理费、利润等企业竞争性费用及国家法定的税金费率等所有费用均列入每一项单价中，不另外单独计算，也既综合单价法。
这样再结合企业积累的工程资料库，根据市场供求变化、政府和社会咨询机构提供的价格信息和造价指数等因素，可以进一步缩短标底的编制时间，达到更高的准确度，为利用计算机快速报价创造必要的条件。
今后企业类别在企业的资质中体现，主要用于衡量企业可以承担的相应工程类别。
为了提高工程招投标价格的竞争力，在编制施工组织设计时要体现先进的劳动生产率，要努力降低工程施工的间接时间，空闲、浪费时间，减少和消除设计变更、施工错误导致的返工时间。
另外要避免施工机械的无效闲置，减少临时设施的占地面积，减少库存，提高资金的利用率，等等。
3、工程招投标价格的有效控制招投标工程对于承包商来说风险很大，从决定响应招标文件，编制投标文件开始风险就产生了。
在投标价格计算时有风险，价格高了不中标，丢项落项也不中标，一旦中标就可能有亏损的风险。
在工程建设过程中也始终存在着风险因素，有市场价格变化风险、设计风险、物资采购风险、施工管理风险等等，直至工程竣工验收合格，工程款、质量保证金如数收回，人员、施工机械安全撤回基地或转移到另一个工程现场，这个工程的风险才最终消失。
因此招投标工程必须做好风险控制，而工程招投标价格的有效控制显得尤为重要。
⑴开展财务决策财务决策是企业的生产经营和财务管理的一个重要组成部分，是从财务角度对企业经营决策方案的评价和选择。
在国际工程投标价格计算中，要想工程中标并有赢利必须有以适应市场经济体制的财务机制相伴随。
它的主要任务就是提供企业资金动态信息，密切关注市场变化，作出前瞻性预测分析，为企业投标报价提供决策依据。
传统的会计计帐式事后管理思想模式，使得现行的概预算制度一直只是重视承包工程的建筑安装工程费用管理，而忽视整个项目的造价管理，不重视总体效果的最优化，没能把现代化管理思想即先预测、后控制的思想和方法纳入到体系内。
事后核算式的概预算管理制度不能防止和解决决策及设计阶段的失误、浪费和钓鱼工程，也不能防止和解决设备材料采购保管中的价格问题、质量问题及库存等问题。
概预算管理离不开定额，甲乙双方都要以定额为基础开展工作，相互沟通、理解，离开这一标准尺度就无所适从，上级管理部门、审计部门和仲裁机构也都以定额作为评判的标准，这是一种静态的投资控制。
招投标价格计算与概预算管理不同，工程招投标价格的计算事先就要考虑到企业内外部环境的因素，考虑到人工、材料、机械台班等价格的变化因素。
要了解工程的地理条件和工程范围，要了解项目运行的全过程、项目的组织机构、质量管理、资源管理、合同管理。
要研究折旧、技术措施、临时设施的摊销、风险分析。
还要与采用的施工方案、标准规范、选用的施工机械、工程价款的支付方式等相结合对投标价格进行分析，作出财务决策，这是一种微观管理。
因此我们应将“控制”立足于事前，在投标报价时就要主动地采取财务决策，使技术与经济相结合控制工程造价，保证中标和赢利。
⑵根据工程实际情况采用有利的合同价格形式经济合同是法人之间为实现一定的经济目的，明确相互权利义务的协议。
签定合同不仅仅是一种经济业务活动，而且也是一种法律行为，是运用法律手段和经济手段相结合来管理经济的一种措施。
因此在市场经济条件下，工程招投标不仅仅是一个定价的问题，而是要把设计文件、合同条件、文本管理和招标、投标都结合起来。
不仅仅要算准价格，还要报出合理的有竞争性的标书价格。
工程招投标结束以后，通过招投标所形成的价格，要通过合同价格的形式固定下来。
通过合同管理实现对招投标价格的有效控制。
合同价款与支付条款是经济合同的核心条款之一，在合同谈判、签定、执行、管理过程中处于重要地位。
因此招投标合同价确定下来以后，可以改变过去重进度和质量控制，轻成本控制的思想。
对于当年开工，当年竣工的工程，设计部门、施工企业、物质供应部门可以按各自的承包范围，采用固定总价合同，价格从头到尾一次包死。
对于跨年度的较大工程或设计文件不完备，工程量不能固定的工程，可以采用单价合同。
对于价格变化趋势不清楚，不能一次包死的工程，可以按国际惯例，有所包死，有所不包。
我们也可以在合同中规定价格调整范围以及价格调整计算公式，等等，以减少风险。
⑶实行限额设计对于一个工程来说，在其投资建设期涉及到设计、物资采购和施工管理三个方面。
工程投资效益的好坏，工程造价的高低，起决定作用的是设计。
工程设计阶段是形成工程价格的首要阶段，在这个阶段节约投资的机会多、金额大、付出的代价小。
工程质量、建设周期、项目功能、项目寿命和项目投资回报率等都在设计阶段以技术和投资费用的形式表现出来。
目前的概预算管理往往只重视施工阶段的造价管理，而忽视设计阶段和物资采购阶段的造价管理，出现预算超概算，结算超预算的现象也就在所难免。
在工程招投标机制下，工程设计工作的特点是技术决定经济，经济制约技术，因此要做好工程招投标价格的有效控制必须实行限额设计，既实现对设计规模、设计标准、设计深度、工程数量与投资额等各个方面的有效控制。
⑷改进物质采购管理制度，逐步与市场接轨。
在建筑安装工程中，材料费大约占建安工程费的70％左右。
在安装工程中，设备费也占有很大的比重。
因此影响工程招投标价格的另一个因素就是物质采购管理制度。
要想真正使得市场形成价格的机制得以有效运行，就要有相适应的物资采购管理制度。
目前我们在工程造价管理中，在计算主材费时普遍采用的计算依据是当地建委编制的《XXX地区XXXX年材料预算价格本》，实际供应价与价格本中的价格之差，在结算时找补。
这种管理方法不能控制采购渠道、采购价格，不能做到事前的成本控制，使工程投资无法控制，工程结算价往往超过概预算价格或招投标合同价格。
因此在市场经济条件下，无论是业主还是承包商采购物质，都要在投标报价或合同规定的品种、数量、质量、价格范围内实行限额采购，努力降低设备材料费。
比如，实行比价采购管理，要货比三家，采购价不能高于预算价、成本价；另外还要建立和完善内部采购审核制度，实行决策权、执行权、审核权三权分立，等等，从而有效控制工程造价。
⑸工程索赔是招投标价格控制的又一项重要工作工程招投标价格控制的另一个特点是工程索赔管理。
索赔是法律和合同赋予的正当权利，我们应当树立起索赔意识，重视索赔、善于索赔，建立健全索赔管理机制。
目前的概预算管理制度中结算常采用预算加设计变更加签证的做法，是一种事后算帐的做法，而招投标工程中价格要以合同的形式固定下来，对于设计变更、超合同范围的工作量、不可预见费、不可抗力以及对方违约造成的损失则要通过索赔的形式来维护自己的利益。