The rules governing the conduct of the competitive bid process should be documented clearly in the expression of interest and request for binding bid documents and provided to all proponents at the beginning of the relevant phase of the process. These rules should normally cover:
• any restrictions on the eligibility of parties to bid
• the scope, content and format required of conforming bids
• any mandatory requirements of bids or proponents for instance, any skills or experience which the proponent must possess in order to participate in the public private partnership process
• the government's objectives for the public private partnership process and the bid evaluation criteria
• the deadline for the submission of bids and the location at which they are to be lodged
• procedures for handling day to day contact between the government project team and proponents
• details of any parties which proponents are prohibited to contact
• other procedures governing the provision of information to proponents, including any confidentiality arrangement
• a statement of the government's rights-for instance, to terminate the public private partnership process or unilaterally vary the rules which govern it.
The expression of interest and request for binding bid documents have legal status and, as underlined in the Hughes Aircraft case1, the government is bound by their terms. In this regard, it is essential that the expression of interest and request for binding bid documents are carefully drafted to provide a flexible, practically workable framework in which both the government and the market can have confidence. The government must strictly apply all rules outlined in the expression of interest and request for binding bid documents. If the government wants to retain discretion to tolerate minor variances from its bidding rules, it should include appropriately explicit provisions to that effect in the documents.
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1 Hughes Aircraft Systems International v Airservices Australia [1997] 558 FCA.