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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22888
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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My company recently tendered contract with Auckland City

Customer Question

My company recently tendered for a contract with Auckland City Council ,constructing a boardwalk within the Coastal Marine Area . The Tender evaluations were based on the Weighted Attribute Method .
Relevant Experience and Track Record 30 %
Management and Methodology 20 %
Personnel and Resources 10 %
Health and Safety Pass / Fail
Price 40 %
We came first in total points for our non price attributes and second overall with our price being approx. 10 % more than the company the contract was awarded to .
However we offered an Alternative Proposal which resulted in our tender price being approx. 20 % less than the Awarded Contractors price .
Councils Procurement team came back to us requesting some clarifications regarding methodology . We replied in great detail .
I believe the Contract was about to be awarded to us as the evaluation team were happy with our alternative submission .
At the 11th hour the Council Project Leader decided to run our alternative methodology by the planners that had been engaged to present reports for notified Consent requirements .
The planners asked the Coastal Marine Area if our alternative proposal required building consent .
We were informed at a debrief meeting that our alternative proposal was non compliant with the resource consent conditions as our alternative methodology submitted did require a building consent .
We completely disagreed with this .
The particular methodology offered was as follows :
In the Schedule of Prices there is an item that requires the removal and disposal of several boat ramps adjacent to and within the boardwalk alignment , which have been deemed illegal structures .
In our detailed alternative methodology we suggested temporarily strengthening these structures to enable our machinery egress/ access between tides . We would remove and dispose of these structures once we had progressed the boardwalk construction up to the position of the illegal structures . Bearing in mind the new boardwalk is to connect to land at the positions of these existing illegal structures , therefore earthworks will be required for boardwalk to be attached to land .
My question is do I require a building permit to temporarily strengthen / Brace these illegal structures in order safely get in and out of the marine area between tides . After all we would have been contracted to remove these structures if awarded the project .
The methodology offered in the tender was constructing the piling and superstructure from a barge . This method entailed engaging a subcontractor for this specialised work and the bot***** *****ne being $100 k price more than my alternative ..
Should I be seeking a determination from the dpt.housing & Building
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

Once the contract is awarded there is nothing further which you can do to obtain the contract yourself, or challenge e decision. In construction law it is well established that the award of a tendered contract is very difficult to overturn. So while you could get a determination to disprove what they have said, it won't then help you overturn the decision to give this to someone else.

Customer: replied 1 year ago.
Hi Chris ,
Thanks for the reply , although I am aware of contract award being overturned is a very protracted and expensive exercise , my question was more in line with weather we require building consent for the bracing and making safe, the illegal structures or is this a question I should be asking of the dpt. of Building & Housing , for a determination .If their is a section that specifically covers this in the act that you are aware of please let me know .What I am looking for is some reference to prove the Council reasoning for the decision in not awarding me the contract , is inaccurate .Once I have that, then I guess I will need to find what NZS 3910 has to offer in the way of dispensation and from which party .I t may sound like sour grapes but this is not the first time Council have discarded by tender applications with out plausible reasoning ..and going forward if I am wasting my time tendering for these projects .
Expert:  Chris The Lawyer replied 1 year ago.

You can get rulings from MBIE as I think you are aware and the contacts are:-

If you’re unsure whether applying for a determination is your best option, contact the Determinations Team for further information on 0800 242 243, or email *****@******.***.

NZS 3910 will not however give a remedy because this provides for rememdies when you have a contract, and as you didnt get one after the tender, this wont apply. But this can also be a political issue, and if you geta determination about the faulty reasoning you can ask councillors to ask questions, or even possible Audit NZ if you think the council is not applying appropriate reasoning

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