Page 1 GHANA 29055 COUNTRY PROCUREMENT ASSESSMENT REPORT 2003 Vol. 4 ANNEX 8 A BILL ENTITLED THE PUBLIC PROCUREMENT ACT, 2003 Page 2 Page 3 1 A BILL ENTITLED THE PUBLIC PROCUREMENT ACT, 2003 AN ACT to provide for public procurement, establish the Public Procurement Board; make administrative and institutional arrangements for procurement; stipulate tendering procedures and provide for purposes connected with these. BE IT ENACTED by Parliament as follows: PART I – ESTABLISHMENT OF THE PUBLIC PROCUREMENT BOARD Public Procurement Board 1. (1) There is established by this Act a body to be known as the Public Procurement Board, referred to in this Act as the “Board”. (2) The Board shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. (3) The Board may acquire, hold, manage or dispose of any movable or immovable property in connection with the discharge of its functions and may enter into contracts and transactions that are reasonably related to its functions. Object of the Board 2. The object of the Board is to harmonise the processes of public procurement in the public service to secure a judicious, economic and efficient use of state resources in public procurement and ensure that public procurement is carried out in a fair, transparent and non-discriminatory manner. Functions of the Board 3. In furtherance of its object the Board shall perform the following functions: (a) Make proposals for the formulation of policies on procurement; (b) Ensure policy implementation and human resource development for the public procurement process; (c) Develop draft rules, instructions, other regulatory documentation on public procurement and formats for public procurement documentation; (d) monitor and supervise public procurement and ensure compliance with statutory requirements; (e) have the right to obtain information concerning public procurement from contracting authorities; (f) establish and implement an information system relating to public procurement; Page 4 2 (g) publish a monthly Public Procurement Bulletin, which shall contain information germane to public procurement, including proposed procurement notices, notices of invitation to tender and contract award information; (h) assess the operations of the public procurement processes and submit proposals for improvement of the processes; (i) present annual reports to the Minister on the public procurement processes; (j) facilitate the training of public officials involved in public procurement at various levels; (k) develop, promote and support training and professional development of persons engaged in public procurement, and ensure adherence by the trained persons to ethical standards; (l) advise Government on issues relating to public procurement; (m) organise and participate in the administrative review procedures in Part VII of this Act; (n) plan and coordinate technical assistance in the field of public procurement; (o) maintain a register of procurement entities and members of and secretaries to tender committees of public procurement entities; (p) maintain a register of suppliers, contractors and consultants and record of prices; (q) investigate and debar from procurement practice under this Act suppliers, contractors and consultants who have seriously neglected their obligations under a public procurement contract, have provided false information about their qualifications, or offered inducements of the kind referred to in section 31 of this Act; (r) maintain a list of firms that have been debarred from participating in public procurement and communicate the list to procurement entities on a regular basis; (s) hold an annual procurement forum for consultations on issues related to public procurement and to deal with complaints and appeals on public procurement; (t) assist the local business community to become competitive and efficient suppliers to the public sector; and (u) perform such other functions as are incidental to the attainment of the objects of this Act. Page 5 3 Membership of the Board 4. (1) The Board comprises (a) A chairperson, who shall be a person competent and experienced in public procurement; (b) A vice-chairperson; (c) Four persons from the public sector made up of a representative of the Attorney General and three other persons, nominated by the Minister, one of whom is a woman and each of whom shall have experience in public procurement and be familiar with governmental and multi-lateral agency procurement procedures; (d) Four persons from the private sector who have experience in procurement at least one of whom is a woman; (e) The Chief Executive of the Board. (2) The members of the Board shall be appointed by the President acting in consultation with the Council of State. (3) The Vice-Chairperson shall be elected by the members from among their number and shall be one of the members appointed from the private sector. Term of office 5. (1) A member of the Board other than the Chief Executive, (a) Shall hold office for a term of four years and is eligible for re-appointment for another term only; (b) May in writing addressed to the President through the Minister resign from office. (2) A member may be removed from office by the President acting in consultation with the Council of State for inability to perform the functions of office, infirmity or any sufficient cause. (3) Members shall be paid allowances determined by the Minister. Meetings of the Board 6. (1) The Board shall meet for the despatch of business at such times and places as the Chairperson may determine but shall meet at least once every month. (2) The Chairperson shall preside at meetings of the Board and in the absence of the Chairperson the Vice-Chairperson shall preside and in the absence of both; the members shall elect one of their number to preside. (3) The quorum for a meeting of the Board shall be six including the Chief Executive. Page 6 4 (4) The Board may co-opt any person to act as adviser at a meeting of the Board, except that a co-opted person does not have the right to vote on any matter before the Board for decision. (5) The validity of the proceedings of the Board shall not be affected by a vacancy among its members or by a defect in the appointment or qualification of a member. (6) Except as otherwise expressly provided, the Board shall determine the procedure for its meetings. Committees of the Board 7. The Board may for the discharge of its functions appoint committees of the Board comprising members of the Board or non-members or both and may assign to them such functions as the Board may determine except that a committee composed entirely of non-members may only advise the Board. Secretariat of the Board 8. (1) The Board shall have a Secretariat with such divisions and structures determined by the Board as may be necessary for the effective execution of its functions. (2) The Board shall have an officer to be designated the Secretary who shall perform the function of keeping accurate records of proceedings and decisions of the Board and such other functions as the Chief Executive may direct. (3) The Board may engage such consultants and advisers as it may require for the proper and efficient discharge of the functions of the Secretariat. Chief Executive of the Board 9. (1) The Chief Executive of the Board shall be appointed in accordance with article 195 of the Constitution. (2) The Chief Executive shall hold office on such terms and conditions as may be in the letter of appointment to office. (3) Subject to such general directions as the Board may give; the Chief Executive is responsible for the day-to-day administration of the Secretariat of the Board and the implementation of the decisions of the Board. (4) The Chief Executive may delegate functions of the office as Chief Executive to any officer of the Secretariat but shall not be relieved of the ultimate responsibility for the discharge of the delegated function. Page 7 5 Expenses of the Board 10. Parliament shall provide the Board with such monies as it may require to meet its expenditure. The Board may also receive monies from other sources approved by the Minister. Accounts and audit 11. (1) The Board shall keep proper books of account and proper records in relation to them and the account books and records of the Board shall be in a form approved by the Auditor-General. (2) The books and accounts of the Board shall be audited annually by the Auditor-General or by an auditor appointed by the Auditor-General. Financial year of Board 12. The financial year of the Board shall be the same as the financial year of the Government. Annual report 13. (1) The Board shall in each year submit to the Minister an annual report indicating the activities and operations of the Board in respect of the preceding year. (2) The annual report shall include a copy of the audited accounts together with the Auditor- General’s report and the Minister shall as soon as practicable after receipt of the annual report submit the report to Parliament with such comment as the Minister considers necessary. PART II –PROCUREMENT STRUCTURES Scope of application 14. (1) This Act applies to (a) The procurement of goods, works and services, financed in whole or in part from public funds except where the Minister decides that it is in the national interest to use a different procedure; (b) Functions that pertain to procurement of goods, works and services including the description of requirements and invitation of sources, preparation, selection and award of contract and the phases of contract administration; (c) The disposal of public stores and equipment; and (d) Procurement with funds or loans taken or guaranteed by the State and foreign aid funds except where the applicable loan agreement, Page 8 6 guarantee contract or foreign agreement provides the procedure for the use of the funds. (2) Without limiting subsection (1), this Act applies to (a) Central management agencies; (b) Government ministries, departments and agencies; (c) Subvented agencies; (d) Governance institutions; (e) State owned enterprises to the extent that they utilise public funds; (f) Public universities, public schools, colleges and hospitals; (g) The Bank of Ghana and financial institutions such as public trusts, pension funds, insurance companies and building societies which are wholly owned by the State or in which the State has majority interest; (h) Institutions established by Government for the general welfare of the public or community. (3) Where the Minister decides under subsection (1)(a) that it is in the national interest to use a different procedure, the Minister shall define and publish in the Gazette the method of procurement to be followed in order to serve the interest of economy. Procurement entity 15. (1) A procurement entity is responsible for procurement, subject to this Act and to such other conditions as may be laid down in the procurement regulations and the instructions of the Minister, issued in consultation with the Board. (2) The head of an entity and any officer to whom responsibility is delegated are responsible and accountable for action taken and for any instructions with regard to the implementation of this Act that may be issued by the Minister acting in consultation with the Board. (3) Procurement decisions of an entity shall be taken in a corporate manner and any internal units concerned shall contribute to the decision making process. (4) The head of an entity is responsible to ensure that provisions of this Act are complied with; and concurrent approval by any Tender Review Board shall not absolve the head of entity from accountability for a contract that may be determined to have been procured in a manner that is inconsistent with the provisions of this Act. Declaration of procurement entity 16. (1) The Minister may, in consultation with the Board, by notice in the Gazette, declare any entity or person to be a procurement entity. (2) Entities and participants in a procurement process shall, in undertaking procurement activities, abide by the constitutional provisions on corruption. Page 9 7 (3) An act shall amount to corrupt practice if so construed within the meaning of corruption as defined in the Criminal Code, 1960 (Act 29). (4) Subject to approval by the Board, a procurement entity may undertake procurement in accordance with established private sector or commercial practices if (a) The procurement entity is legally and financially autonomous and operates under commercial law; (b) It is beyond contention that public sector procurement procedures are not suitable, considering the strategic nature of the procurement; and (c) The proposed procurement method will ensure value for money, provide competition to the extent possible and provide transparency to the extent possible. Tender Committee 17. (1) each procurement entity shall establish a Tender Committee in a manner set out in Schedule 1. (2) In the performance of its functions, a Tender Committee shall (a) Ensure that at every stage of the procurement activity, procedures prescribed in this Act have been followed; (b) Exercise sound judgment in making procurement decisions; and (c) Refer to the appropriate Tender Review Board for concurrent approval; any procurement above its approval threshold, taking into consideration the fact that approval above the Entity Committee is a one stop only approval. Page 10 8 Tender evaluation panel 18. (1) each procurement entity shall appoint a tender evaluation panel with the required expertise to evaluate tenders and assist the Tender Committee in its work. (2) In the performance of its functions, a tender evaluation panel shall proceed according to the predetermined and published evaluation criteria. Tender Review Boards 19. (1) There shall be established at each level of public procurement the following Tender Review Boards in the manner set out in Schedule 2 (a) Central Tender Review Board; (b) Ministerial/Headquarters Tender Review Boards; (c) Regional Tender Review Boards; (d) District Tender Review Boards. (2) A Tender Review Board shall perform the following functions: (a) In relation to the particular procurement under consideration, review the activities at each step of the procurement cycle leading to the selection of the lowest evaluated bid, best offer, by the procurement entity in order to ensure compliance with the provisions of this Act and its operating instructions and guidelines; (b) Subject to subsection (2)(a), give concurrent approval or otherwise to enable the procurement entity continue with the procurement process; (c) Furnish the Board with reports in a prescribed format; and (d) Participate in public procurement fora. (3) A Tender Review Board may engage such consultants and advisers, or co-opt persons with specialized expertise as it may require for the proper and efficient discharge of its functions. Page 11 9 PART III – PROCUREMENT RULES Procurement plan 20. (1) a procurement entity shall prepare a procurement plan to support its approved programme and the plan shall indicate (a) Contract packages, (b) Estimated cost for each package, (c) The procurement method, and (d) Processing steps and times. (2) A procurement entity shall submit to its Tender Committee not later than one month to the end of the financial year the procurement plan for the following year for approval. (3) After budget approval and at quarterly intervals after that, each procurement entity shall submit an update of the procurement plan to the Tender Committee. (4) The procurement entity shall send to the Tender Review Board, procurement notices for contracts and procurement plans above the thresholds stipulated in Schedule 3 for publication in the Public Procurement Bulletin. (5) A procurement entity shall not divide a procurement order into parts or lower the value of a procurement order to avoid the application of the procedures for public procurement in this Act. Qualification of tenderers 21. (1) a tenderer in public procurement shall (a) Possess the necessary (e) Professional and technical qualifications and competence; (ii) Financial resources; (iii) Equipment and other physical facilities; (iv) Managerial capability, reliability, experience in the procurement object and reputation; and (v) The personnel to perform the procurement contract; (b) Have the legal capacity to enter the contract; (c) Be solvent, not be in receivership, bankrupt or in the process of being wound up, not have its business activities suspended and not be the subject of legal proceedings; Page 12 10 (d) Have fulfilled its obligations to pay taxes and social security contributions and any paid compensation due for damage caused to property by pollution; (e) Have directors or officers who have not in any country been (i) Convicted of any criminal offence relating to their professional conduct or to making false statements or misrepresentations as to their qualifications to enter into a procurement contract, within a period of ten years preceding the commencement of the procurement proceedings; or (ii) Disqualified pursuant to administrative suspension or disbarment proceedings. (f) Meet such other criteria, as the procurement entity considers appropriate. (2) The procurement entity may require tenderers to provide appropriate documentary evidence or other information that it considers useful to satisfy itself that the tenderers are qualified in accordance with the criteria referred to in subsection (1). (3) Any requirement established pursuant to this section stated in the tender documents or other documents for invitation of proposals shall apply equally to the tenderers. (4) The procurement entity shall evaluate the qualifications of candidates in accordance with the criteria and procedures stated in the documents referred to in subsection (3). (5) The procurement entity shall disqualify a tenderer who submits a document containing false information for purposes of qualification. (6) The procurement entity may disqualify a candidate if it finds at any time that the information submitted concerning the qualifications of the candidate was materially inaccurate or materially incomplete. Prequalification proceedings 22. (1) a procurement entity may engage in prequalification proceedings to identify tenderers who are qualified prior to the submission of tenders. (2) Tenderers for prequalification proceedings shall meet the qualification criteria of the procurement entity and the proceedings shall be conducted pursuant to Part IV and V. (3) A procurement entity shall supply a set of prequalification documents to each supplier or contractor that requests them; and the price that a procurement entity charges for the prequalification documents shall reflect the cost of printing and provision to suppliers or contractors. (4) The prequalification documents shall include (a) Instructions to prepare and submit prequalification applications; (b) A summary of the main terms and conditions required for the procurement contract to be entered into as a result of the procurement proceedings; Page 13 11 (c) Any documentary evidence or other information that must be submitted by suppliers or contractors to demonstrate their qualifications; (d) The manner and place for the submission of applications to prequalify and the deadline for the submission, expressed as a specific date and time which allows sufficient time for suppliers or contractors to prepare and submit their applications, taking into account the reasonable needs of the procurement entity; (e) Any other requirement that may be established by the procurement entity in conformity with this Act and procurement regulations relating to the preparation and submission of applications to prequalify and to the prequalification proceedings; and (f) In proceedings under Part V, the information required to be specified in the invitation to tender by section 47(1)(a) to (e) and if the information required under section 47(1)(a) to (e) is already known, the information required under paragraphs (j) and (k) of section 47(1). (5) The procurement entity shall respond to any request by a supplier or contractor for clarification of the prequalification documents if the request is made at least within ten days prior to the deadline for the submission of applications to prequalify. (6) The response by the procurement entity shall be given within a reasonable time and in any event within a period of at least seven working days so as to enable the supplier or contractor to make a timely submission of its application to prequalify. (7) The response to any request that might reasonably be expected to be of interest to other suppliers or contractors shall, without identifying the source of the request, be communicated to other suppliers or contractors provided with the prequalification documents by the procurement entity. Decision on prequalification 23. (1) the procurement entity shall make a decision with respect to the qualification of each supplier or contractor submitting an application to prequalify and in reaching that decision shall apply only the criteria set out in the prequalification documents. (2) The procurement entity shall promptly notify each supplier or contractor submitting an application to prequalify of whether or not it has been prequalified and shall make available to any member of the general public upon request, the names of the suppliers or contractors who have been prequalified. (3) Suppliers or contractors who have been prequalified may participate further in the procurement proceedings. (4) The procurement entity shall upon request communicate to suppliers or contractors who have not been prequalified, the grounds for disqualification but the procurement entity is not required to specify the evidence or give the reasons for its finding on the grounds. (5) The procurement entity may require a supplier or contractor who has been prequalified to demonstrate its qualifications again in accordance with the same criteria used to prequalify the supplier or contractor. (6) The procurement entity shall disqualify any supplier or contractor who fails to demonstrate its qualification again if requested to do so. Page 14 12 (7) The procurement entity shall promptly notify each supplier or contractor requested to demonstrate its qualifications again whether or not the supplier or contractor has done so to the satisfaction of the procurement entity. Participation by suppliers, contractors or consultants on nationality basis 24. (1) Suppliers, contractors or consultants are permitted to participate in procurement proceedings without regard to nationality, except in cases where the procurement entity decides to limit participation in procurement proceedings on the basis of nationality. (2) A procurement entity that limits participation on the basis of nationality pursuant to subsection (1), shall include in the record of the procurement proceedings a statement of the grounds and circumstances on which it relied. (3) The procurement entity shall declare to suppliers, contractors and consultants that they may participate in procurement proceedings regardless of nationality when inviting participation in procurement proceedings and this declaration may not be altered except if the procurement entity decides to limit participation in accordance with subsection (1) which decision shall be communicated to the supplier, contractor or consultant. Form of communication 25. Communication between procurement entities and suppliers, contractors and consultants shall be in writing and communications in any other form shall be referred to and confirmed in writing. Documentary evidence in procurement proceedings 26. The documentary evidence required in procurement proceedings shall comply with the Evidence Decree, 1975 (NRCD 323) Record of procurement proceedings 27. (1) A procurement entity shall maintain a record of the procurement proceedings containing the following information (a) A brief description of the goods, works or services to be procured, or of the procurement need for which the procurement entity invited proposals or offers; (b) The names and addresses of suppliers or contractors that submitted tenders, proposals, offers or quotations, and the name and address of the supplier or contractor with whom the procurement contract is entered; (c) Information relating to the qualifications, or lack of qualifications of suppliers or contractors that submitted tenders, proposals, offers or quotations; Page 15 13 (d) The price, or the basis for determining the price and a summary of the other principal terms and conditions of each tender, proposal, offer or quotation and of the procurement contract if these are known to the procurement entity; (e) A summary of the evaluation and comparison of tenders, proposals under section 68, offers or quotations including the application of any margin of preference pursuant to section 59; (f) If the tenders, proposals, offers or quotations were rejected a statement to that effect and the grounds for the rejection; (g) If, in procurement proceedings involving methods of procurement other than tendering, those proceedings did not result in a procurement contract, a statement to that effect and the reasons; (h) The information required under section 28 if a tender, proposal, offer or quotation was rejected pursuant to that provision; (i) A statement of the grounds and circumstances on which the procurement entity relied to justify the selection of the method of procurement used; (j) In the procurement of services by means of Part VI, the statement required under section 70 of the grounds and circumstances on which the procurement entity relied to justify the selection procedure used; (k) In procurement proceedings involving direct invitation of proposals for services in accordance with section 62(3), a statement of the grounds and circumstances on which the procurement entity relied to justify the direct invitation; (l) In procurement proceedings in which the procurement entity, in accordance with section 24(1), limits participation on the basis of nationality, a statement of the grounds and circumstances relied upon by the procurement entity for the limitation; (m) A summary of any requests for clarification of the prequalification or invitation documents, the responses received as well as a summary of any modification of the documents; (n) A record of any complaints received from suppliers, contractors or consultants and the responses received. (2) Subject to section 50(2), the portion of the record referred to in subsection (1)(a) and (b) shall, on request, be made available to any person after a tender, proposal, offer or quotation has been accepted or after procurement proceedings have been terminated without resulting in a procurement contract. (3) Subject to section 50(2), the portion of the record referred to in subparagraphs (c) to (g) and (m) of subsection (1) shall, on request, be made available to suppliers, contractors or consultants that submitted tenders, proposals, offers or quotations, or applied for prequalification, after a tender, proposal, offer or quotation has been accepted or procurement proceedings have been terminated without resulting in a procurement contract. (4) Disclosure of the portion of the record, referred to in subsections (1) (c) to (e), and (1)(m), may be ordered at an earlier stage by a competent court; except that when ordered to do so by a competent court, and subject to the conditions of the court order, the procurement entity shall not disclose Page 16 14 (a) Information if its disclosure would (i) Be contrary to law; (ii) Impede law enforcement, (iii) Not be in the public interest; (iv) Prejudice legitimate commercial interests of the parties; or (v) Inhibit fair competition as provided under the Protection Against Unfair Competition Act, 2000 (Act 589); or (b) Information relating to the examination, evaluation and comparison of tenders, proposals, offers or quotations, and tenders, proposal, offer or quotation prices, other than the summary referred to in subsection (1) (e) of this section. (5) The procurement entity is not liable to suppliers, contractors or consultants for damages owing solely to a failure to maintain a record of the procurement proceedings in accordance with this section. (6) Records and documents maintained by procurement entities on procurement shall be made available for inspection by the Public Procurement Board; an investigator appointed by the Board and the Auditor-General upon request; and where donor funds have been used for the procurement, donor officials should also have access upon request to procurement files for the purpose of audit and review. Page 17 15 Rejection of tenders, proposals and quotations 28. (1) A procurement entity may reject tenders, proposals and quotations at any time prior to acceptance on economic grounds if the grounds for the rejection are specified in the tender documents or in the request for proposals or quotations. (2) The grounds for rejection shall be communicated to the tenderer but justification for the rejection is not required and the procurement entity shall not incur liability towards the tenderer. (3) Notice of the rejection shall be given to participating tenderers within two days from the date the procurement entity decides to discontinue with the tender process. (4) If the decision to reject tenders is taken before the closing date, tenders received shall be returned unopened to the tenderers submitting them. (5) The rejection of the tender, proposal, offer or quotation with reasons shall be recorded in the procurement proceedings and promptly communicated to the supplier or contractor. Entry into force of the procurement contract 29. (1) In tender proceedings, acceptance of the tender and entry into force of the procurement contract shall be carried out in accordance with section 64 of this Act. (2) In the other methods of procurement, the manner of entry into force of the procurement contract shall be notified to the suppliers or contractors at the time that proposals, offers or quotations are requested. Public notice of procurement contract awards 30. (1) a procurement entity shall promptly publish notice of procurement contract awards. (2) Regulations shall provide for the manner of publication of the notice of procurement contract awards. Inducements from suppliers, contractors and consultants 31. A procurement entity shall reject a tender, proposal, offer or quotation if the supplier, contractor or consultant that submitted it offers, gives or agrees to give, directly or indirectly, to any current or former officer or employee of the procurement entity or other governmental authority, (a) A gratuity in any form; (b) An offer of employment; or Page 18 16 (c) Any other thing of service or value As an inducement with respect to anything connected with a procurement entity and procurement proceedings. Description of goods, works or services 32. (1) Any (a) Specifications, plans, drawings and designs that provide the technical or quality characteristics of goods, works, or services to be procured; (b) Requirements on testings and test methods, packaging, marketing, labeling or conformity certifications; and (c) Symbols and terminology description of services that create obstacles to participation including obstacles based on nationality By suppliers or contractors in procurement proceedings shall not be included or used in prequalification documents, invitation documents or other documents for invitation of proposals, offers or quotations. (2) The provisions in subsection (1) shall be based on objective technical and quality characteristics of the goods, works or services to be procured and there shall be no requirement of or reference to a particular trade mark, name, patent, design, type, specific origin or producer, unless a precise or intelligible way of describing the characteristics of the goods, works or services to be procured does not exist, in which case, the words “or equivalent” shall be included. (3) Standardised features, requirements, symbols and terminology relating to the technical and quality characteristics of the goods, works or services to be procured shall be used, where available, to formulate any specifications, plans, drawings and designs to be included in the prequalification documents, invitation documents or other documents for invitation of proposals, offers or quotations. (4) Due regard shall be had for the use of standardised trade terms, where available, in formulating the terms and conditions of the procurement contract to be entered into as a result of the procurement proceedings, and in formulating other relevant aspects of the prequalification documents, invitation documents or other documents for invitation of proposals, offers or quotations. Page 19 17 Language 33. The prequalification documents, invitation documents and other documents for invitation of proposals, offers or quotations shall be in English. PART IV – METHODS OF PROCUREMENT Competitive tendering 34. (1) a procurement entity shall procure goods, services or works by competitive tendering except as provided in this Part. (2) A procurement entity shall use the quality and cost-based method of selection in Part VI when selecting consultants unless the procurement entity determines that (a) It is feasible to formulate detailed specifications and tendering proceedings or other methods of procurement which are more appropriate taking into account the nature of the services to be procured; or (b) It is more appropriate to use a method of selection referred to in Part VI if the conditions for the use of that method are satisfied. (3) If the procurement entity uses the method of procurement other than competitive tendering, it shall include in the record required a statement of the grounds and circumstances on which it relied to justify the use of that method. Two-stage tendering 35. (1) a procurement entity shall engage in procurement by two-stage tendering (a) Where it is not feasible for the procurement entity to formulate detailed specifications for the goods or works or, in the case of services, to identify their characteristics and where it seeks tenders, proposals or offers on various means of meeting its needs in order to obtain the most satisfactory solution to its procurement needs; or where the character of the goods or works are subject to rapid technological advances; (b) Where the procurement entity seeks to enter into a contract for research, experiment, study or development, except where the contract includes the production of goods in sufficient quantities to establish their commercial viability or to recover research and development costs; Page 20 18 (c) Where the procurement entity applies this Act to procurement concerned with national security and determines that the selected method is the most appropriate method of procurement; or (d) Where tender proceedings have been utilised but tenders were not submitted or the tenders were rejected by the procurement entity under section 28, 31 or 61(6) and the procurement entity considers that engaging in new tendering proceedings will not result in a procurement contract. Procedures for two-stage tendering 36. (1) the provisions of Part V shall apply to two-stage tendering proceedings except to the extent that those provisions vary from this section. (2) The invitation documents (b) Shall call upon suppliers or contractors to submit, in the first stage of two-stage tendering proceedings, initial tenders which contain their proposals without a tender price; (b) May solicit proposals that relate to technical, quality or other characteristics of the goods, works or services as well as contractual terms and conditions of supply and may stipulate the professional and technical competence and qualifications of the suppliers or contractors. (3) The procurement entity may, in the first stage, engage in negotiations with any supplier or contractor whose tender has not been rejected under section 28, 31 or 61(6) with respect to any aspect of its tender. (4) In the second stage of the two tender proceedings the procurement entity, (a) Shall invite suppliers or contractors whose tenders have not been rejected to submit final tenders with prices on a single set of specifications; (b) May in formulating the specifications, delete or modify any aspect of the technical or quality characteristics of the goods, works or services to be procured together with any criterion originally set out in those documents, evaluate and compare tenders and ascertain the successful tender; (c) May add new characteristics or criteria that conform to this Act; Page 21 19 (d) shall communicate to suppliers or contractors in the invitation to submit final tenders, any deletion, modification or addition; (e) may permit a supplier or contractor who does not wish to submit a final tender to withdraw from the tendering proceedings without the supplier or contactor forfeiting any tender security that the supplier or contractor may have been required to provide. (5) The final tenders shall be evaluated and compared in order to ascertain the successful tender as defined in section 58(3)(b). Restricted tendering 37. A procurement entity may for reasons of economy and efficiency and subject to the approval of the Board engage in procurement by means of restricted tendering (a) if goods, works or services are available only from a limited number of suppliers or contractors; or (b) if the time and cost required examining and evaluating a large number of tenders is disproportionate to the value of the goods, works or services to be procured. Procedure for restricted tendering 38. (1) Where a procurement entity engages in restricted tendering on the grounds referred to in section 37(a), it shall (a) invite tenders from the suppliers and contractors who can provide the goods, works or services; (b) select in a non-discriminatory manner, a number of suppliers or contractors to ensure effective competition. (2) Where the procurement entity engages in restricted tendering, it shall cause a notice of the selective-tendering award to be published in the Public Procurement Bulletin. (3) The provisions of Part V of this Act, except section 46 , shall apply to selective tendering proceedings, except to the extent that those provisions are varied in this section. Single-source procurement 39. (1) a procurement entity may engage in single-source procurement under section 40 with the approval of the Board, Page 22 20 (a) where goods, works or services are only available from a particular supplier or contractor, or if a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exists; (b) where there is an urgent need for the goods, works or services and engaging in tender proceedings or any other method of procurement is impractical due to unforeseeable circumstances giving rise to the urgency which is not the result of dilatory conduct on the part of the procurement entity; (c) where owing to a catastrophic event, there is an urgent need for the goods, works or technical services, making it impractical to use other methods of procurement because of the time involved in using those methods; (d) where a procurement entity which has procured goods, equipment, technology or services from a supplier or contractor, determines that (i) additional supplies need to be procured from that supplier or contractor because of standardisation; (ii) there is a need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the procurement entity; (iii) the limited size of the proposed procurement in relation to the original procurement provides justification; (iv) the reasonableness of the price and the unsuitability of alternatives to the goods or services in question merits the decision; (e) where the procurement entity seeks to enter into a contract with the supplier or contractor for research, experiment, study or development, except where the contract includes the production of goods in quantities to establish commercial viability or recover research and development costs; or (f) where the procurement entity applies this Act for procurement that concerns national security, and determines that single-source procurement is the most appropriate method of procurement. Page 23 21 (2) A procurement entity may engage in single-source procurement with the approval of the Board after public notice and time for comment where procurement from a particular supplier or contractor is necessary in order to promote a policy specified in section 58(4)(c)(d) or 68(2)(c)(i), and procurement from another supplier or contractor cannot promote that policy. Procedure for single-source procurement 40. The procurement entity may procure the goods, works or technical services by inviting a proposal or price quotation from a single supplier or contractor under section 39. Request for quotations 41. A procurement entity may engage in procurement by requesting quotations in accordance with section 42, (a) for readily available goods or technical services that are not specially produced or provided to the particular specifications of the procurement entity; and (b) for goods where there is an established market if the estimated value of the procurement contract is less than the amount in Schedule 3. Procedure for request for quotation 42. (1) the procurement entity shall request quotations from as many suppliers or contractors as practicable, but from at least three, if possible; (2) Each supplier or contractor from whom a quotation is requested shall be informed whether any elements, apart from the charges for the goods or services themselves, such as transportation and insurance charges, customs duties and taxes, are to be included in the price. (3) Each supplier or contractor may only give one price quotation and may not change its quotation; (4) No negotiations shall take place between the procurement entity and a supplier or contractor with respect to a quotation submitted by the supplier or contractor. Page 24 22 PART V – TENDERING PROCEDURES SUB-PART I – INVITATION OF TENDERS AND APPLICATIONS TO PREQUALIFY National competitive tendering 43. (1) In procurement proceedings in which the procurement entity decides that only domestic suppliers or contractors are likely to be interested in submitting tenders, the procurement entity may employ national competitive tendering procedures. (2) The procurement entity is not required to employ the procedures set out in sections 46 and 47 of this Act if the estimated contract amount is lower than the value threshold specified in Schedule 3. (3) The procurement entity may stipulate in the tender documents that tenderers must quote only in the local currency and payments must be made wholly in the local currency. International competitive tendering 44. (1) International competitive tendering shall be used whenever open competitive tendering is used and effective competition cannot be obtained unless foreign firms are invited to tender. (2) Open international tendering shall be in accordance with Part IV and Part V of this Act and the following shall also apply: (a) the invitation to tender and tender documents must be in English, subject to sections 33 and 51; (b) the invitation to tender shall be placed in a newspaper with adequate circulation to attract foreign competition as provided under section 46; (c) at least six weeks shall be allowed for submission of tenders in order to allow sufficient time for the invitation to reach candidates and to enable them to prepare and submit the tenders as provided in section 52; (d) technical specifications shall, to the extent compatible with national requirements, be based on international standards or standards widely used in international trade and in particular shall conform to the provisions of sections 32 and 49(3); Page 25 23 (e) tenderers are permitted to express their tenders, as well as any security documents to be presented by them, in their respective domestic currencies, or in a currency widely used in international trade and stated in the tender documents, subject to section 49 (3) and section 54(2)(c); and (f) general and special conditions of contract shall be of a kind generally used in international trade. Other international procedures 45. Part IV and Part V shall apply with such modification as may be necessary whenever effective competition cannot be obtained unless foreign firms are invited to participate in procedures apart from open competitive international tendering such as selective tendering or invitation for proposals. Procedures for inviting tenders or applications to prequalify 46. (1) A procurement entity shall invite tenders or, where applicable, applications to prequalify by causing an invitation to tender or an invitation to prequalify, to be published in the Procurement Bulletin. (2) The invitation to tender or invitation to prequalify shall also be published in at least two newspapers of wide national circulation. (3) The invitation may also be published in a newspaper of wide international circulation, in a relevant trade publication or technical or professional journal of wide international circulation. Contents of invitation to tender and invitation to prequalify 47. (1) the invitation to tender shall contain the following information: (a) the name and address of the procurement entity; (b) the nature and quantity, and place of delivery of the goods to be supplied, the nature and location of the works to be effected or the nature of the technical services and the location where they are to be provided; (c) the desired or required time for the supply of the goods or for the completion of the works, or the timetable for the provision of the services; (d) the criteria and procedures to be used to evaluate the qualifications of suppliers or contractors, in conformity with section 22; Page 26 24 (e) a declaration, which may not be subsequently altered that suppliers or contractors may participate in the procurement proceedings regardless of nationality, or a declaration that participation is limited on the basis of nationality under section 24; (f) the means of obtaining the invitation documents and the place from where they may be obtained; (g) the price, if any, charged by the procurement entity for the invitation documents; (h) the currency and means of payment for the invitation documents; (i) the language or languages in which the invitation documents are available; (j) the place and deadline for the submission of tenders; (k) the place, date and time for the opening of bids; and (l) any other information considered relevant. (2) An invitation to prequalify shall contain the information referred to in subsection (1)(a) to (e), (g), (h) and, if the information required under those paragraphs is already known, contain the information required under subsection (1) (j), as well as the following information (a) the means to obtain the pre-qualification documents and the place from where they can be obtained; (b) the price charged by the procurement entity for the pre- qualification documents; (c) the currency and terms of payment for the pre-qualification documents; (d) the language or languages in which the pre-qualification documents are available; (e) the place and deadline for the submission of applications to prequalify and the time allowed for the preparation of pre- qualification applications shall not be less than four weeks. Provision of tender documents Page 27 25 48. (1) the procurement entity shall provide the tender documents to suppliers or contractors in accordance with the procedures and requirements specified in the invitation to tender. (2) If pre-qualification proceedings have taken place, the procurement entity shall provide a set of tender documents to each supplier or contractor that has been prequalified and that pays the price charged for those documents. (3) The price that the procurement entity may charge for the tender documents shall reflect the cost of printing them and providing them to suppliers or contractors. Contents of tender documents and use of standard tender documents 49. (1) Procurement entities shall use the appropriate standard tender documents stipulated in Schedule 4 with minimum changes acceptable to the Board. (2) Changes shall be introduced only through tender or contract data sheets, or through special conditions of contract and not by introducing changes in the standard tender documents. (3) Where no relevant standard tender documents have been issued, the procurement entity shall use other nationally or internationally recognised standard conditions of contract and contract forms acceptable to the Board. (4) The invitation documents shall include, (a) instructions for preparing tenders; (b) the criteria and procedures, in conformity with the provisions of section 21, for the evaluation of the qualifications of suppliers or contractors; (c) the requirements on additional documentary evidence or other information that is to be submitted by suppliers or contractors to demonstrate their qualifications; (d) the nature and required technical and quality characteristics, in relation to the goods, works or technical services to be procured under section 32 including, but not limited to, (i) technical specifications, plans, drawings and designs, (ii) the quantity of the goods; (iii) any incidental services to be performed; Page 28 26 (iv) the location where the works is to be effected or the services are to be provided; and (v) the desired or required time, if any when the goods are to be delivered, the construction is to be effected or the services are to be provided; (e) the criteria to be used by the procurement entity to determine the successful tender, including any margin of preference and any criteria other than price to be used under section 58(4)(b)(c) or (d) and the factors apart from price to be used to determine the lowest evaluated bid, shall, to the extent practicable, be expressed in monetary terms, or given a relative weight in the evaluation provisions in the tender documents; (f) the terms and conditions of the procurement contract, as known to the procurement entity, and the contract form to be signed by the parties; (g) a statement that the characteristics of the goods, works or services, contractual terms and conditions or other requirements set out in the invitation documents are permitted, and a description of the manner in which alternative tenders are to be evaluated and compared; (h) a description of the portion or portions for which tenders may be submitted where suppliers or contractors are permitted to submit tenders for only a portion of the goods, works or services to be procured; (i) the manner in which the tender price is to be formulated and expressed, including a statement whether the price covers elements apart from the goods, works or services, such as applicable transportation and insurance charges, customs duties and taxes; (j) the currency or currencies in which the tender price is to be formulated and expressed; (k) the language or languages, in conformity with section 51, in which tenders are to be prepared; (l) any requirements of (i) the procurement entity connected with the issue, nature, form, amount and other principal terms and conditions of Page 29 27 tender security to be provided by suppliers or contractors submitting tenders; and (ii) security for the performance of the procurement contract to be provided by a supplier or contractor that enters into the procurement contract, including securities such as labour and materials bonds; (m) a statement that a supplier or contractor cannot modify or withdraw its tender prior to the deadline for the submission of tenders without forfeiting its tender security; (n) the manner, place and deadline for the submission of tenders; (o) the means by which suppliers or contractors may seek clarification of the invitation documents and a statement whether the procurement entity intends to convene a meeting of suppliers or contractors; (p) the period of time during which tenders will be in effect; (q) the place, date and time for the opening of tenders; (r) the procedures to be followed for opening and examining tenders; (s) the currency that will be used to evaluate and compare tenders under section 57 and either the exchange rate that will be used for the conversion of tenders into that currency or a statement that the rate published by a specified financial institution prevailing on a specified date will be used; (t) references to this Act, the procurement regulations and other Acts and regulations relevant to the procurement proceedings, but the omission of the reference shall not constitute grounds for review under Part VII or give rise to liability on the part of the procurement entity; (u) the name, functional title and address of one or more officers or employees of the procurement entity who are authorised to communicate directly with and to receive communications directly from a supplier or contractor in connection with the procurement proceedings, without the intervention of an intermediary; (v) any commitments to be made by the supplier or contractor outside the procurement contract, such as commitments relating to countertrade or to the transfer of technology; Page 30 28 (w) a statement of the right to seek review of an unlawful act or decision of, or procedure followed by the procurement entity in relation to the procurement proceedings; (x) if the procurement entity reserves the right to reject tenders, a statement to that effect; (y) any formalities that will be required once a tender has been accepted, for a procurement contract to enter into force, including, where applicable, the execution of a written procurement contract and approval by the Government and the estimated period of time following the despatch of the notice of acceptance that will be required to obtain the approval; and (z) any other requirements established by the procurement entity under this Act and Regulations relating to the preparation and submission of tenders and to other aspects of the procurement proceedings. Clarifications and modifications of tender documents 50. (1) A supplier or contractor may request promptly clarification of the tender documents from the procurement entity. (2) The procurement entity shall respond to a request by a supplier or contractor within a reasonable time before the deadline for the submission of tenders to enable the supplier or contractor make a timely submission of its tender and shall without disclosing the source of the request communicate the clarification to the suppliers or contractors provided with the invitation documents. (3) The procurement entity may modify the invitation documents by issuing an addendum prior to the deadline for submission of tenders. (4) The addendum shall be communicated promptly to the suppliers or contractors provided with the invitation documents by the procurement entity and shall be binding on those suppliers or contractors. (5) The procurement entity may convene a meeting of suppliers and contractors to clarify and modify tender documents and shall prepare minutes of any previous meeting concerned with clarification of the invitation documents without identifying the sources of the requests. (6) The minutes shall be given promptly to the suppliers and contractors provided with the invitation documents by the procurement entity to enable them take the minutes into account in the preparation of their tenders. Page 31 29 SUB-PART II – SUBMISSION OF TENDERS Language of tenders 51. (1) Tenders shall be formulated and submitted in English. (2) Supporting documents and printed literature furnished by the tenderer may be in another language if they are accompanied by an accurate translation of the relevant passages in English. (3) Where there is a translation, the translation shall be used to interpret the tender. Submission of tenders 52. (1) the procurement entity shall, (a) fix the place for, and a specific date and time as the deadline for the submission of tenders; and (b) allow tenderers at least six weeks to prepare their tenders for international competitive tendering. (2) The time for preparation of tenders under national competitive tendering procedures shall not exceed four weeks. (3) If a procurement entity issues clarification or modification documents or if a meeting of suppliers or contractors is held, the procurement entity shall prior to the expiry of the deadline for the submission of tenders extend the deadline to give the suppliers and contractors reasonable time to take the clarification or modification, or the minutes of the meeting into account in their tenders. (4) The procurement entity may, prior to the expiry of deadline for the submission of tenders, extend the deadline. (5) The procurement entity shall, at least ten days before the tender, give notice of an extension of the deadline by fax, e-mail or any other expedited written means of communication to each supplier or contractor to whom the procurement entity provided the tender documents or to any new prospective tenderers. (6) A tender shall be in writing, signed and be submitted in a sealed envelope. (7) A tender may alternatively be submitted in any other form specified in the tender documents that provides a record of the contents of the tender and a similar degree of authenticity, security and confidentiality. Page 32 30 (8) The procurement entity shall provide the supplier or contractor with a receipt on request showing the date and time when its tender was received. (9) A tender received by the procurement entity after the deadline for the submission of tenders shall not be opened and shall be returned to the supplier or contractor which submitted it. Period of validity of tenders; modification and withdrawal of tenders 53. (1) the period of validity for a tender shall be the period specified in the tender documents. (2) A procurement entity may request suppliers or contractors to extend the period of validity for an additional specified period of time. (3) A supplier or contractor may refuse the request without forfeiting its tender security and the effectiveness of its tender will terminate upon the expiry of the unextended period of effectiveness. (4) A supplier or contractor that agrees to an extension of the period of effectiveness of its tenders shall extend or procure an extension of the period of tender securities provided by it or provide new tender securities to cover the extended period of effectiveness of its tender. (5) A supplier or contractor whose tender security is not extended or that has not provided a new tender security is considered to have refused the request to extend the period of effectiveness of its tender. (6) A supplier or contractor may modify or withdraw its tender prior to the deadline for the submission of tenders without forfeiting its tender security unless otherwise stipulated in the tender documents. (7) The modification or notice of withdrawal is effective if it is received by the procurement entity before the deadline for the submission of tenders. Tender securities 54. (1) the procurement entity shall specify the principal terms and conditions of the required tender security in the invitation documents. (2) When the procurement entity requires suppliers or contractors submitting tenders to provide tender security, (a) the requirement shall apply to each supplier or contractor; Page 33 31 (b) the invitation documents shall stipulate that the issuer and confirmer of the tender security are acceptable to the procurement entity; (c) notwithstanding paragraph (b), a tender security shall not be rejected by the procurement entity on the grounds that the tender security was not issued by an issuer in the country, if the tender security and the issuer otherwise conform to requirements in the invitation documents; (d) a supplier or contractor may request the procurement entity to confirm the acceptability of a proposed issuer or a proposed confirmer of a tender security before submitting a tender and the procurement entity shall respond promptly to the request; (e) confirmation of the acceptability of a proposed issuer or of a proposed confirmer does not preclude the procurement entity from rejecting the tender security on the ground that the issuer or confirmer has become insolvent or is otherwise not creditworthy. (3) Any requirement on tender security that refers directly or indirectly to conduct by the supplier or contractor submitting the tender may only relate to (a) withdrawal or modification of the tender after the deadline for submission of tenders, or before the deadline if stipulated in the invitation documents; (b) failure to sign the procurement contract if required by the procurement entity to do so; (c) failure to provide a required security for the performance of the contract after the tender has been accepted or to comply with any other condition precedent to signing the procurement contract specified in the tender documents. (4) The procurement entity shall not make a claim to the amount of the tender security and shall promptly return or procure the return of the tender security document after whichever of the following occurs first (a) the expiry of the tender security; (b) the entry into force of a procurement contract and the provision of security for the performance of the contract, if the security is required by the invitation documents; Page 34 32 (c) the termination of the tendering proceedings without the entry into force of a procurement contract; or (d) the withdrawal of the tender prior to the deadline for the submission of tenders. SUB-PART III – EVALUATION AND COMPARISON OF TENDERS Opening of tenders 55. (1) Tenders shall be opened (a) at the time specified in the tender documents as the deadline for the submission of tenders or at the deadline specified in any extension of the deadline; and (b) at the place and in accordance with the procedures specified in the tender documents. (2) The time for opening of the tenders shall be the same as the deadline for receipt of tenders or promptly after that deadline. (3) A supplier or contractor who has submitted a tender or a representative of that supplier or contractor, shall be permitted by the procurement entity to be present at the opening of tenders. (4) The name and address of each supplier or contractor whose tender is opened and the tender price shall be announced to those present at the opening of tenders and communicated on request to a supplier or contractor who has submitted a tender but is not present or represented at the opening of the tenders. (5) The tender price shall be recorded immediately in the record of tendering proceedings. Examination of tenders 56. (1) the procurement entity may ask a supplier or a contractor for clarification of its tender in order to assist in the examination, evaluation and comparison of tenders. (2) No change in a matter of substance in the tender, including changes in price and changes aimed at making an unresponsive tender responsive, shall be sought, offered or permitted. (3) Notwithstanding subsection (2), the procurement entity shall correct purely arithmetical errors that are discovered during the examination of tenders. Page 35 33 (4) The procurement entity shall give prompt notice of the correction to the supplier or contractor that submitted the tender. Responsiveness of tenders 57. (1) A procurement entity may regard a tender as responsive only if it conforms to the requirements set out in the tender invitation documents. (2) The procurement entity may however, regard a tender as responsive if it contains minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set out in the invitation documents or if it contains errors or oversights that are capable of being corrected without touching on the substance of the tender. (3) The deviations shall be quantified, to the extent possible, and shall be taken into account in the evaluation and comparison of tenders. (4) A procurement entity shall not accept a tender (a) if the supplier or contractor that submitted the tender is not qualified; (b) if the supplier or contractor that submitted the tender does not accept a correction of an arithmetical error made under subsection(1)(b); (c) if the tender is not responsive; (d) in the circumstances referred to in section 31 with respect to inducements from suppliers, contractors and consultants. Evaluation of tenders 58. (1) The procurement entity shall evaluate and compare the tenders that have been accepted in order to ascertain the successful tender in accordance with the procedures and criteria set out in the invitation documents. (2) No criterion shall be used that has not been set out in the invitation documents. (3) The successful tender shall be: (a) the tender with the lowest evaluated tender price subject to any margin of preference applied under subsection (4)(a) of this section; and Page 36 34 (b) the lowest evaluated tender ascertained on the basis of criteria specified in the invitation documents which shall be (i) objective and quantifiable; and (ii) given relative weight in the evaluation procedure or expressed in monetary terms where practicable if the procurement entity has so stipulated in the invitation documents. (4) To determine the lowest evaluated tender, the procurement entity shall consider (a) the tender price, subject to any margin of preference applied under section 59(2) ; (b) the cost of operating, maintaining and repairing the goods or works, the time for delivery of the goods, completion of works or provisions of the services, the functional characteristics of the goods or works, the terms of payment and of guarantees in respect of the goods, works or services; (c) the effect the acceptance of the tender will have on (i) the balance of payments position and foreign exchange reserves of the country; (ii) the countertrade arrangements offered by suppliers or contractors; (iii) the extent of local content, including manufacturer, labour and materials, in goods, works or services being offered by suppliers or contractors; (iv) the economic-development potential offered by tenders, including domestic investment or other business activity; (v) the encouragement of employment, the reservation of certain production for domestic suppliers; (vi) the transfer of technology; (vii) the development of managerial, scientific and operational skills; and Page 37 35 (d) national security considerations. Margin of preference 59. (1) a procurement entity may grant a margin of preference for the benefit of tenders for work by domestic contractors or for the benefit of tenders for domestically produced goods or for the benefit of domestic suppliers of services. (2) The margin of preference shall be calculated in accordance with the procurement regulations and reflected in the record of the procurement proceedings; (3) The margin of preference shall be authorized by the Board and be subject to approval by the Board. Multiple currency tender prices 60. When tender prices are expressed in two or more currencies, the tender prices of the total number of tenders shall be converted to the same currency according to the rate specified in the invitation documents for the evaluation and comparison tenders. Repeat tender qualifications 61. (1) The procurement entity may require the supplier or contractor which is the successful tenderer, to demonstrate its qualifications again, whether or not it has engaged in pre-qualification proceedings in accordance with criteria and procedures that conform to section 22 on prequalification proceedings. (2) The criteria and procedures to be used for the further demonstration shall be set out in the tender documents. (3) Where pre-qualification proceedings have been used, the criteria for further demonstration shall be the same as those used in the pre-qualification proceedings. (4) If tenderers have not been pre-qualified, the entity shall determine whether the selected tenderer has the capacity to perform the contract effectively. (5) The criteria to be met shall be specified in the tender documents and if the selected tender is rejected, the procurement entity shall make a similar determination of the next ranked best evaluated tender. (6) If the supplier or contractor submitting the successful tender is requested to demonstrate its qualifications again but fails to do so, the procurement entity shall reject that tender and shall select a successful tenderer, in accordance with section 58(4) from among the remaining tenders, subject to the right of the procurement entity to reject the remaining tenders. Page 38 36 Non-disclosure of tender evaluation details 62. Information relating to the examination, clarification, evaluation and comparison of tenders shall not be disclosed to suppliers or contractors or to any other person not involved officially in the examination, evaluation or comparison of tenders or in the decision on which tender should be accepted, except as provided in section 27 on the record of procurement proceedings. Prohibition of negotiations with suppliers or contractors 63. (1) Pursuant to the exception in this section no negotiations shall take place between the procurement entity and a supplier or contractor with respect to a tender submitted by the supplier or contractor. (2) If the lowest evaluated responsive tender exceeds the budget for the contract by a substantial margin, the procurement entity shall investigate the causes for the excessive cost and may (a) consider requesting new tenders; or (b) subject to approval by the relevant Tender Review Board and guidelines issued by that Board, negotiate a contract with the lowest evaluated tenderer to try to obtain a satisfactory contract through a reduction in the scope which can be reflected in a reduction of the contract price. Acceptance of tender and entry into force of procurement contract 64. (1) A tender that has been ascertained to be the successful tender in accordance with this Act shall be accepted and notice of acceptance of the tender shall be given within 30 working days of the acceptance of the tender to the supplier or contractor submitting the tender. (2) Where the tender documents require the supplier or contractor whose tender has been accepted to sign a written procurement contract conforming to the tender, the procurement entity and the supplier or contractor shall sign the procurement contract within 30 working days after the notice referred to in subsection (1) is dispatched to the supplier or contractor. (3) Where a written procurement contract is required to be signed, the procurement contract enters into force when the contract is signed by the supplier or contractor and by the procurement entity. (4) Between the time when the notice is dispatched to the supplier or contractor and the entry into force of the procurement contract, neither the procurement Page 39 37 entity nor the supplier or contractor shall take any action that interferes with the entry into force of the procurement contract or with its performance. (5) Except as provided in subsection (2), a procurement contract in accordance with the terms and conditions of the accepted tender enters into force when the notice is dispatched to the supplier or contractor that submitted the tender, if it is dispatched while the tender is in force. (6) The notice is dispatched when it is properly addressed or otherwise directed and transmitted to the supplier or contractor or conveyed to an appropriate authority for transmission to the supplier or contractor in a manner authorized in section 25. (7) If the supplier or contractor whose tender has been accepted fails to sign a written procurement contract within 30 working days of receipt of the notice of acceptance or fails to provide the required security for the performance of the contract, the procurement entity shall select a successful tender in accordance with section 58(3) from among the remaining tenders that are in force, subject to the right of the procurement entity to reject the remaining tenders. (8) The notice provided for in subsection (1) shall be given to the supplier or contractor that submitted the successful tender. (9) A procurement entity shall give notice of the procurement contract in writing to unsuccessful suppliers and contractors and the notice shall (a) specify the name and address of the successful supplier or contractor who has entered into the contract and the contract price; (b) be given after the commencement of the procurement contract and may include the provision by the supplier or contractor of security for the performance of the contract; (c) for contracts above the threshold in Schedule 3, be published in the Procurement Bulletin, which shall disclose the names of firms or individuals awarded contracts, the start and completion dates, as well as the value of the contracts. PART VI – METHODS AND PROCEDURES TO PROCURE CONSULTANTS Notice of invitation of expressions of interest and preparation of shortlists 65. (1) A procurement entity shall invite consulting services by causing a notice seeking expression of interest in submitting a proposal to be published in the Public Procurement Bulletin for consultancy contracts above the threshold in Schedule 3. Page 40 38 (2) The notice shall, (a) contain the name and address of the procurement entity and a brief description of the services to be procured; and (b) be published in English and in a newspaper of wide international circulation or in a relevant trade or professional publication of wide international circulation except where participation is limited solely to national consultants under section 24 (1) or where, in view of the low value of the services to be procured, the procurement entity decides that only national consultants are likely to be interested in submitting proposals. (3) Where direct invitation is necessary for economic and efficiency reasons, the procurement entity with the approval of the Board may apply the provisions of subsection (1) and (2) where (a) the services to be procured are available only from a limited number of consultants, if it invites expressions of interest from all these consultants; (b) the time and cost required to examine and evaluate a large number of expressions of interest would be disproportionate to the value of the services to be performed, if it invites proposals from enough consultants to ensure effective competition; or (c) direct invitation is the only means to ensure confidentiality or is required in the national interest, if it invites enough proposals from consultants for effective competition. Shortlisted candidates 66. (1) the procurement entity is responsible for the preparation of a shortlist of consultants to be considered to participate in the selection process. (2) The shortlist may comprise only national consultants but shall comprise at least three and not more than six consultants. (3) The procurement entity shall provide the invitation for proposals to the shortlist of consultants selected on the basis of quality and cost. (4) The procurement entity shall provide the invitation for proposals to the most qualified or single sourced consultant selected on the basis of the consultant’s qualifications and single source selection. Page 41 39 Content of requests for proposals for consulting services 67. (1) The procurement entity shall use the standard invitation for proposals stipulated in Schedule 4 and any requirements for a specific assignment shall be introduced through information to consultants, data sheets or contract data sheets and not by introducing changes in the standard tender documents. (2) The invitation for proposals shall include (a) the name and address of the procurement entity; (b) the language or languages in which proposals are to be prepared; (c) the manner, place and deadline for the submission of proposals; (d) a statement to the effect that the procurement entity reserves the right to reject proposals; (e) the criteria and procedures related to the evaluation of the qualifications of the consultants and those related to additional qualifications under section 23(5); (f) the requirements on documentary evidence or other information that shall be submitted by suppliers or contractors to demonstrate their qualifications; (g) the nature and required characteristics of the services to be procured including the location where the services are to be provided and the time when the services are to be provided; (h) whether the procurement entity is seeking proposals on various possible ways of meeting its needs; (i) the currency in which the proposal price is to be expressed; (j) the manner in which the proposal price is to be expressed, including a statement on whether the price covers elements apart from the cost of services, such as reimbursement for transportation, lodging, insurance, use of equipment, duties or taxes; (k) the procedure selected under section 70 (1) to ascertain the successful proposal; Page 42 40 (l) the criteria to be used to determine the successful proposal, including any margin of preference to be used under section 56 and the relative weight of the criteria; (m) the currency that will be used to evaluate and compare proposals and either the exchange rate that will be used for the conversion of proposal prices into that currency or a statement that the rate published by a specified financial institution prevailing on a specified date will be used; (n) a statement on alternatives to the characteristics of the consulting services, contractual terms and conditions or other requirements set out in the invitation for proposals if permitted and a description of the manner in which the alternative proposals are to be evaluated and compared; (o) the name, functional title and address of one or more officers or employees of the procurement entity who are authorized to communicate directly with and to receive communications directly from consultants in connection with the procurement proceedings, without the intervention of an intermediary; (p) the means by which consultants may seek clarification on the invitation for proposals and a statement whether the procurement entity intends to convene a meeting of consultants; and (q) the terms and conditions of the consultancy contract as known to the procurement entity and the contract form to be signed by the parties. Criteria for the evaluation of proposals 68. (1) the procurement entity shall establish criteria to evaluate the proposals and determine the relative weight to be accorded to each criterion and the manner in which they are to be applied in the evaluation of proposals. (2) The consultants shall be notified of the criteria in the invitation for proposals and the criteria may deal with only the following: (a) the qualifications, experience, reputation, reliability and professional and managerial competence of the consultant and the personnel to be involved in providing the services; (b) the effectiveness of the proposals submitted by the consultants in meeting the needs of the procurement entity as specified in section 67(2)(g); Page 43 41 (c) the proposal price, including any ancillary or related costs; and (i) the effect that the acceptance of a proposal will have on the balance of payments position and foreign exchange reserves of the country; (ii) the extent of participation by nationals; (iii) the economic development potential offered by the proposal, including domestic investment or other business activity; (iv) the encouragement of employment; (v) the transfer of technology; (vi) the development of managerial, scientific and operational skills; (vii) the counter-trade arrangements offered by consultants; and (d) national security considerations. (3) A procurement entity may grant additional points for participation by nationals who are key staff in foreign and national firms, and these points shall be calculated in accordance with the procurement regulations and reflected in the record of the procurement proceedings subject to approval by the Board. Clarification and modification of invitation for proposals 69. (1) a consultant may request clarification of the invitation for proposals from the procurement entity and where such a request is made the procurement entity shall (a) respond to the request within 7 working days of the request being made if the request is received by the procurement entity within 14 working days prior to the deadline for the submission of proposals; and (b) where the request is made later than 14 days prior to the deadline for the submission of proposals respond promptly and early enough to enable the consultant make a timely submission of its proposal and shall, without identifying the source of the invitation, communicate the clarification to the other consultants to whom the procurement entity has provided the invitation for proposals. Page 44 42 (2) A procurement entity may, whether on its initiative or as a result of a request for clarification by a consultant, modify the request for proposals by issuing an addendum at any time prior to the deadline for submission of proposals. (3) The addendum shall be communicated promptly before the deadline for the submission of proposals to the shortlisted consultants to whom the procurement entity has provided the request for proposals and shall be binding on those consultants. (4) If the procurement entity convenes a meeting of consultants, it shall prepare minutes of the meeting containing the requests submitted at the meeting for clarification of the request for proposal and its responses to those requests, without identifying the sources of the requests. (5) The minutes shall be provided promptly before the deadline for the submission of proposals to the consultants participating in the selection proceedings to enable them take the minutes into account in preparing their proposals. Choice of selection procedure 70. (1) The procurement entity shall use the selection procedure provided for in section 74(6)(a), 74(6)(b) or 75 that has been notified to consultants in the invitation for proposals. (2) The procurement entity shall include in the record required under section 27, a statement of the grounds and circumstances on which it relied to justify the use of a selection procedure under subsection (1). (3) This Part does not prevent a procurement entity from resorting to an impartial panel of external experts in the selection procedure. Conditions for use of other methods of selection of consultants 71. (1) A procurement entity may select consultants by quality based selection for the following types of assignments: (a) complex or highly specialized assignments, where (i) it is difficult to define precise terms of reference and the required input from the consultants; (ii) the client expects the consultants to demonstrate innovation in their proposals; (b) assignments that have a high downstream impact where the objective is to have the best experts; and Page 45 43 (c) assignments that can be carried out in substantial different ways where proposals will not be comparable. (2) A procurement entity may use selection under a fixed budget approved by the Board where the assignment is simple and can be precisely defined. (3) A procurement entity may use least-cost selection procedures for small value assignments subject to the value threshold in Schedule 3 where the assignment is of a standard or routine nature and well-established practices and standards exist. (4) A procurement entity may use selection based on consultants’ qualifications for very small value assignments subject to the value threshold in Schedule 3 where the need to prepare and evaluate competitive proposals is not justified. (5) The procurement entity may select consultants by inviting proposals from a single consultant where there is (a) only one eligible consultant; (b) an emergency as specified in section 39(1)(b) and (c); or (c) a follow-up assignment. Receipt of proposals 72. (1) the procurement entity shall allow enough time for the consultants to prepare their proposals. (2) The time allowed shall depend on the assignment but shall normally not be less than four weeks. (3) To safeguard the integrity of the process, the technical and financial proposals shall be submitted in separate sealed envelopes. (4) After the closing time for the submission of proposals, the appropriate committee of the procurement entity shall open the technical proposals immediately after the deadline for the submission of proposals. (5) The financial proposals shall remain sealed until they are opened publicly under section 55 . Evaluation of proposals 73. (1) the evaluation of the proposals shall be carried out in two stages: first the quality, and then the cost. Page 46 44 (2) Evaluators of technical proposals should not have access to the financial proposals until the technical evaluation, including any Tender Board Reviews is concluded. (3) The evaluation shall be carried out in conformity with the provisions in the invitation for proposals. Selection procedure where price is a factor 74. (1) Where the procurement entity uses the procedure in this section, it shall establish a threshold on the quality and technical aspects of the proposals in accordance with the criteria established under section 68 apart from those set out in the request for proposals and shall rate each proposal in accordance with that criteria and the relative weight and manner of application of those criteria set out in the invitation for proposals. (2) The procurement entity shall notify the consultants whose proposals did not meet the minimum qualifying mark or were non responsive to the invitation for proposals and terms of reference after the evaluation of quality is completed within a period of 14 working days after the decision has been taken by the procurement entity. (3) The name of the consultant, the quality scores and the proposed prices shall be read aloud and recorded when the financial proposals are opened. (4) The procurement entity shall prepare the minutes of public opening of financial proposals, which shall be part of the evaluation report and shall retain this record. (5) The procurement entity shall compare the prices of the proposals that have attained a rating at or above the threshold. (6) The successful proposals shall be (a) the proposals with the best combined evaluation in terms of the criteria established under section 68 apart from price in the case of quality and cost-based selection; (b) the proposals with the lowest price in the case of least-cost selection; or (c) the consultants that submitted the highest ranked technical proposals within the budget; (7) The consultants with the winning proposals shall be invited for negotiations, which shall focus mainly on the technical proposals. Page 47 45 (8) Proposed unit rates for staff-months and reimbursables shall not be negotiated unless there are exceptional reasons. Selection procedure where price is not a factor 75. (1) where the procurement entity uses the quality-based selection, selection based on consultant’s qualifications or single-source selection, it shall engage in negotiations with consultants in accordance with this section (2) The procurement entity shall (a) establish a threshold in accordance with section 74(1); (b) invite for negotiations on the price of its proposal, the consultant that has attained the best rating in accordance with section 74(1) ; (c) inform the suppliers or contractors that attained ratings above the threshold that they may be considered for negotiation if the negotiations with the consultant with the best rating do not result in a procurement contract; and (d) inform the consultant with the best rating, that it is terminating the negotiations if it becomes apparent to the procurement entity that the negotiations with that consultant, invited under subsection (2)(b), will not result in a procurement contract. (3) The procurement entity shall, if negotiations with the consultant with the best rating fails, invite the consultant that obtained the second best rating, and if the negotiations with that consultant do not result in a procurement contract, the procurement entity shall invite the other suppliers or contractors for negotiations on the basis of their rating until it arrives at a contract or rejects the remaining proposals. Confidentiality 76. (1) The procurement entity shall treat proposals and any negotiations on selection procedure as confidential and avoid the disclosure of their contents to competing consultants. (2) A party to the negotiations shall not reveal to any other person any technical, price or other information relating to the negotiations without the consent of the other party. Page 48 46 PART VII – REVIEW Right to review 77. (1) Any supplier, contractor or consultant that claims to have suffered, or that may suffer, loss or injury due to a breach of a duty imposed on the procurement entity by this Act may seek review in accordance with this Part. (2) Notwithstanding subsection (1), the following shall not be subject to the review (a) the selection of a method of procurement under sections 34 to 42; (b) the choice of a selection procedure under section 74(6)(a), 74(6)(b) or section 75; (c) the limitation of procurement proceedings in accordance with section 24 on the basis of nationality; and (d) a decision by the procurement entity under section 28 to reject tenders, proposals, offers or quotation. Review by procurement entity 78. (1) a complaint shall, in the first instance, are submitted in writing to the head of the procurement entity if the procurement contract has already entered into force. (2) The head of the procurement entity shall not entertain a complaint, unless it was submitted within twenty days after the supplier, contractor or consultant submitting it became aware of the circumstances giving rise to the complaint or when that supplier, contractor, or consultant should have become aware of those circumstances, whichever is earlier. (3) The head of the procurement entity may entertain a complaint or continue to entertain a complaint after the procurement contract has entered into force notwithstanding subsection (1). (4) A procurement entity shall attempt to resolve a complaint by mutual agreement of the supplier or contractor and the procurement entity. (5) If the resolution of the complaint is unsuccessful the head of the procurement entity shall, within thirty days after the submission of the complaint, issue a written decision. (6) The decision shall Page 49 47 (a) state the reasons for the decision; and (b) if the complaint is upheld in whole or in part, indicate the corrective measures that are to be taken. (7) If the head of the procurement entity does not issue a decision by the time specified in subsection (5), the supplier, contractor, or consultant, submitting the complaint is entitled to institute proceedings for administrative review under section 79. (8) After the institution of the proceedings, the competence of the head of the procuring entity to entertain the complaint ceases. Administrative review 79. (1) a supplier, contractor or consultant entitled to seek review may submit a complaint to the Board, (a) within twenty days after (i) the supplier, contractor or consultant became aware of the circumstances giving rise to the complaint; or (ii) the time when the supplier, contractor or consultant ought to have become aware of those circumstances, if the complaint cannot be submitted under section 78 because of the entry into force of the procurement contract; (b) if the head of the procurement entity does not entertain the complaint because the procurement contract has entered into force, and the complaint is submitted within twenty days after the issuance of the decision not to entertain the complaint; (c) under section 78(7) if the complaint is submitted within twenty days after the expiry of the period referred to in section 78(5); or (d) if the supplier, contractor, or consultant claims to be adversely affected by a decision of the head of the procurement entity under section 78, and the complaint is submitted within twenty days after the issue of the decision. (2) Upon receipt of a complaint, the Board shall give notice of the complaint promptly to the procurement entity. (3) The Board may, Page 50 48 (a) declare the legal rules or principles that govern the subject-matter of the complaint; (b) order that the provisions of this Act be complied with; (c) require the procurement entity that has acted or proceeded in an illegal manner, or that has reached an illegal decision, to act or to proceed in a legal manner or to reach a legal decision; (d) annul in whole or in part an illegal act or decision of the procurement entity, other than any act or decision bringing the procurement contract into force; (e) revise an illegal decision by the procurement entity or substitute its own decision for the decision, other than any decision bringing the procurement contract into force; (f) require the payment of compensation for reasonable costs incurred by the supplier or contractor who submitted the complaint, in connection with the procurement proceedings as a result of an illegal decision of, or procedure followed by, the procurement entity; (g) order that the procurement proceedings be terminated; (h) dismiss the complaint. (4) The Board shall, within thirty days of starting a review, issue a written decision concerning the complaint, stating the reasons for the decision and the remedies granted. (5) Correspondence pertaining to any complaint shall be copied to the Board. Certain rules applicable to review proceedings 80. (1) The head of the procurement entity or the Board shall notify the suppliers, contractors, or consultants participating in procurement proceedings about the submission of a complaint and of its substance within 14 working days after the submission of the complaint for review. (2) A supplier or contractor or any government authority whose interests are or could be affected by the review proceedings is entitled to participate in the review proceedings. Page 51 49 (3) A supplier, contractor, or consultant who fails to participate in the review proceedings is barred from subsequently making the same type of claim. (4) A copy of the decision of the head of the procurement entity or of the Board shall be furnished within five days after the issue of the decision to the supplier, contractor, or consultant submitting the complaint to the procurement entity and to any other supplier, contractor or government authority that has participated in the review proceedings. (5) After the decision has been taken, the complaint and the decision shall be promptly made available for inspection by the general public, but no information shall be disclosed if its disclosure would be contrary to law, would impede law enforcement, would not be in the public interest, would prejudice legitimate commercial interests of the parties or would inhibit fair competition. Suspension of procurement proceedings 81. (1) Where review proceedings are initiated, the procurement proceedings shall be suspended for 7 days if the complaint (b) is not frivolous; (c) contains a declaration which demonstrates that the supplier, contractor or consultant will suffer irreparable damage if the suspension is not granted; and (d) is likely to succeed and the grant of the suspension will not cause disproportionate harm to the procurement entity or to other suppliers, contractors, or consultants. (2) When the procurement contract enters into force, upon the submission of a complaint under section 78, performance of the procurement contract shall be suspended for seven days, if the complaint meets the requirements set out in subsection (1). (3) The head of the procurement entity and the Board under subsection (2) may extend the suspension in order to preserve the rights of the supplier, contractor, or consultant who is a party to the review pending the disposition of the review proceedings, but the total period of suspension shall not exceed thirty days. (4) The suspension provided for by this section shall not apply if the procurement entity certifies that urgent public interest considerations require the procurement to proceed. Page 52 50 (5) The certification shall state the grounds for the finding that urgent considerations exist and shall be made a part of the record of the procurement proceedings, and it is conclusive with respect to administrative review. (6) Any decision by the procurement entity under this section and the grounds and circumstances shall be made part of the record of the procurement proceedings. PART VIII – DISPOSAL OF STORES AND EQUIPMENT Authority to dispose 82. (1) The head of a procurement entity shall convene a Board of Survey comprising representatives of departments with unserviceable, obsolete or surplus stores, plant and equipment which shall report on the items and, subject to a technical report on them, recommend the best method of disposal after the officer in charge has completed a Board of Survey form. (2) The Board of Survey’s recommendations shall be approved by the head of the procurement entity and the items shall be disposed of as approved. (3) Where items become unserviceable for reasons other than fair wear and tear, such as through accident or expiry, a set procedure established by the Board for handling losses shall be followed before the items are boarded and disposed of. Disposal procedures 83. Disposal of obsolete and surplus items shall be by (a) transfer to government departments or other public entities, with or without financial adjustment; (b) sale by public tender to the highest tenderer, subject to reserve price; (c) sale by public auction, subject to a reserve price; or (d) destruction, dumping, or burying as appropriate. PART IX – MISCELLANEOUS PROVISIONS Instructions and guidelines for disposal 84. (1) The Minister shall make further regulations on the disposal of unserviceable stores and obsolete equipment. Page 53 51 (2) The Board shall issue detailed instructions and policy guidelines relating to the disposal of unserviceable stores and equipment. Code of conduct 85. The Board shall compile and publish a code of conduct with the approval of the Minister, which shall apply to every official of a procurement entity, the Board, members of Tender Review Boards, as well as suppliers, contractors and consultants. Modifications 86. (1) Except in cases of extreme urgency, where there will be an aggregate increase in the original amount of the contract by more than 10 percent of the original price, a procurement entity shall inform the appropriate Tender Review Boards in the case of a contract subject to review by the Tender Review Board of any proposed extension, modification or variation order with reasons. (2) In the case of contracts, which are not originally subject to review by a Tender Review Board, any proposed modification of contract which will make the revised contract price exceed the procurement method threshold or the threshold of the procurement entity shall be cleared with the appropriate Tender Review Board. Request for information by the Board 87. Every procurement entity shall provide the Board with such information as the Board may require in writing, regarding procurement engaged in by the procurement entity. Investigation by the Board 88. (1) The Board may appoint a person to conduct an investigation into any matter related to the conduct of procurement proceedings by a procurement entity, or the conclusion or operation of a procurement contract if it considers that an investigation is necessary or desirable to prevent, or detect a contravention of this Act. (2) An investigator may, subject to subsection (3), (a) at any time during normal office hours, without previous notice, enter the premises of the procurement entity tenderer, supplier, contractor, or consultant concerned with the procurement proceedings under investigation; (b) require an officer, employee or agent of the procurement entity or tenderer, supplier, contractor, or consultant to produce any books, records, accounts or documents; Page 54 52 (c) search premises for any books, records, accounts or documents; (d) examine and make extracts from and copies of books, records, accounts or documents of the procurement entity, tenderer, supplier, contractor or consultant; (e) remove books, records, accounts or documents of the procurement entity, tenderer, supplier, contractor or consultant for as long as may be necessary to examine them or make extracts from or copies of them but the investigator shall give a detailed receipt for the books, records, accounts or documents removed; (f) require an officer, employee or agent of the procurement entity or tenderer, supplier, or contractor or consultant, (i) to explain an entry in the books, records, accounts or documents; (ii) to provide the investigator with information concerning the management or activities of the procurement entity or tenderers as may be reasonably required. (3) The powers of entry and search conferred by subsection (2)(a) and (c) of this section shall not be exercised except with the consent of the procurement entity or tenderer, supplier, contractor, or consultant concerned or of the person in charge of the premises unless there are reasonable grounds to believe that it is necessary to exercise those powers for the prevention, investigation or detection of an offence or to obtain evidence relating to an offence. (4) Any person who, without just cause, hinders or obstructs an investigator in the exercise of a function under this section commits an offence and is liable on summary conviction to a fine not exceeding 500 penalty units or a term of imprisonment not exceeding 2 years or to both. Procedures on completion of investigation 89. (1) An investigator shall (a) forward a copy of the investigation report to the Board; and (b) send a summary of the findings and recommendations to the procurement entity and to any tenderer, supplier, contractor or consultant whose conduct was the subject of the investigation. Page 55 53 (2) The Board shall, if satisfied that there has been a contravention of this Act or any other law in relation to procurement proceedings or procurement contracts, take action to rectify the contravention which action shall include (a) annulment of the procurement proceedings; (b) cancellation of the procurement contract; (c) ratification of anything done in relation to the proceedings; or (d) a declaration consistent with any relevant provisions of this Act. (3) The Board shall afford a person adequate opportunity to make representations in a matter, before taking any action in terms of subsection (2) which may adversely affect the rights or property of that person. Statutory audits 90. (1) The Auditor-General shall conduct annual audits of the procurement activities of entities and shall furnish copies of reports on the audits to the Board upon request from the Board. (2) The Auditor-General shall also carry out specific audits into the procurement activities of entities and compliance by contractors, suppliers and consultants with the procurement requirements in this Act and regulations made under this Act at the request of the Board. (3) The statutory audit of procurement activities may be relied upon by the Board to institute measures to improve the procurement system. Offences relating to procurement 91. (1) any person who contravenes any provision of this Act commits an offence and where no penalty has been provided for the offence, the person is liable on summary conviction to a fine not exceeding 1000 penalty units or a term of imprisonment not exceeding five years or to both. (2) The following shall also constitute offences under this Act: (a) entering or attempting to enter into a collusive agreement, whether enforceable or not, with any other supplier or contractor where the prices quoted in their respective tenders, proposals or quotations are or would be higher than would have been the case has there not been collusion between the persons concerned; Page 56 54 (b) directly or indirectly influencing in any manner or attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract; (c) altering any procurement document with intent to influence the outcome of a tender proceeding; (d) an alteration shall include but is not limited to (i) forged arithmetical correction; (ii) insertion of documents such as bid security or tax clearance certificate which were not submitted at bid opening; (e) request for clarification in a manner not permitted under this Act. (3) A person who contravenes any regulation made under this Act is liable on summary conviction to a fine not exceeding 1000 penalty units or imprisonment for a term not exceeding five years or to both. Review of threshold levels 92. The threshold levels specified in Schedule 3 shall be reviewed by the Board and presented by the Minister for the approval of Parliament. Public access to legal texts 93. The Chief Executive of the Board shall ensure that administrative rulings and directives of general application under this Act are promptly made available to the public. International obligations 94. To the extent that this Act conflicts with an obligation of the Government under or arising out of an agreement with one or more other countries or with an international organization, the provisions of that agreement shall prevail; but in all other respects, public procurement shall be governed by this Act. Regulations 95. (1) The Minister, in consultation with the Board, may make regulations by legislative instrument to give effect to the purposes of this Act. (2) In furtherance of subsection (1), the Minister may make regulations (a) on the preparation and submission of tenders; Page 57 55 (b) to provide for the manner of publication of the notice of procurement contract awards; (c) on the margin of preference in the evaluation of tenders; (d) the preparation and submission of applications to prequalify for a tender; (e) on procurement proceedings on the basis of nationality; (f) on the procurement process where one entity or a specially appointed agent is to procure items on behalf of another entity; (g) on the disposal of unserviceable stores and obsolete equipment; (h) to amend the schedules to this Act; and (i) on any other matter connected with public procurement. Interpretation 96. In this Act unless the context otherwise requires, “ Board” means the Public Procurement Board established under section 1 of this Act; “CEO” means chief executive officer; “central management agencies” means the Public Services Commission, Office of the President and Office of the Head of Civil Service; “confirmer” in relation to security means a person who or a bank which confirms letters of credit or bills; “consultant” means a person, natural or corporate, dealing in the provision of services including consulting services; “consulting services” means services which are of an intellectual and advisory nature provided by firms or individuals using their professional skills to study, design and organize specific projects, advise clients, conduct training or transfer knowledge; “currency” includes monetary unit of account; “entity” means procurement entity; Page 58 56 “goods” means objects of every kind and description including raw materials, products and equipment and objects in solid, liquid or gaseous form, and electricity, as well as services incidental to the supply of the goods if the value of those incidental services does not exceed that of the goods themselves; “governance institutions” includes Regional Coordinating Councils, District Assemblies, Metropolitan and Municipal Assemblies; “head of entity” means in relation to (i) the central management agencies and Ministries, the sector Minister; (ii) subvented agencies, the Director–General, Executive Director, Secretary or Chief Executive; (iii) the Regional Coordinating Councils, the Regional Minister; (iv) the District Assemblies, the District Chief Executive; (v) State Owned Enterprises, the sector Minister; “Minister” means the Minister responsible for Finance; “One stop only” means .in relation to the operating threshold the procurement entity seeks, concurrent approval for a contract award from one tender review board only. “performance security” means a security guaranteeing the performance of a contract; “procurement entity” means any entity conducting public procurement under this Act; “procurement contract” means a contract between the procuring entity and a supplier, contractor or consultant resulting from procurement proceedings; “professional body” means a body comprising members of a profession which is registered under the Professional Bodies Registration Decree, 1973 (NRCD 143) or under any other enactment; “public funds” include Page 59 57 (i) funds from government budget, Metropolitan Assembly budgets, Municipal Assembly budgets or District Assembly budgets; (ii) funds from government Foundations; (iii) funds from government Trust Funds; (iv) funds from domestic loans and foreign loans taken or guaranteed by government; (v) funds from state foreign aid; (vi) revenue received from the economic activity of state or local government agencies or other legal persons in public law financed from the Government budget, Metropolitan Assembly budgets, Municipal Assembly budgets, District Assembly budgets or Government foundations; “security” means an amount to secure the fulfillment of any obligation of a contractor, supplier or consultant, which may take the form of a financial deposit, a surety bond, or an irrevocable letter of credit; “service” means the furnishing of labour, time, or effort not involving the delivery of a specific end product other than reports, which are merely incidental to the required performance; and includes consulting, professional and technical services but does not include employment agreements or collective bargaining agreements; “subvented agency” means an agency set up by Government to provide public service and financed from public funds allocated by Parliament in the annual appropriation; “supplier or contractor” means any potential party or the party to a procurement contract with the procuring entity; “tender” means a person who puts in a bid in a procurement contract; “tender security” means security provided to the procurement entity to secure the fulfillment of an obligation under this Act and includes arrangements such as bank guarantees, surety bonds, stand-by letters of credit, cheques on which a bank is primarily liable, cash deposits and bills of exchange; “technical services” means services which are tendered and contracted on the basis of performance of a measurable physical output such as drilling, Page 60 58 mapping, aerial photography, surveys, seismic investigations, maintenance of facilities or plant and similar operations; “works” means work associated with the construction, reconstruction, demolition, repair or renovation of a building or structure or surface and includes site preparation, excavation, erection, assembly, installation of plant, fixing of equipment and laying out of materials, decoration and finishing, and any incidental activity under a procurement contract. Repeal and Savings 97. (1) The following enactments are hereby revoked or repealed as appropriate: (a) The District Tender Board Regulations, 1995 (L.I. 1606); (b) the Ghana National Procurement Agency Decree, 1976 (SMCD 55); and (c) the Ghana Supply Commission Law, 1990 (PNDCL 245). (2) Notwithstanding the revocation and repeal of the enactments stated in subsection (1), any contracts, orders, decisions or anything made or done by a body which, until the coming into force of this Act, was charged with the performance of any of the functions under this Act shall, be valid and continue to be in force as if it was made or done under this Act. (3) Where in the view of the Board the continued validity of an act under subsection (2) is inconsistent with this Act, the Board may take the appropriate decision to rectify the inconsistency to the extent consistent with this Act. (4) Notwithstanding the coming into force of this Act, Tender Boards, and Committees which immediately before the coming into force of this Act performed the functions of Award Authorities as envisaged under this Act shall continue in existence until they are reconstituted or otherwise replaced under this Act. Page 61 59 SCHEDULE 1 (Section 17) ENTITY TENDER COMMITTEES 1. TENDER COMMITTEE FOR CENTRAL MANAGEMENT AGENCY/ MINISTRY/SUBVENTED AGENCY Membership (1) Chairperson : A Minister to be appointed by the President (2) Members : (a) head of finance or head of accounts Division; (b) A representative of the Ministry of Justice not below Chief State Attorney; (c) Three other heads of division or department one of whom represents a user department or division. (3) Secretary : The officer heading the procurement Unit or department (4) Quorum the quorum of the Tender Committee shall be Four members, including the chairperson and members shall not delegate their responsibility to any other person. (5) Voting: Decisions shall be made by simple majority And the chairperson shall have a casting vote. (6) Functions: The Committee shall (a) Review procurement plans in order to ensure that they support the objectives and operations of the entity; Page 62 60 (b) Confirm the range of acceptable costs of items to be procured and match these with the available funds in the entity’s approved budget, (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract; (e) Facilitate contract administration and ensure Compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment are Disposed of in compliance with this Act. 2. TENDER COMMITTEE FOR REGIONAL COORDINATING COUNCIL OR DISTRICT/METROPOLITAN/MUNICIPAL ASSEMBLY Membership (1) Chairperson : the Regional Minister (2) Members: (a) the Director of Finance; and (b) A representative of the Ministry of Justice not below Senior State Attorney; (c) Four heads of Departments, one of who represents the user department/agency. (3) Secretary: The officer heading the Procurement Unit or Department (4) Quorum: The quorum of the Tender Committee shall be Four members, including the chairperson and members shall not delegate their responsibility to any other person (5) Voting : Decisions shall be made by simple majority and the chairperson shall have a casting vote. (6) Functions : The Committee shall Page 63 61 (a) Review procurement plans in order to ensure that they support the policies and programmes of the Regional Administration or District, Metropolitan or Municipal Assembly; (b) Confirm the range of acceptable costs of items to be procured and match these with the available funds in the approved budget of the Regional Administration or District, Metropolitan or Municipal Assembly; . (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract; (e) Facilitate contract administration and ensure compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment are disposed of in compliance with this Act. 3. State Enterprises Tender Committee (1) Chairperson: the sector Minister (2) Members : (a) the Chief Executive; (b) The Financial Controller; (c) The head of Technical Services; (d) Representative of the Ministry of Justice not below Senior State Attorney; (e) Two members of the Board; and (f) Three heads of Departments appointed by the Minister. Page 64 62 (3) Secretary: the head of procurement (4) Quorum: Five (5) Voting: Decisions shall be by simple majority And the chairperson shall have a casting vote. (6) Functions The Committee shall (a) Review procurement plans in order to ensure that they support the objectives and operations of the Entity; (b) Confirm the range of acceptable costs of items to be procured and match these with the available funds in the entity’s approved budget; (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract. (e) Facilitate contract administration and ensure compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment Are disposed of in compliance with this Act. 4. Tertiary Institutions Tender Committee (1) Chairperson: Chairperson of Council (2) Members: (a) the Registrar; (b) The Finance Officer; Page 65 63 (c) A lawyer appointed by the Council; (d) One member nominated by the Development Committee; (e) One member appointed by the Ministry of Education; (f) One member appointed by the National Council on Tertiary Education (NCTE); (g) One representative of the students’ Representative Council (SRC); and (h) One representative from an association of university teachers. (3) Secretary: the Senior Assistant Registrar with responsibility For the General Services schedule (4) Quorum: Five (5) Voting: Decisions shall be by simple majority and the Chairperson shall have a casting vote. (6) Functions: The Committee shall (a) Review procurement plans in order to Ensure that they support the objectives and operations of the Institution, Faculty, Department or Entity; (b) Confirm the range of acceptable costs of Items to be procured and match these with the available funds in the approved budget; (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract; Page 66 64 (e) Facilitate contract administration and ensure compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment are disposed of in compliance with this Act. 5. College /School Tender Committee Membership (1) Chairperson: Chairman of Board of Governors (2) Members: (a) Principal, Headmaster or Headmistress; (b) The Bursar or Finance officer; (c) Two members of the governing Board; (d) A lawyer appointed by the governing board; (e) Two heads of department one being the beneficiary department. (3) Secretary: Secretary to the governing board (4) Quorum : Five (5) Voting: Decisions shall be by simple majority and the Chairperson shall have a casting vote. (6) Functions: The Committee shall (a) Review procurement plans in order to Ensure that they support the objectives and operations of the Institution or Entity; Page 67 65 (b) Confirm the range of acceptable costs of items to be procured and match these with the available funds in the approved budget; (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract; (e) Facilitate contract administration and ensure compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment are disposed of in compliance with this Act. 6. Hospital/Health Institution Tender Committee (1) Chairperson: Minister for Health (2) Members: (a) the Director of Health Services; (b) Two members of the governing board; (c) A lawyer appointed by the governing board; (d) Two heads of clinical departments including the beneficiary department; (e) The head of Finance; (f) The Chief Director of the Ministry of Health; (g) The Matron; (h) Two heads of Department including clinical heads (3) Secretary: the head of procurement or officer with responsibility for procurement. (4) Quorum: Five Page 68 66 (5) Voting: Decisions shall be by simple majority and the Chairperson shall have a casting vote. (6) Functions: The Committee shall (a) Review procurement plans in order to ensure that they support the objectives and operations of the Institution or Entity; (b) Confirm the range of acceptable costs of items to be procured and match these with the available funds in the approved budget; (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract; (e) Facilitate contract administration and ensure compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment are disposed of in compliance with this Act. 9. Bank of Ghana or Financial Institutions Tender Committee Membership: (1) Chairperson: the Governor or CEO (2) Members : (a) two members of the Board; (b) The First Deputy Governor; (c) A Deputy Minister for Finance; (e) A representative of the Chief of Staff; (e) The Head of Finance; and (f) A representative of the beneficiary department. (3) Secretary : the secretary to the Bank Page 69 67 (4) Quorum: Five (5) Voting: Decisions shall be by simple majority should vote Become necessary and the chairperson shall have a Casting vote. (6) Functions : The Committee shall (a) Review procurement plans in order to ensure that they support the objectives and operations of the Institution or Entity; (b) Confirm the range of acceptable costs of items to be procured and match these with the available funds in the approved budget; (c) Review the schedules of procurement and specifications and also ensure that the procurement procedures to be followed are in strict conformity with the provisions of this Act, its operating regulations and guidelines; (d) Ensure that the necessary concurrent approval is secured from the relevant Tender Review Board, in terms of the applicable threshold in Schedule 3 of this Act, prior to the award of the contract; (e) Facilitate contract administration and ensure Compliance with all reporting requirements under this Act; and (f) Ensure that stores and equipment of the Bank Are disposed of in compliance with this Act. Page 70 68 SCHEDULE 2 (Section 19) COMPOSITION AND FUNCTIONS OF TENDER REVIEW AUTHORITIES 1. CENTRAL TENDER REVIEW BOARD (1) Number : One (2) MEMBERSHIP : Nine (3) Chairperson: An eminent person appointed by the President on the Advice of the Minister for Finance (4) Members: (a) Two public sector persons conversant with procurement principles and procedures appointed by the Minister; (b) Three professionals appointed by the Institute of Engineers, Institute of Chartered Accountants and Institute of Surveyors; (c) The Attorney-General or the representative of The Attorney General; (d) The Director General, National Development Planning Commission; and (e) The Chief Director, Ministry of Finance. (5) Secretary: A Director in the Ministry of Finance appointed by the Minister. 2. MINISTRY TENDER REVIEW BOARD (In the national capital only) (1) Number : Twenty-one (2) MEMBERSHIP : Five (3) Chairperson: A public sector person with considerable Experience in procurement, business management or engineering, appointed by the Minister (4) Members : (a) three heads of departments or agencies Within the Ministry appointed by the Sector Minister; Page 71 69 (b) Two persons with experience in procurement from the private sector with engineering, legal, accounting or business background appointed by the Sector Minister; (c) the Chief Director of the Ministry; (d) the Director of Finance and Administration of the Ministry; and Member and Secretary: (e) The head of Logistics and Supplies or the head of the procurement unit. 3. REGIONAL TENDER REVIEW BOARD (1) Number : Ten (2) MEMBERSHIP : Five (3) Chairperson: An eminent private or public sector person with procurement, business management or engineering background resident in the Region appointed by the Regional Coordinating Council. (4) Members : One public sector person resident in the Region with experience in procurement appointed by the Regional Coordinating Council; (b) One private sector person with experience in procurement or business resident in the Region appointed by the Minister of Local Government and Rural Development; (c) The Regional Coordinating Director; (d) The Regional Directors of (i) Ghana Highways Authority; (ii) Ghana Education Service; (iii) Ministry of Food and Agriculture; And (iv) Ministry of Health; and (e) A representative of the Ministry of Justice in the Region. (5) Secretary: the Regional Director of Planning 4. DISTRICT TENDER REVIEW BOARD (1) Number : One hundred and ten (2) MEMBERSHIP: Five (3) Chairperson: A public sector person resident in the district with Page 72 70 Procurement, business management or engineering background appointed by the District Assembly. (4) Members : (a) The chairperson, Works Committee of the District Assembly; (b) The chairperson, Finance Committee of the District Assembly; and (c) One private sector procurement specialist appointed by the District Assembly. (d) The District Directors of (i) Urban Roads/Feeder Roads; (ii) Ghana Education Service; (iii) Health Services; and (iv) Ministry of Food and Agriculture; (e) The representative of the Attorney-General’s Office in the district. (5) Secretary : the Director of Planning. Page 73 71 SCHEDULE 3 (Section 20, Section 41, Section 43, Section 65) 1. Thresholds for Procurement Methods Procurement Method/Advertisement Contract Value Threshold (1) Pre-qualification (a) Goods (b) Works (c) Technical Services Above GHC 35 billion Above GHC 70billion (not more than 10% of cost of works) (2) International Competitive Tender (a) Goods (b) Works (c) Technical Services Above GHC 15.0 billion Above GHC 20. 0 billion Above GHC 2.0 billion (3) National Competitive Tender (a) Goods (b) Works (c) Technical Services More than GHC 200 million up to GHC 2.0 billion More than GHC 500 million up to GHC 15 billion More than GHC 200 million up to GHC 2.0 billion (4) Restricted Tendering Subject to Approval by PB (5) Price Quotation (a) Goods (b) Works (c ) Technical Services Up to GHC 200million Up to GHC 500million Up to GHC 200million (6) Single Source Procurement and Selection Subject to Approval by PB (7) Advertisements for Expressions of Interest for Consulting Services in local newspapers Above GHC 700million (8) Least-Cost Selection Up to GHC 700million (9) Selection based on Consultant’s Qualifications Up to GHC 350m (10) Single Source-Selection Subject to Approval by PB 2 . (B1) Decentralised Procuring Entities - Thresholds for Review/Approval Authority (Amounts in GHC) Authority Goods Works Technical Services Consulting Services (1) Head of Entity Up to 50m Up to 100m Up to 50m Up to GHC50m (2) Entity Tender Committee >50m-250m >100m-500m >50m-250m >50m-100m (3) District Tender Review Board >250m-1.0b >500m-2.0b >250m-1.0b >100m-500m Page 74 72 (4) Ministerial and Regional Tender Review Board >1.0b-8.0b >2.0b-15.0b >1.0b-8.0b >500m-3.5b (5) Central Tender Review Board Above 8.0b Above 15.0b Above 8.0b Above 3.5b 3. (B1) Other Procuring Entities - Thresholds for Review/Approval Authority (Amounts in GHC) Authority Goods Works Technical Services Consulting Services (1) Head of Entity Up to 50m Up to 100m Up to 50m Up to 50m (2) Entity Tender Committee > 50m- 1.0b >100m-2.0b >50m-1.0b >50m-500m (3) Ministerial and Regional Tender Review Board >1.0b-8.0b >2.0b-15.0b >1.0b-8.0b >500m-3.5b (4) Central Tender Review Board Above 8.0b Above 15.0b Above 8.0b Above 3.5b Page 75 73 SCHEDULE 4 (Section 49, Section 67) STANDARD TENDER DOCUMENTS AND STANDARD REQUEST FOR PROPOSALS. 1. Standard Tender Document for Procurement of Works 2. Standard Tender Document for Procurement of Works (Smaller Contracts) 3. Standard Tender Document for Roads -Major 4. Standard Tender Document fro Roads-Minor 5. Standard Tender Document for Procurement of Goods 6. Standard Tender Document for Procurement of Health Goods 7. Standard Tender Document for Procurement of Text Books 8. Standard Tender Document for Procurement of IT Systems 9. Standard Request for Proposals for Selection of Consultants 10 Standard Document for Prequalification of Suppliers, Consultants and Contractors 11 Standard Document for request for Expression of Interest 12. Sample Format Request for Quotations 13. Disposal of Stores (Goods and Equipment) 14. Board of Survey Form/ Disposal Certificate /Destruction Certificate 15. Standard Tender Evaluation Format and Reporting Format for Goods, Works and Selection of Consultants 16. Standard and Sample Contracts for Consultants Services 17. Complex Time Based Assignments 18. Lump-sum remuneration 19. Small Assignments Time Based Payments 20. Lump Sum payments June 25, 2003 Page 76