94855 Benchmarking Public Procurement 2015 Pilot report assessing public procurement systems in 10 economies © 2015 International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org This work is a product of the staff of The World Bank with external contributions. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Rights and Permissions The material in this work is subject to copyright. Because The World Bank encourages dissemination of its knowledge, this work may be reproduced, in whole or in part, for noncommercial purposes as long as full attribution to this work is given. Any queries on rights and licenses, including subsidiary rights, should be addressed to the Publishing and Knowledge Division, The World Bank Group, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@worldbank.org. Cover design: Corporate Visions, Inc. Benchmarking Public Procurement 2015 Table of contents 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Benchmarking Public Procurement: Building the Pilot Methodology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Accessibility of Public Procurement Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 What the Accessibility Topic Measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Initial Pilot Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Lessons Learned and Next Steps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4. Bidding for a Public Procurement Tender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 What the Bidding Topic Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Initial Pilot Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Pre-Tendering Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Tendering Phase: Information on Public Procurement Opportunities. . . . . . . . . . . . . . . . . . . . . . . . . . 34 Tendering Phase: Bid Submission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Tendering Phase: Award of the Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Lessons Learned and Next Steps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 5. Filing a Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 What the Filing a Complaint Topic Measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Initial Pilot Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Lessons Learned and Next Steps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 6. Accountability and Oversight Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 What the Accountability and Oversight Mechanisms Topic Measures. . . . . . . . . . . . . . . . . . . . . . . . . 84 Initial Pilot Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Reporting Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Recording Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Internal Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Routine External Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Oversight Institutions for the Public Procurement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Conflict of Interest and Code of Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Lessons Learned and Next Steps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Contributors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 1 1 Introduction Introduction From bridges to roads, hospitals to power plants, trillions of dollars are spent every year by government agencies on behalf of their citizens in public procurement-related transactions.1 In developing countries, it is estimated that US$820 billion a year is spent on public procurement, accounting for an estimated 15-20% of the gross domestic product (GDP) and up to 50% or more of total government expenditure. In fragile states, public procurement can account for up to 60-70% of all government expenditure. For example, public procurement represents about 70% of government pen­ ex­ diture in Timor-Leste, Sierra Leone, and Uganda, and 65.9% in Swaziland. Public procurement is important in high-income contracts, they have remained highly suscep- countries as well, reaching on average 12% of tible to corruption in the past decade. This GDP and about 29% of total general govern- phenomenon has a highly negative impact on ment expenditure (UNCITRAL, 2011). In fiscal economies, given that corruption undermines year 2013 alone, federal procurement spend- competition in the market and impedes econom- ing in the United States topped US$460 billion, ic development (UNODC, 2013). Corruption in according to the Office of Management and public procurement not only wastes citizens’ Budget, a number that roughly equates to the money but undermines the quality of public combined GDPs of Chile and the Czech Republic goods and services by not fairly and prop- (World Bank, 2013), two high-income economies. erly considering public needs when projects are Moreover, the volume of government expenditure designed and implemented. through public procurement has been steadily Yet there are at least three avenues through which increasing. In the European Union, between 2006 fair and transparent competition in procurement and 2010, the number of contract award no- can have desirable effects on markets. First, with tices published annually increased by about 62% free entry and an absence of collusion, prices (PriceWaterhouseCoopers, 2011). will be driven towards marginal costs. Second, The impact of the public procurement sec- suppliers will have an incentive to reduce produc- tor is not merely economic. Increasingly tion costs as well as other costs over time. Third, in recent years, public procurement has competition serves as an important driver of played a broader social and political role, innovation (Anderson et al., 2011). Transparency notably through the emergence of sustainable International estimates that “damage from cor- procurement. Governments can use their pur- ruption can represent on average 10-25%—and in chasing power to promote social, industrial, and the worst cases as much as 50%—of a contract’s environmental policies and to catalyze more in- value” (Transparency International, 2006). clusive growth. For example, public procurement Given the complexity, volume, and high risk of policymakers can influence business practices by corruption in public procurement, efficiency requiring that goods or services procured meet in this field is vital and has been a policy and specific environmental standards (e.g., the use management concern for public procurement of renewable energy or recycled materials) or practitioners. In order to be effective purveyors respond to social concerns (such as gender equal- of transparency and good governance, public ity or non-discrimination against minority groups procurement systems need to balance several in the workplace). goals, including promoting efficiency, enhanc- The financial magnitude of public procurement, ing competition among private sector suppliers, when combined with a lack of transparency and promoting the adoption of high standards and competition, can make this sector the ideal of equity to ensure fairness and transparency. breeding ground for corrupt behavior, whether in The legal and regulatory framework governing developing or developed countries. Despite the public procurement must be clear, promote fair- many efforts to curb corruption in government ness, and prevent any form of discrimination and 2 Benchmarking Public Procurement 2015 favoritism. Overall, public procurement systems 2003, the Doing Business project has inspired must give the public confidence that the govern- close to 2,000 reforms in business regulation. ment is providing legitimate public services and Data-based indicators have been recognized as not merely increasing the wealth of government critical to shaping public awareness and to deci- officials and promoting narrow private interests. sion-making when it comes to global governance. Despite its strategic importance, there is still a Their simplicity, communicability, and transpar- lack of comparative global statistics on public ency can promote greater consistency in the de- procurement systems. Initiatives have been un- cision-making process (Davis et al., 2010). That is dertaken largely at the microeconomic level, but why the Doing Business indicators are recognized there is no single body of data assessing perfor- to be influential and successful in attracting the mance of public procurement systems globally. attention of senior policymakers, government of- This lack of comparable global information led ficials, and the business community in many of the Group of Twenty (G20) leaders at the 2010 the World Bank’s client countries (Independent Seoul Summit to voice their concern and em- Evaluation Group [IEG], 2008). phasize the need for cross-country benchmarks Building on the Doing Business methodology, the to help identify areas for reform and promote analysis conducted in the Benchmarking Public more transparent, competitive, and efficient Procurement project highlights a number of fac- public procurement systems. Inspired by the tors that affect public procurement systems and Doing Business2 project, the G20 Anti-Corruption are especially critical for private sector compa- Working Group asked the World Bank to consider nies. For the pilot year, it relies on a series of data options for developing quantitative and action- points that are not aggregated at a topic level able procurement transparency data to measure and are not ordered to produce a ranking of each and promote anti-corruption activities. country’s performance. Specifically, the project In line with this request, the Benchmarking Public analyzes laws, regulations and practices in four Procurement report aims to support and enhance policy areas (see Table 1.1). policy decision-making based on a methodology These four areas were chosen for their high rel- that measures and assesses key aspects of a evance. Consideration was given to whether an country’s public procurement legal and regulato- area is affected by public policy, regulatory, and ry framework. The project follows the successful administrative frameworks, or whether it mostly approach undertaken by the World Bank Global depends on other factors that are not actionable; Indicators Group, which, with its Doing Business whether public authorities can take short-term project, has a recognized track-record of measur- actions in the areas measured, or whether the ing a country’s laws and regulations and leverag- topic lends itself to long-term reforms. The four ing reform. The Doing Business project assesses identified areas were further evaluated through the business climate of 189 economies against rigorous consultations with experts. recognized good practices. Since its inception in Table. 1.1: Benchmarking four key areas for private sector suppliers Quality of laws and regulations Accessibility to public procurement information Evaluates the accessibility and clarity of public procurement information (legal indicators) Accountability and oversight mechanisms Assesses oversight mechanisms, reporting capabilities and the extent of procuring officials’ accountability (legal indicators) Complexity and cost of regulatory processes Bidding for a procurement tender Measures the ease of bidding for a procurement tender (time and motion indicators) Filing a complaint Analyzes the process to challenge a public procurement tender through a complaint system (time and motion indicators) 3 1 Introduction The Benchmarking Public Procurement data methodological, when it comes to the question- will highlight areas for improvement and will naire design and data collection; and limitations guide policymakers throughout the regulatory related to the potential interpretation and use of reform cycle by serving as a diagnostic tool and the data. a benchmarking instrument against recognized The substantive limitations reside in the fact that good practices. The data aim to meet different the data points are limited in scope. They do not stakeholders’ needs for information, analysis, and measure the full range of factors that affect the policy action. public procurement system of a given economy. For policymakers and government agencies In terms of methodological limitations, it is worth involved in procurement tenders, Benchmarking noting that Benchmarking Public Procurement is Public Procurement will help identify those areas not a survey of company or suppliers’ perceptions. in which change is needed, presenting models for A single question included at the end of the reform from around the globe. Consistent and questionnaire prompts contributors to provide objective data on public procurement can inform their opinion on the main shortcomings of their decision-making by policymakers seeking to pro- country’s public procurement systems, but mote more effective, inclusive, and open public this information is merely used for contextual procurement systems. The report will also stimu- purposes, and does not form an integral part of late reform through cross-country benchmarking the analysis. Additionally, although they aim to of critical competitiveness factors. Finally, it will measure the typical experience of a company provide guidance on how to handle procurement involved in public tender, the data points are not practices on a daily basis. necessarily representative of all tenders. Also, the data on the efficiency of administrative processes Private sector companies involved in public are specific to the country’s largest commercial procurement and those denied an opportunity city and not necessarily representative of to participate in tenders due to flaws in public common practices in other cities in the country procurement systems will also benefit from this (i.e., it is not a sub-national study). work. The data will assess the procurement sys- tem of a given country. The move toward more Finally, when interpreting the data, users must transparent and efficient systems will enhance bear in mind that the data points are based on private sector confidence and hence participation hypothetical case study assumptions to allow for in procurement tenders by increasing the likeli- comparability across countries. hood of doing business with governments in a fair The reader of the Benchmarking Public competitive process. Procurement 2015 report is presented with five Finally, the academic and research commu- core sections. The report starts by offering an nity will be able to use the Benchmarking Public overview of the project’s methodology, which is Procurement data to address demands for better modeled after the Doing Business project. It then information on procurement systems as well as reviews common trends in each of the four policy for cross-country analysis. areas measured. Each of the four topic chapters offers the reader an in-depth, cross-country view This initiative aims to be a key driver in the global of the analyzed data points. The subsequent debate on the dynamics between competition annexes reveal additional policy findings across and public procurement law (i.e. the competition the 10 countries surveyed. distortions generated by public procurement regulations and administrative practices), and its In the coming years, Benchmarking Public relevance for economic development. The ques- Procurement will be further developed both tions and methods designed have high potential thematically and geographically. Over time, the for widespread use given the global dimension of number of economies surveyed will increase the research. to reach a global coverage of 189 economies. An expansion of the thematic coverage is Like any type of dataset, Benchmarking Public also currently being considered to measure Procurement presents limitations, mainly in three additional impediments to private firms’ access areas: substantive, when it comes to the con- to government contracts. Finally, the data points tent and thematic coverage of the data points; presented may potentially be aggregated into 4 Benchmarking Public Procurement 2015 indicators next year and scores assigned to each economy measured. Benchmarking Public Procurement will consider introducing country rankings in future years, after the project’s methodology has been stabilized. Feedback is welcome on the data, methodology, and overall project design in order to make Benchmarking Public Procurement a better, more useful resource for its users. 5 2 Benchmarking Public Procurement: Building the Pilot Methodology Benchmarking Public Procurement: Building the Pilot Methodology In developing its methodology, the Benchmarking Public Procurement team consulted the academic literature on the main impediments to efficiency when it comes to public procurement systems, as well as on barriers to doing business with governments. The team conducted a thorough review of internationally accepted good practices and consulted periodically with a global roster of public procurement specialists that comprised the project’s Expert Consultative Group.3 This informal advisory group helped refine the project’s thematic coverage and methodology. The result was the focus on the four thematic areas and development of four survey instruments, which were administered to more than 400 respondents in the pilot countries (after careful review by internal and external experts). Once collected, the data was subject to several The analysis is based on two types of data points: rounds of verification and quality control mecha- de jure to assess the compliance of public procure- nisms were developed to safeguard its reliability. ment regulatory frameworks with internationally Frequent interaction with contributors via email recognized good practices in terms of transpar- and phone interviews allowed for clarification of ency and accountability, and de facto to assess discrepancies. The team’s extensive research and the efficiency and complexity experienced by the analysis corroborated the main findings and rein- private sector in satisfying procurement require- forced the quality of the data. The Benchmarking ments, recording the procedures, time, and cost Public Procurement data will be collected on an of completing a transaction in accordance with annual basis with the objective of recording re- all relevant regulations and current practices. forms and changes in practice. The first round These two series of data points complement of Benchmarking Public Procurement data was each other to allow for a valid and thorough as- collected in the fall of 2013 and does not cover sessment of the rules in force and their actual changes that may have occurred after March 1, impact on public procurement practices. 2014 (See Figure 2.1). Figure 2.1: The yearly cycle of the Benchmarking Public Procurement project November Survey administration September–October December–February Survey Data development verification June–August March–May Report writing Data (and publication) analysis 6 Benchmarking Public Procurement 2015 De jure Benchmarking the processes involved in both pre- and post- The Accessibility of Public Procurement award complaints, essentially seeking to iden- Information section assesses the extent to which tify the options legally available to a disgruntled national regulatory frameworks support the bidder. The survey questions reflect internation- suppliers’ accessibility of public procurement ally recognized good practices when it comes to information throughout the pre-tendering and remedial actions, such as the establishment of a tendering phases of the procurement cycle. More two-tier review system. The questions also exam- specifically, it relies on several data points to ine the time and cost of available options from a capture accessibility of forthcoming and pending de facto standpoint. procurement opportunities, information on pend- Respondents with significant and routine experi- ing tenders, and accessibility of award decisions. ence in the relevant transactions provided the de The Accountability and Oversight Mechanisms facto data. Benchmarking Public Procurement section assesses regulatory-based controls per- uses the following definitions to measure proce- formed throughout the pre-tendering and tender- dures, time and cost: ing phases of the procurement process. Among A “procedure” is an interaction of the supplier other issues, this thematic area assesses pro- or his/her representative with external parties, curing agents’ reporting requirements, internal including lawyers, notaries, and government and external oversight and control mechanisms, agencies. Procedures sometimes take place si- and general recording requirements. The section multaneously. Interactions between company also touches upon the issue of conflict of inter- owners or company officers and their employees est. The survey supporting the Accountability are not considered separate procedures. Each and Oversight Mechanisms topic was primarily electronic procedure is counted separately. distributed to public servants and public officials. “Time” to perform a procedure is measured in cal- The notion of “regulatory framework” examined endar days; the minimum time for each procedure by the de jure data points is identical from one is 1 day. It includes the waiting time, if any, to have economy to the other. It covers all public procure- the procedure performed when no unlawful pay- ment regulations, legal texts of general applica- ment or bribe is offered to accelerate the process. tion, judicial decisions and administrative rulings “Cost” only includes official fees and charges; it that established precedent in connection with does not include unlawful payments or bribes. public procurement. Professional fees (lawyers or other experts fees) De facto Benchmarking are only included if the company is required to use The Bidding for a Public Procurement Tender sec- such services by law. tion aims to assess the ease of bidding for a public It should be noted that these data points are not tender. The section looks primarily at transaction aggregated at a topic level and are not ordered to costs incurred by a prospective bidder, from ac- produce a ranking of an economy’s performance. cess to bid opportunities to the tender award The team will consider introducing country rank- phase. A mix of legal and de facto data points, the ings in future years, after the project’s methodol- topic registers the procedures, time, and cost le- ogy has been stabilized. gally imposed on bidders. This topic also captures Standardized data is indispensable for valid specific characteristics of the bidding process cross-country comparisons. The Benchmarking (e.g., consultation with the private sector). As with Public Procurement analysis is based on data the Accessibility of Public Procurement Tender collected and processed in an objective and section, questions are asked in a sequential order, standardized manner. This is achieved through following the successive steps of the procurement the use of case study assumptions pertaining process. This format allows for a complete as- to the procurement contract, the supplying firm sessment of the procedures prospective bidders willing to submit a bid, and the context of the face and their complexity. procurement. By using case study assumptions The Filing a Complaint section aims to assess the that can be replicated in each selected economy, process of challenging a public procurement ten- the resulting data is comparable across econo- der through a complaint system. It also considers mies, making it possible to develop reliable and 7 2 Benchmarking Public Procurement: Building the Pilot Methodology accurate benchmarks. As data collection is easily efficiency of systems for local supplying firms. The replicable and can overcome deep structural dif- procuring entity is a local, rather than a national, ferences that could jeopardize comparison, it can entity and the typical bidder is a local SME willing to easily be applied to a larger number of economies participate in a tender undertaken at the local level. in a secure and cost-efficient way. This automatically excludes large and complex projects for commodities and infrastructure from The project methodology is based on standard the case study, projects for which only a handful of case study assumptions, which provide a hypo- companies can bid. thetical scenario that guide local respondents in their completion of the survey questionnaires. Data was collected from practitioners bringing The scenario involves a hypothetical medium- a wealth of knowledge related to public procure- sized local enterprise named “WheelCo” that ment systems. These include lawyers with ex- seeks to participate in public tenders for the pro- tensive professional experience advising clients curement of its products (Box 2.1). on public procurement laws and regulations, private sector suppliers engaged in public ten- Several objectives guide the drafting of case ders, government officials familiar with applied study assumptions. The first objective is to en- procurement practices, as well as consultants able comparability. Thus, when it comes to pub- and academics. This approach has allowed the lic procurement, the industry selected for the team to complement input from private sector case study must be, to the extent possible, free practitioners with feedback from public sector from specific health, safety, or national security officials who are key actors in public procurement regulations. Comparing procurement of heavily systems. regulated products and services is particularly complex since industry-specific regulations of- Respondents were selected based on their inter- ten trump the application of public procurement est, availability, and willingness to contribute to rules. Therefore, even though the defense and the project on a pro bono basis. The Benchmarking pharmaceutical industries generally represent Public Procurement team identified its potential a large share of government spending, the hy- pool of respondents based primarily on the fol- pothetical procurement contract does not cover lowing sources: these industries. In addition, again in the interest • International guides identifying leading of comparability, the values provided in the case providers of legal services, including their study assumptions are not flat values but pro- specialization, in each country. The guides portionate to the gross national income (GNI) per include Chambers and Partners, Martindale, capita of the selected economy. IFLR1000, Helpline Law, HG Law, International The second objective underlying the design of Correspondence Lawyers and Financial the case study is to collect data regarding the Box 2.1: Hypothetical case study assumptions and definitions for Benchmarking Public Procurement The company, “WheelCo,” is a domestic, privately owned limited liability company, which operates in the country’s main business city. It is a medium-sized company with 10 to 50 employees and an annual turnover equivalent to 100 times the country’s GNI per capita. The procurement contract is a contract for the supply of five commuter buses for public transportation. It has a value equivalent to 16 times the country’s GNI per capita. WheelCo’s offer is the first offer the company has made to a public tender. It is complete and includes all required documentation. It is unambiguous and provides a price quotation free from error. The procurement process follows an open, competitive procedure and attracts 6 offers, including WheelCo’s. The procuring entity is a local authority in the country’s main business city that initiates a public call for tender for the procurement of five commuter buses for public transportation. 8 Benchmarking Public Procurement 2015 Table 2.1: Economies covered in Benchmarking Public Procurement and selection criteria Pilot economies Selection criteria East Asia and the Pacific: Thailand Economies with high capital expenditure and » public procurement budgets Eastern Europe and Central Asia*: Turkey Economies representing all 7 regions globally » High-income OECD: Sweden, United States. “Good comparators” from the high-income OECD » Latin America and the Caribbean: Chile, Mexico list of economies Middle East and North Africa: Jordan Economies where the Global Indicators » South Asia: Afghanistan Group (GIG) has active working programs (e.g., Sweden). Sub-Saharan Africa: Ghana, Uganda The Russian Federation was added to the list of economies in the Spring of 2014. Data collected will be featured in the next * Benchmarking Public Procurement analytical report. Experts, The Internet’s Lawyer Directory, and the questions in each area need to be relatively Terra Lex. specific to ensure comparability across countries. • Large international law and accounting firms The first step in determining the coverage of the with extensive global networks, whether of- pilot Benchmarking Public Procurement analysis fices or local partner groups. was to analyze existing multilateral instruments • Members of the American Bar Association, and select a relevant approach. As many country bar associations, chambers of com- instruments have focused on the governmental merce, and other membership organizations. agenda when it comes to public procurement, • Professional services providers identified on Benchmarking Public Procurement instead chose the web sites of embassies, public procure- to evaluate the efficiency of public procurement ment agencies, business chambers, and other systems from the point of view of private entities. local organizations. Metrics were developed to assess regulations • Professional service providers recommended and practices that are essential to private sector by country offices of the World Bank and the suppliers wishing to engage in business with International Finance Corporation (IFC). the government. As a result, the Benchmarking The geographical coverage of the Benchmarking Public Procurement project does not analyze Public Procurement pilot project includes 10 econo- the effectiveness of public procurement as a mies, chosen to provide a sample featuring each government instrument to support public policy region of the world and all development levels. goals such as sustainable growth or budget efficiency. Nonetheless, it is worth noting that the The ambition of the Benchmarking Public data points capture dimensions/characteristics Procurement project is to scale up progressively of procurement systems that have a clear benefit to 189 economies by replicating the standardized for governments over the long-term. Indeed, methodology developed during the pilot (see Table facilitating the procurement process for bidders 2.1). and restoring confidence in procurement systems The Benchmarking Public Procurement data can boost competition in procurement markets points are proxies that attempt to capture and enable governments to achieve better value important dimensions of the quality and for public money. efficiency of public procurement systems Furthermore, the pilot analysis focuses primarily that business communities across countries on the pre-tendering and tendering phases encounter. Understanding the data’s scope of of the procurement process. This is because coverage is fundamental to its interpretation. consultations with public procurement experts For the pilot phase, the project is limited in revealed that the major impediments to suppliers scope for practical reasons. There is a limit to reside in the burden of transaction costs and lack the number of areas that can be measured, and of information during these phases. Furthermore, 9 2 Benchmarking Public Procurement: Building the Pilot Methodology the pre-tendering phase (specifically procurement modify contract terms, performance evaluation planning, needs assessment, and document and the like. preparation) and the tendering phase are Benchmarking Public Procurement does not as- vulnerable to corruption, and that corruption sess the regulatory framework to prevent fraud can often be addressed with specific steps and corruption. A few questions seek to gauge the which the surveys address. For example, in duty of procurement officials to report suspicion the pre-tendering phase, transparency and of fraud. However, the analysis conducted in the accessibility of the needs assessment, the pilot phase does not cover the issue extensively procurement plan, and specifications make them and the surveys do not ask targeted questions less prone to manipulation. In the tendering on either the regulatory framework against fraud phase, transparency of the award winner, the or corruption or contributors’ perceptions of the criteria for selecting the winning supplier, the issue. It is also important to note that bribery price offered by this supplier, etc., make it more and the impact that it may have on the number difficult to hide a fraudulent selection. For these of procedures, time or cost, is not taken into ac- reasons, the execution phase of the procurement count in the study. It is part of the assumptions contract is not assessed in this pilot project, that these factors are not the consequence of which for the time being does not capture data bribery or fraud. pertaining to issues such as the payment of suppliers, governments’ rights to unilaterally 10 Benchmarking Public Procurement 2015 3 Accessibility of Public Procurement Information Accessibility of procurement information reinforces suppliers’ trust in procurement systems. It increases their incentive to bid by informing them of opportunities to compete and giving them confidence that bids will be assessed on their merits (Anderson et al., 2011). Access to procurement information is crucial for for a firm with fewer resources and the impact of all parties involved in the procurement process: losing a tender more difficult. from the private sector companies that bid, to In a recent evaluation of SMEs’ access to public the government entities that seek goods and ser- procurement markets in the European Union, vices, and ultimately to citizens and taxpayers. SMEs identified difficulties in accessing public Access to information stimulates participation procurement information as one of the major in public tenders, and as it facilitates access to obstacles to entering the market. The results of the procurement market, levels the playing field the assessment show that, from the perspective among bidders (OECD, 2001). of SMEs, awarding authorities could ease access However, the notion of accessibility goes far be- by allowing the use of email as a channel of com- yond the publication and availability of informa- munication, undertaking improvements in tender tion. It also entails ease of access to and clarity specifications and documentation, and in tender of information. Compare, for instance, a country information in general. Moreover, some common where full, lengthy versions of public procurement accessibility barriers to participating in public laws and regulations are published in a paper- procurement have been noted by SMEs across based official journal that can only be obtained in a range of countries: SMEs identify the lack of one location in the capital city, to a country where awareness of public procurement opportunities laws and regulations are published online, on a and of accessible, timely, and comprehensible single e-procurement portal from which users information as key barriers that significantly can also download short versions of the texts and restrict their access to public procurement explanatory documents. In both cases, the infor- markets. mation is published and available, but because it As accessibility of information positively impacts is much easier to obtain and comprehend in the all parties in the public procurement process, it second country, it is more accessible. Obstacles should be at the heart of procurement reforms. to access and clarity of information take many Rules promoting accessibility are the starting forms: multiple rules among agencies, conflicting point to achieving efficiency. Governments, information provided by public agents, excessive through the design and implementation of smart use of dense legal jargon (or ‘legalese’), a multi- policies, play a crucial role in providing better tude of secondary legislation, language barriers, access to public procurement information. and lack of guidelines are a few examples. Policy objectives should be targeted at opening Difficulties in accessing procurement information up public procurement markets to competition create inequalities among participants and are and ensuring greater transparency by creating a likely to be especially discouraging for small and level playing field that gives all companies similar medium enterprises (SMEs), which usually face chances to participate and succeed. A strong higher barriers to access the public procurement regulatory framework that yields accessibility to market and have limited ability to compete. For procurement information is an indispensable first instance, small firms have fewer resources to step, but it is meaningless if it is complemented prospect for business, making it more challeng- by poor implementation. ing for them to learn about procurement op- portunities, while larger firms often have units What the Accessibility specifically dedicated to this task. And because Topic Measures bidding is an investment of time, money, and en- The Accessibility of Public Procurement topic ergy, formulating a bid is naturally more costly captures data points that together provide a snapshot of the accessibility to public procure- ment information—from the procurement plan, 11 3 Accessibility of Public Procurement Information Table 3.1: Accessibility of public procurementinformation—topics covered Gaining awareness of forthcoming and pending opportunities Assesses whether publication of the procurement plan and advertisement of the tender notice are legally required in the context of open bidding and, if so, in what type of publication. Accessing information about a tender Assesses the legal requirements regarding the quality and quantity of the information provided in the tender notice. Understanding the object of the tender Assesses whether the regulatory framework requires procuring entities to rely on nationally or internationally accepted standards when drafting tender specifications and to use templates or model documents. Understanding how bids are assessed Focuses on whether the regulatory framework requires that the criteria and method of assessment be accessible to bidders and, if so, how they are to be made accessible. Accessing the outcome of the tendering process Focuses on whether the regulatory framework requires that the outcome of the tendering process be published and, if so, through which media. to the tender outcome—as supported by national In Thailand, publication is not required by law, regulations (See Table 3.1). but state agencies must make available for public inspection, upon demand, “a work-plan, project Initial Pilot Results and annual expenditure estimate of the year.” Gaining Awareness of Forthcoming and Pending In Sweden, “prior information notices” on planned Procurement Opportunities procurements for the following 12 months must be Suppliers’ access to the public procurement mar- published only if the contracting authority wishes ket is naturally contingent on their awareness of to shorten the tender periods. A notice may be pub- procurement opportunities. Accessibility to the lished on the website of the procuring entity or by procurement plan is essential to inform suppliers of sending a prior information notice to the European forthcoming tenders. Of the 10 countries evaluat- Commission.5 ed, rules regarding publication of the procurement Advertisement and wide dissemination of pend- plan vary significantly (Figure 3.1). ing procurement tenders are crucial for suppli- ers. Publication lowers the chances of suppliers Figure 3.1: Regulatory requirement to publish a procurement plan Access to the Publication of the public Publication of the procurement plan is procurement plan is procurement plan is not possible but under required by law required by law limited circumstances • Afghanistan • Jordan • Sweden • Chile • Uganda • Thailand • Ghana • Turkey • Mexico • United States Source: Benchmarking Public Procurement 2015 12 Benchmarking Public Procurement 2015 missing such tenders and therefore promotes an procurement contract often has bearing on the even playing field. Advertisement and dissemina- rules for publication. This is the case in the Unites tion are essential for the government because it States (at least, in the city of New York) where attracts bids and stimulates competition. publication of procurement notices under the Small Purchase Limit (less than US$100,000) is In every economy covered by the pilot, advertise- not legally required.6 ment of the tender notice in the context of com- petitive bidding is legally required. However, the The margin of discretion as to the media of ad- modalities of advertisement vary significantly vertisement also varies across countries. In Chile, across countries (Figure 3.2). for instance, publication of the notice on the platform ChileCompra is the only requirement, Rules regarding the type of media used to circu- but procuring entities have the option to “further late tender notices vary significantly. Although promote their calls for tenders,” by announcing a few countries require publication through only their calls for tender in “international, national, one type of medium, others require publication or regional newspapers”.7 In Afghanistan, where through up to five types of media. In Chile, ad- procuring agents believe that it is necessary to vertisement online is the only requirement. By “ensure wide competition,” the agents have the contrast, in Afghanistan, the tender notice must option to send the notice directly to potential be published in print media, broadcast over radio bidders. In this case, the regulatory framework and television, and published on the Internet, to leaves discretion to the procuring agent. the extent feasible. Although broadcasting the tender is always Accessing Tender Information required in the context of an open tender, in The information provided in a tender notice is some countries, like Thailand, procuring agents critical, as it constitutes the basis for suppliers’ also have the option to send the tender directly decisions as to whether to participate in the ten- to potential bidders. In most countries, specific der. Insufficient information creates opportuni- circumstances impel the use of a certain type ties for of media or mode of circulation. The value of the Figure 3.2: Variables determining the rules for advertisement of a tender notice • Paper-based T p of m di • Electronic-based • Internet-based • Broadcast V ri bl s Mod of circul tion • Distribution to d t rminin potential bidders rul s for dv rtis m nt of th • Threshold value t nd r notic Circumst nc s d t rminin • Need to ensure th choic of m di competition • Size of market • No discretion L v l of discr tion of th procurin nt • Wide discretion • Moderate discretion Source: Benchmarking Public Procurement 2015 13 3 Accessibility of Public Procurement Information fraud and corruption. The regulatory framework not so high as to discourage participation in the must therefore ensure that the tender notice in- tendering process.” cludes sufficient information to enable potential bidders to determine their ability and interest in Understanding the Object of a Tender bidding, and restrict the margin of discretion of The use of standardized commercial terms and procuring agents. model documents help bidders understand what is required of them. Standardization prevents The information that the procuring entity must confusion and ensures that bidders all have the include in a tender notice varies significantly. same understanding of the terms of the tender. Although all countries require that basic informa- The possibility for bidders to refer to internation- tion (e.g., the object of the procurement contract) ally or nationally standardized terms reduces the be published, there is a striking difference as to margin of error in the formulation of their bids, the quantity and quality of complementary infor- which gives bidders more confidence regarding mation that the procuring entities are required to the adequacy of their bid vis-à-vis the tender re- include. In Jordan, the procuring entity is required quirements. Therefore, standardized commercial to contain the reference of the tender, type of terms and model documents are an incentive tender, deadline to buy bid documents, deadline for potential suppliers to bid for procurement to submit a bid, price of bidding documents, and tenders. all other information that the procuring entity deems appropriate. By contrast, in Mexico, the In Uganda and Mexico, national standards must regulatory framework provides a detailed list of be used before international standards. By information that must be provided, divided into contrast, in Sweden, national standards have eight sections and organized by the nature of the priority if they correspond to a European stan- information. It is therefore easier for bidders in dard (Figure 3.3). In Afghanistan, the regulatory Mexico to determine their interest in the tender, framework does not provide a specific order for as they have first-hand access to a large volume the use of commercial standards. In the United of information concerning the tender. States, in the city of New York, the use of stan- dards is required only when practicable. In Jordan, In Chile, the regulatory framework requires that the procuring entity “may procure in accordance bidding specifications for each procurement with international commercial protocols and con- contract be accessible for free on ChileCompra, ventions that Jordan is a signatory to” (emphasis and provides a list of the elements that must be added). In Chile and Ghana, the use of interna- included in bidding specifications. Therefore, as tionally or nationally accepted standards is not there is no additional cost for bidders to access required. bidding specifications, the fact that relevant pieces of information are included in the tender Understanding How Bids Are Assessed notice itself or the bidding specifications has no Easy access to the evaluation criteria and meth- significant impact. (Box 3.1) od of assessment is critical for bidders to formu- late the best bid possible. Access also reinforces Research has shown that information on the bid trust that bids will be evaluated on their merits security bond is essential for prospective suppli- and therefore encourages bidder participation. ers to make an informed decision. In Afghanistan, The evaluation criteria and the method used to Mexico, Turkey, Uganda, and the United States assess tenders should be communicated either in (in the city of New York), information about bid the notice advertising the call for tender (tender security must be included in the tender notice. In notice) or the bidding documents. As obtaining Chile, bidding specifications, which are accessible bidding documents often requires that bidders for free on ChileCompra, must provide an expla- perform additional procedures, it is preferable nation of the rules applicable to the security de- that the information be communicated in the posit. Chile’s regulatory framework also provides tender notice. that “procuring agencies must require guarantees for an amount high enough to ensure the serious- Rules regarding communication of the criteria to ness of bids and fulfillment of the final contract evaluate tenders and the method of assessment (including any possible fines and sanctions), but vary significantly across the countries (Figure 3.4). For example, Mexico is the only country 14 Benchmarking Public Procurement 2015 Box 3.1: Integrated information systems The use of an integrated information system to centralize public procurement information is widely considered a good practice to facilitate access and enhance the clarity of information. According to the Organisation for Economic Co-operation and Development’s Methodology for Assessing Procurement Systems (OECD MAPS), the information system should be easily accessible, “provide one-stop service where those interested can find information on procurement opportunities and outcomes” (OECD, 2010), and clearly define the responsibility for the management and operation of the information system. In Chile, the entire procurement process is implemented through the online platform ChileCompra, where primary and secondary regulations are available and visitors can listen to an audio recording of the main statute and regulations. In each procuring agency, a representative is in charge of operating the information system and each agency must create a procurement procedure manual. The manual, which must be published through the information system, becomes part of the background information used to regulate the procurement processes of the agency that creates it. The introduction of an intuitive and efficient information system has dramatically enhanced the efficiency of the procurement system in Chile. In addition to reaping financial savings of around 3.5% (US$230 million), the introduction of an integrated information system doubled the participation of small and medium enterprises in public procurement activities (World Bank, 2012). The data collected corroborate the finding that an integrated information system in fact facilitates accessibility more efficiently than mere availability online. In New York City, public procurement information is accessible online but on several websites. Procurement plans must be published on the website of the Mayor’s Office of Contract Services, the notice of solicitation must be published in the City Record and on the city’s website, and the outcome of the tendering must only be published in the City Record. Respondents in the United States pointed out that the process would be easier for bidders if all public procurement information, including procurement laws, guidelines, explanatory materials, registration information, bidding information, and so forth, were available in one central location , organized in a comprehensible, intuitive manner. By contrast, in Chile, where the integrated information system has been in place for more than 10 years, access to public procurement information has greatly improved.  egal requirements with regard to the use of international and national industrial Figure 3.3: L standards in technical specifications Use of Use of national Use of Use of international standards standards standards and national required required not required standards in certain required conditions Afghanistan oo Thailand oo United States oo Chile oo Mexico oo Ghana oo Jordan oo Sweden oo Uganda oo Turkey oo Source: Benchmarking Public Procurement 2015 15 3 Accessibility of Public Procurement Information where both the criteria and method of assess- Accessing Information on the Outcome of a ment must be included in the tender notice. In Tender Chile, the information must be provided in the Publication of contract awards is widely consid- bidding documents. However, as the regulatory ered the foundation of transparent procurement framework requires that bidding documents be systems. It is crucial not only for bidders, but for accessible for free on the information system, the the public as well. When the government has no ease of access to the information is the same. In obligation to publish the name of the contract the United States, in New York City, procurement winner, it cannot be held accountable for its deci- tenders are advertised with a notice of solicita- sion and there is a greater risk of tendering rules tion. The notice of solicitation provides basic in- being broken. In addition, the information is indis- formation on the tender, including the means to pensable for those bidders who lost the tender to obtain “specification documents” in which infor- file a complaint, if they wish to do so. mation is provided on the criteria and method of Requirements for publication of the contract assessment.8 Sweden’s regulatory framework is award vary significantly across countries (Figure unique in requiring that the criteria and method 3.5). Similar to the advertisement of procurement of assessment be provided either in the tender opportunities, rules regarding publication of the notice (“contract notice”) or in the bidding docu- contract award call for online publication. In most ments (“contract documents”).9 countries, such as Afghanistan and Sweden, the Internet is the only legally required media for publication. The regulatory framework of Uganda  egal requirements with regard to communicating evaluation criteria and method Figure 3.4: L of bid assessment In the tender notice In the tender notice Afghanistan Mexico Mexico Turkey Legally Legally required required communication of communication evaluation criteria of method of assessment In bidding documents In bidding documents or specifications or specifications Afghanistan Chile Chile Ghana Ghana Uganda Turkey United States Uganda Turkey United States 16 Source: Benchmarking Public Procurement 2015 Benchmarking Public Procurement 2015 Figure 3.5: Legal requirements for communicating contract awards Official publication Online publication (gazette or bulletin) • Afghanistan • United States • Mexico • Chile • Sweden • Turkey • Ghana • Turkey • Mexico • Uganda Billboard Mass media • Jordan • Afghanistan • Uganda Source: Benchmarking Public Procurement 2015 calls for advertisement online and on the during the pre-tendering and tendering phases billboard of the procuring entity.10 By contrast, is crucial for prospective suppliers, research Thailand is the only country where publication of reveals that predictability during the contract the contract award is not required. implementation phase is also an important factor in a supplier’s decision-making process. Lessons Learned and Next Steps Additional areas for exploration include how Analysis of the data on accessibility of public e-procurement can further enhance efficiency procurement information suggests there is room and accessibility. The use of information systems, for reform in support of greater transparency their quality and capacity to be both centralized and accessibility in a majority of countries. information platforms and interactive tools However, given the pilot nature of the project, the to support communication between potential coverage of the topic is currently limited. Pilot suppliers and procuring agents, will be an results shed light on areas for further exploration important instrument for a thorough analysis of as both the project and topic evolve. For instance, accessibility. while results confirm that accessing information 17 3 Accessibility of Public Procurement Information Legal requirements to publish procurement plans and advertise pending Table 3.2:  procurement tenders Legal requirements Legal requirements to advertise tender notices for Country to publish public pending opportunities procurement plans Afghanistan The regulatory Publication of procurement tender notices is generally framework requires that mandatory, with some exceptions. Article 27 of the a procurement plan be Procurement Law 2008 provides the rules for publication, published. The Ministry and the Rules of Procedures of 2009 provide more details. of Finance Circular 39 According to Rule 50 of Rules of Procedure 2009, the invitation of June, 2011, entitled to tender notice shall be: “(a) published in the printed media, “Final Implementation in at least one publication, which must be of wide enough of Procurement circulation to reach sufficient bidders to ensure effective Management competition; (b) broadcast over the radio or television, on the Information System,” stations and programmes and at a time most likely to target provides that potential bidders; and (c) to the extent feasible, published “Procurement plans on the internet, including any website established by the […] are to be uploaded Procurement Policy Unit.” The rules further stipulate that on the system by lines “[…] (2) Where tendering is international, the notice shall also ministries and procuring be published in media of wide international circulation or on entities.” widely read internet sites, in the English language…. Where the Procurement Office believes it is necessary to ensure wide competition, it may send the notice directly to identified potential bidders after the date of publication of the notice. […]”. According to Art. 27 (2) of the Procurement Law 2008, no publication of announcement is required for single source procurement, and according to Rule 108(2) of the Rules of Procedure 2009, no publication is required for “low value” and “small duration contracts.” Chile The regulatory Publication of tender notices is mandatory. Article 20 of framework requires that Law No. 19, 886, provides that public agencies must use the a procurement plan be information systems established by the Public Procurement published. Pursuant and Contracting Bureau to publish the basic information to Law No. 19, 886, regarding their procurement processes […] including the Article 20 and Decree calls for tenders […]. In addition to the information system, 250, 2004, Article Article 26 of Decree 250, 2004, provides that “in order to 57(e), each entity must further promote their calls for tenders, procuring agencies publish the annual plan may announce them using one or more advertisements in of expenditures and any international, national or regional newspapers or publications, further modification according to the case.” to the plan on the information system.a 18 Benchmarking Public Procurement 2015 Legal requirements Legal requirements to advertise tender notices for Country to publish public pending opportunities procurement plans Ghana The regulatory Publication of tender notices is mandatory when the contract framework does not value is between GHS 200 million (~US$62,695,924.76) and specifically require GHS 2.0 billion (~US$626,959,247) in the case of a national that a procurement competitive tender and above GHS 15.0 billion (~US$4.56 plan be published, billion) in the case of an international competitive tender even though Article 3.1 (Articles 44, 45, and 47 of the Public Procurement Act, of the Manual of the 2003). The invitation must be published in the Procurement Public Procurement Bulletin and at least two newspapers of wide national Act, 2003 states: circulation. Procuring entities may also publish the invitation “Publication of realistic in a newspaper of wide international circulation, a relevant annual procurement trade publication, or a technical or professional journal of plans allows the private wide international circulation. International competitive sector to respond tenders may also be advertised in foreign embassies and High more effectively to Commissions in Ghana (Articles 44, 45, and 47 of the Public the requirements Procurement Act, 2003). Article 4.5.4 of the Manual 2003 and specifications of adds that the invitation must be published on the website of Government, through the Public Procurement Board. Publication of the invitation investment in staff and is not mandatory for tenders below the above-mentioned equipment, manufacture thresholds. and importing of goods, and financial planning.” Jordan The regulatory Publication of public tender notices is mandatory. Article 7 of framework does Instructions No. (1), 2008, provides that the tender notice must not require that a be “publicly accessible and published through any other method procurement plan be of advertisement that the Director General of the Public published. Procurement Department or the Secretary General of any public or governmental department deems fit, including but not limited to electronic means.” Mexico The regulatory Publication of procurement opportunities is mandatory. framework requires that Article 30 of the Federal Law on Acquisitions, as amended a procurement plan be in 2012, provides that the call for tenders must be published published. The Federal on CompraNet (e-procurement portal) and a summary of Law on Acquisitions, the publication must be sent to the Official Journal of the as amended in 2012, Federation, which must provide, among other things, the object provides that procuring of the tender, the quantity to be purchased, the reference entities must publish of the tender, the dates to open the tender and carry out their annual procurement the contracting process, and the date it was published in plan on CompraNet CompraNet. (e-procurement portal). (continued) 19 3 Accessibility of Public Procurement Information Legal requirements to publish procurement plans and advertise pending Table 3.2:  procurement tenders (continued) Legal requirements Legal requirements to advertise tender notices for Country to publish public pending opportunities procurement plans Sweden The regulatory Publication of tender notices is mandatory, but the framework does requirements vary according to set thresholds.b Above the not require that a thresholds, “a contracting authority that intends to award a procurement plan be contract or enter into a framework agreement shall publish published. However, a contract notice, unless otherwise provided by Chapter 4, according to Chapter 7, Articles 5 to 8” (Chapter 7, Article 1 of the LOU, 2007). The Article 2 of the LOU, 2007, does not provide where the contract notice should LOU, 2007, prior be published, but Procurement Ordinance, 2011, paragraph information notices 5, provides that the notice must be sent to the European must be published for Commission for publication and the procuring authority can procurement planned in also publish the tender in any other way. Below the thresholds, the following 12 months requirements for publication of the contract notice vary and for which the entity according to the procuring method used. The authority can wishes to shorten the choose between a simplified procedure (whereby all interested legally required time bidders are invited to submit a bid) and a selective procedure. limits. For contracts representing small amounts, the authority can also award contacts directly, in which case publication of a notice is not mandatory. Chapter 15, Article 4, provides that “in the case of simplified procedures, the contracting authority shall request tenders through a notice in an electronic database, which is generally available, or through another form of notice that facilitates effective competition. In the case of a selective procedure, the contracting authority shall publish an invitation to apply through a notice in an electronic database that is generally available.” LUF, 2007, award of contracts shall be preceded by advertising (Chapter 4, Article 1). Thailand The regulatory Publication of procurement opportunities is mandatory. framework does Pursuant to Clause 45 Regulations B.E. 2535, 1992, not require that a “Purchasing or contracting for works by competitive procurement plan bidding method [applicable in the case of a single contract be published. Under of more than Baht 2,000,000 (~US$60,848.59 )] the Section 9 (3) of the procurement officer shall manage and prepare document for Official Information publishing and put up a bid notice within the specific time. Act B.E. 2540, 1997, Procurement officer shall act as follows: (1) put up a notice a state agency must to invite for bidding at a conspicuous place in the office of make available for such government agency. […] (2) give announce thereof on public inspection “a radio or in newspaper, (3) send a notice to Department of work-plan, project and Public Relations and Mass Communication Organization of annual expenditure Thailand, (4) send a notice together with bid document to estimate of the year of Bidding Information Center, (5) send a notice together with its preparation.” However, bid document to Office of the Auditor General or Regional this information is Audit Office, depending on the case. After procedures as in available only on the first paragraph have been proceeded, if considered proper, demand. the notice may be sent directly to professional sellers or contractors, or may also be advertised by other mean[s].” 20 Benchmarking Public Procurement 2015 Legal requirements Legal requirements to advertise tender notices for Country to publish public pending opportunities procurement plans Turkey The regulatory Publication of procurement opportunities is mandatory. framework does not Pursuant to Articles 8 and 13 of the Public Procurement require publication of a Law, 2002, different advertisement requirements apply for procurement plan. tenders of different scales. Notice for larger tendersc must be published in the Public Tender Bulletin, a specialized daily circular published by the Public Procurement Authority. Smaller tenders fall below these threshold amounts. According to the Public Procurement Law: (a) Tenders for the procurement of goods and services that are worth less than TRY 94,751 (~US$38,900) may be held no earlier than seven days after the publication of the tender notice in at least two local newspapers and electronically published in the Public Procurement Bulletin; (b) tenders for the procurement of goods and services that are worth between TRY 94,751 (~US$38,900) and TRY 189,511 (~US$77,800) may be held no earlier than 14 days after the publication of the tender notice in at least one local newspaper and the Public Procurement Bulletin; (c) tenders for the procurement of goods and services that are worth more than TRY 189,511 (~US$77,800) but less than the higher tender threshold may be held no earlier than 21 days after the publication of the tender notice in at least one local newspaper and the Public Procurement Bulletin. If no local papers are published in the location where the tender is to be awarded, announcement of the tender must be posted at government and municipal buildings. Uganda The regulatory Publication of procurement opportunities is mandatory. Article framework does 140 of the PPDA Regulations, 2003, provides that: “[…] (2) A not require that a bid notice shall be published in at least one newspaper which procurement plan be must be of wide circulation to reach sufficient prospective publicly accessible. bidders to ensure effective competition. (3) A bid notice shall be displayed on the Authority’s website and the procuring and disposing entity’s notice board not later than the date of publication of the bid notice and shall remain on display until after the closing date for submission of bids.” In addition, open international bidding may be used instead of open domestic bidding where competition will not be effective without foreign bidders or where foreign bidders will increase value for money (Fourth Schedule of the Public Procurement and Disposal of Public Assets Act, 2003). In that case, the bid notice must also be published in at least one publication of wide international circulation,” (Article 114 (2) of the Disposal of Public Assets Regulations, 2003; Fourth Schedule of the Public Procurement and Disposal of Public Assets Act, 2003; Article 114 (2) of Disposal of Public Assets Regulations, 2003). (continued) 21 3 Accessibility of Public Procurement Information Legal requirements to publish procurement plans and advertise pending Table 3.2:  procurement tenders (continued) Legal requirements Legal requirements to advertise tender notices for Country to publish public pending opportunities procurement plans United In New York City, the In New York City, publication of the tender notice (notice States regulatory framework of solicitation) is mandatory in the City Record and on the requires that a city’s website when the procurement is above the small procurement plan be purchase limit of US$100,000.d (Section 3-02 of PPB Rules, published on the website regarding Competitive Sealed Bidding, (e) (1) (ii) (A)) Paragraph of the Mayor’s Office 325 b. 3 (a) of Chapter 13 adds that pursuant to the PPB of Contract Services Rules, each agency shall “publish in the City Record and, (Chapter 13 of the New where appropriate, in newspapers of city, state, or national York City Charter, distribution and trade publications, notice of the solicitation of Section 312.8 (b)). bids or proposals pursuant to section three hundred thirteen and three hundred seventeen through three hundred twenty- two, where the value of a contract is estimated to be above the small purchase limits, except where the agency has determined pursuant to section three hundred eighteen or three hundred twenty that solicitation should be limited to prequalified vendors […].” Source: Benchmarking Public Procurement 2015 a. The information system is defined by Decree 250, 2004, as “the regulatory framework defined Public Procurement and Contracting Information System and other means of online procurement and electronic contracting for procuring agencies, managed and tendered by the Public Procurement Bureau and consisting of the software, hardware and electronic infrastructure, communications and support network that make online procurement possible.” b. According to the announcement by the Swedish government in 2012 (2011: 1575), the thresholds for products are as follows: €130,000 (~US$153,222) for procurement by central government authorities and €200,000 (~US$235,723) for procurement by other contracting authorities (e.g., municipalities, country councils, the public utilities sector, or association foundations). c. Larger tenders are (a) tenders for procurement of goods and services worth more than TRY 811,897 (~US$391,225) that are launched by procuring authorities within the central budget, or procuring authorities with additional budgets; (b) tenders for the procurement of goods and services that are worth more than TRY 1,353,164 (~US$652,042) that are launched by other procuring authorities within the ambit of the Public Procurement Law, 2002; and (c) construction tenders worth more than TRY 29,769,751 (~US$14,345,000) that are launched by procuring authorities covered by the Public Procurement Law, 2002. d. Section 3-08 (a) of the PPB Rules. 22 Benchmarking Public Procurement 2015 Table 3.3: Legal requirements for minimum contents of tender notices Country Legal requirements Afghanistan The regulatory framework establishes the minimum content of the tender notice. Article 26 of the Procurement Law 2008 provides that the announcement of procurement must include the following information: “(i) procurement description, (ii) the means for obtaining the bidding documents, (iii) the deadline for the submission of bids and the time and venue for holding tendering sessions, (iv) the procuring entity address, (v) requirement for provision [or otherwise] of security, and (vi) any other information in accordance with the provisions of this law.” Additionally, Rule 49 (2) of the of Rules of Procedure 2009 provides that “invitation to tender notices shall contain at least: (a) the name, address and contact details of the Entity; (b) the nature of the procurement requirement, including the quantity of goods, works or services and the location and timetable for delivery or performance of the contract; (c) an indication of the procurement method being used; (d) a statement of any key technical requirements, qualification requirements and evaluation criteria, such as a requirement for the provision of local after-sales services or the application of a margin of preference; (e) instructions on obtaining the bidding documents, including any price payable and the language of the documents; (f) information as to any applicable bid-security requirement; and (g) instructions on the location and deadline for submission of bids.” Chile The regulatory framework establishes the minimum content of the tender notice. Article 24 of Decree 250, 2004, provides that the call for tenders must contain at least the following information: “1. Description of the product and/or service required. 2. Name of the procuring agency. 3. Modes and deadlines for clarifications to the bidding specifications. 4. Deadline (date and hour) for reception and opening of bids. In well-founded cases in which the opening requires envelopes containing physical documents and allows for the presence of the bidding suppliers, the procuring agency must publicly announce the location of the opening act. 5. Amount and mode of the guarantees required, whenever appropriate. 6. The complete name and email of the procuring agency employee in charge of the procurement process.” The regulatory framework requires that bidding specifications for each procurement contract be accessible for free on the information system (Article 21 of Decree 250, 2004). Therefore, as there is no additional cost or procedure for bidders to access information in the bidding specifications, the fact that certain information is not included in the tender notice is irrelevant. Pursuant to Articles 21 and 22 of Decree 250, 2004, the bidding specifications are drafted on the basis of standardized Bidding Specification Forms and must contain, at a minimum: “1. The requisites and conditions that bidding suppliers must fulfill in order for their bids to be accepted. 2. The specifications of the goods and/or services that are to be purchased […] 3. The stages and deadlines for the tendering process, clarifications to the bidding specifications, delivery and the opening of bids, evaluation of bids, award and signing of the corresponding supply and service contract, and duration of the contract. 4. The conditions, deadlines, and payment modes for the supply and service contract once the goods or services are satisfactorily received. 5. The deadline for the delivery of the tendered products and/or services. 6. The characteristics and amount of the guarantees that the procuring agency deems necessary to ensure the seriousness of the bids presented and the faithful and opportune fulfillment of the final contract, as well as the means and deadlines for refund of guarantees to the bidding suppliers. Procuring agencies must require guarantees for an amount high enough to ensure the seriousness of bids and fulfillment of the final contract (including any possible fines and sanctions), but not so high as to discourage participation in the tendering process. This requirement shall be mandatory for contracts over 1,000 UTM. (UTM is a unit determined by law and updated monthly. In Janary 2015, UTM 1~USD 43.198). 7. The objective criteria that shall be considered in the decision to award a bid, according to the characteristics of the goods and services being tendered, suitability and qualifications of the bidding suppliers, along with any other information that is relevant to awarding the contract. 8. The complete name of the procuring agency employee that is in charge of the procurement process and his/her contact information, whenever appropriate. 9. Means to establish that the supplier has unpaid salaries or unpaid workers compensation for their current workers or contract workers in the last two years and how this will be verified.” 10. The mode of appointment of members of the evaluation committees, to be established in accordance with Article 37 of this regulation. (Unofficial translation) (continued) 23 3 Accessibility of Public Procurement Information Table 3.3: Legal requirements for minimum contents of tender notices (continued) Country Legal requirements Ghana The regulatory framework establishes the minimum content of the tender notice. Article 48 of the Public Procurement Act, 2003, provides: “(1) The invitation to tender shall contain the following information: (a) the name and address of the procurement entity; (b) the nature, quantity and place of delivery of the goods to be supplied, the country of origin, 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 23; (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 25; (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 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.” Article 4.5.5 of the Manual, 2003, requires that information be provided on bid security requirements. Jordan The regulatory framework establishes the minimum content of the tender notice. Instructions No. (1), 2008, Article 7b, mandates that the invitation shall provide the reference of the procurement, the type of procurement, the last day to buy bidding documents, the last day to submit a bid, the value of the procurement contract and all details that seem appropriate. Mexico The regulatory framework establishes the minimum content of the tender notice. Article 29 of the Federal Law on Acquisitions, as amended in 2012, provides the elements that must appear in the call for tender. In addition, the Regulations of the Federal Law on Acquisitions, as amended in 2010, provide a detailed list of additional elements under Article 39. The list is divided into eight parts, categorizing the types of information that must be provided in the tender notice. The elements provided in Article 29 of the Federal Law on Acquisitions, as amended in 2012, and Article 39 of the Regulations of the Federal Law on Acquisitions, as amended in 2010, include, among others, a description of goods or services to be procured; information on the quantity of goods or services to be procured; a list of required documents and certifications attesting the professional, technical, and financial capacities and experience of the candidates; evaluation criteria for bidders’ proposals; the time frame to submit a bid, the time frame for delivery; contact information; where to obtain bidding documents; and information on bid security requirements. Sweden The regulatory framework imposes a minimum content for the “contract notice” under set thresholds. Above the thresholds, the regulatory framework provides some elements that must be included in the tender notice (contract notice), but does not provide a list with the minimum content. For tenders under the thresholds, Chapter 15, Article 5 of the LOU provides that “a contract notice under Article 4 shall contain details about the object of the procurement and contact details of the contracting authority. The following shall also be stated for a simplified procedure: 1. how a tender may be submitted; 2. the deadline for the receipt of the tender; 3. the date up to and including which the tender is to be binding.” Above the thresholds, the tender notice must include the documents and information that must be produced by bidders to prove economic standing and technical viability (Chapter 11, Articles 8 and 11). The criteria that will be applied for the award (lowest price or economically most viable offer), the weighting of the criteria, or the order of priority of the criteria must be included either in the tender notice or the bidding documents (Chapter 12, Articles 1 and 2). The procuring authority has the option to “offer, by electronic means, unrestricted, direct and full access to the contract documents in their entirety from the day when the contract notice was sent to the European Commission for publication” (Chapter 8, Article 6), but this is not mandatory. 24 Benchmarking Public Procurement 2015 Country Legal requirements Thailand The regulatory framework establishes the minimum content of the tender notice. Clause 44 of Regulations B.E. 2535, 1992, provides that the “bid document” has to be “notified”, in addition to providing the following information: “(1) materials to be purchased or works to be contracted; (2) qualification of the bidders; (3) date and time for the acceptance of bids and the closing date thereof, and for the opening of the bids; (4) place and the period at which bid documents will be given out or sold; (5) source of funds and eligible source countries in case of international competitive bidding.” Turkey The regulatory framework provides the minimum content of the tender notice. Article 24 of the Public Procurement Law, 2002, provides that the tender notice must contain the following elements: “a) the name, address, telephone and fax number of the contracting authority; b) the name, characteristics, type and quantity of the procurement; c) the place of delivery in procurements of goods and the place where the task is to be performed in procurements of services and works; d) the commencement and completion dates for the subject matter of the procurement; e) the procurement procedure to be applied, rules of participation and the required documents and certificates; f) the criteria to be used in the qualification evaluation; g) indication of whether the tender is limited only to domestic tenderers, and whether there is a price advantage for domestic tenderers; h) the place where the bidding documents can be seen, and the price to obtain bidding documents; i) the place, date and hour of opening of the tenders; j) the address where the tenders are to be submitted until the hour specified for opening the tenders; k) the type of tender and contract; l) the statement specifying that a tender security should be given in an amount determined by the tenderer, not being less than 3% of the tender price; m) the validity period of the tenders; n) statement on whether the consortium are allowed to submit tender or not.” Uganda Article 140 of the PPDA Regulations, 2003 on Bid notices, provides that: “(1) a bid notice shall be based on the standard format provided in the Seventh Schedule.” Contributors have indicated that the bid notice must include a description of goods or services to be procured; information on the quantity of goods or services to be procured; a list of required documents and certifications attesting the professional, technical, and financial capacities and experience of the candidates; evaluation criteria for bidders’ proposals; the time frame to submit a bid; the time frame for delivery; the contact point’s details; where to obtain bidding documents; and information on bid security requirements. United In New York City, the regulatory framework establishes the minimum content of the tender States notice (notice of solicitation). The notice of solicitation is published (above the small purchase limit) and Section 3-02 (e)(1) (ii) (b) provides that the notice of solicitation must contain the following information: (a) agency name; (b) PIN (procurement identification number); (c) title and/or brief description of the goods, services, or construction to be procured; (d) estimated quantity, if any; (e) how the solicitation documents may be obtained; (f) date and time by which and the place where bids shall be submitted and publicly opened; (g) required vendor qualifications or eligibility requirements, if any; and (h) a statement, if applicable, that the solicitation is subject to Section 6-129 of the Administrative Code [MWBE (Minority and Women-owned Business Enterprise) and EBE (Emerging Business Enterprise) programs]. Source: Benchmarking Public Procurement 2015 25 3 Accessibility of Public Procurement Information Table 3.4: Legal requirements to use industrial standards and model documents Legal requirements to use nationally or Legal requirements to use Country internationally accepted industrial standards model documents Afghanistan The regulatory framework requires that technical The regulatory framework specifications follow nationally and internationally requires that tender accepted industrial standards. Article 14(2)(ii) of documents include the Procurement Law, 2008, provides that “to avoid standardized terms and forms. creating obstacles to participation by bidders in the Article 6 of the Procurement procurement proceedings, bidding and pre-qualification Law, 2008, provides that documents shall provide descriptive information that “procuring entities shall does not unnecessarily favor a [particular] bidder by: utilize the standard bidding (i) describing the goods, works and services according documents, forms of contract, to its effectiveness of usage [desired performance]; and other forms issued by the (ii) describing national and international standards.” Procurement Policy Unit.” Chile The regulatory framework does not require that technical The regulatory framework specifications follow internationally or nationally requires that bidding accepted industrial standards. documents include standardized terms and forms. Article 21 of Decree 250, 2004, provides that “[…] the Public Procurement Bureau must create one or more Bidding Specifications Forms that shall be made available through the Information System […].” Ghana The regulatory framework does not require that Article 50 of the Public technical specifications follow nationally accepted Procurement Act, 2003, industrial standards. However, Article 33 (3) of the Public regarding contents of bidding Procurement Act, 2003, provides that “standardized documents and use of features, requirements, symbols and terminology standard bidding documents relating to the technical and quality characteristics of provides that procurement the goods, works or services to be procured shall be entities must use standard used, where available, to formulate any specifications, bidding documents. In plans, drawings and designs to be included in the addition, “the invitation prequalification documents, invitation documents or documents shall include […] other documents for invitation of proposals, offers or (f) the terms and conditions of quotations.” The regulatory framework requires that the procurement contract and technical specifications follow internationally accepted the contract form to be signed industrial standards, but only in the case of international by the parties.” competitive tendering.a Article 45 (2) (d) of the Public Procurement Act, 2003, provides that, in that case, “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 33 (description of goods, works or services) and 50(3) (content of the invitation documents).” Jordan The regulatory framework does not require that technical The regulatory framework specifications follow nationally or internationally does not require that accepted industrial standards. However, Article 13 of bidding documents include the Supplies Act No. 32, 1993, provides that the relevant standardized terms and authority may procure in accordance with international forms. commercial protocols and conventions to which Jordan is a signatory. a. International competitive tendering is mandated “whenever open competitive tendering is used and effective competition cannot be obtained unless foreign firms are invited to tender.” 26 Benchmarking Public Procurement 2015 Legal requirements to use nationally or Legal requirements to use Country internationally accepted industrial standards model documents Mexico The regulatory framework requires that technical Article 29, XVI of the Federal specifications follow nationally and internationally Law on Acquisitions, as accepted industrial standards. Article 20 of the Federal amended in 2012, requires Law on Acquisitions, as amended in 2012, provides that bidding documents that the procuring entity shall request compliance with include standardized terms international standards in the case that Mexican Official and forms. Standards or Mexican Standards do not regulate the goods or services to be awarded. Sweden The regulatory framework requires that technical The regulatory framework specifications follow nationally and internationally requires that bidding accepted industrial standards. Article 2 of Chapter 6 of documents include the LOU, 2007, provides that “technical specifications standardized terms and forms. must refer, in priority, to: 1. a Swedish standard Paragraph 9 the Procurement that corresponds with a European standard; 2. a Ordinance, 2011, requires European technical approval; 3. a common technical that the advertisement shall specification; 4. an international standard; 5. another have the format imposed by technical reference system established by the European European Union Regulation standardization bodies; or 6. another Swedish standard, No. 842/2011. Swedish technical approval or Swedish technical specification relating to the design.” Thailand The regulatory framework requires that technical The regulatory framework specifications follow nationally accepted industrial requires that bidding standards. Clause 16 (2) of Regulations B.E. 2535, 1992, documents include provides that “where the national standards for materials standardized terms and forms. to be purchased or works to be contracted have been Clause 44 of Regulations B.E. already announced, all descriptions and specifications of 2535, 1992, provides that materials or list of construction items have to be fixed the “procurement officer shall according to the national standards, or for convenience, prepare bidding documents the reference numbers of license for the use of standard according to the sample given mark shall be specified.” The regulatory framework by CCP or the form reviewed does not require that technical specifications follow by the Office of the Attorney internationally accepted industrial standards. General.” Turkey The regulatory framework requires that technical The regulatory framework specifications follow nationally and internationally requires that bidding accepted industrial standards. Pursuant to Article documents include 12 of the Public Procurement Law, 2002, technical standardized terms and specifications must include provisions that enable forms. Article 53, b, 2, of the conformity with the “national and/or international Public Procurement Law, technical standards,” where possible. 2002, provides that the Public Procurement Authority has the duty to “prepare, develop and guide the implementation of all the legislation concerning this law and Public Procurement Contracts Law and the standard bidding documents and contracts.” (continued) 27 3 Accessibility of Public Procurement Information Table 3.4: Legal requirements to use industrial standards and model documents (continued) Legal requirements to use nationally or Legal requirements to use Country internationally accepted industrial standards model documents Uganda The regulatory frameworks require that technical Article 140 (1) of the PPDA specifications follow nationally and internationally Regulations, 2003, provides accepted industrial standards. “Statements of that “a bid notice shall be requirements” used by procuring and disposing entities based on the standard format must rely on “common specification standards.” Article provided in the Seventh 135 (4) of the PPDA Regulations, 2003, provides that Schedule.” “the common specification standards issued by the competent authority shall, in order of priority, use (a) national standards set by the Uganda National Bureau of Standards or other competent authority; (b) international standards set by the International Standards Organisation, where appropriate standards exist; (c) standards set by specialized agencies or bodies such as WHO (the World Health Organization), UN (the United Nations), or IATA (the International Air Transport Association); (d) internationally recognized standards set by the competent authority of another country, that are used extensively and are appropriate for use in Uganda, such as BS (British Standards) (UK), (AS) American Standards […]; or (e) standards or particular specifications used by a trade or profession and obtained from their associations.” United In New York City, the regulatory framework does not In New York City, the States require that technical specifications follow nationally or regulatory framework requires internationally accepted industrial standards. However, that bidding documents Section 2-05 (a) (4) of the PPB Rules requires that include standardized terms specifications “to the extent practicable, utilize accepted and forms. Section 3-02 (d) commercial standards.” (1) of the PPB Rules provides that: “the IFB (Invitation for Bids) shall provide a form on which the bidder shall insert the bid price, or other information requested […].” Source: Benchmarking Public Procurement 2015 28 Benchmarking Public Procurement 2015  egal requirements to communicate the criteria and method of assessment of bids Table 3.5: L to bidders Country Legal requirements Afghanistan In Afghanistan, the evaluation criteria are communicated to bidders through invitation to tender notices and tender documents. Article 62(1) of the Procurement Law 2008 (principles of transparency) provides: “The following actions shall be taken to provide essential information concerning the procurement system in Afghanistan, as well as essential information concerning individual procurement proceedings to all interested parties: […] (iii) the bidding documents, invitations, requests and required instructions for preparing bids in procurement proceedings, such as the qualifications, technical requirements, evaluation criteria, and contractual terms, shall be made promptly and easily available to bidders and to the public by the entity in accordance with the provisions of Article 66 of this Law.” Additionally, under Rule 49(d) of the Rules of Procedure 2009, invitation to tender notices shall contain at least a statement of any key technical requirements, qualification requirements, and evaluation criteria. Under Article 30(2) of the Procurement Law 2008, the bid evaluation criteria must be provided in the bidding documents. The method of assessment of bids is communicated in neither the tender notice nor the bidding documents. However, the regulatory framework indicates the method of assessment that the procuring entity must use when assessing bidders’ proposals (Rule 66 of Rules of Procedure 2009: Evaluation Methodology and Criteria). Chile In Chile, the evaluation criteria and method of assessment are communicated to bidders through bidding specifications (Article 38 of Decree 250, 2004). Because the regulatory framework in Chile requires that bidding specifications for each tender be accessible for free through the information system, there is no additional cost or procedure for bidders to access information on the bidding specifications. Evaluation criteria and method of assessment are provided by the regulatory framework (Article 38 of Decree 250, 2004). Ghana In Ghana, the Advertisement for Competitive Tender (tender notice) must only provide the criteria and procedures to be used to evaluate the qualifications of suppliers or contractors. The evaluation criteria and method of assessment that the procuring entity must use are communicated to bidders through bidding documents (Article 50, Public Procurement Act, 2003; Manual, 2003, 4.5.1). Bidding documents are available at a fee but “prospective tenderers should be allowed to briefly inspect the Tender Document, if requested, before committing to purchase of the document” (Manual, 2003, 4.5.5). Under Public Procurement Act, 2003, Section 59 (2), a criterion shall not be used if it has not been set out in the invitation documents. Section 59 on Evaluation of Tenders provides the evaluation criteria and method of assessment. Jordan The regulatory framework does not require the criteria or the method of assessment to be communicated to bidders through either a tender notice or bidding documents. However, the regulatory framework provides the evaluation criteria and method of assessment that the procuring entity must use when assessing bidders’ proposals (Article 44 of Instructions No. (1), 2008). Mexico The evaluation criteria and method of assessment are communicated to bidders through a tender notice (Article 29 XIII of the Federal Law on Acquisitions, as amended in 2012 and Article 39 V of the Regulations of the Law of Acquisitions, as amended in 2010). The evaluation criteria and method of assessment are provided by the regulatory framework (Article 36 and 36-BIS of the Federal Law on Acquisitions, as amended in 2012). (continued) 29 3 Accessibility of Public Procurement Information Legal requirements to communicate the criteria and method of assessment of bids Table 3.5:  to bidders (continued) Country Legal requirements Sweden The procuring entity is legally required to communicate, either in the tender notice (contract notice) or in the bidding documents (“contract documents”), the criteria and method of assessment (weighing of criteria) used for evaluation of bids (Article 1 of Chapter 12 of LOU, 2007, for procurement above the thresholds and Article 16 for procurement under the thresholds). The ease of access to tender documents can vary from one tender to another. The procuring entity can give full, direct, unrestricted access to the documents online, but is not required to do so. The procuring authority can choose whether it will select the most economically advantageous offer or the offer with the lowest price. When the authority decides to choose the most economically advantageous offer, it must take into account “the various criteria linked to the subject matter of the contract, such as price, delivery period or period of completion, environmental characteristics, running costs, cost-effectiveness, quality, aesthetic, function and technical characteristics, service and technical support.” Thailand The regulatory framework does not require the criteria or the method of assessment to be communicated to bidders through either tender notice or bidding documents. However, the regulatory framework provides the evaluation criteria and method of assessment that the procuring entity must use when assessing bidders’ proposals under Regulations B.E. 2535, 1992, Clause 50. Turkey Under Article 24(f) and 27(e) of the Public Procurement Law, 2002, the procurement notice and bidding documents must include the criteria to be used in the qualification evaluation. The method of assessment of bids is communicated in the bidding document (Article 27(j) of the Public Procurement Law, 2002). Additionally, the assessment method is displayed on the e-procurement platform. Finally, the regulatory framework also provides the evaluation criteria and method of assessment that the procuring entity must use when assessing bidders’ proposals (Article 37 of Public Procurement Law, 2002). Uganda The evaluation criteria and method of assessment must be provided in bidding documents. Under the PPDA Act, 2003, Article 71 “(2) all solicitation documents (bidding documents) shall fully and comprehensively detail the evaluation methodology and criteria which shall apply; (3) No evaluation criteria other than that stated in the bidding documents shall be taken into account.” The regulatory framework provides the evaluation criteria and method of assessment that the procuring entity must use when assessing bidders’ proposals. Article 197 provides the evaluation methodologies that a procuring entity can use to evaluate bids (namely, quality and cost selection, quality based selection, fixed budget selection, least cost selection, and technical compliance selection). United In the United States, in New York City, the regulatory framework does not provide that the States criteria and method of assessment be provided in the tender notice (notice of solicitation), but they must be included in the Invitation for Bids. In addition, the regulatory framework provides the evaluation criteria and method of assessment that the procuring entity must use when assessing bidders’ proposals (PPB Rules, Section 3-02 Competitive Sealed Bidding (o) (1) (ii) Bid Evaluation and Vendor Selection).The regulatory framework requires that the Invitation for Bids for purchase of goods and standard services include “a statement that the award shall be made to the lowest responsive and responsible bidder whose bid represents the best value to the City by optimizing quality, cost and efficiency. If award will be made on the basis of best value to the City, such statement shall include how best value will be determined in accordance with 3-02(o)” (PPB Rules, Section 3-02 (b) (2) (iv) (B)). Source: Benchmarking Public Procurement 2015 30 Benchmarking Public Procurement 2015 Table 3.6: Legal requirements to publish the outcome of the tendering process Country Legal requirements Afghanistan The regulatory framework requires that the outcome of the tendering process be published. The outcome must be published on the Internet and in the “mass media.” Article 63 of the Procurement Law, 2008, provides that “after the decision of the award authority, the entity shall publish the procurement proceedings, request for proposals [proceedings], the contract award with the winner, his name, address, and the contract value in the mass media and Internet for public notice.” Chile The regulatory framework requires that the outcome of the tendering process be published. Article 20 of Law No. 19, 886, provides that public agencies must use the information systems established by the Public Procurement and Contracting Bureau to publish the basic information regarding their procurement processes […] including the results of the tendering processes for the acquisition of goods and contracting of services, manufacture and works […]. Ghana The Public Procurement Board (PPB) is in charge of publishing a monthly Public Procurement Bulletin that must contain, among other information, contract award information (Article 3 of the Public Procurement Act, 2003). Article 5.18.2 of the Manual, 2003, adds: “procurement entities are required to submit notice of contract awards to the Public Procurement Board within 30 days of contract signature, for publication on the PPB website and/or in the Procurement Bulletin.” Jordan Article 49 of the Instructions No. (1), 2008, provides that the names of the successful bidders must be published on a special advertisement billboard or any other means set out by the Director General or Secretary General. Mexico The Federal Law on Acquisitions, as amended in 2012, as amended, provides that the outcome of the tendering is to be published on CompraNet and the Official Gazette. Sweden Above the set thresholds, Article 3 Chapter 7 of LOU, 2007, states that “a contracting authority which has awarded a contract or concluded a framework agreement shall send a notice of the results of the award procedure to the European Commission no later than 48 days after the award of the contract or the conclusion of the framework agreement (contract award notice).” The regulatory framework does not require that the outcome of the tendering process below the thresholds be published. According to the LUF, 2007, Chapter 7, Article 6, contracting entities that have awarded a contract or concluded a framework agreement must send the result to the European Commission. Thailand The regulatory framework does not require that the outcome of the tender be published. However, Section 9 of the Official Information Act of 1997 provides that “a State agency shall make available at least the following official information for public inspection:[…] (6) a concession contract, agreement of a monopolistic nature or joint venture agreement with a private individual for the provision of public services.” In addition, Section 11 of the same Act provides that “if any person making a request for any official information other than the official information already published in the Government Gazette or already made available for public inspection or already made available for public studies under section 26 and such request makes a reasonably apprehensible mention of the intended information, the responsible State agency shall provide it to such person within a reasonable period of time, unless the request is made for an excessive amount or frequently without reasonable cause.” Turkey The regulatory framework requires that the result of the procurement be sent to the Authority who will publish it in the Public Procurement Bulletin. The award notice is also published on the e-procurement platform. Uganda Article 224 of the PPDA Regulation, 2003, provides that: “(3) a notice of best evaluated bidder shall be displayed on a procuring and disposing entity’s notice board and on the Authority’s website.” (continued) 31 3 Accessibility of Public Procurement Information Table 3.6: Legal requirements to publish the outcome of the tendering process (continued) Country Legal requirements United In New York City, the regulatory framework requires that the outcome of the tendering States process be published, but only for procurements exceeding US$100,000 (small purchase limit). Above that limit, notice of vendor selection in the City Record is mandatory and publication in newspapers of city, state, or national distribution and trade publications should be done “where appropriate.” Under the small purchase thresholds, notice of vendor selection is not required (Section 3-02 (e) (2) (1) of the PPB Rules, Chapter 13 of the New York City Charter §325 and §314). Source: Benchmarking Public Procurement 2015 32 Benchmarking Public Procurement 2015 4 Bidding for a Public Procurement Tender Suppliers’ willingness and capacity to participate in public tenders is contingent on the ease of the bidding process. Through targeted measures, governments can work to eliminate unnecessary burdens and facilitate supplier participation. The dynamics underlying public procurement What the Bidding Topic Measures can be examined from various perspectives. For The Bidding for a Public Procurement Tender top- the procuring entity, the process is composed of ic measures a procurement system’s efficiency as well-defined stages, from needs assessment to experienced by a private company; it measures contract award. For prospective suppliers, the procedural steps, time needed for each step and bidding process consists of accessing the oppor- the cost associated with bidding for a standard tunity and preparing and submitting a bid. contract. Regardless of the size of a company, bidding for Indeed, open bidding is the most commonly used a public tender is always an investment of time, method in public procurement systems around money, and energy. Although preparing a bid is the world. Its main advantage is to maximize the most demanding stage of the bidding pro- competition: it generally attracts more bidders cess, accessing the opportunity and submitting a than restricted procedures and competitive ne- bid can also be quite burdensome. Before engag- gotiations, and avoids the related risk of distort- ing in the process, prospective bidders must ask ing competition. It is also cheaper and faster for themselves whether the possibility of winning the bidders, a one-step procedure by which they are tender outweighs the expense of bidding. granted a specific period of time to submit their bids. It is also a way for procuring entities to ob- By this measure, the expense of bidding is tain the best value for money, by assessing the generally more costly for SMEs as they have offers taking into account the price but also other to make a proportionally greater investment important criteria (ECORSYS, 2011). than larger enterprises do, while the loss of that investment of resources in the event of losing the The data points presented for this topic follow tender is harder to sustain. Reducing the burden the steps that a private firm would follow when by facilitating the process is therefore crucial to bidding for a public procurement tender (see Table establishing greater equality among prospective 4.1). suppliers and stimulating SMEs participation. Initial Pilot Results Several factors relating to a bottlenecking of The first results obtained on the basis of the regulations or practices can come into play surveys piloted in the fall of 2013 show that to skew the bidding process and discourage the bidding process differs significantly across suppliers from bidding. Red tape, excessive fees, countries. and a profusion of regulations and procedures are typical examples of these. Governments Pre-tendering Phase have an important role to play in minimizing An efficient and transparent procurement pro- these factors. For example, giving bidders the cess starts long before the actual signature of possibility to submit bids online, limiting the fee the contract, and continues long after the con- for bidding documents to the cost of printing and tract is awarded.11 The pre-tendering phase is a distribution, and ensuring that the expense of bid crucial period during which the procuring entity security is not prohibitive are a few examples of undertakes its needs assessment. Procuring en- targeted measures that can facilitate the bidding tities must seek out the best opportunities and process for prospective suppliers. These measures select the best options and in order to do so must are not only beneficial for prospective suppliers; research the potential markets. This early phase they stimulate competition and increase the is a chance for the procuring entity to identify the government’s ability to achieve better value for functions, characteristics, and technical speci- public money. fications required to obtain the best value for money. 33 4 Bidding for a Public Procurement Tender Table 4.1: Bidding for a public procurement tender—topics covered The pre-tendering phase Measures how consultation with the private sector takes place, and whether it is restricted or not. Considers particular instances of conflict of interest for companies that were previously consulted or participated in drafting the specifications of the procurement notice. The tendering phase Assesses the difficulty for potential bidders to learn about new public procurement opportunities and obtain bidding documents, as well as of possible preliminary procedures (such as mandatory registration), and the method, cost, and time required to submit a bid. It also focuses on the bid opening process and the procedure for obtaining feedback when a bidder is either disqualified or qualified but was not awarded the tender (with a focus on the grounds of the procuring entity’s decision). Possibility for procuring entities to consult with Ghana and Jordan, companies involved in the private sector companies in assessing their consultation phase are prohibited from bidding. needs In conducting a needs assessment, procuring Tendering Phase: Information on entities might decide to consult with the Public Procurement Opportunities private sector, particularly with experts in The first step of the tendering phase consists drafting tender notices as well as potential of informing potential bidders of public procure- bidders. In practice, the consultation with the ment opportunities. Potential bidders should private sector happens in person and, in most have access to tender notices and bidding docu- cases, informally. Notably, in the United States ments17 at a limited cost and in a timely manner. (in the city of New York) consultation with the Potential bidders should also be permitted to ask private sector can occur through a special questions and request changes to any outdated procedure of pre-solicitation review.12 technical specifications mentioned in the bidding documents. Restrictions on companies consulted by procuring entities in the course of assessing Cost imposed on bidders in order to obtain their needs bidding documents Only four surveyed countries regulate the involve- Bidders can either access the bidding documents ment of companies in the consultation phase can for free, such as in Chile and Sweden, where free bid for that particular procurement tender. In access to bidding documents is guaranteed, or Turkey, companies consulted during the needs for a particular fee requested by the procuring assessment phase are not allowed to bid.13 In entity. Where such fees exist, the amount does Mexico, they are prohibited from bidding if they not differ significantly from one country to had access to privileged information during the another and is not sufficiently prohibitive to consultation phase.14 In the United States (in the prevent companies from bidding. For instance, city of New York), companies that were consulted in Afghanistan, Ghana, Mexico, and Turkey, can bid if it is found that the specifications do the cost may not exceed printing, copying, and not favor one particular vendor and if it is in the distribution expenses. In Jordan, the fee also best interest of the authority to allow such par- depends on the tender’s value. ticipation.15 In Afghanistan, companies can bid if it is found that a continuation of the company’s Time granted to bidders to access bidding documents earlier consulting services is needed.16 Afghanistan, Chile, and Ghana require procuring In other surveyed countries, general legal provi- entities to have bidding documents available for sions on conflict of interest are applied. In Chile, distribution at the time of the publication of the Sweden, Thailand and Uganda, the laws do not tender notice. In Mexico, Sweden, and Thailand, restrict a company’s participation in the pro- procuring entities must guarantee that bidders curement process, although general provisions will receive the bidding documents within specific regarding conflict of interest apply. Finally, in time limits (Table 4.2). 34 Benchmarking Public Procurement 2015 Table 4.2: Time granted to bidders to access bidding documents Afghanistan Simultaneous with the call for tenders, as per the law Chile Simultaneous with the call for tenders, on the e-procurement website Ghana For sale simultaneous with the call for tenders, as per the law Jordan No provision in the law Mexico Within 15 working days of the publication of the tender, as per the law Sweden No later than 6 days after receipt of the bidder’s request, as per the law Thailand 7 working days before the bid submission deadline, as per the law Turkey No provision in the law Uganda No provision in the law United States No provision in the law Source: Benchmarking Public Procurement 2015 However, in Jordan, Turkey, Uganda, and the curing entity to specify the time granted to bid- United States, the applicable public procurement ders (Chile, Ghana, Jordan, Sweden, Thailand, laws or regulations do not specify a time limit Uganda, and the United States). within which the procuring entity must provide Allowing bidders to use fast and reliable means of the bidding documents to potential bidders. This communication, such as email and e-procurement creates some uncertainty for bidders, who must portals, is a way to improve considerably the be guaranteed access to bidding documents transparency and efficiency of the procurement within a certain period of time from the publica- process. tion of the tender notice. Doing so increases the efficiency and inclusiveness of the process. As shown in Figure 4.1, there are primarily five ways for bidders to submit questions or requests Possibility for bidders to submit questions to for additional information. The most common av- procuring entities enue to submit questions is through regular mail: In all surveyed countries, bidders can submit seven countries allow bidders to submit their questions to procuring entities in order to deter- questions or requests in this fashion. In Jordan mine their interest in bidding. When it is specified, and Turkey, however, regular mail is the only the time granted to bidders to submit their ques- means provided by the regulatory framework for tions to procuring entities remains reasonable potential bidders to submit questions. (Table 4.3). In other countries, it is up to the pro- Table 4.3: Time granted to bidders to submit questions Afghanistan 14 working days prior to the bid submission, as per the law Chile During the Question and Answer period, as established in the tender notice Ghana No provision in the law Jordan No provision in the law Mexico 24 hours before the clarification meeting, as per the law Sweden No provision in the law Thailand No provision in the law Turkey 20 working days prior to the bid submission, as per the law Uganda No provision in the law United States No provision in the law Source: Benchmarking Public Procurement 2015 35 4 Bidding for a Public Procurement Tender Figure 4.1: Means available to bidders to submit questions 80 70 60 P rc nt of countri s 50 40 30 20 10 0 B r ul r m il B m il In p rson B phon B f x Throu h th -port l Source: Benchmarking Public Procurement 2015 Only five countries allow the use of email, and Possibility for bidders to request changes to only Chile and Sweden allow bidders to submit outdated technical specifications their questions through public procurement When it comes to the possibility to request e-portals. clarifications or changes to outdated technical specifications, countries fall into three different The bidder asking a question to a procuring entity groups: is guaranteed to receive an answer within a cer- tain period of time only in Afghanistan, Mexico, 1. In Afghanistan, Chile, Ghana, Jordan, Uganda, Sweden, and Turkey. In countries where the law is Sweden, and Turkey, bidders are authorized silent, the study reveals that procuring entities to make requests any time prior to the bid provide answers in a timely fashion, the best ex- submission deadline. In Afghanistan, bidders ample being the United States (Table 4.4). Table 4.4: Time guaranteed to bidders to receive answers to their questions Afghanistan Within 7 working days after the receipt of the question, as per the law Chile As specified in the tender notice Ghana No provision in the law Jordan No provision in the law Mexico At the clarification meeting or 6 working days before bid submissions, as per the law Sweden 6 working days before bid submissions, as per the law Thailand No provision in the law Turkey 10 working days before bid submissions, as per the law Uganda Promptly, as per the law United States No provision in the law Source: Benchmarking Public Procurement 2015 36 Benchmarking Public Procurement 2015 may make such requests 14 working days In other countries, bidders are generally encour- before bid submissions. aged to register or required to register under 2. In Mexico and the United States, change re- certain circumstances (such as in Mexico if the quests can be made during the clarification bidder is a regular provider of goods or services meeting. to the local government, or in Turkey if the bidder 3. Finally, in Thailand, data collected through to a domestic tender wants to obtain the bidding our contributors indicates that interested document via the procurement e-portal). bidders may not request changes to technical specifications at all. Modalities of bid submission As shown in Figure 4.2, there are four commonly Interestingly, in Turkey and United States, bid- used means for bidders to submit their bids. ders are also allowed to file a complaint to re- Submission in person is the most popular means quest a change to the technical specifications among the surveyed countries, whereas online within 10 days after gaining knowledge that the submission is only possible in four countries specifications appear to be outdated. (Chile, Mexico, Sweden, and the United States). Publication of questions and answers In all surveyed countries, there is no fee for sub- exchanged between bidders and procuring mitting a bid. entities In most of the surveyed countries, the acceptance In all surveyed countries except Thailand, bidders of alternate bids is limited and usually not have access to all questions asked and answers encouraged in practice.20 In countries where it provided by procuring entities. The identity is allowed, bidders can submit alternate bids of those bidders asking questions is generally only if the tender notice or bidding documents protected. In three of the surveyed countries specifically allow it (Afghanistan, Turkey, Uganda, (Chile, Jordan, and Sweden), the questions and and the United States). In other countries, answers are published online. In Mexico, given alternate bids are, in practice, discouraged (Chile that many questions are presented during the and Ghana). clarification meeting, the law requires that the minutes of the meeting include questions and Time limit for the bid submission answers, and that the procuring entity hand In most countries, procuring entities must grant deliver copies of these detailed minutes to all bidders a legal minimum period of time to submit bidders. their bids. Tendering Phase: Bid Submission As shown in Figure 4.3 which presents the time Bid submission is a milestone in the procurement granted to bid on the basis of the case study as- process. To guarantee a transparent and open sumptions, except for Jordan, all of the countries process, bid submission should be smooth and have a legally required minimum period of time swift. However, there are various ways to submit granted to bidders to submit their bids. Sweden bids; countries have different rules on register- gives the longest period of time (52 days) while ing bidders, on means of submission, on allow- Mexico and the United States have the shortest ing alternate bids, and defining the time limit bidding period (15 days). granted to bid. Tendering Phase: Award of the Specific registration processes imposed Contract upon bidders Various elements affect the transparency and In Chile, Thailand and the United States, bidders competitiveness of the process of examining are required to register before participating in a bid. bids and awarding contracts; these include the In Chile, the registration is conducted online,18 while procedures followed by the procuring entity to in Thailand and the United States, the registration examine bids, whether the procedure is public, is in writing and is physically sent to informa- and the extent to which the procuring entity tion collecting entities (the Comptroller General’s must justify and explain its decision. Department in Thailand, or VENDEX in the United States19). 37 4 Bidding for a Public Procurement Tender Figure 4.2: Means available to bidders to submit their bids 100 80 P rc nt of countri s 60 40 20 0 In p rson Vi r ul r m il B couri r s rvic Onlin submission Source: Benchmarking Public Procurement 2015 Figure 4.3: Time granted to bid (as per case study assumptions)* M xico 15 U.S.A. 15 Chil 20 Af h nist n 21 Th il nd 21 Turk 21 U nd 25 Gh n 28 Sw d n 52 0 10 20 30 40 50 60 Workin d s * Please note that, in some countries, the time granted to bidders depends on the estimated value of the contract (Table 4.7). Source: Benchmarking Public Procurement 2015 Bid opening sessions In most of the countries, the bid opening In all of the countries surveyed, bids are opened session is public. In Mexico, the opening session simultaneously. In Ghana, Mexico, Turkey, can sometimes be streamed on the website Uganda, and the United States, the bid opening of the relevant department. However, in takes place at the deadline for bid submission. Ghana and Sweden, the bid opening session is In the other five countries, the bid opening generally open only to bidders. takes place, in practice, one to 14 days after the The opening session is recorded in all countries. deadline. 38 Benchmarking Public Procurement 2015 Feedback given by procuring entities to bidders Lessons Learned and Next Steps In all surveyed countries, bidders are entitled to The approach of identifying the burdens that feedback as to why they did not win the tenders. firms may face when participating in a public Moreover, none of the 10 countries imposes fees tendering can spur governments to encourage on bidders for obtaining such feedback. However, the private sector to compete for government the procedures and timeframes for obtaining contracts. The initial dataset for the Bidding for a such feedback differ significantly from one coun- Public Procurement Tender topic shows that the try to another. In Mexico, Turkey and the United ease of bidding significantly varies by country. As States, procuring entities are required to auto- the Benchmarking Public Procurement project matically notify unsuccessful bidders as to the evolves, the Bidding for a Public Procurement reasons why they were excluded or found non- Tender topic will grow to produce a more com- eligible, while the other countries require bidders prehensive assessment of the complexity of to request such feedback. procurement processes from the viewpoint of prospective suppliers. Table 4.5: Fee imposed on bidders to obtain bidding documents Country Law, regulations and practices Fee (in USD) Afghanistan There may be a fee to obtain bidding documents. Rule 54 of Rules 17.40 of Procedure, 2009, provides the possibility for the procuring entity to establish a fee. Rule of Procedure No. 54(8) provides that bidding documents should be free of charge to all bidders and that, only exceptionally, the procuring entity may charge a fee that should be calculated to cover the costs associated with printing, copying and distributing the documents and should “not include any element of profit.” Rule of Procedure No. 54(11) states that, in case of large bidding documents, and if the cost of printing and distribution cannot be covered by the Procurement Office budget, “the Procuring entity may sell hard copies only of the Bidding Documents, provided that the price is calculated only to recover the cost of printing, copying and distributing.” In practice, contributors mention that documents may be handed over to bidders to be copied by them in a private store. Contributors mention that the cost can be about AFN 1,000 (~US$17.40). Chile There is no fee to obtain bidding documents. Article 19 of Law No. 19,886 0 mentions that the Information System shall be open to the public and free of cost. Article 28 of the Law No. 19, 886 guarantees bidders “free access to the registry.” Ghana There is a fee to obtain bidding documents. There are no standard fees, 34 - 170 but the price that the procurement entity may charge for the bidding documents shall reflect the cost of printing and providing them to the suppliers or contractors. Contributors note that the cost varies from GHS 100 to GHS 150 for small contracts (~US$34 to ~US$50) and GHS 300 to GHS 500 for larger contracts (~US$100 to ~US$170). The fee will be indicated on the invitation to bidding. (continued) 39 4 Bidding for a Public Procurement Tender Table 4.5: Fee imposed on bidders to obtain bidding documents (continued) Country Law, regulations and practices Fee (in USD) Jordan There is a fee to obtain bidding documents. Each procuring entity has No data its own fees, which may also depend on the type of the procurement. According notably to Article 24 of the Supplies Act No. 32 of 1993, the entity conducting the tender determines the fee for obtaining the bidding documents. In particular, it should determine the price of the bidding documents, the cost of the printing and preparation, “as well as the tender’s value.” It is also permitted to share the documents free of charge to the Arab and foreign commercial attaché, as well as to companies not residing in the Kingdom and government entities, and any other party, deemed “that it is to the treasury’s interest to address the tender’s invitation thereto.” A contributor mentions that the fees for bidding documents for government projects valued at more than JOD 10 million (~US$14 million) is JOD 1,000 (~US$1,410). Mexico There may be a fee to obtain bidding documents, depending on the tender 0— process. The fee is only to recover the cost to the procuring entity for the Reasonable publication of the tender notice. fee Sweden There is no fee to obtain bidding documents. 0 Thailand There is a fee to obtain bidding documents. Regulations B.E. 2549, 2006 0 - 612 and Regulations B.E. 2535, 1992 (Clause 46) provide that the procuring entity may collect fees associated with the issuance of bidding documents, at its own discretion. In practice, the relevant fee varies between zero and THB 20,000 (~US$612), depending on the value of the project. Turkey There may be a fee to obtain bidding documents. Article 28 of the Public 0— Procurement Law, 2002, states that the fee “shall be determined by the Reasonable contracting entities in such a way that this amount shall not exceed its fee printing cost and not impede competition.” However, there is no threshold amount set out by the legislation. Contributors mention that the fee, if existent, remains reasonable. If the bidding documents are downloaded from the Electronic Public Procurement Platform, no fee is required. Documents not accessible through EKAP (Electronic Public Procurement Platform on www.ihale.gov.tr) are provided in hard copy by the procuring entity for a fee determined by the latter which does not exceed publication expenses. Uganda There is a fee to obtain bidding documents that depends on the procuring 20 - 78 entity. There is no fixed price; fees usually run from UGX 50,000 (~US$20) to UGX 200,000 (~US$78). United There may be a fee to obtain bidding documents, at the discretion of the 0— States procuring entity. The regulatory framework requires that the applicable Reasonable fee or deposit amount, if any, must be specified in the notice of solicitation fee or invitation for bids (Section 3-02 of the PPB Rules on competitive sealed bidding, paragraph (e)(1)(i)(D)). Source: Benchmarking Public Procurement 2015 40 Benchmarking Public Procurement 2015 Table 4.6: Possibility for a bidder to request changes to outdated technical specifications Country Law, regulations and practices Afghanistan A bidder may request changes to technical specifications that appear to be outdated. During the tendering process, the bidder can request clarification of the bidding documents up to 14 working days prior to the deadline for submission of bids. The bidder may request changes to technical specifications which appear to be outdated, as per Rule of Procedure No. 56(1). Rule of Procedure No. 56(2) states that “where a request for clarification is received, the Procurement Office shall promptly provide a clarification in writing. The clarification shall be copied to all bidders and shall include a description of the inquiry, but without identifying the source of the request.” Rule of Procedure No. 56(3) provides that, prior to the deadline for submission of bids, the procuring entity may, either at its own initiative or in response to a request of clarification from a bidder, amend the bidding documents by issuing an addendum. The addendum has to be issued in writing and shared to all the bidders at the same time. Chile A bidder may request changes to technical specifications that appear to be outdated. A request should be submitted during the question and answer process, as established in the terms and conditions of the tender. Ghana A bidder may request changes to technical specifications that appear to be outdated. Article 51 of the Public Procurement Act, 2003, on clarifications and modifications of bidding documents, grants bidders the possibility to request modification or clarification of the bidding documents from the procuring entity. It states that “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 to 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.” The procuring entity would then have to modify the bidding documents by issuing an addendum prior to the deadline for the bid submission. Jordan A bidder may request changes to technical specifications that appear to be outdated. The bidder would have to send an official letter to the procuring entity requesting such change, providing sufficient evidence and justification supporting the request for a change in the technical specifications. Mexico A bidder may request changes to technical specifications that appear to be outdated. During the clarification meetings, the bidder may be able to request said changes to the procuring entity, but, as per our contributors, the latter may or may not make such changes to the technical specifications on its sole discretion. Sweden A bidder may request changes to technical specifications that appear to be outdated. However, there is no specific procedure to follow: the bidder would have to ask a question to the procuring entity and mention that some technical specifications appear to be outdated. Contributors mention that it remains up to the discretion of the procuring entity to modify the specifications or not. Thailand There is no possibility for a bidder to request changes to technical specifications that appear to be outdated. Turkey A bidder may request changes to technical specifications that appear to be outdated. The potential bidder may ask the procuring entity in writing to change the technical specification (Article 29 of the Public Procurement Law, 2002). In the event that preparation of the addendum requires additional time, the bid submission can be postponed, one time, for a maximum of 20 days. If some bidders have already submitted their bids, they are allowed to withdraw their bids. In addition, bidders are also allowed to file a complaint to change the technical specifications if they allege that their rights are being infringed, or that they are suffering (or will potentially suffer) damages due to the transactions and acts during the tender process (Article 54 of the Public Procurement Law, 2002). (continued) 41 4 Bidding for a Public Procurement Tender Table 4.6: Possibility for a bidder to request changes to outdated technical specifications (continued) Country Law, regulations and practices Uganda A bidder may request changes to technical specifications that appear to be outdated. The bidder would be able to do so at a pre-bid meeting or in a request for clarification sent to the entity. Procuring entities are required to hold pre-bid meetings for procurements involving high-value and complex tenders whose threshold is above UGX 100 million (~US$39,000). At such meetings, bidders can request changes to technical specifications. United Prior to the date set for bid submission, any potential bidder can present a request to have States the specifications changed. During this phase, flaws or problems with the specifications or other elements of the bidding documents are generally revealed. Following receipt of bids, but prior to the award of the contract, bidders have less of an opportunity to obtain changes to the specifications. Changes to the specifications may be required through the bid protest procedure, via the vendor protest procedures set forth in Section 2-10 of the New York City Rules. Source: Benchmarking Public Procurement 2015 Table 4.7: Length of the bidding period Legal minimum period of time granted to potential bidders to Country Time submit their bids Afghanistan The regulatory framework provides for a legal minimum period of time that 21 days the procuring entity should grant potential bidders to submit their bids. The date and time by which bids must be submitted shall be between 21 and 90 working days from the issuance of the bidding documents, unless stipulated otherwise in the Law (Article 32.1 of the Procurement Law, 2008). Rule of Procedure No. 53 stipulates the following: a) 21 working days for open tendering, where the tendering is national; b) 30 working days for open tendering, where the tendering is international; c) 14 working days for restricted tendering, where the tendering is national (unless urgency); d) 21 working days for restricted tendering, where the tendering is international (unless urgency). If urgency applies, there is no minimum period, as per Rule of Procedure No. 53 (4). Chile The regulatory framework provides for a legal minimum period of time that 20 days the procuring entity should grant potential bidders to submit their bids. The minimum period is 20 days for contracts above CLP 40.5 million or ~US$73,818 (i.e. contracts above 1,000 UTM, knowing that the monthly tax unit or UTM costs CLP 40,528 as of October, 2013). It is 10 days if the contract is below this threshold. Ghana The regulatory framework provides for a legal minimum period of time that 28 days the procuring entity should grant potential bidders to submit their bid: four weeks for national competitive tendering and six weeks for international competitive tendering. Article 53 of the Public Procurement Act, 2003, on the submission of tenders provides that: “(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.” Jordan The regulatory framework does not provide for a legal minimum period of 0 days time for submission of bids. 42 Benchmarking Public Procurement 2015 Legal minimum period of time granted to potential bidders to Country Time submit their bids Mexico The regulatory framework (Article 32 of the Federal Law on Acquisitions, 15 days as amended in 2012, and Article 43 of the Regulations of the Federal Law on Acquisitions, as amended in 2010) provides for a legal minimum period of time that the procuring entity should grant potential bidders to submit their bid. In the event of national bids (on which only Mexican entities or individuals are allowed to participate), the time period cannot be less than 15 calendar days from the date of publication of the call. In the event of international bids (on which Mexican and foreign entities and individuals are allowed to participate), the time period cannot be less than 20 calendar days. In the event of international public bids under the coverage of treaties (on which only Mexican entities and individuals, as well as entities and individuals that are nationals of any country that has signed a free trade agreement with Mexico are allowed to participate), the time period cannot be less than 40 calendar days. Sweden At least 52 days from the date on which the contract notice was sent 52 days for publication (Article 2, Chapter 8 of the Public Procurement Act, LOU, 2007:1091). Thailand 21 days (seven days for the procuring entity to publish the tender notice, 21 days seven days for the procuring entity to make the bid documents available, and seven days for the bidders to prepare their bids), (Clauses 45 and 46, Section 2, Chapter II of the Regulations of the Office of the Prime Minister on Procurement B.E. 2535, 1992). Turkey 21 days or 40 days following the amount of the contract (Article 8, Section 21 days 2, Chapter I of the Public Procurement Law, 2002). Uganda 22 working days or 25 calendar days (Article 64, Part V of the PPDA Act 25 days and Article 145, Division VI, Part IV of the Public Procurement and Disposal of PPDA Regulations, 2003). United Not less than 15 days before the bid opening date (Section 3-02, Chapter III 15 days States of the New York City Procurement Rules). Source: Benchmarking Public Procurement 2015 43 4 Bidding for a Public Procurement Tender Table 4.8: Possibility for bidders to receive feedback after the award of the contract Country Procedure Time Afghanistan Bidders are entitled to feedback as to why they did not qualify for Promptly or win the tender. The bidder must submit a formal written request and the procuring entity must provide an explanation, as per Article 64 of the Procurement Law, 2008. The “procuring entity shall, upon request, communicate promptly to the bidder the reason for the rejection of its application to pre-qualify, or of its bid, at the expense of the bidder.” In addition, the Procurement Office shall, when so requested by unsuccessful bidders, provide unsuccessful bidders with a debriefing as to the reasons for the failure of their application to pre-qualify or bid, as per Rule of Procedure No. 129(3). The debriefing shall be provided in writing, within a reasonable period of time from receipt of the request, as per Rule of Procedure No. 129(4). The debriefing shall state at which stage of the evaluation the bid was rejected, provide brief details of any material deviation, reservation or omission leading to the rejection of the bid, or state that a bid was substantially responsive, but failed to offer the lowest evaluated price or highest score, as required by Rule of Procedure No. 129(5). The debriefing shall not provide details on any other bids, aside from information that is publicly available from bid openings or published notices, as per Rule of Procedure No. 129(6). The procuring entity should communicate the answer promptly and there is no cost to the bidder to perform this procedure. Chile The decision awarding the tender and disqualifying other bidders (i) For a claim/ must be duly grounded. If the grounds are not satisfactory, a bidder request through may file: (i) a claim/request with the e-portal manager (Chile Compra) the e-portal: 48 and/or a (ii) claim before the procuring entity. hours; (ii) For a claim before the procuring entity: not set by law (usually 7 to 14 days) Ghana A procurement entity may reject tenders, bids and quotations at any 2 days time prior to acceptance if the grounds for the rejection are specified in the bidding documents or in the request for bids or quotations. The grounds for rejection shall be communicated to the tenderer, but justification for the rejection is not required. Notice of rejection must be communicated within two days from the date the procuring entity decides to disqualify or reject the bid (Article 29 of the Public Procurement Act, 2003). Jordan Usually bidders are present in the opening of the bids, and reasons 2 to 4 business for discarding the bids are read aloud. However, those who did not days attend and would like to obtain feedback can send an official letter addressed to the bureau department at the PPD or contact it in any other way that the PPD may deem appropriate (Article 59 of the Instructions No. 1, 2008). In practice, communication usually takes place via telephone. 44 Benchmarking Public Procurement 2015 Country Procedure Time Mexico The procuring entity will issue an official award resolution that will Immediately (the be available to all bidders, listing the grounds on which the bids date of the award). have been accepted or discarded, and on which it determined the awarded bidder. Such resolution should address the legal, economic and technical reasons that support such a determination (Article 37, Chapter II, Title II of the Government Procurement, Leasing and Services Act). Sweden A bidder may contact the procuring entity in writing and request No later than 15 information about the reasons why the bidder did not qualify days (Article 10, Chapter 9 of LOU, 2007). Thailand The bidder must submit a letter requesting feedback to the procuring In practice, entity. immediately or within 7 days Turkey The procuring entity’s grounds regarding eligibility should 3 days automatically be communicated to bidders. The tender result shall be communicated to all those who submitted bids, including the winning tender, within a maximum of three days from the contracting officer’s approval. The reasons for exclusion or ineligibility of the tenderer shall be included (Article 41 of the Public Procurement Law, 2002, Amendment: 5812/Article 14). Uganda The bidder must submit a written request to the procuring entity. Time may vary, but contributors mention that it may take 10 working days. United If a bidder or offeror is found non-responsible, a determination of 2 business days States non-responsibility setting forth in detail and with specificity the reasons for the finding of non-responsibility shall be prepared by the Contracting Officer and sent to the non-responsible bidder or offeror (New York City Procurement Rules, Section 2-08, Vendor Responsibility and Appeal of Determination of Non-Responsibilitya).  responsible vendor is defined as one that has the technical capability and financial capacity to fully perform the requirements of a. A the contract, as well as the business integrity to justify the award of public tax dollars. Source: Benchmarking Public Procurement 2015 45 4 Bidding for a Public Procurement Tender Table 4.9: Consultation with the private sector during the pre-tendering phase Country Consultation with the private sector during the pre-tendering phase Afghanistan Usually, consultation with the private sector takes place in person. Chile Usually, consultation with the private sector takes place in person. It consists of a formal process of meetings with suppliers, through a public and open invitation published through the portal www.mercadopublico.cl. Ghana Usually, consultation with the private sector takes place in person. It consists of informal requests and interactions with market participants; there is also a two-stage tender process or a competitive dialogue process. The procuring entity can also contact other government entities for assistance in the preparation of tenders. Jordan Usually, consultation with the private sector takes place in person. According to Article 5 of the Instructions No. 2 of 1994, the procuring entity is permitted to consult with experts in order to determine the specifications of the contract. In addition, the Director General of the Public Procurement Department (hereinafter referred to as the “Director General“) or the Secretary General of any public or governmental department (hereinafter referred to as the “Secretary General“) has the right to consult with experts in order to determine the eligibility criteria and draft the tender notices. However, the method of consultation is not defined by the regulatory framework, and it is up to the Director General or the Secretary General to determine the medium for the exchange of information. Mexico Usually, consultation with the private sector takes place in person and via a survey distributed to experts/private entities that is sent back to the procuring entity by regular mail. The goal of this process is to assess market conditions regarding the goods, leases or services to be procured, in order to find the best conditions for the Mexican government. The procuring entity may, in particular, contact institutions, chambers or entities registered and recognized for said purposes before the Ministry of Economy of the Federal Government. Sweden Usually, consultation with the private sector takes place in person. Thailand Usually, consultation with the private sector takes place in person. Turkey Usually, consultation with the private sector takes place in person. Additionally, the procuring entity is entitled to procure consultancy services in order to draft the technical specifications of the tender. However, such services shall also be tendered following a special procedure set out in the Public Tender Law. Uganda Usually consultation with the private sector takes place in person, but they may not be registered or recorded. 46 Benchmarking Public Procurement 2015 Country Consultation with the private sector during the pre-tendering phase United Usually, consultation with the private sector takes place online. New York City has a States particular consultation process: a “pre-solicitation review,” as provided for in Section 2-02 of PPB Rules. A pre-solicitation review is the process by which an agency, after determining the need of the procurement and the need to contract out, defines the existing market for the goods, services, or construction required, estimates the expected costs, and determines the most appropriate method of procurement. It is New York City’s written policy to perform such pre-solicitation reviews for: (1) sole source procurements exceeding US$10,000 for goods and services and US$15,000 for construction and construction- related services; and (2) all other procurement exceeding the small purchase limits, except emergency procurement. In some instances, an Agency’s Chief Contracting Officer may determine that a single pre-solicitation review must be conducted for a particular category of contracts. These determinations must be reevaluated at least every two years. The New York City Charter encourages public entities to publish notices to solicit contact with vendors in the City Record. Section 2-02(d)(5)of the PPB Rules states that the report must contain “a statement addressing the anticipated level of competition, based on agency staff knowledge of the market, and any surveys performed, as appropriate.” New York City recognizes market surveys as a non-mandatory procurement planning tool (considered as mandatory at the federal level—see United States Federal Acquisition Code Part 10). Source: Benchmarking Public Procurement 2015  estrictions on potential bidders who have been involved in drafting specifications of the Table 4.10: R procurement notice Restrictions on potential bidders who have been involved in drafting specifications Country of the procurement notice Afghanistan A potential bidder who has been involved in drafting the specifications of the procurement notice would not be prevented, in practice, from submitting a bid. However, it is subject to the condition that there is no conflict of interest. Chile A potential bidder who has been involved in drafting the specifications of the procurement notice would not be prevented from submitting a bid; no special legal provisions prohibit such a bidder from participating in the bidding process. However, such participation could eventually be considered to go against the principle of equal treatment of bidders or could be considered a conflict of interest. Ghana A potential bidder who has been involved in drafting the specifications of the procurement notice would be prevented from submitting a bid. The Public Procurement Act, 2003, does not specifically state this, but, according to contributors, this is the position of the Public Procurement Authority. Jordan A potential bidder who has been involved in drafting the specifications of the procurement notice would be prevented from submitting a bid. Contributors mention that there are no explicit prohibitions and/or restrictions in this regard, and that, in practice, potential bidders rarely participate in drafting the specifications of the procurement notice. Mexico A potential bidder who has been involved in drafting the specifications of the procurement notice would not be prevented from submitting a bid. There is no restriction, to the extent that no conflict of interest emerges later on. Sweden A potential bidder who has been involved in drafting the specifications of the procurement notice would not be prevented from submitting a bid. There is no restriction, to the extent that no conflict of interest emerges later on. (continued) 47 4 Bidding for a Public Procurement Tender Restrictions on potential bidders who have been involved in drafting specifications of the Table 4.10:  procurement notice (continued) Restrictions on potential bidders who have been involved in drafting specifications Country of the procurement notice Thailand A potential bidder who has been involved in drafting the specifications of the procurement notice would not be prevented from submitting a bid. There is no formal restriction; however, it could be considered a conflict of interest. In addition, under Regulations B.E. 2549, 2006, and Regulations B.E. 2535, 1992, only the procuring entity is allowed to draft the procurement notice; therefore, a potential bidder would not be permitted involvement in drafting specifications of the procurement notice. Turkey A potential bidder who has been involved in drafting the specifications of the procurement notice would be prevented from submitting a bid. Pursuant to Article 11 of the Public Procurement Law, 2002, “the contractors providing consultancy services for the subject matter of the procurement cannot participate in the procurement of such work. Similarly, the contractors of the subject matter of the procurement cannot participate in procurements held for the consultancy services of such work.” In addition, consultants are not allowed to have any shareholding or organic relations (i.e., any directing or auditing position) with the provider of such goods or services nor gain any revenues from the procuring entity other than those gained in exchange of consultancy services. Uganda A potential bidder who has been involved in drafting the specifications of the procurement notice would not be prevented from submitting a bid, unless there is a conflict of interest (Article 186 of the PPDA Regulations, 2003). United A potential bidder who has been involved in drafting the specifications of the procurement States notice would be prevented from submitting a bid. Any vendor participating in the drafting of specifications “shall not participate, in any manner, in a response to any subsequent solicitation utilizing such specifications, in whole or in part, unless, after reviewing the specifications, the Agency Chief Contracting Officer (ACCO) determines, with the City Chief Procurement Officer’s (CCPO’s) approval, that the specifications do not favor a vendor or such vendor’s goods, services, or construction, and it is in the City’s best interest” to allow such participation and the basis thereof. (For more details, see the restrictions on specifications in Section 2-05 of the PPB Rules.) Source: Benchmarking Public Procurement 2015 Table 4.11: Time granted to bidders to access bidding documents Country Time granted to bidders to access bidding documents Afghanistan The regulatory framework does not specify a time limit within which the procuring entity must provide the bidding documents. However, it is assumed that the bidding documents have to be ready before publication of invitation for bids. Rule 53 of Rules of Procedure, 2009, states that “the bidding documents shall be ready for distribution prior to the publication of announcement of the invitation.” In practice, contributors consider that procuring entities respect the deadlines. Chile The regulatory framework does not specify a time limit within which the procuring entity must provide the bidding documents. The bidding documents must be provided immediately by the procuring entity with the call for tenders, through the website. However, the clarification queries, clarifications and modifications regarding the bases must be published within the period prescribed in the bidding terms. In practice, some requests for clarification and amendment remain unresolved and modifications can take place regardless of the terms provided by the tender rules. 48 Benchmarking Public Procurement 2015 Country Time granted to bidders to access bidding documents Ghana The regulatory framework does not specify a time limit within which the procuring entity must provide the bidding documents. Jordan The regulatory framework does not specify a time limit within which the procuring entity must provide the bidding documents since each procuring entity will have its own dates and deadlines specified in the tender notices, invitations or instructions. Time and/or dates will vary from one procuring entity to another and shall be respected. Mexico The regulatory framework specifies a time limit within which the procuring entity must provide the bidding documents. Bidding documents should be provided, usually within 15 days for national tenders, 20 days for international open tenders, and 40 days for international bidding under the cover of treaties, according to Article 32 of the Federal Law on Acquisitions as amended in 2012, and Article 43 of the Regulations of the Federal Law on Acquisitions, as amended in 2010. In practice, this time is considered to be respected. Sweden The regulatory framework specifies a time limit within which the procuring entity must provide the bidding documents. Article 9 of Chapter 8 of the LOU, 2007, states that if a contracting authority does not offer by electronic means, unrestricted, direct and full access to the contract documents in their entirety, the contract documents shall be sent to a supplier no later than six days after receipt of a request to have the documents released. However, this only applies if the supplier’s request has been made in good time before the expiry of the time limit for submitting tenders. In practice, this time is considered to be respected. Article 10 of Chapter 8 of the LUF, 2007, states that if the procuring entity provides free and full direct access by electronic means to the entire bidding documents, the bidding documents should be sent to a supplier no later than six days after the request to get the documents is received. However, this applies only if the supplier’s request was made in good time before the out-time of the deadline for submission of tenders. Thailand The regulatory framework specifies a time limit within which the procuring entity must provide the bidding documents. Bidding documents must be given out or sold not less than seven working days before the end of the deadline to submit the bid (Regulations B.E. 2535, 1992), Competitive Bidding Method, Clause 46). In practice, this time is considered to be respected. Turkey The regulatory framework does not specify a time limit within which the procuring entity must provide the bidding documents. However, in practice, bidding documents are provided when the tender notice is issued (at a place specified in the tender notice), and can also be downloaded in the EKAP online platform. Uganda The regulatory framework does not specify a time limit within which the procuring entity must provide the bidding documents. United The regulatory framework does not specify a time limit within which the procuring entity States must provide the bidding documents. Source: Benchmarking Public Procurement 2015 49 4 Bidding for a Public Procurement Tender Table 4.12: Possibility for bidders to submit questions to procuring entities Country Possibility for bidders to submit questions to procuring entities Afghanistan A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. The potential bidder has to submit the question within 14 days prior to the deadline for the submission of bids or proposals (Article 31 of the Procurement Law, 2008). Article 31 of the Procurement Law, 2008, on the clarification of bidding documents and request for proposals states that the procuring entity “shall promptly respond to a bidder who [sends a written] request for clarification of the bidding documents or of the request for proposals, provided the request for clarification is received by the procuring entity at least 14 working days prior to the deadline for the submission of bids or proposals.” Chile A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. The potential bidder usually has to submit the question within a certain number of days following the issuance of the tender notice. Article 27 of the Decree 250, 2004, on “Clarifications” specifies that “the bidding specifications must establish the possibility of making clarifications in which the suppliers may ask questions within a specified period.” The period of time will depend on the bidding authority. In practice, reasonable time is given to proposers to submit their questions and answers are provided within a reasonable time period (considering each tender process extension). Ghana A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. There is no legal time limit for the company following the issuance of the tender notice to submit the question. The Public Procurement Act, 2003, does not specifically provide for this situation. However, the Public Procurement Authority has advised that written questions may be submitted to the head of the procurement entity. Jordan A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. The potential bidder will have to submit the question within a certain number of days following the issuance of the tender notice. There is no specific time and/ or date included in any regulatory framework since each procuring entity will have its own dates and deadlines specified in the tender notices, invitations or instructions. Time and/or dates will vary from one procuring entity to another and shall be respected. Mexico A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. The potential bidder usually has to submit the question within a certain number of days following the issuance of the tender notice. Requests for clarification may be sent through CompraNet (as per the law) or in person, depending on the type of tender in question, and no later than 24 hours (one calendar day) before the date established for the clarification meeting (Article 33-Bis, third paragraph, of the Federal Law on Acquisitions, as amended in 2012). Sweden A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. In practice, contributors mention that potential bidders are authorized to ask a question five days before the submission deadline. In addition, Article 10 of Chapter 7 of the LUF, 2007, states that “the contracting entity shall, on request of a vendor to disclose additional information on the specifications no later than six days before the deadline for submitting tenders, provided that such a request is made in good time.” Thailand A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. There is no time limit for the company following the issuance of the tender notice to submit the question. Turkey A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. The potential bidder usually has to submit the question within a certain number of days following the issuance of the tender notice. Pursuant to Article 29 (3) of the Public Procurement Law, 2002, the bidders are entitled to request explanations related to the issues on the bidding documentation at least 20 days before the deadline for the submission of fee quotes. 50 Benchmarking Public Procurement 2015 Country Possibility for bidders to submit questions to procuring entities Uganda A potential bidder can submit a question to the procuring entity in order to determine its interest in bidding. The bidder usually has to submit the question within a certain number of days following the issuance of the tender notice. The specific number of days is usually indicated in the tender/solicitation documents concerning a particular bid. There is not a standard number of days fixed by legislation. Usually questions can be asked from the time of bid notice, up to two weeks before the closing date. United A potential bidder can submit a question to the procuring entity in order to determine its States interest in bidding. There is no time limit following the issuance of the tender notice for the potential bidder to submit the question. Source: Benchmarking Public Procurement 2015 Table 4.13: Channels for bidders to submit questions to procuring entities Country Channels for bidders to submit questions to procuring entities Afghanistan In practice, a potential bidder can submit a question by phone or fax, in person and by regular mail to determine its interest in bidding. Chile A potential bidder can submit a question through the e-portal to determine its interest in bidding. Article 27 of the Decree 250, 2004, mentions that: “The questions asked by suppliers must be made through the Information System, except when the bidding specifications allow for clarifications through other physical means.” Ghana A potential bidder can submit a question by phone or fax, in person, by email and by regular mail to determine its interest in bidding. Jordan A potential bidder can submit a question by regular mail to determine its interest in bidding. If it is a request for additional information on the bidding documents, the bidder can also send an official letter addressed to the bureau at the Public Procurement Department (PPD), or in any other way that the PPD may deem fit. Mexico A potential bidder can submit a question in person and by email to determine its interest in bidding. In addition, the potential bidder can request additional information specifically on the bidding documents in person during the clarification meetings. Sweden A potential bidder can submit a question through the e-portal and by email to determine its interest in bidding. The procuring entity decides how questions should be submitted, but e-portal and email are the predominant alternatives. Thailand A potential bidder can submit a question by phone or fax, in person, by email and by regular mail to determine its interest in bidding. In the case where a purchasing or procurement includes complex details, the government agency will specify a place, time and date for discussing clarifications in the bid notice. During this clarification meeting, the potential bidder is able to request additional information regarding bidding documents (Clause 47 of the Regulations B.E. 2535, 1992). Turkey A potential bidder can submit a question by regular mail to determine its interest in bidding. Uganda A potential bidder can submit a question in person or by regular mail to determine its interest in bidding. Article 148 (1) of the PPDA Regulations, 2003, on “Clarification and amendment of solicitation documents,” provides the details on submitting questions. United A potential bidder can submit a question by phone, by email and by regular mail to States determine its interest in bidding. Source: Benchmarking Public Procurement 2015 51 4 Bidding for a Public Procurement Tender Time limit within which procuring entities must provide a response to question submitted Table 4.14:  Time limit within which procuring entities must provide a response to Country question submitted Afghanistan The regulatory framework specifies a time limit within which the procuring entity must provide a response to the question for additional information. Article 31 of the Procurement Law, 2008, provides that the procuring entity “shall promptly respond to a bidder who sends a written request for clarification of the bidding documents or of the request for proposals, provided the request for clarification is received by the procuring entity at least fourteen (14) working days prior to the deadline for the submission of bids or proposals” and that “responses to requests for clarification, as well as any modification made subsequently to the bidding documents, shall be communicated in writing within seven (7) working days [after receipt] of the request. The procuring entity may if necessary extend the deadline for submission of bids.” In practice, however, this time limit may not always be respected by procuring entities. Chile The regulatory framework does not specify a particular time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. Article 27 of the Decree 250, 2004, states that the procuring entity must answer all questions through the Information System before the deadline established in the bidding specifications. In practice, this time limit is respected by the procuring entity. Ghana The regulatory framework does not specify a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. Article 5.9 of the Manual, 2003, on tender clarifications states that: “The period during which tender clarifications may be requested will be defined in the Tender Document. Requests for clarifications received after this period may be ignored unless they draw attention to a serious flaw in the Tender Document. In all cases, any response to a Tenderer must be communicated to all tenderers who received the Tender Document, but without identifying the tenderer who requested the clarification.” The type of communication between procurement entities and tenderers shall be in writing. Communications in any other form shall be referred to and confirmed in writing. This is considered one of the main reasons why a procuring entity has difficulty meeting time limits to provide a response. Jordan The regulatory framework does not specify a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. Each procuring entity has its own dates and deadlines that are specified in the tender notices, invitations or instructions. Time and/or dates vary from one procuring entity to another and shall be respected. Mexico The regulatory framework specifies a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. The response should be provided either during the clarification meeting (Article 33-bis of the Federal Law on Acquisitions, as amended in 2012) or, in any case, at least six days prior to the presentation of the bids. In practice, this time limit is respected by the procuring entity. In the Federal District of Mexico, and according to the law (Article 41 of Regulations of the Law of Acquisitions for the Federal District, 1999), all questions submitted by the bidders will be responded to during the clarification meeting. Depending on the number of bidders and questions, responses may be given later on, at a subsequent meeting, or at the next clarification meeting. The number of clarification meetings will depend on the nature of the procurement. 52 Benchmarking Public Procurement 2015 Time limit within which procuring entities must provide a response to Country question submitted Sweden The regulatory framework specifies a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. Article 9 Chapter 8 of the LOU, 2007, states that the procuring entity shall “at the request of a supplier provide additional information about the contract documents no later than six days before the deadline fixed for submitting tenders, subject to the precondition that such a request has been made in good time.” Article 10, Chapter 7 of the LUF, 2007, states that “the contracting entity shall, on request of a vendor to disclose additional information on the specifications no later than six days before the deadline for submitting tenders, provided that such a request is made in good time.” Thailand The regulatory framework does not specify a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. Turkey The regulatory framework specifies a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. Pursuant to Article 29 (3) of the Public Procurement Law, 2002, if the explanation request of the bidder is found to be compliant, the procuring entity shall send a written explanations to all bidders who purchased the bidding documents (i.e., potential bidders) allowing bidders to be aware of such explanations at least 10 days before the deadline for the submission of fee quotes. In practice, this time limit is respected by the procuring entity. Uganda The regulatory framework does not specify a time limit within which the procuring entity must provide a response to the question submitted by the potential bidder. The regulatory framework mentions that the response shall be provided promptly, without setting out a specific number of days (Article 148 of the PPDA Regulations, 2003). In practice, this time limit is respected by the procuring entity. United The regulatory framework does not specify a time limit within which the procuring entity States must provide a response to the question submitted by the potential bidder. The response time for questions submitted to the procuring entity varies based upon the agency, the bid and the nature of the question. The range of response times can vary considerably. With those caveats, the average response time is about three to five business days. Response times are typically faster under a procurement framework like New York City’s, where an agency-specific point of contact is assigned to each solicitation or RFP. In practice, most tender authorities attempt to provide responses to questions far enough in advance of the date set for receipt of bids so as to allow the tenderers to revise their bids, if need be. In practice, typical bidding documents will specify a cut-off date, prior to the date set for receipt of bids, by which time prospective tenderers must submit questions; and will state that the tender authority is not required to answer questions submitted after that cut-off date. Source: Benchmarking Public Procurement 2015 53 4 Bidding for a Public Procurement Tender Publicity of the questions submitted by potential bidders and answers by procuring entity Table 4.15:  Publicity of the questions submitted by potential bidders and answers by Country procuring entity Afghanistan The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published without the name of the potential bidder who asked the question. Rule of Procedure No. 56 (2), on clarification and amendment of bidding documents, states that “where a request for clarification is received, the Procurement Office shall promptly provide a clarification in writing. The clarification shall be copied to all bidders and shall include a description of the inquiry, but without identifying the source of the request.” Chile The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published online without the name of the potential bidder who asked the question. Article 27 of the Decree 250, 2004, states precisely that it is the responsibility of the procuring agency to “make all questions available to all interested suppliers, using the Information System, without indicating the author of these questions.” In addition, “the procuring agency must answer all questions through the Information System before the deadline established in the bidding specifications.” Ghana The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published without the name of the potential bidder who asked the question. Jordan The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published online without the name of the potential bidder who asked the question. Mexico The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. It appears that the potential bidder who asks a question is not anonymous because questions are asked during the clarification meeting. Article 41 of the Regulations of the Federal Law on Acquisitions, as amended in 2010, states that the clarification meeting aims at answering the questions submitted by bidders in writing or verbally at the meeting itself. It states that the detailed minutes of the meeting shall contain the questions asked and the answers given, which will be signed by the participants in the act and constitute an integral part of the bidding. Moreover, copies will be hand delivered to each of the bidders. Sweden The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published online without the name of the potential bidder who asked the question. Thailand According to contributors, the questions asked by potential bidders as well as the responses provided by the procuring entity are not made publicly available to all potential bidders. Turkey The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published without the name of the potential bidder who asked the question. Although the responses are not available in a website or in a registry, pursuant to Article 29(3) of the Public Procurement Law, 2002, the procuring entity shall send its written answers to all the potential bidders who purchased the bidding documents, in order to make them aware of such explanations at least 10 days before the deadline for the submission of fee quotes. Uganda The questions asked by potential bidders as well as the responses provided by the procuring entity are made publicly available to all potential bidders. They are published without the name of the potential bidder who asked the question. 54 Benchmarking Public Procurement 2015 Publicity of the questions submitted by potential bidders and answers by Country procuring entity United The questions asked by potential bidders as well as the responses provided by the States procuring entity are made publicly available to all potential bidders. The PPB Rules, Section 3-02(l) and Section 3-03(f)(9), prohibit tender authorities from disclosing the identity of any tenderer prior to opening of sealed bids/bids, including if the identity is mentioned in the questions and answers between the bidders and the procuring entity. The common practice in the United States is that procuring entities do not reveal the identities of the bidders asking questions. Source: Benchmarking Public Procurement 2015 Table 4.16: Specific registration imposed on bidders Country Specific registration imposed on bidders Afghanistan Bidders do not have to go through a specific registration in order to participate in the bid. The database of bidders is yet to be developed by the procuring entities. There is a list of registered bidders run by the Ministry of Finance. In addition, procuring entities may establish a database, as per Rule of Procedure No. 39 (1). However, this is not a mandatory registration. Chile A bidder has to go through a specific registration in order to participate in the bid. 1. The potential bidder has to register at the Mercado Público online platform in order to be able to access ChileCompra (the bidder has to access www.mercado publico.cl and complete a specific form). The online registration on the Mercado Público website takes a few minutes. Such a registration is free. 2. In addition, there is the Purchasing Department Registration (Registro de Proveedores, Dirección de Compras). This registration is not considered as mandatory, but the procuring authority is entitled to require such registration for a specific tender. The cost of the Purchasing Department registration depends of the size and type of the company. Prices range from CLP 29,318 (US$53) to CLP 70,775 (US$129) per year. Ghana A bidder does not have to go through a specific registration in order to participate in the bid. Section 3 of the Public Procurement Act, 2003, requires the Public Procurement Authority to maintain a database of suppliers, contractors and consultants, and a record of prices to assist in the work of procurement entities. The prime purpose of the bidders registering is for this purpose and not as a pre-requisite to the procurement process. In addition, procuring entities may have their own database and some of them expect bidders to register with them annually. Jordan A bidder does not have to go through a specific registration in order to participate in the bid. (continued) 55 4 Bidding for a Public Procurement Tender Table 4.16: Specific registration imposed on bidders (continued) Country Specific registration imposed on bidders Mexico A bidder does not have to go through a specific registration in order to bid. However, if the bidder is a regular provider of assets or services for the local government, it will have to be registered in the Providers’ Registry (Padrón de Proveedores). Bidders are not required to be registered in the Providers’ Registry in order to respond to a public tender and submit a bid (Article 40, Section V, of the Regulations of the Federal Law on Acquisitions, as amended in 2010). Registration in the Providers’ Registry should be requested from the winning bidder by the government agency that conducted the public bid, once the contract is awarded (prior to the signing of the contract), in terms of the provisions established in Article 48 (VI) of the Regulations of the Federal Law on Acquisitions, as amended in 2010. The registration at the Providers’ registry takes one to 19 days or 12.5 days on average, and is free. In order to be registered, the bidder has to present a request for registration, in writing, before the Chief Administrative Office of the Federal District (Oficialía Mayor del Distrito Federal), enclosing a large number of documents such as, among others: certified copies by a Notary Public with the registration information of the Public Registry of Property of the articles of incorporation and bylaws and their modifications, if any, with the corresponding registration information of such modifications, as well as the name of the legal representative and the document that demonstrates his capacity, enclosing a copy of his official identification and certain documents; information on contracts already entered by the company with the public administration of the Federal District in the last three years; fiscal documents showing the fiscal domicile; annual declaration of the income tax corresponding to the last year, with respect to the date of the registration request. Sweden A bidder does not have to go through a specific registration in order to participate in the bid. Thailand Registration of suppliers is only required for the public procurement under Regulations B.E. 2549, 2006, meaning that in order to attend in the Electronic Government Procurement, the suppliers are required to be registered in the e-Government Procurement system, otherwise they will not be able to bid in the e-Government Procurement. However, for regular public procurement under Regulations B.E. 2535, 1992, the registration of suppliers is not mandatory by law. In practice, in case of e-procurement, the bidder has to register as vendor or service provider with the government sector on the e-Government Procurement system at http:// www.gprocurement.go.th. The bidder then has to provide its tax registered number, its company information, and then save and print the registered form and submit it to the Comptroller General’s Department for an approval. The registration takes one to two days if submitted in person, and five days if submitted via mail. The registration process is free. Turkey As a first time bidder, a company does not have to go through a specific registration in order to participate in the bid. However, if the bidder wants to obtain the bidding document via EKAP, it must register with the system. In that case, the registration of the firm needs to be made only once. Uganda A bidder does not have to go through a specific registration in order to participate in the bid, unless pre-qualification is requested (Article 120 of the PPDPA Regulations, 2003). There are specific situations where pre-qualification can be requested. According to PPDA Regulations, 2003, 120: (1) Pre-qualification may be used under open domestic or open international bidding to obtain a shortlist of bidders using the criteria for evaluation prescribed by a procuring and disposing entity in accordance with regulation (2) Pre‑qualification may be used where: (a) the works, services or supplies are highly complex, specialized or require detailed design or methodology; (b) the costs of preparing a detailed bid would discourage competition; (c) the evaluation is particularly detailed and the evaluation of a large number of bids would require excessive time and resources from a procuring and disposing entity; or (d) the bidding is for a group of contracts, in accordance with regulation 126. 56 Benchmarking Public Procurement 2015 Country Specific registration imposed on bidders United As a first time bidder, a bidder has to go through a specific registration in order to States participate in the bid. The Vendor Information Exchange System (VENDEX) is New York City’s equivalent to the System for Award Management (SAM) that is used in the federal procurement system. The City is legally required to use VENDEX, a computerized data system, to help it make well informed decisions regarding vendor responsibility. The registration is immediate and there is no fee involved for VENDEX registration. However, an administrative fee may apply in connection with the Department of Investigation’s Vendor Name Check on a proposed vendor. Source: Benchmarking Public Procurement 2015 Table 4.17: Channels available for bid submission (as per case study assumptions) Country Channels available for bid submission (as per case study assumptions) Afghanistan A potential bidder can submit its bid in person, by courier service, email and via regular mail. Chile A potential bidder can submit its bid in person, by courier service, via regular mail and online. In any case, Article 30 of the Decree 250, 2004, on the reception of bids states that “bids must be placed by suppliers and received by the procuring agency through the Information System. In the cases described in Article 62 of the Decree 250, 2004, these bids may be presented physically (on paper), at the procuring agency’s address, before the deadline established in the bidding specifications for presenting bids, during the procuring agency’s business hours, or at the public act of opening the bids.” Bidders are automatically notified of the reception of their bids by the e-portal upon submission of the bid. Ghana A potential bidder can submit its bid in person, by courier service and via regular mail. In addition, Article 53 on the submission of tenders of the Public Procurement Act, 2003, states that a tender “may alternatively be submitted in any other form specified in the bidding documents that provides a record of the contents of the tender and a similar degree of authenticity, security and confidentiality.” Jordan A potential bidder can only submit its bid in person. Mexico A potential bidder can submit its bid in person and online. The delivery of bids may be submitted by sealed envelope or through CompraNet (online), in accordance with Article 34 of the Federal Law on Acquisitions, as amended in 2012. Sweden A potential bidder can submit its bid in person, by courier service, via regular mail and online. The regulatory framework does not specify a time limit within which the procuring entity must notify the bidder that its bid has been received; however, Article 9 of Chapter 9 of the LOU, 2007, requests the procuring entity to notify the bidders as soon as possible. Article 1 of Chapter 9 of the LUF, 2007, states that requests to participate and tenders must be submitted in writing unless the procuring entity determines that tenders can be provided by any electronic means or made by telephone. Thailand A potential bidder usually submits its bid in person. In case of an international bidding procedure, the procuring entity may allow the bidders to submit their bid via regular mail (Clause 48, Paragraph 2 of Regulations B.E. 2535, 1992). Turkey A potential bidder can submit its bid in person and via regular mail. Uganda A potential bidder can submit its bid in person, by courier service and via regular mail. The regulatory framework does not specify a time limit within which the procuring entity must notify the bidder that its bid has been received. (continued) 57 4 Bidding for a Public Procurement Tender Table 4.17: Channels available for bid submission (as per case study assumptions) (continued) Country Channels available for bid submission (as per case study assumptions) United A potential bidder can submit its bid in person, by courier service, via regular mail and States online (only if authorized by the solicitation). In the United States it is common practice to specify the means of delivery of tender bids in the bidding documents. Additionally, procurement practice in the United States generally permits the delivery of bidding documents in person, by mail, via courier delivery, by email, or other means. Pursuant to the PPB Rules, Section 3-02(b)(2)(i), the Invitation for Bids must include instructions and information to bidders concerning the bid submission requirements. If so provided in the solicitation, sealed bids may be submitted electronically. However, in virtually all instances, the agency provides the option to deliver the bid in person at the specified location. Source: Benchmarking Public Procurement 2015 Table 4.18: Possibility to submit an alternate bid Country Submitting an alternate bid Afghanistan The potential bidder is allowed to submit an alternate bid only if the solicitation authorizes alternate bids, providing a number of conditions are respected (Rule of Procedure No. 73). The procuring entity may permit alternative bids, where it is anticipated that bidders may be able to offer goods, works or services which do not conform precisely to the description of requirements, but which meet the objectives of the procurement in an alternative manner. Alternative bids may be permitted in areas of rapidly changing technology or where a need could be satisfied in a number of different ways and the procuring entity wishes to encourage cost efficient and technically innovative approaches by bidders. Where alternative bids are permitted, the bidding documents shall state that the alternative bid does not need to conform precisely to the description of requirements, but must: (a) meet the objectives and performance requirements prescribed in the description of requirements; (b) be substantially within any delivery or completion schedule, budget and other performance parameters stated in the bidding documents; and (c) clearly state the benefits of the alternative bid over any solution which conforms precisely to the description of requirements, in terms of technical performance, price, operating costs or any other benefit. Then, “alternative bids shall be evaluated in the same way as other bids, except that the technical evaluation shall take into account only the objectives or performance requirements prescribed in the description of requirements.” Chile The potential bidder is generally not allowed to submit an alternate bid. The possibility is not expressly restricted in the law, but the e-procurement platform only allows one bid per bidder. Consequently, alternate bids are not permitted. Ghana The potential bidder is allowed to submit alternate bids as there are no provisions in the law forbidding them. However, in practice, this is not encouraged. Jordan The potential bidder is generally not allowed to submit an alternate bid. Article 35 of the Instructions No. (1), 2008, states that it is not allowed for one bidder to submit two bids to the same entity, whether in his own name or another bidder. However, it also provides that “the bidder may be accompanied with optional display of some alternatives,” that match the value in securing access to the value of the tender offer or alternative whichever is higher and the tenders committee to exclude the display or the alternative is encased secured entry and consider the offer or alternative encased secured access.” Mexico The potential bidder is generally not allowed to submit an alternate bid. In practice, each bidder may only submit one bid during the tender proceeding. Sweden The potential bidder is not allowed to submit an alternate bid. Thailand The potential bidder is not allowed to submit an alternate bid. 58 Benchmarking Public Procurement 2015 Country Submitting an alternate bid Turkey The potential bidder is not allowed to submit an alternate bid unless there is a specific authorization. Uganda The potential bidder is not allowed to submit an alternate bid “unless otherwise indicated in the solicitation documents,” as per Article 189 of the PPDPA Regulations, 2003. United The potential bidder is not allowed to submit an alternate bid, with some exceptions, as States per Section 3-02 of the PPB Rules on competitive sealed bidding. Source: Benchmarking Public Procurement 2015 Table 4.19: Bid opening Simultaneous opening of Publicity of bid opening Country Timing of bid opening bid documents session Afghanistan All the bid documents are Rule 63 of Rules of The opening session is opened simultaneously. Procedure, 2009, states open to the public. Rule of that: “The procurement Procedure No. 63 states committee shall open in that “the procurement public all bids received committee shall open in on time at the date, time public all bids received on and location indicated in time at the date, time and the bidding documents. location indicated in the The time for bid opening bidding documents.” shall be the same as, or immediately after, the time of the deadline for submission of bids.” Usually, the bid opening does not take place precisely at the time when the deadline for bid submission is reached, but at a time very close to the deadline for the bid submission. Contributors mention that some procuring entities may proceed to the bid opening only a few hours or a few days after the deadline of the bid submission. Chile All the bid documents are Usually, the bid opening The opening session is open opened simultaneously. does not take place at the to the public. Article 33 of Article 33 of the Decree 250, time when the deadline for the Decree 250, 2004, on 2004, on the opening of bid submission is reached. the opening of bids states bids specifically states that Article 33 of the Decree 250, the details. “the opening act for bids 2004, on the opening of bids However, practice shows shall be carried out through states that “the opening that on occasion the bid the Information System, act for bids shall be carried opening is not carried automatically reviewing the out through the Information out and the prices of the bids on the day and hour System, automatically discarded bids are not established in the bidding reviewing the bids on the published. specifications.” day and hour established in the bidding specifications.” (continued) 59 4 Bidding for a Public Procurement Tender Table 4.19: Bid opening (continued) Simultaneous opening of Publicity of bid opening Country Timing of bid opening bid documents session Ghana All the bid documents are Usually, the bid opening The opening session is only opened simultaneously. takes place at the time open to the bidders or a when the deadline for bid representative of bidders. submission is reached. Article 56 of the Public Procurement Act, 2003, on the opening of tenders states the details. Jordan All the bid documents are Usually, the bid opening The opening session is open opened simultaneously. does not take place at the to the public. time when the deadline for bid submission is reached. Normally, the bid opening is specified in the tender notice and in practice, it takes place one day after the deadline for bid submission is reached. Mexico All the bid documents are Usually, the bid opening The opening session is only opened simultaneously. takes place at the time open to the bidders and when the deadline for bid is recorded. The opening submission is reached. session can be streamed on the website of the relevant department. Sweden All the bid documents are Usually, the bid opening The opening session is opened simultaneously. does not take place at the generally closed, but a time when the deadline for representative from the bid submission is reached. Swedish Chamber of In practice, it usually takes Commerce can be present between one to four days during the opening session if for the procuring entity requested by a tenderer. The to proceed to the bid tenderer bears the costs for opening, but it can go up the representative. to 14 days. Thailand All the bid documents are Usually, the bid opening The opening session is opened simultaneously. does not take place at the open to the public. Indeed, Clause 49 of Regulations time when the deadline for Regulations B.E. 2535, 1992, B.E. 2535, 1992, includes bid submission is reached. Clause 49 states the details. specific and detailed provisions on the bid- accepting and the bid- opening period. Turkey All the bid documents are Usually, the bid opening The opening session is, most opened simultaneously. takes place at the time of the time, open to the when the deadline for bid public. submission is reached. Uganda All the bid documents are Usually, the bid opening Generally, the opening opened simultaneously. takes place at the time session is open both to the when the deadline for bid public and to the bidders. submission is reached. The opening session is recorded. 60 Benchmarking Public Procurement 2015 Simultaneous opening of Publicity of bid opening Country Timing of bid opening bid documents session United All the bid documents are Usually, the bid opening The opening session is States opened simultaneously. The takes place at the time open to the public. Section PPB Rules Section 3-02 on when the deadline for bid 3-02 of the PPB Rules on competitive sealed bidding submission is reached. competitive sealed bidding states the details. states the details. Source: Benchmarking Public Procurement 2015 61 5 Filing a Complaint Filing a Complaint Providing an effective domestic review mechanism for vendors who believe that government procurement officials have not conducted an acquisition lawfully brings an important measure of transparency and accountability to public procurement systems (Gordon, 2006). Under international standards, bidders, suppliers, Although complaint and appeal mechanisms and contractors have the right to seek a review of give suppliers the chance to protest in case of the actions of a procuring entity that may be in violations, competing goals need to be balanced violation of public procurement laws (UNCITRAL, to ensure that the rights of all stakeholders are 1994). This process can help make procurement preserved. The specific goals could be to protect laws self-policing and self-enforcing, at least to due process rights, promote good governance some degree, as it provides a review mechanism and accountability, and safeguard the integrity for suppliers and contractors “who have a natural of the procurement system. These are important interest in monitoring compliance by procuring objectives alongside the goals of achieving entities” (UNCITRAL, 1994). efficiency and efficacy within the procurement system (OECD, 2009). Such review and remedy systems are important for providing a check against fraud in the Additionally, it should be recognized that sup- procurement process, increasing transparency pliers can abuse review mechanisms if they are and preventing corruption (OECD, 2013). simply filing complaints to delay the process or Through these review systems, the procurement harm competitors who have been selected for an activities of government officials can be award. Therefore, clear rules with regard to filing monitored, compliance with procurement laws a protest should be defined. and regulations can be enforced, and improper actions can be corrected. Furthermore, review What the Filing a Complaint Topic systems provide an opportunity for bidders and Measures other stakeholders to contest the process and Several issues are addressed by the Filing a verify the integrity of a procurement award Complaint topic. The data points presented (OECD, 2007). quantify the legal and procedural characteristics facing suppliers when challenging a public pro- The existence and functioning of an efficient, curement tender. The topic takes into account the transparent, and sound complaint mechanism regulatory framework and its implementation, in the public procurement sphere can influence thereby ensuring a more comprehensive measure the number of suppliers that will be interested of the complaint review system. Consideration is and willing to engage in public contracts in a also given to complaints filed before the conclu- particular country. “If effective remedies are sion of a procurement contract, as well as those not available to companies that participate in complaints challenging the award of a contract. a public procurement procedure, they will lose interest. In that case, full competition will never Two components comprise the Filing a Complaint be achieved” (Gabriel, Toepfer, and Weiner, 2009). topic: a measurement of the procedures, time, and cost involved in challenging a procurement Given that access to the judicial system can be tender; and an appraisal of the legal aspects of costly and time-consuming, one of the major the complaint system during the pre-tendering, challenges associated with review and remedy tendering, and post-tendering phases. systems is to resolve complaints in a timely and efficient manner (Gabriel, Toepfer, and Weiner, Within these two broad pillars, the topic seeks to 2009). It is therefore important for bidders to be cover five specific issues (see Table 5.1). able to challenge decisions early in the procure- ment process and for relevant measures to be in place; for example, a standstill period or the setting aside of an award decision (OECD, 2009). 62 Benchmarking Public Procurement 2015 Table 5.1: Filing a complaint—topics covered Complaints before the conclusion of a procurement contract Explores whether a dissatisfied supplier can file a complaint to challenge the terms of tender documents. Also looks at the structure of the review bodies, for example, first instance and appeal. First-tier review mechanism Encompasses the methods available to file a complaint; the fee for filing; whether a supplier has to notify the procuring entity when filing a complaint and, if so, the procedure, time, and cost involved; whether a supplier has to show standing (i.e., to demonstrate the right to file a claim) and, if so, the procedure, time, and cost involved; the time period for the first-tier review to render a decision; and the requirement to hire legal counsel in case of filing a complaint. Second-tier review mechanism Assesses whether the supplier can file an appeal before a second-tier review body and, if so, the procedure, time, and cost involved. Also addresses whether the supplier is required to hire legal counsel to file an appeal, and whether a complaint triggers the suspension of the procurement process. Alternative dispute resolution mechanisms Evaluates alternative mechanisms which include mediation and arbitration to challenge a tender. Complaints filed to challenge an award or based on conflict of interest Reflects the procedure followed to challenge an award or lodge an accusation of conflict of interest and shows how the process for these types of complaints differs from the process of filing a complaint to challenge the tender process. Initial Pilot Results at least 10 days if they have been notified of the The initial pilot yielded large variation in the award decision electronically (e.g., via email) and characteristics of complaint systems across 15 days if the contract is awarded and notified countries. The data also show variation between in another way (e.g., through regular mail). By the rights of suppliers, their obligations as set contrast, bidders in Afghanistan and Chile do not out in the public procurement laws, and their have a standstill period, but there is a set period application in practice. The following five sce- of 10 working days during which a complaint is narios illustrate some of the differences in the allowed. characteristics. Time Limit for the Review Body Pre-Protest Standstill Period Once a complaint is submitted, the time limit The pre-protest standstill period ensures that for the review body to issue a decision becomes the suppliers are granted enough time to examine important. The data show that the time limit is the award decision and decide whether to initiate highly variable across the countries measured. In a review procedure. If the public procurement Jordan, Sweden, and Thailand, the decision is left system does not allow for a contract to be to the discretion of the review body, as there is terminated, even if a review body finds it no time limit set in the law and the review can unlawfully awarded, then a pre-protest standstill take several months to resolve, by which time the period is critical. procurement contract may have been awarded and executed. In the majority of the countries, The country setting usually determines whether there is a regulatory time limit set in the law for unsuccessful suppliers are allowed to challenge the review body to issue a decision. In practice, the decision in the period between the announce- however, the time limit is often not respected and ment of the winning bid and the beginning of the therefore the period of review is unpredictable. A contract. Suppliers in Turkey, for example, have a few examples are illustrated in Table 5.2. standstill period of 10 calendar days following the notification of the tender according to Article 55 of the Public Procurement Law, 2002. Similarly, suppliers in Sweden have a standstill period of 63 5 Filing a Complaint Table 5.2: Time limit for the first-tier review body to render a decision Legal time limit for the first-tier Country Time in practice to render a decision review body to render a decision Afghanistan 7 days 7 days Chile 10 working days from the end of the Highly variable, from 10 to 120 days or probatory stage even more Ghana Within 21 days after submission of the It could take up to two months because complaint of delays in submission of documentary evidence by the procuring entity Jordan No time limit stated in the law On a case-by-case basis, time may vary widely depending on the facts Mexico 10 working days at the Mexico City level; Depending on the difficulty of the case, 15 working days at the federal level the time ranges from one to eight months, with an average of 80 days Sweden No time limit stated in the law Generally two months, according to statistics from the Swedish Competition Authority Thailand No time limit stated in the law Depends on the authority in question; most reply within 30 days of receipt of a complaint Turkey 10 days following the filing of the Usually within 10 days; however, many complaint cases do not comply with the legal period; and the complainant can then directly appeal to the Public Tender Authority (second-tier review) Uganda 15 working days after receipt of the 15 working days application United Statesa The bid protest rules of the Government GAO strives to release its protest Accountability Office (GAO) specify decisions within 100 days following a a 100-day time limit for the decision protest following the filing of a protest Source: Benchmarking Public Procurement 2015 a. In the United States, most protests are filed with the GAO, because it is generally less expensive and faster to do so than to protest to other forums. Additional findings show that FAR 33.103(g) requires agencies to “make their best efforts” to resolve agency protests within 35 days after receipt and this legal limit is usually respected in practice. Our findings also show that there is no time limit for protests presented to the Court of Federal Claims and decisions may take up to 6 months to be issued. There is usually a correlation between the length Suspension of the Procurement Process of time the review body has and the suspension Suspending the procurement process upon of the procurement (Gordon, 2006, 11). Where receipt of a complaint or protest is a potentially a review body rules on protests quickly (e.g., in fraught response in that the protesting supplier Uganda, where the statutory limit is 15 days), might be trying to halt the procurement process the granting of automatic interim relief may be in bad faith. For example, suppliers in Sweden, viewed as not imposing too heavy a burden on Uganda, and the United States can automatically the procurement system; in cases where the trigger a suspension of the procurement process review process takes longer (e.g., in the United simply by filing a complaint. States where the review period is 100 days), an Suppliers in several other countries cannot predict automatic suspension in every protest may be whether a suspension in response to a protest is viewed as disruptive to the procurement system, guaranteed. In Chile and Jordan, depending on the which leads to the next key data point, the sus- circumstances, the procurement process may be pension of the procurement process in the case suspended. In Ghana (according to Section 8.1.4, of a complaint. Suspension of Procurement Proceedings of the 64 Benchmarking Public Procurement 2015 Table 5.3: Cost of filing an appeal Country Cost of appeal Thailand If the plaintiff supplier is seeking damages, the fee to appeal amounts to 2% of • the damages sought, where the damages do not exceed THB 50 million (~US$1.54 million), capped at THB 200,000 (~ US$6,160). If the damages exceed THB 50 million, an additional 0.1% of the exceeding amount is • imposed. Turkey According to Article 53, for procurement of goods and services, the fee depends on the tender value as follows: For tenders whose estimated value is below TRY 500,000 (~ US$205,000), the fee is • TRY 3,000 (~ US$1,230) For tenders whose estimated value is between TRY 500,000 (~ US$205,000) and • TRY 2,000,000 (~ US$818,000), the fee is TRY 6,000 (~ US$2,460) For tenders whose estimated value is between TRY 2,000,000 (~ US$818,000) and • TRY 15,000,000 (~ US$6,152,000), the fee is TRY 9,000 (~ US$3,690) For tenders whose estimated value is above TRY 15,000,000 (~ US$6,152,000), the • fee is TRY 12,000 (~ US$4,920)” United States The fee depends on the forum of the protest and can range from no fee for complaints filed before the GAO to US$450 for complaints filed to the U.S. Court of Appeals for the Federal Circuit. Source: Benchmarking Public Procurement 2015 PPA Manual), the tribunal reviewing the complaint review bodies have the discretion to grant in the has the authority to suspend the procurement countries measured. process based on subjective criteria, that is, “if [a] complaint is likely to succeed, is not frivolous, Lessons Learned and Next Steps contains a declaration which demonstrates that The dataset for the Filing a Complaint topic the complainant will suffer irreparable harm if represents a first step toward answering ques- the suspension is not granted; and the grant of tions as to the existence and characteristics of suspension will not cause disproportionate harm complaint mechanisms in the selected countries. to the procuring entity or to other suppliers, Given the project’s pilot nature and its resource consultants or contractors.” constraints, not all factors considered pertinent to a transparent and effective complaint system Fee to Submit a Complaint were assessed. Although the data points do not The fee to submit a complaint depends on the provide a compliance checklist that measures country in which the complaint is filed and, in adherence to recognized global good practices, some instances, on the forum before which the it does cover fundamental areas that contribute protest is filed. Suppliers in Thailand, Turkey, and to the prevention and detection of irregularities. the United States, for example, have to pay a fee As the Benchmarking Public Procurement proj- to appeal a decision before the second-tier review ect evolves, the Filing a Complaint topic will be body (Table 5.3). refined and additional areas will be considered, such as the publication of complaints deci- Remedies Awarded by Review Bodies sions and the training of review body personnel. Once a protest is reviewed, four types of remedies Furthermore, additional questions covering the are commonly awarded by review bodies: modifi- use of electronic tools for submitting and pro- cation of the tender specifications; payment of cessing a review will be added and the issue of damages; cancellation of procurement decisions; post-award protest will be developed further. The and reassessment of bids and contract awards team also hopes to engage a growing number of to a new competitor. Depending on the country, questionnaire respondents, notably reaching out suppliers are granted a range of remedies. Figure to personnel from review bodies in the countries 5.1 illustrates the different types of awards that measured. 65 5 Filing a Complaint Figure 5.1: Range of remedies awarded to suppliers in cases of pre-award protest Modifications of the tender Payment of damages (including specifications protest cost and attorney fees) • Afghanistan • Turkey • Thailand • Chile • Uganda • Uganda • Mexico • United States • Sweden Cancellation of procurement Reassessment of offers and contract decisions award to new competitor • Afghanistan • Thailand • Afghanistan • Turkey • Ghana • Turkey • Chile • Uganda • Jordan • Uganda • Jordan • United States • Mexico • United States • Mexico • Sweden Source: Benchmarking Public Procurement 2015 Table 5.4: Standstill period to challenge the award decision Country Legal framework Afghanistan The legal framework does not provide for a standstill period. Based on the Procurement Law, 2008, after the announcement of the winning bidder the unsuccessful bidders have the right to challenge the decision of the award within 10 working days and the review decision must be made within seven days (by the procurement authority) or 10 days (by the Administrative Review Committee). (Rule of Procedure No. 170(2) & 172(1) of Rules of Procedure, 2009, Article 16(2)(a)(ii) & 27(1) of the Manual of Procedures for Appeal and Review, 2010). Chile Law No. 19-886 mandates that the complaint (action for annulment) must be filed within 10 working days counted from the knowledge of the act or omission claimed. Nevertheless, the action for annulment does not suspend the public tender. Ghana Article 82 of the Public Procurement Act, 2003, only mentions suspension of the procurement proceedings “where review proceedings are initiated.” No standstill period per se. Jordan There is no standstill period per se. However, Articles 59 and 60 of the Instructions No. 1, 2008, state that when the announcement of the winning bidder is made, any bidder may challenge the decision within four working days. Article 59 also states that the central Tender Committee may reduce the four days to two working days in exceptional circumstances. 66 Benchmarking Public Procurement 2015 Country Legal framework Mexico At the state level (Distrito Federal), according to Article 88 of the Law of Acquisitions for for Federal District, 2008, there is a period of five working days from the day following the notification of the act or decision being challenged, or that the applicant is aware of it. At the Federal level, the company would have six business days counted from the last clarification meeting to object to tender rules (Article 65 of the Federal Law on Acquisitions, as amended in 2012). Sweden There is a standstill period in Sweden to allow unsuccessful bidders to challenge the decision between the announcement of the winning bidder and the beginning of the contract. If the award notification is sent by electronic means, the standstill period is 10 days from the day of notification. If the notification is sent to one or more candidates or tenderers in a manner other than by electronic means, an agreement may not be concluded before 15 days have elapsed from dispatch. Thailand The regulatory framework of Thailand does not provide for a standstill period per se. According to Section 42 of the Administrative Procedure Act, 1999 (Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542, 1999, as amended by the Amendment (No. 2) B.E. 2545, 2002), an application to the Administrative Court may only be made after a final determination is rendered by the respective administrative agency according to their internal policies and procedures. Following their final determination, Section 49 provides that the aggrieved bidder must file an application to the court within 90 days of receiving such final notification. Turkey Generally, the standstill period is 10 calendar days following the notification of the tender result to each bidder. According to Article 55 last para of the Public Procurement Law, 2002, the procurement contract may not be signed until 10 days have passed. However, in tenders that involve negotiation, (i) if there is an emergency due to an imminent and unforeseen event such as danger to life or to property, natural disasters and epidemics etc., or (ii) if there is a special condition regarding the defense and security, such period is five calendar days. Uganda Generally the standstill period is 10 days except for: (a) micro-procurement; (b) direct procurement; or (c) procurement in emergency situations, irrespective of the procurement method used. United In the case of a protest filed before the Government Accountability Office (GAO), Section States 21.2 of the GAO rules state that there is a 10-day period starting on the day contract award is announced, but this may be delayed if the protester has timely asked for a debriefing. The period starts again on the day that the debriefing is given to the protester. One effect of this rule is that it gives unsuccessful tenderers the legal right to submit bid protests several days following announcement of award to a competitor. This is not, strictly speaking, the “standstill period” discussed, but it bears some functional similarities. Source: Benchmarking Public Procurement 2015 67 5 Filing a Complaint Table 5.5: Choice regarding the authority before which to file a complaint Country Legal framework Afghanistan The protester does not have a choice and must file its pre-award complaint to the head of the procuring entity as a first-tier review body (Rule of Procedure No. 170(2) & (3) of Rules of Procedure, 2009 /Article 16(2) of the Manual of Procedure, 2010). Chile According to Law No. 19-886, Article 24, if the claim is filed to condemn the illegitimacy or arbitrariness of an act that occurred between the bidding term’s approbation and the contract’s awarding, the protester must file his/her complaint before the Public Procurement Tribunal. Otherwise, the protester can choose between filing the complaint before the General Comptroller of the Republic and before ordinary courts. Ghana According to Article 79 of the Public Procuremeent Act, 2003, the complaint must first be filed with the Head of the Procurement Entity, after which the protester may go to the Public Procurement Board for appellate review. However, according to Article 80 of the Act, the complainant may submit the complaint to the Board if the Head of the Procurement Entity will not entertain the complaint because the procurement contract is already in force. Jordan Complaints should be lodged before the chairman of the Central Tender Committee (Article 60 of Instructions No. 1, 2008) Mexico At the state level, the protester must first file a complaint before the Federal District Comptroller’s Office. (Article 88 of the Acquisitions Law for the Federal District, 1998). If unsatisfied, an appeal must be filed before the Administrative Tribunal of the Federal District (Article 108 and 128 of the Law of Administrative Procedure of the Federal District). At the Federal Level, and according to article 65 of the Federal Law on Acquisitions, as amended in 2012, the first-tier review must be filed before the Ministry of Public Administration, which is the competent agency to deal with complaints against acts of public procurement procedures (Federal Level). If unsatisfied, the protester must file an appeal before the Federal Court of Fiscal and Administrative Justice according to Article 14 of the Organic Law of the Federal Court of Fiscal and Administrative Justice. Sweden The protester does not have a choice and must file a complaint to the administrative court in whose judicial district the contracting authority is based (under Chapter 16, Article 2). Thailand The protester can file a complaint via two different routes. The first complaint mechanism can be summarized as follows: 1) Appeal the decision of an unsuccessful bid in accordance with the relevant administrative agency’s (procuring entity in the case of an administrative contract) internal rules and regulations, for a final determination. 2) Following a final determination, the grieved bidder may make an application to the Administrative Court of First Instance. 3) Should the grieved bidder not agree with the decision of the Administrative Court of First Instance, he/she may submit an appeal application to the Supreme Administrative Court [Permitted under Sections 11(4) and 73]. The second complaint mechanism is according to the Supreme Administrative Court Order No. Ror. 372/2552, which states that the injured party may directly file a suit with regards to the Tender Documents with the second-tier review body, i.e., the Administrative Court of First Instance, without first appealing to the first-tier review body, i.e., the procuring entity. Turkey The protester does not have a choice and is required to first file a complaint before the procuring entity (contracting authority). If the complaint is rejected, he/she can file an appeal before the Public Procurement Authority (”PPA”), which is an independent administrative body. The complaint and appeal applications are the mandatory administrative legal remedy to be exhausted before filing a lawsuit at a judicial court. Article 54 of the Public Procurement Law, 2002, states that: “Complaint applications shall be submitted to the contracting authority and appeal applications shall be submitted to the Authority through signed petitions.” 68 Benchmarking Public Procurement 2015 Country Legal framework Uganda The protester does not have a choice and is required to file a complaint according to Art. 90(1) of the PPDA Act, 2003, before the Accounting Officer at first instance. The protesting party would first lodge the complaint with the procuring and disposing entity which, in this case, is the local authority in Kampala. If the protester is not happy with the outcome, he/she is free to raise the complaint with the Public Procurement and Disposal of Public Assets Authority (PPDA). In case the bidder is not happy with the decision, they then lodge a complaint to the Inspectorate of Government (IGG). There is a PPDA review tribunal which has been recently created and can be used after the PPDA process. United There is no firm rule about where a tenderer will most likely first file a complaint. In States practice, most protests are filed with the GAO, because it is generally less expensive to do so than a protest to the Court of Federal Claims (CoFC). More so, decisions are rendered by GAO much sooner. Complaints to the Agency (the Contracting Officer) are the least expensive to pursue and responses are generally very quick in coming. However, many tenderers probably believe that Agency protests are less likely to be successful. There is no data to validate or refute this perception. Considering a complaint to be filed according to the NYC Rules (Exhibit 1), depending on the nature of the specification and challenge thereto, the protester also has the right to file a complaint with a judicial court. Source: Benchmarking Public Procurement 2015 Table 5.6: Limitations to the right of appeal Country Limitations Afghanistan The bidder must appeal within the specified time limits, which is 10 days. Also, the bidder must use the right forms (Rule of Procedure No. 170(4) / Article 16(2)(a)(iii) of the Manual of Procedures, 2010). Chile There is no limitation to the right of appeal. A complaint may be filed against any illegal or arbitrary act or omission that takes place during a tendering process, from the approval of the bidding specifications to the award of the contract, inclusive of both these actions. Ghana Article 78 of the Public Procurement Act, 2003, states that the following shall not be subject to a review: (1) Selection of a Procurement method (section 35-43); (2) Choice of selection procedure section 75(6); (3) Decision to reject tenders; (4) Limitation of procurement proceedings (section 44). In addition, the right to appeal is reserved for suppliers, contractors or consultants actively engaged in the procurement process. The protester must also assert that he/she has suffered or may suffer loss or injury due to a breach imposed on the procuring entity. Jordan N/A Mexico There is no limitation to the right of appeal. Sweden The Administrative Court of Appeal must grant a leave to appeal in order to adjudicate the appeal. It will be granted on the conditions specified in procedural legislation. The plaintiff needs to be a potential bidder, not a subcontractor. The plaintiff has to prove that the error resulting from the complaint has caused, or risks causing him/her, economic damage. The complaint has to be filed within certain time limits; an award contract may not have come into effect. (continued) 69 5 Filing a Complaint Table 5.6: Limitations to the right of appeal (continued) Country Limitations Thailand In order to have the right to appeal the bidder must demonstrate standing, i.e., be an injured party. Turkey Appeal may be made by the party which has filed the initial complaint with the procuring entity, by any other bidder, by a potential bidder or interested party. Appeal must be made prior to the contract being signed in compliance with the terms of the law. Appeal is limited to the arguments raised by the initial protester and the bases of the decision made by the procuring entity, as well as to whether the principle of equal treatment has been violated. The procuring entity makes the necessary review on the complaint application and takes a reasoned decision within 10 days following the complaint application. The decision shall be notified to the protester and to other candidates, bidders or potential bidders within three days of the date of the decision. In cases where a decision is not taken in the specified period, the protester may submit an appeal application within 10 days of the expiry of the decision period; in cases where the decision is not deemed appropriate, the candidates, bidders or potential bidders including the protester may submit an appeal application to PPA within 10 days of the notification of the decision by the procuring entity. Final decisions of PPA can also be challenged before an administrative court within 30 days of the protester’s receipt of the decision (Article 20/A of the Administrative Jurisdic- tion Procedural Law). Uganda Regarding the complaint before the procuring entity, Article 89 of the PPDA Regulations, 2003, states that “a bidder may seek administrative review for any omission or breach of the Act, these Regulations, the guidelines, the provisions of bidding documents or best practices, by a procuring and disposing entity.” In addition, Regulation 4(1) states that “a bidder who is aggrieved by a decision of a procuring and disposing entity shall make a complaint to the Accounting Officer.” The right of appeal before the PPDA is not limited to specific conditions either. According to Article 347(1) of the PPDA Regulations, 2003, a bidder may submit an application for administrative review to the Authority where an accounting officer does not issue a decision within 15 working days or the bidder is not satisfied with the decision of an accounting officer. United In case of a protest to GAO: within 10 days of actual or constructive knowledge of initial States adverse agency action (3 CFR 21.2(a)(3). In case of a protest before Court of Federal Claims: the right to appeal to a judicial court is subject to standing and jurisdiction. Source: Benchmarking Public Procurement 2015 Table 5.7: Methods available for filing a complaint before the first-tier review body Country Methods available Afghanistan Although the Procurement Law, 2008, the Rules of Procedure, 2009, and the Manual of Procedures, 2010, provide which documents and information the Application (complaint) must contain, they do not specify the various methods available to the protester to submit the Application. Chile Complaints must be filed in person or through a local representative of the protester. Ghana Complaints must be filed in person or sent by courier mail. The complaint must be filed in writing. 70 Benchmarking Public Procurement 2015 Country Methods available Jordan Complaints must be filed by sending an official letter addressed to the bureau department at the PPD or in any other way that the PPD may deem fit. Complaint can also be filed by fax. Through the procuring entity website, an email can also be sent. Mexico Complaints can be filed in person. Only complaints at the Federal level can be filed online through CompraNet (Article 66 of the Law on Acquisitions, Leases and Services of the Public Sector (published on January 4, 2000). Sweden The protester may file his/her complaint before the first-tier review body in person, by courier service, by fax, online or by email. The bidding documents should be in writing, therefore, the complaint may be filed by email or fax. It is not possible to file a complaint by phone. In addition, if the protester is represented by an attorney, the courts in general demand that an original copy of a power of attorney be filed. Thailand Complaints must be filed in person or sent by courier service. Turkey The protester may file a complaint in person or by courier service. Uganda The protester may file a complaint in person or by courier service. United The protester may file a complaint in person, by courier service, by phone as well as online. States Complaints to the Agency or the GAO can be sent by postal mail. The GAO and procuring agencies also accept facsimile complaints. Complaints to the CoFC may be filed electronically, in person, or with the Clerk of the court by a representative of the protestor. Source: Benchmarking Public Procurement 2015 Additional procedures, time, and cost to file a complaint before the first-tier review body Table 5.8:  Country Procedures Afghanistan According to article 16.3 of the Manual of Procedure, 2010, the Application shall be submitted with the following documents: (a) A completed Application for Review in prescribed form; (b) Copies of any documentary evidence relied upon in support of the claim set out in the application; and (c) Where the request is made by an agent of the bidder, an appropriate power of attorney. Chile There is no additional procedure. Ghana There is no additional procedure. Jordan The protester must submit a hard copy of the complaint or the notes by referencing the tender number via regular mail and/or by fax. Mexico There is no additional procedure. Sweden In order to finalize his/her complaint, a hard copy of the complaint signed by an authorized firm representative must be filed to the court, even if the complaint is filed by e-mail or fax. Thailand There is no additional procedure. (continued) 71 5 Filing a Complaint Additional procedures, time, and cost to file a complaint before the first-tier review body Table 5.8:  (continued) Country Procedures Turkey To finalize its complaint, the protester must prepare and submit a hard-copy of the complaint petition together with the authorization documents and signature circulars of the protester, if not already submitted during bidding process (Article 54 of the Public Procurement Law, 2002). Uganda To finalize his/her complaint, the protester should: (i) Submit documentary or other evidence supporting the complaint where available; (ii) Send a copy to the PPDA. According to Article 345 of the PPDA Regulations, 2003, the application for administrative review shall include: (a) Details of the procurement or disposal requirement to which the complaint relates; (b) Details of the rule or provision which has been breached or omitted; (c) An explanation of how the rule or provision has been breached or omitted, including the dates and name of the responsible public officer, when known; (d) Documentary or other evidence supporting the complaint when available; and (e) Any other information relevant to the complaint. (3) The application for administrative review shall be accompanied by payment of a prescribed fee in accordance with the guidelines of 2008: Guideline 5/2008 lists the following applicable fees for administrative reviews: “In accordance with Regulation 138 (3) of the Local Governments (Public Procurement and Disposal of Public Asset) Regulations 2006, the following fees shall be charged for all applications for administrative review. Administrative Review Fees—The fee to be paid varies between 15 Currency Points (equivalent to UGX 300,000) and 50 currency points (equivalent to UGX 1 million). In addition, the accounting officer reviewing the complaint shall refund the Administrative Review Fee to a bidder whose application is upheld on completion of the Administrative Review process.” United The rules vary depending on the forum. Agency protests must contain the information States listed at FAR 33.103(d)(2). The GAO has different rules for specific types of complaints. Protests must contain the information listed at Section 21.1(c) of its Bid Protest Regulations (See, Title 4, Code of Federal Regulations, Section 21.1). The protester shall furnish a complete copy of the protest to the procuring agency (FAR 33.104(a)(1) / 4 CFR 21.1(e)). If not, the GAO may dismiss the protest (FAR 33.104(a)(1) / 4 CFR 21.1(i)). Once the protest is filed, a copy of the protest must be presented to the procuring entity’s Contracting Officer within one day from the time the protest is presented to GAO. Complaints filed with the CoFC must comply with its Rules in both format and content. Once a complaint is filed before the CoFC, the clerk serves a copy of the complaint on the agency’s designated representative for accepting service of civil law suit complaints (often a representative of the United States Department of Justice). There is no filing fee for bid protests filed with the Agency or GAO. The CoFC charges a filing fee for all litigation commenced before the court. The filing fee of the CoFC is US$400. However, an indigent litigant may file an “Application to Proceed In Forma Pauperis” with the Court. For complaints filed under NYC Rules, the protester is required to send a copy of the protest to the Agency Chief Contracting Officer (the ACCO) and the New York City Comptroller, Office of Contract Administration. Source: Benchmarking Public Procurement 2015 72 Benchmarking Public Procurement 2015 Table 5.9: Suspension of the procurement process in case of a complaint Country Afghanistan There is no suspension of the procurement process stipulated in the Procurement Law, 2008, the Rules of Procedure, 2009, and the Manual of Procedures, 2010. Instead, the decision must be made within seven days by the procuring entity or 10 days by the Administrative Review Committee. (Rule of Procedure No. 171(2) &172 (1) of Rules of Procedure, 2009 /Article 16(2)(a)(ii) of the Manual of Procedure, 2010). Chile Depending on the circumstances, the procurement process might be suspended. The Public Procurement Court has the authority to suspend the procurement procedure, through a reasoned decision. Ghana Depending on the circumstances, the procurement process may be suspended. According to Section 8.1.4, suspension of procurement proceedings of the Manual, 2003, when a complaint is filed, the procurement proceedings must be suspended for seven days if the complaint possesses certain conditions (such as not being frivolous or being likely to succeed, etc.). If the procurement contract has entered into force at the time of submission of a complaint, the suspension may be extended for up to thirty days to preserve the rights of a supplier, consultant, or contractor who is a party to the review. Jordan Depending on the circumstances, the procurement process may be suspended. If the Director General of the General Tender Committee or the Secretary General of any public or governmental department deems that the complaint is on just grounds and requires research and amendment towards the bidding documents, then the procurement process may be suspended. Mexico The mere filing of the complaint does not trigger the suspension itself. The procurement process may be suspended upon the application of the party appealing (on the notice of appeal). A request must be filed to suspend the procurement process, and if applicable, a guarantee must be provided that covers any damages caused by the suspension (Mexico City). At the federal level, it is possible to trigger a suspension of the procurement process. According to Article 70 of the Federal Law on Acquisitions, as amended in 2012, the suspension in the procurement process may be granted if the bidder makes a request in the administrative appeal. It is important to note that the body hearing the complaint will only grant the suspension if it considers that there might be a violation of the provisions of this Act or related laws, unless granting the suspension would cause prejudice to society at large or contravene public policy. Sweden The process is suspended if a complaint is filed (Chapter 16 section 8 2007:1091 Public Procurement Act; Chapter 16 section 8 2007:1092 Act on Procurement in the Water, Energy, Transport, and Postal Services Sectors). Thailand The process is not suspended if a complaint is filed and there are no additional step(s) that trigger a suspension of the procurement process. Turkey It is compulsory for the procuring entities to conclude such complaint applications before the procurement date or deadline for the application. In cases where material defects, technical defects, deficiencies which could affect tender preparation or fulfilment of the work during the review following the complaint are detected and the tendering authority considers a correction on the tender documentation, the application deadline or tender date can be postponed once. In addition, the contract may not be signed unless 10 days have passed (i) from the final notification date of the decision where an application to the procuring entity exists, or (ii) from the expiration date for taking a decision where no decision is taken. There may also be a stay of action by court. The Procurement Agreement cannot be signed until a decision is adopted by the PPA regarding the objection of the protester (Second Tier). (continued) 73 5 Filing a Complaint Table 5.9: Suspension of the procurement process in case of a complaint (continued) Country Uganda Article 343(2) of the PPDA Regulations, 2003, states that “where a procurement requirement is subject to administrative review by either a procuring and disposing entity or the Authority, a contract document, purchase order, letter of bid acceptance or other communication in any form conveying acceptance of a bid, that binds a procuring and disposing entity, shall not be issued prior to completion of the administrative review process.” Therefore, an administrative review does trigger a suspension of the procurement process. United According to FAR 33.103(f), protests to the Agency will normally require delay to award of a States contract, unless a waiver is approved by an official superior to the Contracting Officer. According to FAR 33.104(b)(1)&(2), protests to GAO, if made prior to award, require the agency to suspend the award, unless special permission is given in a written finding, made by a senior procurement official of the agency, allowing the Contracting Officer to continue with award on the basis of urgent and compelling circumstances which significantly affect the interest of the United States that will not permit awaiting the decision of the GAO, and award is likely to occur within 30 days of the written finding, and GAO is notified of the written finding. In practice, overrides of the automatic suspension feature in GAO bid protests is not often sought or obtained by federal agencies. There are no automatic stays to contract formation or performance associated with bid protests presented to the CoFC. However, the CoFC has statutory authority to issue injunctions against continued government processing of tender actions, or performance of awarded contracts. Source: Benchmarking Public Procurement 2015 Table 5.10: Legal time limit for the first-tier body to render a decision Country Afghanistan The first-tier review body must issue its decisions within seven days. Chile The first-tier review body must issue its decision within 10 business days from the end of the probatory stage. Ghana The first-tier review body must issue its decision within 21 days after submission of the complaint (according to article 79). Jordan There is no statutory time limit during which the first-tier review body must render a decision. Mexico At the state level, the first-tier review body must render its decision within 10 working days (According to Article 120 of the Law of Administrative Procedure of the Federal District). At the Federal level, the “recurso de inconformidad” time limit is 15 business days once all evidence has been rendered and heard by the general comptroller or by the Ministry of Government Affairs (Article 72 of the Federal Procurement Law). Sweden There is no legal time limit for the first-tier review body to render a decision. Thailand There is no legal time limit for the first-tier review body to render a decision. Turkey The first-tier review body must issue its decisions within 10 calendar days following the filling of the complaint. Uganda The accounting officer must issue its decision in writing within 15 working days after receipt of the application according to Article 364(4) of the PPDA Regulations, 2003. 74 Benchmarking Public Procurement 2015 Country United The FAR 33.103(g) requires agencies to “make their best efforts” to resolve Agency protests States within 35 days after receipt. GAO’s bid protest rules specify a 100 day time limit for decision following filing of the protest (See, Title 4, C.F.R., Section 21.9(a)), or within 65 days under the express option (FAR 33.104(f)). There is no time limit for decisions on protests presented to the CoFC. Under NYC Rules, the Agency Head’s determination with respect to the merits of the protest shall be mailed to the protesting vendor and the selected vendor (if any) within 30 days of receipt of the protest documents. Source: Benchmarking Public Procurement 2015 Table 5.11: Remedies awarded by review bodies Country Afghanistan The first-tier review body can grant the cancellation of procurement decisions and the reassessment of the bids and contract award to a new competitor. Chile The first-tier review body can grant the modification of the tender specifications and the reassessment of the bids and contract award to a new competitor. Ghana The first-tier review body can grant the modification of the tender specifications, payment of damages, cancellation of procurement decisions as well as the reassessment of the bids and contract award to a new competitor. Jordan The first-tier review body can cancel the procurement decisions as well as the reassessment of the bids and contract award to a new competitor. Mexico The first-tier review body can grant the modification of the tender specifications, the cancellation of procurement decision and the reassessment of the bids and contract award to a new competitor. Sweden The first-tier review body can grant modification of the tender specifications and the cancellation of procurement decisions. If the Administrative Court finds, e.g., that a criterion in the tender specifications contravenes the general principles or the LOU, 2007, the Court can pronounce a judgment with the meaning that the tender specifications shall be modified. See Chapter 16, Article 4 of the Public Procurement Act, 2007:1091 and Chapter 16, Article 4 of the Act on Procurement in the Water, Energy, Transport and Postal Services Sectors, 2007:1092 (LUF, 2007). In theory, a protester may bring action for damages for costs related to reliance damages or culpa in contrahendo. It should be noted that an action for damages shall be brought before the District Court and not the Administrative Court, see Chapter 16 Article 21 of the LOU, 2007 and Chapter 16, Article 21 of the LUF, 2007. Thailand The first-tier review body can grant modification of the tender specifications, the cancellation of procurement decisions and the reassessment of the bids and contract award to a new competitor. (continued) 75 5 Filing a Complaint Table 5.11: Remedies awarded by review bodies (continued) Country Turkey According to Article 54 of the of the Public Procurement Law, 2002, the first-tier review body can grant the modification of the tender specifications, the cancellation of procurement decisions and the reassessment of the bids and contract award to a new competitor. The procuring entity is entitled to take a corrective action (which includes reassessment of the bids and contract award to a new competitor) where it is not necessary to interrupt the procurement process. Uganda According to Article 346(4)(c) of the PPDA Regulations, 2003, the accounting officer can take any corrective measures without specifying these measures. This would include the modification of the tender specifications, the payment of damages, the cancellation of procurement decisions and the reassessment of the bids and contract award to a new competitor. United In case of protest before GAO, the office can recommend termination and re-solicitation States of erroneously awarded contracts, award to the protestor in lieu of award to another contractor, and payment of a protester’s bid protest costs and attorney’s fees. GAO does not award monetary damages, however. The CoFC has been given the power to issue injunctive relief for bid protests—for example when the protester seeks the court’s intervention to prevent the government from awarding a contract to another tenderer. However, the CoFC can only award tender preparation and bid costs as monetary damages to the tenderer. When a complaint is presented to the Agency, either prior to receipt of bids/proposals or after award of a contract, the protest decision official is required to provide a written response to the protester, either denying his protest or taking some type of corrective action regarding the tender procedure in light of the complaint (remedy not enumerated in the FAR). Source: Benchmarking Public Procurement 2015 Table 5.12: Time limit to appeal the decision of the first-tier review body Country Afghanistan The protester must appeal the decision of the first-tier review body within 10 days. Article 16 of the Manual of Procedures, 2010: Submission of the application for review states that: (iii) the decision of, or the failure to decide within the required time by the head of the procuring entity may be appealed to the Administrative Review Committee within 10 working days after either the decision or the expiry of the time for issuing the decision (according to Rule 172 of the Rules of Procedure 2009). Chile The protester must appeal the decision of the first-tier review body within five business days counting from the ruling notification (i.e., excluding Sundays and Chilean national holidays). Ghana According to Article 79 of the Public Procurement Act, 2003, the protester must appeal the decision of the first-tier review body to the Board within 20 business 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. Jordan N/A Mexico The protester must appeal the decision of the first-tier review body within 15 business days of the ruling notification. 76 Benchmarking Public Procurement 2015 Country Sweden If the procurement documents are challenged and a judgment is pronounced during the procurement procedure, the appeal before the Administrative Court of Appeals must be filed within 21 days from the day the appellant was served, see Section 6a of the Administrative Court Procedure Act, 1971:291. If the award of contract is challenged (i.e., after the procurement procedure), the appeal before the Administrative Court of Appeals must in practice be filed within 10 days from the judgment of the Administrative Court, i.e., during the 10-day standstill period. After the 10-day period, the procuring entity may enter into contract, precluding the possibility to challenge the award. Thailand The protester must appeal the decision of the first-tier review body within 90 days, in accordance with Section 49 of the Act on Establishment of Administrative Court and Administrative Court Procedure B.E. 2542. Turkey According to Article 55, para. 4 of the Public Procurement Law, 2002, in cases where a decision is not taken by the first-tier review body in the specified period by law (10 days), the protester may submit an appeal application within 10 days following the expiration of the decision period granted to the first-tier review body without rendering a decision or notification of the first-tier review body’s decision. In cases where the decision of the first-tier review body is not deemed appropriate, the protesters may submit an appeal application to the PPA within 10 days following the notification of the decision by the contracting authority (first-tier review body). In addition, Article 56 of the Law states that the appeal of decisions and proceedings related to the cancellation of a tender should be submitted directly to the PPA within a period of five days. Uganda According to Article 347(2) of the PPDA Regulations, 2003, “an application to the Authority for administrative review shall be submitted within 10 working days after the date of the decision by an accounting officer or the date by which an accounting officer should have issued a decision.” United No formal appeal process exists for Agency or GAO protests. There are no time limits States specified. However, practical time limits exist. For example, a tenderer may file a protest with the GAO following receipt of an adverse decision from a timely filed Agency protest, but must do so “within 10 days of actual or constructive knowledge of initial adverse agency action” (see Title 4, Section 21.2(a)(3)). A tenderer may file the same protest with the CoFC after losing the protest before the GAO. There is no time limit for filing the protest. However, as a practical matter, the sooner the protest is filed with the CoFC, the greater the chance that the protester will be able to obtain a CoFC restraining order or preliminary injunction against continued tender processing (pre-award) or contract performance (post-award). An appeal of a CoFC decision on a bid protest must be filed with the Court of Appeals for the Federal Circuit (CAFC) within 60 days from the date of entry of the CoFC’s judgment or order under the bid protest proceedings it tried. The CAFC is the only, true second instance body that has been given appellate jurisdiction over bid protest decisions under the United States federal procurement system. Source: Benchmarking Public Procurement 2015 77 5 Filing a Complaint Table 5.13: Procedures, time, and cost to appeal the decision before the second-tier review body Country Afghanistan The appeal application is registered in the Register of Applications for Review, after which a clerk is assigned to the complaint (Article 16 and 17 of the Manual of Procedures 2010). The Secretariat must verify whether it is in the prescribed form and complete (Article 18 of the Manual of Procedures, 2010). The applicant is notified if the application is found in order, and the respondent (procuring entity against which the complaint is lodged) is notified. The Review Board is established and is charged with reviewing the Application (Article 18 (5) of the Manual of Procedures, 2010. The protester must be notified immediately that his/her appeal is filed (1 day). Article 19 of the Manual of Procedures, 2010, states that: “(1) Upon registration and scrutiny that the Application is in order, the Secretariat shall immediately notify the Respondent procuring entity against whom the Application for Review has been made. The notice shall be in prescribed Form and shall include a complete copy of the Application. (2) Such notification shall ordinarily take place at the latest the day following the submission of the Application.” Regarding cost, although Article 5(j) of the Manual of Procedures, 2010, mentions a fee to submit an application for review (without stating an amount), contributors indicated that there is no fee for the second-tier review. However this does not include the fee of hiring a legal counsel to proceed with the complaint. Chile The protester must file his/her appeal before the Court for Public Contracting within five business days from the notification of the final ruling. According to Article 26, the ruling on the appeal must be delivered within 10 business days of the reception of the case. There is no cost to file the appeal. The appeal must be signed by a lawyer (his fees are determined freely by mutual agreement between the lawyer and the client). Ghana The protester may seek an administrative review by submitting a complaint in writing to the Public Procurement Board, which is the second-tier review body. The Board must issue its decision within 21 days from receipt of the complaint. Filing a complaint before the Public Procurement Board is free of charge (apart from printing and postage-related costs). Jordan N/A Mexico At the state level, an annulment statement of complaint can be filed before the Tribunal Contencioso or Administrative Tribunal of the Federal District. At the federal level, an appeal with a ‘recurso de revision’ can be filed before the Tribunal Federal Contencioso Administrativo, which is limited in scope, or an appeal can be filed before the Federal Court of Fiscal and Administrative Justice (Tribunal Federal de Justicia Fiscal y Administrativa). It takes one day to file the appeal. The exact term of the trial depends on the case but could take as long as 180 days. There is no cost to file the appeal. Sweden The appeal shall contain a claim for interim measures in order to further suspend the procurement process. This claim must be filed with the court within 10 days from the judgment. If the procurement documents are challenged and a judgment is pronounced during the procurement procedure, the appeal before the Administrative Court of Appeal must be filed within three weeks (21 days) from the day the appellant was served. The time between filing an appeal and the court granting leave to appeal is approximately 24 days. The time between the court granting leave to appeal and pronouncing a written judgment is approximately 80 days. Furthermore, the appeal shall contain a claim for leave of appeal and the grounds on which the judgment by the first-tier review body should be changed. There is no cost for filing an appeal. Thailand The protester must file a case to the Administrative Court within one day. The process is free if the protester is not seeking damages. If the company is seeking damages, the cost will be 2% of the damages sought, where the damages do not exceed THB 50 million (~ US$1,515,000), capped at THB 200,000 (~ US$6,063). If the damages exceed THB 50 million, an additional 0.1% of the exceeding amount will be charged. 78 Benchmarking Public Procurement 2015 Country Turkey Appeal is filed before the PPA with a signed petition, together with the authorization documents and signature circulars of the company filing the complaint, if they have not already been submitted during the bidding process. Appeal is filed either after a first-tier decision is rendered or after the time for such review has elapsed. Appeal must be taken before the contract is signed in compliance with the law. Decisions to invalidate tenders may only be appealed if they have been rendered in response to a complaint or an appeal. In such petition, the legal and technical grounds of the objection should be presented along with supporting documents. Per Article 55 of the Public Procurement Law, 2002, appeal before the second-tier review body should be made within 10 days following the expiration of the decision period granted to the first-tier review body (which is 10 days plus 3 days for delivery of the decision). Furthermore, the PPA must render its decision within 20 calendar days after the tender and the necessary documents are filed. For emergency tenders and for reviews of decisions to invalidate tenders, the time to render a decision is limited to 10 business days. Cost of Appeal: A. Procurement tenders: cost varies in goods and services procurement [from TRY 1,336 (~US$579) to TRY 4,013 (~US$1,739), in addition to TRY 5,344 (~US$2,316) for application security] depending on the value of the tender; and in construction tenders [between TRY 1,059 (~US$459) to TRY 5,354 (~US$2,320)] depending on the value of the tender. Uganda The protester should file an application to the second-tier body (the Authority) within 10 working days of the decision by an accounting officer. According to Article 347(6) of the Regulations, 2003, the Authority shall issue its decision in writing within 21 working days after receipt of the application. Cost varies between UGX 300,000 (~US$108) and UGX 1 million (~US$ 359) depending on the type of bidding. United Appeals to Agency bid protest decisions may take the form of filing a de novo protest States before the GAO or the CoFC. The procedure is filing the de novo protest. There is no cost for filing a protest to the GAO. Filing a protest with the CoFC may cost US$400. The protester must serve (notify) the procuring entity of the appeal (RCFC Rule 5). Appeals to the CAFC must follow the CAFC’s Rules of Practice (See, http://www.cafc. uscourts.gov/images/stories/rules-of-practice/rules.pdf). The appeal must be filed with the CAFC’s Clerk and be in a format that complies with the Rules of Practice. Appeals to the CAFC cost a minimum of US$450. Appellant must show harm in decision and a violation of discretionary authority. Under NYC Rules, an appeal must be filed within 30 days from the service of the judgment or order appealed and written notice of its entry. The fee for filing a notice of appeal is US$30. In addition to filing the appeal, the protester must have someone who is over the age of 18 and not a party serve a copy on the procuring entity. Such service may be by mail or in person. The server must fill out the Affidavit of Service form and have it notarized. (www.nycourts.gov/courts/nyc/civil/fees.shtml ) Source: Benchmarking Public Procurement 2015 79 5 Filing a Complaint Table 5.14: Suspension of the procurement process during appeal proceedings Country Afghanistan The process is not suspended until the protester’s right of appeal expires and there are no additional step(s) within the right of appeal period that could trigger suspension of the procurement process. Chile The Public Procurement Tribunal (Law No. 19-886, Article 25, second paragraph) and the Court of Appeals (Law 19-886, Article 26, third paragraph), as second-tier review bodies are entitled to order the suspension of the procurement process until they issue their respective judgments. The protester must specifically request the Tribunal for suspension, which is granted in approximately 4% of requests. Ghana Notwithstanding Article 82 of the Public Procurement Act, 2003, which states that when review proceedings are initiated, procurement proceedings may be suspended for 7 to 30 days, suspension on appeal is not automatic. For instance, the Procurement Entity may certify that urgent public interests exist to move the procurement process ahead notwithstanding the appeal. Jordan N/A Mexico The procurement process is not suspended during appeal proceedings. Sweden The plaintiff may request an interim standstill period until the court has resolved the case. The process is suspended if the Administrative Court of Appeal grants the interim measure by request of the appealing party. Thailand The process is not suspended if an appeal is filed and there is no special circumstance that triggers a suspension of the procurement process. Turkey The award contract may not be signed until after the appeal is resolved. Moreover, the procurement process may be suspended during an appeal process in the event there is public interest and suspension of the procurement process is requested by the appellant, in which case a stay of execution order must granted by the Administrative Court for the suspension of the procurements process. Uganda The procurement process is suspended during appeal proceedings. United Depending on the forum, the procurement process may be suspended during the appeal States proceedings: (i) Protest to GAO; (ii) Automatic stay (31 USC § 3553(c) & (d) / FAR 33.104(b) & (c) / 4 CFR § 21.6); (iii) Protest to COFC (Court of Federal Claims): No such suspension period: A protester must request a preliminary injunction separately (COFC Rule 65) and meet the standards for a preliminary injunction to obtain a stay. In the case of New York City Rules: the appellate court must enter an order in the claimant’s favor in a mandamus action or a temporary or permanent injunction to stay the procurement process pending the appeal. Source: Benchmarking Public Procurement 2015 80 Benchmarking Public Procurement 2015 Time limit for the second-tier review body to issue a decision Table 5.15:  (once hearings have taken place) Country Afghanistan Once the hearings have taken place, it takes in practice an average of 10-20 calendar days to issue a decision. Chile Law No. 19-886 (Articles 25 and 26) indicates a time limit to issue a written judgment, consisting of 10 working days. Nevertheless, this term may not be obeyed if the Court’s case load is high or if the particular matter is too complex. In practice, it can take up to 180 calendar days from conclusion of evidentiary period, which means approximately one year from filing of the claim. Ghana Article 79 of the Public Procurement Act, 2003, requires the Board to issue a written decision concerning the complaint within 21 days of starting the review, stating the reasons for the decision and the remedies granted. However, in practice, the Board of the Public Procurement Authority will resolve complaints and provide a ruling after two months of receipt of the complaint. A written judgment is provided within 5 days of the issue of the decision. Jordan N/A Mexico Between 90 and 180 days to issue the decision. Sweden Under the LOU, 2007, or any other related legislation, no time limit for the court to issue a written judgment is prescribed. According to a survey conducted by the Swedish Competition Authority, the average time for the court to pronounce a written judgment, counted from the day granting leave to appeal, is approximately 80 days. The average time for the court to pronounce a written judgment, counted from day the pleadings are finished, is approximately 30 days. Thailand Generally one may expect a written judgment to be delivered within 2-6 months. However it depends on several factors, such as the judge, the facts, the legal issues involved, and the complexity. If the case is not complex, the Court will typically render its judgment within 30 days from the day it has considered all the evidence. Turkey According to Article 56 of the Public Procurement Law, 2002, the second-tier review body is obliged to make the final decision on the appeal application within 20 days of the date on which the documents and information are recorded in the Authority Uganda It takes 21 days on average for the Authority to issue its decision, in keeping with the time limit stipulated in the law. United In case of protest to GAO, the GAO must issue a decision on a protest within 100 days States from the date of filing or within 65 days (FAR 33.104(f) & 4 CFR 21.9(a)). Protest to CoFC: There is no set rule as it varies. However, generally, it takes longer than GAO. Source: Benchmarking Public Procurement 2015 81 5 Filing a Complaint Request for removal of a public official from tender panel in case of a conflict of interest Table 5.16:  Country Afghanistan A protester is entitled to ask for removal of a public official from a tender panel based on Rule of Procedure, 2009, No. 106, which provides that “a contract shall not be awarded in violation of the conflict of interest provision in Rules 165.” The protester must file an official communication or complaint to Head of Entity where such company is aware of such conflict of interest. The same time limits for regular complaints apply here. Article 15 of the Manual of the Procedures, 2010, states: The Applicant or the Respondent may challenge the appointment of an expert on the grounds of conflict of interest of the Expert. (1) If a party wishes to challenge the appointment of an Expert, he/she shall immediately apply in writing to the Secretariat in prescribed form, giving the reasons for the challenge; and (2) If the Chairman of the Administrative Review Committee agrees with the challenger on the merits of his challenge, he/she shall replace the Expert immediately and make a new appointment of an Expert to the Review Board. Chile In addition to challenging the award of the contract, the affected bidder may require the General Comptroller’s Office (Contraloría General de la República) to inquire as to the official’s administrative liability based on the failure to comply with the Public Official Statue Act (Act N 18-834). The procedure takes somewhere between two and 90 calendar days to complete. Ghana The protester simply informs the procuring entity and an investigation takes place. The same time limits apply as for filing a complaint to challenge the tender specifications. Jordan N/A Mexico The protester can request removal of a public official based on the provisions of the Federal Law Against Corruption in Public Procurement, 2012. At the federal level, the direct procedure is called a “recusación” or challenge and is established in Articles 21 through 27 of the Federal Administrative Procedure Law. The “recusación” is filed before the superior entity. The removal of the public official must be requested by the bidders in their administrative appeal on the grounds of possible conflict of interest in carrying out the official’s duties. Furthermore, if the Ministry of Government Affairs or the comptroller general of the agency who issued the public bid has sufficient grounds to prove that a certain public official has a conflict of interest, they may impose a penalty, depending on the severity of the case, of any of the following sanctions established in the Federal Law of Administrative Responsibilities of the Public Servants, as amended in 2012: a) Private or public reprimand; b) Suspension of employment, position or commission for a period not less than three days nor more than one year; c) Removal from office; d) Fine; e) Temporary ineligibility to work in the public service. The Federal Law of Administrative Responsibilities of Public Servants, as amended in 2012, regulates, within the scope of their position, all public officials mentioned in the first paragraph of Article 108 of the Constitution, and all those individuals who manage or administer federal public resources. It also establishes general rules to safeguard the principles of legality, honesty, loyalty, fairness and efficiency that govern all activities related to the provision of public services, providing penalties for violations of the law. Sweden A protester is entitled to ask for removal of a public official from the tender by filing a request to the procuring entity requesting that the public official be removed. If the public official is not removed, the company can file a complaint. Thailand A protester can ask for removal of a public official from the tender panel by filing an application to the Constitutional Court. 82 Benchmarking Public Procurement 2015 Country Turkey A protester may ask for removal of a public official from the tender panel by filing first- and second-tier objections and filing an administrative lawsuit (i.e., third-tier review) in respective order. The request for removal of a public official must be made within 10 days of becoming aware of the conflict of interest. The applicable grounds for complaint before the first-tier or second-tier review bodies are not enumerated. The Public Procurement Law, 2002, enables bidders to file complaint for any act or transaction contrary to law, including to request removal of the public official from the tender panel. Furthermore, Article 11 paragraphs (c), (d), (e) and (f) of the Public Procurement Law also states: “The following persons or entities cannot participate in any procurement, directly or indirectly or as a sub-contractor, either on their own account or on behalf of others: a) the contracting officers of the contracting entity carrying out the procurement proceedings, and the persons assigned in boards having the same authority; b) those who are assigned to prepare, execute, complete and approve all procurement proceedings relating to the subject matter of the procurement held by the contracting entity; c) The spouses, relatives up to third degree and marital relatives up to second degree, and foster children and adopters of those specified under paragraph (c) and (d); d) The partners and companies of those specified under paragraph (c), (d) and (e) (except for joint stock companies where they are not a member of the board of directors or do not hold more than 10% of the capital).” Uganda According to the PPDA Act 2003, Article 9, (1) The Authority may recommend to the competent authority, where there are persistent or serious breaches of this Act or regulations or guidelines made under this Act: (a) the suspension of officers concerned with the procurement or disposal process in issue; (b) the replacement of the head of a Procurement and Disposal Unit or the Chairperson of a Contracts Committee as the case may be; (c) the disciplining of the Accounting Officer; or (d) the temporary transfer of the procuring and disposal function of a procuring and disposing entity to a third party procurement agency. The protester files a written application to the first-tier review body and pays the administrative fee. The Application should include: (a) details of the procurement requirement to which the complaint relates; (b) details of the rule or provision which has been breached or omitted; (c) an explanation of how the rule or provision has been breached or omitted, including the dates and name of the responsible public officer, where known; (d) documentary or other evidence supporting the complaint where available; and (e) any other information relevant to the complaint. The protester may also include the anticipated remedy. The first-tier review body will then initiate an investigation into the allegation and if satisfied recommend the removal of the public officer at issue within 15 working days. If the protester is not satisfied with the decision of the first-tier review body, he/she can file for a review of this decision to the second-tier review body with 10 working days of the decision. United Request to remove a public official for conflict of interest is done concurrently with the States complaint/grievance and therefore follows the same time limits and procedural rules. Source: Benchmarking Public Procurement 2015 83 6 Accountability and Oversight Mechanisms Topic Accountability and Oversight Mechanisms Accountability and oversight of public procuring entities are necessary for an efficient public procurement system, to ensure that funds are spent properly and to deter corruption. Ensuring that governments spend budgets and use of public funds in the procurement process, award contracts in a fair and transparent man- and also prevent corruption by controlling each ner is key to the integrity of public procurement step of the process. systems. Holding procuring officials accountable for their actions and decisions curbs the risk of What the Accountability and corruption and, as a result, reduces favoritism Oversight Mechanisms Topic and levels the playing field among suppliers. It is Measures therefore a way to ensure that governments act The Accountability and Oversight Mechanisms in a fair and cost-efficient manner in awarding topic takes the perspective of a government contracts. oversight institution. The data points assess the compliance of national legal and regulatory Accountability can only be achieved through frameworks with international good practices, a mix of internal and external controls to particularly when it comes to internal controls “avoid gaps or loopholes and ensure that the and oversight mechanisms, reporting capacities, information produced by controls is as complete and the extent of procuring officials’ accountabil- and useful as possible” (OECD, 2009). Internal ity. Internal and external control mechanisms are systems include financial controls, internal audits crucial for controlling the procurement system, and management reviews. External experts or and include not only annual financial but also audit institutions should also conduct audits to performance audits. Performance audits are par- reinforce monitoring and controls. These controls ticularly useful for monitoring the efficiency of should aim to detect fraud and corruption, as public expenditures. Such audits may reveal, for well as to ensure compliance with rules and instance, that a public procurement project lacks performance of the procurement. Governments adequate assessment and as a result may repre- should create and support institutions to sent a waste of public funds; they may identify oversee the procurement process, ensuring that procurements conducted without proper plan- such institutions have the necessary resources, ning or confirmation of the availability of funds. independence, and reporting structures. Finally, audits can provide evidence of corruption Accountability measures and oversight of public schemes, such as when a public official deliber- procurement entities must respect the delicate ately delays the planning of procurement to limit balance between maintaining accountability the number of bidders and avoid competition. and preserving the flexibility and efficiency of The Accountability and Oversight Mechanisms the overall system. Indeed, an overly rigorous, topic examines whether procuring entities are rules-based approach that reduces the discretion accountable and have the means and capability of public procurement officials can inhibit the to preserve the efficiency and transparency of flexibility needed to achieve the best economic the public procurement system. Three data point outcomes. Flexibility and efficiency enable subsets have been designed (see Table 6.1). governments to conduct business in the most economically rational way, in the process saving Initial Pilot Results public funds and ensuring long-term growth. The data collection for the Accountability and By contrast, a risk-based approach favors the Oversight Mechanisms topic shows that specif- balance between accountability and procurement ics regarding the regulatory framework are elu- control mechanisms. It is important to ensure sive and that, in practice, procuring entities have the coordination and flow of information a great deal of discretion. Most of the countries between the various accountability and control surveyed have public procurement regulatory mechanisms. Together these mechanisms frameworks that cover all the issues reflected support administrative efficiency and the best 84 Benchmarking Public Procurement 2015 Table 6.1: Accountability and oversight mechanisms—topics covered General reporting and recording obligations within local procuring entities Measures whether public officials are required to report suspicion of fraud, misconduct, or mismanagement and whether they are protected against retaliation during the reporting process. Also assesses the existence of rules for recording key procedures and decisions during the public procurement process, as well as whether files on record are protected through limited access and regular and specific updates (e.g., following the modification of a contract’s provisions). Internal control and monitoring systems within the procuring entity Assesses internal control procedures and their existence throughout the procurement process (during the pre-tendering, tendering, and the post-tendering phases). Also measures the monitoring of the internal control system. External controls Assesses routine external controls performed by agencies in charge of oversight of the procurement function. Captures data on the obligation for external auditors to report suspected fraud to the procuring entity’s management, and whether external financial auditors are provided with a list of red flags to detect fraudulent behavior. in these data points, but the lack of detail and authorities. The data shows a great variety generality of the relevant laws and regulations of practices across countries. In a majority of create a level of uncertainty. countries surveyed, a public official cannot report misconduct anonymously. Six of these countries Reporting Obligations offer ways to protect the reporting public official. Eight of the 10 countries surveyed follow In Ghana and Uganda, anonymous reports of international standards by requesting public misconduct are permitted, but with caveats. In procurement officials to report any suspicion Uganda, if a public official reports misconduct of fraud, corruption, or failure to comply with anonymously, he or she cannot benefit from the technical or procedural requirements on the part protection of the Whistleblowers Act of 2010. of officials in a procurement procedure. However, in Afghanistan and Sweden, the regulatory Recording Obligations framework does not provide specific means or Procurement records represent a key tool for procedures to report misconduct. keeping track of procurement procedures, as well as for the conduct of internal controls. Recording In countries where the regulatory frame- obligations seem to be well-integrated into work provides for a reporting mechanism, the regulatory frameworks on public procurement, report can be made in writing or orally, either to since all countries surveyed, with the exception anti-corruption institutions (such as the National of Sweden, have regulatory frameworks that Counter-Corruption Commission of Thailand) or require recording of key procedures. to the procuring entity itself (as in Mexico). In Uganda, disclosures can be reported to several Another critical aspect of recording obligations different institutions, including the Inspectorate is the protection and accuracy of files. For better of Government, the Directorate of Public accountability and transparency, it is important Prosecutions, the Parliament, and the Uganda to maintain a detailed and updated record of each Police Force. Some systems enable reporting step of the procurement process. This practice is through the online procurement portal when it not only important for preventing corruption, but exists—this is the case in Mexico, where reporting also to ensure that public money is spent in an can be conducted through the complaints section efficient manner and that all decisions are of CompraNet. justified. However, countries surveyed vary significantly in this regard. In only six of The reporting of official misconduct is a sensitive the countries surveyed does the regulatory matter. Public officials may not report misconduct framework aim to protect the accuracy of files for fear of retaliation, yet anonymous reports through regular and specific updates. In only five might not be taken seriously by the relevant 85 6 Accountability and Oversight Mechanisms Topic Figure 6.1: Recording obligations Af h nist n, Chil , Gh n , Jord n, R ul tor fr m work on r cordin M xico, Th il nd, Turk , U nd , nd k procd dur s th Unit d St t s Af h nist n, Gh n , Prot ction of fil s throu h Jord n, M xico, Turk , limit d cc ss nd th Unit d St t s Prot ction of fil s throu h r ul r Af h nist n, Chil , Gh n , Jord n, nd sp cific upd t s nd Turk 0 2 4 6 8 10 Numb r of r cordin obli tions Source: Benchmarking Public Procurement 2015 countries does the regulatory framework include in this area. There is a gap, therefore, between specific rules on the protection of files on record law and practice. Regulatory frameworks in through limited access. Afghanistan, Chile, Mexico, Thailand, Turkey, Uganda, and the United States require internal As shown in Figure 6.1, Afghanistan, Ghana, controls throughout the procurement process Jordan, and Turkey offer the most comprehensive (during the pre-tendering, tendering, and post- regulatory frameworks when it comes to record- tendering phases), but do not specify timing. In ing obligations, with requirements to record key practice, internal controls are often conducted procedures (such as the needs assessment or the during the post-tendering phase, during pay- bid opening) as well as the protection of files on ment, and at delivery. In Jordan, the regulatory record through both limited access and specific framework does not require internal controls, but updates. in practice such controls are usually conducted Internal Controls after the pre-tendering process. The recording of Internal controls range from financial controls, internal controls usually depends on the customs to internal audits, to management controls. of the procuring entity, as public procurement Adequate, regular, and recorded internal controls laws often fail to provide guidance. are crucial to increasing the accountability and Monitoring the Internal Control System transparency of the entire public procurement Internal controls should be encouraged, but also process. Internal controls should encourage good monitored. As with any mechanism intended to practices, such as the division of responsibilities, control a body or a procedure, some flaws and a system of managerial approval at each stage in irregularities may exist. Monitoring of the inter- the process, and the maintenance of appropriate nal control system contributes significantly to checklists. protecting the integrity and accountability of Despite the importance of internal controls, the procurement procedures. data collected show that none of the countries In all countries surveyed, except Sweden, a per- surveyed has a detailed regulatory framework son or entity exists with distinct internal audit 86 Benchmarking Public Procurement 2015  nternal audit official or entity charged with monitoring the performance of the internal Figure 6.2: I control system Afghanistan „ Procurement Policy Unit Chile „ Internal auditor of the procuring entity Ghana „ Public Procurement Board Jordan „ Director of the Internal Control System Mexico „ Secretariat of Public Function Thailand „ Office of Procurement Management Turkey „ Internal auditor of the procuring entity Uganda „ Head of the Internal Audit United States „ Office of the Comptroller Source: Benchmarking Public Procurement 2015 functions who is in charge of monitoring the in- In eight of the countries surveyed, the regulatory ternal control system (Figure 6.2). The system’s framework requires routine external controls. In performance auditor can reside within the pro- Chile, Jordan, Mexico, Turkey, Uganda, and the curing entity, as is the case in Uganda, or within United States, such controls are mandated at the head of the internal audit bureau, as in Chile the pre-tendering, tendering, and post-tendering and Turkey. In other countries, the performance phases (Figure 6.3). By contrast, in Ghana and auditor resides within an independent body, such Thailand, external controls by the auditor general as the Public Procurement Board in Ghana, the of each country occur only at the post-tendering Procurement Policy Unit in Afghanistan, or the phase. External controls may be complemented Secretariat of Public Function and the Supreme by additional audits performed by the national Federal Audit Office in Mexico. The regulatory oversight institution, as described in the next framework establishes the frequency of inter- subsection. nal audits in only five of the countries surveyed. However, all countries guarantee access to inter- Oversight Institutions for Public nal control reports. Such access appears to be Procurement essential for the quality of monitoring. In all countries surveyed, national oversight insti- tutions in charge of overseeing the procurement Routine External Controls process perform external controls; these include Appropriate external controls of procurement the Comptroller General in Chile; the Secretariat procedures are an important complement to of Public Function and the Supreme Audit Office regular internal controls. External audits can be in Mexico; the Public Procurement and Disposal conducted by outside experts or audit institu- of Public Assets Authority in Uganda; the Office tions to reinforce monitoring. The aim of such of Procurement Management in Thailand; and audits is to detect fraud and corruption or, in the the Public Procurement Authority in Turkey. case of performance audits, to ensure compli- In eight countries, the oversight agency’s findings ance with rules and review the actual benefits of must be issued in a report. In Chile, Ghana, a particular procurement. 87 6 Accountability and Oversight Mechanisms Topic Figure 6.3: Routine external controls Pre-tendering, tendering, and post-tendering Only post-tendering No routine controls • Chile • Ghana • Afghanistan • Jordan • Thailand • Sweden • Mexico • Turkey • Uganda • United States Source: Benchmarking Public Procurement 2015 Thailand, Turkey, and Uganda, such reports public officials and auditors may not be trained are annual. In Mexico, the Secretariat of Public to recognize potential fraudulent behavior. Function must report regularly to the executive branch, while the Supreme Audit Office must Suspension of the Procurement Process in Case of Suspicion of Fraud also issue its findings in a report. In Chile, Ghana, The data collected show no consistent man- Mexico, Thailand, Turkey, and Uganda, the ner of dealing with suspected fraud. Though report is to be given to the legislative body of the some contributors note that the procurement country. process could be suspended based on suspicion Detection of Fraudulent Behavior of fraud, the modalities of such suspension re- Only Afghanistan, Ghana, and Turkey provide main unclear. For example, in the United States, auditors with a list of red flags that can be used the manner of suspension is determined by the to detect fraudulent behavior; these include ex- contracting officer in charge of the procurement amples that might indicate conflict of interest or process or by a higher-level procurement official. unethical conduct, such as, for instance, the use In other countries, such as Ghana and Uganda, it of unusually complex financial structuring. is not the procurement process that is suspended but rather the public official who committed the In Afghanistan, the law provides that nepotism— fraud or is suspected of corruption. favoring a bidder because of a marital, family, or any other relationship—is strictly prohibited and Conflict of Interest and Code civil servants must sign a declaration attesting of Conduct that they have no private interest prior to com- Regulations that address conflicts of interest, mencing a procurement procedure. Turkey main- create standards of conduct to protect the tains an up-to-date web page listing individuals integrity of the procurement process, and prevent who are temporarily or permanently banned from public officials from being corrupted appear to be public procurement so that auditors can check if growing in importance worldwide. potential candidates are a threat to the integrity of the procurement process. A frequent factor in corruption and noncompli- ance when it comes to procurement is conflict Further research is required to assess whether of interest, whereby the personal interests of an providing a list of red flags is a good practice. actor in the procurement process interfere in the Still, many experts favor such lists given that procurement and compromise its integrity. With the exception of Jordan, nine of the surveyed 88 Benchmarking Public Procurement 2015 Table 6.2: Specific standards of conduct applicable for procurement officials Country Standards Afghanistan No provision in the law Chile Administrative Statute (Law No. 18-834) Ghana Code of Conduct for Public Officials Jordan Civil Service Bylaw Mexico Code of Ethics for Public Officials of the Federal Public Administration Sweden No provision in the law Thailand Code of Professional Ethics for Civil Servants Turkey Regulation on Principles of Ethical Conduct of Civil Servants and Principles and Procedures for Applications, 2005 Uganda Code of Ethical Conduct in Business United States Procurement Integrity Act Source: Benchmarking Public Procurement 2015 countries have specific provisions on conflict of Lessons Learned and Next Steps interest in their public procurement regulatory The Accountability dataset demonstrates the framework. need to preserve the delicate balance between Furthermore, all surveyed countries, except the existence of a normative system for Afghanistan and Sweden, have specific stan- accountability and oversight and the flexibility dards of conduct for public employees to avoid and efficiency of the overall system. An overly conflict of interest and corruption in gen- rigorous rules-based approach that reduces the eral (Table 6.2). In Chile, Ghana, Jordan, Mexico, discretion of public officials may deprive them of Thailand, Turkey, Uganda, and the United States, the flexibility needed to achieve the best economic these standards can be found in a general code outcome. To the opposite, a risk-based approach of conduct for the public service. In Ghana, for appears to be a more suitable measure to balance instance, the Code of Conduct for Public Officials accountability and control mechanisms in can be found in the Constitution. In Thailand, the procurement. The Accountability topic identified Code of Professional Ethics for Civil Servants good practices in the surveyed countries, such as was enacted by the Office of the Civil Service recording each step in the procurement process Commission. Furthermore, in the United States or establishing special procedures for public and Uganda, these standards can also be found officials to report misconduct. Some data points in a specific code of conduct for procurement of- merit further exploration: for instance, certain ficials. In Uganda, this code of conduct is found in practices may be more efficient than others the Fifth Schedule of the Public Procurement and when it comes to improving public procurement Disposal of Public Assets Authority, “the Code of systems and fighting corruption. There is a need Ethical Conduct in Business.” not only for more data, but for further discussion around the different types of practices employed in domestic public procurement systems. 89 6 Accountability and Oversight Mechanisms Topic Requirements for public officials to report suspicions of fraud or corruption or failure to Table 6.3:  comply with technical or procedural requirements by other officials Means to report Protection of the identity of the Country Regulatory framework misconduct reporting public official Afghanistan The Procurement Law, The regulatory The Procurement Law, 2008, is 2008, does not contain any framework on public silent on reporting a misconduct, provision on obligations to procurement does but some provisions of the Law on report fraud or corruption or not provide specific Overseeing the Implementation of to report failure to comply means to report the Anti-Administrative Corruption with technical or procedural misconduct. Strategy, 2008, provide for the requirements. protection of individuals who cooperate with good will with However, the law states the discovery of administrative that procurement officials corruption cases as an informant must verify the “absence or assist during the investigation of fraudulent documents or trial as a witness, or provide and solicitation of proof/admissible evidence and favors” (Article 68 of the documents (Article 14). It states Procurement Law, 2008). that these individuals should In addition, the Rules of be “immune from any type of Procedure, 2009, give pressure, intimidation and ill- the definitions of “fraud” treatment and shall be rewarded.” and “corruption” (Rule of In addition, it also prevents the Procedure No. 163). The disclosure of the identity of the Procurement Law, 2008, informant, witness, intellectuals or and the Rules of Procedure, the person who provides evidence 2009, include detailed rules and documents, without their on debarment of bidders. consent. Chile The regulatory framework The regulatory The regulatory framework on requires the reporting of framework on public public procurement does not fraud, corruption, or failure procurement does provide specifically that the to comply with technical or not provide specific misconduct can be reported procedural requirements. means to report anonymously. The Organic Constitutional misconduct. However, Article 90 of the Organic Law on the General Bases Constitutional Law on the General for the Administration of Bases for the Administration of the State, 2008, protects the State, 2008, offers some public employees who protection to officials who report report irregularities. Public misconduct. It guarantees, employees have the duty under certain conditions, that to report to the Public they should not “be subject to Prosecutor or the police disciplinary action of suspension if a public official is not or employment dismissal” or prosecuted in a timely that they should not “be moved manner for the crimes or from place or their functions be misdemeanors committed discharged.” In addition, in the (Article 61 of Title III on the case where the official reports public function’s obligations, the misconduct of his hierarchic Paragraph k). In addition, superior, the Law states that the the Law Approving the official should not “be subject to Administrative Status annual pre-rating.” of Municipal Officers also protects municipal employees who report irregularities (Article 58; see also Article 88A and 88B for the relevant provisions on protection). 90 Benchmarking Public Procurement 2015 Means to report Protection of the identity of the Country Regulatory framework misconduct reporting public official Ghana The regulatory framework The regulatory The misconduct can eventually be requires reporting fraud, framework provides reported anonymously. corruption, or failure to specific means to Article 4 of the Whistle Blower comply with technical or report misconduct. Act, 2006, indicates that, “as far procedural requirements. Article 4 of the as practicable,” the full name, Article 1 of the Whistle Whistle Blower Act, address, and occupation of the Blower Act, 2006, on 2006, indicates in whistleblower should be mentioned “Disclosure of Impropriety” details the procedure in the disclosure. There is no states that: “(1) A person for making such specific provision on anonymity in may make a disclosure of disclosure. The the Whistle Blower Act of 2006. information where that disclosure can be The Whistle Blower Act, 2006, person has reasonable made in writing or provides several protection cause to believe that the orally. measures for whistleblowers. information tends to show: Article 12 states that a (a) an economic crime has whistleblower should not be been committed, is about to “victimized” by his employer or be committed or is likely to by another person, because of be committed; (b) another the disclosure. In the case of person has not complied victimization, the whistleblower with a law or is in the has the possibility, first, to process of breaking a law report the victimization to the or is likely to break a law Commission on Human Rights and which imposes an obligation Administrative Justice (Articles 13 on that person; (c) a and 14) and, then, to claim miscarriage of justice has damages for breach of contract or occurred, is occurring or is for another relief or remedy that he likely to occur; (d) in a public may be entitled (Article 15). Legal institution there has been, assistance can be provided to the there is or there is likely to whistleblower (Article 16) as well be waste, misappropriation as, in certain circumstances, police or mismanagement of protection (Article 17). public resources; (e) the environment has been degraded, is being degraded or is likely to be degraded; or (f) the health or safety of an individual or a community is endangered, has been endangered or is likely to be endangered.” Jordan The regulatory framework The regulatory The regulatory framework on requires reporting fraud, framework provides public procurement does not corruption, or failure to specific means to provide specifically that the comply with technical or report misconduct. misconduct can be reported procedural requirements. However, contributors anonymously. did not mention any specific provision.  (continued) 91 6 Accountability and Oversight Mechanisms Topic Requirements for public officials to report suspicions of fraud or corruption or failure to Table 6.3:  comply with technical or procedural requirements by other officials (continued) Means to report Protection of the identity of the Country Regulatory framework misconduct reporting public official Mexico The regulatory framework The regulatory Misconduct cannot be reported requires reporting fraud, framework provides anonymously, but the identity of corruption, or failure to specific means to the person who denounces should comply with technical or report misconduct. be protected. procedural requirements. Alleged offenses The competent authorities who Federal Law Against can be reported receive the complaint reporting Corruption in Public through various the alleged offenses shall keep Procurement, as amended in means, such as: the confidential the identity of the 2012, mentions, in Article 11, complaints section person who denounced the alleged Chapter 3 on “Investigation,” of CompraNet, offenses (Article 10, Chapter 3 on that all public servants have a complaint “Investigation”). a duty to report in writing submitted to the the actions or omissions procuring entity or observed in the exercise of to other relevant their duties, of which they entities, complaints have knowledge and which submitted under may be sanctioned by the oath, anonymous terms of this Act. Article 8 complaints, of Chapter 2 gives a list of international the specific offenses that complaints submitted can be reported. by a foreign state, public agency, international organization (Article 10, Chapter 3 on “Investigation”). Sweden The regulatory framework The regulatory Misconduct can be reported on public procurement does framework does anonymously. not contain any provision not specifically on obligations to report provide for means to fraud, corruption, or failure report misconduct. to comply with technical or However, the procedural requirements. Swedish Competition Authority has a phone number and a web page where anyone can phone and report misconduct or complain. 92 Benchmarking Public Procurement 2015 Means to report Protection of the identity of the Country Regulatory framework misconduct reporting public official Thailand The regulatory framework The regulatory The regulatory framework on public procurement framework provides on public procurement does does not require reporting specific means to not provide specifically that fraud, corruption, or report misconduct: misconduct can be reported failure to comply with the disclosure anonymously: Section 85 of the technical or procedural must be made Organic Act on Counter Corruption requirements. However, to the National states that the name and address there is a general law on Counter Corruption of the person making the allegation disclosure of misconduct Commission of should be disclosed to the National by a public official. Organic Thailand, as per Counter Corruption Commission of Act on Counter Corruption, the Organic Act on Thailand. B.E. 2542, 1999, Chapter Counter Corruption. VIII on “Inspection of State Officials Not Being Persons Holding Political Positions under Section 308 of the Constitution” states that, to report an offense of corruption, malfeasance in office, or malfeasance in judicial office by a public official, the person making such allegation shall submit an allegation in writing bearing his or her signature before the National Counter Corruption Commission of Thailand. (continued) 93 6 Accountability and Oversight Mechanisms Topic Requirements for public officials to report suspicions of fraud or corruption or failure to Table 6.3:  comply with technical or procedural requirements by other officials (continued) Means to report Protection of the identity of the Country Regulatory framework misconduct reporting public official Turkey The Public Procurement The regulatory The regulatory framework Law, 2002, incriminates framework provides on public procurement does broadly suspicions of fraud specific means to not provide specifically that or corruption, or failure to report misconduct. misconduct can be reported comply with technical or anonymously. procedural requirements However, Article 14 of the by other officials, but does Regulation on Complaints and not mention reporting Applications of Civil Servants, obligations (Article 17 1982, provides that civil servants on “Prohibited Acts or who fulfilled their obligation conducts;” Article 60 on to report an offense cannot be “Penal Liability of Officers“). punished; their service conditions In addition, it prohibits cannot be changed or made the disclosure of any severe fully or partially, directly or confidential information indirectly, because of reporting the or document concerning offense. the related officials or third parties to any authority except for those authorized by law for such disclosures (Article 53). More generally, Article 279 of the Turkish Criminal Code and Article 11 of the Regulation on Complaints and Applications of Civil Servants, 1982, require public officials to report offenses. Article 11 in particular provides that “civil servants who notice acts which are a criminal offence are obliged to report it to the competent authorities.” 94 Benchmarking Public Procurement 2015 Means to report Protection of the identity of the Country Regulatory framework misconduct reporting public official Uganda The regulatory framework The regulatory The misconduct can be reported on public procurement does framework provides anonymously (Articles 2 and 3 of not specifically require specific means to the Whistleblowers Protection Act, reporting suspicion of fraud report misconduct. 2010). or corruption, but this is The Whistleblowers However, Article 3(3) of the required by other laws, such Protection Act, 2010, Whistleblowers Protection Act, as the Anticorruption Act lists the persons 2010, states that “a person who (Article 2 on “Disclosure qualified to make makes an anonymous disclosure of impropriety,” Part II on disclosures (Article shall not be entitled to the Protected Disclosures). 3). The disclosure protection conferred under this should be received by Act.” an authorized officer, who should deliver a In addition to the possibility to receipt of disclosure report misconduct anonymously, (Article 5). the public official is also protected from “victimization” and against Disclosures can any possible court action be reported to (Articles 9 on the “Protection several different from victimization” and 10 on the institutions, including “Protection against court action”). the Inspectorate of Government, the Directorate of Public Prosecutions, the Parliament of Uganda, or the Uganda Police Force. United The regulatory framework The regulatory In accordance with New York States requires reporting fraud, framework provides City Mayoral Executive Order corruption, or failure to specific means to No. 16, charges will be probed comply with technical or report misconduct. confidentially and professionally procedural requirements by investigators independent of In practice, the (Section 1-03 of the PPB the employee’s own agency and website of the City of Rules). In addition, the New superior. New York Department York City Mayoral Executive of Investigation In addition, the Local Law No. 33, Order No. 16, Section 4d., offers several ways 2012, codified at Section 12-113 of provides that: “Every officer to report suspicion the Administrative Code of New and employee of the City of misconduct: by York City, states that no officer or shall have the affirmative telephone, fax, writing employee of a covered contractor obligation to report, directly a letter, meeting a or covered subcontractor shall and without undue delay, person, or filing a take an adverse personnel action to the Commissioner or an complaint online. because of such reporting. Inspector General any and all information concerning conduct which they know or should reasonably know to involve corrupt or other criminal activity or conflict of interest […].” Source: Benchmarking Public Procurement 2015 95 6 Accountability and Oversight Mechanisms Topic Table 6.4: Regulatory framework on monitoring the internal control system Entity with separate internal audit functions Frequency of the internal audits Country in charge of monitoring performance of the conducted by such entity internal control system Afghanistan The body with separate internal audit functions in The regulatory framework does charge of monitoring the performance of the internal not establish the frequency of control system is the Public Procurement Unit. the internal audits conducted by the system’s performance Article 80 of the Procurement Law, 2008, provides auditor. However, Article 85(5) that the Procurement Policy Unit, established within of the Procurement Law, 2008, the Ministry of Finance for policy and professional states that “The internal auditor, development, is the performance monitoring organ supervising engineer or inspection in the field of procurement (and does not act as and receipt committee shall report an award authority). It shall report to the Minister regularly on their procurement of Finance and the government on its executions. activities to the entity for Article 81 of the Procurement Law specifies the inspection and testing of the relevant duties and authorities. procuring entity, in accordance with procedures.” Chile The person with separate internal audit functions The regulatory framework provides in charge of monitoring the performance of the guidance on the frequency of the internal control system is the internal auditor of the internal audits conducted by the procuring entity, who is in charge of quality control. system’s performance auditor. Internal auditors report directly to the Ministerial Contributors mention that there Auditor and also to a public organ, the General is a risk matrix established by Government Internal Audit Council (Consejo de the General Government Internal Auditoria General de Gobierno), which reports to the Audit Council (Consejo de Auditoria Office of the President. General de Gobierno) that must be used by all auditors. Ghana The body with separate internal audit functions in The regulatory framework charge of monitoring the performance of the internal establishes the frequency of the control system is the Public Procurement Board. internal audits conducted by the system’s performance auditor. Article 3 of the Public Procurement Act, 2003, states the relevant duties and functions of the Public There is a regular monthly Procurement Board. reporting of procurement activity to the Public Procurement Board Article 7.2.3 of the Manual, 2003, states that (submitted by each Tender the Public Procurement Board can “undertake Committee using Form SPF 5 periodic reviews of the procurement performance of within 14 days of the end of each Procurement Entities and advise on specific issues calendar month, Section 7.2 of which need to be addressed.” Manual, 2003). In addition, there is an investigation procedure by the Board, but it is not ruled by any frequency. Jordan The person with separate internal audit functions in The regulatory framework does charge of monitoring the performance of the internal not establish the frequency of the control system is the Director of the Internal Control internal audits conducted by the System, responsible with his staff for monitoring the system’s performance auditor. internal audit of the procurement function in Jordan. 96 Benchmarking Public Procurement 2015 Entity with separate internal audit functions Frequency of the internal audits Country in charge of monitoring performance of the conducted by such entity internal control system Mexico There are two entities at the national level in The regulatory framework does charge of monitoring internal control systems: the not establish the frequency of the Secretariat of Public Function and the Supreme internal audits conducted by the Federal Audit Office. system’s performance auditor. The functions of the Secretariat of Public Function Article 79 of the Internal include monitoring the compliance and enforcement Regulations of the Ministry of of controls and supporting the internal audit of Public Service, as amended in the departments and agencies of the Federal 2011, only requires the Internal Government (Article 37 of Organic Law of the Federal Control Body to report periodically Public Administration, as amended in 2013). the results of the performance of internal control. The Supreme Federal Audit Office is in charge of auditing the public accounts and, in particular, evaluating the financial management of the system (Article 12 of the Decree Law on the Control and Accountability of the Federation, 2009). Sweden Contributors indicate that there is no person or The regulatory framework does individual entity with separate internal audit not establish the frequency of the functions in charge of monitoring the performance internal audits conducted by the of the internal control system of procuring entities. system’s performance auditor. In particular, the Swedish Competition Authority does not have any monitoring function. According to research, in general, there is no internal audit function in Swedish local authorities. Thailand The Office of Procurement Management, established The regulatory framework in 1980 within the Comptroller General’s Department establishes the frequency of the of the Ministry of Finance, is in charge of monitoring internal audits conducted by the the performance of the internal control system. system’s performance auditor. The Comptroller General’s Department designs, regulates, and implements government accounting systems in government agencies and acts as the central independent accounting unit. Turkey Within the procuring entity, there is a person with The regulatory framework separate internal audit functions in charge of establishes the frequency of the monitoring the performance of the internal control internal audits conducted by the system. system’s performance auditor. Paragraph (e) of Article 6 of the Regulation on Procedure and Principles of Internal Control and ex ante Financial Control, 2006, provides that internal control system shall be evaluated at least once a year. In addition, the Turkish Court of Accounts conducts compliance audits on an annual basis. (continued) 97 6 Accountability and Oversight Mechanisms Topic Table 6.4: Regulatory framework on monitoring the internal control system (continued) Entity with separate internal audit functions Frequency of the internal audits Country in charge of monitoring performance of the conducted by such entity internal control system Uganda The Head of Internal Audit has the responsibility for The Head of the Internal Audit monitoring the overall performance of the Public must submit a report to the Finance management internal control system of the Executive Director of the Public procurement function. Procurement and Disposal of Public Assets Authority (PPDA) every three months (Article 23 of the PPDA Act, 2003). United The body with separate internal audit functions in The regulatory framework does States charge of monitoring the performance of the internal not establish the frequency of the control system is the Office of the Comptroller of internal audits conducted by the New York City. system’s performance auditor. Source: Benchmarking Public Procurement 2015 Table 6.5: Oversight institutions and issuance of a report on public procurement Country Oversight institution Issuance of a report Afghanistan The Procurement Policy Unit is the main The Procurement Law, 2008, does not oversight agency, established within specify that the Procurement Policy Unit the Ministry of Finance, for policy and has any obligation to prepare a report. In professional development and as a addition, it does not mention the frequency performance monitoring organ in the of the general reporting obligations from the field of procurement (Procurement Law, Public Procurement Unit to the Minister of 2008). In addition, there is the Afghan Finance and the government. government’s Control and Audit Office (CAO), which is headed by the Auditor General. Chile The main oversight agency is the Office The oversight agency must submit a report of the Comptroller General (Contraloría every year. Articles 142 and 143 of the Law General de la República). on the Organization and Powers of the Comptroller General of the Republic, 2009, state that the Comptroller should prepare an Annual Report to be submitted to the President and the Congress every year, no later than in May. Ghana The main oversight agencies are the Public The Auditor-General is legally required to Procurement Authority (Part I of the Public issue its findings in a report. Article 91 of the Procurement Act, 2003), the Internal Audit Public Procurement Act, 2003, on statutory Agency, and the Auditor-General’s Office. audits, states the relevant duties and responsibilities of the Auditor-General. The Auditor-General is the head of the constitutionally established Ghana Audit Service. The Audit Service exists to audit the management of public resources and report to Parliament. Article 91 of the Public Procurement Act, 2003, on statutory audits, states the duties and responsibilities of the Auditor-General. Jordan The main oversight agencies are the The Audit Bureau must issue its findings in Audit Bureau and the Anti-Corruption a report. Commission. 98 Benchmarking Public Procurement 2015 Country Oversight institution Issuance of a report Mexico The main oversight agencies are the The law does not specify whether the Secretariat of Public Function (established Secretariat of Public Function should within Ministry of Public Administration) prepare a report but it must report and the Supreme Federal Audit Office. regularly to the executive branch (Article 37 of the Organic Law of the Federal Public Administration, as amended in 2013). However, the Supreme Audit Office should publish a yearly report and must report to the Parliament. Article 16 of the Decree Law on the Control and Accountability of the Federation, 2009, states the time line for the submission of the report. Sweden The Swedish Competition Authority is the The Swedish Competition Authority is supervisory body for public procurement. required to issue its findings in a report. The Swedish Competition Authority has Article 2 Chapter 18 of the LOU, 2007, the task to supervise public procurement states that “when exercising its supervision, according to Chapter 18 of the Public such authority may collect all necessary Procurement Act (LOU), 2007. information for its supervisory activities The Swedish Competition Authority from contracting authorities or such party may bring proceedings at a general as may be deemed to be a contracting administrative court requesting that a authority […]” contracting authority be ordered to pay a public procurement fine, which is a penalty that passes to the central government. Thailand The main oversight agencies are the Office The Office of the Auditor-General is required of Procurement Management, established by law to issue its findings in a report. in 1980 within the Comptroller General’s Section 15 of the State Audit Act states Department, Ministry of Finance; the that the Office of the Auditor-General is Auditor-General established by the State obliged to submit a report on the audit of Audit Act, B.E. 2522, 1979; and the receipts and payments each fiscal year National Counter Corruption Commission and a statement on financial status each established by the Organic Act on Counter fiscal year, as well as a performance report. Corruption, B.E. 2542, 1999. It should be submitted to the National Assembly. (continued) 99 6 Accountability and Oversight Mechanisms Topic Table 6.5: Oversight institutions and issuance of a report on public procurement (continued) Country Oversight institution Issuance of a report Turkey According to Article 53 of the Public The Turkish Court of Accounts is required Procurement Law, 2002, the Public to submit annual reports to the Parliament. Procurement Authority is assigned Article 5 of the Law on Turkish Court Of and authorized to uphold the accurate Accounts, 2010, provides that reports of the implementation of the principles, Turkish Court of Accounts are submitted to procedures, and proceedings specified in the Parliament. this Law. One of the duties of the Public Procurement Authority is to evaluate and conclude any complaints claiming that the proceedings carried out by the contracting authority are in violation of this Law and the related legal provisions. Moreover, inspection boards of public institutions can carry out inspections, inter alia, regarding the procurement function of the relevant institution. In addition, the Court of Accounts is responsible for auditing “the revenues, expenditures and property of government offices operated under the general and annexed budgets.” Uganda The main oversight agencies are the The Public Procurement and Disposal of Public Procurement and Disposal of Public Public Assets Authority is legally required to Assets Authority, the Minister Responsible submit its findings in a report. for Finance, the Auditor General, the Article 9 of the PPDA Act, 2003, states Inspectorate of Government, and the that it shall submit an Annual Performance Directorate of Public Prosecutions. Evaluation Report and what the report shall include and the time line regarding the submission of the report. Under Article 163(3) of the Constitution of the Republic of Uganda, 1995, and Section 13 of the National Audit Act 2008, the Auditor General is mandated to audit and report to Parliament, on the public accounts of Uganda and of all public offices. United The Government Accountability Office is the The Government Accountability Office is States main oversight agency (http://www.gao. required to issue its findings in a report. gov/). Source: Benchmarking Public Procurement 2015 100 Benchmarking Public Procurement 2015 Table 6.6: Red flags to detect fraudulent behavior Country List of red flag indicators to detect fraudulent behaviors Afghanistan Rule of Procedure No. 162 P, on conflict of interest, provides a list of examples of behaviors constituting of conflict of interest: “All members of a Procurement Office, Evaluation Committee or Procurement Committee, all staff involved in contract administration and all Ministers or Director General and members of the Special Procurement Commission shall, prior to commencing any procurement activity or the approval of any procurement activity, sign a declaration to the effect that they have no relationship of the following types: (a) a marital or direct birth relationship with a bidder, its legal counsel or its officers; (b) during the last three years, has been an employee or officer of a bidder or held a financial interest in a bidder; (c) is negotiating or has an arrangement concerning prospective employment in a bidder.” Chile There is no list of red flag indicators to detect fraudulent behavior. Ghana Article 1.7 of the Manual, 2003, on Transparency, Accountability and Ethics provides some examples of unethical conduct: “The following are examples of the type of conduct prohibited by the Code of Ethics: • Revealing confidential or “inside information” either directly or indirectly to any tenderer or prospective tenderer; • Discussing a procurement with any tenderer or prospective tenderer outside the official rules and procedures for conducting procurements; • Favoring or discriminating against any tenderer or prospective tenderer in the drafting of technical specifications or standards or the evaluation of tenders; • Destroying, damaging, hiding, removing, or improperly changing any official procurement document; • Accepting or requesting money, travel, meals, entertainment, gifts, favours, discounts or anything of material value from tenderers or prospective tenderers; • Discussing or accepting future employment with a tenderer or prospective tenderer; • Requesting any other Public Servant or Government official representing the Procurement Entity in a procurement to violate the public procurement rules or procedures; • Ignoring evidence that the Code of Ethics has been violated by a member of the Tender Committee, Public Servant or other employee or representative of the Procurement Entity; • Ignoring illegal or unethical activity by tenderers or prospective tenderers, including any offer of personal inducements or rewards.” Jordan There is no list of red flag indicators to detect fraudulent behavior. Mexico There is no list of red flag indicators to detect fraudulent behavior. Sweden There is no list of red flag indicators to detect fraudulent behavior. Thailand There is no list of red flag indicators to detect fraudulent behavior. Turkey Contributors mention the existence of a list of red flag indicators to detect fraudulent behavior. In addition, the lists of persons and entities banned temporarily or permanently from public procurement tenders are posted on the website of the Public Procurement Agency. Uganda There is no list of red flag indicators to detect fraudulent behavior. United There is no list of red flag indicators to detect fraudulent behavior. States Source: Benchmarking Public Procurement 2015 101 6 Accountability and Oversight Mechanisms Topic Table 6. 7: Regulatory framework on recording key procedures and decisions Regulatory framework on recording key procedures and decisions during the Country procurement process Afghanistan The regulatory framework on public procurement provides rules for recording key procedures and decisions during the procurement process. In particular, the law also aims at protecting the accuracy of files on record through regular and specific updates. Article 66 of the Procurement Law, 2008, on record and reports of procurement proceedings, states that the procuring entity has the obligation to “maintain a record of its procurement proceedings, which shall contain the following: (i) description of the object of the procurement; (ii) list of the participating bidders and their qualifications; (iii) bid prices; (iv) summary of the evaluation of bids, summary of any review proceedings, and the related decisions; (v) requests for clarifications and any responses thereto; (vi) statement of the reason for choice of a procurement method other than tendering or request for proposals for consultancy services (in case of accepting a bid or proposal); (vii) information concerning the reason for action pursuant to the provisions of Article 36(2) of this Law.” The Rule of Procedure No. 157 also mentions that the procuring entity shall keep an individual file for each procurement requirement, which shall be marked with the relevant procurement reference number and shall contain all information, documents and communications related to that procurement proceeding, and which shall be kept for “a minimum period of five years following completion or termination of the contract or cancellation of the procurement proceedings.” In addition, it includes specific rules on the protection of files on record through limited access. Article 66 of the Procurement Law, 2008, provides that the record “shall, on request, be made available to bidders after a bid has been accepted, unless otherwise approved pursuant to the Law, or by order of a competent court or an authorized arbitrator which is provided for in the procurement contract” and it “shall be prepared and disclosed in a manner that avoids disclosure of relevant commercial information.” The Rule of Procedure No. 157 specifies that, when there is a disclosure, the procuring entity “shall not, except when ordered to do so by a competent court, and subject to the conditions of such an order, disclose: (a) information, if its disclosure would be contrary to law, would impede law enforcement, would not be in the public interest, would prejudice legitimate commercial interest of the parties or would inhibit fair competition; or (b) information relating to the procurement process, other than the summary required in accordance with Rule 158.” Chile The regulatory framework on public procurement provides some rules for recording key procedures and decisions during the procurement process. The regulatory framework on public procurement does not provide rules for the protection of files on record through limited access but provides rules on the necessity to ensure the accuracy of files on record through regular and specific updates, for example following the modification of a contract term. Hence, for instance, Articles 100 and 101 of Decree 250, 2004, state that each procuring entity has the obligation to publish their Annual Procurement Plan through the Information System, and report any possible modification. Ghana The regulatory framework on public procurement provides rules for recording key procedures and decisions during the procurement process. In particular, it includes specific rules on the protection of files on record through limited access. In addition, the law also aims at protecting the accuracy of files on record through regular and specific updates. Indeed, Article 28 of the Public Procurement Act, 2003, requires that a very detailed record be created and maintained. On the recording of procurement proceedings, this article states that procuring entities “shall maintain a record of the procurement proceedings” and lists what the record shall contain. Jordan The regulatory framework on public procurement provides rules for recording key procedures and decisions during the procurement process. In particular, it includes specific rules on the protection of files on record through limited access. In addition, the law also aims at protecting the accuracy of files on record through regular and specific updates. However, no specific provisions were provided by our contributors or found in the law. 102 Benchmarking Public Procurement 2015 Regulatory framework on recording key procedures and decisions during the Country procurement process Mexico The regulatory framework on public procurement provides rules for recording key procedures and decisions during the procurement process. In particular, it includes specific rules on the protection of files on record through limited access. The protection of the files is governed by Article 8, Section V of the Federal Law of Administrative Responsibilities of Public Servants, as amended in 2012, and the Federal Law of Transparency and Access to government Information, as amended in 2012, which provides the basis for determining whether the information contained in the files can be public, confidential or partially confidential. In addition, Article 56 of the Federal Law on Acquisitions, as amended in 2012, and Article 74 of the Law on Public Works and Related Services, as amended in 2012, specifically indicate the type of information that could be disclosed to certain public entities and/or to the public in general. However, there is no provision on protecting the accuracy of files on record through regular and specific updates. Sweden The regulatory framework on public procurement does not provide rules for recording key procedures and decisions during the procurement process. Thailand The regulatory framework on public procurement provides a general rule for recording key procedures and decisions during the procurement process. Clause 15.2 of Regulations B.E. 2535, 1992, states that “the implementation of each step of procurement and the reasons of proceeding in main steps shall be recorded by the procurement officer for further actions.” Turkey The regulatory framework on public procurement provides rules for recording key procedures and decisions during the procurement process (Articles 7 and 36 of the Public Procurement Law). Uganda The regulatory framework on public procurement provides rules for recording key procedures and decisions during the procurement process. Article 31 of the PPDA Act, 2003, states that procuring entities shall “maintain and archive records of the procurement and disposal process.” Particularly, Article 41 of the PPDA Act, 2003, provides the details on the records. Also, Article 56 of the PPDA Act, 2003, also states that “(1) A procuring and disposing entity shall: (a) maintain detailed records of all its proceedings; and (b) preserve, maintain and safeguard all relevant documents it issues and receives (...)”. United The regulatory framework on public procurement provides rules for recording key States procedures and decisions during the procurement process. In particular, it includes specific rules on the protection of files on record through limited access. In addition, the law also aims at protecting the accuracy of files on record through regular and specific updates. Section 3-02 of the PPB Rules, on Receipt, Opening and Recording of Bids, states that the information related to the bids and shared during the bid opening “shall be recorded at the time of bid opening.” It also provides for specific rules for bids on construction contracts. Source: Benchmarking Public Procurement 2015 103 6 Accountability and Oversight Mechanisms Topic Table 6.8: Regulatory framework on the internal control system Regulatory framework on the internal control system Country Implementation of internal controls Recording of internal controls Afghanistan Internal controls should be conducted throughout In practice, when internal controls the procurement process (during the pre-tendering, are conducted, they are recorded. tendering and post-tendering phases). However, the regulatory framework is silent regarding internal controls. In practice, internal controls can be divided into two types of controls: routine controls (usually for small procurements funded by the Government of Afghanistan) and procurement funded by donors. In practice, in the case of government procurement, internal controls are rare. One contributor mentions the lack of commitment among government employees to enforce or strictly follow the regulations and advises that a system that would make internal controls mandatory would be beneficial. Chile Internal controls should be conducted throughout In practice, when internal controls the procurement process (during the pre-tendering, are conducted, they are recorded. tendering and post-tendering phases). In general, internal controls are conducted every time a payment is due to the supplier/contractor (since a compliance report is required). Ghana Internal controls are not required during the In practice, when internal controls procurement process (the pre-tendering, tendering are conducted, they are recorded. and post-tendering phases). Jordan Internal controls are not required during the In practice, when internal controls procurement process (the pre-tendering, tendering are conducted, they are recorded. and post-tendering phases). However, in practice, internal controls are usually conducted after the pre- tendering process takes place. Mexico Internal controls should be conducted throughout In practice, when internal controls the procurement process (during the pre-tendering, are conducted, they are recorded. tendering and post-tendering phases). However, Article 79 of Internal Regulations of the Ministry of Public Service, as amended in 2011, refers to “audit, reviews and visits” in general but does not say when these controls should occur. Sweden Internal controls are not required during the In practice, when internal controls procurement process (the pre-tendering, tendering are conducted, they are not and post-tendering phases). recorded. Thailand Internal controls should be conducted throughout In practice, internal controls are the procurement process (during the pre-tendering, usually recorded. tendering and post-tendering phases). 104 Benchmarking Public Procurement 2015 Regulatory framework on the internal control system Country Implementation of internal controls Recording of internal controls Turkey The regulatory framework on public procurement In practice, when internal controls does not require internal controls during the are conducted, they are recorded. procurement process (the pre-tendering, tendering and post-tendering phases). However, such controls are stipulated by other primary and secondary legislation. Article 58 of the Public Financial Management and Control Law, 2012, notes that the ex ante financial control process applies to the preparation of financial decisions and transactions, undertaking commitment, realization of works and transactions and their documentation. In addition, Article 17 of the Regulation on Procedure and Principles of Internal Control and ex ante Financial Control, 2005, provides that procurement of goods, works and services above a certain threshold are subject to control. Thus, the control covers acts of the contracting authorities in the pre-tendering phase. Uganda Internal controls should be conducted throughout In practice, when internal controls the procurement process (during the pre-tendering, are conducted, they are recorded. tendering and post-tendering phases). Article 7 of the PPDA Act, 2003, mentions “procurement or disposal audits during the bid preparatory process” and “contract audits in the course of the execution of an awarded bid,” as well as “performance audit after the completion of the contract in respect of any procurement or disposal.” In addition, in practice, internal audits mostly focus on the payment and the delivery phase. United Internal controls should be conducted throughout In practice, when internal controls States the procurement process (during the pre-tendering, are conducted, they are recorded. tendering and post-tendering phases). Different practices exist across different Federal agencies. For instance, USAID’s internal controls are typically annual for general reviews/audits, while other subject specific audits are performed on an as-needed basis. Source: Benchmarking Public Procurement 2015 105 6 Accountability and Oversight Mechanisms Topic Table 6.9: Regulatory framework on routine external controls Country Regulatory framework on routine external controls Afghanistan The regulatory framework does not require routine external controls during the pre- tendering, tendering and post-tendering phases. Chile The regulatory framework requires routine external controls during the pre-tendering, tendering and post-tendering phases. Ghana Routine external controls are conducted only for the post-tendering phase. Contributors confirmed that the Auditor-General conducts general government auditing, while the Public Procurement Agency conducts general process/procedure monitoring to ensure that correct steps are being followed. Due to lack of resources and expertise, the Public Procurement Agency will conduct (through external experts) or request the Auditor- General to conduct a procurement audit only as necessary. The Auditor General monitoring occurs only during the post-tendering phase, while the PP Board’s monitoring occurs at each phase. Jordan The regulatory framework requires routine external controls during the pre-tendering, tendering and post-tendering phases. Mexico The regulatory framework requires routine external controls during the pre-tendering, tendering and post-tendering phases (Article 37 of the Organic Law of the Federal Public Administration, as amended in 2013, and Article 12 of the Decree Law on the Control and Accountability of the Federation, 2009). Sweden The regulatory framework does not require routine external controls during the pre- tendering, tendering and post-tendering phases. Thailand The regulatory framework requires routine external controls mainly for the post-tendering phase, as controls are conducted by the Office of the Auditor-General (Sections 7 and 8 of the State Audit Act, B.E. 2522, 1979). Turkey The regulatory framework requires routine external controls during the pre-tendering, tendering and post-tendering phases. Article 36 of the Law on Turkish Court Of Accounts, 2010, provides that audit includes determining whether revenues, expenditures and assets of public administrations, as well as accounts and transactions pertaining to them, are in compliance with laws and other legal arrangements. The audit covers acts of contracting authorities both in the pre-tendering and post-tendering phases. External audit is an ex post audit in nature but the Turkish Count of Accounts’ auditors perform interim reviews during the year as well. Uganda The regulatory framework requires routine external controls only for the entire procurement process. United The regulatory framework requires routine external controls during the pre-tendering, States tendering and post-tendering phases. Source: Benchmarking Public Procurement 2015 106 Benchmarking Public Procurement 2015 Table 6.10: Suspension of the procurement process on suspicion of fraud Suspension of the procurement process if auditors of the oversight agency Country suspect fraud Afghanistan The regulatory framework on public procurement does not provide for the suspension of the procurement process if the auditors of the oversight agency suspect that a fraud has been committed. Chile The regulatory framework on public procurement does not provide for the suspension of the procurement process if the auditors of the oversight agency suspect that a fraud has been committed. Only the Public Procurement Court can suspend the procurement process, provided there is a request. Ghana The regulatory framework on public procurement does not provide for the suspension of the procurement process if the auditors of the oversight agency suspect that a fraud has been committed. However, public officials suspected of committing a fraud may be suspended. Indeed, Section 1.7.6 of the Manual, 2003, on Sanctions for Non-compliance with Ethical Standards, states that: “Due to the special and additional public trust placed on procurement professionals as custodians of public funds, a special and additional level of rules, compliance, obligations and sanctions governing the activities of all officials engaged in any way in public procurement regardless of their rank or function will be applied. Adherence to the provisions of the Act and Regulations by Public Officials is obligatory and failure to do so will be considered an offence subject to sanctions. The level of sanctions will be published separately and will be graduated depending on the offence. Any official suspected of non-adherence to the rules and regulations will be suspended and his or her benefits, including salary, withheld pending investigation. Officials found misappropriating government funds, regardless of the value, will be summarily dismissed. Other offences involving non-adherence to the rules and regulations, including negligence and irresponsibility will result in sanctions as specified in the Act. Any supplier, contractor or consultant who attempts to influence a procurement process, or the administration of a contract by any unfair method, will be subject to sanctions. This may include debarment of the company from Government contracts for a period of five years, in addition to any remedies that may be sought in a court of law.” Jordan The regulatory framework on public procurement does not provide for suspension of the procurement process if the auditors of the oversight agency suspect that a fraud has been committed. Mexico The regulatory framework on public procurement provides that the procurement process be suspended if the auditors of the oversight agency suspect that a fraud has been committed (Article 76 of the Federal Law on Acquisitions, as amended in 2012, and Article 94 of the Law on Public Works and Related Services, as amended in 2012). Sweden The regulatory framework on public procurement does not provide for the suspension of the procurement process if the auditors of the oversight agency suspect that a fraud has been committed. Thailand The regulatory framework on public procurement provides that the procurement process be suspended if the auditors of the oversight agency suspect that a fraud has been committed. Turkey The regulatory framework on public procurement provides that the procurement process can be suspended if a complaint is submitted to the Public Procurement Authority (Article 55 of the Public Procurement Law). Uganda The regulatory framework on public procurement does not provide for the suspension of the procurement process if the auditors of the oversight agency suspect that a fraud has been committed. United The regulatory framework on public procurement provides that the procurement process States be suspended if the auditors of the oversight agency suspect that a fraud has been committed. Source: Benchmarking Public Procurement 2015 107 Glossary Endnotes 1 Public procurement refers to the “government’s activity of purchasing the goods and services needed to carry out its functions” (Arrowsmith, 2010). 2 Launched in 2003, Doing Business measures the ease of doing business in 189 countries based on measures of regulatory quality, agency efficiency and compliance cost to the private sector. By pro- viding quantitative data to compare business regulation environments across economies and over time, Doing Business encourages countries to strive towards more efficient regulation. It offers mea- surable benchmarks for reform and serves as a resource for investors, analysts, and others interested in the business climate of each country. The Doing Business findings have been used by more than 80 countries to shape their reform agendas and monitor improvements on the ground. It has generated more than 2000 reforms to date. 3 The Expert Consultative Group (ECG) comprises leading legal experts and practitioners from many organizations, among which the World Bank Group—including both the World Bank and IFC; The George Washington University; Organisation for Economic Co-operation and Development (OECD); United Nations Commission on International Trade Law (UNCITRAL); American Bar Association (ABA) and General Electric (GE). 4 Article 9 (3) of the Official Information Act B.E. 2540, 1997 5 www.kkv.se/t/Page____6804.aspx” http://www.kkv.se/t/Page____6804.aspx 6 New York City Charter, Chapter 13: Procurement, §313.b.1, §314 §325.3.(a) 7 Law No. 19, 886, Article 20; decree 250 2004, Article 26 8 New York City Public Procurement Board Rules, Section 3-02 (b) and (e) 9 Article 1 of Chapter 12 of the Public Procurement Act (LOU), 2007, for procurement above the thresh- olds, and Article 16 for procurement under the thresholds. 10 Article 224 of the Public Procurement and Disposal of Public Assets Authority Regulations. 11 The post-tendering phase is not covered by the present indicator, but is currently being considered for the next round of data collection. 12 The New York City Public Procurement Board Rules, version published in August of 2013 provides, at Section 2-02, that “a pre-solicitation review is the process by which an agency, after determining the necessity of the procurement and the need to contract out, defines the existing market for the goods, services, or construction required, estimates the expected costs, and determines the most appropri- ate method of procurement.” 13 Article 11 of the Turkish Public Procurement Law, 2002. 14 Article 50 of the Mexican Federal Law on Acquisitions, as amended in 2009. 15 Chapter 13 of the Rules of the Procurement Policy Board of NYC, 2013, Section 2-05 on Specifications, part (b). 16 Rule 165 (4) (b) of Rules of Procedure, 2009 on “Avoidance of conflict of interest in consultative services.” 17 The tender documents include the terms of tender (which mention the requirements to submit a tender, the tender validity period, the currency used for the contract), the general conditions of the contract (which mention the conditions which the contractor has to comply with in executing the contract) and the tender specifications. 18 Besides the mandatory registration requirement, in Chile, the procuring authority is also entitled to require bidders to go through other registration process for example the Purchasing Department Registration. 108 Benchmarking Public Procurement 2015 19 It is worth noting that in the United States, only vendors who have contracts or subcontracts above a certain threshold or following different conditions (sole source contracts) are required to complete VENDEX questionnaires. 20 An alternate bid allows procuring entities to have different options and choose a solution even better than what was originally called for. It also permits bidders to propose innovative solutions. In that sense, alternate bids are likely to attract more bidders and to increase competition. However, alter- native bids are strictly regulated for several reasons. First, it creates inequality amongst bidders and a distortion of transparency. Indeed, other bidders are not in a position to compete with the alternate bid because they do not have the knowledge of what is a proposed. Second, it is more difficult for pro- curing entities to evaluate alternate bids, because of lack of resources or knowledge when it comes to bids evaluation. Because of these risks, most countries have regulated alternative bids. 109 Acknowledgments Acknowledgments The Benchmarking Public Procurement 2015 Meza, Marcela Rozo, Robert Saum, Sirirat progress report was prepared by a team led by Sirijaratwong, Sylvia Solf, Vivek Srivastava, Federica Saliola under the general direction of Susanne Szymanski, Hiba Tahboub, Sanjay Vani Augusto Lopez-Claros. Members of the core and Joao Nuno Vian Lanceiro da Veiga Malta. team include Elisabeth Danon, Tania Ghossein Country Management Units within the World and Sophie Pouget. The team would like to Bank Group kindly provided assistance in the acknowledge the valuable guidance and support data collection process and in reaching out to of Melissa Johns and Indermit Gill. government officials in their respective countries. The team is grateful to the American Bar The team is grateful to Georgetown University Association, Section of International Law, and Law Center, the George Washington University particularly to the International Legal Resource Law School, and the American University Centre for its assistance with data collection Washington College of Law for organizing an across the 10 pilot economies. The team wishes externship program for law students to conduct to thank Jacqueline Gichinga in particular for legal research for the project. Students in the managing this effort. program who assisted in the data collection and legal research under the team members’ The team is indebted to the following individuals supervision include: Jimmy Alegria, Natalia Del for pro bono feedback and guidance at various Valle Catoni, Sumeng Chen, Yasmine Harik, Sanda stages of the project’s development: Jugo, Natalie Karam, Do Yhup Pyun, Mahmut Daniel Gordon (George Washington University Utku Yalim, Rosamond Xiang, and Jianing Zhiang. Law School), Christopher Yukins (George The project was made possible by the generous Washington University Law School), Caroline financial support of the United States Agency Nicholas (United Nations Commission on for International Development, the World Bank International Trade Law), Elodie Beth (United Multi-Donor Knowledge for Change Program Nations Development Programme), Laurence (KCP II) and Research Support Budget, as well as Folliot Lalliot (Université Paris Ouest Nanterre the Department of Foreign Affairs and Trade of La Défense), Janos Bertok (Organisation for the Australian Government. Economic Co-operation and Development), Felix Prieto (Inter-American Development Bank). Khi The Benchmarking Public Procurement online Thai (Florida Atlantic University), Mary Ann database is managed by Andres Baquero Franco, Ring (General Electric), Susanna Torres (General Kunal Patel, and Hashim Zia. The report’s media Electric), Barbara Humpton (Siemens), Julianne and outreach strategy was managed by Nadine Altieri (Siemens), Sandy Merber (General Electric), Shamounki Ghannam, supported by Hyun Kyong Angela Hinton (City of Atlanta), Ray Monroe, Lee and Sushmitha Malini Narsiah. Adelicia Cliffe (Crowell and Moring), and Paul The report was edited by Sandra Gain and Khoury (Wiley Rein LLP). Damian Milverton, and designed by Corporate The team would also like to thank our many Visions. colleagues at the World Bank Group—including Benchmarking Public Procurement 2015 would at the World Bank and the International Financial have not been possible without the generous Corporation—for their valuable guidance. It would contribution of a network of more than 400 local especially like to acknowledge the comments partners including legal experts, private sector and assistance received from Bhanoumatee firms, academics, government officials and other (Asha) Ayoung, Jurgen Rene Blum, Christopher professionals routinely administering or advising Browne, Majed El-Bayya, Christian De La Medina on the relevant legal and regulatory requirements Soto, Preeti Endlaw, Michel Folliet, David Francis, in the 10 countries measured. The names of Shawkat M.Q. Hasan, Enzo de Laurentiis, Knut those wishing to be acknowledged individually Leipold, Aleksandar Kocevski, V.S. Krishnakumar, are listed below and are made available on the Anjali Kumar, Nicholas Paul Manning, Katherine Benchmarking Public Procurement website at Elizabeth Monahan, Cory O’Hara, Jean Denis http://rru.worldbank.org/Public-Procurement/ . Pesme, Rita Ramalho, Jorge Luis Rodriguez 110 Benchmarking Public Procurement 2015 Contributors Afghanistan Ghana Jordan Zahir Jabarkhail World Trade Center Accra Safwan Moubaydeen Law Firm Zahir in Association with Dentons Ferdinand Adadzi J L N Murthy AB & David Akram Almatarneh Jonnalagadda LLP International Business Legal Macauley Amankwa Associates Daud Saba Clement Anang Afghanistan Strategic Mohannd Jarar Benning, Anang & Partners Resources, LLC International Business Legal Patrick Ansah Associates Greesh Sharma Elizabethi Ashun Rakan Kawar Ewa Suwara Bentsi- Enchill Letsa & Ali Sharif Zu’bi Advocates & Ankomah Legal Consultants Chile Kwame Baah Firas Malhas María Paz Barriga Benning, Anang & Partners International Business Legal Morales & Besa Nana Esi Beduwa Ghunney Associates Eugenio Besa Bentsi- Enchill Letsa & Lina Odeh Morales & Besa Ankomah Ministry of Health David Cademartori Fred Borson Imad Qasem Barros & Errázuriz University of Nottingham General Supplies Department Jorge Claro Lesley Dodoo Kais Zayadin International Procurement Institute, INPRI Erik Koenen Ali Sharif Zu’bi Advocates & GID International BV Legal Consultants Felipe Escárate Morales & Besa Divine Letsa Bentsi- Enchill Letsa & Mexico Eliel Hasson René Arce Ankomah National Law Center for Inter- Kuri Breña Sánchez Ugarte y American Free Trade Festus Mantey Aznar Benning, Anang & Partners Karina Henríquez Rodolfo Barreda Claro & Cía. Sivert Ofori Basham, Ringe y Correa, S.C. Ministry of Finance Camilo Lledo Eduardo Bohórquez Carey Kingsley Osei Transparencia Mexicana, A.C. State University of New York Catalina Margulis Mariano Calderón Barros & Errázuriz Kofi Osei-Afoakwa Santamarina y Steta S.C. Osei-Afoakwa Consult Camila Ringeling Lindita V. Ciko Torza Barros & Errázuriz Murtada Mohammed Sesay Greenberg Taurig Health Supply Matters Marcos Rios Araceli Cordero Carey Transparencia Mexicana, A.C. Dora Ruiz Alfonso Cortez ChileCompra Baker & McKenzie José Sánchez Carla Crespo Claro & Cía. Transparencia Mexicana, A.C. Ricardo Urenda Miguel de Erice Matias Vergara DLA Piper Carey 111 Contributors Horacio de Uriarte Alejandro E. Villareal Santos Thossaporn Saensawatt Mijares, Angoitia, Cortés y Kuri Breña Sánchez Ugarte y LS Horizon Limited Fuentes, S.C. Aznar Audray Souche Ana Esnarriaga Bruno Viñals DFDL Baker & McKenzie Basham, Ringe y Correa, S.C. Sompholn Trakulroong Juan Manuel González HNP Legal Ltd. Greenberg Taurig Sweden Wanchai Yiamsamatha Foyen Advokatfirma Jorge Guadarrama LS Horizon Limited Baker & McKenzie Robert Ågren Lund University Paula López Turkey Barrera, Siqueiros y Torres Camilla Ahston Mehtap Yýldýrým Öztürk Landa, S.C. Trafikverket Çakmak Avukatlık Bürosu Hugo López Coll Anton Johansson Baran Alpturk Greenberg Taurig Hannes Snellman Attorneys Ltd. Hergüner Bilgen Özeke Attorney Partnership Carlos Maass Magnus Josephson Baker & McKenzie Magnus Josephson AB Halil Altan Sağlık Bakanlığı PYDB Héctor Medina Olof Larsberger Baker & McKenzie Hannes Snellman Attorneys Ltd. Murat Aygün Pekin & Bayar Law Firm Elías Moncada Joakim Lavér Santamarina y Steta, S.C. Hannes Snellman Attorneys Uğur Sarper Boz Ltd. Hergüner Bilgen Özeke Attorney Nelson Olavarrieta Partnership Olavarrieta Legal Kristian Pedersen Delphi Zeynep Çakmak Horacio Paredes Vázquez Çakmak Avukatlık Bürosu Mijares, Angoitia, Cortes y Frida Persson Fuentes S.C. Trafikverket Dilek Cengiz Capital Markets Board of Turkey Gabriela Ramírez Anna Ulfsdotter Forssel Transparencia Mexicana, A.C. Delphi Pınar Çulha Moler Hergüner Bilgen Özeke Attorney Carlos Ramos Thailand Partnership Barrera, Siqueiros y Torres Poomjai Chaivanich Safa Mustafa Durakoğlu Landa, S.C. DFDL Çakmak Avukatlık Bürosu Jessika Rocha Marcus Collins Tolga İşmen Baker & McKenzie DFDL Ismen Buİsmen Gunalçin Ricardo Samaniego Punn Kasemsup Attorney Partnership Instituto Tecnológico Autónomo HNP Legal Ltd. Erdem Karabulut de México (ITAM) Thiti Kumnerddee Pekin & Bayar Law Firm Gerardo Sánchez Henkel HNP Legal Ltd. Özlem Kızıl Voyvoda Greenberg Taurig Hatasakdi Na Pombejra Çakmak Avukatlık Bürosu Alejandro A. Sánchez Mújica HNP Legal Ltd. Ayşe Sinem Kuri Breña Sánchez Ugarte y Aznar Penrurk Phetmani Mumcu Ismen Buİsmen Tilleke & Gibbins International Gunalçin Attorney Partnership Juan Carlos Serra Campanillo Basham, Ringe y Correa S.C. Cynthia Pornavalai Şebnem Önder Tilleke & Gibbins International Çakmak Avukatlık Bürosu Benjamín Torres Baker & McKenzie Benjarong Roongmaneekul Zeynel Tunc LS Horizon Limited Paksoy 112 Benchmarking Public Procurement 2015 Uganda United States Irene Akurut Allan Burman DN Kabugo Advocates Jefferson Consulting Group John Bosco Arinaitwe Major Clark Governance Systems Office of Advocacy, SBA International Daniel Cook Levon Hovsepyan DLA Piper Patrick Kagaba Joseph Dyer The Second Financial Seyfarth Shaw LLP Management and Michael Golden Accountability Programme Pepper Hamilton LLP (FINMAP11) Lisa Gregory Tom Kyakwise Governance Systems E. Sanderson Hoe International McKena Long & Aldridge LLP Edwin Muhumuza James D. Hollyday PPDA Pepper Hamilton LLP Eunice Naikoba Frank A. Mayer, III. Governance Systems Pepper Hamilton LLP International Lino Mendiola Norah Nangendo Andrews Kurth LLP Governance Systems Jeffery R. Mullen International Pepper Hamilton LLP Rajab Nsereko Tom Petruska Governance Systems Craig Schwartz International Pepper Hamilton LLP Gilbert Sendugwa Kristen M. Stewart Africa Freedom of Information The American Institute of Centre Architects Robert Sundberg Patrick Whang Ronald Wietecha 113 Glossary of Terms Glossary of terms Alternate bid Alternate bid is a second bid submitted with the original bid, with a different price or alternate methods and materials. Bid assessment method Method used by the evaluating committee to assess the bids submitted against the evaluation criteria, for ascertainment of the successful submission. Cost Official fees and charges incurred by suppliers throughout the public procurement process. TVA and unof- ficial or unlawful payments or bribes are not counted as costs. Professional fees (lawyers or other experts fees) are only counted as a cost if suppliers required to use such services by law. Evaluation criteria Criteria used to evaluate bids, as identified in the solicitation documents. Open tendering Method of procurement involving public and unrestricted solicitation, under which all interested suppliers are welcome to submit a bid. Procedure Applied to the Benchmarking Public Procurement indicators, an interaction between a supplier and external parties, including lawyers, notaries, and government agencies. Interactions between company owners or company officers and their employees are not considered separate procedures. Regulatory framework Applied to the Benchmarking Public Procurement indicators, all public procurement laws and regulations, legal texts of general application, binding judicial decisions and administrative rulings in connection with public procurement. 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