WHEREAS, to achieve better transparency, efficiency, fairness and impartiality in public procurement and to enable the utilization of the large sum of public money spent on procurement in a manner that ensures greater economy and efficiency by addressing problems encountered in the course of implementation of the proclamation determining the procedures of public procurement of the Ethiopian Federal Governmemt and establishing the Supervisory Agency during the years in which it was enforce;
WHEREAS, it is necessary to ensure that an organization enabling the realization of the economic
benefit and efficiency flowing from bulk purchase is in place;
WHEREAS, to ensure that public property in which a significant amount of public money is invested, is utilized in such a manner as to enable the government device maximum benefit therefrom and modernize the administration thereof, it is necessary to introduce an integrated public property
administration;
NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic
Republic of Ethiopia, it is hereby proclaimed as follows:
CHAPTER ONE GENERAL
1. Short Title
This Proclamation may be cited as “The Ethiopian Federal Government Procurement and Property
Administration Proclamation No.649/2009”.
2. Définitions
In this Proclamation unless the context requires otherwise:
1/ «Goods» mean raw material, products and equipment and commodities in solid, liquid or gaseous form, marketable software and live animals as well as installation, transport, maintenance or similar obligations related to the supply of the goods if their value does not exceed that of the goods themselves;
2/ «Services» mean any object of procure- ment other than works, goods and consult- any services: such as maintenance, security, janitorial, electricity, telecomm- unication and water supply services;
3/ «Works» mean all work associated with the construction, reconstruction, up grading, demolition, repair or renovation of a building road, or structure, as well as services incidental to works, if the value of those services does not exceed that of the works themselves and includes build-own-operate, build- own-operate-transfer and buildoperate- transfer contracts;
4/ «Consultancy Service» mean a service of an intellectual and advisory nature provided by consultants using their professional skills to study, design and organize specific projects, advice clients, conduct training and transfer knowledge;
5/ «Procurement » mean obtaining goods, works, consultancy or other services through purchasing, hiring or obtaining by any other contractual means;
6/ «Public Body » mean any public body, which is partly or wholly financed by the Federal Government budget, higher education institutions and public institutions of like nature;
7/ «Public Fund » mean any monetary resource appropriated to a public body from the Federal
Government treasury or aid grants and credits put at the disposal of the public bodies by foreign
donors through the Federal Government or internal revenue of the public body;
8/ «Public Procurement » mean procurement by a public body using public fund;
9/ «Supplier » mean a natural or juridical person under contract with a public body to supply goods, works or services;
10/ «Candidate » mean a natural or juridical person invited to take part in public
procurement or seeking to be so invited;
11/ «Bidder » mean a natural or juridical person submitting a bid;
12/ « Bidding Documents » mean a document prepared by the public body as a basis for preparation of bids; which contains a specification of the desired object of procurement;
13/ «Bid Proposal» mean a document submit- ted by bidders to participate in a bid on the basis
of the bid document prepared by a public body in respect of that procurement;
14/ «Procurement Directive » mean the directive to be issued by the Minister of Finance and Economic Development in accordance with this Proclamation;
15/ «Minister or Ministry» mean the Minister or the Ministry of Finance and Economic Development respectively;
16/ «Person » mean a natural or juridical person;
17/ «Special Procurement» mean a procurement of sizable volume carried out in bulk by a decision of the Minister on account of the national significance of that procurement or to fulfill similar requirements of various public bodies or requirements of a public body within a given period of time;
18/ «Framework Contract» mean a general agreement of procurement establishing unit price and other
terms and conditions of contract which serves as a basis for supplies to be delivered under future
specific contract;
19/ «Framework Contract Supplier» mean a supplier who has entered in to a contractual obligation to supply goods or services Under a framework contract;
20/ «Board» mean an entity established Under this Proclamation to review and decide on complaints from candidates in regard to the conduct of procurements and disposal of property of the Federal Government;
21/ «Public Property» mean any property of the Federal Government other than public fund and land;
22/ «Custodial Responsibility» mean the responsibility conferred on a civil servant by the head of a public body or by a person delegated by him to protect and maintain public property until it is disposed or written off, or transferred to the custody of another civil servant or public body;
23/ «Fixed Asset» mean tangible asset the value of which is determined by a directive to be issued by the Minister, that is in operational use and that has a useful economic life of more than one year, such as furniture, computers, heavy equipment, vehicles, ships and aircraft, buildings, roads, sewers, bridges, irrigation systems, dam and the like;
24/ «Life- Time Approach» mean a system of effective management and control of public property which takes in to account all associated activities and costs, namely, planning, acquisition, receipt, use,
maintenance, consumption or disposal or deletion of public property;
25/ «Supplies» means all public property other than fixed assets, which can be consumed within one year of use and the value of which is determined by a directive to be issued by the Minister;
26/ «Disposal» mean the transfer of public property to another person by sale or other means or the act of getting rid of public property by burning or burying;
27/ «Public Private Partnership» mean Investment through private sector participation by a contractual arrangement between a public body and a private sector enterprise, as the concessionnaire, in which the concessionnaire:
a) undertakes to perform or undertake any construction project or service or lease concession;
b) assumes substantial financial, technical and operational risks in connection with the performance of a public function or use of government property; and
c) receives consideration for performing a public function or utilizing government property, by way of fees from any public funds, user levies collected by the concessionnaire from users or customers for a service provided by it, or a combination of such consideration.
28/ «Concessionaire» mean a person who enters into a contract with a public body under a public private partnership;
29/ "Regional States" mean member states of the Federal Democratic Republic of Ethiopia listed under Article 47 of the Constitution of the Federal Democratic Republic of Ethiopia and for the purpose of this Proclamation include the Addis Ababa and Dire Dawa City administrations.
3. Scope of Application
1/ This Proclamation shall apply to all Federal Government procurement and property administration.
2/ Notwithstanding the provisions of sub-article
(1) of this Article:
a) the Minister in consultation with the heads of the relevant public bodies may in the interest of national security or national defense decide to use a different procedure of procurement and property
administration in which case the Minister shall define by a directive the method of procurement and property administration to be followed in order to serve the interest of economy and efficiency;
b) this Proclamation does not apply to contracts a public body enters into with another public body for the provision of goods, works, consultancy or other services at cost.
4. Gender Reference
Provisions of this Proclamation set out in masculine gender shall also apply to the feminine gender.
5. Principles of Public Procurement and Property Administration
Public procurement and property administration shall have to comply with the following principles:
1/ ensure value for money in the use of public fund for procurement;
2/ non discrimination among candidates on grounds of nationality or any other criteria not having to do with their qualification, except in cases of preference specifically provided for in this Proclamation;
3/ transparency and fairness of the criteria on the basis of which decisions are given in public procurement as well as of decisions in each procurement;
4/ accountability for decisions made and measures taken with regard to public procurement and property administration;
5/ careful handling and proper use of public property.
6. International Obligations
1/ To the extent that this Proclamation conflicts with an obligation of the Federal Government under or arising out of an agreement with one or more other states or with an international organization, the provisions of that agreement shall prevail.
2/ Where an agreement referred to in sub-article
(1) of this Article contains a preference or preferences in favour of national and resident bidders, the public body shall ensure that the applicable preference or preferences are clearly stated in the bidding documents.
7. Public Accessibility of Legal Texts
This Proclamation and the procurement and property directives to be issued by the Minister as
well as other documents pertaining to public procurement and property administration shall be
promptly made accessible to the public and systematically maintained.
8. Responsibilities of Heads of Public Bodies
Public bodies shall have overall responsibility for procurements they carry out and the property they
administer. In particular, the head of a public body shall apart from those specified in the directives to be issued by the Minister, have the following responsibilities:
a) cause to be established an adequately staffed unit for procurement and property administration;
b) setup a procurement endorsing committee which approves procurements of higher value; it may also setup ad hoc evaluation committee for complex procurement;
c) ensure that staff and officials assigned in the procurement and property administration and
those assigned as members of the procurement endorsing committee receive training to enable them acquire knowledge of the content and application of this Proclamation, the directives to be issued in
accordance with this Proclamation, the procurement and property administration manuals, the standard bidding documents and other relevant forms;
d) ensure that the procurement of the public body is preplanned and complies with procurement principles enshrined in this Proclamation;
e) ensure that the procurement department, the procurement endorsing committee and other
sections of the public body involved in procurement discharge their duties properly;
f) where necessary, enter into a contract with third parties which support the public body in the process of procurement;
g) ensure that property at the disposal of the public body is used in such a manner as to achieve economy and efficiency;
h) ensure that property at the disposal of the public body is duly registered and traceable, properly handled and looked after and disposed off when it is no longer useful.
9. Duties and Responsibilities of Procurement and Property Administration Unit
The procurement department in a public body shall, apart from the responsibilities assigned to it
by the procurement directives and the job description prepared by the public body have the following duties and responsibilities:
a) execute public procurement in a perfectly ethical and skillful manner;
b) carry out public procurement in accordance with this Proclamation, the procurement directives, the procurement manual , the standard bid documents, the forms and the procurement contract;
c) maintain complete record for each procurement in accordance with Article 23 of this Proclamation.
10. Duties and Responsibilities of Procurement Endorsing Committee
The procurement endorsing committee shall have the following responsibilities:
a) ensure that public procurement is executed in compliance with this Proclamation, the procurement directives, the procurement manual, the standard bid document and the forms;
b) review and endorse procurements within the financial limits set by the directive;
c) advise the head of the public office on methods of achieving effective procurement.
11. Accountability
Procurement and property administration staff or heads of procurement and property administration units and members of the procurement endorsing committee in public bodies shall be accountable for their actions in accordance with this Proclamation and the directives to be issued by the Minister.
CHAPTER TWO THE PUBLIC PROCUREMENT AND PROPERTY ADMINISTRATION AGENCY
12. Establishment
1/ It is hereby reestablished the Public Procurement and Property Administration Agency (hereinafter
referred to as the "Agency") as an autonomous Federal Government organ having its own juridical personality.
2/ The Agency shall be accountable to the Minister.
13. Head Office
The head office of the Agency shall be in Addis Ababa and may have branch offices else where as may be necessary.
14. Objectives of the Agency
The objectives of the Agency are:
1/ ensure the application of fair, competitive, transparent, non-discriminatory and value for money procurement and modern public property administration;
2/ follow up compliance of public bodies with the provisions of this Proclamation in conducting
procurement and administrator property at their disposal;
3/ build the capacity of procurement and property administration with in the Federal Government;
4/ work for the prevalence of uniform and consistent system of public procurement and property
administration at national level;
5/ endeavor to harmonize the system of public procurement and property administration with the
internationally recognized standards.
15. Functions of the Agency
The Functions of the Agency are to:
1) advise the Federal Government on all public procurement and property administration policies, principles and implementation and provide technical assistance to the regional governments and city administrations;
2) monitor and report to the Minister the performance of the public procurement and property administration systems in the Federal Government, initiate amendments on laws and implementation system improvements;
3/ in collaboration with competent authorities ensure the setting of training standards, competence levels, certification requirements and professional development paths of public procurement and property administration;
4/ prepare, update and issue authorized versions of the standard bidding documents, procedural forms and any other attendant documents pertaining to procurement and property administration;
5/ consider and decide on request from public offices to deviate from the prescribed methods of
procurement, the standard bidding documents, procedural forms and any other attendant documents in effecting procurement or use other systems or methods of disposing of public property than those authorized by law;
6/ introduce an efficient system of listing under which suppliers who are interested to participate in public procurement are registered; receives, reviews and records applications by candidates for registered supplier status and distribute the suppliers list;
7/ review and decide on complaints submitted by public bodies on the conduct of bidders or suppliers, and send copies of such decision to the concerned organs;
8/ maintains and distributes a list of suppliers who by reason of having seriously neglected their obligations under a public procurement contract, or having provided false information about their qualifications or having committed the act of the kind referred to in Article 16(3) and 32(2) of this
Proclamation have been debarred from participating in public procurement by the Agency;
9/ conduct audit to ensure that procurement and property administration activities of public bodies are in accordance with this Proclamation and other documents governing public procurement and property
administration;
10/ set up, develop, maintain and update a data base that covers the entire spectrum of public
procurement and property administration;
11/ develop policies and maintain an operational plan on capacity building both for institutional and human resource development;
12/ establish and maintain institutional linkages with entities working for the development of a profession and related matters who have an interest to participate in public procurement and property administration;
13/ undertake public procurement execution and property administration research and surveys,
and establish cooperation in the area of capacity building;
14/ administer and enforce compliance with all the provisions of this Proclamation, regulations and
directives to be issued in accordance with this Proclamation and other functions given to it by the
Minister;
15/ submit quarterly and annually report to the Minister regarding the overall functioning of
the public procurement and property administration system based on information provided to it by public bodies and provide such data as the Minister may request regarding the nature and volume of public procurement handled by each entity; as well as on matters of property administration;
16/ provide office facilities and technical support for the board established by this Proclamation to review complaints of candidates in public procurement and disposal of public property and follow up the implementation of the decisions of the board;
17/ cause any supplier barred by the decision of competent authorities of a regional government, from participating on procurements of such region, not to participate in procurements of federal public
bodies;
18/ set a standard for major items of public bodies representing important fixed assets and follow-up adherence to such standards.
16. Powers of the Agency
In the exercise of its functions, the Agency shall have the power to:
1/ require any information, documents, records and reports in respect of any aspect of the public procurement process where a breach, wrongdoing, mismanagement or collusions has been alleged, reported or proven against any public body;
2/ summon witnesses, call for the production of books of accounts, plans, documents and examine witnesses and parties concerned on oath;
3/ give warning to or suspend for a definite or indefinite period of time from participating in public procurement፡ candidates, suppliers or persons involved in the disposal of public property where it proves that they have offered a price higher than the market or committed an act contravening the provisions of this Proclamation and the directives to be issued by the Minister;
4/ conduct audit on its own program or cause audit to be conducted where it receives allegations of misconduct warranting such audit on a process of public procurement and property administration;
5/ upon the request of public bodies, exceptionally and when justified on sound grounds, may permit the use of a procedure which is not consistent with the procédures laid down by this Proclamation or the procurement directive.
17. Organization of the Agency
The Agency shall have:
1/ a Director General and Deputy Director General to be appointed by the Government; and
2/ the necessary staff.
18. Powers and Duties of the Director General
1/ The Director General shall be the chief executive officer of the Agency and shall, subject to the
general directives of the Minister, direct and administer the activities of the Agency.
2/ Without prejudice to the generalities of the provisions of sub-article (1) of this Article, the Director General shall:
(a) exercise the powers and functions of the Agency specified under Articles 15 and 16 of this Proclamation;
b) employ, administer and dismiss personnel of the Agency in accordance with the Federal Civil Service Proclamation;
c) prepare the work program and budget of the Agency and implement the same upon approval;
d) prepare and submit to the Minister operational and financial report on the activities of the Agency;
e) represent the Agency in all its relations with third parties.
3/ The Director General may delegate part of his powers and duties to employees of the Agency to the extent necessary for the effective management of the functions of Agency.
19. Powers and Duties of the Deputy Director General
1) Subject to directions given from the Director General, the Deputy Director General shall assist the Director General in planning, organizing, directing and coordinating the activities of the Agency. assist the Director General in planning, organizing, directing and coordinating the activities of the Agency.
2) The Deputy Director General shall act on behalf of the Director General in his absence.
20. Source of Budget
The budget of the Agency shall be allocated by the Government.
21. Books of Accounts
1/ The Agency shall keep complete and accurate books of accounts.
2/ The books of accounts and other Financial documents of the Agency shall be audited annually by the Auditor General or by an auditor designated by him.
CHAPTER THREE BASIC PUBLIC PROCUREMENT PROCEDURES
22. Procurement Plan
1) Public bodies shall have to prepare an annual procurement plan showing their procurement for the concerned budget year and containing such details as are stated in the directive to be issued by the Minister.
2) The procurement plan to be prepared by public bodies in accordance with sub-article
(1) of this Article, shall have to be approved by the head of the public body concerned and communicated to the relevant departments of the public body and the Agency until Hamle 30 of the Ethiopian Calendar.
23. Records of Procurement
1/ Public bodies shall have to maintain records and documents regarding their public procurement for such period of time as is determined by the directive to be issued by the Minister from the date of concluding any procurement proceeding Such informations shall include the following:
a) a brief description of the goods works or services to be procured;
b) the invitation to bid;
c) the names and addresses of suppliers that submitted bids, proposals or quotations, and the name and address of the winning suppliers;
d) the evaluation criteria stipulated and applied and a summary of the evaluation and comparison of bids, proposals and quotations received;
e) information on the proceeding of any decision rendered where a complaint against a procurement process is lodged;
f) the grounds for using a procurement procedure other than open bidding.
2/ The record concerning any proceeding shall on request, and once the proceedings have resulted in a contract or have otherwise been terminated, be made available to candidates who participated in the proceedings.
However, except when ordered to do so by a competent court or other body authorized by law and subject to the conditions of such an order, the pblic body shall not 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;
b) information relating to the examination and evaluation of bids, proposals or quotations and the actual content of bids, proposals or quotations, other than in the summary record form referred to in subarticle
(1)(d) of this Article.
24. Non-discrimination
Without prejudice to the provisions of Article 25 of this Proclamation, candidates shall not be discriminated against in the proceeding of public procurement on the basis of nationality, race or any other criterion not having to do with their qualifications.
25. Preference
1/ A preference margin which shall be determined by a directive to be issued by the Minister for goods produced in Ethiopia, for works carried out by Ethiopian nationals and for consultancy services rendered by Ethiopian nationals be granted in the evaluation process.
2/ In addition to the preference provided for in sub-article (1) of this Article, further preference of such margin as to be determined by the directive to be issued by the Minister may be allowed for small and
micro-enterprises established in accordance with Small and Micro-Enterprises Proclamation.
3/ Where in the evaluation of bids for procurement of goods, services or works equal percentage points are resulted for bidders offering similar price and quality, preference shall be given to local goods,
services or companies.
4/ For the purpose of sub-article (1) of this Article any good to which more than 35% of the value added occurs in Ethiopia shall be deemed as one which is produced in Ethiopia.
26. Form of Communications
1) Communications between candidates and public bodies shall be in writing. Any communications not made in written form shall be subsequently referred to and confirmed in writing.
2) Subject to necessary safeguards with regard to authenticity and confidentiality, and when technical conditions so permit, the Minister may issue a directive to determine the extent by which communication by electronic means may be used in addition to or instead of writing.
27. Language
1) Except where a procurement proceeding involves international bidders, for national bids in which only local bidders participate, the bid document shall be prepared and the bid process shall be conducted in the Amharic language. However, if it is found to facilitate the procurement process, the public body concerned may authorize the use of English language in the preparation of bid documents and bid proposals in a national bid in which only local bidders participate, provided that such an act is not prejudicial to fair competition.
2) For procurement to be conducted by means of international competitive bidding, all documents shall have to be prepared in English language.
28. Qualification of Candidates
1/ In order to participate in public procurement, candidates must qualify by meeting the following criteria and such other criteria, as the public body considers appropriate Under the circumstances:
a) that they possess the necessary professional and technical qualifications and competence, financial resources, equipment and other physical facilities, managerial capability, experience in the
procurement object, reputation, and the personnel, to perform the contract;
b) that they have the legal capacity to enter into the contract;
c) that they are not insolvent, in receivership, bankrupt or being wound up, their business activities have not been suspended, and they are not the subject of legal proceedings for any of the foregoing;
d) subject to the directives to be issued by the Minister, that they are registered in the suppliers list;
e) that the period for which they were suspended from participating in public procurement is over;
f) that they have renewed trade license and fulfilled their obligations to pay taxes according to Ethiopian tax laws;
g) that they have a bank account.
2/ The public body may require candidates to provide such appropriate documentary evidence or other information as it may deem useful to satisfy itself that the candidates are qualified in accordance with the criteria referred to in sub-article (1) of this Article.
3/ Any requirement established pursuant to this Article shall be set forth in the bid documents or other documents for solicitation of proposals, and shall apply equally to all candidates.
4/ The public body shall evaluate the qualifications of candidates in accordance with the criteria and procedures set forth in the documents referred to in sub-article (3) of this Article.
5/ The public body shall disqualify a candidate who submits a document containing false information for purposes of qualification; it shall disqualify a candidate if it finds at any time that the information submitted concerning the qualifications of the candidate was materially inaccurate or materially
incomplete.
29. Technical Specification
1/ Technical specifications and descriptions laying down the characteristics of the goods, works or services to be procured shall be prepared for the purpose of providing a correct and complete description of the object of procurement and for the purpose of creating conditions of fair and open
competition between all candidates.
2/ The technical specifications shall clearly describe the public body’s requirements with respect to quality, performance, safety and where necessary dimensions, symbols, terminology, packaging, marking and labeling or the processes and methods of production and requirements relating to
conformity assessment procedures.
3/ Technical specification prescribed by public bodies shall, as far as possible:
a) be in terms of performance rather than design or descriptive characteristics;
b) be based on national standards, where such exist, or otherwise on internationally recognized standards or building codes;
c) inviting open competition and devoid of any statement having the effect of restricting competition.
4/ There shall be no requirement or reference in the technical specifications to a particular trademark or name, patent, design or type, specific original producer or service provider, unless there is no sufficiently precise or intelligible way of describing the procurement requirements of the public body
and provided that words such as“or equivalent” are included in the specifications.
30. Rejection of Bids, Proposals and Quotations
1) Public bedies may for one or more of the following reasons reject in whole or in part bids, proposals or quotations at any time prior to the conclusion of procurement contract where:
a) there is proof of error in the procurement proceeding which could affect the outcome of the bid;
b) it is ascertained that the procurement has no use in enabling the public body to obtain a better technical or economic advantage as a result of a change of work plan or another alternative representing a better option to meet the requirement of the public body;
c) bidders fail to meet the minimum criteria set forth in the bid document;
d) the minimum price offered in the bid does not match with the market price circulated by the Agency and the public body expected that it can get a better price advantage by re-advertising the bid;
e) the price offered by the successful bidder exceeds the budgetary allocation made for the procurement and the public body cannot make up for the deficiency from any other source;
f) it is proved that the bidding is not sufficiently competitive as a result of connivance among candidates.
2) Public bodies shall have to give notice to candidates forth with disclosing the reasons for rejecting bids, proposals or quotations wholly or partially in accordance with sub article (1) of this Article. However, they shall not be required to justify the reasons.
3) If the decision to reject all bids results before the opening date and time, the bids received shall be returned unopened to the candidates submitting them.
4) The procuring entity shall incur no liability towards candidates solely by virtue of its invoking sub-article (1) of this Article.
31. Electronic Procurement
To achieve economy, transparency and modernization in public procurement, the Ministry may authorize the use of electronic means as a method of procurement. In order to implement this:
1) the Agency shall conduct a study and submit proposal on a system of conducting procurement by means of electronic exchange of information which is appropriate to the level of development of the country;
2) the Agency shall ensure that public bodies, suppliers and supervising entities develop the capacity required to implement the system;
3) upon due consideration of the proposed system of effecting procurement by means of electronic
exchange of information and where he is satisfied that the overall system and capacity of public
bodies and suppliers allows the carrying out of procurement through electronic exchange of
information, the Minister may authorize the implementation of the electronic system in all or certain public procurement proceedings by establishing the appropriate framework for the operation of the proposed electronic system.
32. Rules of Ethics in Public Procurement and Property Administration
1) Subject to the details to be specified in the directive to be issued by the Minister, personnel engaged in public procurement or property administration shall have to observe the following rules of ethics in the discharge of their duties:
a) the obligations to notify any actual or possible conflict of interest and isolate oneself from any processes involving such conflict;
b) to give candidates and suppliers equal opportunity of competition and performance;
c) keep in secret any confidential information concerning the public body, candidate or supplier which he/she came to know on account of his/her duty;
d) to reject any gift or offer of an employment opportunity or anything of monetary value or service;
e) to report to the law enforcement agencies
any intended or completed action of corruption and contribute to the effort to fight corruption and malpractice;
f) demonstrate concern to public resource and property.
2) Any candidate or supplier shall have to refrain from any act contravening the process of public procurement and property disposal.
Without prejudice the provisions of Chapter Fifteen of this Proclamation, any candidate or supplier shall have the responsibility:
a) with an intention to influence the decision or action of the head or staff member of the public body or persuade the public body to change its established practice of procurement and property disposal, not to give directly or indirectly gifts of any kind in the form of inducement, not to promise to give gifts,
not to offer employment opportunity or anything of monetary value or service;
b) with an intention to mislead a procurement proceeding not to present a falsified document or not to withhold information he/she should have disclosed;
c) not to connive with another candidate in an act of false competition in order to get unfair advantages;
d) to report to the law enforcement agencies any intended or completed action of corruption which he came to know during the procurement proceedings and contribute to the effort to fight
corruption and malpractice.
33. Methods of Procurement
1) The following methods shall be used in public procurement:
a) Open Bidding;
b) Request for Proposals;
c) Two stage Tendering;
d) Restricted Tendering;
e) Request for Quotation;
f) Direct Procurement.
2) Except as otherwise provided in this Proclamation, public bodies shall use open bidding as the preferred procedure of procurement.
3) Public bodies may use a method other than open bidding only where conditions for use of such other method stipulated under this Proclamation are satisfied.
4) Public bodies shall not split procurement requirements for a given quantity of goods, works or services with the intention of avoiding the preferred procurement procedure stated under this Proclamation or in the procurement directive.
34. Public Private Partnership
The Minister may issue directive prescribing the rules governing the formation of Public Private
Partnership and the modes of implementation of such partnership.
CHAPTER FOUR PROCEDURE OF OPEN TENDERING
35. Advertisements
1) Invitation to bid shall be advertised in at least one times in a national news paper of general circulation which is published in the language the bidding document is prepared.
2) Where the public body finds it necessary, it may, in addition to the medium mentioned in sub article (1) of this Article, advertise the bid on a national radio and television.
3) The time allowed for preparation of bids shall not be less than the minimum number of days stated in the procurement directives.
36. Invitation to Bid
Apart from containing the following particulars, the invitation to bid shall be prepared in accordance with the standard bidding document to be developed by the Agency:
a) the name and address of the public body;
b) a brief description of the goods, works or services to be procured;
c) the means and conditions for obtaining the bidding documents and the place from which they may be obtained;
d) the place and deadline for the submission
of bids; and
e) the place and time for opening of bids, along with an announcement that bidders or their representatives are allowed to attend at the opening of bids.
37. Bidding Documents
The bidding documents shall contain sufficient information to enable competition among the bidders to take place on the basis of complete, neutral and objective terms. In particular, bidding documents must include:
a) instructions for the preparation and submission of bids;
b) information about the final date for receipt of bids, the address to which bids must be sent, the date, hour and place of opening, as well as an announcement that bidders or their representatives are allowed to attend the opening ceremony;
c) bid submission forms and, where applicable,
forms of bid security to be provided;
d) the number of copies to be submitted with the original bid;
e) the general and specific conditions of the contract;
f) specification of requirements, including time limit for delivery or completion of the task, as appropriate;
g) evidence to be provided by the bidder to demonstrate its qualifications as well as its fiscal and legal standing;
h) the period during which the bid remains in force;
(i) the criteria and the points given to each criterion for evaluation of bids and award of the contract;
(j) a reservation to the effect that the public body may reject all bids at any time prior to the notification of award; and
(k) the price adjustments that may be made during contract implementation and the conditions and the manner under which such price adjustments can be made to special procurements prescribed by the Minister.
38. Provision of Bidding Documents
1) Bid documents shall be made available to candidates at a price not exceeding the cost of reproduction and delivery of such documents to candidates.
2) The bidding document shall be delivered to candidates on working days between the date of publication of the invitation to bid and the closing date of the bid and in the manner specified in the invitation to bid.
3) Where it deems it to be appropriate the public body may make the bidding document available to candidates free of charge.
39. Modifications to Bidding Ddocuments
1) At any time prior to the deadline for submission of bids, the public body may, on its own initiative or
in response to an inquiry by a candidate having purchased the bidding documents, modify the bidding documents by issuing an addendum, which becomes an integral part of the bidding documents.
2) Any addendum shall be communicated promptly to all candidates having purchased the bid documents at the same time.
3) If the public body considers it necessary to amend the bidding documents and if it determines that there is no enough time to incorporate the modification, it may postpone the closing date by a number of days, depending on the procurement object, which is sufficient to enable the bidders to take the
addendum into account in preparing their bids.
40. Bid Security
1) Public bodies shall include in the bidding documents a condition that bids must be accompanied by a bid security. The amount of such bid security shall be sufficient to discourage irresponsible bidders.
2) Notwithstanding the provision of sub-article
(1) of this Article, procurement in respect of which bid security is required and the amount of bid security thereof, is to be prescribed by the directive to be issued by the Minister.
3/ A bid security will be forfeited if a bidder withdraws his bid within the validity period thereof or in the case of a successful bidder, if the bidder repudiates the contract or fails to furnish performance security, if so required.
41. Submission and Receipt of Bids
1/ Bids shall be submitted in writing, signed and in a sealed envelope, to the place and before the deadline stated in the invitation to bid.
2/ The public body shall give a receipt to the bidder indicating the time and date on which the bid document was submitted, where it becomes impossible to put the bid document in a bid box due to its large size.
3/ Without prejudice to the provisions of subarticle
(2) of this Article, a bid document recieved after the deadline for submission shall be returned unopened to the bidder.
42. Opening of Bids
1/ At the time stipulated in the bidding document for opening of bids, which should follow immediately after the deadline for submission of bids, the public body shall open all bids received before the deadline.
2/ The name of the bidder and the total amount of each bid, discounts offered and any such
information as the public body deems necessary to let the bidders know their relative rank shall be read out aloud and recorded and a copy of the record shall be made available to any bidder on request.
3/. Notwithstanding the provisions of sub – article (2) of this Article, the envelope containing the price offered by the bidder shall be read after the evaluation of the technical proposal where technical and
financial proposals are submitted in two separate envelops.
43. Examination and Evaluation of Bids
1) The public body may ask bidders for clarification of their bids in order to assist in the examination and evaluation of bids; however, no change in the substance of the bid, including changes in price, shall be sought, offered or permitted.
2) Notwithstanding sub-article (1) of this Article, the public body shall correct arithmetical errors that are discovered during the examination of bids. The public body shall give prompt notice of any such
correction to the bidder that submitted the bid.
3) Without preicdice to sub-article (4) of this Article, the public body may regard a bid as responsive only if it conforms to salient requirements set forth in the bidding documents.
4) The public body may regard a bid as responsive even if it contains minor deviations that do not
materially alter or depart from the characteristics, terms, conditions and other requirement set forth in bidding documents or if it contains errors or oversights that are capable of being corrected without touching on the substance of the bid. Any such deviations shall be quantified, to the extent possible, and appropriately taken account of in the evaluation and comparison of bids.
5) Any public body shall not award a contract when:
a) the bidder has failed to demonstrate, in the manner provided in Article 28(1) of this Proclamation, that it is qualified;
b) the bidder does not accept a correction of an arithmetical error made pursuant to sub-article (2) of this Article;
c) the bid is not responsive.
6) In the process of selecting the successful bidder, the public body shall only consider substantially responsive bids for further evaluation and comparison, as defined in subarticle
(8) of this Article in accordance with the criteria set forth in the bidding documents. No criterion shall be used that has not been set forth in the bidding documents.
7) No bidder may be required to change the price offered in his bid or otherwise modify his proposal or to assume obligation to do so except as set forth in the bidding document.
8) The successful bid shall be:
a) the bid that is found to be responsive to the technical requirements and with the lowest evaluated price;
b) if the public body has so stipulated in the bidding documents, the bid offering better economic advantage ascertained on the basis of factors affecting the economic value of the bid which have
been specified in the bidding documents, which factors shall, to the extent practicable, be objective and
quantifiable, and shall be given a relative weight in the evaluation procedure or be expressed in monetary terms wherever practicable;
c) where it is ascertained in post evaluation of bids that the legal, financial and technical standing of the candidate selected as the successful bidder in accordance with paragraph (a) or (b) of this sub-article
conforms to the requirements stated in the bidding document.
9) The public body shall prepare an evaluation report, containing a summary of the examination and evaluation of bids.
44. Process to be Confidential
After the opening of bids, information relating to the examination, clarification, and evaluation of bids and recommendations for award must not be disclosed to bidders or other persons not officially
concerned with this process until the award of the contract is announced.
45. Matters subject for Negotiation with the Successful Bidder
1) The public body may negotiate with the successful bidder on matters of contract performance not dealt within the bidding document.
2) Except in a single source procurement provided for in Article 50 of this Proclamation the public body may not negotiate on the price offered by the successful bidder and on other issues related to price.
46. Notification of Award and Signing of Contract
1) Prior to the expiry of the period of bid validity, the public body shall notify the successful bidder that
its bid has been accepted. The notification of award shall specify the time within which the contract must be signed. The unsuccessful bidders shall also be informed as to who the successful bidder is and why they have lost the bid.
2) The existence of a contract shall be confirmed through the signature of a contract document incorporating all agreements between the parties.
3) The contract shall not be signed by the public body prior to the receipt of the notice by the
unsuccessful bidder and before the period specified in the directive to be issued by the Minister has lapsed.
4) The procedures that public body has to follow in administering the contract shall be prescribed by a directive to be issued by the Minister.
47. Contract Security
A supplier shall provide the public body with a contract security to make good any damage the public body may sustain as a result of default by the supplier under the contract. The type of procurement for which contract security is required and the type and amount of contract security shall be determined by a directive to be issued by the Minister.
48. Advance Payment
1) The amount of advance payment that may be allowed to suppliers in public procurement and the manner in which it is made available shall be determined by the directive to be issued by the Minister.
2) Advance payment may be effected only where a supplier furnishes advance payment guarantee in an amount equal to the advance payment.
CHAPTER FIVE RESTRICTED TENDERING
49. Conditions for use of Restricted Tendering
Public bodies may use restricted tendering as a method of procurement only where the following
conditions are satisfied:
1) it is a ascertained that the required object of procurement is available only with limited suppliers;
2) the cost of procurement does not exceed the threshold specified in respect of restricted tendering in the directive to be issued by the Minister; or
3) where a repeated advertisement of the invitation to bid fails to attract bidders in respect of a procurement subject to the directive to be issued by the Minister.
50. Procedure for Restricted Tendering
Restricted tendering procedures are the same as those applied in open tendering, except that:
1) where the object of procurement is available only with limited suppliers in accordance with Article 49(1) of this Proclamation the invitation to bid shall be sent to all such suppliers;
2) if restricted tendering is used for the reason stated in Article 49 sub-articles(2) or (3) of this
Paroclamation, the invitation to bid shall as far as possible be sent to limited suppliers chosen from
among those registered in the suppliers list on the basis of the following consideration:
a) any selection shall allow opportunities for suppliers on the list,
b) the number of suppliers to whom the invitation to bid is sent shall be such that it is sufficient to ensure effective competition and shall not as far as possible be less than five compitators.
3) the time allowed for preparation of bids shall not be less than the minimum number of days stated in the procurement directive for this method of procurement. However, if all suppliers invited to participate in the bid have submitted their bids before the closing date, the public body may open the bid ahead of schedule by giving bidders prior notice;
4) if the public body uses restricted tendering for the reason stated on Article 49(1) of this Proclamation, it shall determine whether it is necessary to require the candidates to submit bid security.
CHAPTER SIX DIRECT PROCUREMENT
51. Conditions for use of Direct Procurement
1) Public bodies may use direct procurement only where the following conditions are satisfied:
a) when in absence of competitions for technical reasons the goods, works consultancy or other required services can be supplied or provided only by one candidate;
b) for additional deliveries of goods by the original supplier which are intended either as parts of replacement for existing supplies, services or installations or as the extension of existing supplies, services or installation where a change of supplies would compel the public body to procure
equipment or services not meeting requirements of interchangeability with already existing equipment or services;
c) within limits defined in the procurement directive, when additional works, which have been not included in the initial contract have, through unforeseeable circumstances, become necessary since the separation of the additional works from the initial contract would be difficult for technical or economic
reasons;
d) within limits defined in the procurement directives, for new works consisting of the repetition of similar works which conform to a basic project of which an initial contract has been awarded on the
basis of open or restricted bidding;
e) within limits defined in the procurement directives, for continuation of consultant services, where the original contract has been satisfactorily performed and the continuation is likely to lead to gains in
economy and efficiency;
f) the head of the public body has determined that the need is one of pressing emergency in which delay would create serious problems and therefore injurious to the performance of that public body;
g) where situations arise in which shopping becomes necessary to meet the special procurement needs of public bodies. The manner of implementation of this provision shall be prescribed by the directive to be issued by the Minister;
h) for purchase of goods made Under exceptionally advantageous conditions which only arise in the very short term.
This provision is intended to cover unusual disposals by firms, which are not normally suppliers. It is not intended to cover routine purchases from regular suppliers.
2) Public bodies may use direct procurement when the contract price does not exceed an amount stated in the procurement directive.
3) It shall not be necessary to conclude a contract in respect of direct procurements effected in accordance with sub-articles (1) (g) and (2) of this Article.
4) Public bodies shall ensure that this method is not resorted to with a view to avoiding possible competition or in a manner which would constitute a means of discrimination among candidates.
52. Procedure for Direct Procurement
1) When the public body engages in direct procurement according to Article 51(1) of this Proclamation, it shall prepare a description of its needs and any special requirements as to quality, quantity, terms
and time of delivery, and shall be free to negotiate on price and conditions of offer
with the sole candidate. Without prejudice to the provisions of sub-article (3) of Article 51 of this Proclamation, any agreement reached to conduct the procurement shall be confirmed by a contract signed by both parties.
2) The salient points to focus on in the negotiation of contracts for direct procurements shall be approved by the head of the public body concerned and communicated to the negotiators.
CHAPTER SEVEN REQUEST FOR PROPOSALS
53. Conditions for use of Request for Proposal
Public bodies may engage in procurement by means of request for proposals when it seeks to obtain consultancy services or contracts for which the component of consultancy services represents more than 50% of the amount of the contract.
54. Procedure for Request for Proposals
1) The selection of candidates for consultancy services above a threshold to be determined by a directive shall be made after inviting candidates to submit expression of interest.
2) Requests for proposals shall be addressed to not less than three and not more than seven candidates selected by the public body.
3) A request for proposals shall contain at least the following information:
a) the name and address of the procuring entity;
b) description of the services required, normally through terms of reference;
c) in the case of consultancy assignments which may involve potential conflicts of interest, a reminder that candidates for such assignments must exclude themselves from procurement of goods and works which may follow as a result of or in connection with the consultancy agreement;
d) the criteria for evaluating the proposals, the relative weight to be given to price and other criteria, and the manner in which they will be applied in the evaluation of proposals;
e) place and deadline for the submission of proposals.
4) Candidates shall be given adequate time in which to prepare their proposals; such time frame shall be determined by the directive to be issued by the Minister.
5) The public body may negotiate with the first ranked candidate with respect to the nature, volume and organization of the services included in their proposals.
6) Any award by the public body shall be made to the candidate whose proposal is most advantageous, determined in accordance with the criteria and procedures for evaluating proposals set forth in the request for proposals.
CHAPTER EIGHT REQUEST FOR QUOTATION
55. Conditions for use of Request for Quotations
Public bodies may engage in procurement by means of request for quotations for the purchase of readily available goods or for procurement of works or services for which there is an established market, so long as the estimated value of the contract does not exceed an amount stated in the procurement directive to be issued by the Minister.
56. Procedure for Request of Quotations
1) Public bodies shall request quotations from as many candidates as practicable, but from at least three, if possible from among suppliers registered in the suppliers list.
2) In cases where procurements are made using request for quotation, as long as other suppliers, who can supply the same goods, services or works are available, the public body shall not repeatedly invite the same suppliers to submit their quotations. The public body shall ensure that equal opportunity of participation in public procurement is given to all candidates engaged in the business.
3) The request shall contain a clear statement of the requirements of the public body as to quality, quantity, terms and time of Delivery of the goods, works, consultancy or other services as well as other special requirements.
4) The public body shall give adequate time to candidates in which to prepare their quotations.
5) A purchase order shall be placed with the candidate who meets the requirements of the public body stipulated in sub- article (3) of this Article.
CHAPTER NINE TWO - STAGE BIDDING
57. Conditions for use of Two-Stage Bidding
Public bodies may engage in procurement by means of two-stage bidding:
1) when it is not feasible for the public body to formulate detailed specifications for the goods or works and in the case of services, to identify their characteristics and, in order to obtain the most satisfactory solution to its procurement needs;
2) when the public body seeks to enter into a contract for the purpose of research, experiment, study or development, except where the contract includes the production of goods in quantities sufficient to establish their commercial viability or to recover research and development costs;
3) where bid proceedings are initiated but no bids are submitted as a result of the nature of the object of procurement not being clearly described or where all bids are rejected due to failure on the part of the public body concerned to draw up a clear and complete specification;
4) because of the technical character of the required goods or works, or because of the nature of the consultancy or other services it is necessary for the public body to negotiate with the suppliers.
58. Procedure for Two-Stage Bidding
1) The solicitation documents shall call upon suppliers to submit, in the first stage of the two-stage bidding proceedings, initial tenders containing their proposals without a tender price. The solicitation documents may solicit proposal relating to the technical, quality or other characteristics of the goods, works or services as well as to contractual terms and conditions of supply, and where relevant the
professional and technical competence and qualifications of the suppliers.
2) The public body shall identify responsive bids by evaluating the proposals submitted by the bidders at the first stage of the bid proceeding against its requirements. The public body may without prejudice to their intellectual property rights at this stage hold discussion with the candidates on the content
of their proposals.
3) The public body shall draw up a specification which is more appropriate to its requirements on the basis of the evaluation against the requirements of the proposals submitted to it at the first stage of the bid proceeding. It shall then proceed to communicate the revised specification to the candidates who
submitted responsible bids at the first stage and invite such candidates to submit proposals on the basis of the revised specification.
4) In formulating the revised specification in accordance with sub article (3) of this Article, the public body may delete or modify any aspect, originally set forth in the solicitation documents of the technical or quality characteristics of the goods, works or services to be procured and any criterion originally set forth in those documents for evaluating and comparing bids and for ascertaining the successful bids and may add new characteristics or criteria that conform with this Proclamation. Any such deletion,
modification or addition shall be communicated to suppliers in the invitation to submit final bids.
5) A supplier not wishing to participate in the second stage of tendering in accordance with the reformulated specification may withdraw from the proceeding.
6) The public body shall evaluate the bids submitted at the second stage to ascertain the successful bidder pursuant to the provisions of Article 43 of this Proclamation.
7) The public body may engage in negotiation with the first ranking bidder concerning any aspect of its bid, except price.
CHAPTER TEN INTERNATIONAL COMPETITIVE BIDDING
59. Open International Bidding
1) Open international bidding shall be used whenever in national open bidding an effective competition cannot be obtained unless foreign firms are invited to bid or for procurements above a threshold level for national bidding to be determined by a directive to be issued by the Minister
2) A procurement may be effected by means of national competitive bidding notwithstanding that the cost of the procurement exceeds the threshold established in the directive for national bidding if it is ascertained that the required object of procurement is available only locally.
3) Open international bidding shall respect the provisions of Chapter Four of this Proclamation as well as the following procedures:
a) the invitation to bid and the bid documents shall be in the English language;
b) the invitation to bid shall be advertised in a news paper published in English language which has world wide circulation and attracts foreign competition as well as on the Agency’s website in the manner prescribed in the directive;
c) the time allowed for submission of bids shall be sufficient for the invitation to reach candidates and for enabling them to prepare and submit bids. In any case it shall not be less than the time prescribed
by the directive to be issued by the Minister;
d) technical specifications of the goods, works and services shall be compatible with national requirements, and conform as far as possible with international standards or standards widely used in international trade;
e) candidates shall be permitted to express their bids, as well as any security documents to be presented by them in Ethiopian Birr, or in a currency widely used in international trade and stated in
the bidding documents;
f) general and special conditions of contract shall be of a kind generally used in international trade.
4) Without prejudice to the threshold to be established in the directive to be issued by the Minister and provided that conditions for using other methods of procurement than open bidding are satisfied, public bodies may conduct procurement through international competitive bidding by means of restricted tendering, request for proposals, request for quotation or direct procurement where it is
ascertained that it is impossible to carry out effective procurement with out the participation of foreign companies.
CHAPTER ELEVEN SPECIAL PROCUREMENT
60. Large Value Procurement
1) There shall be established a central body, which shall be in charge of the execution of large value
procurements having national significance procurements of supplies for which a demand is shown by more than one public body and sale of public property to be disposed off, by a regulation to be issued by the Council of Ministers.
2) The Minister shall identify and update the types of procurements to be executed on account of their national significance by the central body which shall be established pursuant to sub article (1) of this Article.
61. Procedure of Framework Contract
1) Framework contracts may be used to fulfill similar procurement requirements of various public bodies or recurrent procurement requirements of a public body.
2) The following procedure of Framework contract shall be followed to meet similar procurement requirements of public bodies within a given time frame:
a) the Agency shall undertake a survey of the similar requirements of public bodies, issue a list of goods and services constituting such requirements and update the list regularly;
b) public bodies shall prepare a forecast of their requirements of goods and services falling under the list mentioned in sub-article (2) (a) of this Article and communicate the same to the body authorized to conduct large procurements;
c) the body to be established in accordance with Article 60(1) of this Proclamation shall conclude and administer Framework contracts in the manner prescribed herein and the directive to be issued by the Ministry
d) public bodies shall on the basis of the framework contract signed by the central body of procurement conclude the procurement by making order with the suppliers of goods and services that they require;
e) the order that public bodies place with the suppliers for goods and services of their requirements under the frame work contract shall confirm to the terms of the Framework contract regarding price, terms of payment and other matters related to the execution of procurement.
3) Except in cases provided for in Article 37 paragraph (k) of this Proclamation, public bodies shall not be allowed to vary unit prices and such other fundamental terms of the framework contract when placing order for goods and services. However, the public body and the supplier may agree on terms
that have not been dealt with in the framework contract or that do not materially affect the frame work contract.
4) The framework contract shall be awarded through open bidding procedure and may remain valid for three years.
5) In procuring goods and services under a framework contract to fulfill their recurrent requirements, public bodies shall have to adhere to the criterion of fixing prices of goods and services to be determined in the directive to be issued by the Minister.
CHAPTER TWELVE PUBLIC PROPERTY ADMINISTRATION
62. General
The head of each public body shall ensure that property at the disposal of the public body is properly handled, used and where necessary, disposed off in accordance with the directive to be issued by the Minister.
63. Acquisition
1) All acquisitions of public property shall be for the sole purpose of facilitating the Delivery and maintenance of approved programs as efficiently and effectively as possible.
2) The Agency shall account for, administer and where necessary, dispose off property of the Federal Government which are not administered by any other public body.
64. Use and Maintenance
1) Heads of public bodies shall ensure that all public property is used as productively as possible in carrying out of the responsibilities of the public bodies.
2) Heads of public bodies shall establish a proper maintenance system for all public property to ensure that it will operate as economically and effectively as possible in accordance with the directive to be issued by the Minister.
65. Management of Public Property
1) The heads of public bodies shall adopt a lifetime approach to the management of public property.
2) Heads of public bodies shall ensure that items of public property are recorded as to date, description, quantity and cost from acquisition to the end of their life-time.
3) Heads of public bodies shall ensure that the custodial responsibility for each fixed asset acquired is assigned primarily to persons using such fixed assets and that names of the custodians, and the locations of the fixed assets under their custody are recorded in the register of fixed assets.
4) Heads of public bodies, shall ensure that supplies, not acquired for immediate consumption, shall form part of supply inventories and that custodial responsibility be assigned for such inventories.
5) All inventories of public property shall be physically verified against records at least annually.
6) Where the actual cost of public property is not determinable, its cost shall be estimated in accordance with the directive to be issued by the Minister.
7) Depreciation shall be calculated on fixed assets in accordance with the directive to be issued by the Minister.
66. Protection and Preservation
The heads and all employees of public bodies are responsible for the protection and preservation of public property.
67. Disposal
1) Heads of public bodies shall ensure that fixed assets which are not useful to the organization are disposed off in the manner to be prescribed in the directive to be issued by the Minister.
2) The description and amount received from all public property disposed off shall be included in the public accounts.
3) Without prejudice to the provisions of the directive to be issued by the Minister, concerning the matter, proceeds from the disposal of public property shall be deposited into the account of the central treasury.
68. Deletion
1) Where public property is considered to be of no use in the public body or elsewhere, and has no- scrap value, it shall be deleted in accordance with the directive to be issued by the Minister.
2) Deletion of public property shall be recorded when losses take place from inventory shortages, destruction, theft or any other reason.
3) The description and book value of all public property deleted shall be included in the public accounts in accordance with the directives to be issued by the Minister.
69. Transfer
The Minister shall determine by directive the manner in which property which is not useful to the Federal Government may be transferred gratis to regional governments, city administrations or any other body carrying on activities complementing the responsibility of the government.
CHAPTER THIRTEEN ESTABLISHMENT OF THE BOARD REVIEWING COMPLAINTS ON PUBLIC PROCUREMENT AND PROPERTY ADMINISTRATION
70. Establishment of the Board
1) A body (hereinafter referred to as the "Board") is hereby established which reviews and decides on complaints lodged in regard to public procurement and property disposal proceedings.
2) The Board shall be accountable to the Minister.
71. Board Members and Terms of Service
1) The Board shall be drawn from persons representing the private business sector, the relevant public bodies and public enterprises.
2) The Agency shall serve as the secretariat of the Board.
3) The Minister shall appoint the members of the Board. He shall determine the amount of allowance to be paid to the members of the Board and the mode of payment.
4) The term of service of members of the Board shall be three years. However, any member of the Board failing to properly discharge his duty maybe replaced at any time before his term of service expires.
72. Powers and Duties of the Board
1) The Minister shall issue and implement a directive setting for the procedure the Board has to follow in the exercise of its powers and duties; such directive shall adhere to the following general rules:
a) the Board shall review and decide on complaints from candidates or suppliers;
b) the Board may in the exercise of its function require the production of relevant documents and the testimony of officials and employees of the concerned bodies;
c) the Board may also seek Professional assistance from governmental or nongovernmental entities where it finds such assistance to be useful in reviewing and deciding on a complaint submitted to it.
2) The Agency shall provide the Board with office facility and technical assistance.
3) Upon deliberation on a complaint submitted to it, the Board may give one of the following decisions, which it deems to be appropriate, with the details to be prescribed in the directive to be issued by the Minister:
a) that the procurement proceeding in respect of which a complaint was lodged be rectified or terminated;
b) to dismiss the case where in its judgment the complaint is unfounded.
4) The members of the Board shall discharge their duty in a perfectly ethical manner. They have the obligation to report any potential or actual conflict of interest they may come across in the exercise of their functions and to exclude themselves from any proceeding involving such conflict.
CHAPTER FOURTEEN COMPLAINTS THAT MAY BE LODGED WITH REGARD TO PROCEEDINGS OF PUBLIC PROCUREMENT AND PROPERTY DISPOSAL
73. General
1) Without prejudice to the provisions of this Chapter, a candidate shall be entitled to submit a complaint to the head of the public body or to the Board against an act or omission of the public body in regard to a public procurement or property disposal proceeding where he believes that such an act or omission violates this Proclamation or the directives.
2) No complaint may be lodged in accordance with sub- article (1) of this Article in respect of the following matters:
a) the selection of procurement method pursuant to this Proclamation;
b) the rejection of bids, proposals or quotations pursuant to Article 30 of this Proclamation;
c) the selection of method of property disposal;
d) the handling and usage of public property.
3) Complaints against an act or omission of a public body pertaining to a proceeding leading to an award may not be brought before the head of that public body or the Board after the contract has been signed with the successful bidder.
4) The provision of sub- article (3) of this Article shall apply where the following conditions are satisfied:
a) where the contract has been signed without a complaint being filed with the public body within the time limit prescribed in the directive;
b) where the public body responds to the complaint lodged and a contract is signed because of the expiration of the time limit for the signing of contract after the award without the candidate pursuing its complaint further.
5) The procedure to be followed in resolving complaints brought in regard to public procurement and property disposal shall be determined in accordance with the directive to be issued by the Minister.
74. Review of Complaints by the Head of the Public Body
1) A complaint against an act or omission by the public body shall in the first instance, be submitted to the head of the public body.
2) A candidate shall have to submit the complaint within five working days from the date he knew or should have known the circumstances giving rise to the complaint.
3) Unless the complaint is resolved by mutual agreement, the head of the public body shall suspend the procurement or property disposal proceedings and shall, within 10 days after submission of the complaint, issue a written decision, stating the reasons, and, if the complaint is upheld, indicating the corrective measures to be taken.
4) If the head of the public body does not issue a decision within the time stated in sub-article (3) of this Article, or if the candidate is not satisfied with the decision of the head of the public body the
candidate is entitled to submit a complaint to the Board within five working days from the date on which the decision has been or should have been communicated to the candidate by the public body.
75. Reviews by the Board
1) Upon receipt of a complaint, the Board shall promptly give notice of the complaint to the public body concerned. Such action automatically suspends further action by the public body until the Board has settled the matter.
2) The Board, unless it dismisses the complaint, may:
a) prohibit the public body from acting or deciding unlawfully;
b) order the public body to proceed in a manner conforming to this Proclamation other than a decision to award or conclude a contract;
c) annul in whole or in part, an unlawful act or decision by the public body.
3) The Board shall, before taking any decision regarding a complaint, notify relevant bodies of the complaint and shall take into account information and arguments received from such bodies and from the public body.
4) The Board shall issue its decision within 15 working days of receiving the complaint,
stating the reasons for its decision and remedies granted, if any.
76. Review by the Agency
1) Where a public body believes that an unlawful act or an act prejudicial to its legitimate interest has been committed by candidates, suppliers or by buyers of disposed property, it shall without prejudice
to the measures it is entitled to take against such persons in accordance with the bidding document or the contract, notify the matter in writing to the Agency.
2) Upon receipt of the complaint the Agency shall send a written notice of the complaint and the content of such complaint to the candidate, the supplier or the buyer of disposed property against whom the complaint has been lodged.
3) Where the Agency finds it appropriate to the resolution of the complaint it may require persons concerned with the matter to appear in person and give evidence or seek professional assistance from any appropriate body.
4) The Agency shall review and give decision on the complaint within 15 working days of receipt of such complaint.
5) The decision to be rendered by the Agency in accordance with sub-article (4) of this Article may be one of the following:
a) suspend for a definite or indefinite period the candidate, supplier or buyer of disposed property which it finds to be at fault from participation in any public procurement or property disposal;
b) give a written warning;
c) dismiss the complaint.
6) The Minister shall establish by a directive the procedure the Agency follows in reviewing and deciding complaints submitted to it in accordance with this Article.
CHAPTER FIFTEEN MISCELLANEOUS PROVISIONS
77. Offences and Punishment
1) Every person appointed to or employed by a public body in carrying out the provisions of this Proclamation who:
a) receives any payment for the performance of his official duty, except as provided by law;
b) who defrauds a public body, conspires or colludes with any person to defraud the public body or provides an opportunity for any person to defraud the public body in regard to a public procurement or property disposal proceeding;
c) contravenes or intentionally permits any contravention of this Proclamation;
d) willfully makes or signs any false entry in any document or willfully makes or signs false certificates; is liable on conviction to a fine not less than Birr 25,000 and not more than 35,000 and to a rigorous imprisonment for a term of not less than 10 years and not more than 15 years.
2) A procurement and property administration officer employed in carrying out the provisions of this Proclamation, except such information required by this Proclamation to be official, who:
a) discloses to any person or that person’s representative, any matter in respect of another person, that, may, in the exercise of the procurement officer’s powers or the performance of the procurement officer’s duties come to the procurement officer’s knowledge;
b) permits any other person to have access to records in the possession or custody of the public body, except in the exercise of the procurement officer’s powers or the performance of the procurement officer’s duties under this Proclamation or by order of a court or any competent body; commits an offence and is liable on conviction to a fine of not less than Birr 10,000 and to imprisonment for a term of not less than 2 years and not more than 5 years.
3) Every person appointed to or employed by a public body in carrying out the provisions of this Proclamation who:
a) directly or indirectly asks for or receives in connection with any of his duties, a payment or gift, whether pecuniary or otherwise, or promise or security for that payment or reward; or
b) enters into or acquiesces in an agreement to do or to abstain from doing, permit, conceal, or connive at any act or thing whereby the procurement or property disposal is or may be defrauded or which
is contrary to the provisions of this Proclamation or to the proper execution of the procurement officer’s duty; commits an offence and is liable on conviction to a fine of not less than 50,000 Birr and to imprisonment for a term of not less than ten (10) years and not more than twenty(20) years.
4). Every person who, promises, offers or gives any bribe to any person appointed to or employed in any public procurement and property administration with intent:
a) to influence the decision or action of that person on any question or matter that is pending, or may be brought before him in his official capacity; or
b) to influence that person to commit, or aid or abet in committing any fraud on the procurement, and property administration or to connive at, collide in or allow or permit any opportunity for the commission of any such fraud; is guilty of an offence and liable on conviction to a fine of not less than
Birr50,000 and to rigorous imprisonment for a term of not less than ten(10) years and not more than twenty (20) years,
5) Any candidate who, with the intention of deriving unlawful advantage, presents falsified
documentary evidence or conceals any evidence which he should have disclosed or connives at an act of fake competition shall upon conviction be punishable with fine not less than 20,000 Birr and with rigorous imprisonment of not less than 5 years and not more than 10 years.
78. Power to issue Regulation and Directives
1) The Council of Ministers may, where necessary, issue regulation for the implementation of this Proclamation
2) The Minister may issue directives enabling the realization of the objectives and implementing the provisions of this Proclamation.
3) The Agency shall issue procurement and property administration manuals, standard bid documents, and forms that are necessary for the implementation of public procurement and property administration.
79. Repealed and Non-Applicable Laws
1) Determining the Procedures of Public Procurement and Establishing the Supervisory Agency Proclamation No 430/2005 is hereby repealed and replaced by this Proclamation.
2) No law, regulation, directive or practices inconsistent with this Proclamation shall have effect with respect to matters provided for in this Proclamation;
80. Effective Date
This Proclamation shall enter into force up on the date of publication in the Federal Negarit Gazeta.
Done at Addis Ababa, this 9th t day of September, 2009
GIRMA WOLDEGIORGIS
PRESIDENT OF THE FEDERAL
DEMOCRATIC REPUBLIC OF ETHIOPIA
