COUNCIL OF MINISTERS
Decree No. 15/2010 Of May 24
Considering the need to accord greater swiftness and flexibility to the contracting procedures for public works, goods, and services by organs and institutions of the State, including State agencies and enterprises, in the use of powers conferred by paragraph No. 1 of Article 67 of Law
No. 9/2002, of February 12 — SISTAFE Law, the Council of Ministers
decrees:
ARTICLE 1
The Regulation on Contracting of Public Works, Goods and by the State, in the Annex to this Decree, of which it constitutes integral part, is hereby approved.
ARTICLE 2
It falls within the competence of the Ministers who supervise the areas of Finance, Industry and Trade, Public Works and Housing, Health and Education, to approve, by joint Diplomas, the specific Tender
Documents and respective price review formulas
ARTICLE 3
It falls within the competence of the Minister who supervises the area of Finances to ensure the implementation of this Decree.
ARTICLE 4
Decree No. 54/2005, of December 13, is hereby revoked.
ARTICLE 5
This Decree enters into force 90 days after the date of its publication. Approved by the Council of Ministers on April 20, 2010.
Be it published.
The Prime Minister, Aires Bonifácio Baptista Ali.
Regulation on Contracting of Public Works, Goods and Services by the State
CHAPTER I General Provisions
SECTION 1 Common Part
ARTICLE 1 Object
1. This Regulation establishes the legal regime applicable to the contracting of public works, goods, and services by the State, including those of leasing, consulting, and concessions.
2. Regarding contracting whose object is, simultaneously, public works, goods, services and leasing, the regime of this Regulation shall apply to the portion of the object that has greater economic magnitude.
ARTICLE 2 Scope of Application
1. This Regulation applies to all state bodies and institutions up to the lowest level that has a budget to execute, including state agencies and enterprises.
2. This Regulation does not apply to contracts between state agencies and institutions.
ARTICLE 3 Définitions
For the purposes of this Regulation, the following terms and expressions are so defined
a) Award: Administrative act by which the Contracting Entity selects the winning proposal for subsequent contracting;
b) Tender Notice: Communication on the opening of a tender, by means of the press, namely in the newspaper with the largest circulation in the country, and a tender document; other adequate means of communication that are easily accessible by the target public may be used;
c) Competent Authority: Agent that represents the Contracting Authority, formally designated, with powers to practice the acts regarding the contracting procedures defined in this Regulation;
d) Goods: Objects of whatever nature, the value of which also includes services accessory to their provision, as long as the value of these services does not exceed that of the goods to be supplied;
e) Specifications: Documents that contains the general and specific legal clauses, the technical specifications and the tender program, which inform the obligations of the Contracting Entity and of the
Contracted Party;
f) Concession: The granting, for a determinate period, of the exploitation of an activity within the public domain, either existing or to be developed;
g) Concession of Construction Works: Granting of the right to build and explore temporarily goods and services in the public domain, with their delivery at the end of the corresponding concession contract;
h) Consultant: A natural or legal person, whether national or foreign, which renders services of an intellectual nature or advisory services;
i) Contracted Party: Winning tenderer, to which the construction work, the supply of goods or the rendering of services is awarded;
e) Caderno de Encargos: documento que contém as cláusulas jurídicas gerais e particulares, as especificações técnicas e o programa de concurso, que informam as obrigações da Entidade Contratante e da Contratada;
f) Concessão: transmissão, por período determinado, para exploração de uma actividade de domínio público existente ou a desenvolver;
g) Concessão de Exploração de Obras: outorga do direito de construir e explorar de forma temporária bens e serviços de domínio público, com a entrega dos mesmos no fim do correspondente contrato de concessão;
h) Consultor: pessoa singular ou colectiva, nacional ou estrangeira, que preste serviços de natureza intelectual ou de assessoria;
i) Contratada: concorrente vencedor a quem é adjudicada a realização de uma obra, fornecimento de bens ou prestação de serviços;
j) Tender Documents: A set of documents consisting of the Specifications, the Tender Project and the Tender Program, which must contain the legal, economic, financial and technical qualification
requirements that govern the tender and the corresponding contracting, in accordance with the provisions of Article 65 of this Regulation;
k) Public Works Contracting or, simply, Public Works: Works of construction, reconstruction, expansion, modification, adaptation, conservation, restoration, repair or rehabilitation of state-owned buildings or real estate;
l) Public Works Contractor: Natural or legal person, whether national or foreign, contracted to execute public works;
m) Grantor of the Concession: State organ or institution that promotes the opening of the tender and enters into the concession agreement;
n) Technical Specifications: A set of technical prescriptions contained in the Tender Documents that define the characteristics required for the contracting of public works, the supply of goods, or the rendering of services, and which allow their performance to correspond to the purpose for which they are destined by the Contracting Entity;
p) Supplier: Natural or legal person, whether national or foreign, contracted to supply goods and services to the State;
q) Jury: Collegiate body that ensures compliance with all the procédures regarding public contracting;
r) Medium Enterprise: Enterprise whose number of employees varies from 50 to 100, and whose annual volume of business is higher than MT1 14,700,000 and lower than MT 29,970,000, with no more than 25
per cent of its share capital owned by a large enterprise or by the State;
s) Micro Enterprise: Enterprise whose number of employees do not exceed four employers and MT1,200,000, respectively, with less than 25 per cent of its share capital owned by a large enterprise or by the State;
t) Small Enterprise: Enterprise whose number of employees varies from five to forty-nine, and whose annual volume of business is higher than MT1,200,000 and lower than MT14,700,000.00, with no more than 25 per cent of its share capital owned by a large enterprise or by the State;
u) Tender Program: Document containing all the provisions and information to tenderers, required for the preparation and submission of proposals;
v) Project: A set of written pieces and drawings that constitute, along with the Tender Program and the Specifications, the process to be presented for tender, for the granting of public works or of supply, and
to provide all elements necessary to the proper performance of the contract;
w) Proposal: Document by which the tenderer represents to the Contracting Entity its willingness to contract, and indicates the conditions under which it is willing to contract;
x) Services: Activity in which the Contracted Party provides to the Contracting Entity the results of its intellectual or manual labour;
y) Consulting Services: Activity, including advisory activity, in which the Contracting Entity is supplied with the results of primarily intellectual labour;
z) Functional Unit of Procurement Supervision: Body with the competence to coordinate and supervise all the activity relating to public contracting, management of the centralized national system of data and information, and capacity-building programs on contracting;
aa) Managing Unit of Procurement Execution: A unit integrated into each state body or institution, including State agencies and enterprises that may have a budget to execute, in charge of the management of purchasing processes, from planning and preparation stages, as well
as contract performance, under the supervision of the Competent Authority;
bb) Lease: Contract by which the contracted party is obligated to provide to the Contracting Entity the temporary enjoyment of property, which can be:
i. Lease of immovable property: if the property is real estate; and
ii. Lease of movable property: if the property is movable.
ARTICLE 4 Principles and General Rules
1. In implementing this Regulation the parties must comply with the principles of legality, purpose, reasonableness, proportionality, pursuit of the public interest, transparency, publicity, equality, competition, impartiality, good faith, stability, motivation, responsibility, good
financial management, swiftness, and the other applicable public law principles.
2. The Competent Authority, on behalf of the Contracting Entity, must, for the purposes of contracting, comply with the following general rules:
a) Deconcentrating and decentralizing the implementation of this Regulation to even the lowest-ranked body or institution that has a budget to execute, except for those items in which there is an interest
in ensuring the harmonization of types or scale efficiency gains, by indicating the Functional Unit of Procurement Supervision;
b) Seeking to optimize the satisfaction of collective needs, both in the formation and in the performance of the contracts;
c) Acting independently, and solely and exclusively driven by the defense and pursuit of the public interest throughout the contracting procedure;
d) Determining the object, in an accurate, sufficient and clear manner, without specifications that, being excessive or unnecessary, limit competition; reference to brands is forbidden;
e) Justifying the authorization to open the Tender or the Direct Contracting with the necessary reasoning regarding their economy, efficiency and effectiveness and the evaluation criteria, ensuring the selection of the proposal with the quality standards required to achieve the public interest, by adequate economic compensation, within agreed time limits;
f) Ensuring that the reasons in fact and in law for the definition of the procurement modality adopted and the corresponding acts carried out are previously indicated in writing;
g) Ensuring that the rules governing the tender and the elements underpinning it remain unchanged during its realization, except as provided in this Regulation;
h) Ensuring proper disclosure of its intention to contract;
i) Setting reasonable time limits for the preparation of proposals by potential tenderers;
j) Establishing legal, economic, financial and technical qualifications, required without distinction of all tenderers, compatible and proportional to the object of procurement, to ensure compliance with
contractual obligations;
k) Affording all potential tenderers equal conditions for participation, treating all tenderers according to the same criteria;
l) Ensuring maximum participation of those interested in contracting with the Contracting Entity;
m) Ensuring careful selection of the most advantageous proposal, affording equal opportunity to tenderers through fair competition;
n) Establishing in advance the awarding criteria and the essential conditions of the contract, and disseminating them to potential tenderers;
o) Enabling the achievement of the objective of the contracting, with swiftness and economy, without prejudice to the safety and to the rights and security of the tenderers; and
p) Following the rules and procedures provided for in this Regulation and other applicable legislation.
ARTICLE 5 Language
1. All documents inherent to contracting subject to the regime provided for in this Regulation must be written in the Portuguese language.
2. The Contracting Entity may determine their simultaneous publication in another language; the Portuguese language version shall always prevail.
SECTION II Legal Regimes of Contracting
ARTICLE 6 Legal Regimes
The following Legal Regimes apply to this Regulation:
a) General;
b) Special; and
c) Exceptional.
ARTICLE 7 General Regime
The General Regime for the contracting of public works, the supply of goods and the rendering of services to the State is the Public Tender.
ARTICLE 8 Special Regime
1. The Contracting Authority may adopt norms other than those established in this Regulation for:
a) Contracting resulting from a Treaty or other form of international agreement between Mozambique and another State or international organization that requires the adoption of a specific regime; and
b) Contracting conducted under projects wholly or substantially funded with resources from funding from or donation by a foreign official cooperation agency or a multilateral financial institution, when the
adoption of different norms is an express condition of the agreement or contract.
2. The adoption of norms different from those of this Regulation, based on this article, which must be authorized in advance by the Minister that supervises the area of Finances.
3. The Contracting Authority must include in the notice and tender documents adopted rules that are different from those specified in this Regulation.
ARTICLE 9 Exceptional Regime
1. Whenever it is convenient to the public interest and the requirements established under this Regulation are present, the Managing Unit of Procurement Execution shall, giving reasons, suggest to the Competent Authority the application of the Exceptional Regime for the contracting of public works, the supply of goods, the rendering of services, leasing and concessions.
2. The decision declaring that the requirements for contracting Under the Exceptional Regime are present and determining the application of this regime to the contracting of public works, the supply of goods, the rendering of services, leasing and concession must be justified in writing by the Competent Authority.
3. The modalities of contracting under the Exceptional Regime are the following:
a) Tender with Pre-Qualification;
b) Limited Tender;
c) Two-Stage Tender;
d) Tender by Bids;
e) Small-Scale Tender; and
f) Direct Contracting.
4. Contracting under the Exceptional Regime is subject to the subsidiary application of the norms on Public Tender provided for in this Regulation
SECTION III Contracting Entity
ARTICLE 10 Budget for Contracting
The Contracting Authority may open a tender only if the contracting amount fits the Budget.
ARTICLE 11 Contracting Procedures and Requirements
1. The contracting procedure must be initiated by the Managing Unit of Procurement Execution, by the opening of an administrative proceeding, properly filed, numbered and containing the written authorization of the Competent Authority for its execution.
2. All documents and decisions of the administrative procedure of contracting shall be filed and properly numbered in the administrative proceeding referred to in the item above.
ARTICLE 12 Attributions of the Competent Authority
1. The powers of the competent authority, on behalf of the Contracting Authority, are the following:
a) Indicating the specific public interest to be pursued
b) Defining precisely, sufficiently and clearly the object of contracting
c) Determining an estimate of the price of the public works, goods or services to be contracted;
d) Following the rules of this Regulation in the contracting procedure;
e) Defining, with necessary justification, the contracting modality to be adopted;
f) Waiving, in the terms provided for in this Regulation, the qualification documents;
g) Declaring that the estimated costs that will result from the contract are covered by the budget with legally applicable resources, set aside for the purposes;
h) Approving and publishing the Tender Documents and the Tender Announcement;
i) Designating the members of the Jury and indicating its President;
j) Providing clarifications to the tenderers, during the evaluation;
k) Processing and gathering evidence in complaints against the acts of the Jury;
l) Justifying the adoption of the decision criterion, when it is not that of the lowest price;
m) Awarding the object of the contracting to the winning tenderer or, when applicable, promoting the declaration of cancellation or nullification of irregular proceedings;
n) Following the requirements for the signing of the contract and calling upon the winning tenderer to sign it; and
o) Approving the multi-annual allocation of costs, in accordance with their budget allocation, when the liabilities resulting from the contracting involve expenses in more than one fiscal year.
2. In performing its duties, the Competent Authority must follow, in particular, the principles of independence and impartiality
ARTICLE 13 Impediments to Representing the Contracting Entity
1. The Competent Authority is forbidden from representing the Contracting Authority when:
a) He or she has an interest in the contracting, on its own or as the representative or manager of someone else’s businesses;
b) His or her spouse or relative by blood or marriage, or person with whom he or she lives, has an interest in the contracting;
c) He or she has share capital in an enterprise which has an interest in the contracting or when the persons referred to in item b) of this article have share capital in such enterprise; or
d) He or she has a bond of any nature with the competitor in the contracting or has maintained a bond in any matter related to the process or its object.
2. In those cases referred to in the previous number, the forbidden persons must, as the case may be, declare their impediment or suspicion or recuse themselves pursuant to the Norms on the Execution of Public Administration Services.
ARTICLE 14 Attributions of the Managing Units of Procurement Execution
1. The responsibilities of the Managing Units of Procurement Exécutions (MUPEs) are the management and execution of procurement processes in all phases of the contracting cycle, from the planning stage through to the acceptance of public works, goods or services and the timely performance of the contract.
2. The MUPEs are under the direct supervision of the Competent Authority.
3. In the exercise of its responsibilities and powers, the Managing Units of Procurement Execution are subject to the technical supervision of the Functional Unit of Procurement Supervision.
ARTICLE 15 Powers of the Managing Units of Procurement Execution
For the performance of their duties, the Managing Units of Procurement Execution have, among other, the following powers:
a) Assessing the contracting needs of the Contracting Entity;
b) Preparing and updating the contracting plan of each fiscal year;
c) Carrying out the annual sectoral planning of contracting;
d) Preparing the Tender Documents;
e) Following the contracting procedures provided for in this Regulation;
f) Receiving and processing complaints and the appeals filed and ensure compliance with pertinent procedures;
g) Supporting and guiding the other areas of the Contracting Entity in preparing the catalog containing the technical specifications and of other documents pertinent to the contracting
h) Assisting the Jury and ensuring compliance with all pertinent procedures;
i) Submitting the contracting documentation to the Administrative Tribunal;
j) Providing necessary collaboration to the internal and external control bodies in carrying out inspections and audits;
k) Supporting the Functional Unit of Procurement Supervision in sectoral technical matters within its competences;
l) Managing contracts and ensuring compliance of all procedures, including those inherent to the acceptance of the contract object;
m) Ensuring the adequate keeping of documents of each contracting;
n) Proposing the implementation of training activities to the Functional Unit of Procurement Supervision
o) Proposing the issuance or updating of contract norms or standards to the Functional Unit of Procurement Supervision
p) Informing the Functional Unit of Procurement Supervision on any unethical practices and unlawful acts that may have occurred;
q) Receiving and submitting documents relating to registration in the single registry of suppliers to the Functional Unit of Procurement Supervision;
r) Maintaining and updating the registry of suppliers, in accordance with the guidance of the Functional Unit of Procurement Supervision;
s) Proposing to the Functional Unit of Procurement Supervision the inclusion, in the registry of suppliers, of suppliers forbidden from participating in the contracting process;
t) Submitting to the Functional Unit of Procurement Supervision the data and information needed for the constitution, maintenance and updating of statistical studies;
u) Maintaining appropriate information on the performance of contracts and on the conduct of suppliers, and informing the Functional Unit of Procurement Supervision where appropriate or relevant;
v) Supporting the Functional Unit of Procurement Supervision in
whatever may be necessary to comply with this Regulation.
SECTION IV The Jury
ARTICLE 16 Composition of the Jury
The Jury is composed of a minimum of three members, qualified in the matter, of whom at least one is a civil servant linked to the Managing Unit of Procurement Execution.
ARTICLE 17 Attributions of the Jury
1. The responsibilities of the Jury include:
a) Receiving proposals of tenderers and opening them;
b) Requesting clarifications to tenderers during the evaluation of proposals on behalf of the Contracting Entity;
c) Suggesting to the Contracting Entity that it seek expert advice, when necessary;
d) Proposing changes in the initial proposals, in the Two-Stage Tender;
e) Evaluating and ranking proposals; and
f) Submitting the proposal evaluation report, with a recommendation on the award, for the decision of the Contracting Entity.
3. It falls within the responsibilities of the Minister who supervises the area of Finances to approve the attendance chart for jury members.
ARTICLE 18 Powers of the Jury
1. The powers of the Jury include:
a) Deliberating in a closed meeting with the participation of the majority
of its members; and
b) Deliberating by majority of the votes of members present.
2. Jury deliberations must be recorded in duly signed minutes, which shall contain the reasons and, if there is a dissenting vote of any member of the Jury, such fact must be recorded, indicating the reasons for the dissent.
3. The members of the Jury may not delegate their powers.
ARTICLE 19 Impediments to Jury Membership
The impediments provided for under article 13 of this Regulation shall apply to the members of the Jury.
SECTION V The Tenderers
ARTICLE 20 Eligibility
Those natural or legal persons, whether national or foreign, that prove that they have the legal, economic, financial and technical qualifications and good fiscal standing, and that also meet the other requirements provided for in this Regulation, are eligible to tender for the contracting of public works, the supply of goods or the rendering of services.
ARTICLE 21 Impediments to Participating in the Tender
1. Proposals shall not be accepted from tenderers with respect to whom one of the following situations is verified:
a) Being a natural person convicted by a final judicial decision for any crime that may jeopardize its professional standing, for the duration of the penalty;
b) Being a natural person disciplinarily punished for a serious fault in a professional matter, for the duration of the penalty;
c) Being a person, whether natural or legal, punished by any State body or institution, with the prohibition of contracting by reason of the practice of an unlawful act in a contracting proceeding, for the duration of the penalty;
d) Being a natural person that controls, whether directly or indirectly, legal persons falling under the situations mentioned in item c);
e) Being an agent that belongs to the Contracting Entity’s staff and a person responsible for a decision to be made;
f) Being a legal person controlled, whether directly or indirectly, by a person falling under the situations defined in the previous items;
g) Being a person, whether natural or legal, that has defrauded the State or involved itself in fraudulent bankruptcies of companies or yet in process of bankruptcy or judicial reorganization; and
h) Being a person, whether natural or legal, the capital of which comes from a proven unlawful source.
2. The following may not participate, whether directly or indirectly, in the tender or in the contracting of public works, the supply of goods or the rendering of service:
a) The author of a project that is the object of contracting, basic or executive, whether a natural or legal person; and
b) A legal person, whether solely or through a consortium or an association, responsible for the preparation of the project or of which the project author is a manager, stockholder or owner of more than five per cent of the legal person’s share capital or the person technically responsible for the project.
3. The participation of the project author or of the legal person to which the previous number refers may be allowed in the tender of public works, or in the execution, as a consultant or technician, with
the function of overseeing, supervising or managing, exclusively at the Contracting Entity’s service.
ARTICLE 22 Legal Qualification
1. Legal qualification is assessed by the submission of the following documents:
a) For natural persons, a duly completed form, along with a certified photocopy of the identification document;
b) For legal persons, a duly completed form, along with a commercial registration certificate and a public deed or equivalent document; and
c) Tenderer’s declaration that it does not fall within any of the situations provided for in Article 21.
2. If applicable, the following must be submitted:
a) Project of the consortium or document of the consortium already formed;
b) Documents proving the fulfillment of other requirements provided for in specific legislation for the performance of the activity that is the object of contracting.
ARTICLE 23 Economic and Financial Qualification
1. Documents relating to the economic and financial situation include the following:
a) In the case of a natural person:
i. Periodic statement of income;
ii. Annual statement of accounting and tax information; and
iii. Statement that there is no judicial execution of its assets that affects its financial situation.
b) In the case of a legal person:
i. Periodic statement of income;
ii. Annual declaration of accounting and tax information;
iii. Balance sheet and accounting statements of the last fiscal year, submitted in accordance with the law;
iv. Statement that no request for bankruptcy exists against it and that it did not apply for judicial reorganization.
2. The Tender Documents may still require that the tenderer have:
a) Revenue in activities similar to the object of contracting;
b) Average annual revenue in the three last fiscal years of an amount equal to or higher than the amount indicated in the Tender Documents, limited to between one and three times the estimated value of the public works, goods or services that are the object of contracting;
c) Share capital not lower than the amount indicated in the Tender Documents, or net worth equal to or higher than the amount indicated in the Tender Documents, which shall not be, in either case, higher than 10 per cent of the estimated cost of the public works, goods or services that are the object of contracting; and
d) Confirmation of ease of access to credit in the amounts specified in the Tender Documents.
3. The economic and financial qualifications must be compatible with the costs to be borne by the tenderer and proportional to the nature and magnitude/size of the object.
4. Without prejudice to the procedures established in specific legislation in case of Tender for Concession, the share capital or the net Worth indicated in the Tender Documents shall take into consideration the sum of the economic and financial costs that the concession contractor must bear in the first three years of the concession, in accordance with the budget prepared by the Granting Entity, including the price of the granting of the concession during the same period, if any.
5. The percentage to be adopted with respect to the previous number shall be determined by a joint decision of the Ministers who supervise the area that benefits from the object of contracting and the area of Finances
ARTICLE 24 Technical Qualification
1. The documents relating to the technical qualification include the following:
a) Certificate issued by a competent authority, proving recording or registration in a professional activity compatible with the object of contracting;
b) Tenderer’s statement verifying appropriate and available facilities and equipment for the execution of the object of contracting, with an indication of all the data necessary for its verification;
c) Tenderer’s statement verifying the professional and technical team available for the execution of the object of contracting, along with resumes;
d) Statement issued by a public or private person proving that, in the last fiscal year, the tenderer gained experience in activities with technical characteristics similar to those of the object of contracting, with an indication of the data necessary for its verification;
e) Certificate of academic and professional qualifications of those responsible for the execution of the object of the contract, should it be the case;
f) Certificate of quality issued by a competent authority, whether national or foreign, or affidavit of the enterprise regarding the adoption of a quality system, endorsed by the institution responsible for
standardization and quality or certificate verifying laboratory tests; and
g) Operation license or authorization or equivalent document issued by the competent authority.
2. The Tender Documents must indicate, clearly and objectively, the minimum data to be demonstrated by the tenderer to prove the requirements lay down in this article.
3. The technical qualifications must be compatible with the costs to be borne by the tenderer and proportional to the nature and dimension of the object of the public tender.
ARTICLE 25 Good Fiscal Standing
Tenderer’s good fiscal standing is proved by means of:
a) A valid certificate of release and discharge issued by the Fiscal Administration; and
b) A valid declaration issued by the institution responsible for the national social security system.
ARTICLE 26 National Tenderer
1. For purposes of this Regulation, a national tenderer shall be:
a) A natural person of Mozambican nationality;
b) A legal person constituted under Mozambican law and whose share capital is more than 50 per cent owned by Mozambican natural persons or by Mozambican legal persons whose share capital is mostly owned (more than 50 per cent) by Mozambican natural persons
2. The Contracting Entity may restrict to national tenderers the participation in the procurement modalities defined in this Regulation if the contracting of public works, supply of goods or rendering of services has an estimated value not higher than three times the limit set Under Numbers 2 and 3 of Article 90. in the previous number, it shall establish the following margins of preference to national tenderers:
a) Ten per cent of the contract value, without taxes, for public works; and
b) Fifteen per cent of the contract value, without taxes, for goods.
4. For purposes of applying the margin of preference for goods, it is necessary to submit the producer’s standard declaration as proof of incorporation of national production factors, the value of which must
correspond to at least 20 per cent of the factory price of the finished product. The Minister who supervises the area of Finances may adjust the above percentage.
5. If it intends to exercise the prerogatives provided for in Number 2 above, the Contracting Entity must obtain prior and reasoned authorization from the Minister above him or her; the restriction of participation to national tenderers only must be expressly noted in the Tender Announcement and Documents.
ARTICLE 27 Foreign Tenderers
1. Foreign tenderers must comply with the general norms established in this Regulation, in specific legislation and in the Tender Documents, by submitting documents equivalent to those required from national tenderers.
2. Foreign tenderers, whether or not authorized to perform their activities in Mozambique, must furthermore:
a) Have an agent resident and domiciled in the Country, with special powers to be served with process, to receive notices and to respond administratively and judicially for the tenderer’s acts, submitting the
power of attorney with the documents listed in this Regulation;
b) Prove their legal, economic, financial and technical qualification and their good fiscal standing in their country of origin;
c) Prove the inexistence of bankruptcy or judicial reorganization requests in Mozambique and in the country of origin; and
d) Submit documents written in the Portuguese language.
3. The Contracting Entity may, whenever it deems it necessary, confirm the veracity of the contents of the documents referred to in items b) and c) of the previous number.
ARTICLE 28 Consortiums and Associations
1. Tenderers constituted in consortiums or associations are always allowed to participate in public tenders.
2. The members of a consortium or association may not participate in the same public tender in an isolated manner or as members of another consortium or association.
3. Omissions regarding consortiums and associations shall be governed by specific legislation.
ARTICLE 29 Constitution of Consortium or Association
1. The document constituting a consortium must contain:
a) The name and qualifications of each member forming the consortium and the indication of each of their participation shares;
b) An indication of the member representing the consortium before the Contracting Entity, with powers to take on obligations and to be served with process and to receive notices on behalf of all the members forming the consortium; and
c) Obligation of joint and severable liability of the members forming the consortium for all the obligations and acts of the consortium.
2. The constitution of an association is governed by specific legislation.
ARTICLE 30 Special Qualifications of a Consortium
1. If the tenderer is a consortium, each of its members must submit the documents for the legal, economic, financial and technical qualification and of good fiscal standing required pursuant to Articles 22 to 25 in this Regulation; they must also present the document constituting the consortium or its project, along with a letter of commitment to form the consortium in case it wins the public tender.
2. The requirements of minimum revenue and share capital or net worth of the consortium may result from the sum of the proven values of each of its members.
3. The technical qualification requirements of the consortium may be proved by one of its members or by the sum of the elements that form the technical capacity of each of them.
4. The provisional or final guarantees of the consortium may be offered individually by any of its members or have their value shared between all its members, at the consortium’s exclusive discretion.
SECTION VI Public Tender, Publication and Notification
ARTICLE 31 Elements of the Tender Announcement
1. The Tender Announcement must, among other elements, define precisely, sufficiently and clearly:
a) The Contracting Entity promoting it;
b) Object;
c) Venue, dates and times of the day in which the Tender Documents may be read and obtained;
d) Venue, dates and times of the day for receipt of proposals; and
e) Venue, date and time of day in which the proposals will be opened.
2. In the public tender for the contracting of public works, if visiting the construction site is mandatory, the Announcement must indicate the dates and times of the day for the visit.
ARTICLE 32 Publication of the Tender Announcement
1. The Tender Announcement shall be published in the written press, at least twice, and in the headquarters of the Contracting Entity; in case of International Tender, it must be published in the Republic Bulletin and/ or on an Internet page, and may be further circulated by other means.
2. The following must be published:
a) Tender Announcement, announcing that a tender will be held;
b) Public invitation for entry in the registry; and
c) Awarding of the object of the public tender to the winning tenderer.
ARTICLE 33 Right to Public Review
1. All the documents forming the administrative proceeding of contracting are open for public review, since the publication of the Tender Announcement until 60 days after its conclusion, independently
of payment or taxes or fees, except for those cases whose disclosure may compromise the confidentiality of the evaluation process, or national defense and security.
2. The exception referred to in the previous number is not applicable to the internal and external control bodies, pursuant to applicable legislation.
3. The documents pertaining to evaluation and to the proposals of the tenderers are confidential, and are only made available to the entity responsible for providing clarification on the results of the evaluation process, without prejudice to the provision of Number 3 of Article 140 of this Regulation.
ARTICLE 34 Notification of Participants
1. The acts carried out in the contracting that only interest the participants must be communicated to the tenderers by the Contracting Entity by means of direct notification.
2. The following must be notified:
a) Call for signing of the contract;
b) Decision on the ranking of proposals and awarding of the tender;
c) Decision on the participant’s qualification ;
d) Decision on entry in the registry and on updates in registry data;
e) Filing and decision of claims and appeals;
f) Act communicating the intention of canceling or invalidating the proceeding;
g) Call of the participants to discuss initial proposals, in case of a Two- Stage Tender;
h) Call for the confirmation of the declarations submitted by the winning tenderer; and
i) Other acts deemed necessary.
3. All the participants must be notified of the acts defined in the previous number, except for those participants whose right to participate has been precluded.
SECTION VII Criteria for Proposal Evaluation and Decision
ARTICLE 35 Evaluation and Decision Criteria
1. The contracting of public works, supply of goods and rendering of services must be decided based on the lowest-price criterion.
2. In exceptional cases, if it is not viable to decide based on the lowestprice criterion, the Contracting Entity may decide, in a conjugated criterion, based on the technical evaluation and on the price, giving
reasons for the decision.
ARTICLE 36 Lowest-Price Criterion
1. The decision based on the lowest price must provide the choice of proposals that guarantee the level of quality and the qualification of the tenderer necessary to achieve the public interest, in accordance with the Tender Documents.
2. In the price evaluation, the payment conditions may be taken into account, as long as this criterion is defined objectively and in advance in the Tender Documents.
ARTICLE 37 Conjugated Criterion
1. The evaluation based on the conjugation of the technical and price proposals is done in accordance with the weighting criteria established in the Tender Documents.
2. The Tender Documents shall also specify the essential factors, in addition to price, to be considered in the evaluation of the proposal, and the manner of their application for purposes of determining the
proposal with the lowest evaluated price.
3. The technical evaluation factors may be defined by a mathematical formula that contemplates, in an objective manner, the variables referred to in the previous number.
4. In the evaluation, other factors may be considered, including:
a) Cost of transportation and insurance to a specified location;
b) Payment schedule;
c) Delivery deadline;
d) Operational costs;
e) Equipment efficiency and adequacy;
f) Availability of replacement parts and maintenance services;
g) Warranty conditions;
h) Training;
i) Safety;
j) Environmental benefits;
k) Availability of equipment and qualification of the technical team, in cases in which this represents an advantage for the Contracting Entity; and
l) Being the holder of a valid certificate of the right to use the label
“Mozambican Pride – Made in Mozambique.”
2. When the conjugated criterion is adopted and there is a tie between two or more proposals, the final ranking shall be attributed to the tenderer that holds the best technical rank, and, if the tie persists, the
final ranking shall be decided by a draw in a public session.
SECTION VIII Decision Criteria for Concession Tenders
ARTICLE 39 Decision Criteria
1. Without prejudice to specific legislation, the decision of a public tender for the concession of public works or public services may adopt, in isolation or in a conjugated manner, the following criteria:
a) Highest price offer for the concession;
b) Lowest tariff or price to be charged to users;
c) Best quality of services or goods made available to the public;
d) Best satisfaction of the demand; and
e) Being the holder of a valid certificate of the right to use the label “Mozambican Pride – Made in Mozambique.”
2. The selection of the best price offer for the concession may consider payment conditions, in accordance with criteria previously and objectively established in the Tender Documents.
3. The best-quality criterion encompasses techniques used to ensure regularity, efficiency, safety, currency, generality and courtesy in rendering the service to users or in the enjoyment of the good and must be weighed in accordance with objective parameters detailed in the Tender Documents
4. The analysis of the best customer service and satisfaction of demand encompasses the quantity and quality of the goods and services made available for enjoyment, the time limits proposed for initiating the rendering of the service or enjoyment of the good, the Schedule for supply, the area of coverage and the prediction of expansion, in accordance with criteria previously and objectively established in the Tender Documents.
5. The quality of services or goods and the satisfaction of demand may be assessed by means of the verification of their sufficiency and by their rank, as provided for in the Tender Documents.
6. Without prejudice to specific legislation, the norms under Section VII above apply to the decision criteria for the concession of public works or services, to the extent that they do not conflict with the provisions under this Section.
4. A análise do melhor atendimento e satisfação da procura compreende a quantidade e qualidade dos bens ou serviços colocados à disposição para fruição, o prazo proposto para o início da prestação do serviço ou fruição do bem, do cronograma para fornecimento, da área de abrangência e da
previsão de expansão, conforme critérios prévia e objectivamente definidos nos Documentos de Concurso.
5. A qualidade dos serviços ou bens e o atendimento e satisfação da procura podem ser avaliados através da verificação da sua suficiência e pela sua classificação, conforme dispuserem os Documentos de Concurso.
6. Sem prejuízo da legislação específica aplicam-se aos critérios de decisão de Concurso para concessão de obra ou prestação de serviços públicos as normas da Secção VII anterior, no que não contrariarem as disposições da presente Secção.
SECTION IX Contracts
ARTICLE 40 Nature and Regime
1. The contracts governed by this Regulation are of an administrative nature.
2. The contracts for public works, the supply of goods, the rendering of services and leases concluded by State bodies and institutions are governed by the norms of this section, by their clauses and by
the rules of public law; the principles of general contract theory and, supplementarily, private law provisions are applicable to such contracts.
ARTICLE 41 Prior Declarative Act
1. To conclude the contract, the Contracting Entity must, within five business days following the award, notify the winning tenderer to present, within no more than 10 business days from the date of receipt
of the notice, up-to-date certificates of the qualification requirements submitted in the tender phase that have expired throughout the tender process.
2. Submission of certificates and affidavits referred to in this article may be waived if the Contracting Entity, in a public act of opening of proposals, assesses the tenderer’s good standing directly, including by electronic means.
ARTICLE 42 Prior Acts of the Contracting Entity
1. After the prior act defined in Article 41, the Contracting Entity must:
a) Confirm and declare that the expenses fit the corresponding budgetary resources;
b) Confirm and declare that they are compatible with the allocation approved in the preparatory phase, when the contractual obligations involve expenses in more than one fiscal year; and
c) Request an authorization from the competent body to conclude the contract, when payment obligations result from commitments undertaken in international contracts or agreements. included in the process files.
ARTICLE 43 Calling of the Winning Tenderer
1. After the procedures defined in the previous article have been fulfilled, the Contracting Entity must call the winning tenderer to sign the contract within the time limit indicated in the Tender Documents,
which may be neither fewer than 10 business days nor more than 30 business days
2. If the winning tenderer does not appear to sign the contract in the established time limit, without prejudice to the loss by the winning tenderer of the provisional guarantee and of the imposition of other sanctions provided for in this Regulation and in the Tender Documents, the Contracting Entity must cancel the award and examine the documentation of the second-best tenderer.
ARTICLE 44 Form and Formalities
1. Those contracts provided for in this Regulation whose value is higher than the limit established under No. 3 of Article 113 must be put in writing , in accordance with the templates contained in the Tender
Documents that are an integral part of this Regulation.
2. Once the contract is concluded, the Contracting Entity must, pursuant to specific legislation, submit it to the Administrative Tribunal for purposes of review.
ARTICLE 45 Essential Clauses
1. The contracts must mention, specifically:
a) Identification of the contracting parties;
b) The object of the contract, appropriately individualized;
c) Time limits for the execution of the public works, supply of goods or rendering of services, indicating start and end dates;
d) Guarantees relating to contract performance, when required;
e) Form, time limits and other clauses of the payment regime;
f) Total estimated costs resulting from the contract;
g) Applicable sanctions in case of noncompliance;
h) The judicial or other means for the settlement of any disputes resulting from the contract, whether in its interpretation or in its
performance;
i) The mandatory inclusion of an anticorruption clause; and
j) Other conditions that the parties also consider essential to the good performance of the contract.
for the settlement of disputes resulting from the interpretation and performance of the contract, to be conducted in Mozambique and in the Portuguese language, pursuant to the specific legislation on the
matter
3. The Tender Documents, the Contracted Party’s proposal, the projects and other patent tender elements form an integral part of the contract.
4. Contracts for the supply of goods and the rendering of current consumption services are limited to a maximum term of one year, and may be extended only once, for the same term, as long as the initial
contractual conditions are maintained.
5. No payment provided for in the financial schedule may be made without the corresponding counterpart in the execution of public works, supply of goods or rendering of services.
ARTICLE 46 Guarantees
1. The Contracting Entity must require that the Contracted Party give an adequate final guarantee for the satisfactory and punctual performance of its obligations.
2. The submission of a guarantee of the satisfactory and punctual performance of the Contracted Party’s obligation is a prior condition to the conclusion of the contract.
3. The final guarantee may be waived in the cases of contracting of small-scale public works, supply of goods and rendering of services and in the selection of natural persons for the rendering of consulting
services.
4. Advance payments are not allowed without the submission of a guarantee in the same amount.
SECTION X Public Prérogatives
ARTICLE 47 Prérogatives
The Contracting Entity has the prerogative of, pursuant to the provisions of this Regulation:
a) Unilaterally terminating the contract;
b) Monitoring contract performance, directly or by a contracted supervisor;
c) Suspending contract performance;
d) Applying sanctions for total or partial noncompliance with the contract;
e) Cancelling the public tender; and
f) Invalidating the public tender.
SECTION XI Contract Performance
ARTICLE 48 Monitoring
1. The execution of all public works must be monitored by independent supervisors, designated by the Contracting Entity and contracted for such purpose based on the procedures specified in Chapter III of this Regulation.
2. In the cases of contracting of small-scale public works, the Contracting Entity may choose to carry out direct monitoring.
3. In situations where two or more supervisors are designated, one of them must be designated as the lead supervisor.
4. It falls to the supervisors to oversee and verify the exact performance of the project and any changes, of the contract, of the Tender Documents and of the work plan.
ARTICLE 49 Provisional Acceptance of Public Works
1. Once the public works are concluded, the supervisors must notify the Contracting Entity to carry out the inspection for purposes of provisional acceptance of the public works.
2. This inspection shall be witnessed by the supervisor, the Contracted Party and the Contracting Party, and an inspection report shall be drafted, confirmed by the supervisors and signed by the three parties.
3. The report referred to in the previous number shall contain a recording of all anomalies detected, the time limits and the responsibility for correcting them.
ARTICLE 50 Final Acceptance of Public Works
1. After the maximum guarantee period of five years from the conclusion of the public works, or a period of at least one year established in the contract, in accordance with its nature, by initiative of the Contracting Entity or at the request of the contractor, a new inspection of the public works shall be conducted.
2. If it is verified in the inspection that the public works do not present deficiencies, deteriorations, evidence of collapsing or of lack of soundness for which the contractor shall be responsible, final
acceptance shall be promoted, by means of a new report, signed by the Contracting Entity, by the supervisors and the contractor.
ARTICLE 51 Deficiencies in Execution
1. If, as a consequence of the inspection, it is verified that the construction is not in proper condition to be accepted, the contractor shall be notified by the Contracting Entity to correct the deficiencies
presented as soon as possible.
2. If the contractor does not act in accordance with the provision of the previous number, the Contracting Entity must promote, at the expense of the contractor, public works necessary to remove the deficiencies. For that purpose, the Contracting Entity may resort to the final guarantee.
3. The Contracting Entity may only proceed to the final acceptance of the public works after the situations referred to in the previous numbers have been resolved.
ARTICLE 52 Acceptance of Goods or Services
1. The Contracting Entity shall designate at least three individuals (selected from outside the Jury) to be responsible for accepting the goods or services.
2. The individuals referred to in the previous number must verify the conformity of the goods supplied or the services rendered with the contract, in the place of delivery or execution.
ARTICLE 53 Deficiencies in Providing or Rendering
1. If by virtue of verified deficiencies the goods or services are not in condition to be accepted, the individuals designated for their acceptance must immediately communicate to the Contracting Entity
that they were rejected and must be replaced by the contracted party.
2. The time limit for the replacement of rejected goods or services shall not exceed 30 days from the notice of the rejection decision.
SECTION XII Amendment and Termination of Contracts
ARTICLE 54 Modification
1. Contracts governed by this Regulation may only be modified or changed with given reasons and by amendment when there is a need to change:
a) The project or the specifications for better suitability to the object of contracting;
b) The contract value as a result of the limits of quantitative increase or decrease resulting from changes to the object of contracting;
c) The execution regime of the public works or the services or the mode of supply of goods, because of the impossibility of execution of the original contracting terms; and
d) Payment conditions, by virtue of supervening circumstances, keeping the initial value.
2. The Contracted Party shall accept, under the same contract terms, any additions or deletions to the public works, goods or services up to and including 25 per cent of the initial value of the contract.
3. Additions or deletions higher than the limit established in the previous number require the authorization of the Minister who supervises the area of Finances.
2. A Contratada fica obrigada a aceitar, nas mesmas condições contratuais, os acréscimos ou supressões que se fizerem nas obras, bens ou serviços, até vinte e cinco por cento do valor inicial do contrato.
3. Os acréscimos ou supressões superiores ao limite estabelecido no número anterior dependem da autorização por despacho do Ministro que superintende a área das Finanças.
ARTICLE 55 Cessation
1. The contracts cease:
a) By the full performance of the obligations of the ContractingEntity and the Contracted Party;
b) By mutual agreement between the Contracting Entity and the Contracted Party; and
c) By unilateral termination based on noncompliance with contractual obligations.
2. The cessation of the contract by mutual agreement or by unilateral termination must be made in writing.
ARTICLE 56 Causes for Unilateral Termination
1. The Contracting Entity may unilaterally terminate the contract based on:
a) Noncompliance by the Contracted Party with contract clauses, specifications, projects or time limits;
b) Delay in compliance longer than 60 days by the Contracted Party of obligations contained in contract clauses, specifications, projects and execution or supply time limits, or a shorter time limit established in the Tender Documents;
c) Repeatedly defective performance of contractual obligations by the Contracted Party;
d) Systematic noncompliance by the Contracted Party with the orders of the authority designated to follow and oversee the execution of the public works or the services;
e) Declaration of bankruptcy, insolvency or dissolution of the Contracted Party;
f) Death or termination of the Contracted Party;
g) Amendment of the articles of incorporation or association, including the objective and the corporate structure of the Contracted Party, by merger, acquisition or spin-off, without prior knowledge and consent of the Contracting Entity in cases where such changes harm or may harm contract performance;
h) Transfer, by whatever means and whether total or partial, of the contract position of the Contracted Party as well as the association of the Contracted Party to a third party, without prior authorization of the Contracting Entity; and
i) Accumulation, by the Contracted Party, of fines of up to 20 per cent of the contract value, if a lower limit is not established in the Tender Documents.
2. The Contracted Party may unilaterally terminate the contract based on:
a) The impossibility of access to the area, site or object for the execution of the public works or for the supply of goods or the rendering of services on the contractual time limits, or of access to the sources of original materials specified in the Tender Documents or in the proposal, for an act attributable to the Contracting Entity;
b) A delay of more than 60 days in payments, whether total or partial, owed by the Contracting Entity by virtue of the public works, supply of goods or rendering of services; and
c) A lapse of 60 days from receipt of a written order of the Contracting Entity ordering the suspension of the execution of the public works or the rendering of services for reasons not attributable to the Contracted Party, except in case of force majeure or fortuitous event.
3. The party that intends to unilaterally terminate the contract must notify the other party of its intention of termination, indicating precisely the causes and their respective grounds.
4. Within no more than 30 days, the notified party shall cease the performing the actions indicated in the notification, at the end of which the notifying party may unilaterally terminate the contract based
on the grounds contained in the notice.
ARTICLE 57 Consequences of Unilateral Termination
1. If the unilateral termination proceeds from the Contracting Entity, it has the right, without prejudice to what may be stipulated in the Tender Documents and in the contract, to:
a) Forfeit the final guarantee given by the Contracted Party, for the payment of contractual penalties and for the indemnification of damages caused to the Contracting Entity;
b) Retain the credits resulting from the contract, for the indemnification of the damages caused to the Contracting Entity, up to the limit of such damages;
c) Require from the Contracted Party an indemnification for the damages caused; and
d) Take immediate possession of the object of the contract, in the state and place where it may be, occupying and using the site, facilities, equipment, materials and personnel employed by the Contracted Party in the performance of the contract, if necessary for the continuity of execution.
2. If the unilateral termination proceeds from the Contracted Party, it has the right, without prejudice to what may be stipulated in the Tender Documents and in the contract, to:
a) Be immediately refunded for the final guarantee given;
b) Receive the payments due for the performance of the contract until the date of termination; and
c) Be refunded for the costs of demobilization of the shipyard [worksite].
SECTION XIII Registry
ARTICLE 58 Formation of the Registry
1. The following fall within the responsibilities of the Functional Unit of Procurement Supervision:
a) Maintaining one single, up-do-date, registry of contractors of public works, suppliers of goods and service providers, eligible to participate in public tenders carried out by the State bodies and institutions, including State agencies and enterprises; and
b) Creating one single registry of contractors of public works, suppliers of goods and service providers forbidden from participating in the public tenders referred to in the previous item.
2. In view of the maintenance and enlargement of the registry referred to in the previous number, the following shall be performed:
a) Formulating, at least once every six months, a public invitation for entry in the registry, by an announcement published in the press; and
b) Automatically registering all persons that contract with State bodies and institutions.
3. Maintenance and updating of the registry of contractors of public works, suppliers of goods and service providers referred to in No. 1 of this article is the responsibility of the Managing Units of Procurement Execution.
ARTICLE 59 Entry, Maintenance and Updating of the Registry
1. Entry in the Registry depends on the submission by the interested party of its documents of legal, economic, financial and technical qualification and of its good fiscal standing provided for in this
Regulation, with the exception of contractors of public works.
2. Entry of contractors of public works in the registry depends on the submission by the interested party of the Operation Licence or Authorization issued by the Licensing Commission of Civil Construction Contractors.
3. Maintenance of a registry entry depends on the upkeeping, by the interested party, of the documents referred to in previous number; contractors of public works, suppliers of goods and service providers
who no longer meet the requirements for entry in the registry shall be excluded from the registry.
4. The registry must be permanently open for entry to any interested party who meets the requirements set forth in this Regulation; registry data may be updated by the interested party at any time and pursuant to the law.
5. The request for entry in the registry by the interested party’s initiative must be decided by the Functional Unit of Procurement Supervision within 15 days of submission.
6. In any contracting modality, the qualification requirements may be proved by the registry elements; submitting the documents referred to in No. 1 of this article is unnecessary.
7. A decision denying a request for entry in the Registry must be justified by the Functional Unit of Procurement Supervision, and may be appealed.
ARTICLE 60 Access to the Registry
The registry must be permanently open to review by any person, with no need to demonstrate an interest or to pay any tax or fee.
CHAPTER II Contracting Modalities
SECTION I Public Tender
ARTICLE 61 Definition
Public Tender is the contracting modality in which any interested tenderer may participate, as long as it meets the requirements established in the Tender Documents.
ARTICLE 62 Phases
The Public Tender has the following phases, in the order indicated:
a) Preparation and launch;
b) Submission and opening of proposals and qualification document[s];
c) Evaluation and correction;
d) Ranking and jury recommendation;
e) Award; and
f) Complaint and appeal.
ARTICLE 63 Tender Announcement
To carry out a Public Tender, the Contracting Entity must publish a Tender Announcement, pursuant to Articles 31 and 32 of this Regulation, and communicate it to the Functional Unit of Procurement
Supervision.
ARTICLE 64 Acquisition of Tender Documents
Acquisition of Tender Documents is not a condition to participate in the Public Tender. The Contracting Entity may only charge the value equivalent to the reproduction cost to supply them.
ARTICLE 65 Contents of Tender Documents
1. The Tender Documents must contain:
a) Identification of the Public Tender;
b) Object of contracting and its specification;
c) The phases of the Public Tender;
d) Address and deadline for requesting clarifications necessary to the appropriate understanding and interpretation of all rules and elements comprising the Tender Documents;
e) Sample delivery requirements, if applicable;
f) Tenderer qualification requirements;
g) Format of submitting proposals, indicating the elements and documents that must be attached to them;
h) The currency in which the price and payment conditions will be met;
i) Place, date and time of the day for delivery of proposals and qualification documents and for the opening of proposals;
j) Period of validity of the proposal, during which the tenderer is bound by it;
k) Possibility of submitting proposals with variants, when applicable;
l) Required guarantees;
n) Applicable penalties;
o) Draft contract;
p) Technical specifications meeting primarily Mozambican standards;
q) Forms; and
r) Other elements that the Contracting Entity may consider necessary or important.
2. The template Tender Documents that form part of this Regulation are mandatory.
ARTICLE 66 Availability of Tender Documents
From the publication of the Tender Announcement to the opening of proposals, the Tender Documents must be available for interested parties to review free of charge with no requirement to demonstrate an interest in contracting.
ARTICLE 67 Clarifications on Tender Documents
1. Any clarifications needed for proper understanding and interpretation of the published elements shall be requested by the tenderers in the first third of the period established for presenting proposals, and given in writing by the Entity for the purposes indicated in the Tender Documents until the end of the second third of the period established for presenting proposals.
2. The provision of clarifications does not affect the time limit determined in the Tender Documents for submitting qualification documents and proposals.
3. On the initiative of the interested parties or the Contracting Entity itself, the latter, by means of clarifications, may only set aside any doubts regarding the Tender Documents
4. The Contracting Entity may neither change the provisions in the Tender Documents nor include new rules, except as provided in the following article (68).
5. The Contracting Entity must communicate the clarifications it may have provided, pursuant to the previous numbers, to all interested parties that have acquired the Tender Documents and to those who
later acquire them.
ARTICLE 68 Modification of Tender Documents
After the publication of the Tender Announcement, the modification of the Tender Documents must be published in the same way as the original text, with an extension of the time limit, if necessary.
ARTICLE 69 Time Limits to Submit Qualification Documents and Proposals
1. The Tender Documents must set forth a reasonable and sufficient period of at least 21 days for the interested parties to prepare their qualification documents and proposals, in accordance with the nature and characteristics of the public works, goods, or services to be contracted.
2. The period for the submission of qualification documents and proposals begins on either the date of publication of the Tender Announcement or the date when the Tender Documents are made available, whichever is later.
ARTICLE 70 Form of Submitting Qualification Documents and Proposals
The qualification documents and the proposal must be submitted in a single opaque, sealed envelope, with the complete identification of the tenderer on the outside, as well as the object of the tender.
ARTICLE 71 Period of Validity of Proposals
1. The period of validity of proposals must be defined in the Tender Documents and must be at least 21 days long (and not longer than 120 days) from the final date of their submission.
2. The tenderer shall be bound by the proposal during its period of validity.
ARTICLE 72 Guarantees, Types and Forms
1. The Tender Documents must establish, as a condition for acceptance of the proposal, the provision of guarantees pursuant to the following numbers.
2. The guarantees may be:
a) Provisional, those provided upon submission of the proposal, to ensure its maintenance in Public Tenders whose estimated value is higher than the limits provided for in No. 2 of Article 90 of this
Regulation; and
b) Final, those provided after the award and before the signing of the contract, to ensure compliance with the obligations resulting therefrom.
3. The value of the provisional guarantee may not exceed 1.5 per cent of the contracting value estimated by the Contracting Entity.
4. The value of the final guarantee may not exceed 10 per cent of the Contracted Party’s proposal.
5. The following forms of guarantee shall be accepted by the Contracting Entity:
a) Bank guarantee;
b) Cash guarantee;
c) Certified check;
d) Government bonds; and
e) Surety bond.
6. In addition to those defined in this article, the Contracting Entity may accept other forms of guarantee, as long as they are provided for in the Tender Documents.
7. The tenderer may combine the guarantees provided for in No. 5, as long as they add up to the previously required value.
ARTICLE 73 Loss and Refund of Guarantees
1. In Public Tenders whose estimated value is higher than the limits provided for in No. 2 of Article 90 of this Regulation, the winning tenderer shall lose the provisional guarantee to the Contracting Entity if it:
a) Refuses to sign the contract;
b) Provides the final guarantee after the established time limit; or
c) Does not accept the corrections pursuant to No. 2 of Article 78 of this Regulation.
2. Provisional guarantees provided in Public Tenders whose estimated value is higher than the limits provided for in No. 2 of Article 90 of this Regulation shall be refunded to the winning tenderer:
a) Upon contract formation;
b) When the Public Tender is extinguished; or
c) When the period of validity of its proposal expires and is not extended.
3. The provisional guarantees of the other tenderers shall be refunded after the signing of the contract.
4. The Tender Documents may determine that the provisional guarantee may be converted in a final guarantee, without prejudice to its reinforcement, when necessary.
ARTICLE 74 Currency
1. Price proposals shall be presented in the national currency, the Metical, except as provided for in the Tender Documents.
2. Price proposals in a currency other than the national currency must be duly justified by the Managing Unit of Procurement Execution and approved by the Competent Authority.
3. In preparing their proposals, tenderers must include all taxes, fees and other dues on the contracting of public works, the supply of goods or the rendering of services.
ARTICLE 75 Public Act of Opening of Proposals
1. The opening of proposals is done by the Jury in a public act in which all persons who so wish may participate.
2. The public act of opening of proposals begins with the identification of the Public Tender and the reading of the list of tenderers, prepared in accordance with the order of receipt of envelopes.
3. After the formalities provided for in the previous numbers, the envelopes containing the qualification documents and proposals are opened and initialed by the members of the Jury.
4. If the evaluation criterion combines technical factors and price, the Tender Documents may exceptionally provide that the envelopes with price proposals be opened only after the evaluation of technical proposals.
5. Upon the opening of proposals, the Jury must announce the names of the tenderers, the price quotes and, when so required in the Tender Documents, (a) the existence (or not) of a provisional guarantee; (b) the presence of a proposal with a variant; and (c) a declaration of discounts offered.
6. The proposal-opening session ends with the reading of its minutes, which must be signed by the members of the Jury and the tenderers’ representatives present in the session.
7. The Jury proceeds immediately, in a closed session, to the analysis of the qualification documents and proposals presented by the tenderers, in accordance with the criteria established in the Tender Documents.
ARTICLE 76 Procedures to Correct Flaws or Omissions
1. If the Jury finds flaws or omissions in the qualification documentation, it shall request, on behalf of the Contracting Entity, that the tenderer correct (in writing) the flaws in question within a period of no fewer than two business days.
2. If the Jury finds defects or flaws in the samples submitted and required in the Tender Documents, it must notify the tenderer to correct them within a period of no fewer than two business days.
3. If the Jury has doubts regarding the qualification documents or regarding one or more of the proposals submitted, it may request clarification in writing. These clarifications may not modify the contents of the proposal.
ARTICLE 77 Disqualification of Tenderers
If the identified flaws or omissions are not remedied in the correction procedures, the Jury shall proceed to the disqualification of the tenderers, giving reasons.
ARTICLE 78 Evaluation and Qualification
1. The Jury evaluates the tenderers’ proposals in accordance with the criteria established in the Tender Documents.
2. If the Jury finds mathematical errors in one or more of the nondisqualified proposals, it shall proceed to the correction of such errors in accordance with the Tender Documents and shall notify the Tenderers about the errors or omissions detected.
3. In Public Tenders, the evaluation of proposals and the qualification of tenderers shall be carried out in one single phase.
ARTICLE 79 Ranking of Proposals
1. In the ranking of proposals, any advantage not provided for in the Tender Documents shall not be considered, and all of the requirements contained in the Tender Documents must be met.
2. The ranking must be duly justified in accordance with the provisions of this Regulation and the Tender Documents.
3. A proposal must be disqualified if:
a) It is presented after the time limit established in the Tender Documents;
b) It does not meet the requirements provided for in the Tender Documents; or
c) It presents unworkable or abusive conditions.
4. If the Tender Documents require the delivery of samples, their failure in tests and analyses shall determine the proposal’s disqualification.
ARTICLE 80 Evaluation Report and Jury Recommendation
After the phase of proposal evaluation, which includes, among other things, ranking and disqualification, the Jury prepares the report, in which it recommends to the Contracting Entity the best proposal evaluated in the Tender, for purposes of awarding the contract.
ARTICLE 81 Cancellation of Public Tender
1. The Contracting Entity must cancel the Public Tender if events occurring after the Tender Announcement are proven to modify the public interest in the contracting.
2. When the Contracting Entity intends to cancel the Public Tender, it shall notify all tenderers of the reasons in fact and in law on which it bases its intention, so that they can comment on them within three business days.
3. After the time limit for the tenderers’ comments, the Contracting Entity shall notify them, giving reasons for the decision taken.
ARTICLE 82 Invalidity
1. The Contracting Entity shall verify the legality of the acts carried out in the administrative proceeding of the tender, prior to deciding on the award.
2. If the Contacting Entity finds any illegality in the light of the norms of this Regulation, it shall declare the Public Tender invalid.
3. When the Contracting Entity intends to invalidate the Public Tender, it shall notify all tenderers of the reasons in fact and in law on which it bases its intention, so that they may comment on them within three business days.
4. After the time limit for the tenderers’ comments, the Contracting Entity shall notify them, giving reasons for the decision taken.
ARTICLE 83 Award
1. If the Contracting Entity neither cancels nor invalidates the Public Tender, it shall make a decision on the award, in accordance with the Jury’s recommendation.
2. The Contracting Entity shall communicate its decision on award to all tenderers within a period of no more than two business days.
ARTICLE 84 Communication of Award, Invalidation or Cancellation
1. The acts of award, invalidation or cancellation of the contracting shall be justified by the Managing Unit of Procurement Execution and duly communicated to the Functional Unit of Procurement Supervision.
2. The acts of award, invalidation or cancellation of the contracting shall be published in the press by the Contracting Entity.
SECTION II Tender with Pre-Qualification
ARTICLE 85 Definition
1. A Tender with Pre-Qualification is a restricted and specific contracting modality in which tenderers who have been qualified in a phase preliminary to the submission of their proposals participate.
2. The Pre-Qualification Tender shall be adopted when competition by Public Tender may be restricted because of the complexity of the qualification requirements and the costs involved in the preparation of proposals.
3. Only pre-qualified tenderers may participate in the phase of proposal submission, examination and classification.
4. The Tender with Pre-Qualification is subject to the subsidiary application of the Public Tender regime.
ARTICLE 86 Phases
The Tender with Pre-Qualification has the following phases, in the order indicated:
a) Preparation and launch;
b) Submission of qualification documents;
c) Correction and pre-qualification;
d) Complaint and appeal against the pre-qualification;
e) Restricted launch;
f) Proposal presentation;
g) Evaluation and correction;
h) Classification and jury recommendation;
i) Decision;
j) Award; and
k) Complaint and appeal.
ARTICLE 87 Tender Announcement and Documents
1. To carry out a Tender with Pre-Qualification, the Contracting Entity must publish the Tender Announcement, pursuant to Articles 31 and 52 of this Regulation.
2. The Tender Documents must comply with Article 65 of this Regulation and must further define:
a) A preliminary pre-qualification phase, with the indication of a period for the submission of qualification documents not shorter than 20 days from the date of the Tender Announcement; and
b) A subsequent phase for the submission of proposals, examination and classification, with an indication of the period for the submission of proposals by the tenderers qualified in the preliminary phase; this may not be shorter than 20 days from the date of the request for proposals to the pre-qualified tenderers.
3. The request for proposals shall be issued by the Contracting Entity in a period not exceeding one year from the date of the final decision on pre-qualification.
ARTICLE 88 Specific Competence of the Jury
It falls within the Jury’s responsibilities, in addition to the provisions of Article 17 of this Regulation, to verify compliance of the tenderers with the qualification requirements and decide on their pre-qualification.
ARTICLE 89 Disqualification of Pre-Qualified Tenderers
1. If the Jury finds a supervening fact that affects the qualification conditions of a pre-qualified tenderer or if it finds that false statements were made, the pre-qualified tenderer shall be disqualified in the phase of submission, evaluation and classification of proposals.
2. The disqualification of a pre-qualified tenderer does not affect the validity of the tender.
SECTION III Limited Tender
ARTICLE 90 Definition
1. The Limited Tender is a contracting modality based on value, as defined in No. 2 of this article, and intended for natural persons and micro, small and medium enterprises, registered in the single registry
referred to in Article 58 on the date set for the submission of proposals and qualification documents.
2. The Limited Tender may be adopted when the estimated value of contracting does not exceed:
a) Contracting of public works whose estimated value does not exceed MT3,500,000 (three million and five hundred thousand meticals); and
b) Contracting of the supply of goods and rendering of services whose estimated value does not exceed MT1,750,000 (one million and seven hundred and fifty thousand meticals).
3. The amounts defined in items a) and b) of No. 2 shall be periodically adjusted by a joint act of the Ministers who supervise the areas of Finances, of Industry and Trade and of Public Works and Housing,
respectively.
4. The Limited Tender is subject to the subsidiary application of the Public Tender regime.
ARTICLE 91 Phases
The Limited Tender has the following phases, in the order indicated:
a) Preparation and launch;
b) Presentation and opening of proposals and registration document;
c) Evaluation and correction;
d) Classification and jury recommendation;
e) Award; and
f) Complaint and appeal.
ARTICLE 92 Tender Announcement and Documents
1. To carry out a Limited Tender, the Contracting Entity must publish the Tender Announcement, pursuant to Articles 31 and 32 of this Regulation.
2. The Tender Documents must comply with Article 65 of this Regulation and must further define:
a) The tenderers’ qualification requirements, verifiable by the registration documents;
b) The time limits for:
I. Submitting proposals, which may not be shorter than 12 days from the date of the Tender Announcement;
II. Submitting a declaration by the tenderers that certifies that their respective registry data have not changed and that their respective registration documents have not expired.
3. The Tender Documents may require the submission of additional elements to prove the tenderers’ technical and economic qualifications.
ARTICLE 93 Evaluation Criterion and Decision
The criterion to be observed by the Jury in the evaluation, classification and recommendation on the decision to be taken in the Limited Tender is that of the lowest price, pursuant to Article 36 of this Regulation.
SECTION IV Two-Stage Tender
ARTICLE 94 Definition
1. The Two-Stage Tender is a contracting modality in which the tenderers offer, in the first phase, an initial technical proposal and, in the following phase, a final technical proposal and the price proposal.
2. The Two-Stage Tender may be carried out when:
a) The nature of the public works, goods or services does not allow the Contracting Entity to define in advance and in a precise manner the technical specifications that are most satisfactory and adequate to the public interest in question; or
b) The public interest may be satisfied in different ways.
3. The Two-Stage Tender is subject to the subsidiary application of the Public Tender procedures.
ARTICLE 95 Phases
The Two-Stage Tender has the following phases, in the order indicated:
a) Preparation and launch;
b) Submission of initial technical proposals;
c) Selection of initial technical proposals;
d) Discussion of initial technical proposals;
e) Definition of the common technical solution to all tenderers;
f) Complaint and appeal against the decision on the initial technical proposals;
g) Restricted launch;
h) Submission of qualification documents and of final technical and price proposals;
i) Evaluation and correction;
j) Classification and jury recommendation;
k) Award; and
l) Complaint and appeal
ARTICLE 96 Tender Announcement and Documents
1. To carry out a Two-Stage Tender, the Contracting Entity must publish a Tender Announcement, pursuant to Articles 31 and 32 of this Regulation.
2. The Tender Documents must comply with Article 65 of this Regulation and define in a clear and precise manner the public interest sought by the Contracting Entity, the fundamental characteristics of the public works, goods and services, the technical alternatives admitted for the Tender object and furthermore:
a) The period for submitting initial technical proposals, which may not be shorter than 30 days from the date of publication of the Tender Announcement; and
b) The period for submission, by the selected tenderers, of the qualification documents and of the final technical proposal and the financial proposal, which may not be shorter than 30 days from the date of conclusion of the discussion phase.
3. The Tender Documents may establish the time limits of the discussion phase for definition of the common technical solution and of the tenderer selection phase.
ARTICLE 97 Specific Competence of the Jury
1. It falls within the competence of the Jury to examine, classify and select, accepting or rejecting, the initial technical proposals submitted by the tenderers in accordance with the criteria defined in the Tender Documents.
2. After the selection of initial technical proposals, the Jury promotes discussions with selected tenderers, on a date, time of day and place defined in the Tender Documents or that may be determined in the notification, for the purpose of defining the technical solution most appropriate to meet the public interest in question.
3. After the definition of the technical solution provided for in the previous number, the Jury shall notify the selected tenderers:
a) Of the minutes drawn up containing the most appropriate technical solution;
b) Of the time limit for submitting the final technical proposal and the financial proposal.
ARTICLE 98 Evaluation Criteria and Decision
1. The proposals shall be ranked in accordance with the criteria defined in the Tender Documents.
2. Final technical proposals that do not conform to the common technical solution must be disqualified.
ARTICLE 99 Definition
1. The Tender by Bids is the contracting modality for the procurement of common goods and services of immediate availability, in which the dispute between the interested parties occurs by means of proposals of successive bids in a public session.
2. Common goods and services are those whose standards of performance and quality may be objectively defined in the Tender Documents by means of specifications that are customary in the market.
3. It falls within the competence of the Functional Unit of Procurement Supervision to develop, update and distribute to the Contracting Entities the list of common goods and services that may be the object
of procurement by means of Tenders by Bids.
4. The Minister who supervises the area of Finances shall regulate Tender by Bids by electronic means.
5. It falls within the competence of the Functional Unit of Procurement Supervision to implement and operationalize the electronic means for its use for the Contracting Entities.
6. The Tender by Bids is subject to the subsidiary application of the Public Tender regime.
ARTICLE 100 Phases
The Tender by Bids has the following phases, in the order indicated:
a) Preparation and launch;
b) Submission and opening proposals and of qualification documents;
c) Offering and closing of bids;
d) Qualification;
e) Award; and
f) Complaint and appeal.
ARTICLE 101 Tender Announcement and Documents
1. To carry out a Tender by Bids, the Contracting Entity must publish a Tender Announcement pursuant to Articles 31 and 32 of this Regulation.
2. The Tender Documents must comply with Article 65 of this Regulation and must further define:
a) The period for submitting proposals, which may not be shorter than 15 days from the date of publication of the Tender Announcement;
b) The date of opening of proposals and submission of bids;
c) The criteria for the selection of tenderers;
d) The criterion for establishing the difference of values from the best proposal for the tenderers to participate in the bidding phase; and
e) The waiver of the provisional guarantee.
ARTICLE 102 Specific Responsibilities of the Jury
It falls within the responsibilities of the Jury:
a) To receive the proposals of tenderers and to proceed to their opening in accordance with the criteria defined in the Tender Documents;
b) To determine participation in the bidding phase of the tenderers with proposals situated in the range referred to in item d) of No. 2 of Article 101;
c) To follow and regulate the offering of bids;
d) To evaluate the qualification documents of the tenderer who wins the bidding phase; and
e) To evaluate the qualification documents of the tenderer with the second-lowest price, in the event that the winning tenderer is excluded by lack of qualification in accordance with the Tender Documents, and, successively, until the winning tenderer is declared.
ARTICLE 103 Bids
1. The bidding phase is carried out by the submission of new and successive verbal proposals by the tenderers who wish to do so, in the bidding session, until a winning tenderer is declared.
2. While there are interested tenderers, the submission of new and successive bids may not be forbidden.
ARTICLE 104 Competent Authority
The Competent Authority, representing the Contracting Authority, must be present at the opening of the proposals, in the bidding phase, in the declaration of the winning tenderer and the award of the contract
ARTICLE 105 Evaluation Criterion and Decision
The Tender by Bids is evaluated only under the lowest-price criterion, pursuant to Article 36 of the present Regulation.
SECTION VI Small-Scale Tender
ARTICLE 106 Definition
The Small-Scale Tender is the contracting modality whose price estimate is lower than 15 per cent of the limit established pursuant to Nos. 2 and 3 of Article 90 of this Regulation, and restricted to natural
persons, micro and small enterprises.
ARTICLE 107 Phases
The Small-Scale Tender follows the same phases defined for the Public Tender, pursuant to Article 62 of this Regulation.
ARTICLE 108 Tender Announcement and Documents
1. To carry out a Small-Scale Tender, the Contracting Entity must publish a Tender Announcement, pursuant to Articles 31 and 32 of this Regulation or by means of advertisement on the radio and a tender published in the Contracting Entity’s headquarters.
2. In the Tender Documents, the qualification documents provided for in Articles 22, 23 and 25 of this Regulation may be waived, in full or in part; the Contracting Entity must define and expressly indicate in the Tender Announcement and Documents the qualification requirements waived in full or in part.
3. The certificate of release and discharge issued by the Fiscal Administration may be replaced with proof of payment of taxes by means of income tax withholding or by other means defined under tax
law.
4. The Tender Documents must determine a reasonable and sufficient period of no shorter than 12 days for the presentation of proposals.
5. The Contracting Entity may adopt simplified Tender Documents for the contracting of public works, the supply of goods and the rendering of small-scale services.
ARTICLE 109 Guarantee
In the contracting of public works, the supply of goods and the rendering of small-scale services, advance payment is allowed, without the need for the provision of a guarantee, to a maximum of 30 per cent of the Contract value or the budget for the goods necessary to the initial phase of the public works, whichever is lower.
ARTICLE 110 Contract
The Contracting Entity shall adopt simplified written instruments in cases of contracting public works, goods and small-scale services.
ARTICLE 111 Evaluation Criterion and Decision
The criterion to be followed by the Jury in the decision, ranking and recommendation on the decision to make in the small-scale Tender is that of the lowest price, provided for in Article 36 of this Regulation.
ARTICLE 112 Acceptance of Goods or Services
In exceptional instances, in the case of contracting the supply of goods and the rendering of small-scale services, when there is a proven shortage or lack of qualified personnel, the acceptance team may be
replaced by two staff designated by the Contracting Entity.
SECTION VII Direct Contracting
ARTICLE 113 Definition
1. Direct Contracting is the contracting modality applicable whenever contracting under any of the other modalities defined in this Regulation is unfeasible or inconvenient.
2. Direct Contracting is applicable in the following circumstances:
a) If the object of contracting may only be obtained from one single contractor of public works, supplier of goods or service provider, or if the Contracting Entity has previously contracted the purchase of goods or the rendering of services from an entity and it is justified for the maintenance of a uniform standard;
2. Direct Contracting is applicable in the following circumstances:
a) If the object of contracting may only be obtained from one single contractor of public works, supplier of goods or service provider, or if the Contracting Entity has previously contracted the purchase of goods or the rendering of services from an entity and it is justified for the maintenance of a uniform standard;
b) In an emergency situation that may cause irreparable damage (or damage that is difficult to repair) to the State or to society, and only to satisfy the object of the emergency and for the period of its duration;
c) In times of war or serious disturbance of public order;
d) If a previous tender was not effective due to lack of interest of tenderers or for the disqualification of all tenderers, and if it may not be repeated without harming the public interest;
e) If the object of contracting concerns national defense and security, especially in the execution of confidential military construction works, uniforms and their complements, acquisition, repair and maintenance of military equipment and of exclusive use of the Defense and Security Forces;
f) If the object of contracting is destined to supply military ships, boats, air units or troops and their means of transportation, when eventually stationed for a short period in ports, airports or other locations different from those of their nationality and only for those exigent circumstances arising from the emergency and for the period of its duration;
g) If the Contracting Entity is the State Information and Security Service; and
h) In the contracting of leases of immovable property.
3. Direct Contracting is also applicable when the estimated value of the contracting is less than 5 per cent of the limit established pursuant to Nos. 2 and 3 of Article 90 of this Regulation; at least three quotes must be gathered to justify the reasonableness of the price, and of the choice of contractor, supplier or service provider.
4. Splitting the estimated value of the contracting in order to implement Direct Contracting is forbidden.
ARTICLE 114 Phases
Direct Contracting has the following phases, in the order indicated:
a) Preparation;
b) Receipt of proposal;
c) Acceptance of proposal;
d) Verification of the sufficiency of the qualification for the performance of the object, whenever necessary; and
e) Award.
ARTICLE 115 Tender Announcement and Documents
1. In Direct Contracting, a specific Tender Announcement and Documents are not required, except in the contracting of leasing, in which the Contracting Entity must publish its intention to contract,
pursuant to Article 32 of this Regulation.
2. The template contract for the lease of immovable property [shall be approved] by a joint act of the Ministers who supervise the areas of Finances and of Public Works and Housing.
ARTICLE 116 Duties of the Contracting Entity
The Contracting Entity shall:
a) Give reasons for the choice of modality;
b) Verify the contractor’s or supplier’s qualification;
c) Justify the choice of the Contracted Party; and
d) Justify the reasonability of the price and the supply conditions.
ARTICLE 117 Evaluation Criterion and Decision
In Direct Contracting, the Contracting Entity shall pursue the best contracting conditions and adopt market conditions as parameters whenever possible.
ARTICLE 118 Mandatory Communication
1. The Functional Unit of Procurement Supervision must be notified of the use of Direct Contracting.
2. Communications regarding the Defense and Security Forces are made to the Functional Unit of Procurement Supervision
CHAPTER III Contracting of Consulting Services
SECTION I General Provisions
ARTICLE 119 General Rules
1. The contracting of Consulting Services must follow a previous selection process, except for the cases provided for in this Regulation.
2. In the contracting of Consulting Services, the Contracting Entity must seek quality services, by a fair competition, in accordance with the modalities provided for in this Regulation.
3. The Consultant shall act and execute the services with diligence, professionalism and competence, in the strict interests of the Contracting Entity.
4. The consulting contract must ensure the transfer of knowledge from the consultant to the counterpart designated by the Contracting Entity.
ARTICLE 120 Consultants
The consulting services may be contracted to natural persons, legal persons, whether public or private, including universities and research institutes.
ARTICLE 121 Conflict of Interest
1. Consultants who are in a conflict of interest may not render consulting services.
2. The term conflict of interest describes situations that preclude the Consultant from offering professional advice in an objective and impartial manner and giving preference to the interests of the
Contracting Entity, namely:
a) The Consultant has participated, directly or indirectly in any capacity, in the preparation of the terms of reference and other documents related to the subject matter of contracting;
b) The Consultant has been contracted by the Contracting Entity for the preparation or execution of a task, relative to the subsequent rendering of services related to the same task, except in cases of continuation of prior consulting services rendered by the Consultant;
The Consultant is contracting for a service that, because of its nature, conflicts with another service rendered by him or her;
d) The Consultant has partners, directors, senior board members or principal technical staff who belong to the permanent or temporary staff of the Contracting Entity; and
e) The Consultant maintains a contractual relationship, whether directly or by means of third parties, with the Contracting Entity or of kinship as provided for in item e) of Article 21, which allows him or her
to influence the decisions.
3. The verification of a situation of conflict of interest shall result in the disqualification and rejection of the proposal presented by the Consultant, or in the invalidity of the contract.
ARTICLE 122 Phases of the Selection Process
The process for the selection of consultants has the following phases, in the order indicated:
a) Preparation and launch;
b) Submission of technical and financial proposals;
c) Opening and evaluation of technical proposals;
d) Jury recommendation;
e) Decision on the evaluation of technical proposals;
f) Complaint and appeal against the evaluation of technical proposals;
g) Opening and evaluation of financial proposals, whether simple or combined, depending on the applicable case;
h) Jury recommendation;
i) Decision on the evaluation of financial proposals;
j) Contract negotiation, when necessary;
k) Decision;
l) Complaint and appeal; and
m) Award.
ARTICLE 123 Terms of Reference
“Terms of reference” refers to the document that clearly defines objectives, the scope of services, time limits, obligations and liabilities of the parties, services sought, desired qualifications, and provision of
available information, aiming at furnishing the elements necessary for the development of proposals by consultants.
ARTICLE 124 Budget
The budget must be based on the Contracting Entity’s assessment of the resources necessary to execute the services.
ARTICLE 125 Publicity
1. The Contracting Entity must publish the announcement in the newspaper with the largest circulation in the country, or in another communication medium that is better justified, requesting that tenderers express their interest.
2. The requested information must be limited to the minimum necessary to determine the consultants’ qualification that is appropriate to the object to be contracted.
3. Time limits must be sufficient for the preparation of replies by consultants and may not be shorter than 12 days.
ARTICLE 126 Short List
1. Participation in the tender process is restricted to a short list prepared by the Contracting Entity, in which a minimum of three and a maximum of six consultants are selected, for the same object to be contracted.
2. The short list must be prepared considering the consultants that express their interest, in accordance with No. 1 of Article 125 of this Regulation, and possess the necessary qualifications; those integrating
the registry may be resorted to when the number referred to in the previous number is not attained.
3. In preparing the short list, the Contracting Entity must always consider at least one-third of national consultants, except in the cases where a lack of consultants qualified for the object of contracting has
been demonstrated.
4. The Contracting Entity must prepare a report, including reasons, on the choice of the consultants forming the short list.
ARTICLE 127 Tender Documents
1. The Tender Documents for the selection of consultants must contain the following:
a) Letter of Request for Proposals, which must indicate intention of contracting the services, date, time of the day, place of receipt and opening of proposals;
1. The Tender Documents for the selection of consultants must contain the following:
a) Letter of Request for Proposals, which must indicate intention of contracting the services, date, time of the day, place of receipt and opening of proposals;
b) Information to Consultants, which must contain the elements necessary to the preparation of their proposals, selection criterion, factors and respective weighting of the technical and Financial proposals, as well as the minimum score for selection;
c) Terms of Reference; and
d) Draft Contract.
2. The use of template Tender Documents, which form an integral part of this Regulation, is mandatory.
ARTICLE 128 Time Limits
1. The Tender Documents for the selection of consultants must determine a reasonable and sufficient period for consultants to prepare their proposals, in accordance with the nature and complexity of the
services, which may be neither shorter than 31 days nor longer than 90 days.
2. Consultants may request clarifications regarding the Tender Documents, in writing, in the first third of the period for submission of proposals, and the Contracting Entity must reply in writing, sending a
copy of the response to every consultant in the short list.
SECTION II Contracting Modalities Subsection I Legal persons
ARTICLE 129 General Regime
1. The general regime for the contracting of legal persons, included in the short list, for the rendering of consulting services is based on the quality and on the price of the services to be contracted.
2. Selection based on quality and price of the services to be contracted is the standard modality for the selection of consultants who are legal persons, included in the short list, whose criterion is based on the
combined evaluation of the quality of the technical proposal and of the price quote for rendering the services.
3. The Tender Documents must establish the relative weighting attributed to quality and price, in view of the nature and complexity of the service; price may not be attributed a weighting higher than 30
points of a total of 100.
4. The proposals shall be ranked in accordance with the combination of the scores attributed to the technical and financial proposals, in accordance with the weighting referred to in the previous number.
5. The score of each tenderer’s technical proposal shall be obtained from the relationship between the score attributed to each of the proposals and the proposal that has received the highest score.
6. The score of each tenderer’s financial proposal shall be obtained from the relationship between the lowest price between the proposals submitted and the price submitted under each proposal.
7. The consultant who obtains the highest overall score, combining the technique and price scores, and after the application of the weight referred to in No. 3, shall be invited to the subsequent negotiation of
the contract.
8. The Jury must prepare a report based on the evaluation of the technical and financial proposals.
ARTICLE 130 Exceptional Regime
1. Whenever it is convenient to public interest and the requirements established under this Regulation are met, the Managing Unit of Procurement Execution shall, giving reasons, suggest to the Competent
Authority the application of the exceptional regime for the contracting of consulting services.
2. The decision declaring the verification of requirements for contracting under the exceptional regime and determining the application of such regime to the contracting of consulting services must be justified in writing by the Competent Authority.
3. The modalities for contracting under the exceptional regime are based on:
a) Quality;
b) Maximum price;
c) Lowest price;
d) Consultant’s qualifications;
e) Selection of a natural person; and
f) Direct contracting.
4. The modality referred to in item b) of the previous number shall be limited to the value of item a) of No. 2 of Article 90 of this Regulation.
5. The modality referred to in item d) of No. 3 of this article shall be limited to the value of item b) of No. 2 of Article 90 of this Regulation.
6. Contracting under the exceptional regime is subject to subsidiary application of the norms governing the General Regime for the contracting of consultants.
ARTICLE 131 Selection Based on Quality
1. Selection based on quality is the contracting modality in which the evaluation is based on the quality of the technical proposal.
2. The application of selection based on quality must be justified by the Managing Unit of Procurement Execution and depends upon prior authorization by the Competent Authority.
3. The Tender Documents must establish that consultants forming the short list submit their technical and price proposals simultaneously, in separate envelopes.
4. After determining the best technical proposal, and complying with the formalities provided for in this Regulation, the consultant who has submitted the best technical proposal acceptable, in accordance with the Tender Documents, shall be invited for the opening of the envelope containing the financial proposal.
5. Pursuant to the provisions in this Regulation, the financial proposal shall be subject to relevant negotiations.
6. The Jury shall prepare a report, giving reasons, on the evaluation of proposals.
ARTICLE 132 Selection Based on Maximum Price
1. Selection based on maximum price is the contracting modality in which the evaluation is based on the best technical proposal, in accordance with the limits of the maximum price established in the
Tender Documents.
2. This modality is applicable when the services are not complex and the maximum price can be established.
3. The Tender Documents must indicate the maximum price, inviting consultants who form a short list to submit their best technical and financial proposals, in separate envelopes, within the limits of the
maximum price.
4. In the selection based on maximum price, the Contracting Entity must ensure this price is sufficient to render the services provided for in the Terms of Reference.
5. After the evaluation of the technical proposals, and in accordance with the provisions of this Regulation, the price envelopes of the proposals that have obtained the minimum score established in the Tender Documents shall be opened in a public session.
6. Proposals that exceed the maximum price shall be disqualified. The consultant who has submitted the best technical proposal, within the maximum price established in the Tender Documents, shall be selected and invited to negotiate the contract.
7. The jury shall prepare a report, giving reasons, on the evaluation of proposals.
ARTICLE 133 Selection Based on Lowest Price
1. Selection based on lowest price is the contracting modality in which the evaluation is based on the proposal with the lowest price among the technical proposals that have obtained the minimum score established in the Tender Documents.
2. This modality is applicable to the contracting of services with existing standards or established routines.
3. The Tender Documents must establish that consultants forming a short list shall present a technical and financial proposal simultaneously, in separate envelopes.
4. The evaluation criteria and the minimum score required contained in the Tender Documents must ensure the minimum quality necessary for the performance of the services.
5. After the evaluation of the technical proposals and in accordance with the provisions of this Regulation, the price envelopes of the proposals that have obtained the minimum score established in the Tender Documents shall be opened.
6. The consultant that has submitted the proposal with the lowest price shall be selected and invited to sign the contract.
7. The Jury shall prepare a report, giving reasons, on the evaluation of proposals.
ARTICLE 134 Selection Based on Consultant Qualifications
1. Selection based on the consultant’s qualifications is the modality of contracting in which the evaluation is based on the comparison between the qualifications of at least three consultants.
2. This modality is applicable to the contracting of small consulting services, when the preparation and evaluation of competitive proposals is not justified.
3. The Contracting Entity shall prepare the Terms of Reference, request that consultants express their interest and provide information regarding their experience and competence relevant to the provision of the service, prepare a short list and select the consultant with the most appropriate qualification and references.
4. The selected consultants shall be invited to present a technical and financial proposal and to negotiate the contract.
5. The jury shall prepare a report, giving reasons, on the evaluation of proposals.
ARTICLE 135 Direct Contracting
1. Direct Contracting is only applicable in exceptional circumstances and advantageous conditions in comparison with competitive procedures.
2. The following are considered advantageous situations in comparison with competitive procedures:
a) Services involving the continuation of prior works rendered by the same consultant;
b) Development of the competitive procedure in timelines prejudicial to the public interest;
c) Services whose estimated price is lower than 5 per cent, pursuant to No. 2 of Article 90 of this Regulation; and
d) Where there exists only one qualified consultant or only one with relevant experience to render the service.
3. Direct Contracting must be duly justified by the Managing Unit of Procurement Execution, except for the cases provided for in item c) of No. 3 above.
Subsection II Natural Persons
ARTICLE 136 Selection of Natural Persons
1. Selection of natural persons is applicable for consulting services in which the person’s experience and qualifications are the main requirements.
2. Natural persons are selected based on the comparison of at least three candidates among those who show an interest in rendering the services; the Contracting Entity may select from registered consultants or from consultants who have already rendered satisfactory services to same.
3. Individual consultants contracted must meet all the relevant qualification and capacity requirements to perform the task.
4. Capacity shall be measured based on academic history, experience and, when necessary, knowledge of local conditions and other relevant factors.
5. The selected consultant shall be invited to submit technical and financial proposals, prior to the signing of the contract.
SECTION III Other Provisions
ARTICLE 137 Evaluation Criteria
1. The evaluation of technical proposals must take into account the characteristics of the services to be contracted in accordance with the following criteria:
a) Consultant’s experience in rendering the service;
b) Quality of the proposed methodology;
c) Qualification of the key staff proposed;
d) Transfer of knowledge, when applicable; and
e) Degree of participation of nationals among the key staff used in the rendering of the service.
2. The criteria indicated in the previous number shall be detailed in the subcriteria, as they may be relevant for the services to be contracted, with the attribution of the respective scores.
3. The technical evaluation elements may be expressed by a mathematical formula that takes into account, in an objective manner, the variables provided for in No. 1 of this article.
4. The evaluation criteria of the technical proposals provided for in No. 1 of this article must be established taking into account the following parameters, totaling 100 points:
a) Consultant’s experience: from 5 to 10 points;
b) Methodology: from 20 to 50 points;
c) Key staff: from 30 to 60 points;
d) Transfer of knowledge: from zero to 15 points; and
e) Participation of national consultants: from zero to 10 points.
5. The score attributed to the elements of technical evaluation and to the decision rejecting them must be duly justified in the evaluation report.
ARTICLE 138 Negotiations
1. Negotiations comprise discussions on the Terms of Reference, methodology, personnel, expenses and contractual conditions of the Contracting Entity and of the Consultant. These discussions may not
result in substantial modification of the original Terms of Reference or of the contract terms, so that they do not affect the quality of the final deliverable, the price and the fundamental aspects that have been the object of evaluation.
2. Except in exceptional circumstances, with due explanation, the unit prices shall not be subject to negotiation, as they have been used as a factor in the selection of the price proposal.
3. The final Terms of Reference and the aspects that are subject to negotiation will be included in the contract.
4. Except in exceptional cases, outside of the Consultant’s control, the replacement of key staff shall result in the rejection of the proposal. Where permitted, replacements must be professionals of equal or higher qualifications.
5. If negotiations are not satisfactory, the Contracting Entity shall conclude the negotiations, notifying the consultant in writing and inviting the subsequently ranked consultant. The notification on the
conclusion of negotiations must indicate the reasons on which it is based.
6. All negotiations shall be recorded in minutes and duly signed by the parties.
ARTICLE 139 Types of Contract
1. Consulting services must comply with the following contracting regimes:
a) By global price: applicable when the scope of services is linked to the delivery of a defined product and its payment is fixed, based on the completion of stages or on the delivery of the product;
b) Based on time: applicable when the scope of services is not linked to the delivery of a defined product nor is its payment fixed based on a price per unit of time.
2. The use of other types of contract depends on prior authorization by the Functional Unit of Procurement Supervision.
CHAPTER IV Complaints and Appeals
ARTICLE 140 Admissibility of Complaints
1. The acts of qualification, disqualification and award provided for in this Regulation may be the object of a complaint to the Contracting Entity.
2. Complaints must be submitted in writing within three business days of the date of tenderers’ notification.
3. During the complaint period, tenderers may have free access to the administrative proceeding of the tender.
4. It falls within the competence of the Jury to send the complaint as well as its opinion to the Contracting Entity within no more than three business days from receipt of the complaint.
5. The Contracting Entity shall issue a final decision on the complaint within three days of the date of its receipt.
6. The complaint has a staying effect on the tender proceedings.
ARTICLE 141 Complaint Fee
1. As a condition of admissibility of the complaint, the tenderer must provide a guarantee, as security, the value of which does not exceed 0.25 per cent of the estimated contracting value, limited to
MT125,000.00 (one hundred and twenty-five thousand meticais), which may be adjusted by means of a decision of the Minister who supervises the area of Finances.
2. The amount collected must be restored to the tenderer if the complaint is decided in favor of the tenderer and, if not, reverted to the Contracting Entity.
ARTICLE 142 Admissibility of Hierarchical Appeal
1. A hierarchical appeal, among others, may be filed against the acts of the Contracting Entity with the Minister that supervises the Contracting Entity, the Provincial Governor and the District Administrator, regarding the central, provincial and district levels, respectively.
2. The hierarchical appeal may be based on the following:
a) A breach of norms of this Regulation;
b) A breach of norms contained in the Tender Documents; and
c) A formal defect, including the lack of reasons in fact and in law in the administrative act.
3. The hierarchical appeal must be filed within three business days after notice on the decision on the complaint pursuant to Article 140 of this Regulation.
4. The hierarchical appeal has a staying effect on the contracting proceedings for a maximum period of five business days; the lack of a decision does not imply tacit approval or rejection.
5. The bodies indicated in No. 1 may request a specialized opinion from the Functional Unit of Procurement Supervision.
ARTICLE 143 Hierarchical Appeal Fee
1. As a condition of admissibility of the hierarchical appeal, the tenderer must provide a guarantee, as security, the value of which does not exceed 0.25 per cent of the estimated contracting value, limited to
MT125,000.00 (one hundred and twenty-five thousand meticais), which may be adjusted by means of a decision of the Minister who supervises the area of Finances.
2. The amount collected must be restored to the tenderer when the complaint is decided in favor of the tenderer and, if not, reverted to the Contracting Entity.
ARTICLE 144 Judicial Appeal
1. The decision rendered in a hierarchical appeal may be judicially appealed.
2. The judicial appeal must be filed within 10 days of the date of notice of the decision on the hierarchical appeal.
3. The judicial appeal is governed by specific legislation
CHAPTER V Ethics and Illicit acts
SECTION I Ethics
ARTICLE 145 Unethical Practices
1. The Contracting Entity and the Tenderers must comply with the most elevated ethical standards during the contracting proceedings and the execution of public works, the supply of goods and the rendering of services, in accordance with legislation in force.
2. In the performance of these principles [standards], the following definitions are adopted for purposes of this Regulation:
a) “Corrupt practice” means to offer, give, receive or solicit Something of value to influence the act of a civil servant in the contracting proceedings or in contract performance;
b) “Fraudulent practice” means a misrepresentation or omission of facts with the purpose of influencing contracting proceedings or contract performance to the detriment of the Contracting Entity;
c) “Collusive practice” means collusion between tenderers, with or without the knowledge of the Contracting Entity, to establish proposal prices at artificial, non-competitive levels, and to deprive the
Contracting Entity of the benefits of free and open competition; and
d) “Coercive practice” means a threat or threatening treatment of people or their family members to influence their participation in the contracting proceedings or in the performance of the contract.
3. If one or more of the practices mentioned in the previous number occurs, the Contracting Entity shall reject the proposal and declare the tenderer ineligible pursuant to this Regulation.
SECTION II Illicit Acts
ARTICLE 146 Acts Conducted by State Agents
Independently of any other applicable procedure, agents or civil servants who, participating or taking part in contracting proceedings, breach or fail to comply with the provisions of this Regulation and of the Tender Documents, are subject to disciplinary procedures pursuant the General Statute of State Civil Servants and Agents.
ARTICLE 147 Acts Conducted by Tenderers
1. Tenderers who, by themselves or through others, induce or aid in the practice of an act that breaches provisions of this Regulation or the Tender Documents are subject to the administrative procedures
referred to in the following numbers.
2. It falls within the competence of the Functional Unit of Procurement Supervision to initiate, conduct and decide on the administrative procedures referred to in the previous number, in terms to be established by a decision of the Minister who supervises the area of Finances.
a) Fines, as established in the Tender Document;
b) Prohibition of contracting with the State for the period of a year; and
c) In case of recidivism, prohibition of contracting with the State for the period of five years.
4. The penalties referred to in the previous number must take into account:
a) The seriousness of the breach with respect to the object of contraction;
b) The economic and financial situation of the tenderer, especially the capacity to generate revenue;
c) The degree of the tenderer’s involvement in the completion of the illicit act;
d) The benefit to the tenderer from the act;
e) The value of administrative expenses caused by the invalidation of the illicit act; and
f) Recidivism.
