THE GAMBIA PUBLIC PROCUREMENT ACT,
2001
No. 3 of 2002
AN ACT to provide for the
establishment, functions and powers of The Gambia Public Procurement Authority,
and for the basic principles and procedures to be applied in the public
procurement of goods, works and services, and to make provision for matters
connected therewith.
ENACTED by the President and the
National Assembly.
PART 1- PRELIMINARY
1.
Short title
This Act may
be cited as The Gambia Public Procurement Act, 2001.
2.
Interpretation
In this Act, unless the context otherwise
requires –
“Authority” means The Gambia Public
Procurement Authority established under section 4;
“award” means a decision by the
procuring organisation to determine the successful bidder;
“bid” means a tender, an offer, a
proposal or price quotation given in response to an invitation to supply goods,
works or services;
“bidder” means a physical or
juridical person submitting or seeking to submit a bid;
“bidding documents” means the tender
solicitation documents or other documents for solicitation of bids, on the
basis of which bidders are to prepare their bids;
“Board” means the Board of the
Authority;
“corrupt practice” includes the
offering, giving, receiving, or soliciting of any thing of value to influence
the action of a public official in the procurement process or in the execution
of a contract;
“determination of qualifications”
means a review of a bidder’s formal and substantive status and resources
affecting its’ capacity to sustain a contractual commitment to the procuring
organisation;
“Director General” means the Director General
of the Authority;
“fraudulent practice” includes a
misrepresentation of facts in order to influence a procurement process or the
execution of a contract to the detriment of the procuring organisation, and
includes collusive practices among bidders (prior to or after bid submission)
designed to establish bid prices at artificial, non-competitive levels and
deprive the procuring organisation of the benefits of free and open
competition;
“goods” means objects of every kind
and description, including raw materials, products and equipment, and objects
in solid, liquid or gaseous form, and electricity;
“international tendering proceeding”
means a tendering proceeding in which the invitation to bid, or to apply for
prequalification, is published in the international media;
“procurement” or “public
procurement” means the acquisition by any means, of goods, works or services,
funded in whole or in part by public funds;
“procurement contract” means the
contract between the procuring organisation and a supplier resulting from
procurement proceedings;
“procuring organisation” means a
Department of State, department, agency or organ of the State, statutory body,
public enterprise, Local Government Authority or other arm or unit of
Government or any subdivision thereof, engaging in procurement;
“public funds” means –
(a) any monetary resources
appropriated to procuring organisations through budgetary processes;
(b) aid, grants and credits made
available to procuring organisations by local and foreign donors; and
(c) revenues of procuring
organisations, including the Consolidated Revenue Fund, the Development Fund
and general funds of Local Government Authorities;
“Regulations” means Regulations made
under this Act;
“Secretary of State” means the
Secretary of State responsible for finance;
“services” means any object of
procurement, other than goods or works;
“supplier” means a physical or
juridical person under contract with a procuring organisation to supply goods,
works or services;
“works” means all works associated
with the construction, rehabilitation, demolition, maintenance or renovation of
a building or structure, including –
(a) site preparation, excavation,
erection, building, installation of equipment or materials, decoration and
finishing; and
(b) services incidental to works
comprising drilling, mapping, satellite photography, seismic investigations and
similar services provided pursuant to the procurement contract, if the value of
those services does not exceed that of the work itself.
3.
Objectives
of this act
The objectives of this Act are to
provide a system for ensuring-
(a) transparent, efficient and
economic public procurement;
(b) accountability in public
procurement;
(c) a fair opportunity to all
prospective suppliers of goods, works and consultancy services;
(d) the prevention of fraud,
corruption and other malpractices in public procurement; and
(e) improvements in social and economic
capacity in The Gambia, including providing opportunities for local small
enterprises and individuals to participate in an economic manner as suppliers,
contractors and subcontractors in public procurement.
PART II - THE GAMBIA PUBLIC
PROCUREMENT AUTHORITY
4.
Establishment
of The Gambia Public Procurement Authority
(1) There is hereby established an
authority to be known as The Gambia Public Procurement Authority.
(2) The Authority –
(a) shall be a body corporate with
perpetual succession and a common seal;
(b) may sue and be sued in its
corporate name;
(c) may purchase and otherwise
acquire and dispose of any property, movable and immovable; and
(d) shall be capable of doing or
performing all such acts and things as bodies corporate may by law do or
perform and exercise the rights, powers and privileges and incur the
liabilities and obligations of a juridical person of full age and capacity.
(3) The application of the common
seal of the Authority shall be authenticated by the signature of a person
authorised by the Authority to sign on its behalf and every document bearing
the imprint of the seal of the Authority shall be taken to be properly sealed
unless the contrary is proved. The Board
5.
The board
(1) There is hereby established a
Board for the Authority which shall be the governing body of the Authority.
(2) The Board shall comprise –
(a) a Chairperson;
(b) the Permanent Secretary of the
Department of State responsible for finance or his or her designate;
(c) the Solicitor General or his or
her designate;
(d) the Auditor General or his or
her designate;
(e) two other persons; and
(f) the Director General of the
Authority.
(3) The Board shall appoint a
Secretary to the Board from the staff of the Authority.
(4) The Chairperson and other
members of the Board, other than ex-officio members shall be –
(a) persons with high integrity and
extensive experience in the field of public procurement but with no direct or
indirect involvement in public procurement functions during their tenure as
members of the Board;
(b) appointed by the President on
the recommendation of the Secretary of State.
(5) A member shall not, by virtue
only of his or her appointment to the Board, be deemed to be an officer in the
public service.
(6) A member shall hold office for a
term of three years from the date of his or her appointment and may be
re-appointed for one further term of three years.
(7) A member may at any time resign
his or her office by a letter addressed to the Secretary of State.
(8) The office of a member shall
become vacant-
(a) on the expiry of the period of
his or her appointment;
(b) on his or her death, or
incapacitation by physical or mental illness, or if he or she is otherwise
unable or unfit to discharge the functions of a member of the Board;
(c) if he or she is adjudged a
bankrupt;
(d) if he or she is sentenced for an
offence-
(i)
of a felonious character or involving moral turpitude, or
(ii)
resulting in a term of imprisonment for a term of six months or more;
(e) if he or she is absent, without
the permission of the Board, from three successive meetings of the Board of
which he or she has had notice;
(f) on his or her resignation from
office; or (g) if he or she contravenes section 8.
(9) Whenever there is a vacancy in
the office of a member other than an ex-officio member, the President shall
appoint a replacement on the advice of the Secretary of State.
(10) Subject to section 6(4), the
Board may act notwithstanding any vacancy in its membership.
6.
Meetings of
the board
(1) The Board shall meet at such
place or places, and at such time or times, as the Chairperson may determine,
and shall meet at least once in every three months.
(2) A meeting of the Board shall be
convened by giving at least fourteen days written notice to the members.
(3) The Chairperson may, at any
time, and shall, if four other members request in writing, convene a special
meeting of the Board to be held within seven days of the request.
(4) The Chairperson shall preside at
the meetings of the Board, and in his or her absence, the members present at
the meeting shall appoint one of their number to preside.
(5)The quorum at any meeting of the
Board shall be five members.
(6) Subject to this Act, the Board
may make standing orders for the regulation of its proceedings and business or
the proceedings and business of any of its committees and may vary, suspend or
revoke those standing orders.
(7) Meetings of the Board shall be
convened by the Secretary to the Board on the direction of the Chairperson.
(8) The minutes of each meeting of
the Board or a committee of the Board shall be kept by the secretary to the
Board or committee and shall be confirmed at the succeeding meeting.
(9) The decision of the Board at a
meeting on any matter shall be that of the majority of the members present and
voting, but where there is an equality of votes, the person presiding at the
meeting shall have a casting vote in addition to his or her deliberative vote.
(10) The Board may co-opt any person
to act as an adviser at its meeting except that the co-opted person shall not
vote.
(11) The validity of a proceeding of
the Board shall not be affected by a vacancy in the membership or by any defect
in the appointment of a member.
(12) Subject to the provisions of
this Act, the Board and any of its committees may regulate its own procedure.
7.
Attendance
of meetings of board by other persons
(1) The Secretary of State, or his
or her nominee, may attend a meeting of the Board and participate in the
deliberations of the Board in respect of any matter.
(2) The person attending the Board’s
meeting under subsection (1) shall not vote at the meeting.
8.
Disclosure
of interest
A member who has a direct or
indirect personal interest in the outcome of the deliberations of the Board at
a meeting in relation to a matter shall –
(a) disclose the nature of the
interest, which shall be recorded in the minutes of the meeting; and
(b) withdraw from any deliberations
of the Board in respect of that matter and not vote on it.
9.
Transaction
of business without meeting
A resolution is a valid resolution
of the Board, even though it was not passed at a meeting of the Board, if - (a)
it is signed or assented to by a majority of members of the Board; and (b)
proper notice of the proposed resolution was given to each member.
10.
Committees
of the Board
(1) For the better carrying into
effect of the functions of the Authority, the Board shall establish-
(a) a Standing Committee for
Supplier and Donor Relations, with representation from the private sector and
donors;
(b) a Standing Committee for
Procuring Organisations, with representation from all types of procuring organisations
in The Gambia; and
(c) such number of other committees
which may consist of or include persons who are not members of the Board or
employees of the Authority, as the Board shall deem appropriate to perform such
functions and responsibilities as the Board shall determine.
(2) The Board shall appoint the
chairperson of each committee from amongst its members.
(3) An officer of the Authority duly
designated in writing by the Director-General shall be secretary to any
committee of the Board, and shall on the direction of the chairperson of the
committee, convene meetings of the committee.
(4) The provisions of section 6
relating to the meetings of the Board shall apply, with the necessary changes,
to the meetings of any committee.
11.
Remuneration
and expenses of members
(1) Members of the Board shall be
paid from the funds of the Authority such allowances as the Cabinet may
determine.
(2) The Board may make provision for
the reimbursement of any reasonable expenses incurred by a member or a member
of a committee of the Board in connection with the business of the Board or the
committee.
12.
Powers of
the Board
In the discharge of its functions
under this Act, the Board may –
(a) direct the Director-General to
furnish it with any information, reports or other documents which the Board
considers necessary for the performance of its functions;
(b) give instructions and orders to
the Director-General in connection with the management and performance of the
functions of the Authority;
(c) on the recommendation of the
Director-General, approve such organizational structures as the Director- General
may consider necessary for the discharge of the functions of the Authority.
PART III- FUNCTIONS AND POWERS OF
THE AUTHORITY
13.
Functions of
the Authority
(1) The Authority shall-
(a) be an autonomous agency of the
Government responsible for the regulation and monitoring of public procurement
in The Gambia, and no procuring organisation shall engage in any procurement
above such amount as may be specified in the Regulations without obtaining the
approval of the Authority at every stage of the procurement proceedings,
including tendering, request for proposals, awards and direct procurement ; and
(b) report directly and be
accountable to, and operate under the general supervision of the Cabinet.
(2) Without prejudice to the
generality of subsection (1), the functions of the Authority shall be to-
(a) assist in developing and
enhancing the efficiency and effectiveness of public procurement operations by
designating one or more persons or a specially appointed agent to –
(i)
carry out the procurement of goods, works or required by two or more procuring
organisations services on behalf of those organisations, or
(ii)
enter into framework agreements under which procuring organisations may place
orders for certain types of goods, works or services;
(b) develop, in consultation with
concerned professionals and official bodies for issuance by the relevant
authorities for use throughout The Gambia-
(i)
standardised and unified procurement regulations, to be published in the
Gazette,
(ii)
instructions and bidding documents which shall be binding on all procuring
organisations;
(c) promote the development of a
professional procurement workforce, including, by organising and conducting
training programmes, and developing Government policies and programmes aimed at
establishing procurement related positions, career 6 paths and performance
incentives;
(d) collect data on public
procurement and monitor the performance of procuring organisations in their
conduct of procurement proceedings to ascertain efficiency and compliance with
applicable legislation, regulations and instructions;
(e) provide annually to the
Secretary of State a quantitative and qualitative assessment of procurement
activities in The Gambia;
(f) inspect records, and activities,
of procuring organisations and refer to the Auditor General violations of this
Act and the Regulations, and other procedures relating to procurement;
(g) propose improvements in public
procurement procedures;
(h) provide administrative review of
bid protests pursuant to section 52 (2);
(i) carry out economic studies and
future projections on procurement to enable it to advice the Government on any
policy it may formulate in procurement matters;
(j) establish a data and information
base concerning procurement terminology and legislation and set policy for and
promote the application of modern information and communications technology to
public procurement;
(k) participate in discussions with
donor and international organisations on public procurement issues affecting
The Gambia;
(l) consult with The Gambia Chamber
of Commerce and other private sector bodies to obtain the views of the private
sector on matters relating to public procurement.
14.
Powers of
the Authority
(1) The Authority shall have such
powers as are necessary to enable it to carry out its duties and such other
powers as are convenient or incidental to the proper discharge of its duties.
(2) In the exercise of its powers,
the Authority shall not interfere in the award of any specific procurement
contract, except as provided in section 13(1) and in the Regulations.
(3) Without prejudice to the
generality of subsection (1), the Authority has power to-
(a) require a procuring organisation
to provide it with such information in relation to the procuring organisation
as the Authority may require to carry out its functions under this Act;
(b) appoint, consult and seek the
advice of such persons or bodies (including Departments of State and other
agencies of Government) whether inside or, with the prior consent of the
Secretary of State, outside The Gambia as it considers appropriate;
(c) establish a committee or other
body with the responsibility to make recommendations to the Authority on a
specific matter in accordance with section 10 (1);
(d) provide training, technical
assistance or advice to procuring organisations, and to the private sector,
necessary or convenient to prepare them for conducting and participating in,
procurement proceedings;
(e) publish, in such manner as it
considers appropriate, such information relating to its functions and
activities as it thinks fit;
(f) prepare or cause to be prepared
any relevant documentation (including drafts of any required legislation,
regulations or instructions) necessary to implement this Act or to effect
further development of public procurement in The Gambia;
(g) make an extract from or a copy
of any document, book, voucher, stamp, newspaper, tape or date storage devices,
in the possession or under the control of any procuring organisation.
(4) A procuring organisation shall,
when requested to do so by the Authority, provide it with such information as
the Authority may require to carry out its functions under this Act.
PART IV - STAFF OF THE AUTHORITY
15.
Appointment
of Director General
(1) There shall be a
Director-General of the Authority who shall be appointed by the President.
(2) The terms and conditions of
service of the Director-General shall be subject to approval by the Board.
(3) The Director-General shall be
the chief executive officer of the Authority and, subject to the general
supervision and control of the Board, shall be responsible for –
(a) the day- to- day operations of
the Authority;
(b) the management of the funds,
property and business of the Authority;
(c) the administration, organisation
and control of the other officers and staff of the Authority.
(4) The Director-General shall
devote his or her full time to the duties of his or her office and shall not
hold any office of trust or profit, other than that of Director-General, or
engage in any other occupation for reward outside the office of
Director-General, except that, the Board may grant specific and time-limited
waivers to this subsection if requested by the Director-General, and the Board
makes a written determination that –
(a) it is in the best interest of
the Authority; and
(b) there is no apparent or actual
conflict of interest in such exceptional office or occupation.
(5) The Director-General may,
subject to this Act and to any general or specific directions of the Board,
delegate any of his or her functions to one or more officers of the Authority.
16.
Appointment
of other staff
The Director-General may, on such
terms and conditions as the Board may determine, appoint other officers and
staff of the Authority as may be required for the performance of the functions
of the Authority.
PART V – FINANCIAL PROVISIONS OF THE
AUTHORITY
17.
Funds of the
Authority
(1) The funds of the Authority shall
comprise-
(a) monies appropriated to it by the
National Assembly;
(b) monies received by way of grants
gifts or donations from sources inside or outside The Gambia, provided that the
terms and conditions of the grant, gift or donation are not inconsistent with
the functions of the Authority;
(c) subject to approval of the
Secretary of State, monies raised by way of loans from any source inside or
outside The Gambia, for the discharge of its functions; and
(d) fees charged and collected in
respect of programmes, publications, seminars, documents, consultancy services
and other services provided by the Authority.
(2) Any funds received by the
Authority in respect of a financial year which are not expended by the end of
that financial year shall be placed in a reserve fund to be expended, subject
to the budget of the Authority for the ensuring financial year.
(3) The Authority may, subject to
the approval of the Board, invest in such manner as it thinks fit, such of its
funds as it does not immediately require for the performance of its functions.
18.
Accounts,
audit and estimates
(1) The Authority shall keep proper
records and books of accounts of its income and expenditure.
(2) The Authority shall prepare a
statement of accounts in respect of each financial year.
(3) The accounts of the Authority in
respect of each financial year shall be subject to audit by the Auditor
General.
19.
Annual
reports
(1) The Authority shall prepare and
submit to the Secretary of State within three months of the end of each
financial year a report on the activities of the Authority during the preceding
year.
(2) The Secretary of State shall
cause the report to be laid before the National Assembly at the first
reasonable opportunity.
20.
Financial
year
The financial year of the Authority
shall be a period of twelve months commencing on 1st January in each year, and
ending on 31st December in the same year or such other period as may be
determined by the Secretary of State.
PART VI - GENERAL PROVISIONS ON
PROCUREMENT PROCEEDINGS
21.
Scope of application
(1) Subject to subsection (2) , this
Act applies to all public procurements as defined in section 2.
(2) Where the Secretary of State
responsible for defence, with the approval of the Secretary of State
responsible for finance, determines that a procurement is related to national
defence or national security, the application of the rules and procedure set
out in this Act may be modified.
(3) For the purposes of subsection
(2), procurement of general stores, uniforms, stationary, computers and standard
vehicles shall not be classified as national defence or national security
procurement.
(4) Where a provision of this Act
conflicts with the procurement rules of a donor or funding agency, the
application of which is mandatory pursuant to an obligation entered into by the
Government, the requirements of the rules shall prevail, but, in all other
respects, the procurement shall be governed by this Act.
22.
De-aggregation
of procurement
A procuring organisation shall not
divide its procurement artificially in order to avoid the monetary thresholds
set in this Act or in any Regulations.
23.
Qualifications
of bidders
(1) The principles and rules in this
section apply to the determination, by procuring organisations, of the
qualifications of a bidder at all stages of the procurement proceedings,
including pre-qualification proceedings, if they take place.
(2) In order to enter into a
procurement contract, a bidder shall demonstrate, and the procuring
organisation shall positively determine, that the bidder qualifies for the
award of the procurement contract by having the necessary technical, financial
and ethical capacity.
(3) In order to qualify for the
award of a procurement contract, a bidder shall demonstrate to the satisfaction
of the procuring organisation, that –
(a) it possesses the necessary
professional and technical qualifications and competence, financial resources,
equipment and other physical facilities, managerial capability, experience in
the procurement object, reputation and personnel, to perform the contract;
(b) it has the legal capacity to
enter into the contract;
(c) it is not insolvent, in
receivership, bankrupt or being wound up, its business activities have not been
suspended, and it is not the subject of legal proceedings for any of the
foregoing;
(d) it has fulfilled its obligations
to pay taxes and social security contributions, if it applies;
(e) it, or any of its directors or
officers, have not been convicted of any criminal offence relating to
professional conduct or the making of false statements or misrepresentations as
to its qualifications to enter into a procurement contract within a period of
three years preceding the commencement of procurement proceedings, and that it
is not subject to debarment.
(4) A procuring organisation may
require a bidder to provide such appropriate documentary evidence or other
information as the procuring organisation may consider useful to satisfy itself
that the bidder is qualified in accordance with the criteria.
(5) Qualification requirements, and
documentation required to be submitted in connection with the requirements
shall be set out in the pre-qualification documents or biding documents, and
shall apply equally to all bidders.
(6) A procuring organisation shall
evaluate the qualifications of prospective bidders only in accordance with the
criteria and procedures set out in the pre-qualification or bidding documents
and referred to in subsections (2) and (3).
(7) A procuring organisation shall
disqualify a prospective bidder who submits a document containing false
information.
(8) A procuring organisation may
disqualify a prospective bidder if it finds at any time that the information
submitted concerning the qualifications of the prospective bidder was
materially inaccurate or incomplete.
24.
Pre-qualification
proceedings
(1) Pre-qualification proceeding may
be undertaken by a procuring organisation in order to limit the bidding
process, in accordance with the criteria set out in section 23(2) and (3), to
bidders with the capability and resources to perform the particular contract
satisfactorily, taking into account their-
(a) experience and past performance
on similar contracts;
(b) capabilities with respect to
personnel, equipment, and works or manufacturing facilities; and
(c) financial position.
(2) Pre-qualification proceedings
may be required for contracts for large or complex works, custom-designed
equipment, industrial plant, specialised services, and contracts to be let
under turnkey, design and build or management contracting.
(3) The invitation to pre-qualify
for bidding on specific contracts or groups of similar contracts shall be
advertised and notified as prescribed in the Regulations.
(4) The pre-qualification documents
shall be sent to all bidders who responded to the invitation.
(5) A procuring organisation shall
respond promptly to requests for clarification of the pre-qualification
documents that are received within a reasonable time prior to the deadline for
submission of applications to pre-qualify, and the clarifications shall be
provided to all bidders.
(6) Potential bidders who respond to
the invitation and meet the specified criteria shall be allowed to bid and a
procuring organisation shall inform all applicants of the result of the prequalification
proceedings within a reasonable time.
25.
Eligibility
In order to be awarded a procurement
contract, local suppliers shall be registered in accordance with Regulations
made under this Act.
26.
Rules
concerning description of goods, works and services
(1) The technical specifications for
goods, works and services shall clearly describe a procuring organisation’s
requirements with respect to quality, performance, safety and dimensions,
symbols, terminology, packaging, marking and labelling or the processes and
methods for production and requirements relating 13 to conformity assessment
procedures.
(2) In preparing the bidding and
pre-qualification documents –
(a) any specifications, plans,
drawings and designs setting out the technical or quality characteristics of
the goods, works or services to be procured; and
(b) requirements concerning testing
and test methods, packaging, marking, labelling, or conformity, certification,
symbols and terminology, or description of services, and contract terms, shall
be drawn up in an objective manner.
(3) Descriptions and definitions of
procurement requirements shall –
(a) be formulated in terms of
performance wherever possible rather than design or descriptive
characteristics; and
(b) take into account international
and national standards, so as to maximize competition and avoid creating
unnecessary obstacles to participation by bidders in the procurement
proceedings, while ensuring that applicable national and international
standards and the requisite quality levels are met.
(4) No requirement or reference
shall be made in the technical specifications to a particular trademark or
name, patent, design or type, specific original, producer or service provider,
unless –
(a) there is no sufficiently precise
or intelligible way of describing the procurement requirements; and
(b) words such as “or equivalent”
are included in the specifications.
27.
Form of
communication
(1) Subject to provisions of this
Act and the Regulations, any document, notification, decision and other
communication required to be submitted by the procuring organisation to a
bidder or by a bidder to the procuring organisation shall be in 14 writing.
(2) The use of other forms of
communication may be authorised, provided that a record of the content of the
communication is preserved and other requirements set out in this Act and in
the Regulations are met.
28.
Conduct of
public officials and bidders
(1) A public officer involved in
requisitioning, planning, preparing and conducting procurement proceedings and
administering the implementation of procurement contracts, shall –
(a) discharge his or her duties
impartially so as to assure fair competitive access to public procurement by
suppliers;
(b) always act in the public
interest, and in accordance with the objectives and procedures set out in this
Act and in the Regulations;
(c) at all times avoid conflicts of
interest and the appearance of impropriety in carrying out his or her duties
and conducting himself or herself; and
(d) not commit or abet corrupt or
fraudulent practices, including the solicitation or acceptance of improper
inducements.
(2) A bidder shall not engage in or
abet corrupt practices, including the offering of improper inducements, and
fraudulent practices, the misrepresentation of facts, in order to influence –
(a) a procurement process or the
execution of a contract to the detriment of the procuring organisation; and
(b) collusion amongst bidders, prior
to or after bid submission, designed to establish bid prices at artificial
non-competitive levels and to deprive the procuring organisation of the
benefits of free and open competition.
(3) Any information concerning the
planning or the occurrence of corrupt or fraudulent practice shall be reported
promptly to the head of the procuring organisation, to the Authority and to the
relevant law-enforcement authorities.
(4) A procuring organisation shall
reject a bid if the bidder offers, gives or agrees to give an inducement
referred to in subsection (2) and promptly notify the rejection to the bidder
concerned.
(5) A public officer shall keep
confidential the information that comes into his or her possession relating to
procurement proceedings and to bids, including bidders’ proprietary
information.
(6) A violation of any provision of
this Act or the Regulations shall be referred to the relevant authorities for
applicable administrative, civil and criminal sanctions.
(7) A procurement officer and member
of a Contracts Committee shall on assuming his or her duties subscribe the oath
of office with specific reference to the obligation to –
(a) adhere to rules of conduct set
out in this Act, the Regulations, instructions and other applicable procedures;
and
(b) faithfully execute the duties
and tasks properly assigned to him or her.
29.
Debarment of
bidders and suppliers
(1) The Authority shall protect the
Government from actual or potential harm by excluding a potential supplier or
bidder from participation in public procurement for a minimum period of one year
and a maximum period of five years after –
(a) reasonable notice to the
supplier or bidder involved of the cause of the proposed action;
(b) reasonable opportunity for the
potential supplier or bidder to respond to the proposed action; and
(c) consultation with the affected
procuring organisation to consider all the facts of the case.
(2) A supplier or bidder shall not
be excluded from participation in procurement except on the following grounds –
(a) refusal by a successful bidder
to –
(i)
sign a procurement contract, or
(ii)
furnish a performance security, if required to do 16 so in accordance with the
terms of the bidding documents;
(b) provision of false information
supplied in the process of submitting a bid;
(c) collusion between the bidders or
a bidder and a public officer concerning the formulation of terms of reference
or the bidding documents;
(d) connivance to interfere with the
participation of competing bidders;
(e) misconduct relating to the
submission of bids, including, corruption, collusion, price fixing, a pattern
of under-pricing of bids, and breach of confidentiality;
(f) breach of contractual
obligations under a procurement contract deemed serious enough to warrant
debarment, provided that the breach was not due to circumstances beyond the
control of the supplier or bidder;
(g) conviction of a criminal offence
relating to obtaining or attempting to obtain a contract or subcontract; or
(h) conviction for an economic
crime.
30.
Procurement
planning
A procuring organisation shall
engage in procurement planning, with a view to achieving maximum value for
public expenditure and the other objectives set out in section 3, and in
accordance with the applicable budgetary procedures.
31.
Contract
administration
(1) A procuring organisation is
responsible for the administration of procurement contracts into which it
enters and shall establish procedures for contract administration and provide
the necessary material and human resources for their implementation.
(2) A procuring organisation may
agree to submit to arbitration disputes relating to the performance of
procurement contracts.
32.
Rejection of
all bids and termination for convenience
(1) A bid may be rejected only in
accordance with this Act and the Regulations.
(2) A procuring organisation may –
(a) reject all bids at any time
prior to the acceptance of a bid;
(b) cancel the procurement
proceedings in the public interest;
(c) terminate a procurement contract
for convenience, in the public interest.
(3) The reason for rejecting all
bids, and for cancelling procurement proceedings, shall be noted in the record
of the procurement proceedings, and promptly communicated to the bidders.
(4) A procuring organisation shall
not be liable to a bidder by reason only of cancellation of procurement
proceedings under subsection (2)(b).
(5) If a decision to cancel the
procurement proceedings is taken before the deadline for submission of bids,
any bids received shall be returned unopened to the bidder submitting it.
33.
Debriefing
A procuring organisation shall, upon
request, communicate to a bidder the grounds for the rejection of its
application to prequalify, or of its bid.
34.
Entry into
force of procurement contract
The manner of entry into force of a
procurement contract shall be indicated in the bidding documents.
35.
Public
notice of procurement contract awards
(1) A procuring organisation shall
promptly publish a notice of procurement contract awards when the price of the
contract exceeds the level set by the Regulations.
(2) The notice, which shall indicate
the contract price and the name and address of the successful bidder, shall be
published in the local media and by such other means as provided in the
Regulations.
36.
Record of
procurement proceedings and archiving requirement
(I) A procuring organisation shall
maintain a record and preserve documentation of the procurement proceedings.
(2) Information to be included in
the record shall, to the extent applicable, include –
(a) a description of the object of
the procurement;
(b) a list of the participating
bidders, their names and addresses, and their qualifications, or lack of
qualifications;
(c) names of bidders that express
interest or a request to be short listed;
(d) the name and address of the
successful bidder;
(e) bid prices, including that of
the winning bid;
(f) the evaluation criteria
stipulated and applied, including their relative weight;
(g) a summary of the evaluation of
bids;
(h) a summary of any review
proceedings and decisions on the proceedings;
(i) a summary of requests for
clarification of pre-qualification documents and bidding documents, and
responses to those clarifications;
(j) statement of grounds for
rejection of all bids or cancellation of procurement proceedings;
(k) statement of grounds for choice
of a procurement method, other than tendering or request for proposals for
services;
(l) statement of grounds for
reduction of bid-preparation periods;
(m) information concerning rejection
of bids pursuant to sections 28(4) and 32(2);
(n) summary of requests for
proposals by members of the Contracts Committee; and
(o) such other information as may be
required by the Regulations.
(3) The record shall, on request, be
made available to any person after a bid has been accepted, unless any portion
of the record is required to be disclosed at an earlier or later point in time
pursuant to the Regulations or by order of a competent court.
(4) The documents required to be
preserved pursuant to subsection (1) include –
(a) a copy of the invitation to bid
actually made available to bidders;
(b) pre-qualification documents, if
any;
(c) bidding documents and any
amendments made to the documents as issued to the bidders;
(d) requests for clarification of
bidding and pre- qualification documents, and responses thereto;
(e) minutes of –
(i)
pre-bid conference, if any,
(ii)
bid opening proceedings,
(iii)
bid evaluation meetings,
(iv)
any negotiations with bidders, and
(v)
all other meetings related to the procurement;
(f) the time the bids are submitted;
(g) correspondence between the
procuring organisation and the bidders;
(h) bid evaluation reports;
(i) the procurement contract;
(j) correspondence and documents
relating to the performance of the procurement contract.
(5) A procuring organisation shall
maintain the documents 20 referred to in subsection (4) for a period of five
years from the date of a decision to cancel or terminate the procurement
proceedings, the date of contract award, or the date of contract completion,
whichever comes later.
(6) A procuring organisation shall
not, except when ordered to do so by a court, disclose any information –
(a) if the disclosure would –
(i)
be contrary to law,
(ii)
impede law enforcement,
(iii)
not be in the public interest,
(iv)
prejudice legitimate commercial interest of the parties, or (
v)
would inhibit fair competition; or
(b) relating to the examination,
evaluation and content of bids, other than in the summary form referred to in
subsection (2).
37.
Small local
businesses
(1) The Authority shall, in
collaboration with the heads of procuring organisations, establish a programme
to facilitate participation by small local enterprises and individuals in
public procurement.
(2) The head of a procuring
organisation shall –
(a) be responsible for effectively
implementing the programme within its activities, and achieving programme
goals;
(b) ensure that procurement
personnel maintain knowledge of the programme requirements; and
(c) take all reasonable action to increase
participation in the organisation’s procurement by those enterprises.
38.
Responsibility
for supply management
(1) A Permanent Secretary or head of
a procuring organisation shall be –
(a) personally responsible for any
lapses in the general supervision and control of stores and stores accounts in
the procuring organisation and shall ensure that the members of the store-
keeping staff perform their duties satisfactorily; and
(b) financially liable for any
financially lose incurred through his or her failure to meet those
responsibilities.
(2) In formulating and updating
procedures for supply management, modern information and communications
technology shall be applied to the maximum practical extent to supply
management.
PART VII – METHODS OF PROCUREMENT
AND THEIR CONDITIONS FOR USE
39.
Preference
for open tendering
Except as otherwise provided in this
Part, public procurement shall be through the use of open tender proceedings.
40.
Conditions
for use of restricted tendering
Restricted tender proceedings may be
used only when –
(a) when the goods, works or
services are only available from a limited number of bidders, known to the
procuring organisation; and
(b) the time and cost of considering
a large number of bids is disproportionate to the value of the procurement.
41.
Conditions
for use of twostage tendering
(1) A tendering proceeding may be
conducted in two stages –
(a) when it is not feasible to
define fully the technical or contractual aspects of the procurement; and
(b) when, because of the complex
nature of the goods, works or services to be procured, the procuring
organisation wishes to consider various technical or contractual solutions, and
to negotiate with bidders about the relative merits of those variants and
possible amendments thereto, before deciding on the final technical
specifications and contractual terms. 22
42.
Conditions
for use of international tendering
(1) An international tendering
proceeding shall be held-
(a) when the estimated value of the
contract exceeds an amount set by the Authority ;
(b) when the goods, works or
services are not available at competitive prices and conditions from at least
three suppliers in The Gambia; or
(c) when a supplier was not revealed
by national tender proceedings.
(2) A foreign bidder shall be
permitted to participate in tendering proceedings without regard to whether or
not the invitation to tender, or to apply for pre-qualification, is published
in the international media or only in the national media.
43.
Conditions
for use of request for proposals
Request for proposals may be used
for the procurement of consultants’ services and other types of intellectual
services.
44.
Conditions
for use of request for quotations
(1) Request for quotations may be
used for the procurement of –
(a) readily available commercially
standard goods not specially manufactured to the particular specifications of
the procuring organisation;
(b) small works; or
(c) routine services, when the
estimated value of the procurement does not exceed the amount set in the
Regulations.
(2) Local requests for quotation
proceedings shall be used when the desired goods, works or services are
ordinarily available from three or more sources in The Gambia at competitive
prices and conditions.
45.
Conditions
for use of singlesource procurement
(1) The single-source procurement
method may be used only in the following circumstances –
(a) when the estimated value of the
procurement does not exceed the amount set in the Regulations;
(b) when only one supplier has the
technical capability or capacity to fulfil the procurement requirement, or the exclusive
right to manufacture the goods, carry out the works, or perform the services to
be procured, and no suitable alternative exists;
(c) when there is an emergency need
for the goods, works or services, involving an imminent threat to the physical
safety of the population or of damage to property, or in the case of other
unforeseeable urgent circumstances not due to the dilatory conduct of the
procuring organisation, and engaging in tendering proceedings or other
procurement methods would therefore be impractical;
(d) when the procuring organisation,
having procured goods, works or services from a supplier, determines that
additional goods, works or services must be procured from the same source for
reasons of standardization or because of the need for compatibility with
existing goods, equipment, technology, works or services, taking into account –
(i)
the effectiveness of the original procurement in meeting the needs of the
procuring organisation,
(ii)
the limited size of the proposed procurement in relation to the original procurement,
(iii)
the reasonableness of the price, and
(iv)
the unsuitability of alternatives to the goods or services in question;
(e) for purchase of perishable
commodities such as fresh fruits, vegetables or other similar items which are
purchased on competitive market terms.
(2) A single-source procurement on
the grounds referred to in subsections (1)(b), (c) and (d) shall be subject to
approval by the Authority, which shall act on requests for approval without
delay.
46.
Grounds for
choice of procurement method used to be noted in record of proceedings
Where a procuring organisation uses
a method of procurement other than open tendering or, in the case of
procurement of consultants’ services, a method other than request for
proposals, it shall note in the record of the procurement proceedings the
grounds for the choice of the procurement method used.
47.
Procurement
of privately financed infrastructure and services
(1) A contract for privately
financed infrastructure projects, including forms such as
“build-operate-transfer” and related forms of private sector involvement in
providing public services, may be awarded on a competitive basis.
(2) Any Regulations and instructions
issued pursuant to this Act shall set out specific procedures to be followed in
the application of one or more of the procurement methods set out in this Part
to procurement of works and services carried out on the basis of private
financing.
PART VIII - CONTRACTS COMMITTEES AND
SPECIALISED PROCUREMENT UNITS
48.
Establishments
of Contracts Committees
(1) A Contracts Committee shall be
established in every procuring organisation in The Gambia supported by specialised
procurement units to be established in the organisation, and procuring
organisations with low levels of procurement may jointly establish a shared
procurement unit.
(2) The composition of a Contracts
Committee shall be in accordance with section 49.
(3) A procuring organisation is
responsible, and accounting officers and other officials concerned are
accountable, for public procurement in accordance with this Act and any
Regulations issued by the Authority, and other applicable laws, regulations,
and Financial Instructions applicable in The Gambia.
(4) The accounting officer, or the
head of a procuring organisation where there is no designated accounting
officer, shall appoint a staff member of the organisation to act as secretary
to the Contracts Committee.
(5) The Secretary of the Contracts
Committee shall take minutes of meetings of the Contracts Committee and
maintain a file of all matters considered by the Contracts Committee.
(6) A Contracts Committee may
delegate, to a specialised procurement unit, authority to make contract award
decisions, subject to such decisions being subsequently reported to and
recorded in the minutes of the Contracts Committee.
(7) Delegation of the authority
shall be expressed in terms of estimated maximum contract values, which may
differ according to whether the contract is for procurement of goods, works or
services.
(8) A decision by a procuring
organisation to proceed with direct procurement in accordance with this Act
shall be subject to review and approval by the relevant Contracts Committee.
(9) The minutes and other records of
a Contracts Committee shall be open to inspection by representatives of the
Authority at any time and shall be made public to the extent provided for in
section 36 (3).
(10) A Contracts Committee shall
submit, to the Authority for review, monthly reports on all the evaluations
done by the Contracts Committee.
(11) A Contracts Committee shall
make necessary arrangements to ensure that timely information on the conclusion
and execution of contracts by a department or division of a procuring
organisation, as well as on supplier performance, is reported to the Contracts
Committee.
49.
Composition
of Contracts Committees
(1) A Contracts Committee shall be
staffed with personnel who are well informed concerning public procurement, and
whose professional qualifications meet the requirements that may be established
by the head of the procuring organisation, in accordance with guidelines to be
issued by the Authority.
(2) The head of the accounting unit,
or the head of the procuring organisation, where there is no designated
accounting officer or, his or her representative shall chair the Contracts
Committee.
(3) Appointment of other members,
and staff to a Contracts Committee shall be in accordance with the guidelines
established by the Authority.
(4) A Contracts Committee shall
consist of at least three members and shall include, in addition to the
chairperson, an accounts officer or any budget professional, as well as an engineer
or technician familiar with the substance of the procurement, if available.
(5) Ad hoc members to provide
necessary technical, legal and business expertise to the Contracts Committee
shall be drawn from the relevant Department of State or unit.
50.
Functions of
Contracts Committees
The general functions of a Contracts
Committee shall include –
(a) verification of proper
procurement planning and availability of funds;
(b) approval of the invitation to
bid and the bidding documents;
(c) approval of use of single-source
procurement in accordance with the Regulations;
(d) conducting the opening of bids;
(e) comparing and evaluating the
bids, and selecting the winning bid, subject to paragraph (f);
(f) submitting the recommendations
resulting from the evaluation of bids to the Secretary of State concerned or
other official designated in the Regulations, in case the value of the
procurement exceeds the authority of the Contracts Committee; and
(g) considering applications for the
variations.
51.
Establishment
of specialised procurement units
The Secretary of State, concerned or
the head of a procurement organisation shall establish specialized procurement
units and assign, to the heads of those units, authority to conduct procurement
activities in accordance with this Act and the Regulations.
52.
Staffing of
specialized procurement units
A specialised procurement unit shall
be staffed with personnel that are well trained concerning public procurement,
and whose professional qualifications meet the requirements that may be
established in accordance with guidelines to be issued by the Authority.
53.
Career
development and management of procurement officers
The Authority shall develop and
recommend to the Secretary of State concerned and heads of procuring
organisations a career development and management programme, and a system for
selection, appointment and termination of appointment of procurement officers.
PART IX - REVIEW
54.
Right to
review
(1) Subject to subsection (2), a
bidder that claims to have suffered, or that is likely to suffer, loss or
injury due to a breach of a duty imposed on the procuring organisation by this
Act may seek review in accordance with this Part.
(2) Subsection (1) shall not apply
to –
(a) the selection of a method of procurement
pursuant to Part VII;
(b) the choice of a selection
procedure in request for proposals for services, in accordance with the
Regulations;
(c) a decision by the procuring
organisation under section 32(2) to reject all bids or to cancel the procurement
proceedings;
(d) a refusal by the procuring
organisation to respond to an expression of interest in participating in
request for proposals for services proceedings set out in the Regulations.
(3) An application for review shall
not be entertained unless it identifies the specific act of omission or
commission alleged to violate this Act or the Regulations.
55.
Review
procedures
(1) Prior to the entry into force of
a procurement contract, application for review shall be made in the first
instance, in writing, to the head of the procuring organisation.
(2) The head of the procuring
organisation shall not entertain an application for review unless it was
submitted within ten working days of when the bidder submitting it became aware
of the circumstances giving rise to the complaint or of when that bidder should
have become aware of those circumstances, or other deadlines set in the
Regulations, whichever is earlier.
(3) The head of a procuring
organisation shall render a decision within ten working days of the submission
of the application for review.
(4) The matter in question may be
brought before the Authority in the following circumstances –
(a) in the form of an appeal by the
complaining bidder against a decision by the head of the procuring
organisation, provided that the appeal is submitted within ten working days of
the date of the decision;
(b) where the head of a procuring
organisation fails to render a decision within the required time frame,
provided that the application for review is filed within ten working days of
the expiry of the time for the decision by the head of the procuring
organisation referred to in subsection (3);
(c) in the case of an application
for review submitted in the first instance to the Authority, if the procurement
has already entered into force, the application shall not be entertained unless
it is submitted to the Authority within ten working days of when the bidder
submitting it became aware of the circumstances giving rise to the complaint or
of when that bidder should have become aware of those circumstances, whichever
is earlier.
(5) The Authority shall make a
decision under this Part within ten working days after receiving the complaint.
(6) Unless a complaint is dismissed,
the remedies that may be ordered by the Authority include –
(a) prohibiting the procuring
organisation from acting or deciding in an authorised manner or from following
incorrect procedure;
(b) annulling in whole or in part
any unauthorised act or decision of a procuring organisation, other than any
act or decision bringing the procurement contract into force;
(c) reversing a decision by the
procuring organisation or substituting its own decision for such a decision,
other than any decision bringing the procurement contract into force;
(d) payment of reasonable costs
incurred in participating in the bidding process where the results were not in
accordance with this Act or the Regulations.
(7) The timely submission of a
complaint in accordance with deadlines set in this section suspends the
procurement proceedings for a period of ten working days, and the suspension shall
take effect on the filing of the application for review.
(8) The head of the procuring
organisation or the Director General of the Authority may extend the period provided
in subsection (7) in order to preserve the rights of the bidder submitting the
application for review, provided that the total period of suspension shall not
exceed thirty days.
(9) The suspension provided by this
section shall not apply if the procuring organisation certifies that urgent
public interest considerations require the procurement to proceed.
(10) The certification, which shall
state the grounds for the finding that urgent considerations exist and which
shall be made a part of the record of the procurement proceedings, is
conclusive with respect to all levels of review except judicial review.
PART XII - AUDITING
56.
Regular
auditing of procurement activity
Procurement activity shall be
subject to regular auditing by the Auditor General to ensure that public funds
are expended for their intended purpose, and with a view to maximizing value
received by the public purchaser, ensuring that proper and accountable systems
are in place and adhered to, and identifying any weaknesses in procurement.
57.
Bodies to
cooperate with the Authority
All public entities, individuals and
officials involved in public procurement shall, in accordance with this Act and
other applicable legislation, provide full cooperation and disclosure to the
Authority, the Auditor General, and other authorities exercising monitoring and
supervisory jurisdiction over public procurement pursuant to the laws of The
Gambia.
PART XIII - MISCELLANEOUS PROVISIONS
58.
Exemption
from personal liability
Subject to this Act, no person shall,
in his or her personal capacity, be liable in civil proceedings in respect of
any thing done or omitted to be done in good faith in the performance of his or
her duties or functions under this Act.
59.
Regulations
(1) The Authority shall, with the
approval of the Secretary of State, make Regulations for the better
implementation of this Act.
(2) In particular, the Authority
shall make Regulations –
(a) for the management of supplies;
(b) for the transfer of excess
supplies;
(c) for the sale, lease or disposal
of surplus supplies by public auction, tendering with sealed bids, or other
appropriate method designated by regulation, provided that no employee of the
owning or disposing agency shall be entitled to purchase any such supplies; and
(d) to prescribe the principles and
procedure for the different methods of procurement set out in this Act.
(3) The Regulations referred to in
subsections (1) and (2) shall be published in the Gazette.
PASSED in the National Assembly this
Twenty-Fourth day of December, in the year of Our Lord Two Thousand and One.
Assented to by The President on the
First day February, 2002.
