IN EXERCISE
of the powers conferred on the Authority by Section 59 of the Gambia Public
Procurement Act 2001, these Regulations are hereby made.
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Short title
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1.
These Regulations may be cited as the Gambia Public Procurement
Regulations, 2003, and shall come into force on the 1st day of
July 2003.
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Interpretation
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2.
In these Regulations, unless
the context otherwise requires:
“Act” means the Gambia Public Procurement Act 2001;
“Authority” means the Gambia Public Procurement Authority;
“Regulations” mean the
Gambia Public Procurement Regulations, 2003;
“Secretary of State” means the Secretary of State responsible for
Finance;
“SME” means Small and Medium Enterprises.
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Supplemental instructions and public notification of information on
public procurement instructions and decisions
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3.
(1) The Authority may issue
Instructions to supplement these Regulations
with administrative guidance on operational aspects of public procurement in The Gambia.
(2) Notifications concerning the issuance of instructions and other administrative
decisions of general character are subject to publication in the local media
and by other means including the Internet.
(3)
The Authority shall
periodically issue an updated compilation of the main operating instructions
and decisions governing public procurement.
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Language
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4.
The pre‑qualification
documents, bidding documents, all contract agreements and contract
conditions, specifications, layouts, technical reports and correspondence
shall in English.
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Structure of The Gambia Public Procurement Authority
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5.
The Gambia Public
Procurement Authority (hereinafter “the Authority”) shall have the following
Departments to implement the Act and Regulations:
(a)
Compliance and Procurement
Practice,
(b)
Career Development and
Training, and
(c)
Finance and Administration
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Random checking
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6.
Pursuant to section 57 of the Act, the Authority may review
transactions completed by procuring organisations with a view to verifying
compliance with procurement procedures and instructions.
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Observers
at Contracts Committee meetings
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7.
Representatives of the
Authority are entitled to attend any meetings of Contracts Committees as
non-voting observers.
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Reporting
of violations by procuring organisations
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8.
(1) Where there is a
violation of the Act or procurement regulations, including the failure to
provide requested information to the Authority relating to procurement
operations, the Authority may inform the Auditor-General and submit a report
to the Secretary of State.
(2) The Secretary of State, in accordance
with the powers provided by the annual Appropriation Act and the Finance and
Audit Act, may supervise and reduce the amount or temporarily stop part of
the payment to a budget user that does not apply the procurement procedures.
(3) Where the misconduct involved rises
to the level of a criminal act, the Authority shall notify the Attorney
General.
(4) Where there is official misconduct,
or breach of official duties, the authority may recommend possible
disciplinary action to the relevant authorities.
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Gathering of data concerning
public procurement
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9.
(1) The
Authority is authorised to collect information and require reports from
procuring organisations and end-user entities concerning the conduct of
public procurement activities in The Gambia.
(2) The Authority shall inform procuring organisations, end-users and
other organs of public administration as to the types of statistical and
reporting information related to public procurement that are required to be
collected and the periodicity of the collection of such statistical data and
reports.
(3)
Procuring organisations in
The Gambia shall collect the necessary information, and, as required by the
Authority pursuant to sub-regulation 9,
report on a quarterly basis to the Authority on implementation of procurement
activity, or at such other interval as may be required by the Authority.
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Analysis and annual report
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10. (1) The Authority shall
analyse the information collected and make recommendations to procuring
organisations as to improvements in the implementation of procurement
procedures.
(2) The Authority shall
submit an annual report to the Secretary of State on the implementation of
the Act, the Regulations and instructions, and on related institutional
arrangements, in relation to the implementation of the State budget, and the
requirements of the legal and regulatory framework for public procurement.
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Standard contracts and provisions
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11.
(1) Procuring organisations
shall utilise the standard bidding
documents issued by the Authority pursuant to the Act and the
Regulations.
(2) Departures from the
provisions of standard forms of contract must be authorised by the head of a
procuring organisation and shall be reported to the Authority and noted in
the record of the procurement proceedings.
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Thresholds for procurement
transactions
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12. The following
thresholds apply to all procurement:
(a)
Competitive threshold, as referred to in section 45(1)(a) of the Act, is set
(i)
for goods and services at 10, 000 dalasis;
(ii)
for works at 30,000 dalasis;
(b)
Threshold for the
request for qualification documentation, as referred to in Regulation 30, is set at 35,000
dalasis;
(c)
Threshold for use of
request for quotations, as referred to in section
44(1) of the Act, is set at 500,000 dalasis;
(d)
Threshold for
international procurement proceedings, as referred to in section 42(1)(a) of
the Act, is set at 10,000,000 dalasis
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Review of procurement transactions
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13.
(1) Any proposed contract award for procurement with a value of
D1,000,000 or above shall be submitted
by the Chairman of the concerned Contracts Committee to the Authority for its
approval along with the complete contract file and a recommended course of
action in the format prescribed by the Authority. Documents to be presented
with the application for approval, shall include:
(a) Contract files, including the solicitation, qualification
assessment reports, originals of bids, evaluation reports and the record of
the procurement proceedings; and
(b) Committee approvals.
(2) The approval procedure in
sub-regulation 13 applies also to contract
variations that increase the value of a contract by 1,000,000 dalasis or
more, or that increase the value of a contract above the threshold referred
to in sub-regulation 13. In conducting the
approval procedure referred to in this sub-regulation, the Authority is not
empowered to order the alteration or cancellation of the contract, but may
restrict any contract extensions or additions.
(3)
The thresholds referred to in
sub-regulation (1) are subject to periodic review by the Authority which may,
by notice, adjust or waive the thresholds across the board as well as with
respect to individual entities, taking into account increases in the capacity
of ministries and other entities to absorb higher levels of procurement
authority.
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Valuation of procurement contracts
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14.
(1) For the purposes of
applying monetary thresholds in these Regulations, selecting the appropriate
procurement method and devising the most appropriate procurement package, the
procuring organisation shall assess the expected value of a procurement
contract or package of contracts taking into account:
(a) All forms of remuneration, including any premiums, fees,
commissions and interest receivable;
(b) The likelihood and expected value of recurring orders;
(c) The minimum expected duration and expenditure for a lease or for a
contract of indefinite duration, taking into account relevant experience of
similar contracting actions in the past; and
(d) The estimated value of optional additional purchases to be
permitted under the contract.
(2)
The selection of the
valuation method by the procuring organisation shall not be used with the
intention of avoiding monetary thresholds set forth in the Regulations.
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Co-ordination of procurement of common-use goods
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15. (1) Pursuant to section 13(2)(a) of the Act,
procuring organisations shall provide, and Authority shall collect
and analyse, annual data on the
items purchased and the suppliers providing the
items in order to take appropriate
measures for co-ordination of procurement
of common-use goods and services.
(2) Pursuant to section 13(2)
of the Act, the Authority may designate a procuring organisation to award
framework agreements with one or more suppliers on a competitive basis in
accordance with the Act and these Regulations. So as to maintain ongoing
competition, such framework arrangements shall, where feasible, be concluded
with more than one supplier per item being procured.
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Assistance to State bodies in
carrying out procurement
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16.
The Authority shall devise
and implement programmes aimed at assisting procuring organisations as well as
bidders in conducting and participating in public procurement proceedings in
the Gambia.
That shall include but not be limited to the following:
(a) Organising and conducting educational programmes and professional
training;
(b) Assisting in the development of specialised procurement units and
expert officers for entities at various levels of administration and regions
in The Gambia;
(c) By developing proposals and plans for the phased introduction of
professional procurement staff in procuring organisations;
(d) Setting the minimum entry-level requirements, procedures for
professional certification, descriptions of authority and responsibilities of
procurement officers, and grounds for termination;
(e) Assisting in the dissemination of information to bidders about the
rules and procedures governing public procurement and about procurement
opportunities in The Gambia;
(f) Issuing opinions, providing advice, and proposing solutions to
facilitate the work of procuring organisations with a view to fulfilling the
objectives of the Act;
(g) Establishing a central data bank for the purpose of categorising
suppliers by area of specialisation and to record information on their
performance record with respect to implementation of procurement contracts
with procuring organisations in The Gambia so as to evaluate their past
performance;
(h) Developing proposals for methods of disseminating
procurement-related information through the of a procurement bulletin or
other medium;
(i) Examining use of information technology and other technical
innovations in procurement with a view to more cost effective and higher
quality performance of public administration and delivery of public services;
(j) More effective management of operations of procuring
organisations; and increased competition and participation by bidders, and
(k) Investigating the experiences and practices of other countries
with a view to introducing innovations in The Gambia.
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Use of
third-party procurement agents
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17.
The services of third-party
procurement agents may be engaged only in consultation with and subject to
the approval of the Authority.
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Scope of activity of Contracts
Committees
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18.
(1) The Committee's decisions
regarding the conduct of any proceeding for a procurement, the value of which
exceeds the threshold set in Regulation 13, are subject to
approval by the Authority.
(2)
The Authority shall
periodically review the functioning of Contracts Committees, and may
recommend to the Secretary of State adjustments to any limitations on their
procurement authority, taking into account increases in the capacity of
ministries and other entities to conduct procurement proceedings and with a
view to implementing a policy of decentralisation of procurement.
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Appointment of Contracts
Committee
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19. The Accounting Officer of
the procuring organisation shall appoint members of the contracts committee in accordance with the Instructions.
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Procedures of Contracts
Committees
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20. (1) Three members of the Contracts
Committee will be required to attend each meeting to achieve a quorum.
(2)
Contracts Committees shall
take their decisions by majority.
(3) In accordance with section
48(6) of the Act, a Contracts Committee may delegate authority to make
contract award decisions below a value threshold it establishes and promptly
reports to the Director General of the Authority, to one or more officials
within the specialised procurement unit of the procuring organisation. The
Contracts Committee remains accountable for any action taken under such
delegation. Any such delegation shall be made to an individual who:
(a) is of good and honest character,
(b) possesses a thorough knowledge of the Acts, Regulations and
Instructions regulating public procurement in The Gambia, and
(c) will properly account for all purchases made under the authority
as required by the Contracts Committee.
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Staffing of specialised
procurement units
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21. (1) In accordance with section
52 of the Act, the head of the procuring organisation shall support the
development of a pool of personnel for the specialised procurement unit with
relevant qualifications to assume procurement responsibilities in the public
as well as the private sector.
(2)
The Personnel Management
Office (PMO) shall, in consultation with the Authority, develop staff on a
permanent basis for the professional workforce on procurement.
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Identifying applications of
information and communications technology to public procurement
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22. (1) Pursuant to the mandate
set forth in section 13(2)(j) of the Act, the Authority shall examine and
recommend ways of introducing in public procurement the use of information
and communications technology, and other technical innovations.
(2)
The guiding principles for
identifying and developing applications of information and communications
technology to public procurement shall include:
(a) Standardisation of key aspects of information and communications
systems for public procurement throughout public administration, so as to
facilitate internal sharing of information, and participation by bidders
throughout the procurement market;
(b) Technological neutrality, so as to create a system that takes
advantage of existing developments in information and communications
technology, while remaining open to future technological developments;
(c) Avoiding, to the greatest extent possible, separate requirements
not used in paper-based procurement procedures, unless establishing a
functional electronic equivalent requires doing so;
(d) Maximising the utilisation of commercially developed and utilised
software applications and structural elements and avoiding where feasible the
devising of applications and structures uniquely for the public purchaser,
with a view to limiting costs and facilitating the widest possible
participation by bidders;
(e) Identifying ways in which the applicable legal framework should be
modified and modernised to provide the requisite legal certainty in applying
information and communications technology to public procurement; and
(f) Identifying ways in which traditional procurement processes should
be revised in order to obtain the greatest possible benefit from the
application of information and communications technology.
(3)
Principal elements in the
application of information and communications technology to public
procurement shall include:
(a) Easy access to standard bidding documents and use of standard
formats;
(b) Automated linkages between acquisition systems and other relevant
systems, in particular supply and materials management systems and payment
systems;
(c) Bidder (supplier) registration systems;
(d) Where appropriate, the development of special electronic
procurement methods for conducting purchasing activity electronically (e.g.,
use of purchase cards for small purchases, catalogue shopping for standard
goods);
(e) Electronic payment, involving, for example, electronic issuance of
invoices, if invoices are necessary, or the automatic generation of payment
upon report of the receipt of the procured object;
(f) Appropriate security to prevent unauthorised access to the
bidding, approval, and award processes; and
(g) Accurate retrieval or conversion of electronic forms of
information into a medium which permits inspection and copying.
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Electronic procurement marketplace
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23.
(1) The Authority shall
establish and manage an electronic procurement marketplace.
(2)
The Authority may enter into
contracts with private or public entities to establish or maintain all or part
of the databases comprising the marketplace, to the extent feasible.
(3)
The Authority shall, in
consultation with the Department of State for Finance and Economic Affairs
and the Department of State for Trade, Industry and Employment, define
standards, including keyword and product code standards, for the electronic
procurement marketplace. The marketplace may contain:
(a) Information relevant to the standard procurement specifications
for goods, works and services;
(b) Information about vendors, including information from a
centralised master bidders list and vendor performance information;
(c) Information about products, including product testing results;
(d) Historical purchasing information, qualified purchase lists, and
trends; and
(e) Information about the availability of surplus property.
(4)
The Authority may adopt rules
relating to the design and use of the electronic procurement marketplace,
including rules that require state agencies to provide information for or
receive information from the marketplace.
(5)
The Authority may make public
procurement information available to political subdivisions through the
electronic procurement marketplace on a fee-for-service basis.
(6)
The Authority shall set the
fees in an amount that recovers the state’s costs in providing the access to a
political subdivision.
(7)
Before developing a contract
for the procurement of a good or service, a state agency may use the
electronic procurement marketplace to determine the most appropriate method
for acquiring the good or service.
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Participation by small
enterprises
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24. The Authority shall
facilitate and encourage the participation of small and medium enterprises
(SME’s) in competing for public procurement contracts as set out in the
Instructions.
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Prerequisite steps for initiating procurement proceedings
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25.
(1) Procuring organisations
shall provide to the Authority an annual procurement plan describing the
extent, timing and purposes of projected procurement requirements for the
budgetary period.
(2)
A procuring organisation may
initiate actual procurement proceedings only after the determination and
approval of budgetary allocations, and only after obtaining a certification
from Department of State for Finance and Economic Affairs or other competent
authority that budgetary allocations or other funds sufficient to fund the
procurement are available for that purpose.
(3)
Procuring organisations shall
devise procurement planning strategies and procurement packages taking into
account the following factors and steps as appropriate under the circumstances:
(a) Identification and assessment of the need for the procurement;
(b) Designation of procurement planning team;
(c) Conducting market research in order to identify various technical
solutions, in particular in the commercial market, to identify the range of
available suppliers, contractors, and consultants, and to determine the most
favourable contractual and guarantee terms available in the commercial market
place that would be suitable for public procurement;
(d) Studying acquisition history for similar objects of procurement;
(e) Conducting feasibility and other pre‑contract studies;
(f) Defining and describing the requirement;
(g) Estimation of the cost of a proposed procurement;
(h) Identification of the sources and amount of financing;
(i) Selection of contracting approach and structure, including
verification of possible availability of umbrella or framework contract
arrangements for the item in question;
(j) Selection of appropriate procurement method; and
(k) Determination of required contract administration resources;
(4) The Authority may establish a means for providing information to
procuring organisations as to the availability and source of common-use items
procured on a centrally designated basis.
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Selection of appropriate contract form
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26.
(1) In the planning and preparation of procurement, a procuring organisation
shall determine the appropriate contracting approach and structure to be utilised for any given procurement.
(2) A procuring
organisation shall identify any standard contract form promulgated by the
Authority and required to be utilised pursuant to Regulation 11 that may be applicable.
(3) The Instructions
provide guidance on the use of framework agreements.
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Splitting awards of contract
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27.
(1) When apportioning or
splitting an acquisition is technically or financially feasible, the
acquisition may be divided into lots, which may then be awarded via separate
procurement contracts.
(2)
If one or more lots are not
awarded, the procuring organisation may initiate a new proceeding, modifying
the content of the lots.
(3)
Any apportionment of
procurement proceedings, and the grounds therefore, shall be noted in the
record of the procurement proceedings.
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Procurement requests
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28. Preparation of the
procurement request is the responsibility of the end user body that seeks to
submit a requisition for procurement. The procurement request shall be
prepared by using GPPA‑Form 100: Procurement Request, and in
accordance with the Instructions.
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International procurement
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29.
(1) The
procuring organisation shall advertise in international media when the value
exceeds the threshold for international proceedings referred to in section
42(1)(a) of the Act and set in Regulation 12(d).
(2)
The international media
referred to in sub-regulation 29 include international newspapers and other media of wide
international circulation, including the internet.
(3) In addition, in every
case of international tendering, the procuring organisation shall publish an
advance notice of the procurement in the media referred to in sub-regulation 29 at least twenty and not more than forty days prior
to the publication of the invitation to bid or to apply for pre‑qualification
in accordance with sub-regulation 29.
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Threshold for required
documentation of qualifications
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30. The procuring organisation
shall request bidders to provide supporting documentation showing that they
fulfil the qualification requirements referred to in section 23(3) of the
Act, for all procurement contracts whose estimated value exceeds the
threshold set in Regulation 12(b).
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Information as to economic and
financial standing
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31.
Supporting documents to prove
economic and financial standing may include, for example:
(a) Appropriate statements from the bidder’s bankers;
(b) Statement of accounts or extracts therefrom relating to the
business of the bidder;
(c) Statements of liabilities and assets, and of profit and loss;
(d) A statement of the overall inventory turnover of the business of
the bidder and the turnover in respect of works in the previous three
financial years of the bidder; and
(e) Other information if the above types of information are not
appropriate or available in order to assess the bidder’s economic and
financial standing.
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Information as to technical capacity
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32.
Supporting documents to prove
technical capacity may include, for example:
(a) A list of the educational and professional qualifications;
(b) Required expertise of the bidder where the bidder is an individual
and a list of qualifications of the managerial staff of the bidder if any and
those of the person or persons who would be responsible for carrying out the
works or providing services under the contract;
(c) Certificates of good standing of the bidder issued by the relevant
trade or industry associations;
(d) A list of works, or deliveries, in the case of supply contracts,
carried out over the past two years together with certificates of
satisfactory completion, or equivalent in the case of delivery of goods;
(e) In the case of procurement of consultants’ services, a list of
consultancy contracts of the type in question carried out over the past two
years;
(f) A statement of the tools, plant and technical equipment available
to the bidder for carrying out the work under the contract;
(g) A statement of the average annual manpower and the number of
managerial staff of the bidder over the previous three years; and
(h) A statement of the technicians or technical services which the
bidder may call upon for the carrying out of the work or delivering the goods
under the contract; where applicable, in particular in the case of
procurement of consultant services from firms, statements of availability of
key personnel.
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Record of qualification
determination
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33. The procuring organisation
shall maintain a record of qualification determination by using GPPA‑Form 016:
Record of Qualification Determination.
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Selection followed by
post-qualification procedure
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34.
In tendering proceedings that
are not preceded by a pre‑qualification proceeding, following the evaluation
of bids and the determination of the lowest priced or best evaluated bid, the
procuring organisation shall conduct a detailed examination of the
qualification data submitted by the bidder that submitted that bid, prior to
issuance of the notice of acceptance of the bid.
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Solicitation of applications to pre‑qualify
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35. (1) The invitation to pre‑qualify shall contain the information set
forth in Regulation 42(2).
(2) Public notice shall be by
publication of the invitation for pre‑qualification,
and shall be published in the local press, and, in the case of international
tendering, also in accordance with Regulation 29(2), at least thirty days
prior to the deadline for submission of evidence of qualification
requirements.
(3)
In addition
to the publication referred to in sub-regulation (2),
the invitation to apply for pre‑qualification, shall be broadcast on local
radio and television and shall be displayed in the head office of the
procuring organisation in a publicly accessible place.
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Record of pre‑qualification determination
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36. Pre‑qualification
determination shall be recorded using GPPA‑Form 010: Record of
Pre-Qualification Determination.
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Registration and classification
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37.
(1) Bidders seeking registration or classification
in any databases or lists of qualified bidders that may be established by the
Authority may be required to provide the following:
(a) Completed registration application;
(b) Copy of the currently valid license and commercial registration
for the activity practised;
(c) Copy of currently valid registration certificate from the bidder’s
chamber of trade and commerce or equivalent body;
(d) Copies of contracts relating to agency, brokering and distribution
arrangements; and
(e) Copy of last approved annual statement of accounts and budget.
(2) (a) Requests to be entered in the database or list shall be receivable
at any time from any interested bidder and shall be acted upon within a
reasonably short period of time;
(b) When the database or list
is utilised for the purposes of pre‑qualification, entry in the database or
list shall be subject to no qualification criterion more stringent that those
set forth in section 23(3) of the Act.
(c) The existence of the database or list, the conditions to be
satisfied by bidders to be entered in the database or list, the methods
according to which satisfaction of each of those conditions is to be
verified, the period of validity of an entry in the database or list and the
procedures for entry and for renewal of the entry shall be generally and
regularly publicised in a manner to bring them to the attention of bidders.
(3)
The sole absence of an
application for entry in the registry or classification system is not ground
for exclusion of a bidder from participation in procurement proceedings,
though registration may be required as a condition for award of a contract.
(4)
A fee may be charged for
registration and re-registration.
(5)
Inscription in the database
or list shall be available at any time and shall be subject to annual
renewal. Prompt notice shall be given to a bidder of his inscription on or
removal from the database or list.
(6)
When the registration or
entry of a bidder in a database or list constitute pre‑qualification, in
accordance with sub-regulation 37, the bidder will
not have to re-submit the pre‑qualification documents needed for a specific
procurement proceeding, unless the procuring organisation has reason to
believe circumstances for the bidder have significantly changed.
(7)
For pre‑qualification for
groups of contracts to be awarded over a period of time, a limit for the
number or total value of awards to any one bidder may be made on the basis of
the bidder's resources.
(8)
The conditions to be
satisfied by bidders, the methods according to which satisfaction of each of
those conditions is to be verified, the period of validity of a pre‑qualification
for a group of contracts, and the procedures for entry and for renewal of the
pre‑qualification shall be generally and regularly publicised, at least on an
annual basis, in a manner to bring them to the attention of bidders.
(9)
Pre‑qualification is subject
to annual renewal.
(10)
Bidders shall be required to
update the information on an annual basis as a precondition for renewal of
their continued pre‑qualification, and shall be informed of their removal
from pre‑qualified status.
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Subcontractor qualifications
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38. (1) A procuring
organisation may require bidders to provide qualification information and
documentation to subcontractors involved in the performance of the
procurement contract.
(2) Where it is in the public interest to do so, a
procuring organisation may
directly determine the suitability of the qualifications
of a subcontractor, in accordance with the qualification
criteria set forth in section 23(3) of the Act.
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Deficiencies
in qualification information
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39. Other than in a case to
which section 23(8) of the Act applies, the procuring organisation may not
disqualify a bidder on the ground that information
submitted concerning the qualifications of the bidder was inaccurate or
incomplete in a non-material respect. The bidder may be disqualified if it
fails to remedy such deficiencies promptly upon request by the procuring
organisation.
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Conditions for use of single-source
procurement
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40. (1) Single source procurement may not be justified on the grounds that
only one bidder has the capacity or the exclusive right to manufacture or
deliver goods, works or services if functionally equivalent goods, works or
services from other bidders would meet the needs of the procuring
organisation.
(2) In the case of
single-source procurement on the grounds of urgency referred to in section
45(1)(c) of the Act, the procuring organisation shall limit the procurement
to the quantity needed to deal with the urgent circumstances.
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Identification of procurement
method to be used
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41.
The procuring organisation
shall include in the invitation to bid or to apply for pre‑qualification, or
in any other document used to solicit an offer, proposal or quotation, an
indication of the procurement method being used in
the procurement proceeding.
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Procedures for tendering
proceedings
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Contents of invitation to tender and invitation to pre‑qualify
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42.
(1) The invitation to tender shall contain, at a
minimum, the following information:
(a) The address of a procuring organisation;
(b)
The detailed specifications
and quantity, and place of delivery of the goods to be supplied,
(c)
The nature and location of
the works to be effected, or
(d)
The nature of the services
and the location where they are to be provided;
(e)
The desired or required time
for the supply of the goods, for the completion of the works or for the
performance of the services;
(f) The means of obtaining the bidding documents and the place from
which they may be obtained;
(g)
The price, if any, charged by
a procuring organisation for the bidding documents;
(h) The currency and means of payment for the bidding documents;
(i)
A statement that the language
in which the bidding documents are available is English;
(j) The date of any pre‑bid
conference and site visit;
(k)
The deadline for submission
of inquiries and requests for clarification;
(l)
The deadline for purchase of the bidding documents; and
(m) The place and deadline for the submission of tenders.
(2) An invitation to pre‑qualify
shall contain, at a minimum, the information referred to in sub-regulation 42(a) to (f), (h), 42, (j)
and, if it is already known, (l), as well as the following
information:
(a) The means of obtaining the pre‑qualification documents and the
place from which they may be obtained;
(b) The price, if any, charged by the procuring organisation for the
pre‑qualification documents;
(c) The currency and terms of payment for the pre‑qualification
documents;
(d) A statement that the language in which
the pre‑qualification documents are available is English; and
(e) The place and deadline for the submission of applications to pre‑qualify.
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Public notice
of tender
|
43. (1) The Contracts Committee, prior to the public notice of an
invitation to bid, shall have available, in a sufficient number of copies,
the bidding documents and shall assure that the invitation is in compliance
with the requirements in the Act and these Regulations.
(2) Public notice shall be by
publication of the invitation to bid, as described in Regulation 42,
in the local press, and, in the case of international tendering, also in
accordance with Regulation 29(2), at least seven days prior
to the issuance of the solicitation.
(3)
In addition to the
publication referred to in sub-regulation (2),
the invitation to bid, shall be broadcast on local radio and television and
shall be displayed in the head office of the procuring organisation in a
publicly accessible place.
(4)
Procuring organisations shall
make known, as soon as possible after the beginning of their budgetary year,
by means of a public notice, the total procurement by product area and other
relevant categories, which they envisage awarding during the subsequent
twelve months where the total estimated value is equal to or greater than
D35,000 or its equivalent in foreign currency. The product area shall be
established by procuring organisations by reference to nomenclature that may
be designated by the Authority.
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Formulation of evaluation criteria
|
44.
(1) Quantifiable evaluation
criterion shall be used to assess the qualifications
of bidders, and the technical merit of their
tenders.
(2)
The evaluation criteria shall
be formulated in as clear, precise, and objective a manner as possible.
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Preparation of bidding documents
|
45. (1) The bidding documents shall be prepared by the specialised procurement unit using standard formats
issued by the Authority.
(2) The information in the bidding documents shall, at
a minimum, comply with
details in Schedule 1-A.
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Price of bidding documents
|
46.
The price that the procuring
organisation may charge for the bidding documents shall reflect only the cost
of printing them and providing them to suppliers.
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Distribution of bidding documents
|
47. (1) Bidders interested in the
tendering proceedings may preview the bidding documents at the office of the
procuring organisation indicated in the invitation to bid.
(2)
Bidding documents shall be
provided to all bidders responding to the invitation to bid or, in the event
of pre‑qualification proceedings, to all bidders that have been pre‑qualified.
(3)
A record of the transmission
of bidding documents shall be maintained by using GPPA‑Form 011: Record
of Transmission of Bidding Documents.
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|
Pre‑bid conference
|
48.
(1) A procuring organisation
may organise a conference for the purpose of briefing bidders and taking
their questions on the bidding documents, including the technical
specifications and other requirements.
(2)
Any such conference should
take place at an early point following the distribution of the bidding
documents
(3)
Clarification of defects or
ambiguities in the bidding documents at the conference does not relieve a
procuring organisation of the obligation to amend the bidding documents.
(4)
Where a procuring
organisation convenes a meeting of bidders, it shall prepare minutes of the
meeting containing amongst others;
(a) the requests submitted at the meeting for clarification of the
bidding documents;
(b) its responses to those requests, without identifying the sources
of the requests.
(5) The minutes shall be provided promptly to all bidders to which a
procuring organisation provided the bidding documents
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Site visits
|
49.
Procuring organisations shall
provide reasonable access to project sites for visits by prospective bidders.
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|
Cancellation of proceedings before opening of tenders
|
50.
(1) Cancellation of procurement
proceedings should be avoided unless it is clearly in the public interest to
do so.
(2)
Cancellation is in the public
interest in cases such as the following:
(a) Where the procurement need in question has ceased to exist; and
(b) Where the bidding documents have to be modified to such an extent
that economy and efficiency in procurement dictates the re-commencement of
the tendering proceedings;
(c) It would likely lead to an inevitable cancellation of the
proceedings after the opening of tenders if no action is taken at this stage
to cancel the proceedings.
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Deadline for submission of tenders
|
51. (1) Subject to sub-regulation (3) deadlines for submission of tenders
shall be no less than 30 days:-
(a) from the date of publication of the invitation to tender, in the
case of procurement whose estimated value is 1,000,000 dalasis or more;
(b) from the date of publication of the invitation to tender, in the
case of procurement whose estimated value is D350,000 or more but is less
than 1,000,000 dalasis; and
(c) from the dispatch of the invitation to tender, in the case of
restricted tender.
(2)
Factors to be considered in
determining the period of time to be allowed for preparation of tenders
include:
(a) The nature and complexity of the object of the procurement;
(b) Whether the item to be procured is readily available commercially
or must be produced to the unique specifications of the procuring
organisation;
(c) The time period during which the procuring organisation needs to
have its requirement fulfilled;
(d) Whether it is anticipated that foreign bidders will participate;
and
(e) The amount of time required for distribution of invitations to
tender and bidding documents.
(3)
A procuring organisation may
extend the deadline for submission of tenders for a period of no less than 14
days if, following a clarification or modification of the bidding documents,
or the late issuance of minutes of a conference of bidders of a site.
(4)
Where an extension is
necessary to allow bidders sufficient time to take the clarification,
modification or other added information into account in preparing their
tenders.
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Time and place of submission
|
52.
(1) The
date and specific (local) time that tenders must be submitted shall be stated
in the bidding documents.
(2)
The specific address to which
tenders must be lodged or submitted shall be stated in the bidding documents.
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Submission of signed tender in
single envelope
|
53. (1) The method for submission will be a single envelope containing the
complete tender as required in the bidding documents.
(2)
The bidder shall submit the
tender signed, in the required number of copies and in a tightly closed and
sealed envelope. The copy marked as the “original” shall be included amongst
them.
(3)
In addition to direct deposit
in the tender box, tenders may be submitted by registered mail, courier or
any other means that may be permitted by the bidding documents.
(4)
The procuring organisation
shall provide to the bidder a receipt showing the date and time when its
tender was received, signed by the person receiving the tender with their
name clearly written.
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Reception and security of bids
|
54. (1) The procuring
organisation shall ensure that all bids, and any samples required thereunder,
that it receives are kept in a confidential and secure manner to avoid
disclosure of their characteristics prior to bid opening.
(2)
Further guidance on the
receipt of bids is provided in the Instructions.
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Rejection of late bids
|
55.
(1) A bid received by the
procuring organisation after the deadline for its submission shall not be
opened and shall be returned to the bidder that submitted it.
(2)
The date and time of arrival
of a late bid shall be noted in the record of the procurement proceedings.
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Requirements applicable to bid
securities
|
56. (1) Bid securities shall be required in all tendering proceedings
whose estimated value exceeds 1,000,000 dalasis.
(2)
The amount of the bid
security should be set in the bidding documents, at between two and three
percent of the estimated value of the procurement.
(3)
When the procuring
organisation requires bidders submitting tenders to provide a bid security
the requirement shall apply to all bidders;
(4)
Prior to submitting a bid, a
bidder may request the procuring organisation to confirm the acceptability of
a proposed issuer of a bid security. The procuring organisation shall respond
promptly to such a request;
(5)
Confirmation of the
acceptability of a proposed issuer does not preclude the procuring
organisation from rejecting the bid security on the ground that the issuer
has become insolvent or otherwise lacks creditworthiness;
(6) The bid security shall be
subject to a demand for payment only in the following cases:
(a) Withdrawal or modification of the bid after the deadline for
submission; or
(b) Failure to correct errors as provided for in Regulation 6565 or
to sign the procurement contract if required by the procuring organisation to
do so as provided for in Regulation 72 (7); or
(c) Failure to provide a required security for the performance of the
contract after the bid has been accepted or to comply with any other
condition precedent to signing the procurement contract specified in the
bidding documents.
(7)
The procuring organisation
shall make no claim to the amount of the bid security, and shall promptly
return, or arrange the return of, the bid security document, after whichever
of the following that occurs earliest:
(a) The expiry of the bid security; or
(b) The entry into force of a procurement contract and the provision
of a security for the performance of the contract, if such a security is
required by the bidding documents; or
(c) The termination of the bid proceedings without the entry into
force of a procurement contract; or
(d) The withdrawal of the bid prior to the deadline for the submission
of tenders, unless the bidding documents stipulate that no such withdrawal is
permitted.
(8) A record of receipt of bid
securities shall be maintained by using GPPA‑Form 015: Record of
Receipt of Bid Security.
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Required validity period of bid security
|
57.
(1) The bidding documents
shall require that the bid securities provided by bidders should have a
validity period extending for a period of four weeks beyond the expiry of the
validity period of bids, in order to allow the procuring organisation
sufficient time to make a demand for payment under the bid security in
accordance with Regulation 56(6).
(2)
Bid securities shall be
returned to unsuccessful bidders once it is determined that their bids will
not be selected.
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Basic provisions of bid validity period
|
58. The bidding documents
shall set a bid validity period that is of a sufficient length to enable the
procuring organisation to complete the evaluation and comparison of bids and
to obtain all the necessary approvals so that the procurement contract can be
awarded within that period. Normally, this period should be a minimum of
ninety days.
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Extension of bid validity
period
|
59.
(1) Where prior to the expiry
of the validity period of bids, a procuring organisation requests bidders to
extend the validity period of their bids, it should only address such a
request to those bidders that in the judgement of the Contracts Committee of
a procuring organisation have a reasonable chance of being selected.
(2) A refusal to extend the
bid validity period shall not result in forfeiture of the bid security.
(3)
Extension of the bid validity
period shall, however, be subject to extension of the bid security if one was
required in the first place.
(4)
Without an extension of the
bid security, a bid shall be deemed not extended.
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Modification or withdrawal of tender
|
60. A modification or notice
of withdrawal of a tender is effective and not subject to forfeiture of the
tender security only if it is received by the procuring organisation prior to
the deadline for the submission of tenders.
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Tender opening
|
61. (1) Tenders shall be opened in a session open to the public,
including bidders and their representatives, at the time and place indicated
in the bidding documents and in accordance with the Instructions.
(2) The time of tender
opening shall coincide with the deadline for submission of tenders.
(3)
The name and address of
each bidder whose tender is opened and the tender price, and the price of any
alternative tenders if they have been solicited or permitted, shall be
announced to those persons present at the tender opening,
(4) Tender prices may be
communicated on request to bidders that have submitted tenders but were not
present or represented at the tender opening.
(5) The communication in
(4) must be recorded immediately in the record of the tendering proceedings
as required by section 36 of the Act and Regulations
156 to 159 by using GPPA‑Form 013: Record of Tender Opening.
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Timeframe for evaluation of tenders
|
62.
The evaluation process shall
normally be done within twenty days from the date of opening of tenders. This
period may vary depending on the complexity or urgency of the procurement.
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Purpose and scope of
preliminary screening
|
63.
(1) After the opening of
tenders in accordance with Regulation 61, a preliminary screening of tenders
shall be carried out.
(2)
The preliminary screening
shall determine whether tenders comply with a procuring organisation’s
requirements as to the tenders themselves and the accompanying documents. This
may involve examining:
(a) Whether all the required documents, including any standard forms
supplied with the bidding documents, have been submitted fully completed;
(b) Whether the bidder has met the qualification requirements,
including the requirements applicable through the involvement of a financing
institution;
(c) Whether the tender substantially conforms with the contractual
terms and technical requirements set out in the invitation to tender and
instructions to bidders;
(d) Whether the tender has been signed by an authorised representative
of the bidder;
(e) Whether a tender security, if required, has been provided; and
(f) If any other stipulated requirement has been complied with.
(3)
At the preliminary screening,
tenders shall be checked for arithmetical errors or clerical errors that may
appear on their face.
(4)
Bidders that have submitted
tenders that appear to contain such errors shall be contacted and given an
opportunity to correct them, or to accept a correction made by a procuring
organisation in accordance with Regulation 65.
(5)
Any communication under (4)
must be circulated to all other bidders.
(6)
At the stage of preliminary
screening, tenders may be classified according to whether they contain
deviations from the technical specifications and contractual terms set forth
in the bidding documents in the following categories:
(a) Those tenders that do not contain deviations or reservations;
(b) Those tenders that contain material deviations, reservations or
qualifications and are therefore to be rejected as non-responsive in
accordance with Regulation 70(d);
and
(c) Those tenders that contain minor
deviations or reservations, but
that may be considered responsive, provided that the deviations or
reservations are quantified and taken into account in the evaluation and
comparison of tenders.
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Assessing responsiveness of tenders
|
64.
(1) A procuring organisation
may regard a tender as responsive even if it contains minor deviations that
do not materially alter or depart from the characteristics, terms, conditions
and other requirements set forth in the bidding documents or if it contains
errors or oversights that are capable of being corrected without touching on
the substance of the tender.
(2)
Any such deviations shall be quantified, to
the extent possible, and appropriately taken account of in the evaluation and
comparison of tenders.
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Correction
of errors on face of tender
|
65.
(1) The Contracts Committee shall correct any
arithmetical errors appearing on the face of the tender, and inform the
bidder in question of the correction. The tender shall be rejected if the
bidder refuses the correction, and the tender security is thereby subject to
forfeiture.
(2)
If there is a discrepancy
between the unit price and the total price, or the line item total, that is
obtained by multiplying the unit price and quantity, the unit price shall
prevail and the total price shall be corrected, unless in the opinion of the
procuring organisation there is an obviously gross misplacement of the
decimal point in the unit rate or a similarly obvious gross mathematical
error, in which cases the line item total, or total price, as the case may
be, as quoted will govern and the unit rate will be corrected.
(3)
Where there is a discrepancy
between the amounts in figures and in words, the amount in words will govern.
(4) Should any contradiction occur in the
information between the submitted copies, the original copy shall
be adopted.
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Application
of evaluation criteria
|
66.
(1) A procuring organisation
shall evaluate and compare the bids that have been received in order to
ascertain the successful bid, as defined in sub-regulation (4), in accordance
with the procedures and criteria set forth in the bidding documents.
(2)
No criterion shall be used
that has not been set forth in the bidding documents.
(3)
A record of the evaluation of
the each bid and the comparison between them shall be maintained by a
procuring organisation by using GPPA‑Form 017: Record of Evaluation of
Each Tender, and GPPA‑Form 018: Summary Report of Evaluation and
Comparison of Tenders.
(4)
The successful bid shall be:
(a) The bid with the lowest bid price, subject to any margin of
preference applied pursuant to sub-regulation (5)(d); or
(b) If a procuring organisation has so stipulated in the bidding
documents, the lowest evaluated bid ascertained on the basis of criteria
specified in the bidding documents, which criteria shall, to the extent
practicable, be objective and quantifiable in monetary terms, and shall be
given a relative weight in the evaluation procedure or be expressed in
monetary terms wherever practicable;
(5)
In determining the lowest
evaluated bid in accordance with sub-regulation (4)(b), a procuring
organisation may consider only the following:
(a) The bid price, subject to any margin of preference applied
pursuant to sub-regulation (5)(d);
(b) Life cycle costs, including the cost of operating, maintaining and
repairing the goods or works, the time for delivery of the goods, completion
of works or provision of the services, the functional characteristics of the
goods or works, the terms of payment and of guarantees in respect of the
goods, works or services;
(c) The effect that acceptance of a bid would have on the environment,
the extent of local content, including local manufacture, labour and
materials, in goods, works or services being offered by bidders, the transfer
of technology and the development of managerial, scientific and operational
skills; and
(d) In evaluating and comparing bids a procuring organisation may
grant a margin of preference for the benefit of bids for works by domestic
contractors or for the benefit of bids for domestically produced goods or for
the benefit of domestic suppliers. The margin of preference shall be accorded
in accordance with Schedule 2 and be reflected in the record of the
procurement proceedings.
(6)
Information relating to the
examination, clarification, evaluation and comparison of bids shall not be
disclosed to bidders or to any
other person not involved officially in the examination, evaluation or
comparison of bids or in the decision on which bids should be accepted,
except as provided in section 36(3) and section 36(6) of the Act.
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Evaluation of bids in different
currencies
|
67. When bid prices are
expressed in two or more currencies, the prices of all bids shall be
converted to the same currency, and according to the rate specified in the
bidding documents pursuant to Regulation 45, for the purpose of evaluating and comparing bids.
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Prompt-payment discounts
|
68.
(1) A prompt payment discount
included in a bid shall become a term of the procurement contract if that bid
is accepted, and shall be utilised by the procuring organisation if payment
is made in accordance with the terms of the discount.
(2) Prompt
payment discounts shall not be considered in the evaluation and comparison of bids.
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Confirmation
of qualification information
|
69. (1) Whether or not it has engaged in pre‑qualification
proceedings pursuant to section 24 of the Act and Regulation 35,
the procuring organisation may require the bidder submitting the bid that has
been found to be the successful bid pursuant to Regulation 66 (4) to
demonstrate again its qualifications in accordance with criteria and
procedures conforming to the provisions of Part VI of the Regulations.
(2)
The criteria and procedures
to be used for such further demonstration shall be set forth in the bidding
documents.
(3)
Where pre‑qualification
proceedings have been engaged in, the criteria shall be the same as those
used in the pre‑qualification proceedings.
(4) Where the bidder submitting
the successful bid is requested to demonstrate again its qualifications in
accordance with sub-regulation 69 but fails to do so, the
procuring organisation shall reject that bid and shall select a successful
bidder, in accordance with Regulation 66, from among the remaining bids,
subject to the right of the procuring organisation, in accordance with
section 32(2)(a) of the Act, to reject all remaining bids.
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Rejection of bids
|
70.
(1) The procuring organisation shall not
accept a bid:
(a) If the bidder that submitted the bid is not qualified, including
bidders that are debarred or suspended, or
(b) If bidder that submitted the bid has submitted, or participated
in, another bid for the procurement in question, in which case both bids
shall be rejected; or
(c) If the bidder that submitted the bid does not accept a correction
of an arithmetical error made pursuant to Regulation 65; or
(d) If the bid is not
responsive; or
(e) For which a bid security is not provided, if such a security was
required by the bidding documents; or
(f) In the circumstances
referred to in section 28(4) of the Act.
(2) A record of tenders not
accepted shall be maintained by using GPPA‑Form 014: Record of Tenders
Not Accepted.
(3)
The Committee may reject any
bid if its prices are much less than the cost or current prices or prices
estimated by the competent unit of the procuring organisation, provided that,
before doing so, the Committee shall request the bidder concerned to provide
clarification as to the basis of the bid price.
(4)
Where the Committee decides
to reject the bid, it shall include in the record of the procurement
proceedings a detailed statement of the reasons for rejection.
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Cancellation of procurement proceedings after opening of bids
|
71.
(1) The cancellation of
procurement proceedings after opening of bids should be avoided to the
greatest extent possible and limited strictly to exceptional cases.
(2)
Cancellation of procurement
proceedings after opening of bids is subject to approval by the Accounting
Officer of a procuring organisation, taking into consideration the
recommendation of the related Contracts Committee, and may be authorised only
in the following cases:
(a) The object of the procurement is no longer required; or
(b) It has become necessary to modify the specifications; or
(c) Defects or gaps in the specifications have been revealed; or
(d) Failure to accommodate the fulfilment of the procurement need by a
substantially less expensive and functionally equivalent article other than
the one called for in the biding documents, or
(e) Failure to include all items of cost to a procuring organisation;
or
(f) There is evidence of collusion among bidders in setting bid
prices; or
(g) Where the bid prices exceed substantially the estimated value of
the procurement or the financial allocations available.
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Acceptance of bid and entry into force of contract
|
72. (1) Notice of acceptance of the bid shall be
given promptly to the successful bidder.
(2)
The notice of acceptance
shall not be sent until all the necessary approvals have been obtained.
(3)
A procurement contract, in
accordance with the terms and conditions of the accepted bid, enters into
force when that notice is dispatched to the successful bidder.
(4)
Provided that it is
dispatched while the bid is in force, the notice is dispatched when it is
properly addressed or otherwise directed and transmitted to the successful
bidder.
(5)
Where a procurement contract
is required to be signed, the successful bidder shall do so and return the
contract within twenty days after the notice referred to in sub-regulation 72 is dispatched to the
bidder, or other period of time set forth in the notice.
(6)
Between the time when the
notice referred to in sub-regulation 72 is dispatched to the
successful bidder and the entry into force of the procurement contract,
neither a procuring organisation nor the successful bidder shall take any
action that interferes with the entry into force of the procurement contract
or with its performance.
(7)
Where a successful bidder
fails to;
(a)
sign a written procurement
contract as per the bidding documents; or
(b)
provide any required security
for the performance of the contract,
the procuring organisation shall select a successful bid in
accordance with Regulation 66 from among the remaining bids that are in
force.
(8)
Procuring organisations shall
not request or require the successful bidder to sign a contract at variance
with the terms and conditions set forth in the bidding documents.
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Submission of performance security
|
73.
If required to do so by the
bidding documents, the successful bidder must submit the performance
guarantee within the time stated following the date of the notification of
acceptance of the bid.
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|
Form of performance security
|
74.
(1) Procuring organisations
may solicit and accept as security for the performance of the procurement
contract.
(2)
Security for performance may
take the form of amongst others;
(a) guarantees,
(b) surety bonds,
(c) stand‑by letters of credit,
(d) bankers drafts,
(e) cash deposits,
(f) promissory notes,
(g) bills of exchange, or
(h) surety or performance bonds, or
(i) other security acceptable to the Contracts Committee.
(3)
Where the performance
security takes the form of an independent guarantee or stand-by letter, the
amount shall be set at a minimum of ten percent of the value of the
procurement contract, or, in the case of an indefinite quantity contract, of
the value estimated by a procuring organisation.
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Validity period of performance
security
|
75.
Unless otherwise stipulated
in the procurement contract, the validity period of the performance security
shall extend to at least one month beyond the;
a) latest date of the time of delivery, or
b) time for completion of performance, or
c) warranty or defects liability period, as the case may be, under
the procurement contract.
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Return of performance security
|
76.
Where a procurement contract
in respect of which a performance security was given has been satisfactorily
performed, or terminated for a reason that is not attributable to any fault
of the bidder, and the procuring organisation has no claim against the
supplier or contractor arising out of the contract or relating in any manner
whatever to the contract, the performance security shall be returned to the
bidder.
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Maintenance guarantee
|
77.
(1) A procurement contract
may require the supplier to provide a maintenance warranty in the form of a
bank guarantee, or other form stipulated in the contract.
(2) The value of the warranty shall be
not less than three percent of the value of the guaranteed goods.
(3) Where the contractor fails to provide
the required maintenance, a procuring organisation (employer) shall be
entitled to confiscate the warranty value and conduct the maintenance at the
cost of the contractor.
(4)
The validity period of the
maintenance warranty guarantee shall extend at least forty days beyond the
expiry of the warranty period.
(5) In supply and installation contracts, unless otherwise provided by
contract, the maintenance period shall, in the event that a procuring
organisation has not requested installation to be started at an earlier time,
be deemed to begin 120 days after the receipt of the equipment or machinery.
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Manufacturer’s warranty
|
78.
(1) A procurement contract
shall set forth the supplier’s warranty obligations to replace, at its own
expense, defective goods within a one year period or other period specified
in the contract.
(2) In the event of a breach of warranty, the procuring organisation
shall be entitled to claim the entire value of the warranted goods and
additional charge of fifteen percent of the value of the defective goods.
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Notice to other bidders
|
79.
Upon the entry into force of
the procurement contract, notice of the procurement contract shall be given
to the other bidders, specifying the name and address of the successful
bidder with whom a contract has been signed and the contract price.
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Return of samples
|
80.
(1) Samples that have not
been destroyed in testing shall be returned to the respective bidders at
their written request and expense.
(2)
The bidder shall lose the
right of claiming return of samples two months following the date of
notification of the award.
(3)
Samples approved in relation
to the successful bid shall, after being signed for by the Contracts
Committee, be kept by a procuring organisation for the purpose of comparison
with the delivered goods.
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Debriefing of unsuccessful
bidders
|
81. The information required
by section 33 of the Act shall be provided orally within seven days of the
date on which the request is received by the Contracts Committee and shall
include only a general description of strengths and weaknesses of the
requestor’s bid, the characteristics and relative advantages of the bid
selected (but without revealing any proprietary information) as well as the
name of the successful bidder.
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Conditions for use of tendering
for commodities
|
82. When tendering is used for
procurement of raw materials and other commodities whose prices are quoted in
established commodity markets, the following conditions shall apply:
(a) Bidders shall be invited to quote prices linked to the market
price at the time of or prior to the shipments;
(b) Tender validity periods shall be kept as short as possible; and
(c) The bidding documents may permit faxed tenders, if there is no
requirement for a tender security or if standing tender securities valid over
a specified period of time have been provided by pre‑qualified bidders.
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Procedures for restricted
tendering
|
83. (1) When restricted tendering is employed on the
grounds referred to in section 40(a) of the Act, all suppliers capable of
supplying the goods, works or services shall be solicited.
(2) When restricted tendering
is employed on the grounds referred to in section 40(b) of the Act, the
procuring organisation shall solicit tenders from a minimum number of five
bidders if possible.
(3)
The procedures for tendering
proceedings set forth in Regulations 42 to 82 apply to
restricted tendering proceedings, except to the extent they are modified by
this Regulation.
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Public notice of restricted
tendering
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84.
In the case of restricted
tendering for procurement, the procuring organisation shall cause the
publication of a notice concerning the procurement, stating the grounds for
the use of the restricted tendering method.
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Procedures for two-stage tendering
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85.
(1) The bidding documents
shall call upon bidders to submit, in the first stage of the two-stage
tendering proceedings, initial tenders containing their proposals without a
tender price.
(2)
The bidding documents may
solicit proposals relating to the technical, quality or other characteristics
of the goods, works or services as well as to contractual terms and
conditions of supply, and, where relevant, to the professional and technical
competence and qualifications of the bidders.
(3)
A procuring organisation may,
in the first stage, engage in discussions with any bidder whose tender has
not been rejected.
(4)
In the second stage of the
two-stage tendering proceedings, a procuring organisation shall invite
bidders whose tenders have not been rejected to submit final tenders with
prices with respect to a single set of specifications.
(5)
In formulating those
specifications, a procuring organisation may delete or modify any aspect,
originally set forth in the bidding documents.
(6)
Any deletion, modification or
addition regarding the technical or quality characteristics of the goods,
works or services to be procured, and any criterion originally set forth in
those documents for evaluating and comparing tenders and for ascertaining the
successful tender, shall be communicated to bidders in the invitation to
submit final tenders.
(7)
A bidder not wishing to
submit a final tender may withdraw from the tendering proceedings without
forfeiting any tender security that the bidder may have been required to
provide.
(8)
The procedures for tendering
proceedings set forth in Regulations 42 to 82
apply to two-stage tendering proceedings, except to the extent they are
modified by this Regulation.
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Procedures for procurement
of consultants’ services
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Scope of request for proposals
method
|
86. (1) Regulations 86 to 107
present the procedures to be followed in the case of the request for
proposals method. This procedure provides a competitive process among
short-listed firms that takes into account the quality of the proposal and,
when applicable, the cost of the services in the selection of the successful
service provider.
(2)
After the procedures for
solicitation of participation, the first stage involves an assessment of
quality and technical aspects of proposals. In the second stage, in a quality
and cost-based selection procedure, the financial proposals are evaluated.
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Preparation of short list
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87. (1) A short list of at least three, but not more than six bidders,
which possess the necessary professional and technical qualifications and
competence, financial resources, equipment and other physical facilities,
managerial capability, experience in the procurement object, reputation and
personnel, to perform the contract, shall be prepared.
(2)
In order to establish the
short list a procuring organisation may seek expressions of interest by
publishing a non-binding notice with the information described in Regulation 42 in
the local or international media, including in a newspaper of wide
circulation or in a relevant trade publication or technical or professional
journal.
(3)
The information requested
shall be the minimum required to make a judgement on the firm’s suitability
and not be so complex as to discourage consultants from expressing interest.
Sufficient time (not less than forty days) shall be provided for responses,
before preparation of the short list.
(4)
The short list may comprise
entirely bidders from The Gambia for procurement with a value of 350,000
dalasis or less and when at least three national bidders are available at
competitive costs. However, foreign bidders shall not be excluded from
consideration, if they express interest.
(5)
Bidders that expressed
interest, as well as any member of the general public that specifically so
requests, shall be provided the final short list of firms.
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Issuance of request for
proposals
|
88. The procuring organisation shall provide the request for proposals
to the short list of consultants as prepared in accordance with
Regulation 87.
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Avoidance of conflict of
interest
|
89.
(1) Consultants shall provide
professional, objective, and impartial advice and at all times hold the
client’s interests paramount, without any consideration for future work.
(2)
Consultants shall strictly
avoid conflicts with other assignments or their own corporate interests.
(3)
Consultants shall not be
hired for any assignment that would, by its nature, be in conflict with their
prior or current obligations to the Government of The Gambia or other
clients, or that may place them in a position of not being able to carry out
the assignment in the best interest of a procuring organisation.
(4)
Without limitation on the
generality of this rule, consultants shall not be hired under the circumstances
set forth below:
(a) A firm hired to prepare engineering design for an infrastructure
project shall not be engaged to prepare an independent environmental
assessment for the same project.
(b) A firm assisting a client in the privatisation of public assets shall
not purchase, nor advice purchasers of, such assets.
(c) A firm which has been engaged by a procuring organisation to
provide goods or works for a project, and any of its affiliates, shall be
disqualified from providing consulting services for the same project.
(d) Conversely, a firm hired to provide consulting services for the
preparation or implementation of a project, and any of its affiliates, shall
be disqualified from subsequently providing goods or works or services
related to the initial assignment, other than in the case when, subject to
satisfactory performance of the initial assignment, it is essential for
continuity that there be a continuation of the firm’s earlier consulting
services for the same project.
(5)
This provision does not apply
to the various firms (consultants, contractors, or suppliers) that together
are performing the contractor’s obligations under a turnkey or
design-and-build contract.
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Contents of requests for proposals for services
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90.
(1) The request for
proposals shall provide bidders with the information necessary to enable them to participate in the procurement
proceedings and to submit bids that are responsive to the needs of the
procuring organisation.
(2)
At a minimum, the information
set forth in Schedule 1-B shall be provided.
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Clarification and modification
of request for proposals
|
91. (1) A bidder may request a
clarification of the request for proposals from a procuring organisation.
(2)
A procuring organisation
shall respond in writing to any request by a bidder for clarification of the
request for proposals within a reasonable time prior to the deadline for the
submission of proposals.
(3)
A procuring organisation
shall respond within a reasonable time without identifying the source of the
request.
(4)
The response shall be in
writing and communicated to all bidders to whom request for proposals were
sent.
(5)
At any time prior to the
deadline for submission of proposals, a procuring organisation may, for any
reason, whether on its own initiative or as a result of a request for
clarification by a bidder, modify the request for proposals, including
modification of the criteria for evaluating proposals, by issuing an
addendum.
(6)
The addendum shall be
communicated promptly to all bidders to which a procuring organisation has
provided the request for proposals and shall be binding on those bidders.
(7)
Where a procuring
organisation convenes a meeting of bidders, it shall prepare minutes of the
meeting containing the requests submitted at the meeting for clarification of
the request for proposals, and its responses to those requests, without
identifying the sources of the requests.
(8)
The minutes shall be provided
promptly to all bidders participating in the procurement proceedings.
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Choice of selection procedures
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92. (1) The procuring organisation
shall use one of the following procedures for selection of the winning
proposal, in accordance with the notice provided to bidders in the request
for proposals:
(a) Quality and Cost Based Selection (QCBS), which takes into account
both the quality and the cost aspects in selecting the winning proposal;
(b) Quality-Based Selection (QBS), which focuses primarily on quality
in selecting the winning proposal.
(2)
Subject to sub-regulation (3),
the QCBS method shall be utilised.
(3) Use of the QBS method is appropriate for the following types of
assignments:
(a) Complex or highly specialised assignments for which it is
difficult to define precise TOR and the required input from the consultants,
and for which the client expects the consultants to demonstrate innovation in
their proposals (for example, country economic or sector studies,
multisectoral feasibility studies, design of a hazardous waste remediation
plant or of an urban master plan, financial sector reforms);
(b) Assignments that have a high downstream impact and in which the
objective is to have the best experts (for example, feasibility and
structural engineering design of such major infrastructure as large dams,
policy studies of national significance, management studies of large
government agencies); and
(c) Assignments that can be carried out in substantially different
ways, such that proposals will not be comparable (for example, management
advice, and sector and policy studies in which the value of the services
depends on the quality of the analysis).
(4) The procuring organisation
shall include in the record required under section 36 of the Act a statement
of the grounds and circumstances on which it relied to justify the use of a
selection procedure pursuant to sub-regulation 92.
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Submission of proposals
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93.
(1) All submitted proposals
shall be safeguarded by a procuring organisation to prevent unauthorised
disclosure of information.
(2)
When the QCBS method is
applied, the technical and financial proposals shall be submitted at the same
time, in separate sealed envelopes.
(3)
When the QBS method is
applied, bidders may be required to submit technical and financial proposals
at the same time, in separate sealed envelopes, or
(4)
At the option of a procuring
organisation, bidders may be requested to submit at the outset of the
proceedings, only technical proposals.
(5)
A procuring organisation
shall set the deadline for submission of proposals not less than thirty days
from the date of the issuance of the request for proposals.
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Evaluation and selection
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94. (1) Any award by the procuring
organisation shall be made to the bidder whose proposal best meets the needs
of the procuring organisation as determined in accordance with the criteria
for evaluating the proposals and final selection procedures set forth in the
request for proposals.
(2) A record of the evaluation
of the each proposal and the comparison between them shall be maintained by
the procuring organisation by using GPPA‑Form 020: Record of Evaluation
of Each Proposal and GPPA‑Form 021: Summary Report of Evaluation and
Comparison of Proposals.
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Evaluation
of proposals in quality and cost-based selection procedure
|
95.
The evaluation of the
proposals shall be carried out in two stages:
(a) The technical envelopes shall be opened in the first stage, which
shall concern only the quality and technical aspects of proposals. Evaluation
of the technical proposals shall be in accordance with the Instructions;
(b) The financial proposals shall remain sealed and evaluators of
technical proposals shall not have access to the financial proposals until
the technical evaluation is concluded.
(c) On conclusion of the technical evaluation, the financial proposals
shall be opened and evaluated in full compliance with the provisions of the
request for proposals.
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Rejection of proposals
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96. Following evaluation and
rating of proposals, the procuring organisation shall reject proposals that
are unresponsive to important aspects of the terms of reference or that fail
to achieve the minimum threshold score as specified in the request for
proposals.
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Notification of results of
first stage quality evaluation
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97.
(1) After the evaluation of
quality is completed, the procuring organisation shall notify those bidders
whose proposals did not attain the minimum qualifying score or were
considered non-responsive, indicating that their financial proposals will be
returned unopened after completing the selection process.
(2)
The procuring organisation
shall simultaneously notify the bidders that have secured the minimum
qualifying mark, and indicate the date and time set for opening the financial
proposals.
(3)
The opening date shall not be
sooner than two weeks after the notification date.
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Quality evaluation report and
retention of evaluation records
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98. (1) The procuring
organisation shall prepare an evaluation report of the “quality” of the
proposals.
(2)
The report shall substantiate
the results of the evaluation and describe the relative strengths and
weaknesses of the proposals.
(3)
All records relating to the
evaluation, such as individual mark sheets, shall be retained until
completion of the project and its audit, subject to the requirements of
Regulation 159.
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Opening of financial proposals
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99.
(1) The financial proposals
shall be opened publicly in the presence of representatives of the bidders
who choose to attend.
(2)
The name of the bidder, the
quality scores, and the proposed prices shall be read aloud and recorded when
the financial proposals are opened.
(3)
The procuring organisation
shall prepare the minutes of the public opening, which shall form part of the
record of the procurement proceedings.
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Evaluation of financial
proposals
|
100.
(1) For the purpose of
evaluation, “cost” shall exclude Gambian taxes, but shall include other
reimbursable expenses, such as travel, translation, report printing, or
secretarial expenses.
(2)
In the evaluation of
financial proposals, only the conditions set forth in the request for
proposals shall be applied.
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Criteria for selection
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101. Following the evaluation
of the quality and the financial proposals, the successful proposal shall, in
accordance with the approach disclosed in the request for proposals, be:
(a) The proposal with the lowest price; or
(b) The proposal with the best combined evaluation in terms of the
criteria other than price referred to in the request for proposals and the
price, in accordance with the procedures referred to in Regulation 102.
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Combined quality and cost evaluation
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102. (1) If the successful proposal is selected on the basis of a combined evaluation of quality and price aspects,
the total score shall be obtained by
weighting the quality and cost scores and adding them.
(2)
The weight for the “cost”
shall be chosen taking into account the complexity of the assignment and the
relative importance of quality, and level at which the minimum quality
threshold is set.
(3)
The weight for cost shall
normally be in the range of 10 to 40 percent, but in no case shall exceed 40
percent out of a total score of 100. Only the weighting disclosed to bidders
in the request for proposals may be used.
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Final discussions and award of
contract
|
103. (1) The bidder submitting the proposal determined to be successful in
accordance with Regulation 101 shall be invited
for technical discussions aimed at finalisation of the contract.
(2)
The technical discussions
shall include discussions of the terms of reference, the methodology,
staffing, the procuring organisation’s inputs, and special conditions of the
contract. The discussions shall not substantially alter the original terms of
reference or the terms of the contract. Major reductions in work inputs
should not be made solely to meet the budget. The final terms of reference
and the agreed methodology shall form part of the contract.
(3)
The selected bidder shall not
be allowed to substitute key staff, unless both parties agree that undue
delay in the selection process makes such substitution unavoidable or that
such changes are critical to meet the objectives of the assignment. If this
is not the case and if it is established that key staff were offered in the
proposal without confirming their availability, the bidder may be
disqualified and the process continued with the next ranked bidder. The key
staff proposed for substitution shall have qualifications equal to or better
than the key staff initially proposed.
(4)
Financial discussions shall
include clarification of the bidder’s tax liability in The Gambia (if any),
and how this tax liability has been or would be reflected in the contract.
Proposed unit rates for staff-months and reimbursables shall not be
negotiated, since these have already been a factor of selection in the cost
of the proposal, unless there are exceptional reasons.
(5) Discussions shall be
summarised and recorded on GPPA‑Form 022: Record of Final Discussions,
pursuant to Regulation 156156(k).
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Quality based selection procedure
|
104.
Where the procuring
organisation uses the QBS procedure provided for in this Regulation, it shall
engage in negotiations with bidders in accordance with the following
procedure and as described further in the Instructions:
(a) Establish a minimum quality threshold;
(b) Conduct the technical evaluation using the same methodology as in
the QCBS method;
(c) Invite for negotiations on the price of its proposal the bidder
that has attained the best rating;
(d) Inform the bidders that attained ratings above the threshold that
they may be considered for negotiation if the negotiations with the bidders
with better ratings do not result in a procurement contract;
(e) Inform the other bidders that they did not attain the required
threshold;
(f) Where it becomes apparent to a procuring organisation that the
negotiations with the bidder invited pursuant to subparagraph (c) will not
result in a procurement contract, inform that bidder that it is terminating
the negotiations; and
(g) A procuring organisation shall then invite for negotiations the
bidder that attained the second best rating; if the negotiations with that
bidder do not result in a procurement contract, a procuring organisation
shall invite the other bidders for negotiations on the basis of their ranking
until it arrives at a procurement contract or rejects all remaining
proposals.
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Failure to reach agreement with
successful bidder
|
105.
(1) If the discussions with
the first selected bidder fail to result in an acceptable contract, the
procuring organisation shall terminate the discussions and invite the next
ranked firm for discussions.
(2)
The bidder with whom
discussions are being terminated shall be informed of the reasons for the
termination.
(3)
Once discussions are
commenced with the next ranked firm or individual, the procuring organisation
shall not reopen the earlier discussions. After discussions are successfully
completed, the procuring organisation shall promptly notify other bidders on
the short list that they were unsuccessful.
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Rejection of all proposals
|
106.
The procuring organisation
may reject all proposals only if all proposals are non-responsive and
unsuitable either because they contain major deficiencies in complying with
the terms of reference, or because they involve costs substantially higher
than the original estimate.
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Role of advisory juries
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107. (1) The
procuring organisation may utilise juries for the purpose of obtaining
independent recommendations as to the selection of the winning bid in design
contests and other types of services contracting.
(2)
A jury shall consist exclusively of individuals that are independent
of the participants in the competition. If a particular specialisation is
required for participation in the competition, at least one third of the jury
members shall possess that same or an equivalent specialisation.
(3)
The jury shall evaluate and
compare the proposals in relation to the requirements set forth in the
bidding documents, and shall rank the proposals.
(4)
The jury shall prepare a
report to the procuring organisation summarising its deliberations and
explaining its recommendations as to the winner or winners.
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Application of request for proposals to BOT and
similar forms of infrastructure and services procurement
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BOT terminology
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108.
The expression “BOT and
similar forms of infrastructure and services procurement” refers to various
forms of contracting for the delivery of infrastructure projects and public
services by way of private investment and private service providers,
including “Build-Operate-Transfer” and other variants.
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Preparation
of short
list
|
109.
The procuring organisation
shall prepare a short list in accordance with Regulation 87, in
order to identify potential bidders that possess the necessary professional
and technical qualifications and competence, financial resources, equipment
and other physical facilities, managerial capability, experience in the
procurement object, reputation and personnel, to perform the contract.
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Solicitation in one or
two-stages
|
110.
(1) A procuring organisation,
having established a short list of bidders, may solicit proposals in one or
in two stages.
(2) A two-stage request for proposals procedure shall be used when it
is not feasible for a procuring organisation to formulate project
specifications or performance indicators and contractual terms in a manner
sufficiently detailed and precise to permit final proposals to be formulated.
(3)
In the first stage of a
two-stage procedure, a procuring organisation shall call upon the pre‑selected
bidders to submit proposals relating to output specifications and other
characteristics of the project as well as to the proposed contractual terms;
(4)
In the second stage of a
two-stage procedure, a procuring organisation should, following examination
of the proposals received, review and, as appropriate, revise the initial
project specifications and contractual terms prior to issuing a final request
for proposals.
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Contents of the final request
for proposals
|
111.
The final request for
proposals should include at least the following:
(a) General information as may be required by the bidders in order to
prepare and submit their proposals;
(b) Project specifications and performance indicators, as appropriate,
including the procuring organisation’s requirements regarding safety and
security standards and environmental protection;
(c) The contractual terms proposed by the procuring organisation; and
(d) The criteria for evaluating the proposals, the relative weight to
be accorded to each such criterion and the manner in which criteria are to be
applied in the evaluation of proposals.
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Evaluation criteria
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112.
(1) The criteria for the
evaluation and comparison of the technical proposals should concern the
effectiveness of the proposal submitted by the bidder in meeting the needs of
the procuring organisation, including the following:
(a) Technical soundness;
(b) Operational feasibility;
(c) Quality of services and measures to ensure their continuity; and
(d) Social and economic development potential offered by the
proposals.
(2)
The criteria for the
evaluation and comparison of the financial and commercial proposals may
include, as appropriate:
(a) The present value of the proposed tolls, fees and other charges
over the concession period;
(b) The present value of the proposed direct payments by the procuring
organisation, if any;
(c) The costs for design and works activities, annual operation and
maintenance costs, present value of capital costs and operating and
maintenance costs;
(d) The extent of financial support, if any, expected from the
Government;
(e) Soundness of the proposed financial arrangements; and
(f) The extent of acceptance of the proposed contractual terms.
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Final negotiations
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113.
(1) The procuring
organisation should rank all responsive proposals on the basis of the evaluation criteria set forth in the
request for proposals and invite for
final negotiation of the project agreement the
bidder that has attained the best rating.
(2) Final
negotiations may not concern those terms of the contract which the procuring organisation stated as
non-negotiable in the final request for proposals.
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Unsolicited proposals
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114.
By way of exception to the
selection procedures described in these Regulations, the procuring
organisation may consider unsolicited proposals pursuant to this Regulation
and Regulations 115 to 117.
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Determining admissibility of
unsolicited proposals
|
115. (1) Following receipt and preliminary
examination of an unsolicited proposal, the procuring organisation shall
inform the author, within a reasonably short period, whether or not there is
a potential public interest in the project. If the project is found to be in
the public interest, the procuring organisation shall invite the author to
submit a formal proposal in sufficient detail to allow the procuring
organisation to make a proper evaluation of the concept or technology and
determine whether the proposal meets conditions set forth in Act and is
likely to be successfully implemented on the scale of the proposed project.
(2)
The author of an unsolicited proposal shall retain title to all documents
submitted throughout the procedure and those documents should be returned to
it in the event the proposal is rejected.
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Unsolicited proposals not
involving proprietary concepts or technology
|
116.
(1) A procuring organisation should initiate competitive selection
procedures under this Regulation if it is found that the envisaged output of
the project can be achieved without the use of a process, design, methodology
or engineering concept for which the author of the unsolicited proposal
possesses exclusive rights or if the proposed concept or technology is not
truly unique or new.
(2)
The author of the unsolicited proposal should be invited to participate in
such proceedings and may be given a premium for submitting the proposal.
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Unsolicited proposals involving
proprietary concepts or technology
|
117. (1) If it
appears that the envisaged output of the project cannot be achieved without
using a process, design, methodology or engineering concept for which the
author of the unsolicited proposal possesses exclusive rights, the procuring
organisation should seek to obtain elements of comparison for the unsolicited
proposal.
(2)
For that purpose, the
procuring organisation should publish a description of the essential output
elements of the proposal with an invitation for other interested parties to
submit alternative or comparable proposals within a certain reasonable
period.
(3) The procuring organisation may engage in negotiations with the
author of the unsolicited proposal if no alternative proposals are received,
subject to approval by a higher authority.
(4) Where alternative proposals are submitted, the procuring
organisation should invite all the bidders to negotiations in accordance with
the following:
(a) The procuring organisation should publish a notice of its
intention to award a concession for the implementation for the proposed
project and should engage in negotiations with as many bidders it judges
capable of carrying out the project as circumstances permit;
(b) Offers should be evaluated and ranked according to the evaluation
criteria established by the procuring organisation to select the best offer;
and
(c) The procuring organisation shall publish a notice of the contract
award, disclosing the specific circumstances and reasons for the award of the
contract and the extent of competition involved.
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Procedures for request for
quotations
|
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Procedures for request for quotations
|
118. (1) Quotations shall be requested from
at least three bidders.
(2) The request shall contain
a clear statement of the requirements of the procuring organisation as to
quality, quantity, terms and time of delivery as well as any other special
requirements and shall be formed by using GPPA‑Form 101: Request for
Quotations.
(3)
Bidders shall be given
adequate time to prepare their quotations. Each bidder is permitted one
quotation, which may not be altered or negotiated, and which shall be
submitted in written form. Quotations may also be submitted by facsimile or
telex or in any other form that leaves a record of the content of the
communication and is acceptable to the procuring organisation.
(4) A purchase order, based on
GPPA‑Form 102: Purchase Order, shall be placed with the bidder that
provided the lowest-priced responsive quotation.
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Single-source procurement
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Procedures for local purchase orders and petty contracts
|
119. (1) In accordance with section 45(1)(a) of the Act
–
(a) The Local Purchase Order
Form shall be used for goods and non-consultant services below the threshold
established in Regulation 12(a)(i); and
(b) The Petty Contract Form
shall be used for works below the threshold established in Regulation 12(a)(ii).
(2)
Procurement transactions
referred to in sub-regulation 119
shall be documented, as a minimum, with two copies of the annotated invoice
for the item with the name of the person who bought the item.
(3) Any single source procurement actions under the thresholds set
forth in Regulation 12(a) shall be aggregated into a
summary monthly report identifying the types of items purchased, amounts and
vendor for each such transaction.
(4) The monthly summary report
referred to in sub-regulation (3) shall be submitted to the
Contracts Committee by the user units by using GPPA‑Form 006: Monthly
Summary Report of Local Purchase Orders and Petty Contracts.
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Procedure for other single-source procurement
|
120. (1) Procurement carried out on
a single source basis over the thresholds set forth in Regulation 12(a) shall be embodied in a
written contract or purchase order as approved by the Contracts Committee in
accordance with section 48(8) and section 50(c) of the Act.
(2) When the procuring
organisation engages in single-source procurement on the grounds referred to
in section 45(1)(b) through (e) of the Act, it shall prepare a written
description of its needs and any special requirements as to quality,
quantity, terms and time of delivery, and shall be free to negotiate with the
sole bidder.
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Establishment and staffing of support
operations for contract administration
|
121.
(1) Procuring organisations shall establish
and provide the staffing necessary for the operations involved in contract
administration as described in the Instructions. Those include, but are not
necessarily limited to, the following:
(a) Engineering and design services, providing design and monitoring
functions for preparation and implementation of procurement contracts;
(b) Financial control and payment services;
(c) Management information systems for co-ordinated processing and
communication of and access to relevant information by all parties involved
in contract administration, including document control services, for
establishing and maintaining filing systems for correspondence and other
paperwork and records relating to procurement contracts; and
(d) Legal services.
(2)
Procuring organisations shall
make available to the Authority, the Auditor-General, and other authorised
organs documentation, reports, and other information required by those bodies
for the purposes of monitoring contract administration.
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Contract variations
|
122.
(1) Variations exceeding five
percent of the contract value shall be submitted to the Contracts Committee
for its approval.
(2) Where the contract variation causes the threshold for review by
the Authority in Regulation 13(2) to
apply, contract variations shall be submitted to the Authority for approval,
subject to the variation having first been approved by the Contracts
Committee.
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Subcontracting
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123. (1) The acceptance of any committed SME
subcontract by the procuring organisation shall be based on the requirements
for non-burdensome contract provisions as set forth in the Instructions.
(2)
In cases other than covered
by 123 and when the request for subcontracting arises at the time of bid
submission, the bidder should state in the bid:
(i)
The nature of the goods or
services for which subcontracting is envisaged;
(ii)
The name and address of the
proposed subcontractor;
(iii)
The amounts expected to be
paid directly to the subcontractor;
(iv)
The manner of payment;
(v)
The conditions of payment
foreseen in the draft subcontract and, if applicable, price revision; and
(vi)
A declaration to the effect that the proposed subcontractor is not
barred from participating in procurement proceedings pursuant to section
29(1) of the Act.
(3)
The notice of acceptance of
the bid shall include the acceptance of the subcontractor and of the
conditions of payment. Silence of the procuring organisation during a period
of 21 days from the receipt of the request shall be deemed to constitute
acceptance of the subcontractor and of the conditions of payment.
(4)
Where a request for
subcontracting is submitted after the conclusion of the procurement contract,
the procuring organisation is under no obligation to accept such request.
(5)
If the request is rejected by
the procuring organisation, the contractor shall remain obligated to fully
perform under the contract. Failure to perform after rejection of the
subcontractor request can result in termination for default in accordance
with Regulation 133.
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Administration of subcontracts
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124.
The prime contractor is
responsible for administering its subcontracts. The procuring organisation’s
review of subcontracts is normally limited to evaluating the prime
contractor’s management of the subcontracts, unless:
(a) The procuring organisation would otherwise incur undue cost; or
(b) Successful completion of the prime contract is threatened; or
(c) Certain high risk or critical subsystems in major systems
acquisition require special surveillance.
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Inspection of goods
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125.
(1) The procuring
organisation is entitled to carry out acceptance inspections and, in the case
of custom made goods, observe and inspect the manufacture of the goods at the
supplier's premises during regular working hours.
(2)
The supplier shall at its own
expense place at the procuring organisation's disposal any premises,
facilities and personnel needed for normal inspections.
(3)
The supplier and the
procuring organisation shall each bear the expenses for the attendance of
their respective representatives at the inspection.
(4)
Any deficiencies and
omissions detected shall be remedied by and at the expense of the supplier.
(5)
The procuring organisation
has no obligation to pay for any goods or accessories that have become
unserviceable or lost value in the course of a normal inspection.
(6)
Should an item or consignment
of goods inspected not meet the requirements set for it, the supplier shall
bear all the expenses that renewed inspection, handling or transport may
involve.
(7)
The observation and
inspection of the manufacture of the goods affected by the procuring
organisation do not in any way limit the supplier's responsibilities and
liabilities.
(8)
If the supplier has been
permitted to employ the services of a subcontractor, he shall in his contract
with the subcontractor reserve to the procuring organisation the rights
referred to in this Regulation.
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Pre-shipment inspection
services
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126.
(1) The procuring
organisation may engage an external agent for the purposes of conducting pre‑shipment
inspection of goods being purchased by procuring organisations.
(2)
Contracts with such firms
shall be awarded by way of competitive procedures pursuant to the Act and
Regulations.
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Examination and receipt committee
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127. (1) The procuring organisation shall
establish an Examination and Receipt Committee, or, as an alternative,
appoint an individual who has not participated in the ordering of the items,
for the purposes of inspecting and examining supplied goods.
(2)
The Committee shall inspect
and examine the supplied items comparing them with the stamped and approved
samples, putting aside the rejected goods to be returned to the supplier.
(3)
The Committee shall examine varying
percentages of shipments, to be determined depending on the importance of the
item.
(4)
The Committee shall prepare
an examination report indicating acceptance or rejection of the goods.
(5)
The examination report shall
indicate the percentage which the Committee have examined, the names,
specifications, results of testing, and shall be included in the record of
the procurement proceeding.
(6)
In the event of a dispute
between the supplier and the Examination and Receipt Committee, the matter
shall be submitted to dispute settlement procedures under the procurement
contract.
(7) Goods, whose value is
below an amount set by the Contracts Committee of the procuring organisation,
may be examined and received by the storekeeper without examination by the
Examination and Receipt Committee. Such examination and receipt is also
permitted in urgent circumstances referred to in section 45(1)(c) of the Act,
subject to approval in accordance with the delegation of authority by the
head of the procuring organisation.
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Acceptance of works and
services
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128.
A procuring organisation
shall ensure that appropriate mechanisms and procedures are in place to
ascertain that works and services, prior to being accepted by the procuring
organisation, have been performed satisfactorily in accordance with the
procurement contract.
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Record of supplier performance
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129. The Contracts Committee
shall ensure that for all contracts in excess of the threshold established in
Regulation 12(c), GPPA‑Form 041:
Record of Supplier Performance Assessment, is completed and made part of the
contract record.
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Remedies for breach of contract
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130.
The procurement contract
shall specify remedies available to the procuring organisation in the event
of breach of the procurement contract by the supplier. Those remedies
include, but are not limited to:
(a) Rejection of defective performance;
(b) Prompt removal and replacement of defective goods;
(c) Liquidated damages for delay, in accordance with a rate set for
each week or other unit of time, or part thereof, of delay;
(d) Termination of the contract for default and purchase of
replacement performance, at the expense of the defaulting party; and
(e) Such other remedies as may be available pursuant to the contract
or to applicable Act.
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Rejection of goods
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131.
(1) In the event it is
decided to reject goods provided under the procurement contract, the procuring
organisation shall notify the supplier, by registered mail or courier with a
return receipt, of the rejection and its reasons in order to withdraw those
materials from the stores and supply replacements of the rejected goods
within the specified duration.
(2)
In case the supplier refuses
to take delivery of the rejected goods, he shall be fined terrage and storage
expenses at the rate to be specified in the procurement contract.
(3)
Further, the procuring
organisation is entitled to sell the goods by public auction and recover all
expenses and fines from the sale value. The balance remaining shall be
returned to the supplier.
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Termination
of contract
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132. (1) The termination clauses or other
contract clauses authorise the procuring organisation officers to terminate
contracts for convenience, or for default, and to enter into settlement
agreements under these Regulations.
(2)
The contracting officer shall
terminate contracts, whether for default or convenience, only when it is in
the public interest.
(3)
The procuring organisation
shall terminate contracts for convenience or default only by a written notice
to the supplier. When the notice is mailed, it shall be sent by certified
mail, return receipt requested.
(4)
Where the procuring
organisation arranges for hand delivery of the notice, a written
acknowledgement shall be obtained from the supplier. The notice shall state -
(a) That the contract is being terminated for the convenience of the
Government (or for default) under the contract clause authorising the
termination;
(b) The effective date of termination;
(c) The extent of termination;
(d) Any special instructions; and
(e) The steps the contractor should take to minimise the impact on
personnel if the termination, together with all other outstanding
terminations, will result in a significant reduction in the supplier's work
force.
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Termination for default
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133. (1) The procuring organisation has the
right, subject to the notice requirement in the contract, to terminate the
contract completely or partially for default if the supplier -
(a) Fails to make delivery of the supplies or perform the works or
services within the time specified in the contract, or
(b) Fails to perform any other provision of the contract, or
(c) Fails to make progress and that failure endangers performance of
the contract, or
(d) In the judgement of the procuring organisation, has engaged in
corrupt or fraudulent practices in competing for or in executing the
contract.
(2)
In the event the procuring
organisation terminates the contract in whole or in part, pursuant to
sub-regulation 133,
the procuring organisation may procure, upon such terms and in such manner as
it deems appropriate, replacement performance similar to that undelivered,
and the Supplier shall be liable to the procuring organisation for any excess
costs for such similar performance. However, the supplier shall continue
performance of the contract to the extent not terminated.
(3)
The procuring organisation
shall authorise payment for the value of the work done, or goods or services
supplied, and materials ordered less advance payments received up to the date
of the issue of the certificate and less the percentage to apply to the value
of the work not completed, as indicated in the contract.
(4)
If the total amount due to
the procuring organisation exceeds any payment due to the supplier, the
difference shall be a debt owed by the supplier to the procuring
organisation.
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Termination for convenience
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134.
(1) Where
a contract is terminated for convenience, a procuring organisation shall
authorise payment for;
a)
the value of the work done,
b)
materials ordered, or
c)
goods or services supplied,
or
d)
the reasonable cost of
removal of equipment, or
e)
repatriation of the
supplier’s personnel employed solely on the works, or
f)
the supplier’s costs of
protecting and securing the works, where applicable, and less advance
payments received up to the date of the certificate.
(2)
No payment shall be made of unrealised profits.
(3)
Notwithstanding sub-regulation 134, goods that are complete and
ready for shipment within forty days after the supplier’s receipt of notice
of termination shall be accepted by a procuring organisation at the contract
terms and prices.
(4)
For the remaining goods, a procuring organisation may elect:
(a)
to have any portion completed
and delivered at the contract terms and prices; and/or
(b)
to cancel the remainder and
pay to the supplier an agreed amount for partially completed goods and
services and for materials and parts previously procured by the supplier.
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Basic pricing approaches
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135.
(1) The price of a
procurement contract shall be set either on the basis of:
(a) A unit price applied to the quantities actually delivered, or
(b) On a lump-sum basis, applied to the entirety or to a part of the
contract, irrespective of the actual quantity delivered.
(2)
Procurement contracts shall
be concluded on the basis of an initial definite price.
(3)
In exceptional circumstances,
subject to approval of the head of the procuring organisation, a procurement
contract may be concluded on the basis of a provisional price, specifying the
manner in which the price is to be made definite. The grounds for the use of
such a pricing clause shall be noted in the record of the procurement
proceedings.
(4)
Procurement contracts may
include incentive clauses linked to delivery periods, improved quality and
production-cost reduction.
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Price adjustment
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136. (1) Unless otherwise provided in the
procurement contract, the price of a procurement contract is considered to be
a fixed price when the price may not be modified in response to changes in
economic or commercial conditions.
(2) The procurement contract
may provide for the possibility of price adjustment to take into account
changes in economic circumstances.
(3)
Price adjustment may only be
made if provided for in the procurement contract and shall be in accordance
with the Instructions.
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Payment
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137. (1) Where goods
are to be procured, unless otherwise stipulated in the procurement contract,
payment for the delivery of goods shall be made on submission of invoices,
together with any shipping or other required documents, in the prescribed
form as indicated in the contract, and in accordance with the instructions
given in the purchase order, letter of acceptance of bid or procurement
contract, as the case may be.
(2)
Where works or services are
to be procured, the procurement contract shall indicate the manner and timing
of payment of the contract price.
(3) (a) Payments that become due to the supplier shall be made in
accordance with the deadlines set forth in the procurement contract,
(b) Notwithstanding sub-regulation 137,
where intermediary or progress payments are made, the procurement contract
may provide that a percentage of amounts due to the supplier may be withheld
until performance of the procurement contract is completed.
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Advance payments
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138. (1) The
procurement contract may provide for advance payments to the supplier.
(2)
The total amount of advance
payment made under the procurement contract shall not exceed twenty percent
of the initial contract price if permitted in the applicable standard bidding
documents, and if it is against a performance bond, bank guarantee or
insurance bond.
(3)
Unless otherwise stipulated
in the procurement contract, an advance payment shall not be made unless and
until the supplier furnishes an advance payment guarantee covering the amount
of the advance payment and satisfies other terms set forth in the bidding
documents.
(4)
Unless otherwise authorised
by the procuring organisation or its representative, the supplier, and any of
its subcontractors, shall utilise materials, equipment and personnel that are
the subject of advance payment only for supply of goods or works related to
the procurement contract.
(5)
Where a works contract is
involved, unless otherwise authorised by the procuring organisation or its
representative, the contractor shall commit all materials, equipment and
personnel exclusively to sites related to the works covered by the
procurement contract.
(6)
Advance payments are not in
the nature of final payments, but are subject to final accounting.
(7)
The procurement contract may
provide for the making of progress payments. Progress payments may be issued
to the supplier in accordance with the progress of performance of the
procurement contract, upon presentation and acceptance of such documentation
as required by the procurement contract to evidence the progress in
performance.
(8) A record for the
authorisation of payment shall be maintained by the procuring organisation by
using GPPA‑Form 040: Payment Authorisation.
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After-sale service
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139.
Unless technical or
commercial factors dictate otherwise, the bidding documents should require a
supplier to provide workshops and spare parts for goods that require such
after-sale service. The period of the supplier’s commitment in this regard
should correspond to the average operating life of the goods in question.
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Insurance requirements
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140.
(1) The bidding documents or other documents
used to solicit proposals, offers or quotations and the procurement contract
shall indicate the amount and essential terms of the insurance that the
successful supplier or contractor may be required to obtain.
(2)
The procurement contract may
require the bidder to cause any of its subcontractors to take out and
maintain insurance in accordance with the requirements of the procurement
contract.
(3)
The procuring organisation
reserves the right to reject insurance coverage that is not in the public
interest.
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Arbitration of disputes
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141. In accordance with section
31(2) of the Act, the parties to a procurement contract shall submit disputes
arising under the procurement contract to settlement by arbitration as
described in the General Provisions of the standard contract.
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Declaration and disclosure requirements
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142.
(1) All members of the Contracts Committee, prior
to commencing evaluation and
comparison of bids, shall sign a declaration, using GPPA‑Form 012 Declaration by Member of Contracts
Committee, to the effect that
they have no relationship with bidders of the following types:
(a) A marital or direct birth relationship with a bidder participating
in the procurement proceedings, with its legal counsel or with its officers;
or
(b) During last three years has been employee or officer of a bidder
participating in the procurement proceedings, or has held a financial
interest in a bidder; or
(c) Is negotiating or has an arrangement concerning prospective
employment in a bidder involved in the procurement proceedings; or
(d) has a potential conflict of interest with regards to the
procurement under consideration
(2) An employee or consultant
of the procuring organisation who becomes aware that it has a relationship
with a bidder referred to in sub-regulation 142 shall immediately report
that to the head of the procuring organisation and request exclusion from the
procurement proceeding, including from any activities referred to in
Regulation 143.
(3)
A report and request for
exclusion shall be made a part of the record of the procurement proceeding.
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Identification of activities on behalf of the procuring organisation
subject to conflict of interest restrictions
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143. Procurement-related
activities on behalf of the procuring organisation that are subject to the
conflict of interest restrictions referred to in section 28(1)(c) of the Act
or in Regulation 142(2) include the following:
(a) Preparation, review or approval of specifications or a statement
of work for a particular procurement;
(b) Assessment of requirements to be fulfilled by a procurement
action;
(c) Preparation of procurement documents, including for solicitation
of participation in procurement proceedings;
(d) Evaluation and comparison of bids, proposals, offers or
quotations, including membership in Contracts Committees;
(e) Conduct of technical discussions or negotiations;
(f) Selection or approval of selection of bidder; and
(g) Administration of the procurement contract.
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Post-employment restrictions on
public procurement officials
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144. (1) Individuals
who have served as procurement officers or who have exercised some other
activity referred to in Regulation 143 with
respect to a procurement shall not:
(a) participate in any manner, as an officer, employee, agent or
representative of a supplier, in any negotiations or technical discussions
leading to the award, modification, or extension of a contract for such
procurement; or
(b) participate personally or substantially on behalf of a supplier in
the performance of such contract.
(2)
The restriction referred to
in sub-regulation (144
shall remain in effect for the duration of the procurement proceeding and
contract, if any, in question.
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Contingent fee arrangements
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145.
(1) Activities prohibited pursuant to Chapter IX of the Regulations
also include the retention of any person, including former public officials,
on a contingent fee basis for the purposes of influencing the selection process
in procurement proceedings, except when that person is acting as a bona fide
commercial selling agent for the purpose of securing business.
(2) The bidding documents shall
require bidders to disclose any contingent fee arrangements entered into for
the purposes of securing the procurement contract. That information shall be
made a part of the record of the procurement proceedings.
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Conspicuous notice of
prohibitions
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146. Notice shall be given conspicuously in the solicitation and
contract documents that bidders are not permitted to:
(a) Enter into contingent fee arrangements prohibited by Regulation 145145;
and
(b) Directly or indirectly
offer, give or agree to give inducements of the type referred to in section
28(2) of the Act, and that rejection of the bid, offer or quotation results
from a violation of that rule.
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Prohibition of award to
consultant affiliated bidder
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147.
The procuring organisation
shall not sign a procurement contract with a bidder associated as a parent
company or branch, with a consultant who is responsible for preparing the
specifications or bidding documents for the procurement contract or
supervising the execution of the procurement contract. This provision does not
apply to the various firms (consultants, contractors or suppliers) which
together are performing the supplier’s obligations under a turnkey or design
and build contract.
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Confidentiality of procurement information
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148. (1) In accordance with section 28(5) of the Act and subject to
applicable oversight, auditing or other Acts, or to the order of a competent
court, public officials are not permitted to disclose to any third party,
whether for personal gain or for any other motive, confidential or
proprietary commercial information obtained by virtue of their involvement
in, or contact with officials involved in, procurement proceedings or the
planning of procurement.
(2) Prior to opening of bids,
disclosure of the number of the bids and their identity shall be made only to
public officials who as part of their official duties require that
information.
(3)
Information relating to the
examination, clarification, evaluation and comparison of bids shall not be
disclosed to bidders or to any other person not involved officially in the
examination, evaluation or comparison of bids or in the decision on which bid
should be accepted, except as provided in section 36(3) and section 36(6) of
the Act.
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Confidentiality obligations of
third parties
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149.
(1) The
requirement of confidentiality, imposed on procuring organisations by section
28(5) of the Act and Regulation 148,
extends also to those acting on behalf of procuring organisations in
procurement proceedings.
(2)
The requirement of
confidentiality referred to in sub-regulation 149 is
subject to the provisions in the Act, applicable legislation and these
Regulations relating to oversight and auditing of the activities of procuring
organisations.
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Dissemination of applicable
conflict of interest rules to State employees
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150. (1) The Authority and the heads of all public
authorities shall ensure that each public employee, including any member of a
Contracts Committee, is provided a copy of the prohibitions and requirements
set forth in Part IX of the Regulations.
(2)
After having been furnished
the text of the provisions referred to in sub-regulation 150,
each public employee shall be required to sign a statement, on a form issued
by the Authority, to the effect that he or she is familiar with their
content.
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Remedies against breach of
conduct standards by employees of the State
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151.
(1) Apart from any other existing civil and
administrative remedies, and sanctions under the penal Act, the Authority may
impose one or more of the following sanctions for breach of conduct
standards:
(a) Written warnings or reprimands;
(b) Suspension with or without pay for specified periods of time; and
(c) Termination of employment.
(2)
All procedures under this
regulation shall be in accordance with due process requirements and existing
Act. In addition, notice and opportunity for a hearing shall be provided
prior to imposition of any suspension or termination of employment.
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Recovery in case of breach of
conduct standards
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152.
The value of anything
transferred or received in breach of the standards of conduct set forth in
the Act or in these Regulations, and additional costs to the procuring
organisation, resulting from the breach, may be
recovered from both the employee and non-employee.
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General policy for debarment
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153. (1) Procedures for debarment
of suppliers are set to provide public entities with a means to deny
suppliers the opportunity to seek public contracts. This serious sanction
must be administered fairly.
(2)
A fundamental policy of
public procurement is that public entities should contract only with
qualified suppliers, that is those possessing satisfactory competence,
capacity, financial resources, reputation and other requirements set out in
Part VI of these Regulations. This policy is based upon the concept that a
public entity's interests in acquiring goods, works and services are much
broader than merely the economics of a proposed transaction. Such interests
include ensuring not only that a prospective supplier will perform
satisfactorily (e.g., timely performance, compliance with specifications,
etc.), but also that such performance will be free of fraud and dishonesty.
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List of debarred suppliers
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154. (1) The list of debarred suppliers
shall be maintained by the Authority.
(2) The Authority and all procuring organisations are to ensure that
debarred suppliers do not participate in public contracting for the duration
of the their debarment.
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Procedures for debarment
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155.
(1) Only the Authority is authorised to
debar a supplier,
(2)
Procuring organisations shall
encourage prompt reporting, investigation, and referral to the Authority of
matters appropriate for Authority to consider taking a debarment action.
(3)
Referral to the Authority
from procuring organisations shall be under the signature of the Chairperson
of the Contracts Committee. The referral documents shall identify the party
or parties proposed to be debarred; the grounds for debarment; the
information, facts and documents supporting allegations; and any other information
that the procuring organisation believes the Authority should consider in the
decision-making process including any mitigating factors.
(4)
The Authority must consider a
debarment petition referred to it by a procuring organisation unless the
allegations are clearly insubstantial, arbitrary, capricious or erroneous.
(5)
The debarment petition shall
be placed before a three-member committee whose members shall be appointed by
the Director General of the Authority, which shall reach a decision on the
petition.
(6)
Immediately upon referral,
the Authority may suspend the suppliers right to participate in public
procurements pending the outcome of the debarment action if the alleged
grounds for debarment include:
(a) Conviction of fraud or other criminal offence in connection with
obtaining, attempting to obtain, or performing a public contract or
subcontract; or
(b) Conviction for bribery, forgery falsification or destruction of
records, making false statements, tax evasion, receiving stolen property or
any other crime or corrupt acts or omissions.
(7)
A decision to exclude a
supplier or bidder from participation in public procurement may be preceded
by a suspension of the right to participate in public procurement
proceedings. The period of suspension may not exceed six months.
(8)
A decision by the Authority
to exclude a supplier or bidder from participation in its procurement
proceedings may only be taken after written notice to the supplier or bidder
of the proposed exclusion and of the grounds therefore. A copy of the notice
shall be provided by the Authority to the procuring organisation or other
entity or official that brought the debarment petition to the Authority. The
notice shall:
(a) Specify if the supplier is temporarily suspended from
participating in public procurements pending the outcome of the debarment
action;
(b) Specifically describe the alleged impropriety in order to afford
the supplier a meaningful opportunity to present evidence rebutting the
allegation;
(c) Define the proposed scope of the debarment action (i.e. the legal
and judicial persons subject to the debarment action);
(d) Inform the supplier or bidder of its right to a hearing prior to
any decision to exclude.
(9)
In considering the scope of
the debarment action, the Authority should consider the following:
(a) The breath of power and control of the legal persons involved in
the activity;
(b) The actions or omissions by others associated with the supplier;
(c) The existence of effective standards of conduct in force in the
supplier’s organisation; and
(d) Whether the supplier itself brought the misconduct of an employee
to the attention of the procuring organisation, in which case the Authority
might narrow the scope of the debarment action to the employee involved but
find the supplier should not be debarred.
(10)
Within thirty days of receipt
of the notice, the supplier may submit, in person, in writing or through a
representative, information and arguments in opposition to the proposed
debarment. In its submission, the supplier may also request a hearing before
the Authority in which the supplier can submit documentary evidence, present
witnesses and confront any person the Authority presents.
(11)
The Authority must grant the
request for a hearing unless the supplier’s written submission opposing the
debarment is clearly arbitrary, capricious or erroneous.
(12)
The following procedures
shall apply to hearings under this Regulation:
(a) The supplier or bidder has the right to be represented by counsel;
(b) The hearing shall be recorded and all evidence presented shall be
preserved;
(c) Witnesses must testify under oath and may be cross-examined.
(13)
Within sixty days from the
date notice of the debarment action is sent to the supplier, the Authority
shall issue a final decision on the debarment action, either instituting the
debarment or dismissing the action. Before issuing its decision, the
Authority shall investigate the facts and weigh the response by the supplier
as to why it should not be prohibited from engaging in any public procurement
transaction for a period of time.
(14)
The Authority’s final
decision shall define the scope and period of debarment.
(15)
The period of debarment shall
not be less that one year, nor greater that five years.
(16)
The period of debarment shall
be at the discretion of the Authority but shall be reasonably related to the
cause of debarment and reasonably consistent with the Authority’s decision in
other debarment actions.
(17)
A debarment decision takes
effect upon issuance of the written decision, and stays in effect until
overturned on appeal by a court, or until the expiry date of the debarment
period.
(18)
The three-member committee
shall promptly notify its decision on debarment to the concerned supplier,
the Authority and the procuring organisation or other entity or official that
brought the petition for debarment.
(19)
Immediately following the
decision to debar a supplier, the Authority shall place on the debarred list
the names of all suppliers, that are
subject to the debarment. and the duration of their debarment
(20)
The effect of a debarment
action shall not be avoided by any scheme to circumvent the debarment.
(21)
The debarment shall also
apply to any “successor in interest” which means any entity that is
substantially similar to an entity that was previously debarred. A business entity that employs, or is
associated with, any partner, member, officer, director, responsible managing
officer, or responsible managing employee, or a business entity that was
previously debarred shall be presumed to be a successor-in-interest.
(22)
A supplier that has been
debarred may appeal against the debarment to the High Court within thirty
days of the decision to debar the supplier or contractor.
(23)
Debarment does not relieve
the supplier, of responsibility for existing obligations under a public
contract.
(24)
Reinstatement of the supplier
to participate in public procurements is not automatic after the term of
debarment. It is the supplier’s responsibility to reapply to the Authority
after the period of debarment is over with affirmative declarations that
future problems will not arise.
(25)
A supplier incurring a third
or subsequent debarment may be reinstated only if the decision to reinstate
is approved by the Cabinet.
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Required contents of record of
procurement proceedings
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156. (1) Information to be contained in the record of procurement
proceedings, in addition to the information listed in section 36(2) of the
Act, shall include:
(a) The names and titles of the members of the Contracts Committee, if
one has been constituted;
(b) The date and time of arrival of each
late bid;
(c) The price, or the basis for determining the price, and a summary
of the other principal terms and conditions of each bid and of the
procurement contract, where the procurement proceedings have resulted in a
procurement contract;
(d) A description of the application of any margin of preference pursuant
to Regulation 66(5)(d):
(e) Copies of any conflict of interest declarations and requests for
members of the Contracts Committees, employees or consultants of the
procuring organisation to be recused from the procurement proceedings
pursuant Regulation 142;
(f) Information on contingent fee arrangements, disclosed pursuant to
Regulation 145(2);
(g) In the procurement of services by means of request for proposals
for services, a statement of the grounds and circumstances on which the
procuring organisation relied to justify the selection procedure used;
(h) In domestic procurement proceedings in which the procuring
organisation limits participation on the basis of nationality, a statement of
the grounds and circumstances relied upon by the procuring organisation for
imposing the limitation;
(i) A summary of any modification of the pre‑qualification or bidding
documents;
(j)
If a successful bidder in
tendering proceedings fails to enter into a procurement contract, a statement
of the grounds therefore; and
(k) A summary of final
technical discussions in accordance with Regulation 103 (5).
(2) The record shall be in
accordance with the relevant GPPA‑Form depending on the procurement
proceeding (GPPA‑Form 001: Record of Open Tendering, GPPA‑Form 002:
Record of Restricted Tendering, GPPA‑Form 003: Record of
Single-Source Procurement, GPPA‑Form 004: Record of Request for
Quotations, or GPPA‑Form 005: Record for Request for Proposals,
and bidding documents shall be numbered and records identified as set forth
in the Instructions.
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Retention of documentation
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157. The
procuring organisation shall retain documents and records generated in
conducting procurement proceedings, including the record of the procurement
proceedings, for a period of five years, as specified in section 36(5) of the
Act.
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Disclosure
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158. In disclosure of the
record of the procurement proceedings, and in debriefing of bidders, and in
other contexts, except when ordered to do so by a competent court, and
subject to the conditions of such an order, the procuring organisation shall
not disclose bid evaluation reports, except for the summary information
referred to in section 36(2) of the Act.
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Availability
of record to oversight organs
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159. The record of the
procurement proceeding, as well as all other documents generated in planning
and conducting procurement proceedings, and implementing procurement
contracts, shall be made available for inspection upon demand by the
Authority, Auditor-General, and other oversight organs authorised under the
laws of The Gambia.
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Record keeping requirements –
Contracts Committee
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160. (1) Each Contracts Committee shall prepare an annual register of the
bids that have been issued for every year in serial numbers.
(2) Each Contracts Committee
shall open a special file for every procurement proceeding. In accordance
with section 36(1) of the Act, all the documentation relating to the
procurement proceeding, including the bid invitation, decision of award, work
take-over certificate and any other information on the method of the
contractor's completion of his commitment shall be kept in the file. A
contract file index shall be established for each contract file.
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Reporting requirements – Contracts Committee
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161. (1) The Contracts Committees
at each procuring organisation shall file a monthly report on status of
procurements by using GPPA‑Form 200: Monthly Report on Status of
Procurements.
(2) The Contracts Committees
at each procuring organisation shall file an annual report of single-source
procurements by using GPPA‑Form 201: Annual Report of Single-Source
Procurements.
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Review procedures
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162. (1) An application for review must be in writing and addressed to the
Accounting Officer or Chief Executive Officer of the procuring organisation.
(2)
A review application is filed
on a particular day when it is received by the Authority by close of business
on that day.
(3)
A review application may be filed by hand delivery, mail, or commercial carrier. A
review application may be filed via
facsimile or other electronic means, provided that the necessary equipment is
operational at the Authority.
(4) The review procedures provided for in the Act and in Schedule 3
of these Regulations shall be followed.
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Compensation for aggrieved
bidder
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163. Any damages payable
pursuant to the right of review under section 54 of the Act shall be limited
to the cost of preparing and submitting a bid, and shall not include loss of
profit, and may only be awarded to a bidder that would have been awarded the
contract but for the complained of action or omission.
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Recording of dispositions
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164. Any decision by the
procuring organisation, the Authority or by the court under section 54 of the
Act and the grounds and circumstances therefore shall be made part of the
record of the procurement proceedings.
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Notice of procurement contract
award
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165. (1) The price level referred to in section 35(1)
of the Act is hereby set at 350,000 dalasis.
(2) The notice referred to in
section 35(1) of the Act shall refer to:
(a)
the announcement of the procurement
published in the Official Gazette at the commencement of the procurement
proceedings pursuant to Regulation 43 or other provisions in these Regulations,
(b)
the subject matter of the procurement,
(c)
the name and address of the
successful bidder
(d)
the contract price; and
(e)
shall be written by using
GPPA‑Form 030: Notice of Award.
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Supervision and checking
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166.
All staff
involved in purchasing shall be subject to supervision. This is to ensure
that staff are performing to meet standards and in accordance with procedures
and guidelines in force.
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SCHEDULES
SCHEDULE
1 A - CONTENTS OF BIDDING DOCUMENTS
(Under
Regulation 45)
The bidding documents shall contain:
(a)
Instructions
for preparing bids, including:
(i)
Any descriptive
literature bidders are required to submit with their bids;
(ii)
Any requirement
that bidders provide samples, and the number and type of such samples;
(iii)
Any requirement
that bidders view samples to which goods must conform, and the circumstances
under which such requirements would be waived;
(iv)
Any requirement
that bidders submit a list of spare parts recommended by the manufacturer along
with the manufacturer’s stock number for each item, the quantity, unit price,
and an indication of any escalation of prices for spare parts after the
contractually guaranteed period for spare-parts prices;
(v)
Any requirement
that the bidder should state in the bid the country of origin of the goods, the
name of the manufacturer, the brand name, model and catalogue number;
(vi)
A list of the
specific documents that the bidder is required to submit, including a completed
Tender Form, a completed price schedule, a completed manufacturers
authorisation form (where required), an original bid security, an originally
signed copy of the conditions of contract evidencing acceptance of the
conditions of contract;
(vii)
The deadline
and place for submission of bids.
(viii)
In setting the
deadline for submission of bids, care should be taken to avoid the number
format for dates as this is interpreted differently around the world (for
example 4/5/2001 can mean 4 May 2001 in regions of Europe but mean April 5,
2001 in areas that follow the United
States convention on dates). To avoid any
ambiguity, bid submission deadlines should spell the month and specify local
(Banjul/The Gambia) time as shown in the following example: 7 July 2001 at
11.00 A.M. local Banjul
time.
(a)
Regarding the place
of submission of bids, care must be taken to ensure that an actual physical
location is identified. The bidding documents must not state a Post Office box
number as the address for submission of bids. The address specified in the
bidding documents must provide:
-
Name of the
Procuring Organisation;
-
Compound / Plot
Number and Street name;
-
District (if
appropriate);
-
Town / city;
-
The Gambia
(for international Bids); and
-
Telephone and
fax number of the Procuring Organisation.
The
bidding documents should also specify the room number (if applicable) where
bids are to be submitted or the physical location of the bid box in the
procuring organisation if this is to be the chosen method of bid submission
that the procuring organisation employs.
(b)
The criteria
and procedures, in compliance with Regulation 30, relative to
the evaluation of the qualifications of bidders and relative to the further
demonstration of qualifications pursuant to Regulation 69.
(c)
The
requirements as to documentary evidence or other information that must be
submitted by suppliers to demonstrate their qualifications.
(d)
The nature and required technical and quality
characteristics of the goods, works or
services to be procured, in compliance with section 26 of the Act, including,
but not limited to:
(i)
Technical
specifications, plans, drawings and designs as appropriate;
(ii)
The quantity of
the goods; any incidental services to be performed;
(iii)
The location
where the works is to be effected or the services are to be provided, and the
desired or required time, if any, when the goods are to be delivered, the works
is to be effected or the services are to be provided;
(iv)
Any warranty
and maintenance requirements;
(v)
The tests,
standards and methods to be employed to judge the conformity of goods or works
with technical specifications provided in bidding documents;
(vi)
Any requirement
that goods, materials, spare parts should be brand new and original.
(e)
The criteria to
be used by a procuring organisation in determining the successful bidder,
including any margin of preference and its manner of application, and any
criteria other than price to be used pursuant to Regulation 66 and the relative
weight of such criteria.
(f)
The terms and
conditions of the procurement contract, to the extent they are already known to
the procuring organisation, and the contract form, if any, to be signed by the
parties.
(g)
If alternatives
to the characteristics of the goods, works, services, contractual terms and
conditions or other requirements set forth in the bidding documents are
permitted, a statement to that effect, and a description of the manner in which
alternative bids are to be evaluated and compared.
(h)
If bidders are
permitted to submit bids for only a portion of the goods, works or services to
be procured, a description of the portion or portions for which bids may be
submitted.
(i)
The manner in
which the bid price is to be formulated and expressed, including a statement as
to whether the price is to cover elements other than the cost of the goods,
works or services themselves, such as any applicable transportation and
insurance charges, customs duties and taxes; whether the prices are fixed or
adjustable and the formula therefor.
(j)
The currency or currencies in which the bid price is
to be formulated and expressed. In respect of local bids, the price shall be
expressed in dalasis and any convertible currency for international bids.
(k)
The language in
which bids are to be prepared shall be in English.
(l)
Any
requirements of the procuring organisation with respect to the issuer and the
nature, form, amount and other principal terms and conditions of any bid
security to be provided by suppliers submitting bids, and any such requirements
for any security for the performance of the procurement contract to be provided
by the winning bidder that enters into the procurement contract, including
securities such as labour and materials bonds; when a bid security is required,
an indication that withdrawal or modification of the bid after the deadline for
submission of bids will result in forfeiture of the bid security amount.
(m)
A statement to
the effect that if a bidder wishes to withdraw its bid prior to the deadline
for the submission of bids he can do so without forfeiting its bid security.
(n)
The manner,
place and deadline for the submission of bids, in compliance with Regulations 51 to 53.
(o)
The means by
which suppliers may seek clarifications of the bidding documents, and a
statement as to whether the procuring organisation intends, at this stage, to
convene a meeting of suppliers.
(p)
The period of
time during which bids shall be valid, in compliance with Regulations 58 to 60.
(q)
The place, date
and time for the opening of bids, in accordance with Regulation 61
(r)
The procedures
to be followed for opening and examining bids.
(s)
The currency
that will be used for the purpose of evaluating and comparing bids pursuant to
Regulation 67 and either the
exchange rate that will be used for the conversion of bids into that currency
or a statement that the rate published by a specified financial institution
prevailing on a specified date will be used.
(t)
References to the Act, the Regulations and other Acts
and regulations directly pertinent to the procurement proceedings, provided,
however, that the omission of any such reference shall not constitute grounds
for review under section 54 of the Act or give rise to liability on the part of
the procuring organisation.
(u)
The name,
functional title and address of one or more officers or employees of the
procuring organisation who are authorised to communicate directly with and to
receive communications directly from bidders in connection with the procurement
proceedings, without the intervention of an intermediary.
(v)
Any commitments
such as the transfer of technology to be made by the supplier under the procurement
contract.
(w)
Notice of the right provided under section 54 of the
Act to seek review of an unlawful act or decision of, or procedure followed by,
the procuring organisation in relation to the procurement proceedings.
(x)
A statement to the effect that the procuring
organisation reserves the right to reject all bids pursuant to section 32(2)(a)
of the Act.
(y)
Any formalities
that will be required once a bid has been accepted for a procurement contract
to enter into force, including, where applicable, the execution of a written
procurement contract pursuant to Regulation 72 (5).
(z)
Any other
requirements established by the procuring organisation in compliance with the
Act and the procurement regulations relating to the preparation and submission
of bids and to other aspects of the procurement proceedings.
SCHEDULE 1 B – CONTENTS OF REQUESTS FOR
PROPOSALS
(Under
Regulation 90)
The Requests For Proposals shall contain:
(a)
The terms of
reference including the following information:
(i)
The objectives,
goals, and scope of the assignment and providing background information
(including a list of existing relevant studies and basic data) to facilitate
the consultants’ preparation of their proposals;
(ii)
Outline of any
transfer of knowledge or training that is required, including details of number
of staff to be trained;
(iii)
The services
and surveys necessary to carry out the assignment and the expected outputs (for
example, reports, data, maps, surveys etc.);
(iv)
The location
where the services are to be provided and the desired or required time, if any,
when the services are to be provided; and anticipated date on which the
selected bidder shall be expected to commence the assignment and complete it;
(v)
Details of the
services, facilities, equipment, and staff to be provided by the procuring
organisation;
(b)
An indication
that bidders may propose their own methodology and staffing, and may comment on
the terms of reference in their proposals;
(c)
Details of the
selection procedure to be followed, including:
(i)
A description
of the two-stage process, in the case of a quality and cost base selection
procedure;
(ii)
The details of
the financial evaluation, where applicable, including the relative weights for
quality and cost in accordance with Regulation 102;
(iii)
The minimum pass score for quality; and
(iv)
The details on
the public opening of financial proposals, where applicable;
(d)
An estimate of
the level of key staff inputs (in staff-months, man-days or number of pervious
relevant assignments) required of the consultants;
(e)
Requirement
that bidders identify the proposed key personnel that will carry out the
assignment and that bidders provide the curriculum vitae of each proposed key
person, which must be accurate, complete, and signed by an authorised official
of the bidder and the individual(s) proposed;
(f)
An indication
of minimum work experience, academic achievement, and so forth, expected of key
staff;
(g)
Standard
formats for the technical and, if applicable, financial proposals;
(h)
The place and
deadline for submission of proposals, and the manner in which proposals shall
be submitted, including the requirement that the technical proposals and price
proposals, if price proposals are submitted at the outset, be sealed and
submitted separately in a manner that shall ensure that the technical
evaluation is not influenced by price;
(i)
A request that
the invited firm:
(i)
Acknowledges
receipt of the request for proposals, and
(ii)
Informs the
procuring organisation whether or not it will be submitting a proposal;
(j)
The short list
of bidders being invited to submit proposals, and whether or not associations
between short-listed consultants are acceptable;
(k)
The period for
which the bidders’ proposals shall be held valid (normally ninety days from the
closing date of submission) and during which:
(i)
the bidders
shall undertake to maintain, without change, the proposed key staff, and shall
hold to both the rates and, in the case of quality and cost-based selection,
the total price proposed; and
(ii)
in case of
extension of the proposal validity period, the right of the consultants not to
maintain their proposal;
(l)
A statement
that the firm and any of its affiliates shall be disqualified from providing
downstream goods, works, or services under the project if, , such activities
would constitute a conflict of interest with the services provided under the
assignment;
(m)
A statement indicating –
(i)
whether or not
the consultant’s contract and personnel shall be tax-free, or not; and if not,
(ii)
what the likely
tax burden will be or where this information can be obtained; and a statement
requiring that the consultant should include in its financial proposal a
separate amount clearly identified, to cover taxes;
(n)
Phasing of the
assignment, if appropriate; and likelihood of follow-up assignments; and
(o)
Any conditions
for subcontracting part of the assignment.
SCHEDULE 2 -
PREFERENCES FOR EVALUATION
(Under Regulation 66 (5) (d))
1. Preference for
domestically manufactured goods
(1)
If the
procuring organisation intends in the evaluation of bids in tendering
proceedings, to grant a margin of preference for goods manufactured in The
Gambia, then the bidding documents shall clearly indicate the preference to be
granted to goods manufactured in The Gambia and the information required to
establish the eligibility of a bid for such preference. The nationality of the
manufacturer or supplier shall not be a condition for such eligibility. The
methods and stages set forth hereunder shall be followed in the evaluation and
comparison of bids.
(2)
For comparison,
responsive bids shall be classified in one of the following three groups:
(a)
Group A: bids
offering goods manufactured in The Gambia if the bidder establishes to the
satisfaction of the procuring organisation that
(i)
labour, raw
materials and components from within The Gambia will account for more than
thirty percent of the EX-Wworks price of the
product offered, and
(ii)
The production
facility in which those goods will be manufactured or assembled has been
engaged in manufacturing or assembling such goods at least since the time of
bid submission.
(b)
Group B: all
other bids offering goods from within The Gambia.
(c)
Group C: bids offering the goods from abroad and to be
directly imported.
(3)
(a) The EXW price quoted by a Group A
bidder shall include all duties and taxes paid or payable on the basic
materials or components purchased in the domestic market or imported.
(b)
The prices quoted by Group B bidders shall include all
duties and taxes on components and raw materials.
(c)
The price
quoted by Group A and B bidders shall exclude the sales and similar taxes on
the finished product.
(d)
The price
quoted by Group C bidders shall be on CIF or CIP border point or other
destination, exclusive of customs duties and other import taxes.
(4)
In the initial phase, all
evaluated bids in each group shall be compared to determine the lowest
evaluated bid in each. The lowest evaluated bids in each group shall then be
compared with each other, and,
(a) If, as a result of this
comparison, a bid from Group A or Group B is the lowest, it shall be selected for the award.
(b) If, as a result of the comparison, the lowest evaluated bid is a bid
from Group C, then it shall be further compared with the lowest evaluated bid
from Group A after adding to the evaluated bid price of the imported goods in
Group C bid, for the purpose of this further comparison only, an amount equal
to the higher of:
(i)
The amount of
duties and other related import charges which a non-exempt importer would have
to pay for the importation of the goods offered in such Group C bid; or
(ii)
Fifteen percent
of the CIF or CIP bid price of such goods if said duties and charges exceed
fifteen percent of such price, and
if the Group A bid in such further comparison is the lowest, it shall be
selected for the award; if not, the lowest evaluated bid from Group C, as
determined from the comparison under paragraph (a) shall be selected.
(5)
In the case of single
responsibility, supply and installation or turnkey contracts in which a number
of discrete items of equipment is grouped into one contract package (and if
customs duties are excluded from the bid prices, and the price of imported
goods quoted is on a CIF or CIP basis),
(a)
the preference margin shall not
be applied to the whole package, but only to the locally-manufactured equipment
within the package.
(b)
Equipment offered from abroad
shall be quoted CIF or CIP and equipment offered locally EX-Works (excluding
sales tax and similar taxes); all other components, such as design, works,
installation, and supervision, shall be quoted separately.
(c)
Bids should not be classified
into groups A, B, or C.
(d)
In the comparison of bids, only
the CIF or CIP price in each bid of the equipment offered from outside The
Gambia shall be increased by the applicable duty and other taxes payable by a
non-exempt importer or fifteen percent whichever is less.
(e)
If duties vary from item to
item within a package, the appropriate tariff for each piece of equipment shall
apply. No preference shall be applied for any associated services or works
included in the package.
2. Preference for
domestic contractors
(1)
For contracts
for works to be awarded on the basis of tendering, procuring organisations may
grant a margin of preference of 7.5 percent to domestic contractors subject to
the following provisions:
(a)
Contractors
applying for a margin of preference shall be required to provide, as part of
the data for qualification at the pre-qualification stage and/or at the bidding
stage, such information, including details of ownership, as shall be required
to determine whether a particular contractor or group of contractors qualifies
for a domestic preference. The bidding documents shall clearly indicate the
preference and the method that will be followed in the evaluation and
comparison of bids to give effect to such preference.
(b)
After bids have
been received and reviewed by the procuring organisation, responsive bids shall
be classified into the following groups:
(i)
Group A: bids
offered by domestic contractors eligible for the preference;
(ii)
Group B: bids
offered by other contractors.
(2)
For the purpose
of evaluation and comparison of bids, an amount equal to 7.5 percent of
the bid amount shall be added to bids received from contractors in
Group B.
SCHEDULE 3 – REVIEW
PROCEDURES
(Under
Regulation 162(4))
1. Required contents of application for review
(1)
An application for review under Part IX of the Act
shall be in writing and signed by the applicant or its representative and
shall:
(a)
Include the
name, address, and telephone and facsimile numbers of the applicant;
(b)
Identify the
procuring organisation and the solicitation and/or contract number;
(c)
Set forth a
detailed statement of the legal and factual grounds of the application for
review including copies of relevant documents;
(d)
Set forth all
information establishing that the applicant is, for the purpose of filing an
application for review, an actual or prospective bidder whose direct economic
interest would be affected by the award of a contract or by the failure to
award a contract;
(e)
Set forth all
information establishing the timeliness of the application for review;
(f)
Specifically
request a ruling and state the form of relief requested;
(g)
In addition, an application for review may request:
(i)
special
measures for handling proprietary commercial or other confidential information;
(ii)
specific
documents, explaining the relevancy of the documents to the grounds underlying
the application for review; and
(iii)
a hearing,
explaining the reasons that a hearing is needed to resolve the application for
review.
(2)
In the event
that the application for review is filed in the first instance with the
Authority, the applicant shall furnish a complete copy of the application for
review, including all attachments, to the procuring organisation not later than
2 working days after the application for review is filed.
(3)
If the
applicant believes that the application for review contains certain
confidential information that should be withheld from the public, a statement
advising of this fact must be on the front page of the submission, and on each
page where the information appears. The applicant must file a redacted copy of
the application for review which omits the information with the procuring organisation
within 2working days after the after the application for review is filed..
2. Time Periods
and Decisions on Applications for Review
(1)
An application
for review based upon alleged improprieties in a solicitation which are
apparent prior to bid opening shall be filed prior to bid opening.
(2)
Applications
for review other than those covered by sub-regulation (1) shall be filed not later than fourteen working days
after the basis of application for review is known or should have been known,
whichever is earlier.
(3)
If a timely
application for review was previously filed, any subsequent application for
review filed within seven working days of actual or constructive knowledge of
initial adverse action by the procuring organisation shall be considered.
(4)
The procuring
organisation shall, in accordance with 55 (3) of the Act, render a decision within ten working days of the
submission of the application for review
3. Review by the Authority
An application for review may be submitted to the
Authority, for disposition in accordance with section 55(4) of the Act, 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
sub-regulation (3) of this Schedule;
(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.
4. Notice of
application for review
(1)
The procuring
organisation shall immediately give notice of the application for review to all
bidders with the nature of the allegations set forth in the application for
review.
(2)
If an
application for review is filed with the Authority, the Authority shall notify
the procuring organisation by telephone, fax or electronic mail within 1 day
after the filing of an application and, unless the application for review is
dismissed, shall promptly send a written confirmation to the procuring
organisation and an acknowledgement to the applicant.
5. Dismissal of
Application For Review
An application for review may be dismissed for:
(a)
Failure to
comply with any of the requirements of this Schedule except for the items in
sub-regulation (1)(g) and sub-regulation (2) of regulation 1 of this Schedule where the procuring organisation has
actual knowledge of the basis of the application for review, or the procuring
organisation was not prejudiced by the applicant’s non-compliance.
(b)
Setting forth
only allegations that do not state a valid basis for an application for review,
or that do not set forth a detailed legal and factual statement,
(c)
Having been
filed in an untimely manner;
(d)
Not being
properly before the procuring organisation or Authority;
(e)
Concerning
contract administration rather than contract award;
(f)
Challenging an
affirmative determination of qualifications;
6. Comments by
procuring organisation on application for review by the Authority
(1)
Where an
application is filed with the Authority, the procuring organisation, in
consultation with the Contracts Committee, shall provide comments on the
application within seven working days after being informed, by phone or
otherwise, of the filing of the application for review with the Authority.
(2) The comments of the procuring organisation shall
include a statement of the relevant facts, including a best estimate of the
contract value, an assessment of the allegations in the application for review
memorandum of law, and a list of all documents relevant to the procurement proceedings.
(3)
The procuring
organisation may, if it feels that there are grounds for so doing, file a
request for dismissal before filing a report required under sub-regulation (1).
(4)
Subject to
special measures issued in the application for review, the procuring
organisation shall simultaneously furnish a copy of its comments on the
application for review to the applicant, and any interveners within 1 day of
the submission of its comments to the Authority.
(5)
The applicant
shall be given an opportunity to comment on the comments of the procuring
organisation on the application for review submitted to the Authority.
(6)
The applicant
may submit to the Authority comments on the procuring organisation’s comments
on the application for review within two working days after receipt by the
applicant of the procuring organisation’s comments, and also provide the
procuring organisation and other participating parties with copies of the
applicant’s comments.
7. Disclosure by
procuring organisation
(1)
The procuring
organisation shall promptly make available to the Authority any information and
documentation that the Authority may request, including but limited to:
(a)
The bid
submitted by the applicant;
(b)
The bid of the
bidder that is being considered for award, or whose bid or proposal is being
reviewed;
(c)
All
qualification assessment and bid evaluation documents;
(d)
The
solicitation, including the specifications;
(e)
The abstract of
bids or offers;
(f)
Requests for
clarification of the bidding documents and responses thereto; and
(g)
Any other
relevant documents.
In appropriate cases, the procuring organisation may
request that the applicant produce relevant documents, or portions of
documents, that are not in the procuring organisation’s possession.
(2)
Upon receipt of
the procuring organisation’s comments, the applicant may request the procuring
organisation to provide documents, at the applicant’s expense, required by the
applicant effectively to prosecute its application for review.
(3)
Where, under a
special measure to protect confidential information pursuant to sub-regulation (1)(g)(i) of regulation 1 of this Schedule, or pursuant to the obligation of
the procuring organisation to protect the confidential information of competing
bidders, documents are withheld from the applicant in accordance with this
part, the procuring organisation shall provide documents adequate to inform the
applicant of the basis of the procuring organisation's position.
(4)
The procuring
organisation shall respond promptly to a request pursuant to sub-regulation (2) and shall provide a list of the documents that the
procuring organisation has released to the applicant, and of the documents that
the procuring organisation intends to withhold from the applicant and the
reasons for the proposed withholding. A copy of that list shall be provided
promptly to the applicant. Any objection to the scope of the procuring
organisation's proposed disclosure or nondisclosure of documents must be filed
within two working days of receipt of the list.
(5)
Upon the
request of the applicant, the Authority shall decide whether the procuring
organisation must provide any withheld documents, or portions of documents, and
whether this should be done under a special measure to protect confidentiality.
(6)
The Authority
may request or permit the submission of additional statements by the parties
and by other persons not participating in the application for review as may be
necessary for the fair resolution of the application for review.
8. Expeditious
delivery of communications
All communications related to the application for review shall be sent by means reasonably calculated to effect expeditious delivery.
9. Special
measures for confidentiality
(1)
At the request
of a party or on its own initiative, the Authority may apply special measures
controlling the treatment of proprietary, confidential, or other information
the release of which could result in a competitive advantage to one or more
firms. It is the responsibility of applicant to request that a special measure
be applied and to apply in a timely fashion for access to information in a
controlled manner under the special measures.
(2)
If no special
measures have been applied, the procuring organisation may withhold from the
parties those portions of its report which would ordinarily be subject to
special measures. The Authority shall review in camera all information
not released to the parties.
(3)
Any violation
of the terms of a special measure may result in the imposition of such
sanctions as the Authority deems appropriate, including referral to appropriate
professional disciplinary bodies.
10. Hearings
(1)
At the request
of a party or on its own initiative, the Authority may conduct a hearing in
connection with an application for review.
(2)
Hearings
generally will be conducted as soon as practicable after receipt by the parties
of the procuring organisation comments and relevant documents.
(3)
All parties
participating in the application for review shall be invited to attend the
hearing. The Authority may restrict attendance during all or part of the
proceeding.
(4)
Hearings shall
normally be recorded and/or transcribed. If a recording and/or transcript is
made, any party may obtain copies at its own expense.
11. Remedies
In determining the appropriate remedies pursuant to section 55(6) of the Act, the Authority may consider all circumstances surrounding the procurement or proposed procurement including the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the extent of performance, the cost to the Government, the urgency of the procurement, and the impact of the remedies on the procuring organisation's mission.
12. Notice to the
Authority of action taken
The procuring organisation shall promptly notify the Authority of the action taken by the procuring organisation in response to the decision of the Authority.
13. Distribution of
decisions
(1)
Unless it
contains information subject to special measures, a copy of a decision by the
Authority shall be provided to the applicant, any interveners, and the head of
the procuring organisation. A copy of a decision containing information subject
to special measures shall be provided only to the procuring organisation and to
individuals granted access to the information pursuant to the special measures.
A public version omitting the information subject to special measures shall be
prepared wherever possible.
(2)
Decisions on
applications for review shall be made available to the parties by the
Authority.
DATED THIS 30th
DAY OF JUNE 2003
HABIB A.O. JENG
DIRECTOR GENERAL
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