Public Procurement and Disposal of Assets Act, 2018

Section 2: Repeal and Savings Any provisions of existing legislation which . are governed by this Act are ....I hereby repealed;·provided that: • (a) all actions taken, proceedings, orders and regulations made or issued there urider, including .the Interim Pubic Procurement and Disposal · Regulations, 2006 .except to the extent they are repealed or amended or __ ,. otherwise inconsistent with the . provisions of this . Act, I shall remain m j \ force and effect; • ' 'I (b) any pending Procurement Process that has been formally initiated in j accordance . with .the Interim Public . Procurement and Disposal -\ __; Regulations, 2006 priorto the commencement of this Act shall co~tinue . to be conducted, until such Process culminates in au Award ·or 1s J cancelled, in accordance with the provisions of this Act. j j \ _,I:;:, \ ..../ . ) - 1- - _,J 'I .. J

Section 3: Purpose The purpose of this Act is to provide for the legal framework establishing and governing an open, transparent, accountable, and efficient system of Public Prpcurement and Disposal of Assets for all Government Institutions and related entities.

Section 4: Authority and Application (l)This Act is drafted--in accordance with the provisions of Articles 52 and 180, • read together with the provisions of Schedule (A), paragraphs (34), (38), (39), (41), and (47), and the provisions of Schedule (C), paragraph (17) , of the. Transhional Constitution of the Republic of South Sudan, 20 11 (as amended 2015 and 2018), and the provisions of Sections _12(1) and 34_of the Public FitJ.ancial Management and Accountability Act, 2011 , which grants ( the National Government the authority to manage the budgeting and • expenditure of Public Funds, and incompliance with the East . African Community (EAC) Public Procurement Laws and i.ntemational best.,:, practices. (2) This Act shall apply to Public Procurement ai.--id disposal of assets by Government Institutions and entities at all levels of government in South .Sudan for which Public Funds are budgeted and utilized, with respect to: ( a) Procurement Planning and processing, (b) I:riventory-and Assets Management, (c) Disposal of Assets, and ( d) Contract management . . (3)This Act ~hall not apply ih the following circumstances: . (a) when a Government Institution provides Supplies, Works or Services to •another Govern_rnent Institution and entities; (b) when professional services are governed by statutory remuneration rules and regµlations; (c) recruitment of iL--idividuals as employees of a Government Institution in accordance • with the law ai.7.d administrative procedures of t.1ie Government or the institution; ( d) Procurement of shares, securities, bonds, equities or other financial instruments, but shall not exclude the Procurement of brokerage firms . . - 2- (4) A Procuring Entity operatin.g under compet1tlve market C<?nditions may apply to the Authority for permission to use alternative Procurement systems. ...,,.... (5) Where any prov1s10n of this Act conflicts with any Legis-lation of the • J Republic •of South Sudan, this Act shall prevail in matters of public procurement and disposal of assets. --- • (6) Coil.14:iGt with International Agreements: where any provision of this Act conflicts with any obligations of the ... ..... \ Republic of South Sudan arising from a treaty; agreement or other ·· --✓• conventions ratified by South Sudan of which South Sudan is . a party, the terms of the treaty or·agreement shall prevail. • • ( (7) Where the Republic of South Sudan is required under the terms of any treaty or agreement to which it is a party, to contribt1te from its rysources in any . fortn to any procurement . activities within . South Sudan, either in part or wholly, jointly or separately, procurement through such contributions shall be: · • 'I (a) in discrete activities where possible; (b) .subject to the applicable provisions .of this Act; (c) a treaty or agreement referred . to in paragraph (a) which contains provisions favourable to citizens and local contractors,. and full advaij_tage . - - shall be taken of the_se in the _interest of promoting . domestic capacity development; _.../ i - · (8) Where procurement to which paragraph (7)(a) favours an_ external beneficiary: (a) the procurement through contributions made by South Sudan, shail be under taken rn South Sudan through contractors re~stered in South Sudan,and I _) (b) all relevant insurances shall be placed with compames reg~stered in South Sudan and goods shall be transpCJrted in carriages registered in South . Sudan. I .J -3- ·::- : · Se€tion 5; lnte:rpre,ta.tions 17. this Act, unless the context otherwise requires: "Accounting Officer" means a person designated as part of his/her official duties in accordance with Public Financial Management and Accountability Act 20 n; "Asset" means land, property and buildings, capital assets that have monetary value arid are shown on the balance sheets • of Government Institutions, current assets, cash, accounts receivable, fixed assets, equipment, both fixed and moveable, and Supplies, including inventory and stock; '·Authority'' means the South Sudan Public Procurement and Disposal of Assets Authority established under this ( Act; "Award" means •a decision taken by •a Pu,blic Procurement Committee to mandate a Successful Bidder to enter ;: into a Contract with the concerned authority . . , · "Board" means the Board of the Authority; "Bid'~ means an offer to . provide •or to acquire Supplies, . Works~ or Services, or any combination, and shall . · . include ·_Pre-:Qualification submissions . . and applications, as well as quotatfons and proposals ii--i response .to requests for quotations and proposals, respectively; l "Bid documents" means any advertisement by which eligible Providers •or Contractors are invited to submit Bids to provide or acquire Supplies, Works, or Services, or any combipation; "Bidder " . means a physical person or legal entity that has validly submitted a Bid in response to a· Bid Notice, or an application to pre-qualify or an expression of interest, if applicable; "Bxdding Documents" means tender or solicitation documents, or any other documents issued by the· Procuring Entity, including ' - 1.. • -4- . conditions of the given Procurement Process or Pre- Qualification proceedings, including requests for •. ! quotations and proposals; "Competent Authority"means a Government Institution with powers of n provisions to implement a recomm~_1:1dation made under this Act; I "C0iJ.sultancy Services" means Services of an intellectual or advisory nature provided by a practitioner who is skilled and qualified in a particular field or profession, or a furn consisting of such practitioners; ''Contract" . means an agreement between a Procuring Entity and a Provider or Contractor at the end of a · Procurem ent Process, on the basis of an Award; '( ' "Contractor" means a Provider or supplier of Works, or Services, or any combination; "Corrupt Practice" means soliciting, offering, giving, receiving, anything of value .in order to in.fluerice the action . of a pt.iblic . official in a Public Procurement and Disposal of Assets process or in the execution of a Contract; ~ • "Defence and National Security Insti~tio~s" includes the South Sudan Organis~d Forces, . the National Security Service and National Security _) Committee as provided. in the Transitional · Constitution of the Republic of South Sudan, 20:11 ( amended 2018); "Disposal" means the discard of an Asset through sale or. other procedure m accordance with this Act, of obsolete, unserviceable or surplus Assets; "Disposal Process" mear1s the . successive stages in the Disposal cycle, __J I including planning, choice of procedure, measures to -\ ·•solicit Bids, examination and evaluation of those Bids _; and Award; J ~'e -:-Procurement" means the process of procurement through electronic medium such as the internet or other ,info.rmation and communication technologies; • ' ) -5- ) '"Emergency" means circumstances which are urgent, unforeseeable and not caused by dilatory conduct of a Government Institution; ~'Foreign Provider" means a Provider or Contractor whose business is not I registered in South Sudan; l "Fraudulent Practice" includes a misrepresentation of . facts in order to influence a Procurement or Disposal Process or the execution of a Contract to the detriment of the Government Institution, and includes collusive practices among Bidders, prior to or after Bid submission, designed to establish Bid prices at artificial non~competitive levels and to deprive the Government Institutions of the benefits of free and open competition; "Goods" means Supplies or merchandise; "Government Institution" means a public body at any government level in South Sudan, including Public Corporations; "Industry Standards" mean those standards defined and codified by internationally recognized professional associations and bodies iu their respective fields and include besf practices; "Minister" means the •national minister responsible for finance ·and economic planning; ."Ministry" means the national ministry responsible for finance and economic planning; ''National Institution" means a Government Institution of the National Government ·in South Sudan; C "National Provider" means a Provider or Contractor registered in South Sudan and owns majority shares by South Sudanese; "Pre-Qualification" · means identification of potential bidders prior to solicitation, . Providers or Contractors that are qualified, and shall include invitations for expressions · • of interest from Providers of Consultancy Services in accordance with of this Act; l ''Procurement" means the acquisition or purchase, rental, lease, hire- purchase, license, tenancy, franchise, concession, - 6- (4) A Procuring Entity operating under competitive m::irket conditions rnay apply to the Authority for permission to use alternative Procurement systems. (5) Where any provision of this Act conflicts with any Legislation of the Republic •of South Sudan, this Act shall prevail i11 matters of public procurement and disposal of assets. (6) Conflict with International Agreements: where any provision of this Act conflicts with any obli,gations ·of the Republic of South Sudan - arisU}g from a treaty, agreement or other conventions ratified by South Sudan of which South Sudan' is a party, the terms of the treaty or agreement shall prevail. • • (7) Where the Republic of South Sudan is required under the terms of any treaty or agreement to which it is a party, to contrib11te from its resources in any • . form to any procurement . activities .within South Sudan, either in part or wholly, jointly or separately, procurement through such contributions shall be: (a) in discrete activities.where possible; (b) subject to the applicable.provisions of this Act; (c) a treaty or agreement referred to in paragraph (a) which contains provisions favourable to citizens and 1o·ca1 contractors, and full advantage _• · shall be taken of ·these in the . interest . of promoting. d<?mestic capacity j development; ' (8) Where procurement to which paragraph (7)(a) favours an extemai . __ _/ ) beneficiary: (a) the procurement through contributions made by South Sudan, shall be _.) I under taken m South Sudan through contractors registered in South Sudan,and J (b) all relevant insurances shall be placed with compames registered_in South Sudan and goods shall be transported in carriages registered in •S~mth . _· . Sudan. . · · · .. -3- •• :· · ~ . •• ..•. .• • . .·:· . - ) l _) '

Section 5: Interp:n~t.ati:ons 'i In t..h.is Act, unless the context otherwise requires: "Accounting Officer" means a person designated as part of his/her official duties in accordance with Public •Financial Management and Accountability.Act 201 1; "Asset" means land, property and buildings, capital assets that have monetary value arid are shown on the balance sheets of Government Institutions, current assets, cash, accounts receivable, fixed assets, equipment, both fixed and moveable, and Supplies, including inventory and stock; means the South Sudan Public Procurement and Disposal of Assets Authority established under this ( Act; ''Award" means a decision taken by •a Public Procurement Committee to mandate a Successful Bidder to enter r into a Contract with the concerned auth01ity. "Board" means t.he Board of the Authority; "Bid" means an offer to provide -or to acquire Supplies, Works, or Services, or any combination, and shall _ include - Pre-:Qualification submissions and applications, as well as quotations and proposals in response to requests for quotations and proposals, respectively; "Bid documents" means any advertisement by which eligible Providers or Contractors are invited to -submit Bids to provide or acquire Supplies, Works, or Services, or any combination; means a physical person or legal entity that has validly submitted a Bid in response to a Bid Notice, or an application to pre-qualify or an expression of interest, if applicable; - "Biddin2' .. 10 Documents" . . means tender or solicitation documents, or any other ·documents issued by the - Procuring Entity, including :::i11y :::imennmP,nt~ thereto, th~t ~et out the term~ ~rnrl - 4- •. conditions of the given Procurement Process or Pre- Qualification proceedings, including requests for quotations and proposals; "Competent Authority" means a Government Institution with powers of ,,---.... provisions to implement a recomme}ldation made • '· •I under this Act; n "Consultancy Services" means Services of an intellectual or advisory nature provided by a practitioner who is skilled and qualified in a particular field or profession, or a :fum consisting of such practitioners; .means an agreement between a Procuring Entity and a Provider or Contractor at the end of a · Procurement Process, on the basis of an Award; ( "Contractor" means a Provider or supplier of Works~ or Services, or any combination; • "Corrupt Practice" means soliciting, offering, giving, receiving, anytrung of value in order to influence t4e action__ of a public . official in a Public Procurement and Disposal of Assets process or in the execution of ai. Contract; "Defence and·N~ti'ona-l Security Institutio~.s" includes the South Sud.an Organised Forces, . t.½.e . National Security Service and National Security _) Committee as provided in the Transitional · Constitµtion of the Republic of South Sudan, 2011 ( amended 2018); "Disposal" means the discard of an Asset through sale or other _) procedure in accorda...r,J.ce with this Act, of obsolete, unserviceable or surplus Assets; "Disposal Process" means the . successive stages in the pisposai cycle, J \ . including planning, choice of procedu;re, measures to ·•solicit Bids, examination and evaluation of those Bids J and Award· ' "e -,-Procurement" means the process of procurement • through I electro.rric . • medium such as the internet or other information and cominunication technologies; .- . .. _j -5- ) _j' "E mergency - ,, means circumstances which are urgent, unforeseeable and not caused by dilatory conduct of a Government Institution; "Foreign Provider" means a Provider or Contractor whose business is not registered in South Sudan; "Fraudulent Practice" includes a misrepresentation of facts in order to influence a Procurement or Disposal Process or the execution of a Contract to the detriment of the Government Institution, and includes collusive practices among Bidders, prior to or after Bid submission, -designed to establish Bid prices at artificial non:-competitive levels and to deprive the Government Institutions of the benefits of free and open competition; 6'Goods" means Supplies or merchlli.1dise; ( "Government Institution" means a public body at any government level in South Sudan, including Public Corporations; "Industry Standards" mean those standards defined and codified by internationally recognized professional associations -and bodies io. their respective fields and include best practices; "Minister." means the national minister responsible for finance and economic planning; -''Ministry" •means _the national -ministry responsible for finance and economic planning; "National Institution" - means a Government Institution of the National _, Government in South Sudan; ('-' ' 6 'National Provider" means a Provider or Contractor registered in South Sudan and owns majority shares by South Sudanese; "Pre-Qualification" · means identification ()f potential _bidders prior to solicitation, _Providers or Contractors that are qualified, and shall include invitations for expressions - of interest from Providers of Consultancy Services in accordance with of this Act; . "Procurement" means the acquisition or purchase, rental, lease, hire- purchase, license, tenancy, franchise, concession, -6- public private partnership or any other contractual means, of any type of Supplies, Works or Services by, or on behalf of, a Government Institution; .,,......__\ ! "ProciJremerit Com.P.J.ittee" means the committee provide& for under this Act; "Procurement Process"· means the successive stages in the Procurement . cycle including planning, choice of procedure, measures- to solicit Bids, examination and evaluation of those Bids~ Award, execution of Contract, and co:ntract management; "Procurement Unit" means a •unit established by a Procuring Entity m accordance with this Act; I \ "Procuring Entity" means a Government Institution designated to engage in Procurement in accordance with this Act; "Provider" means • a natural person or legal entity that. is a potential party or any party to the • Procurement . Process with the Procuring Entity; "Public Corporation" means a Public ·enterprise or Corpor#Lion established . by th.e Act of the Assembly; and includes a l egal entirJ or business that is the b_ene:ficiary of a transfer or subvention of any Public Funds; ''Public Fu11ds" . means money or •:financial Assets ~ the custody .o r ...J under the control of any . spending agency in accordance with the Public Financial l\1an~gement and Accountability Act, 2011; . __ ,1 - "Security"(caution money) -means an amount of money or . declaration to secure the fulfilment of any obligation of a Bidder or Contractor, which may take the form of a .financial deposit, bank draft, guarantee, surety bond : or __ ) irrevocable letter of credit and may include advance, Bid or perfom1arice security; "Services" means an object of a Procurement Process other· than Works ari.d Supplies, and includes prpfessional, non- .profe·ssional· and commercial types o(services. as well as Supplies and Works which are incidental to, but n.ot . exceeding the value of, those servic_es; • .• \ .J -7- \ J ,·' _) r.. Spedfi:cati0:ns" n1eans the description of the subject matter of a Procurement or Disposal Process in accordance with Industry Standards, adopted and approved by the Directorate after consultation with the National Bureau of Standards, or other appropriate trade associations and professions, the use of which shall be mandatory in all Bidding Documents; - "Standstill Period" means the period provided in this Act, during which the Procuring Entity cannot accept the Successful Bid and during which Bidders can challenge, the decision so notified; ''State" means one of the states of South Sudan as provided ii.7. the Transitional Constitution of the Republic of South Sudan, 2011 (amended 2018); ( "State and Local Institution" means a Government Institution at" the State or Local Government Level in South Sudan; · ''Successful Bid'~ means the Bid that best satisfies the evaluation criteria provided in the Bidding Documents, as provided in this Act; • ''Supplies" 1 means · goods, raw materials, •products, equipment or objects of any kind and description in solid, liquid or gaseous form, • or in the form • of electricity, or • intellectual and proprietary rights, as well as Works or Services incidental to the provision of those Supplies where the value of the works or services does not exceed-the value of the Supplies; l ''lJser Department" means any directorate, department, division, branch or section of a Government Institution, including any project unit working under the authority of the Government Institution, which initiates Procurement . and Disposal •requirements and is the end user of the •object of the Procurement or Disposal Process; "Works" • means any work associated with the construction~ _reconstruction, demolition, repair, or renovation of a building or structure, on the surface -or underground, on and underwater, and includes the preparation, _excavation, . erection, assembly, instailation, testing •. :: ...... •. and cornrmss10ning of any plant, equipment or materials, decoration and finishing, turnkey projects, build own and operate projects and transfer projects or any arrangement of this nature, or any other form of private and public partnerships or jomt developrp;en.t activities, all . or any • of which . may include manaoement 0 , maintenance . · ' ° commissioarno testino, · :. t:> and training; as well as Supplies or Services incidental to those works where· the value of\ the incidental Supplies ·or Services does not exceed iihe value of the works. CHAPTERll FUNCTIONS AND POWERS OF THE AUTHORITY

Section 6: Estahlishmeilt of. the Authority There is established a "South Sudan Public Procurement ancf _Dis_p osal of Assets Authority'·' which 1s referred to as the "Authority'.~ in this Act . . I .

Section 7: Ol>jectives ofthe Authority The objectives of the Authority . . are to: ) (a) •. regulate·and monitor Public Procurement arid Disposal of Assets in South Sudan and to advise Government Institutions on issues relating to Procurement; j (b) ensure the application of fair, competitive, transparent, accountable, non-discriminatory arid value for . money Public . I ...) Procuremeritand Disposal of Assets·staridard$ and practices~ ) (c) harmonise the Pubiic Procurement and Disposal of Assets policies, systems and practices at all levels of government in South Sudan, (d) ensure· that Procuring Entities are staffed at appropriate levels in \ _j order to efficiently and effectively manage Procureirlent activities, :::i11d -9 - •.•· · ·- .: . .. ' j ) (e) ensure that procurement contracts are granted to qualified business won1en, youth and persons vv'ith disabilities. . 'I

Section 8: Functions of the Authority (l}The functions .of the Authority are to: (a) formulate policies and standards on Public Procurement and Disposal of Assets and to ensure complianc.e by all parties to Procurement and Disposal Processes; (b) provide advisory services to · Government fustitutions on Public Procurement and Disposal of Assets policies, principles and practices; (c) monitor and report on the performance of the Public Procurement and Disposal of Assets systems in South Sudai7. and advise on desirable chancres· 0 ' (d) monitor classified procurement information, including that of specific ( items of security organs and make recommendations to the Council · of . Ministers; . • • (e) adopt international training standards in Public Procurement and Disposal of Ass'ets in consultation with Competent Authorities; _(f) prepare, update and issue authorised versious of staB.dardised Bidding Documents, procedural forms and any other attendant documents to -Procuring Entities; (g) ensure that any deviation from the use .of the standardised Bidding Documents, procedural forms and any other required . documents 1s effected only after the prior; written approval .of the Authority; (h) issue of the regulations made under this Act; . (i) . issue guidelines und~r this Act; G) organize and maintain a system for the publication of data on Public . Procurement and Disposal of Assets opportunities~ Awards and any other l information of public interest as may be determined by the Authority; (k) maintain aregister of Providers of Supplies, Works, and Services; (1) condu~t periodic review and inspections of the records and proceedings of the Procuring Entities -to ensure full and correct application of this Act; (m)adopt, adapt and update common Specifications standards, the use of which shall be mandatory for all Procuring Entities; (n) detemrine, deveiop, introduce, maintain and-up.date related system-wide data-bf.1ses and tecl1..nology; ( o) deveiop policies and maintain an operational plan .on capacity building for procurement officers in a~l Procuring Entities, bot:4 for institutional and human resource development; ;:, (p) agree and advise on a list, which shall be reviewed annually, of Works, Services and Supplies in common use by more than one Prbcmring Entity which may be subject to common Procurement or Disposal Processes; ) (q) establish and maintain _ii,stitutional linkages with entities w ith professional and related interest in public procurement and disposal; (r) undertake procurement and disposal research and surveys nationally and internationally; (s) undertake any activity that may be necessary for the execution of its functions; (t) receive and address complaints from a Bidder; (u) administer and enforce compliance with all the prov1s10ns and · the regulations made under this Actt and (v) Coordinate t.he management and deployment of procurement officers in: Procuring Entities, in accordance ·with the Public Financial Management and Accountability Act, 2011 . • ( (2) Each administrative· unit of the Authority, in accordance with applicable law, shall act independently to ensure separation of duties.

Section 9: Powers of the Authority (a) In the exercise of its regulatory functions, the Authority shall have the power to: '.(b) -require any information, documents, records andreports in respect of any aspect of a Public Procurement and Disposal of Assets Process Where a breac~ wrongdoing, mismanagement or collusion has ·be~n -alleged, _ reported or proven against any Procuring Entity or Provider;. (c) summon witnesses, call for the production of books of accounts, p lans, .. documents, examine witnesses and parties concerned on oath; ( d.) commission or undertake investigations and institute Publli.c Procurement and Disposal of Assets, ·Contract and performance reviews~ _ (e) cause to be inspected any Public Procurement or Disposal of Assets transaction to ensure compliance with an Award by a Procuring Entity;_ J (±) act upon complaints by Procuring Entities, Providers and any other entity \ • or person in respect of any party to a Procurement or Disposal activity in J accordance with the procedure set out in this Act; • • (g) establish an office in all States in order to assist each State Government and Local Government to establish a sound Public Procurement and Disposal of Assets system-to ~nsure compliance· with the principles -and provisions of this Act; • • J - 11 - J J ' I ( a) other powers.as provided in this Act.

Section 10: Recommendations of the Authority • (1) The Authority may recommend to a competent authority, where there are persistent or serious breaches of this Act or regulations made under this Act: (a) the suspension of officers concerned with the Procurement or Disposal process; .(b) the replacement of . a member of a Procurement Committee .or Procur~ment Unit, as the case may be; (c) the disciplining of the Accounting Officer; or any officer involved in the Procurement or Disposal Process; or (d) the temporary transfer of the Procurement and Disposal function of a Procuring Entity to an independent procurement agency or another Pro.cunng Entity. ( • ' • I (2) A competent authority shall respond in writing to the Authority;s recommendations under subsection (1) _within a period prescribed by regulations made U11der this Act. ·( 3) Where the competent authority rejects the Authority's recommendations under subsect1on (1), the Authority shall: . • • (a) communicate its recommendations and all related supporting documentation to the relevant law enforcement and oversight agencies for their action; and (b) request for any •other appropriate action within the power of the competent authority. (4) The competent authority shall respond in wriling lo" the Authority's ( recommendations within a period prescribed by the regulations made under •this Act. (5) The Authbrity may make recommendations on periodic review of this Act arid for the Minister to issue re.vised thresholds, under conditicms prescribed by regulations made under this Act. • (6) The Authority shall, mits Annual Performance Evaluation Report, include: (a) its audited findings and complaints investigated; (b) its recornmended corrective measures in,each case; (c) the response of the: (i) respective coillpBte~i1t a11thmity; and . . - i2,. (ii) Relevant law enforcement and oversight agencies; and (d) any remedial measures taken.

Section 11: Composition of th·e Board (1) The govern.mg body of the Authority shall be the Board consisting of: (a) a non-executive Chairperson, who shall be a . competent •person, knowledgeable and experienced in Procurement and pubHc service; (b) a representative of the Minis:try of Justice; (c) five persons appointed for their knowledge and experience in Procurement and the public service, of whom two shall represent public sector interests and three shall represent the broad cross section of the private business co:rr..munity and professional associations; and ( (d) ExecutiveDirector of the Authority. . ( e) The members of the Board shall be persons of high personal probity~ appointed _by the President on recommendation of th~ _Minister and subject to the approval of the Nation.al Legislative Assem,bly. •

Section 12: Tenure:ofMembers of the Board ·, With the exception of the Executive Director, the Board members shall have j te1,1.ure of four years and may be reappointed for only one additional term.

Section 13: Loss of Membership of the Board A person shall cease to be a member of the Board in any of the following grounds: (a) inability to perform the :functions of the office by reason of infirinify of .) . • I ·.. rmnd or body; . • ' .(b) proven misconduct; ( c) bankniptcy or: insolvency; (d) -conviction of an offence involving fraud or dishonesty; _ (e) failure to attend three consecutive . meetings withoutreasonable . cause; (f) resignation by written notice to the Minister; (g) Death. J - 13 - · . ·: .... • . •. •. • . -: ··

Section 14: Functions of the Board (1) Subject to this Act, the Board shall have the control and supervision of the Authority. (2) It shall also be the responsibility . of the Board to provide such policy guidance and advice as will secure the efficient implementation of . the functions ,of the Authority and enhance the overall performance of the Authority.

Section 15: 1Conditions of Service of the Board Members The . Board, 1rn consultation with ·the Minister, shall determine the terms and . conditions of service of the members of the Board with approval of the Council of Mii--iisters. • (

Section 16: Filling of Vacancies ( 1) Upon the removal of a member of the Board in accordance ·with this Act: (a) if the member removed is the Chairman; the members of the Board shall eiect one of their members to act as the Chairman until such time as a . new Cl;iairman is appointed in accordance with Act; or (b) the Chairman shall arrange to have another person appointed to the Board in accordance with of this Act. ( 2) A mem~er of the Board appoiri.teci in accordance with this Act .shall hold office for the remainder of the term of the removed· member of the Board and (. shall, subject to this Act, be eligible for re-appointment.

Section 17: Meetings of the Board (l)The Board shall hold its first meeting on such date and at such place as the Minister, after consultation with the Board, may determine, and, thereafter, the Board shall meet for the dispatch of business at such time and place as the Chairman may decide, but not less than once·every two months, • . . (2) The ChairµJ.an shall preside over meetings .of the Board; in his absence, the members -present shaH elect one of their members to preside. • - 14.,. ........ (3) The quorum at a meeting of the Board shall be four, including the Executive Director. ,........., •. j (4) Each member, including the Executive Director, shall have oµe vote, but in the case .of an equality •of votes, the Chairman • shall have a casting I vote. (5)The Board may at any time co-opt any person to provide special or additional technical knowledge or advice or otherwise assist the Board at any of its meetings, but the person co-opted shail not vote on any matter for decision by the Board. (6) All acts, matters or things authorised or required to •be done by the. Board shall be decided at a meeting where a quorum is present and the decision is ( supported by the votes of at least four members, including the Chairman. . I . (7) Unless otherwise required .by a memher of the Board,' any proposal circulated among all members and agreed to in writing by a two-thirds majority of all members shall be of the same force, or effect as a decision made at a dulyconstituted meeting of the Board, and shall be incorporat ed .in the minutes of the.next succeeding meeting of the Board. • . . 'I (8) The Board shall cause minutes of all its meetings to b~ taken by the . .:..i Secretary to the Board, signed by the Chairman and kept in the proper form • · as a public document. • (9) Subject' to this Act, the· Board may adopt other procedures to regulate its meetings . .(

Section 18: Disclosure of Interest (1) A member of the Board who has any interest, direct or indirect, ·in any ; matter to be considered. by the Board· shall disclose the nature of such ~"' interest to the Board, which shall be recorded in the minutes of the Board, \ J and such member shall not take part in any deliberation and decision .of ·_ . "\ the Board relating -to that matter. __,, I J \ (2) A member who .contravenes this Section shall be guil1Yi of misconduct - J \I \ and liable to be removed from the Board. ' \ - 15 - J _) J

Section 19: Powers of the Board In the discharge of its function under this Act, the Board may: (1) direct the Executive Director to furnish it with any information, report or other document which the Board considers necessary for the performance of its functions; (2)give instructions to the Executive Director in connection with the management and performance of the functions of the Authority; (3)0n the recommendation of the Executive Director, approve such otganisatibnal structures as the Executive Director may consider necessary for'the efficient discharge of the functions of the Authority. (

Section 20: Secretariat of the Authority { 1) The Authonty shall have a secretariat which shall provide administrative, ·secretarial and other · support for the Authority and the Administrative Review Committee; (2)Th~ secretariat shall be headed by the Executive Director who shall be •appointeq by the President upon the recommendation :of the Minister and . approval of Nationctl Legislative Assembly, . subject · to s4ch terms and conditions as the President may determine; and shali have such structures and organisation as the Authority may determine as necessary for the efficient performance of its functions; (3) In addition to the Executive Director, the secretariat shall have such other C staff as are required for the efficient performance of the Authority; (4) As head of the secretariat, the Executive Director shall be responsible to the Board for: a) the day-to-day management of the affairs of the Authority ai1d the Ach-ninistrative Review Comrriittee; b) the ad:mi.riistration, organisation and control of the other staff of the Authority; I, ' " c} the tnanagement of the funds and the property of the Authority; and - 16- . "·, .. . d) the perfor:rp_ance of such other functions as the Board may determine. ( 5) The other staff of the Authority shall be appointed by the Board upon such terms and conditions as shall be determined by the Board. (6)The Authority shall be subject to the requirements of the Public Financial lvlanagement and Accountability Act, 2011.

Section 21: Reporting Method _ (1) Within three months after the end of each financial year, the . Executive Director shal_l submit to the Board an Annual Performance Evaluation Report in respect of that year's activities, which shall in.elude: . (a) financial statements and the Annual Management Plan; ( (b) an evaluation of the operations of the Authority and the Procuring and Disposing Entities; and (c) any other information the Board may direct. (2) The Annual Performance Evaluation Report approved by the Board shall be sent to the iv1inister and the Auditor-General not less than six months after the end -o f the year to which.the report relates and the Minister shall, as .soon as possible, but not later than two months of receipt of the report thereof lay . . . . ,I' the report hefore the National Legislative Assembly, or at the next sitting of National Legislative Assembly, whichever come~ first

Section 22: Complaints Review Committee I. (1) The Authority shall ·establish a ·complaints Review Committee for the . purpose of conducting independent acbninistrative review -of complaints and challenges to procurement decisions in accordance with Act. • (2) The Complaints Review Committee shall: • (a) consist of five members appointed by the .Minister, in accordan_ c e with the regulations made under this _Act, from among :eminent .South Sudanese with a background in Procurement from • any .of the following fields: _) (b) business community; (c) academia; J (d) the legal profession; . . (e) engineering and architecture; and .., . • . · .- - 17 - .J (f) other relevant fields; and (3) have a term of three years 7 which may be renewed for a subsequent identical term. CHAPTER Ill PROCURING ENTITIES

Section 23: Procuring Entity (1) For the purpose of this Act, a Procuring Entity must have: (a) an Accounting Ofticeras defined-in this Act; (b) a Procurement Committee as provided in this Act; (c) a Verifi¢ation and Acceptance Committee in accordance with of this Act;and ( ( d) a Procurement Unit as provided in this Act. (2) 1.7. ad~ition, each Procuring Entity shall convene, on an ad hoc basis, •Evaluation Committees as provided in this Act. . I

Section 24: Functio_ns ofa Procuring. Entify (1) A Procuring Entity shall be responsible for the management of all Public Procurement and Disposal of Assets activities within its approved budget; (2) Notwithstanding the provision of .sub-section one (I) above, the Authority shall have power to transfer the procuring responsibility ofa procuring entity to another procuring entity or procuring agent in the event of delay or in such .other instances as may be prescribed. Sectfon 25: Functions of the Accounting Officer (1) The Accounting Officer of a Procuring Entity shall have overall • resporn~ibiiity for .the execution of Public Procurement arid Disposal of Assets Processes in the Procuring Entity and, in particular, · shall be :responsible for: . (a) establishing a Procurement Committee in accordance with this Act; (b) causing to be established a Procurem.eht Uri.it staffed at .an appropriate level; r--,._ ; (c) managing the Procurement budget and plllil without 1.1-.11.due influence from . other public officials and politicians; (d) appointing the Evaluation Committee for each Procurement Process; (e) advertising Bid Notices; (f) based on recommendations made by the Procurement Commit tee corri..municate Award decisions; (g) certifyin.g the availability of funds to support the Public Procurement and Disposal of Assets activities; . (h) signing Contracts on behalf of the Procuring Entity; (i) investigating complaints by Providers or Bidders; G) submitting a .copy of any complaints and reports of the findings to the ... . . •Authority; and • _ . ··-,. (k) ensuring • that the iniplementation of the awarded • Contract 1s m accordance with the terms and conditions of the Award. .. ( (2) In exercising these functions , the Accounting Officer shall not approve retrospective Public Procurements and Disposals of Assets. · (3) The Accounting Officer •shall appoint a Verification and Accep tance Committee whose duty shall be to verify and accept delivery of Supp lies, Works and Services in consultation with the contract managers.

Section 26: Membership of Procurement Committee (1) A '.Procurement Committee •shall be composed of .five 'm embers, to b~ appointed by the Accounting .Officer, and shall be chaired by the head of aclmin:istration and finance of the Procuring Entity. .( I (2) •The head of the •Procurement Unit shall act as the secretary to . the Procurement Committee. \ ·· -·J (3) A Procurement Committee may co-opt advisers to assist it lll the discharge of its functions. • (4) . The Accounting Officer shall inform the Authority of the composition of j the Public Procurement •and • Disposal of Assets Committee and the qualifications of its members not later than fourteen days from the date of its appointment. (5) Members of the Public Procurement and Disposal Comn:iittee shall -be appointed with regard to the technical compet_ence, skills required f or ~ e ..) ';. ) - 19 - ) J discharge of the functions of the Public Procurement and Disposal of Assets Committee and having proven integrity. (6) The members I of. a Public Procurement and Disposal of Assets Committee shall have a term of two years, which may be renewed for a s1;1bsequent identical term.

Section 27:·Functioiis of a Procurement Committee A Public Procurenient and Disposal of Assets Committee shall be responsible for: • (a) reviewing I and approvmg the recommendations from the Evaluation Co11lI.Iljttee; . I (b). approving Bidding and Contract Documents; ( (c) approving Public Procurement and Disposal of Assets methods; ( d) ensuring that •the best practices in relation to Public Procurement and Disposal of Assets are strictly adhered to by Procuring Entities; • (e) monitoring and compliance with this Act; {f) . ensuring µnplementation of the Code of Ethical Conduct in Busmess provided in this Act~ or as subsequently issued by the Authority; (g) preparing and submitting reports on Public Procurements and Disposal of Assets undertaken in the Procuring_Entity to the Authority, _as prescribed by the regulations made under this Act; and • . (h) liaising .directly with the Authority ·on matters within its jurisdiction. . Section 28: Powers of a Public . Procurement · and Disposal · of Assets Connnittee ( (1 ) A Procur~ment Committee shall: (a} authorise: . (i) the choice of a Public Procurement and Disposal of Assets method; . . . . (ii) •Bidding Documents before issue; \iii) . technical, fmancial or combined evaluation reports; · ,(iv) contract documentation in line with the authorised evq.}uation report;and . (v) • ariy amep_oment to an awarded Contract; and ·- • :· ; : . .• -20 -·. · (b) authorize an Award in accordance with applicable Public Procurement a_n.d Disposa1 of Assets inethod. (2)No person shall exert undue influence on a member of a Public Procurement and Disposal of Assets Committee in exercising the Committee's functions; (3) A Pub lie Procurement and Disposal of Assets Committee shall not approve any Public Procurement and Disposal of Assets retrospectively.

Section 29:.Public Procurement and Disposal of Assets Unit . (1) Each Procuring Entity shall establish a Public Procurement and Disposal of As~ets Unit that reports directly to tbe Accounting Officer. ( I (2) Publid Procurement and Disposal of Assets Units shall be staffed at an appropriate level with trained and qualified procurement officers,, as prescribed by the Authority. (3) All Public procurement arid Disposal of Assets officers ii.7. Public Procurement and Disposal of Assets Units shall be employees of the Authority and shall be subject to transfers to any other Procuring Entity as may be determined by the Authority. •

Section 30: Functions of a Public Procurement and Disposal of Assets Unit A Procurement Unit shall: . . . . I I (a) manage all Public ·Procurement and Disposal of Assets activities of the • Pro.curing • Entity,. except . adjudication and the award of. Contracts; I . (b) support the functioning of the Public Procurement and Disposal of Assets Committee;. (c) -implement the decisions of the Public Procurement ~d Disposal of Assets Committee; ..) (d) liaise directly with the Artthority on matters within its jurisdiction; (e) •.act as a secretariat to the Public Procurement and Disposal of Assets Committee; (f) prepare the plan of Public Procurement and Disposal of Assets activities of the Procuring Entity based on inputs from the User Departments; (g) recommend Public Procurement and Disposal of Assets methods; - 21 :- · ;. •. __J' (h) check and prepare statements of requirements; (i) prepare and issue Bidding Documents; (j) prepare Bid Notices~ • (k) maintain a list of pre-qualified Providers; (1) prepare Contract documents; (m) issue approved Contract documents; (n) maintain and archive records of Public Procurement and Disposal of Assets Processes; (o) prepare quarterly reports for the Public Procurement ~d Disposal of 1 Assets Committee; I (p) coordinatethe Public Procurement and·Disposal of Assets activities of the User Departments of the Procuring Entity; and (q) prepaty any other such reports as may be required from tiine·to time.

Section 31: Powers ofa Public Procurement and Disposalof Assets Un!t A Pu.blic Procurement and Disposal of Assets Unit shall have the power to: (a) recornmend the composition of Evaluation Committees for the approval of the Public Procurement and Disposal·of Assets Committee; .· (b) seek independent advice from the Authority as may be necess~ in the discharge of its functions; j 1 (c) ensure compiiance with this Act and the regulations made,under·this Act, and best practices; l (d) manage Bid and Pre-Qualification submissions and make recomrhendations on them to the . Public Procurement and Disposal of Assets Committee; • (e) provide Bid clarifications; and (f) • receive Bids. - 22 - Se.ction 32: Role of the User Hepartment (1) The User Department of a Procuring Entity shall perform the following: (a) liaise with and assist the Procurement Unit throughout the Pub lic Procurement and Disposal of Assets Process to the point of A ward; (b) . initiate, or provide technical input and Specifications to, Procurement and Disposal requirements and forward them to the Procurement Unit; ( c) provide input into tl1e technical evaluation .of Bids received as ,required by the Public Procurement and Disp.osal of Assets Unit; (d) r eport any departure from the terms and conditions of an awarded Contract to the Public Procurement and Disposal of Assets Unit ; •(e) forward details of any required amendments to Contracts to the Procurement Unit for action; (f) participate as a member in the Verification and Acceptance Committee for each Procurement Process relevant to such U ser Department; (g) maintain .and archive records of contracts management;. and (h) •• prepare • any reports requir.ed for submission · to the Public Procurement and Disposal of Assets Unit, the Public Procurement and Disposal of Assets Committee or the Accounting Officer. (2) The User Department shall prepare a work plan for Public Procurement and Disposal of Assets based on the approved budget, which shall be • submitted to the Public Procurement and Disposal of Assets Unit for . implementation. I •Sectfon 33: Evaluation Public Procurement and Disposal of Assets Committee · (i) All evaluations shall be conducted by an Evaluation Public Procurement and Disposal of Assets Committee, which shall report to the Procurement Committee or head of the user department; • (2) . . The .membership of the Evaluation Public Procurement and Disposal of Assets Committee Bhall ·be recommended.by the Public Procurement and Disposal of Assets Unit, in accordq11ce with regulations made under this 0 Act, and approved by the Accounting Officer. (3) • • The number of the members of the Evq.luation Public Procurement and . Disposal of Assets Committee shall depend on the value and complexity ., -23 - of the subject matter of the Procurement, but shall in all cases h e a minimuin of three members. (4) The members shall be of an appropriate level of seniority and experien ce, depending on the value and complexity of the object of the Procurement. (5) Members of the Evaluation Public Procurement and Disposal of Assets Committee may be external to the Procuring Entity, where the.required skills or experience are not available within the Procuring Entity or where memb~rs are indisposed or have a conflict ofinterest. I (6) All members of the .Evaluation Public Procurement and Disposal of Assets Committee shall sign the . Code of Ethical Conduct in Business provided under this Act, or such Code subsequently issued by the Authority ( (7) The •meetii7.gs of the Evaluation Public Procurement and Disposal of Assets Committee and the conduct of the evaluation shall be executed in accordanc·e with. the regulations made under this Act.

Section 34: Independence of Functions and Powers-within Procuring Entities .Subject to the provisions of this Act, the Accounting Officer, the Public Procurement •and Disposal of Assets Committee, the Public Procurement and 1 Disposal of Assets Unit, the Acceptance and Verification Committee and .the ?vdaluatidon PublicdProcurement and ?isposal of Assets Committee _shall act ( _ m epen ently . an • without undue · influence in relation to their respective functions and powers.

Section 35: Independent Public Procurement and Disposal of Assets Agents {1) Where it is deemed that there is lack of technical capacity, and subject to the regulations made under this Act and the prior approval of the Authority, a Procuring Entity may engage the services of an independent Public Procurement and Disposal of Assets agent. hr- ..'--"....... rl o r•:~~;-r, -~ +r-. ~~ ""!:1~-+ c .... .... . ...... -..,,_u5_ CV -.U.L v .LL\.:, _ ....,_ ~"""' Ho-enrl o -J.. __ ;..... l""" .. ~- o - c-, ........, 4 ,...,_ _.L a . u . _.ilJ.U.v_p .lUvli~ }J.L U\.:,_LU.\.:,.LU.\.:,.Lt.L a.5c-u1., a Pro cwTug . :Entity.shal_l: _:. •- (a) secure prior written assurance of the Accounting Officer that fllnds have been budgeted and are available to pay in full and on time for such services; (b) obtain those services from independent Public Procurement and Disposal of Assets agents pre-qualified by the Authority ; and (c) follow the nrocedure laid down by the Authority in the regulations. f ,. (3) The regulations made under this Act shall detail . the required qualifications of independent Public Procurement and Disposal of Assets agents, the process for qualifymg independent Public Procllfement and n :isposal of Assets agents, and grounds · for disqualifying independent procurement agents. (4) Independent - Public Procurement and Disposal _o f Assets agents are required to comply with the provisions of this Act in the same manner as a Procuring Entity.

Section 36: Defense and National Security Institutions (1) For the avoidance of doubt, Defence and National Security Institutions shall compiy with this Act, subject to the provisions of this section; f . (2) Defence and National Security lrlstitutions shall •manage their Public . Procurement and DisJ?osal -of Assets on the. basis of a dual list, covering items subject to open and restricted Public Procurement and· Disposal of Assets methods, provided the security institutions liaise with the Ministry of Finance and Planning; J (3) The items on the restricted list must be of such a sensitive nature that the • \ • Public Procurement and •Di$posal of Assets method must be restricted in J order to protect essential national security interests; _) (4) Defence and National Security Institutions shall ..comply with the •categorization of items on the classified (restricted) and unclassified (open) as determined by the Council of Ministers· according. to Section 24 (3) •of . Public Financial Management and Accountability Act, 201 1;, (5) The restpcted_items shall be subject to a classified audit and submitted to the T:tansitiqnal National Legislative Assembly in the reports of the Ministry and • other Pr~curing Entit1es as prescribed in the .Public Finartcial Management and Accountability Act, 2011. - 25 - J CHAPTER IV BASIC PUBLIC PROClJREMENT • A-ND DISPOSAL. OF ASSETS I RULES

Section 37: <;.:ommunicatlons in Public Procurement and Disposal of Assets (1) Any document, notification, decision or any other information generated in the course of a Public Procurement and Disposal of Assets Process and communicated as required by this Act, including in connection with challenge and appeal proceedings . under this Act or in the course of a meeting, or forming part of the record of Public Procurement and Disposal of Assets Processes under this Act, shall be in a form that provides a record of the content of the .information and that is accessible so as to be usable for subsequent reference; C (2) Without prejudices to sub-Section (1) above, e-procurement (information and communication technology) may be used in procurement and disposal of assets proceedings, such as: ·ca) publication of notices; (b) submission and opening of tenders; . (c) tender evaluation; · (d) req11.esting for information on the tender or disposal process; (e) dissemination of laws, regulations and direct1ves; (f) digital signatures; or (g) as may be prescribed by regulations . .

Section 38: Participation by Providers and Contractors (1) Candidates shall part1c1pate in procurement proceedings without discrimination except where participation is limited in accordance with this Act and the regulations; (2) Subject to sub-section one (1) above the Minister shall in consideration of economic and social development factors, prescribe prefdrences and .or reservations in public procure:rn:ent and disposal of assets; . . . . . (3) Theprefernnces and reservations referredto in sub-section (2) shall: • . 1. ... be non-discriminatory in respect of the targeted groups; 11. , allow competition among the eligible providers or contractors; 111 . , . I be monitored and evaluated; 1v. works, services and goods, or any combination thereof; v. identified regions; and v1. such other categories as may be prescribed. (4) Tne preferences and reservations shall apply to; i. persons such as disadvantaged groups, Small and medium enterprises; 11. women, youth and people with disabilities; . ; ( 5) Applying the preferences and reservations under this section, , • i. exclusive preferences shall be given to citizens of South Sudan if the funding is 100% from the government of South Sudan; 11. the amounts are below the prescribed threshold; and 1u. a prescribed margin of preference may be given in the evaluation of bids to candidates offering mrn;mfactured ·goods, mining, and extraction grown ill South Sudan. t

Section 39: Qualifications of Providers and Contractors · (1) Providers or Contractors shall meet the following criteria: (a) that they have the necessary technical and environmental qualifications, professional and technical competence, •financial resources, equ1pment and other .physical facilities, managerial capability, rel1ability, • experience and .the personnel to perfciim the Contract; (b) that they meet .ethical and other standards applicable in South Sudan; .(c) that they have legal capaci1:y to enter illto the Contract,; . . . (d) .that they are not illsolvent, ill receivership, bankrupt or being ·wound up, their affairs are · not being admmistered by a court or a judicial officer, their busilless activities have not been suspended, and they are not the subject of legal proceedings for any of the foregoing; (e) that they have fulfilled their obligations to pay taxes and other social contributions ill South Sudan; (f) th~t they have not, and the directors and members . of senior mbagement. with decision-making authority for such organization have not, been· convicted .of any criminal offence related to •their professi.onal •conduct •or for engaging ii.7. Fraudulent or Corrupt · Practices in order to enter illto a Contract within a period of ten years ._;! 'I precedillg the commencement ofthe Public Procurement and Disposal - 27 - of Assets Process, or have not been otherwise disqualified pursuant to administrative suspension or debarment proceedings. (2) Any requirement established pursuant to this Act shall be set out in the Pre- Qualification documents, if any, and in the Bidding Documents, and shall apply equally to all Providers or Contra,ctors; and (3) A Procuring Entity: 1. shall disqualify a Provider or Contractor if it finds at any time that the · information submitted concerning the qualifications of the Provider or Contractor was false or constituted a misrepresentation; 2. other than in a case to which subparagraph 1 applies, may not disqualify a Provider or Contractor on the ground that information submitted concerning the qualifications of the Provider or Contractor was inaccurate or incomplete in a non-material respect, unless · such Provider or ( Contractor fails to remedy such deficiencies promptly upon request by the Procuring Entity.

Section 40:: Description of the Subject Matter of Public Procurement and Disposal of Assets (1) Bidding Documents shall set out .a detailed description, of the subject matter ofthe Procurement.Process that will be used in the'examination of Bids, including the minimum requirements that Bids must meet in order to be considered responsive, and the manner in which those minimum • fequirements are·to be applied. • (2) Ot.her than as provided in this Act, no description of the subject matter.of a Public Procurement and Disposal of Assets Process that may restrict the participation of Providers or Contractors in or their access to the Procurement Process, including any restriction based on nationality, shall be included or used in the Pre-Qualification Documents, if any, or in the Bidding Documents. (3) To the extent practicable: (a) the description o·f the subject matter of the Public Procurement and Disposal of Assets Process . shall be . objective, functional and generic, and shall set out the relevant technical, quality and performance characteristics of that subject matter; cifd . I (b) there shall be no requirement for or reference to a particular trademark or trade name, patent, design or type, specific origin or producer unless t_here is no sufficiently precise or intelligible way of describing the characteristics of the subject matter of Public Procurement and Disposal of Assets provided that words such as "or equivalent" are included. Section - 41: Evaluation Criteria . and Procedures • . (1) The evaluation criteria relating to the subject matter of the Public Procurement and Disposal of Assets -Process shall include: (a) price; {b)• I ;the .cost of operating, . maintaining and rep·arnng Supplies . or ( constructio:n, the time for delivery of Services, completion of -construction or provision -o f Services, the chataqteristics of the subject matter of Public Procurement a..11d Disposal of Assets •Process, such as .the -functional - characteristics of Services or. construction and the environmental characteristics of the subject matter, the terms of payment and of guarantees in respect of the subject matter of the Public Procurement and Disposal of Assets --,~ Process· ' (c) where relevant in Public Procurement Processes conducted in •' _,,' accordance with .-this Act, the experience, reliability and professional and managerial competence of the Provider or _) _ ' Contractor and of the personnel to be involved in providing -the ···1 subject matter of the Procurement Process. - J (2) · In addition.to the criteria set out in sub-section(! ) above, the evaluation ( , criteria may include: • '-' \ (a} ' criteria that the regulations made under this Act or other provisions J t of the laws of South Sudan authorise .or require to be taken into - _J} \ account; or 1 (b) -a margin of preference for the benefit- of National Providers or -~ ) domestically produced Supplies, or any otherpr~ference, if: \ {i) authorised or required by the regulations made under -this J Act or other provisions of applicable law; • • \ J (ii) such margin of preference has been calculated in accordance with the regulations made Ullder this Act, but .in no case ~ should exceed fifteenpercent (15%). ~ J "") - 29- --'-' j \ .J To the extent practicable, all non-price evaluation criteria shali be objective, quantifiable and expressed iii moneta_ry terms. (4) The Procuring Entity shall set out in the Bidding Documents: (a) whether the Successful Bid will be ascertained on the basis of price or of price and other criteria; (b) • all evaluation criteria established pursuant to this section, including price as modified by any preference; (c) · the relative weights of all evaluation criteria; and . (d) the manner of application of the · criteria. m the ·evaluation procedure. (5) In evaluating Bids and determinmg the Successful Bid,, the Procuring Entity ,r5hall us.e only those criteric1 and procedures that have bec;n set out in the Bidding Documents, and shall applythose criteria and procedures in the manner that has been disclosed in those Bidding Documents. (

Section 42: Estimation of the Value of the Public Procurement and . Disposal of Assets A Procuring Entity shall neither divide its Public Procurement and Disposal of Assets nor use a partjcular valuation ~ethod for estimating . the value of Procurement so as to limit competition among Providers or Contractors or otherwise avoid its obligations .under this Act.

Section 43: Langm1ge of Documents (1) The Pre-Qualification or Bidding Docillllents shall be; formulated · m (_ English. (2) Applications to pre-qualify, if any, and Bids may be formulated and presented in English, or in any other language permitted by the Pre- Qualification or Bidding Documents~ as applicable . .- . ·. • . .•. :.: .• . :. : ·..

Section 44: lV1anner, Place and Deadline for Submitting Bids (1) The manner, place and deadline for presenting Bids shall be set out in the invitation to pre-qualify and the Pre-Qualification documents, if any, and the Bid Notice and Bidding Documents; (2) Deadlines for presenting Bids shall be expressed as a specific date and time and shall allow sufficient time for Providers or Contractors to prepare and present th~ir Bids, taking into account the reasonable needs of the ·Procu...ring ·Entity; .(3) If the Procur:ing Entity issues a clarification · or modification of the Pre- Qualification or Bidding Documents, it shall, prior to the applicable deadline for submission of Bids, extend the deadline if necessary or as required lli~der .( this Act, in order to afford Providers or Contractors sufficient time to take the clarification or modification into account in their Bids; • (4) Notice of any such extension shall be· given promptly to each Provider or . Contractor that was provided the Pre-Qualification or Bidding Documents. • 1,

Section 45: Clarifications and Modifications of Bidding Documents _\ - 'I A Provider or Contractor may request a .clarification of the Bidding -.....:/ Documents from the Procuring Entity, if such request is made within the timefratne established in the Bidding Documents, in which case the Procuring Entity shall: (a) . . respond within. fiv~ working days; and (b) without identifying the source of the request; communicate the clarification to all Providers or Contractors to which the Procuring Entity has provided the Bidding Documents. • .) (2) At any time prior to the deadline for presenting Bids, the Procuring Entity may, for any reason, modify the Bidding Documents by issuing an addenduni, which shall be commllilicated_promptly to all Providers ot Contractors . to which the ·Procuring •Entity has provided the Bidding \ J . Documents and shall be binding on those Providers or C6ntractors. J (3) If, as a result-of a clarification or modification issued in accordance with ) _,I this Act, the information published when first -soliciting the participation of Providers 01 Contractors t.J. the P:i"ocurem.ent Precess beComes - 31 - J J ' materially inaccurate, the Public Procuring and Disposal of Assets Entity shall cause the amended information to be published in the same manner and place in which the original information was published, and shall extend the deadline for presentation of Bids as provided for in this Act.

Section 46: Clarification of Bids (1) At any stage of the Public Procurement and Disposal of Assets_Process, the Procuring Entity may ask a Bidder for clarifications of its qualification information or of its Bid. (2) The Procuring Entity shall correct purely arithmetical errors that are discovered during the examination of Bids and·shall give prompt notice of any such correction to the relevant Provider or Contractor. (3) No substantive change to qualification information, and; no substantive change to a Bid · (including chapges aimed at making an unqualified Bidder qualified or an unresponsive Bid responsive), shall be sought, offered or permitted. • (4) No negotiations sha:11 ·occur between the Procuring Entity and a Bidder regarding qualification information or Bids, nor shall any change in price be made.pursuant to a clarification that is sought under this Act.. •

Section 47: Bid Securities (1) vVhen the Procuring Entity requires.Bidders to provide Bid Security: ( ' .(a) the requirement shall apply to all Bidders;· (b) such Bid Security may not exceed two percent ·o f the value of the subject mi;itter of the Public Procurement and Disposal of Assets · Process; • . j (c) the Bidding Documents may stipulate that the issuer of the Bid Security, as well as ·the form and terms of the Bid Security, must be acceptable to the Procuring Entity; ( d) prior to presenting a Bid, a Bidder may request ·the Procuring Entity to confirm the acceptability of a proposed isst}er of a Bid Security, to which the Procuring Entity shall respond promptly; (e) . -~onfinnation of the acceptability of a proposed issuer does riot • ..,...;.p,-.lnriP +ha p.,.,.,.,.,,.,...;,..; 0- -i:. ...... +;+;y · -F,-,:,....,.., -ro~a,_+;.,...,,... +l-. o s;·,.1 Qo;.".,..;t-., - - . .J..~'-'.' ... ---: ..... __t-< . 1,,,,1..J,....., ~ ..1.\JVY.J,.. ~ . L o .L-1.,A....t.1,.J.1,. .LJ..'-../..l..U.. ..i..VJVVL..1..L..l.6 w.....lv ..i.U. ,.....h ,,~V u..l.U•• J ,V li - 32.: the ground that the issuer has become L.7.Solvent or has othervvise ceased to be creditworthy; (f) the Procuring Entity shall specify in the Bidding Documents any requirements with respect to" the issuer and the nature, form, amount and other principal terms and conditions of ·the required Bid.Security; any such requirement that refers directly or indirectly n to the. conduct of the Bidder may relate only to: (i) . withdrawal or modification of the Bid after tpe deadline for r .i- . '. presenting Bids, or before the deadlii.7.e if so. stipulated in the Bidding Documents; (ii) failure to .sign a Contract if so required by the Bidding Documents; and (iii) • failure to provide a required Security for the performance of the Contract after an Award or to comply wlth any ot her condition precedent to signing the Contract specified in the --( Bidding Documents. (2) The Procuring Entity .shall make no claim to the amount of .the Bid Security, and shall promptly return, or procure the return of, the security document after the earliest of the following events: (a) • the expiry of the Bid Security; (b) ,the entry into force of a Contract and the provision of Security for fhe performance of the Contract, if such a Security is required by theBidding Documents; (c) the cancellatio~ of the Public Procui-enient and Disp·osal of Assets •Process; or (d) • the withdra\Val of a Bid before the deadlirie for presenting _Bids, 'I · - -✓ unless the Bidding Documents stipulate that no su~h withdrawal is __) permitted. · •Section 48: Pre-Qualification Proceedings (1) The Procuring Entity may engage in Pre-Qualification proceedings, to which the provisions of this Act shall apply and which shali include the preparation .of a shortlist in response to an invitation to submit expressions of interest in a·request.for-proposal; - (2) An invitq.iion to pre-qualify shall be published in the publication identified m . .the regulfitions made under this A.ct; • • I • - 33 - (3) The invitation to pre-qualify shall include the following infonnation: (a) the name and address of the Procuring Entity; (b) a summary of the p1incipal required terms and conditions of the Contract to be entered into in the Public Procurement ~d Disposal of j Ass·ets ·Process; (c) crithia and procedures to be used for ascertaining the qualifications of Providers or Contractors, in conformity with this Act; (d) means of obtaining the Pre-Qualification documents; (e) the price, if any, to be charged for the Pre-Qualification documents and, subsequently, the .Bidding Documents, including the means and currency of payment; (f) •the language or languages in which the Pre-Qualification documents and, subsequently, the Bidding Documents are available; and (g) the manner, place and deadline for presenting applications to pre- qualify and, if already known, Bids. ( (4}The Procurillg Entity shall provide a set of Pre-Qualification documents to each Provider or Contractor that requests them in .accordance with the invitation to pre-qualify and that pays the price, if any, charged for those documents, which price shall reflect only the cost of providing them to Providers or Contractors; ( 5) The Pre-Qualification documents shall include the follo\Yfilg mformation: (a) instructions for preparing and presenting Pre-Qualification applications; (b) any documentary evidence or other information that must be presented by . • Providers or Contractors to demonstrate their qual1fications; ( c) the name, functional title and address of one or more officers or employees of the Procuring Entity who are authorised to communicate directly \fit~ and to r~ceiv~ communicatio1:~ d~ectly from .:Providers or Contractdrs 111 connection with the Pre-Quaht1cat10n proceed:mgs; and (d) any other requirements that may be establ{shed by the Procuring Entity in .( conformity with this.Act and the regulatiqns made under.' this Act; (6) Clarifications to Pre-Qualification documents may be made and responded to in the same manner provided in this Act; • (7) The Procuring Entity shall take a decision with respectto the qualification$ of each Bidder, and shall apply only the criteria and procedllijeS set out in the mvitation to pre-qualify and in the Pre-Qualification documents; • • I (8) Only Bidders that have been pre-qualified a:re entitled to participate further • in the Proqfrement ProcessI . ·. .. j (9) The Procuring Entity shall promptly notify each Bidder whether or not it h as been pre-qualified.

Section 49: Cancellation of the Public Procurement and Disposal of Assets Process (1) The Pro~uring Entity may cancel the Public Procurement and Disposal of Assets Process: (a) at any time prior to the acceptance of the Succe·ssful B1d and shall not open any Bids after taking such decision; and • (b) after the Successful Bid was accepted, in the circumstances referred to in this Act. ( (2) Upon cancellation of.a Public Procurement and Disposal of Assets Process, the Procuring Entity shall: • (a)promptly communicate its decision to. cancel the Public Procurement and Disposal of Assets Process to all Bidders; {b)provide the reasons for the decision, upon request of a Bidder; (c) publish a notice of the cancellation in the same manner and place in which the Bid Notice -was published; .and (d)return any unopened Bids to the respective Bidders. i (3) ·Uri.less · the cancellation of the Public Procurement and Disposal of Assets Process was a ·consequence of.irresponsible or dilatory conduct on the part of the Procuring Entity, the Procuring Entity shall incur no. liability, solely by virtue of its invoking sub-sectfon (1) above, towards Bidders: I, ( I Section -SO: Exclusion ofProviders and Contractors from the Procurement ·, __/ - Process (1}.A Procuring Entity shall e-xclude a Provider or Contractor from the-Public Procurement and Disposal of Assets Process if: • (a) the Provider or Contractor has engaged in Fraudulent or Corrupt Practices in relation to such Procurement Process; or (b) the Provider or Contractor has an unfair competitive advantage or a confi.ict of interest in violation of the laws of South Sudan. • • . - 35 .- (2) Any such 'decision of the Procuring Entity and the reasons t..h.erefore shall be promptly communicated to the Provider or Contractor concerned.

Section 51: Acceptance of the Successful Bid and Entry into Force of the Contract (1) The Procuring Entity shail accept the Successful Bid unless: (a) the_Bidder presenting the Successful Bid is disqualified' in accordance with this Act; (b) the Public Procurement and Disposal of Assets Process is cancelled in accordance with this Act; or (c) the Bidder presenting the Successful .Bid is excluded . from the Procurement Process in accordance with this Act. . ( (2) The Procming Entity shall promptly provide -each Bidder with a notice of its decision t0 accept the Successful Bid, which shall contam: ( a) the name and address of the Bidder presenting the.Successful Bid; (b) the price in the Successful Bid and, if applicable, a summary of other characteristics and relative advantages of the Successful Bid; and (c) the duration of the Standstill Period, which shall run frorri . . the date of signature of the notice under this paragraph to all Bidders, as set out in the Bidding .Documents, and in accordance with the · regulations made under this Act. · (3) Upon expiry of the Standstill Period, or where there is none,' prqmptly after the Successful Bid·was ascertained, the Procuring Entity shall dispatch the notice of acceptance of the Successful Bid to the relevant Bidder; (4) Except as provided in this Act, a Contract in accordance with the terms and l. conditions of the Successful Bid ·enters into force upon the date.of signature of the notice of acceptance, provided that the notice is dispatched while the Bid is still.in effect; . (5) If tb.e value of the subject matter of the Procurement Process is above the threshold for Request for Quotations provided in this Act, the Bidder with . the Successful Bid and the Procuring Entity shall sign a Contract conforming to the terms and conditions of the Successful Bid 4fter the Ministry of Justice has reviewed the Contract; • • • • -36 - (6) If the 11inistrj of Justice has not completed its review of the Contract within the time specified in the Biddina0 Documents ' the period - of effectiveness of the Bid or the Bid Security shall not be extended, unless the Bidder agrees to such extension in accordance with this Act; (7) If the Bidder with the Successful Bid fails to sign any Contract as required, or fails to provide any required Security for -the performance of the Contract, the Procuring Entity may either: (a) cancel the procurement; or (b) decide to select the next Successful Bid from among those remaining in effect, in: .accordance with the criteria and pr.ocedures set out in this Act and in the Bidding Documents.

Section 52: Public Notice of Awards .( ' (1) Upon the entry into force of the Contract, the Procurip.g Entity shall promptly publish notice of th~ Award of the •Contract, specifyiI1g the name( s) of the Provider(s) or Contractor(s) to -which the Contract was awarded and, in the case of Contracts, the Contract price. (2) Subsection (1) above is not applicable to Awards where the Contract price -is less than the threshold .amount set out in the regulations made under this Act; the· Procuring Entity shall publish a cumulative notice of such awards from time to time but at least once a year. • {3) The regulations made under this Act shall provide for the manner of publication of the notices required under this Act~ . t

Section 53: Confidentiality (1) In its communications with Providers or Contractors or witjl any person, the Procuring Entity shall not disclose any information if: . • (a) its non~disclosure is .necessary for the pro_ tection of essential national security interests; or (b) if its disclosure would: 1. _be contrary to law; _) 11. impede law enforcement; _ _J m. prejudice the legitimate commercial interests of the Proyiders or Contractors; or ., 37_- . \ ._) 1v. impede fair competition, unless disclosure of that information is ordered by a competent court, and in such case, subject to the conditions of such an order. · (2) Except when explicitly permitted by this Act, the Procuring Entity shall treat Bids in such a manner as to avoid the disclosure of their contents to competing Providers or Contractors or to any other person.not authorised to have access to this type of information.

Section 54: Record of Procurement Processes (1) Using such standardised fomis and docun1ents as issued ·by the Authority, the Procurjng E:r;itity shall maintain for seven years . a record qf each Public • Procurement I and Disposal of Assets Process that includes ,the -following information: (c;1) a brief description of the subject matter of the Public Procurement and ( .Disposal of Assets; (b) the names and addresses of Bidders and the name( s) and address( es). of the Bidder with which a Contract is entered; (c) .a statement of the reasons and circumstances relied upon by the Procuring Entity for the decision as regards means of co_rnmunication and any requirement of form; (d) in the Procurement Process in which the Procuring Entity, in accordance with this Act, limits participation of Providers or Contractors, a statement of the reasons and circumstances relied upon by the Procuring Entity for imposing the limitation; (e) if the Procuring Entity uses a method of Procurement other than open •• competitive bidding, a statement of the reasons and circumstances relied upon to justify the use of such other method; . (f) if the Procurement Process is cancelled, a statement to thaf effect and the justifying reasons and circumsta.i7.ces; . • .• (g) if no Standstill Period was applied, a statement of the justifying reasons and circumstances; . (h) i..n. the case of a challenge or appeal under this Act, a copy of the complaint and of all decisions taken in the relevant appeal proceedings . and the reasons there for; (i) •a summary of any requests for clarification of the Pre-Qualification or Bidding Documents, the responses thereto, as well as a summary of any modification of those documents; (j) information relative to the qualifications, or lack thereof, of Bidders, •. · including in Pre-Qualification proceedings; / i. - 38 - • . •• 'i .. -· · .. · --·- (k) if a Provider or Contractor is excluded from the Public Procurement a..n.d Disposal of Assets Process pursuant to this Act, a statement to that effect and the justifying reasons and circumstances; (1) a copy of the notice of the Standstill Period given in accordance with this • Act·' (m)if the . Procurement Process resulted. in th~ Award of a Contract in accordance with this ·Act, . a statement t-o that effect and of the reasons therefore; (n) the Cqntract price and other principal terms and conditions of the Contract; where a written Contract has been concluded; a copy thereof; (o) for each Bid, the price and a summary of the other principal terms and conditions; . \ (p) a summary of the evaluation of Bids, including the application of any • preference pursuant to this Act, and justifying reasons and circumstances for any rejection of Bids; and · (q) other information required to he included in the record in accordance with the provisions of this.Act or the· regulations made under this Act. (2) The portion of the record referred to _in paragraphs -(a) to {h) of subsection orie (1 )above shall, on request, be made available to any person after the Successful Bid has been accepted or the Procurement Process has been cancelled; (3) Subject to •subsection(4) below, · the portion of the record referred to :in . paragraphs (1) to · (p) of subsection (1) aqove shall, after the decision on acceptance of the . Successful Bid •has become .•known to the~ be .made available, uppn request, to Bidders;· (4) The -provisions of this Act shall apply to the disclosure of the documentary record of a Public Procurement and Disposal of Assets Process; \ (5). The Procuring Entity shall record, file and preserve ali documents relating to Procurement Processes according to the ·regulations made under thls Act or other applicable law. _) _) Section 55: Public Procurement and Disposal ofAssets Plaiming . _) . (1) Goyemment Institutions shall plan their Public Procurement and Disposal of Assets activities· annually and Shall: · • • (a) use Single-Source Public Procurements and Disposals of Assets only if no other method is·available; - 39 - I : • •. •,.- (b) aggregate its requirements wherever possible, both within the Pro/curing Entity and between Procuring Entities,· to obtain va1ue for money and reduce Public Procurement and Disposal of Assets costs; (c) make use of framework contracts, as prescribed in the regulations, wherever appropriate to provide an. efficient, cost effective and flexible means to procure Supplies, Works, or Services that are required continuously or repeatedly over a set period of time; (d) not split Pubhc Procurement and Disposal of Assets Processes to defeat the use of appropriate Public Procurement and Disposal of Assets methods; (e) integrate its Procurement budget with its expenditure programme; and (f) integrate the Disposal of Assets both listed and unlisted in its Asset Register as well as in its income and expenditure budget. (2) AH National Institutions shall submit a Public Procurement and Disposal of Assets plan to the Authority for information as part of the budget framework, .( which shall include anticip~ted Procurements and the respective method of Public Procurement and Disposal of Assets. . ! (3) A National Institution shall review and update its plans quarterly. ¥1ith a report -detailing • progress on implementation and reasons for any modifications. ( 4) All State and Locai Government Institutions shall follow procedures for procurement planning as prescribed by regulations made under this Act.

Section 56: Initiation of Public Procurement and Disposal of Assets and Confirmation of Funding L (1) All Public Procurement and Disposal of Assets requirements shall be documented prior to the commencement of any Public Procurement and Disposal of Assets Process; . (2) Public Prdcuremenr and Disposal of Assets Processes shall ~nly be initiated or continued on the confirmation that funding, in the full amount over the required period, . is available, or will be . made available at the •time the contract commitment is made, in • accordance with the thresholds ·and procedures established by the Ministry; . -40- • (3) All Public Procurement and Disposal of Assets requirements shall be approved by the Accou..11.ting Officer, or any other authorised officer, prior to the commencement of a11y Public Procmement and Disposal of Assets Process; ' t (4) Any ·Public Procurement and Disposal of Assets Process initiated contrary to this section shall be nun and void.

Section 57: Code ofConduct (1 ) A code of conduct for officers or employees of Government Institutions shall be issued by the Authority and shall ad&-:ess . the prevention of conflicts of interest in Procurement arid, where appropriate, measures to regulate matters regarding personnel responsible for Procun~ment, such as . ( declarations of interest in particular Procurements, screen'ing procedures and training requirements. (2) For the avoidance of doubt, each m:ember ofa Procuring .Entity or other ·person, involved .in any manper in a Procurement Process on behalf of a Goven;iment Institution, shall disclose any interest in · any Provider or Contra'ctor and shall not participate or attempt to influence by any manner . . any Procurement Process in which such Provider or Contractor may _ ". : \ participate . _ _) (3) All persons referred to subsection (2) shall -sign the Code -of Ethical Conduct.in Business provided in theRegulations. • (4) All Providers or Contractors of Supplies, . W 6rks, or Services shall he required to sign a declaration of compliance with those Codes of ·conduct. CHAPTERV METHODS OF PUBLIC PROCUREMENT AND ·DISPOSALOF ASSETS . . J Section 58: Methods of Public Procurement and Disposal of Assets (i) The Procuring 'Entity may conduct Procurement Proc;:esses by means of:. /' -"i ·\.a l "...,.°'..,, r>l"\tt1ni::>t-iti~rP tp,nrli::>rino-· v _p v ..Li. 'VV.t..Llr.._t-' ~ ................. ~"""' ,,,_,-:-- - - - - -0 , - 41 - . ) (b) selective tendering; (c) request for quotations; (d) request for proposals; (e) single-source; (f) framework agreements; and (g) low value Procurement. (2)Except as otherwise provided for in this section, a Procuring Entity shall conduct Procurement through open competitive tendering; (3) The Procuring Entity may engage in selective tendering in accordance vvith •Part II of this Chapter if: (a) the ·subject matter ofthe Procurement Process, by reason of its highly coTI;1plex or specialised nature; is available .only from a -limited number • of Providers or Contractors; ( . (b) the time and cost required to examine and ·evaluate a large number of Bids would be disproportionate to the value of the subject matter of the Procµrement Process; or (c) there is insufficient time, in case of an Emergency, and there are a limited number of Providers or Contractors that could be trusted w~th fast execution. (4)A Procuring Entity may engage in a request for quotations in accordance with Part III · of this Chapter for the Procurement of . readily available Supplies or Services that are not specially produced or provided to the particular description of the Procuring Entity · and for which •there is an established market, so long as the estimated value of the subject matter oflh.e request for quotations is less than the threshold amount set out m the Regulations. l (5) The Proctµing Entity may engage in a request for proposals in accordance with Part IV of this Chapter where the subject matter of the Procurement is Consultan.cy Services or a combination of Supplies and Consultancy Services. • ( 6) A Procuring Entity may engage in single-source Procurement in accordance •with the provisions of Part V of this Chapter in the following exceptional circumstances: (a) the subject matter of the Procurement Process is available only from a particular Provider or Contractor, or • a .particular Provider or Contr.actor has exclusive rights in respect of such subject matter, such - 42 - that no reasonable alternative or substitute exists, and the use of any other Procurement method would therefore not be possible; (b) in case of Emergency, where there is an urgent need for the Supplies, Works or Services and engaging in another method of Procurement is impractical; (c) owing to a catastrophic event, there is an extremely urgent need for the subject matter of the Procurement, and engaging in any other method of Procurement would be impractical because of the time ,.---.., involved in using those methods; (d) the -Procuring Entity, . having procured Supplies, equipment, technology or Services from a Provider· or Contractor, determines that additional Supplies must be procured from that Provider or Contractor for reasons of standardisation or the need for compatibility • with existing Supplies, equipment, technology .or .Services, taking into account the effectiveness of the original Procurement in meeting the needs of the Procuring Entity, the limited •size of the proposed Pr9curement in relation to the original Procurement, the reasonableness of the price and the unsuitability of alternatives to .the Supplies or Services in question; or .. (e) if a Defence or National Security Institution and the Authority agree that the use of any other method of Procurement 1s nof appropriate for the protection of essential national security interests in accordance with of this Act. . (7) A Procuring Entity may engage in Low . Value Procurement in __) accordance with Part VI of thls Chapter where the subj.ect matter of the Procurement is _within the threshold provided in the regulations. p ART I: OPEN COM:PETITIVE TENDERING . Section 59: Solicitation in Open Competitive Tendering (l)A Bid Notice.in open competitive tendering shall be published in at ieast one national hewspaper of wide circulation in South Sudan and internationally, unless a:s otherwise provided in subsection (3) below; • \ (2)The provisions of this section shall not apply where the t;i?rocuring Entity .._} • engages .in Pre-Qualification proceedings in accordance with this Act; • •• ' ._) (3}The Procuring Entity shall not be required to cause the Bid Notice to be published internationaily in a nationai competitive te:o.dering vv)1ere: -43 - (a) the Procuring Entity decides, with the approval of the Authority, that only National Providers are likely to be interested in submitti;ng Bids; or (b) the estimated value of the subject matter of the Procurement Process is within the threshold provided in the regulations; in which case, at least . four weeks shall be allowed for submission of Bids by Provider or Contractors. (4)The Procuring Entlty shall cause the Bid Notice to be ·published as in subsection (1) above by using international competitive tendering~ when: (a) the estimated value of the subject matter of the Procurement Process is greate~than the threshold provided in the regulations; or I . (b) effective competition cannot be obtained unless Foreign Providers are ·invited to participate in such Procurement Process, in which case, at least six weeks shall be allowed for submission of Bids by Providers or Contractors . . (5)The Bid Notice shall contain the following information: (a) the name and address ofthe Procuring Entity; . (b) a summary of the.principle required terms and conditions of the Contract to be entered into in the Procurement Process; (c) a summary of the criteria and procedures to be used for ascertaining the qualifications of Bidders; and of any documentary evidence or other information that must be submitted by Bidders to demonstrate their qualifications, in conformity with the regulations; (d) means of obtaining the Bidding Documents; (e) the price, if any., to be charged for the Bidding Documents;·including the means and currency of payment; 1 (f) the language or languages in which the Bidding Documents are available; ~ I • (g) the ma..nner, place and deadline for presenting Bids. C (6) The Procuring Entity shall provide the Bidding Documents to: . (a) each Provider or Contractor that responds to the Bid Notice in accordance • with the procedures and requirements specified therein; or • (b) if Pre-Qualification proceedings have been engaged in, each Bidder has been pre-qualified and pays the price; if any, charged for the Bidding Documents. . (7) The price that t.½.e Procuring Entity may .charge for the Bidding Documents shall reflect only the cost.of providing them to Providers or Contractors, and may not exceed the maximum amount prescribed in .the Regulations inade under this Act. • •

Section 60: Contents of Bidding Documents The regulations made under this Act shall specify details of the contents of the Bidding Documents, which shall include the following: ,....._., (a) instructions for preparing Bids; (b) the criteria and procedures, in conformity with the provisions of this Act, that will be applied in the ascertainment of the qualifications ~fBidders; (c) a detailed description of-the subject matter of the Procurement Process, in conformity with this Act; (d) the terms and conditions of the Contract, to the extent known, and the Contract form, if any, to be signed by the parties; · (e) the ID3I11fer in which the Bid price is to be formulated and expressed, - including a statement as to whether the price is to cover elements other t han the cost of the subject matter of the Procurement itself; (f) any requirements with respect to the issuer and the nature, form, amount and .-CI other principle terms and conditions of any Bid Security; (g) if a Bidder may not modify or withdr~w its Bid prior to the deadline for presenting Bids without forfeiting its Bid Security, a statement to that effect;· (h) the manner, place and deadline .for presenting·Bids; (i) the period of time during which Bids shall be in effect; G) the inanne:r, place, date and time for the opening of Bids; (k) the criteria and procedure for evalµating Bids in accordance with this Act; (i) the name, functional title and address of one or more officers or employees of the Procuring Entity who are authorised to co:i;nmunicate .directly with and to receive communications . directly · from Providers or Contractors . in 1 , connection with the Procurement Process; • • (m) any formalities that will be required once a Successful Bid has been accepted for a Contract to enter into force in accordance with this Act; (n) any . other requirements established by the Procuring Entity in conformity with this 1Act and the regulations made under this Act. •

Section 61: Submission of Bids (1 ) Bids shall be submitted in the manner, at the place, and by the deadiine specified in the Bidding Documents. (2) m A Bid •shall be submitted writing, and signed, and: (a) if in paper form, in a sealed envelope; or _ (b) i_f in any other form, according to requirements specified by the Procuring Entity in the Bidding Documents, which ensure at least a . •I ' • .. . • - 45 - ,- 't- ....J similar degree of authenticity, security, inte 00 ritv ~ and confidentiality. (3) The Procuring Entity shall preserve the security, integrity and confidentiality of a Bid, and shall ensure that the contents of the Bid are examined ;. only after its opening - in accordance with this Act. (4) A Bid received after the deadline for presenting -Bids shall not be opened and shall be returned unopened to the concerned Bidder.

Section 62: Period of Effectiveness of Bids (1) Bids shall be in effect for the period of time specified in the regulations 1 1 made under this Act. • ( . (2) Prior to the expiry of the period of effectiveness of Bids, the Procuring Entity may request Bidders to extend the period for an additional specified period ciftime, which requires that a Bidder may refuse without ·forfeiting its Bid Security. .(3) .Bidders that agree to an extension of the period of -effectiveness of their Bids shall extend the period of effectiveness of their Bid Securities or provide new Bid Securities to cover the extended peri.od of effectiveness .of their Bids, or otherwise be deemed to have refused ihe request to extend the period of effectiveness of its Bid~ · •

Section 63: Opening of Bids L (1) ·_ Bids shall b~ opened at the time, place and in accordance ~th the mani'i.er and procedures specified in the Bidding Documents. (2) All Bidders, or their representatives, shall be permitted to participate in the opening of Bids. (3) The nanie and address of each Bidder whose Bid is opened and the Bid price shall be announced to those persons present at the opening of Bids. ~ . . (4) No decision regarding the disqualification or rejection of any Bid shall be taken in the Bid opening session. • : .. -.. ... --·· .. .

Section 64: Examiua-tion and Evaluation of Bids (1) Subject to subsection (2) below, the Procuring .Entity shall regard a Bid as responsive if it conforms to all requirements set out in the Bidding Documents; \ I (2) . The Procuring Entity may .regard a Bid as responsive eve1:1 if it contains mmor f deviations that do not materially alter or depart from the ~ i characteristics, terms, conditions and ·other requirements set out in • the Bidding Documents or if it contains errors or oversights that are capable of being corrected without touching on the s:ubstance of the Bid; any such • devfations shall be quantified, to the extent possible, and appropriately taken into account in the evaluation of Bids; \ . (3) The Procuring.Entity shall reject a Bid: (a) if the Bidder is not qualified; (b) if the Bidder does not accept a correction of an arithmetic.a l e rror made pursuant to this Act; . (c) if the Bid is not responsive; or (d) in the circumstances referred to in this Act; (4) The Procuring Entity shall evaluate the Bids that have not been rej ected in order to ascertain the Successful .Bid, as defu7.ed in subsection (5) below;, in accordance with .the criteria and . procedures set out m the ·Bid<lnp.g Documents; (5} The Successful Bid sha1lbe: (a) where price is the only criterion, the Bid with the lowest responsive pnce; 1 (b) where there are prices and other award cri teria, . the most advantageous Bid ascertained on the basis of the criteria and procedures for evaluating Bids specified in the Bidding Documents in accordance with Section 58 of this Act; and (c) where the bidder has satisfied the criteria set out in Section 41 of this Act (financial and tecbnical proposals): . . (6) The Procuring Entity shall communicate the summary results of the bidding process to all the bidders. -47.:. r· ·-.... J

Section 65: Prohibition of Negotiations with Bidders l . j No negotiations shall take place between the Procuring Entity anq a Bidder with respect to such Bidder's Bid, except as otherwise provided in this Act. PART II: SELECTIVE TENDERING

Section 66: Solicitation in Selective Tendering • ( 1) The Procuring Entity may engage in Procurement by means of &elective tendering: (a) where the subject matter of procurement process, by reason of its highly complex or specialized nature~ is available only :from a limi_ted number of Providers or Contractors, as specified in Section 3'8 of this Act, it shall solicit Bids from all Providers and Contractors fr.om which the subject matter of the Procurement Process is available; ( (b) where the time and cost required to examine and evaluate a large number _of b~ds, would be disproportionate to the value of the subjeFt matter of the procurement process; ot • • ! (c) where there j_s insufficient time in case of an emergency'~ and there are limited number·of Providers or Contractors that could be entrusted with fast execution; (2) On the ground specified in sub.,Section _l of this Section it shall select in a non-discriminatory manner, a sufficient number of Providers or Contractors to ensure effective competition, but·at least three (3). _-

Section 67: Rules -f or Selective Tendering The proyisions of Section 58 of this Act shall be applicable to opeb. competitive tendering, except for selective tendering proceedings. I . PART III: REQUEST FOR QUOTATIONS '

Section 68: Solicitation in Request for Quotations Where the Procuring Entity engages in Procurement by means of request for quotations in accordance with this Section of the Act, it shall request quotations •1 :from as many Providers or Contractors as practicable. - _48 - .. · .. . . ·- ···• - -·· ··-·

Section 69 : Rules for Requests for Quotations (1) Quotations must be submitted in writing in the format prescribed in the regulations made under this Act. (2) Each Bidder is permitted to give only one price quotation and is not =- -., permitted to change its quotation, and no negotiations shall take p l ace between .the Procuring Entity and a Bidder with respect to the latter's quotation; • . (3) The Successful Bid shall be the lowest-priced quotation meeting the needs of the Procuring Entity as set out in the Bidding Documents. ( PART IV: REQUEST FOR PROPOSALS

Section 70: Solicitation in Request for Proposals . (i) For the .purposes of procuring Consultancy Services, the Procuring Entity m ay • invite participation of Providers or Contractors by: (a) publishing an invitation to submit expressions of interest in the same .manner provided in this Act, as appropriate, as a result of which a shortlist of no more than six Providers shall be prepared, to which the request for proposals shall be submitted in accordance with. Section (a); or J (b} engagµig in direct·solicitation .under the conditions set out in subsection (2) below. • (2) The Procuring Entity may engage in direct solicitation in request for proposals I proceedings if: ' . (a) the ·subject matter to be procured is available only from a limited number of •Providers or Contractors, provided that the Procuring Entity solicits Brds from all those Providers or Contractors; (b) the time and cost required to examine and evaluate a large, number of Bids would be disproportionate to the value of the subject matte~ to be p·rocured, . provided that the Procuring Entity solicit.s Bids from a sufficieritnumber of Providers or Contractors to ensure effective competition; or • (c) th_e Procurement Process involves dassified information, provided that the Procuring Entity solicits Bids from a sufficient number of Providers or Contractors to ensure effective competition. · (3) Th e -invitation to participate in therequest for proposals shall inclu.de: (a) the nap1e and address of the Procuring Entity; • - 49- (b) a detailed description of the subject matter of the Procurecl.ent Process, in conformity with this Act; (c) the terms and conditions of the Contract, to the extent known, and the Contract form, if any, to be signed by the parties; (d) the criteria and procedures to be used for ascertaining the qualifications of Providers or Contractors and any documentary evidence or other information that must .be presented by Providers or Contractors to •demonstrate their qualifications, in conformity with this Act; (e) criteria and procedures for opening the Bids and for examini.11g and evaluating the Bids in accordance with Section 41 of this Act, including the minimum • requirements with respect to technical, quality and performance characteristi~s that Bids must meet in order to be considered responsive in accordance with of this Act, and a statement that proposals that fai1 to meet those requirements will be rejected as non~responsive; (f) meai1s of obtaining the Bidding Documents; (g) the language or languages in which the Bidding Documents are available; ( and (h) the manner, place arid deadline for presenting Bids. (4) The Procuring Enttty shall issue the request for proposals: :. ( a) in the case provided in subsection ( a), to each shortlisted Provider or Contractor or ' {b) in the case provided in subsection(2) above, to each Provider or Contractor selected by the Procuring Entity.

Section 71: Rules for Request for Proposals (1) The • request for proposals shall include, in addition to the information referred to in Sections 69, the following information: ( a) instruc,tions for preparing and presenting proposals, including i,nstructions (_ • to Pro~iders or Contractors to present simultaneously_to the Procuring Entity proposals ·in two envelopes: one ·envelope containing the technical, qualjty and performance. characteristics of the proposal •and the other envelope containing the financial aspects of the proposal; (b) the currency or currencies in which the proposal.price is fo be fonnulated • and expressed; m ( c). the manner which the proposal price is to be formulated and expressed, including a statement as to whether the price is t o cover elements other than the.cost of the subject matter of the Procurement Process; ( d) th,e means by which; pursuant in this Act, Providers or Contractors may seek clarifications of the request for proposals, and a· statement .as to -SO- whether the Procuring Entity intends, at ti.1-iis stage, to convene a meeting of Providers or Coritractors; . (e) the name, functional title and address of one or more officers or employ'res of the Procuring Entity who are authorised to 1communicate ....1 directly with and to receive communications directly from Providers or Contractors in connection with the Procurement Process; (f) -any .formalities that will be required once the Successful Bid ·has been accepted for a Contract to enter into force as provided.in this Act; and (g) any other requirements that may be established by the Procuring Entity in • conformity with this Act and the regulations made under this Act. (2) The request for proposals shall specify the _applicable selection methodol ogy from -among one of the following: • (a) selection based on quality and cost, which can be based either: (i) on the technical quality of the proposal, the Bidder's experience . ( • and the experience of its staff, the proposed work and method, as well as the price of the proposal; or (ii) on the quality of the technical proposal submitted within a predetermined fixed budget; or - (iii) on the best fmancial proposal sub~tted by those ·Bidders that . I have obtained an acceptable technical score pre-disclosed in the ! request for proposals; or, alternatively, i. (b)-selection based solely on the technical quality of the proposal, when the Consultancy Services are of an exceptionally complex nature, or a wilL have considerable inipact on future projects or the national .J ) economy, or when they may lead to the submission . of proposals ·, which are difficult to_compare. i (3) Before opening the _envelopes containing the financial aspects of the -_ptoposals, the Procuring Entity shall"- examine and evaluate the quality of the \ ___) technical proposal in accordance with the criteria and.procedures specified in the request for proposals; _ (4) The proposals, the technical _aspects of which fail to meet the relevant . minimum requirements in the request for proposals, shall be considered to be non-responsive and shall be rejected· on that ground, and a notice of rejection and the reasons for the rejection, together. with the. unopened envelope . containing the financial aspects of the proposal, shall be promptly dispatched _J to each respective Bidder whose proposal was rejected; _j (5) The Procuring Entity shall rank each responsive proposal in accordance with __) the criteria and procedure for evaluating proposals as set out in the request for proposals in subsection (2) above, and shaii:. - 51 - .. \ ......) CHAPTER VI r· ADMINISTRATIVE REVIEW

Section 77: Administrative Review I A Bidder may seek administrative review for a Procuring Entity' s orcission or breach of this Act or the regulations made under this Act, or of the Bidding Documents. 1

Section 78: Review by Accounting Officer . (1) A complaint by a Bidder against a .Procuring Entity shall first be submitted in writing to the Accounting Officer within ten working days ( from the date the Bidder first became aware of the circumstances giving rise to the complaint. (2) On receiving a complaint, the Accounting Officer shall make a decision in writing within ten (10) working days indicating the corrective measures to be taken, if any, including the suspension of the proceedings where the Accounting Officer deems it necessary and ·givj.ng reasons for the decision. (3) • Where the Accounting Officer does not make a decision within the period specified in subsection (2) abov~; or the ,Bidder is not -satisfied wifu the decision of the Accounting Officer; the Bidder may make a complaint to the Authority within ten . (10) working days from the date of communication of the decision by .the Accounting Officer, or lapse of the deadline for the Accounting·Officer to make a: decision. • (__

Section 79: Review by the Authority . . (1) •Upon receipt of a complaint, the Authority shall promptly give notice of the complaint to the respective Procuring Entity, ·suspending any further action thereon by the Procuring Entity until the Authority has settled the matter. (2) The Authority shall, unless it dismisses the complaint (a) prohibit a Procuring Entity from taking any further action; or - 56 - (-b) annul in whole or in part an unlawful act or decision made by the Procuring Entity. (3) Before taking .any decision on a complaint, the Authority shall notify all interested Bidders .of the complaint and may take into •account n representati.o:tJ.s from the Bidders and from the respective Procuring Entity and disposing entity. l (4) The Authority shall issue its decision within twenty on~ (21) working days after receiving the complaint, stating the reasons for its decision and rem_edies .granted, if any. . • (5) Any further appeal ·shall be referred to the High -Court . . ( CHAPTER VTI ..... _ . · ,• MISCELLANEOUS PROVISIONS ( \. '

Section 80: Protection from Prosecution No ac_tion shall lie against any member or staff 9f the Authority or a Procur..ng Entity .for any act or omission done in good . faith -in · the execution of such persqn's dut~es under this Act: . ( . Section .$1 : Susp~nsion of Providers •A Provider or Contractor that does not comply with 'this Act, or the tegufations made under this Act, shall be suspended by the Authority from engaging in any public Procµrement and Disposal of Assets activity for a period to be determined by the Authority on a case by case basis. • __ ) . . ___) • Sed:ion 82: Offences and Penalties A person commits an offence if: (a) without reasonable excuse fails or refuses to give information, or produce .· any document, records or reports required und~r this Act; . _- 57..: J .fl (b) without reasonable excuse refuses to answer summons or refuses to produce any books of accounts, plans or give evidence as requll'ed tinder this Act; (c) contrary to this Act, interferes with or exerts undue influence on any officer 'or employee of the Authority or a Govemm,ent In~titution in the performance of such officer's or employee's functions or powers under this Act; or (d) connives or colludes to engage in Fraudulent or Corrupt Practices and upon conviction; is hable to a fine: 1. not less than an amount of South Sudanese\ Pounds (S SP) equivalent to US Ten (lO) thousand . dollars; but not exceeding an amount SSP equivalent to twenty (20) thousand US dollars or imprisonment not exceeding three years or both for an individuai; and • 11. not less than an amount of SSP equivalent to five hundred (500) thousand US dollars for a corporate body.

Section 83: Regulations (1) The Minister shall, on the recommendation of the Authority and the approval of Pp.rliarrient, issue regulations for the implementation of the provisions of this Act; (2) The regulp.tions made ~der subsection (1) above may include and not limited to the following: (a) standard bidding documents, request for proposals and other forms to be used on a mandatory basis for procuring entities; (b) the preparation and submission of tenders; (c) the manner of publication of the notice·of awards; •( d) reservations and margin of preferences in the evaluation of bids; - (e) the preparation and submission of application to pre~qualify for bids; (f) detailed procedures for selection of consultants and agents; (g) procurement proc.eedings on the basis of nationality; (h) the procurement proceeding- when one entity or specially appointed agent is to procure ' items• on behalf of another entity; . (i) the .am~ndmeiit of the thresholds for the procurement methods and award of contracts under sample fonns of procurement plans; G) sample periodic procuremen,t reporting forms; - ~ ~"/ (k) print and electronic media acceptable :(or publication in compliance with this Act; and (1) any other matter connected to this Act. ~: - ............:·.~,i ;: ·. ·.· . .• . : . . -·~~-- .--...\.· . . . ~ ~--- • ; ·:.- .. .; . -~ -L ~ ( --~---· Ii~~-· • .. .. • ·. •. - ·,.; ~----·· - . _,:; <: • ., - ::~ ._':".,_~,, ; In accordance with the provision of Article 85 (1) of the Transitional P", ,. Constitution of the .Republic of South Sudan, 201 1. 'C . / ' I, Gen. Salva Kii:r Mayardit, President of the Republic of South Sudan,·hereby •Assentto.the PUBLIC PROCUREM:ENT AND DISPOSAL OF ASSETS, ACT, 2018 and sign it into law. Signed in Juba this ___ : 2 _ ~ , - - - - - - Day of the Month of _____ .A-_;f~ . _ _ _ in the year 2019 . _,._,:J__·_ Gen. Salva Kiir _Mayardit President Republic of South Sudan RSS-Juba. J i ) _j •_J 2_) ! -⇒ • .~·- .:.,,_ --·,I J ·,. I ( . (